[Senate Hearing 109-277]
[From the U.S. Government Printing Office]



                                                      S. Hrg. 109-277
 
CONFIRMATION HEARING ON THE NOMINATION OF SAMUEL A. ALITO, JR. TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                           JANUARY 9-13, 2006

                               __________

                          Serial No. J-109-56

                               __________

         Printed for the use of the Committee on the Judiciary



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25-429                 WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                           JANUARY 9-11, 2006
                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of 
  Delaware.......................................................    15
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....    44
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......    47
Cornyn, Hon. John, a U.S. Senator from the State of Texas........    39
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio.........    24
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    41
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    31
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................    26
Graham, Hon. Lindsey O., a U.S. Senator from the State of South 
  Carolina.......................................................    33
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.    13
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     8
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................    10
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin...    21
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    18
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
    prepared statement...........................................  1229
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    36
    prepared statement...........................................  1443
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    28
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     2

                               PRESENTERS

Lautenberg, Hon. Frank R., a U.S. Senator from the State of New 
  Jersey presenting Samuel A. Alito, Jr., Nominee to be an 
  Associate Justice of the Supreme Court of the United States....    50
Whitman, Christine Todd, former Governor of New Jersey, and 
  former Administrator, U.S. Environmental Protection Agency, 
  presenting Samuel A. Alito, Jr., Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    51

                        STATEMENT OF THE NOMINEE

Alito, Samuel A., Jr., of New Jersey, Nominee to be an Associate 
  Justice of the Supreme Court of the United States..............    54
    Questionnaire................................................    58
                              ----------                              

                            JANUARY 12, 2006
                               WITNESSES

Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   659
Axelrod, Edna Ball, Attorney at Law, Law Offices of Edna Ball 
  Axelrod, South Orange, New Jersey..............................   681
Barry, Maryanne Trump, Judge, U.S. Court of Appeals for the Third 
  Circuit, Philadelphia, Pennsylvania............................   658
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   654
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Chicago, Illinois...............................   661
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of 
  Constitutional Law, University of North Carolina School of Law, 
  Chapel Hill, North Carolina....................................   683
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and 
  Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, 
  Newark, New Jersey.............................................   664
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University, New York, New York............................   687
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner, 
  Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio.....   685
Lewis, Timothy K., Judge (retired), U.S. Court of Appeals for the 
  Third Circuit, and Counsel, Schnader Harrison Segal & Lewis, 
  LLP, Washington, D.C...........................................   667
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of 
  Law, University of California, Berkeley, Berkeley, California..   690
Phillips, Carter G., Managing Partner, Sidley Austin, LLP, 
  Washington, D.C................................................   689
Scirica, Anthony J., Chief Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania......................   656
Tober, Stephen L., Esq., Chairman, American Bar Association 
  Standing Committee on the Federal Judiciary, Portsmouth New 
  Hampshire; accompanied by Marna Tucker, Esq., D.C. Circuit 
  Representative, American Bar Association Standing Committee on 
  the Federal Judiciary, Washington, D.C.; and John Payton, Esq., 
  Federal Circuit Representative, American Bar Association 
  Standing Committee on the Federal Judiciary, Washington, D.C...   641
                              ----------                              

                            JANUARY 13, 2006
                               WITNESSES

Chemerinsky, Erwin, Alston & Bird Professor of Law and Political 
  Science, Duke University Law School, Durham, North Carolina....   708
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor 
  of Law, Hofstra University School of Law, Hempstead, New York..   706
Flym, John G.S., retired Professor of Law, Northeastern 
  University School of Law, Boston, Massachusetts................   738
Fried, Charles, former Solicitor General of the United States, 
  and Beneficial Professor of Law, Harvard Law School, Cambridge, 
  Massachusetts..................................................   713
Frost, Amanda, Assistant Professor of Law, Washington College of 
  Law, American University, Washington, D.C......................   736
Gonzalez, Hon. Charles A., a Representative in Congress from the 
  State of Texas.................................................   750
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan, 
  Gray & Nathanson, Tuskegee, Alabama............................   728
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale 
  Law School, New Haven, Connecticut.............................   710
Michelman, Kate, former President, National Abortion and 
  Reproductive Rights Action League Pro-Choice America, 
  Washington, D.C................................................   731
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C.....   711
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman 
  LLP, New York, New York........................................   748
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Educational Fund, Inc..............................   758
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law, 
  and Senior Fellow, Jamestown Project, Yale Law School, New 
  Haven, Connecticut.............................................   733
Tribe, Laurence H., Carl M. Loeb University Professor and 
  Professor of Constitutional Law, Harvard Law School, Cambridge, 
  Massachusetts..................................................   714
Turner, Reginald M., Jr., President, National Bar Association, 
  Washington, D.C................................................   756
Wasserman Schultz, Hon. Debbie, a Representative in Congress from 
  the State of Florida...........................................   752
White, Jack, Associate, Kirkland and Ellis, LLP, San Francisco, 
  California.....................................................   754

                         QUESTIONS AND ANSWERS

Responses of Samuel A. Alito, Jr. to questions submitted by 
  Senators Biden, Durbin, Kennedy, Leahy, Levin, Schumer, and 
  Feingold.......................................................   773
Responses of Erwin Chemerinsky to questions submitted by Senators 
  Coburn and Kennedy.............................................   813
Response of Laurence Tribe to a question submitted by Senator 
  Coburn.........................................................   816

                       SUBMISSIONS FOR THE RECORD

Aldisert, Ruggero J., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania, prepared statement..   819
Alliance for Justice, Nan Aron, President, Washington, D.C., 
  letter and attachment..........................................   823
American Association for Affirmative Action, Shirley J. Wilcher, 
  Interim Executive Director, Washington, letter.................   839
American Association of University Women, Lisa M. Maatz, 
  Director, Public Policy and Government Relations, Washington, 
  D.C., letter...................................................   841
American Bar Association, Stephen L. Tober, Chair, Washington, 
  D.C.:
    letter, January 4, 2006......................................   843
    letter, January 9, 2006......................................   845
American Civil Liberties Union, Washington, D.C.:
    Shin Inouy, Legislative Office, January 9, 2006, press 
      release....................................................   865
    Anthony D. Romero, Executive Director, prepared statement....   867
American Federation of Labor and Congress of Industrial 
  Organizations, John J. Sweeney, President, Washington, D.C., 
  letter.........................................................   875
American Federation of State, County and Municipal Employees, 
  Gerald W. McEntee, International President, Washington, D.C., 
  letter.........................................................   877
Americans United for Separation of Church and State, Rev. Barry 
  W. Lynn, Executive Director, Washington, D.C., letter..........   879
ADA Watch/National Coalition for Disability Rights, Jim Ward, 
  Founder and President, Washington, D.C., letter................   881
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, D.C., letter...................   883
Attorneys General of various States, joint letter................   885
Axelrod, Edna Ball, Attorney at Law, South Orange, New Jersey, 
  prepared statement.............................................   888
Bar Association of San Francisco, Joan Haratani, President, San 
  Francisco, California, letter..................................   892
Bazelon Center for Mental Health Law, Robert Bernstein, Executive 
  Director, Washington, D.C., letter.............................   897
Becker, Edward R., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Philadelphia, Pennsylvania, prepared statement..   899
B'nai B'rith International, Joel S. Kaplan, President and Daniel 
  S. Mariaschin, Executive Vice President, Washington, D.C., 
  letter.........................................................   904
Boston Globe, Boston, Massachusetts, January 10, 2006, article...   905
Brady Center to Prevent Gun Violence, Washington, D.C.:
    Mike Barnes, President, letter...............................   908
    Dennis A. Henigan, Director, Legal Action Project, prepared 
      statement..................................................   910
California Women Lawyers, Pearl Gondrella Mann, President, 
  Sacramento, California, letter.................................   930
Catholics for a Free Choice, Frances Kissling, President, 
  Washington, D.C., letter.......................................   934
Center for Reproductive Rights, New York, New York, prepared 
  statement......................................................   937
Chemerinsky, Erwin, Alston & Bird Professor of Law and Political 
  Science, Duke University Law School, Durham, North Carolina, 
  prepared statement.............................................   946
Chertoff, Michael, Secretary, Department of Homeland Security, 
  Washington, D.C., press release................................   957
Chicago Tribune, Steven Lubet and David McGowan, November 18, 
  2005, article..................................................   958
Colorado Hispanic Bar Association, Victoria Lovato, President, 
  Denver, Colorado, letter.......................................   960
Congressional Hispanic Caucus, Hon. Grace Flores Napolitano, 
  Chair, and Hon. Charles A. Gonzales, Chair, Congressional 
  Hispanic Caucus Civil Rights Task Force, Washington, D.C.:
    January 6, 2006, letter......................................   963
    January 20, 2006, letter.....................................   967
Congress of the United States, women Members of Congress, 
  Washington, D.C., letter.......................................   969
Daily Princetonian, Princeton, New Jersey, article...............   972
Deans or former deans of law schools, joint letter...............   976
Demleitner, Nora V., Vice Dean for Academic Affairs and Professor 
  of Law, Hofstra University School of Law, Hempstead, New York, 
  prepared statement.............................................   979
Dujack, Stephen R., Alexandria, Virginia, prepared statement.....   982
Earthjustice, Vawter Parker, Executive Director, Washington, 
  D.C., letter...................................................   992
Factual responses to falsehoods in the Knight-Ridder article 
  attacking Judge Alito, list....................................   994
Fellow judges criticize application of precedent, list...........   998
Feminist Majority, Eleanor Smeal, President, Arlington, Virginia, 
  letter.........................................................  1000
Ferrara, Ralph C., former General Counsel of the Securities and 
  Exchange Commission, and Partner, LeBoeuf, Lamb, Greene & 
  MacRae LLP, Washington, D.C., letter...........................  1002
Fleming, Cathy, Edwards Angell Palmer & Dodge, LLP, New York, New 
  York, letter...................................................  1006
Flym, John G.S., retired Professor of Law, Northeastern 
  University School of Law, Boston, Massachusetts, prepared 
  statement......................................................  1008
Former law clerks of Judge Samuel A. Alito, Jr., joint letter....  1024
Fraternal Order of Police, Grand Lodge, Chuck Canterbury, 
  National President, Washington, D.C., letter...................  1029
Fried, Charles, former Solicitor General of the United States, 
  and Beneficial Professor of Law, Harvard Law School, Cambridge, 
  Massachusetts, prepared statement..............................  1031
Friends of the Earth, Brent Blackwelder, President, Washington, 
  D.C., letter...................................................  1037
Frost, Amanda, Assistant Professor of Law, Washington College of 
  Law, American University, Washington, D.C., prepared statement.  1039
Garth, Leonard I., Senior Judge, U.S. Court of Appeals for the 
  Third Circuit, Chicago, Illinois, prepared statement...........  1050
Gerhardt, Michael J., Samuel Ashe Distinguished Professor of 
  Constitutional Law, University of North Carolina School of Law, 
  Chapel Hill, North Carolina, prepared statement................  1060
Gibbons, John J., Judge (retired), U.S. Court of Appeals, and 
  Director, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, 
  Newark, New Jersey, prepared statement.........................  1079
Gillers, Stephen, Emily Kempin Professor of Law, New York 
  University School of Law, New York, New York, letter...........  1091
Gonzales, Hon. Charles A., a Representative in Congress from the 
  State of Texas, prepared statement.............................  1096
Gray, Fred D., Senior Partner, Gray, Langford, Sapp, McGowan, 
  Gray & Nathanson, Tuskegee, Alabama, prepared statement........  1105
Hazard, Geoffrey C., Jr., Trustee Professor of Law, University of 
  Pennsylvania, Philadelphia, Pennsylvania, letter...............  1114
Higginbotham, Michael, Wilson Elkins Professor of Law, University 
  of Baltimore School of Law, Baltimore, Maryland, letter........  1118
Human Rights Campaign, Joe Solmonese, President, Washington, D.C. 
  prepared statement and letter..................................  1120
Independent Living Center of Kern County, Norris Ledbetter, 
  System Change Coordinator, and Bonita Coyle, Executive 
  Director, Bakersfield, California, letter......................  1126
Independent Living Resource Center San Francisco, Herb Levine, 
  Executive Director, San Francisco, California, letter..........  1131
Instances of judges testifying during Supreme Court confirmation 
  hearings, list.................................................  1133
Ipas, Charlotte Hord Smith, Policy Director, Chapel Hill, North 
  Carolina, letter...............................................  1134
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University, New York, New York, prepared statement........  1136
Jackson Lee, Hon. Sheila, a Representative in Congress from the 
  State of Texas, letter.........................................  1140
Japanese American Citizens League, John Tateishi, National 
  Executive Director, San Francisco, California, letter..........  1149
Jewish Community Action, Vic Rosenthal, Executive Director, St. 
  Paul, Minnesota, prepared statement............................  1151
Jewish Council on Urban Affairs, Chicago, Illinois, prepared 
  statement......................................................  1153
Journal of Child Psychology and Psychiatry, Malden, 
  Massachusetts, article.........................................  1155
Kirsanow, Peter N., U.S. Commission on Civil Rights, and Partner, 
  Benesch Friedlander Coplan & Aronoff, LLP, Cleveland, Ohio, 
  prepared statement.............................................  1164
Kronman, Anthony, Sterling Professor of Law and former Dean, Yale 
  Law School, New Haven, Connecticut, prepared statement.........  1176
Lambda Legal, Kevin M. Cathcart, Executive Director, New York, 
  New York, letter...............................................  1180
Law professors who oppose the confirmation of Judge Alito, joint 
  letter.........................................................  1182
Law professors who support the confirmation of Judge Alito, joint 
  letter.........................................................  1208
Lawyers' Committee for Civil Rights Under Law, Marjorie Press 
  Lindblom, Co-Chair and Robert E. Harrington, Co-Chair, 
  Washington, D.C, prepared statement and letter.................  1210
Leadership Conference on Civil Rights, Dorothy I. Height, 
  Chairperson, and Wade Henderson, Executive Director, 
  Washington, D.C., letter.......................................  1216
League of United Latin American Citizens, Washington, D.C., press 
  release........................................................  1227
Legal Momentum, Lisalyn R. Jacobs, Vice President for Government 
  Relations, Washington, D.C., letter............................  1232
Legal professionals in support of the nomination of Judge Samuel 
  A. Alito, Jr., joint letter....................................  1234
Liu, Goodwin, Assistant Professor of Law, Boalt Hall School of 
  Law, University of California, Berkeley, Berkeley, California, 
  prepared statement.............................................  1245
Mabel Wadsworth Women's Health Center, Ruth Lockhart, Executive 
  Director, Sharon Barker, President, Board of Directors, and 
  Stephanie Cotsirilos, past President, Board of Directors, 
  Bangor, Maine, letter..........................................  1262
Mexican American Legal Defense and Educational Fund, Ann Marie 
  Tallman, President, General Counsel, Los Angeles, California, 
  prepared statement.............................................  1268
Michelman, Kate, former President, National Abortion and 
  Reproductive Rights Action League Pro-Choice America, 
  Washington, D.C., prepared statement...........................  1271
Morgan, Thomas D., Oppenheim Professor of Antitrust and Trade 
  Regulation Law, George Washington School of Law, Washington, 
  D.C., letter...................................................  1276
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Director, Washington Bureau, Washington, 
  D.C., letter...................................................  1279
NAACP Legal Defense and Educational Fund, Inc., Theodore M. Shaw, 
  Director-Counsel and President, Washington, D.C., prepared 
  statement and attachment.......................................  1281
NARAL Pro-Choice America, Nancy Keenan, President, Washington, 
  D.C., prepared statement and letter............................  1289
National Abortion Federation, Vicki A. Saporta, President and 
  Chief Executive Officer, Washington, D.C., prepared statement 
  and letter.....................................................  1298
National Association of Social Workers, Elizabeth J. Clark, 
  Executive Director, Washington, D.C., letter...................  1304
National Association of Women Lawyers, Stephanie A. Scharf, 
  Chair, Committee for the Evaluation of Supreme Court Nominees, 
  Chicago, Illinois, letter and attachment.......................  1305
National Cancer Institute, U.S. National Institutes of Health, 
  Washington, D.C., report and fact sheets.......................  1308
National Council of Jewish Women, Phyllis Snyder, President, New 
  York, New York, prepared statement and letter..................  1323
National Council of Women's Organizations, Susan Scanlan, Chair, 
  and Terry O'Neil, Executive Director, Washington, D.C., letter.  1328
National Council on Independent Living, John Lancaster, Executive 
  Director, and Kelly Buckland, President, Arlington, Virginia, 
  letter.........................................................  1329
National District Attorneys Association, Paul A. Logli, 
  President, and Thomas J. Charron, Executive Director, 
  Alexandria, Virginia, letter and resolution....................  1334
National Employment Lawyers Association, Marissa M. Tirona, 
  Program Director, San Francisco, California, letter............  1336
National Family Planning and Reproductive Health Association, 
  Judith M. DeSarno, President, Chief Executive Officer, 
  Washington, D.C., letter.......................................  1337
National Gay and Lesbian Task Force, Matt Foreman, Executive 
  Director, Washington, D.C., letter.............................  1338
National Journal Group Inc., Washington, D.C.:
    December 12, 2005, article...................................  1340
    January 9, 2006, article.....................................  1344
National Latina Institute for Reproductive Health, Silvia 
  Henriquez, Executive Director, New York, New York, letter......  1347
National Organization for Women, Kim Gandy, President, 
  Washington, D.C., prepared statement and letter................  1349
National Partnership for Women & Families, Debra L. Ness, 
  President, Washington, D.C., letter and prepared statement.....  1352
National Urban League, Marc H. Morial, President and Chief 
  Executive Officer, New York, New York, letter..................  1382
National Women's Law Center, Nancy Duff Campbell, Co-President 
  and Marcia D. Greenberger, Co-President, Washington, D.C., 
  letter.........................................................  1383
Nolan, Beth, Partner, Crowell & Moring, LLP, Washington, D.C., 
  prepared statement.............................................  1386
Pennsylvania State Senators in support of Judge Samuel Alito, 
  Harrisburg, Pennsylvania, joint letter.........................  1395
People For the American Way, Ralph G. Neas, President, 
  Washington, D.C., letter.......................................  1398
Phillips, Carter G., Managing Partner, Sidley Austin, LLP, 
  Washington, D.C., prepared statement...........................  1400
Physicians for Reproductive Choice and Health, Wendy Chavkin, MD, 
  MPH, Board Chair, New York, New York, prepared statement.......  1405
Planned Parenthood of America and Planned Parenthood Action Fund, 
  Karen Pearl, Interim President, Washington, D.C., letter and 
  prepared statement.............................................  1408
Precedents Justice Thomas has called for unraveling, list........  1417
Princeton Packet, Princeton, New Jersey, February 12, 1985, 
  article........................................................  1420
Pringle, Katherine L., Partner, Friedman Kaplan Seiler & Adelman, 
  LLP, New York, New York, prepared statement....................  1422
Reach Out America, Dorothy Puryear, Executive Committee, and 
  Sybil Bank, Executive Committee, Great Neck, New York, letter..  1425
Religious Action Center of Reform Judaism, Rabbi David 
  Saperstein, Director and Counsel, and Jane Wishner, Chair, 
  Commission on Social Action of Reform Judaism, Washington, 
  D.C., letter...................................................  1426
Religious Coalition for Reproductive Choice, Reverend Carlton W. 
  Veazey, President and CEO, Washington, D.C., letter............  1429
Republican Majority for Choice, Washington, D.C., Janury 11, 
  2006, press release............................................  1431
Rotunda, Ronald D., George Mason University Foundation Professor 
  of Law, George Mason University School of Law, Arlington, 
  Virginia, letter...............................................  1433
Sergeants Benevolent Association, Police Department, City of New 
  York, Ed Mullins, President, New York, New York, letter........  1448
Service Employees International Union, Andrew L. Stern, 
  International President, and Anna Burger, International 
  Secretary-Treasurer, Washington, D.C., letter..................  1450
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense & Educational Fund, Inc., Washington, D.C., prepared 
  statement......................................................  1456
Sierra Club, Patrick Gallagher, Director, Environmental Law 
  Program, Washington, D.C., letter..............................  1460
Sullivan, Ronald S., Jr., Associate Clinical Professor of Law, 
  and Senior Fellow, Jamestown Project, Yale University, New 
  Haven, Connecticut, prepared statement.........................  1464
Sydney Morning Herald, Sydney, Australia, January 3, 2006, 
  article........................................................  1491
Tober, Stephen L., Esq., American Bar Association, Washington, 
  D.C., prepared statement.......................................  1493
Tribe, Laurence H., Carl M. Loeb University Professor and 
  Professor of Constitutional Law, Harvard Law School, Cambridge, 
  Massachusetts, prepared statement..............................  1498
Turner, Reginald M., Jr., President, National Bar Association, 
  Washington, D.C., prepared statement...........................  1519
Union of Orthodox Jewish Congregations of America, Institute for 
  Public Affairs, Mark Bane, Chair, and Nathan J. Diament, 
  Director, Washington, D.C., letter.............................  1536
Unitarian Universalist Association of Congregations, Robert C. 
  Keithan, Director, Washington, D.C., letter....................  1540
United Automobile, Aerospace and Agricultural Implement Workers 
  of America, Alan Reuther, Legislative Director, letter.........  1543
Violence Policy Center, M. Kristen Rand, Legislative Director, 
  Washington, D.C., letter.......................................  1545
Walk, R. David, Jr., Dechert LLP, Swarthmore, Pennsylvania, 
  letter.........................................................  1548
Wall Street Journal, New York, New York, January 5, 2006, article  1550
Washington Post, Washington, D.C.:
    January 2, 2006, article.....................................  1556
    January 8, 2006, article.....................................  1558
    January 9, 2006, article.....................................  1564
Washington Times, Washington, D.C., January 13, 2006, article....  1570
Wasserman Schultz, Hon. Debbie, a Representative in Congress from 
  the State of Florida, prepared statement.......................  1572
White, Jack, Associate, Kirkland & Ellis LLP, Washington, D.C., 
  prepared statement.............................................  1581
Women of Reform Judaism, Shelley Lindauer, Executive Director, 
  and Rosanne M. Selfon, President, Lancaster, Pennsylvania, 
  letter.........................................................  1585
Women's Medical Fund, Inc., Anne Nicol Gaylor, Administrator, 
  Madison, Wisconsin, letter.....................................  1586
YWCA USA, Peggy Sanchez Mills, Chief Executive Officer, 
  Washington, D.C., letter.......................................  1587


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                        MONDAY, JANUARY 9, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 12 p.m., in room 
216, Hart Senate Office Building, Hon. Arlen Specter, Chairman 
of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. Good afternoon, ladies and gentlemen. The 
Senate Judiciary Committee will now proceed to the confirmation 
hearing of Judge Samuel Alito, Jr. for the Supreme Court of the 
United States. A few matters of administration or housekeeping, 
and then we will proceed to the opening statements.
    Today we will hear first from Judge Alito--the introduction 
of his family. Judge, the floor is yours to introduce your 
family.
    Judge Altio. Thank you very much, Mr. Chairman. Let me 
introduce my wife, Martha, who is here today; and my sister, 
Rosemary, who is a lawyer in New Jersey and a tough trial 
lawyer. I am glad that she took time from her schedule to come 
to the hearing today. My daughter, Laura, who is a senior at 
James Caldwell High School in West Caldwell, New Jersey; and if 
a father can be permitted to brag for a second, a really great 
swimmer who led her high school team to win the county 
championship last week. My son, Phillip, who is a second-year 
student at the University of Virginia. And when I had my 
confirmation hearing for the Court of Appeals, Phillip was 3 
years old. And when I was called up to the chair, he took it 
upon himself to run up and sit next to me in case any hard 
questions came up.
    [Laughter.]
    Judge Altio. I don't know whether he is going to try the 
same thing tomorrow, but probably I could use the help.
    I am glad that my in-laws are able to be here today: my 
father-in-law, Gene Bomgardner, who is a retired Air Force NCO; 
and my mother-in-law, Barbara Bomgardner, who is a retired Air 
Force librarian. And my cousins Andrew and Aldomar Kiriev from 
Gwynedd Valley, Pennsylvania, are also here.
    My mother, who turned 91 a couple of weeks ago, 
unfortunately is not able to be here today, but I am sure she 
is watching at home.
    Thank you very much, Mr. Chairman.
    Chairman Specter. Well, thank you, Judge Alito. You have a 
beautiful family, and we are delighted to have them with us on 
the confirmation proceedings.
    We will have 10-minute rounds of opening statements, each 
Senator 10 minutes. We will then turn to the presenters, those 
who will be presenting Judge Alito formally to the Committee. 
And then we will administer the oath to Judge Alito, and we 
will hear his testimony.
    We will begin tomorrow morning at 9:30 for the opening 
round of questions. Each Senator will have 30 minutes on the 
opening round, and we have a second round scheduled of 20 
minutes for each Senator. And then we will see how we will 
proceed.
    Our practice is to adhere to the time limits, and we do 
that for a number of reasons. One of them is that Senators come 
and go, and if we maintain the schedule, which is known to 
everybody, they know when to return for their next round of 
questions. We will take 15-minute breaks at a convenient time, 
and, again, we will hold the breaks to 15 minutes.
    I have worked closely with Senator Leahy on scheduling 
matters and all other matters, and this is the model that we 
used for the confirmation of Chief Justice Roberts. It is our 
intention to conclude the hearings this week, and as Senator 
Leahy and I worked out, the arrangement is to have a markup on 
Tuesday, January the 17th, subject to something extraordinary 
happening.
    Now let me yield to the distinguished Ranking Member, 
Senator Leahy.
    Senator Leahy. Well, Mr. Chairman, I don't want to hold up 
your opening statement, or the others. I do appreciate people 
being here. As the hearing for Chief Justice John Roberts 
showed, there will be real questions asked. I would hope 
Senators on both sides of the aisle would do that. I think it 
is important. We are talking about a position representing 295 
million Americans.
    On the schedule, I will work with the senior Senator from 
Pennsylvania, the Chairman. I understand one of our leaders 
once said that getting Senators to all move in order is like 
having bullfrogs in a wheelbarrow. But we will continue to work 
towards that, and I think the most important thing is we have a 
good, solid hearing this week.
    Mr. Chairman, you have been totally fair in your procedures 
for this, as always.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Thank you very much, Senator Leahy. And 
now we begin the opening statements.
    No Senator's vote, except for the declaration of war or the 
authorization for the use of force, is more important than the 
confirmation of a nominee to the Supreme Court for a lifetime 
appointment. Judge Alito comes to this proceeding with 
extensive experience as a Government lawyer, as a prosecutor, 
and as a judge. He has written some 361 opinions. He has voted 
in more than 4,800 cases. And it is possible to select a few of 
his cases to place him at any and every position on the 
judicial spectrum. By selecting the right cases, he could look 
like a flaming liberal or he could look like an arch-
conservative.
    This hearing will give Judge Alito the full opportunity to 
address the concerns of 280 million Americans on probing 
questions which will be put to him by 18 Senators representing 
their diverse constituencies. I have reserved my own vote on 
this nomination until the hearing is concluded. I am committed 
as Chairman to a full, fair, and dignified hearing. Hearings 
for a Supreme Court nominee should not have a political tilt 
for either Republicans or Democrats. They should be in 
substance and in perception for all Americans.
    There is no firmly established rule as to how much a 
nominee must say to be confirmed. While I personally consider 
it inappropriate to ask the nominee how he would vote on a 
specific matter likely to come before the Court, Senators may 
ask whatever they choose, and the nominee is similarly free to 
respond as he chooses. It has been my experience that the 
hearings are really, in effect, a subtle minuet, with the 
nominee answering as many questions as he thinks necessary in 
order to be confirmed.
    Last year, when President Bush had two vacancies to fill, 
there was concern expressed that there might be an ideological 
change in the Court. The preliminary indications from Chief 
Justice Roberts's performance on the Court and his Judiciary 
Committee testimony on modesty, stability, and not jolting the 
system all suggest that he will not move the Court in a 
different direction. If that holds true, Judge Alito, if 
confirmed, may not be the swing vote regardless of what 
position Judge Alito takes on the political spectrum.
    Perhaps the dominant issue in these hearings is the 
widespread concern about Judge Alito's position on a woman's 
right to choose. This has arisen in part because of a 1985 
statement made by Judge Alito that the Constitution does not 
provide for the right to an abortion. It has arisen in part 
because of his advocacy in the Solicitor General's office 
seeking to limit or overrule Roe and from the dissenting 
portion of his opinion in Casey v. Planned Parenthood in the 
Third Circuit.
    This hearing will give Judge Alito the public forum to 
address the issue as he has with Senators in private meetings, 
that his personal views and prior advocacy will not determine 
his judicial decisions, but instead he will weigh factors such 
as stare decisis, that is, what are the precedents; that he 
will weigh women's and men's reliance on Roe and he will 
consider too whether Roe is ``embedded in the culture of our 
Nation.''
    The history of the Court is full of surprises on the issue. 
The major case upholding Roe was Casey v. Planned Parenthood, 
where the landmark opinion was written jointly by three 
Justices, Justice O'Connor, Justice Kennedy and Justice Souter. 
Before coming to the Court, Justice Souter, Justice Kennedy and 
Justice O'Connor, had all expressed views against a woman's 
right to choose. David Souter, as Attorney General of New 
Hampshire, even opposed changing New Hampshire's law 
prohibiting abortion even after the Supreme Court of the United 
States had declared it unconstitutional. At the time of Justice 
Souter's confirmation hearing, there was a stop Souter rally of 
the National Organization for Women a few blocks from where we 
currently are holding this hearing, displaying in red a banner 
``Stop Souter or Women Will Die,'' ``Stop Souter Rally, a Mass 
Lobbying Day,'' somewhat similar to this morning's press where 
banners are paraded in front of the Supreme Court ``Save Roe'' 
and a brochure circulated again by NOW, ``Save Women's Lives, 
Vote No on Alito.''
    The history of this issue has been one full of surprises. 
This hearing comes at a time of great national concern about 
the balance between civil rights and the President's national 
security authority. The President's constitutional powers as 
commander in chief to conduct electronic surveillance appear to 
conflict with what Congress has said in the Foreign 
Intelligence Surveillance Act. This conflict involves very 
major considerations raised by Justice Jackson's historic 
concurrence in the Youngstown Steel seizure cases, where 
Justice Jackson wrote, ``When the President acts pursuant to an 
express or implied authorization of Congress, his authority is 
at its maximum, for it includes all that he possesses in his 
own right, and all that Congress can delegate. When the 
President acts in absence of a congressional grant of 
authority, he can rely only upon his own independent powers. 
When the President takes measures incompatible with the express 
or implied will of Congress, his power is at its lowest ebb.'' 
And as Justice Jackson noted, ``What is at stake is the 
equilibrium established in our constitutional system.''
    Another major area of concern is congressional power, and 
in recent decisions the Supreme Court of the United States has 
declared Acts of Congress unconstitutional, really denigrating 
the role of Congress. In declaring unconstitutional legislation 
designed to protect women against violence, the Supreme Court 
did so notwithstanding a voluminous record in support of that 
legislation, but because of Congress's ``method of reasoning,'' 
rather insulting to suggest that there is some superior method 
of reasoning in the Court.
    When the Supreme Court handled two cases recently on the 
Americans with Disabilities Act, they upheld the Act as it 
applied to discrimination as to access, and declared it 
unconstitutional as it applied to discrimination in employment. 
They did so by applying a test of what is called ``congruent 
and proportionate,'' which candidly stated, no one can figure 
out. In dissent, Justice Scalia called it a flabby test, where 
the Court set itself up as the taskmaster to see if Congress 
had done its homework, and Justice Scalia said that it was an 
invitation to judicial arbitrariness by policy driven 
decisionmaking, and this hearing, I know, will involve 
consideration as to Judge Alito's views on congressional power.
    There is reason to believe that our Senate confirmation 
hearings may be having an effect on Supreme Court nominees on 
their later judicial duties. Years after their hearings, 
Supreme Court Justices talk to me about our dialogs at these 
hearings. This process has now evolved to a point where 
nominees meet most of the Senators. In this process, nominees 
get an earful. While no promises are extracted, statements are 
made by nominees which may well influence their judicial 
decisions. Chief Justice Roberts, for example, will have a 
tough time giving a jolt to the system after preaching modesty 
and stability. There is, I think, a heavy sense of drama as 
these hearings begin. This is the quintessential example of 
separation of powers under our constitutional process, as the 
President nominates, the Senate confirms or rejects, and the 
successful nominee ascends to the bench. While it may be a bit 
presumptuous, I believe the Framers, if they were here, would 
be proud and pleased to see how well their Constitution is 
being applied.
    My red light just went on, and I now yield to my 
distinguished colleague, Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman.
    Good afternoon, Judge and Mrs. Alito, and the others.
    Following up on what the Chairman was saying, the challenge 
for Judge Alito in the course of these hearings is to 
demonstrate that he is going to protect the rights and 
liberties of all Americans, and in doing that, serve as an 
effective check on Government overreaching. I have said that 
the President did not help his cause by withdrawing his earlier 
nomination of Harriet Miers in the face of criticism from a 
narrow faction of his own party who were concerned about how 
she might vote.
    Supreme Court nominations should not be conducted through a 
series of winks and nods designed to reassure a small faction 
of our population, while leaving the American people in the 
dark. And no President, I think we would all agree, should be 
allowed to pack the courts, and especially the Supreme Court, 
with nominees selected to enshrine Presidential claims of 
Government power. The checks and balances that should be 
provided by the courts, Congress and the Constitution are too 
important to be sacrificed to a narrow partisan agenda.
    This hearing is the opportunity for the American people to 
learn what Samuel Alito thinks about their fundamental 
constitutional rights and whether he--you, Judge--will protect 
their liberty, their privacy and their autonomy from Government 
intrusion.
    The Supreme Court belongs to all Americans, not just to the 
person occupying the White House, and not just to a narrow 
faction of either political party, because the Supreme Court is 
our ultimate check and balance. Independence of the Court and 
its members is crucial to our democracy and our way of life, 
and the Senate should never be allowed to be a rubber stamp. 
Neither should the Supreme Court. So I will ask the Judge to 
demonstrate his independence from the interests of the 
President nominating him. This is a nomination to a lifetime 
seat on the Nation's highest Court. It is a seat that has often 
represented the decisive vote on constitutional issues, so we 
have to make an informed decision. That means knowing more 
about Samuel Alito's work in the Government and knowing more 
about his views.
    I will, as the Judge knows, ask about the disturbing 
application he wrote to become a political appointee in the 
Meese Justice Department. In that application he professed 
concern with the fundamental principle of ``one person, one 
vote,'' a principle of the equality that is the bedrock of our 
laws. This hearing is the only opportunity that the American 
people and their representatives have to consider the 
suitability of the nominee to serve as a final arbiter on the 
meaning of the Constitution and its laws. Has he demonstrated 
commitment to the fundamental rights of all Americans? Would he 
allow the Government to intrude on Americans' personal privacy 
and freedoms?
    In a time when this administration seems intent on 
accumulating unchecked power, Judge Alito's views on Executive 
power are especially important. It is important to know whether 
he would serve with judicial independence or as a surrogate for 
the President nominating him. So this public conversation, this 
hearing over the next few days is extremely important. It is 
the people's Constitution and the people's right that we are 
all charged with protecting and preserving. In this hearing we 
embark on the constitutional process, one that was designed to 
protect these rights and has served this country so very well 
for more than two centuries.
    I am reminded of a photograph, Mr. Chairman, that hangs in 
the National Constitution Center in Philadelphia. It shows the 
first women ever to serve on the Supreme Court of the United 
States taking the oath of office in 1981. How Justice Sandra 
Day O'Connor serves is as a model Supreme Court Justice, widely 
recognized as a jurist with practical values and a sense of the 
consequences of the legal decisions being made by the Supreme 
Court. I regret that some on the extreme right have been so 
critical of Justice O'Connor, and that they adamantly oppose 
the naming of a successor who shares her judicial philosophy 
and qualities. Their criticism actually reflects poorly upon 
them. It does nothing to tarnish the record of the first woman 
to serve as Associate Justice of the Supreme Court of the 
United States. She is a Justice whose graciousness and sense of 
duty fuels her continued service, even agreeing to serve more 
than 6 months after her retirement date, and I know both you 
and I commend her for that.
    The Court that serves America should reflect America. This 
nomination was an opportunity, of course, for the President to 
make a nomination based on diversity. He did not, even though 
there is no dearth of highly qualified Hispanics and African-
Americans, other individuals who could well have served as 
unifying nominees while adding to diversity. But that, of 
course, is the President's choice, Judge, not yours. But I look 
forward to a time when the membership of the Supreme Court is 
more reflective of the country it serves.
    As the Senate begins its consideration of President Bush's 
nominee, his third to this seat, to Justice O'Connor's seat, we 
do so mindful of her critical role in the Supreme Court. Her 
legacy is one of fairness, and when I decide how to vote it is 
because I want to see that legacy preserved. Justice O'Connor 
has been a guardian of the protections the Constitution 
provides the American people. She has come to provide balance 
and a check on Government intrusion into our personal privacy 
and freedoms. In the Hamdi decision she rejected the Bush 
administration's claim that they could indefinitely detain a 
United States citizen. She upheld the fundamental principle of 
judicial review over the exercise of Government power, and she 
wrote--and this is one we should all remember--she wrote that 
even war is not a blank check for the President when it comes 
to the rights of the Nation's citizens. She held that even this 
President is not above the law, and of course, no President, 
Democratic or Republican, no President is above the law, as 
neither are you, nor I, nor anyone in this room.
    Her judgment has also been critical in protecting our 
environmental rights. She joined in 5-4 majorities affirming 
reproductive freedom, and religious freedom, and the Voting 
Rights Act. I mention each of these cases because they show how 
important a single Supreme Court Justice is, and it is crucial 
that we determine what kind of Justice Samuel Alito would be if 
confirmed. Of course, Judge, my question will be, will you be 
an independent jurist?
    It is as the elected representatives of the American 
people, all of the people, nearly 300 million people, that we 
in the Senate are charged with the responsibility to examine 
whether to entrust their precious rights and liberties to this 
nominee. The Constitution is their document. It guarantees 
their rights from the heavy hand of Government intrusion, and 
individual liberties, to freedom of speech, to religion, to 
equal treatment, to due process and to privacy. Actually, this 
hearing, this is their process. The Federal Judiciary is unlike 
the other branches of Government. Once confirmed, a Federal 
Judge serves for life, and there is no court above the Supreme 
Court. The American people deserve a Supreme Court Justice who 
can demonstrate that he or she will not be beholden to the 
President, but only to the law.
    Last October, the President succumbed to partisan pressure 
from the extreme right of his party by withdrawing Harriet 
Miers. By withdrawing her nomination and substituting this one, 
the President has allowed his choice to be vetoed by an extreme 
faction within his party before even a hearing or a vote. 
Frankly, that was an eye-opening experience to me. It gives the 
impression there are those who do not want an independent 
Federal Judiciary. They demand judges who will guarantee the 
results that they want, and that is why the questions will be 
asked so specifically of you, Judge.
    The nomination is being considered against the backdrop of 
another recent revelation, that the President has, outside the 
law, been conducting secret and warrantless spying on Americans 
for more than 4 years. This is a time when the protections of 
America's liberties are directly at risk, as are the checks and 
balances that serve to constrain abuses of power for more than 
200 years. The Supreme Court is relied upon by all of us to 
protect our fundamental rights.
    I have not decided how I will vote in this nomination, and 
like the Chairman, I will base my determination on the whole 
record at the conclusion of these hearings, just as I did in 
connection with the nomination of John Roberts to be Chief 
Justice. At the conclusion of those hearings I determined to 
vote for him.
    The stakes for the American people could not be higher. At 
this critical moment, Senate Democrats serving on this 
Committee will perform our constitutional advice and consent 
responsibility with heightened vigilance. I would urge all 
Senators, Republicans and Democrats and Independents, to join 
with us in serious consideration. The appointment of the next 
Supreme Court Justice must be made in the people's interest and 
in the Nation's interest, not in the interest of any partisan 
faction.
    Mr. Chairman, Thank you very much.
    Chairman Specter. Thank you very much, Senator Leahy.
    Senator Hatch.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Senator Hatch. Thank you, Mr. Chairman.
    I welcome you, Judge Alito, your family members, friends 
and others who are accompanying you.
    This hearing is part of an ongoing evaluation of Judge 
Samuel Alito's nomination to replace Justice Sandra Day 
O'Connor as Associate Justice of the Supreme Court of the 
United States. It is remarkable that after a nearly record-long 
period without a Supreme Court vacancy, we are here considering 
a second nominee in less than 6 months.
    Mr. Chairman, let me first commend you for firmly and 
fairly handling these hearings. The timetable we are following 
reflects your efforts to accommodate all sides, and the 70 days 
since President Bush announced the nomination significantly 
exceeds the average for other Supreme Court nominees.
    The debate over this and other judicial nominations is a 
debate over the judiciary itself. It is a debate over how much 
power unelected judges should have in our system of government, 
how much control judges should have over a written Constitution 
that belongs to the people. Ending up in the right place in 
this debate requires starting in the right place. The right 
place to start is the proper description of what judges are 
supposed to do, and the rest of the process should reflect this 
judicial job description.
    The process for evaluating Judge Alito's nomination began 
when President Bush announced it more than 2 months ago. It 
continued with Judge Alito's meetings with more than two-thirds 
of the Senators and a vigorous debate in the media among 
analysts, scholars, and activists. As the Senate completes the 
evaluation process, we must keep some very important principles 
in mind and follow a few basic rules.
    The first principle is that in this judicial selection 
process, the Senate and the President have different roles. 
Under the Constitution, the President, not the Senate, 
nominates and appoints judges. The Senate has a different role. 
We must give our advice about whether President Bush should 
actually appoint Judge Alito by giving or withholding our 
consent. Abiding by the Constitution's design and our own 
historical tradition requires that after Judge Alito's 
nomination reaches the Senate floor, we vigorously debate it 
and then vote up or down.
    The second principle is that in our system of Government 
the judicial and legislative branches have different roles. As 
Chief Justice Roberts described it when he was before this 
Committee last fall, ``Judges are not politicians. Judges must 
decide cases, not champion causes. Judges must settle legal 
disputes, not pursue agendas. Judges must interpret and apply 
the law, not make the law.'' This principle that judges are not 
politicians lies at the very heart of the judicial job 
description.
    In addition to these two principles, a few basic rules 
should guide how we complete this confirmation process. First, 
we must remember that judicial nominees are constrained in what 
they may discuss and how they may discuss it. Like Chief 
Justice Roberts and others before him, Judge Alito is already a 
Federal judge. He not only will be bound by the canons of 
judicial ethics as a Supreme Court Justice, he is already bound 
by these canons as an appeals court judge. Because judges may 
not issue advisory opinions, judicial nominees may not do so 
either, especially on issues likely to come before the Court. 
That rule has always been honored.
    Needless to say, those who will demand such advisory 
opinions in this hearing will do so precisely on those issues 
that are likely to come before the Court. They have a right to 
ask those questions. But as the Washington Post editorialized 
just this morning, however, ``he will not--and should not--tell 
Americans how he will vote on hotly contested issues.''
    When Judge Ruth Bader Ginsburg was before us in 1993, she 
said that her standard was to give no hints, no forecasts, no 
previews, and declined to answer dozens of questions.
    The second rule we should follow is to consider each part 
of Judge Alito's record on its own terms for what each part 
actually is. He wrote memos when he worked for the Justice 
Department. He has written judicial opinions while on the 
appeals court. He wrote answers to the questionnaire from this 
Committee in 1990 and again last year. He has written articles 
and given speeches. He has joined certain groups, and each of 
these is different. Each of these must be considered in its own 
context, on its own terms, rather than squeezed, twisted, and 
distorted into something designed instead to support a 
preconceived position or serve a preplanned agenda.
    The third rule we should follow is considering Judge 
Alito's entire record. Some interest groups focus on--some 
would say they obsess about--one recusal question, or they 
cherrypick from the thousands of cases in which Judge Alito 
participated and the hundreds of opinions he authored or 
joined. Or they look at the results that ignore the facts and 
the law in those cases.
    Judge Alito comes to us with a record that is long, broad, 
and deep. He deserves, and our constitutional duty requires, 
that we consider his entire record.
    Finally, and perhaps most important, we must apply a 
judicial rather than a political standard to the information 
before us, and we do have a lot of information. The record 
includes more than 360 opinions of all kinds--majority, 
concurring, and dissenting--written during his judicial tenure. 
We have more than 36,000 pages of additional material, 
including unpublished opinions, legal briefs, articles, 
speeches, and Department of Justice documents relating to his 
service in the Office of Legal Counsel and in the Solicitor 
General's office. We must apply a judicial, not a political, 
standard to this record. Asking a judicial nominee whose side 
you will be on in future cases is a political standard. 
Evaluating Judge Alito's record by asking those whose side he 
has been on in past cases is, again, a political standard.
    Scorecards are common in the political process, but they 
are inappropriate in the judicial process. The most important 
tools in the judicial confirmation process are not litmus paper 
and a calculator. Applying a proper judicial standard to Judge 
Alito's record means putting aside the scorecards and looking 
at how he does what judges are supposed to do, namely, settle 
legal disputes by applying already established law.
    A judicial standard means that a judicial decision can be 
entirely correct even when the result does not line up with our 
preferred political positions or cater to certain political 
interests. When he was here last fall, Chief Justice Roberts 
compared judges to umpires who apply rules they did not write 
and cannot change to the competition before them. We do not 
evaluate an umpire's performance based on which team won the 
game, but on how that umpire applied the rules inning after 
inning. We do not hire umpires by showing them the roster for 
the upcoming season and demanding to know which teams they will 
favor before those teams even take the field. Similarly, we 
should evaluate judges and judicial nominees based on the 
general process for applying the law to any legal disputes, not 
on the specific result in a particular case or dispute.
    The fact that Judge Alito is such a baseball fan gives me 
even more confidence that he knows the proper role of a judge. 
I know that there is a pitched battle going on outside the 
Senate, with dueling press conferences, television ads, e-mail, 
petition drives, and stacks of reports and press releases. The 
Senate can rise above that battle if we remember the proper 
role for the Senate and the proper role for judges. We can rise 
above that battle if we respect that judicial nominees are 
limited in what they may discuss. Take each part of Judge 
Alito's record on its own terms. Consider Judge Alito's entire 
record and apply a judicial rather than a political standard.
    Judge Alito, I know you. I have known you for a long time. 
You are a good man. You are an exceptional judge as well. I 
welcome you and your family to this Committee, and I hope that 
the days ahead will reflect more light than heat. We 
congratulate you that you are willing to go through this 
grueling process to represent your country on one of the three 
separated powers. It means so much to all of us, and I am 
grateful to personally know you as well as I do.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Hatch.
    Senator Kennedy?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you, Mr. Chairman.
    Judge Alito, I join in welcoming you and your family to 
this Committee. I appreciated the opportunity to visit with you 
in my office a few weeks ago, and I was particularly impressed 
by your personal family story of how you were encouraged to do 
well and contribute to your community. And I also applaud your 
dedication to public service throughout your lifetime.
    Supreme Court nominations are an occasion to pause and 
reflect on the values that make our Nation strong, just, and 
fair. And we must determine whether a nominee has a 
demonstrated commitment to those basic values. Will a nominee 
embrace and uphold the essential meaning of the four words 
inscribed above the entrance of the Supreme Court Building, 
``Equal justice under law.''
    Justice Louis Powell spoke for all of us when he said, 
``Equal justice under law is perhaps the most inspiring idea of 
our society. It is one of the ends for which our entire legal 
system exists.''
    As we have seen from Justice O'Connor's example, even one 
Justice can profoundly alter the meaning of those words for our 
citizens. Even one Justice can deeply affect the rights and 
liberties of the American people. Even one Justice can advance 
or reverse the progress of our journey.
    So the question before us in these hearings is this: does 
Judge Alito's record hold true to the letter and the spirit of 
equal justice? Is he committed to the core values of our 
Constitution that are at the heart of our Nation's progress, 
and can he truly be evenhanded and fair in his decisions?
    In a way Judge Alito has faced this issue before as a 
nominee to the Court of Appeals. I had the privilege of 
chairing his confirmation hearing in 1990, and at that time he 
had practiced law for 14 years, but only represented one 
client, the U.S. Government. I asked whether he believed he 
could be impartial in deciding cases involving the Government, 
and in that hearing Judge Alito said on the record that the 
most important quality for a judge is open-mindedness to the 
arguments, and he promised the Committee that he would make a 
very conscious effort to be absolutely impartial. We took him 
at his word and overwhelmingly confirmed him to the Third 
Circuit Court of Appeals.
    We now have the record of Judge Alito's 15 years on the 
bench, and the benefit of some of his earlier writings that 
were not available 15 years ago, and I regret to say that the 
record troubles me deeply.
    In a era where the White House is abusing power, is 
excusing and authorizing torture and is spying on American 
citizens, I find Judge Alito's support for an all-powerful 
executive branch to be genuinely troubling. Under the 
President's spying program there are no checks and balances. 
There is no outside review of the legality of this brazen 
infringement on the civil rights and liberties of the American 
people. Undeterred by the public outcry, the President vows to 
continue spying on American citizens. Ultimately the courts 
will make the final judgment whether the White House has gone 
too far. Independent and impartial judges must assess the 
proper balance between protecting our liberties and protecting 
our national security.
    I am gravely concerned by Judge Alito's clear record of 
support for vast Presidential authority unchecked by the other 
two branches of Government. In decision after decision on the 
bench, he has excused abusive actions by the authorities that 
intrude on the personal privacy and freedoms of average 
Americans, and in his writings and speeches he has supported a 
level of overreaching Presidential power that, frankly, most 
Americans find disturbing and even frightening.
    In fact, it is extraordinary that each of the three 
individuals this President has nominated for the Supreme Court, 
Chief Justice Roberts, Harriet Miers and now Judge Alito, has 
served not only as a lawyer for the executive branch, but as a 
defendant of the most expansive view of Presidential authority. 
Perhaps that is why this President nominated them. But as 
Justice O'Connor stated, even a state of war is not a blank 
check for a President to do whatever he wants. The Supreme 
Court must serve as an independent check on abuses by the 
executive branch and a protector of our liberties, not a 
cheerleader for an imperial presidency.
    There are other areas of concern. In an era when too many 
Americans are losing their jobs or working for less, trying to 
make ends meet, in close cases Judge Alito has ruled the vast 
majority of the time against the claims of the individual 
citizens. He has acted instead in favor of Government, large 
corporations and other powerful interests. In a study by the 
well-respected expert, Professor Cass Sunstein of the 
University of Chicago Law School, Judge Alito was found to rule 
against the individual in 84 percent of his dissents. To put it 
plainly, average Americans have had a hard time getting a fair 
shake in his courtroom. In an era when America is still too 
divided by race and riches, Judge Alito has not written one 
single opinion on the merits in favor of a person of color 
alleging race discrimination on the job; in 15 years on the 
bench, not one.
    When I look at that record in light of the 1985 job 
application to the Reagan Justice Department, it is even more 
troubling. That document lays out an ideological agenda that 
highlights his pride in belonging to an alumni group at 
Princeton that opposed the admission of women and proposed to 
curb the admission of racial minorities. It proclaims his legal 
opinion that the Constitution does not protect the right of 
women to make their own reproductive decisions. It expresses 
outright hostility to the basic principle of one person, one 
vote, affirmed by the Supreme Court as essential to ensuring 
that all Americans have a voice in their Government. This 
application was not a youthful indiscretion. It was a document 
prepared by a mature, 35-year-old professional.
    Finally, many of us are concerned about conflicting 
statements that Judge Alito has made in response to questions 
from this Committee and others. As Chairman Specter has stated, 
this confirmation largely depends on the credibility of Judge 
Alito's statements to us, and we have questions. When asked 
about the ideological statements and specific legal opinions in 
his 1985 application, Judge Alito has dismissed those 
statements as just applying for a job.
    When he was before this Committee in 1990 applying for a 
job to the circuit, he promised under oath that he would recuse 
himself from cases involving Vanguard, the mutual fund company 
in which he had most of his investments. But as a judge he 
participated in a Vanguard case anyway, and has offered many 
conflicting reasons to explain why he broke his word. We need 
to get to the bottom of this matter to assure ourselves that 
what Judge Alito says in these hearings will not be just words, 
but pledges that guide him in the future if he is confirmed.
    Judges are appointed by and with the advice and consent of 
the Senate, and it is our duty to ask questions on great issues 
that matter to the American people and to speak for them. Many 
Republican Senators certainly demanded answers from Harriet 
Miers. We should expect no less from Judge Alito. There is not 
time for a double standard. If confirmed, Judge Alito could 
serve on the Court for a generation or more, and the decisions 
he will make as Justice will have a direct impact on the lives 
and liberties of our children, our grandchildren and even our 
great-grandchildren. We have only one chance to get it right, 
and a solemn obligation to do so.
    Judge Alito, I have serious questions to ask. I 
congratulate you on your nomination, and I look forward to your 
answers in these hearings.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE 
                         STATE OF IOWA

    Senator Grassley. I have a much more positive view of Judge 
Alito.
    [Laughter.]
    Senator Grassley. I think the record will sustain my view. 
But first, Judge Alito, I welcome you and your proud family to 
the Committee, and congratulations on your nomination.
    I first want to remind all Americans who might be listening 
that the Senate has a very important responsibility to confirm 
only well-qualified individuals who will faithfully interpret 
the law and the Constitution. Confirmation should be limited to 
those individuals who will be fair, unbiased, devoted to 
addressing the facts in the law before them without imposing 
their own values and political beliefs when deciding cases. 
Nominees should not be expected to precommit to ruling on 
certain issues in a certain way, nor should Senators ask 
nominees to pledge to rule on cases in a particular way.
    If we fulfill our responsibility to the Constitution, the 
Supreme Court will be filled with superior legal minds who will 
pursue the one agenda that our Founding Fathers intended in 
writing the Constitution, justice rather than political or 
personal goals. The Supreme Court will then consists of 
individuals who meticulously apply the law and the Constitution 
regardless of whether the results they reach are popular or 
not. If we do our job right, the Supreme Court will not be made 
up of men and women who are on the side of the little guy or 
the big guy, rather the Supreme Court will be made up of men 
and women who are on the side of the law and the Constitution.
    From all accounts, Judge Alito has an impressive and 
extensive legal and judicial record, certainly one worthy of 
someone on the Supreme Court. Judge Alito excelled at top-notch 
schools, member of law review, clerked for a Federal judge. He 
also held important positions at the Department of Justice, 
Office of Legal Counsel, the Solicitor General's Office and was 
U.S. Attorney for New Jersey before being appointed to the 
Third Circuit.
    I want to remind the American people this nominee, Judge 
Alito, has been confirmed unanimously by the U.S. Senate, not 
once, but twice. This is a tremendous record of accomplishment 
in public service equal to any Supreme Court nominee that I 
have considered in the 25 years I have been on this Committee. 
Not only that, Judge Alito has a reputation for being an 
exceptional and honest judge devoted to the rule of law, as 
well as being a man of integrity.
    Judge Alito enjoys the support and respect of people who 
work with him, practice with him, and therefore, know him best. 
Example, 54 of Judge Alito's law clerks, Democrats, Republicans 
and Independents alike, signed a letter to the Committee that 
stated, ``We collectively were involved in thousands of cases 
and it never once appeared to us that Judge Alito has prejudged 
a case or ruled based on political ideology.'' Continuing to 
quote, ``It is our uniform experience that Judge Alito was 
guided by his profound respect for the Constitution and the 
limited role of the judicial branch.'' Those 54 opinions say a 
lot about Judge Alito and his approach to judicial function. 
Like Chief Justice Roberts, it appears that Judge Alito tries 
to act like an umpire, calling the balls and strikes, rather 
than advocating a particular outcome.
    I am also impressed with the very complimentary things that 
some lawyers have had to say about Judge Alito in the Lawyers 
Evaluation Section of the Almanac of Federal Judiciary. With 
respect to his legal ability, lawyers praised him, saying that 
Judge Alito was ``exceptional,'' ``a brilliant jurist.'' 
Another lawyer stated that, ``to say that he is outstanding is 
to use understatement. He's the best judge on the circuit, 
maybe in the country.''
    With respect to his demeanor and temperament, lawyers found 
Judge Alito to be measured and judicial while on the bench. One 
lawyer commented that he is demanding, but always courteous. He 
may occasionally, quoting, ``demonstrate a little bit of 
impatience with lawyers that aren't quite getting it. This can 
be directed at either side. It's just a sign that his mind is 
working more efficiently than yours. He's never discourteous, 
never abusive.'' Another lawyer said, ``He is pleasant and 
courteous.'' Others commented about the impression that Judge 
Alito is a conservative judge, but certainly not out to impose 
his own personal agenda while on the bench. One lawyer 
commented that he ``is a conservative, but reaches honest 
decisions,'' while another said, ``By reputation he's known to 
be one of the more conservative judges on the court, but he is 
forthright and fair. He tries to decide cases in front of him 
in the right way.''
    The American Bar Association came out just last week with 
an evaluation of Judge Alito to be a Justice, and they 
considered things like integrity, judgment, compassion, open-
mindedness and freedom from bias and commitment to equal 
justice under the law. The ABA once again found Judge Alito to 
be unanimously well qualified. This recommendation should have 
much weight for my colleagues on the other side, who have time 
and time again described the rating of the ABA as, quote, 
``gold standard.'' Yet, some liberal interest groups have come 
out in full force and have attempted to paint Judge Alito to be 
an extremist and to be an activist. They have criticized a 
nominee who has, from what I see described by these lawyers and 
fellow judges, a reputation of being a restrained jurist 
committed to the rule of law and the Constitution, but that is 
what these outside-the-mainstream groups always do.
    They attack individuals who they believe will not implement 
their agenda before the Supreme Court, so Judge Alito should 
see criticism as a badge of honor worn by many past and present 
members of the Court. Yet, I am glad to see the public fully 
participate in this process because this is the nature of our 
system of Government, but I do not like to see facts twisted, 
untruths fabricated to give the nominee a black eye even before 
he comes before our Committee.
    So, Judge Alito, now you have that opportunity to set 
everyone straight on your record and your approach to deciding 
cases. These hearings are also an opportunity, a very good 
opportunity to remind the public about the proper role of a 
judge in our system of checks and balances limited Government. 
Judges are required by our democratic system not to overstep 
their positions to become policymakers or super legislators. 
Supreme Court nominees should know, without any doubt, that 
their job is not to impose their own personal opinions of what 
is right and wrong, but to say what the law is, rather than 
what they personally think the law ought to be. Supreme Court 
nominees should know that this exercise of judicial restraint 
is a key ingredient of being a good judge, as the Constitution 
constrains judges every bit as it constrains we legislators, 
executives and citizens in their actions.
    Moreover, Supreme Court nominees should be individuals who 
not only understand but truly respect the equal roles and 
responsibilities of different branches of Government and our 
State Governments. As Alexander Hamilton said in Federalist No. 
78, ``The courts must decide the sense of the law, and if they 
should be disposed to exercise will instead of judgment, the 
consequences would be the substitution of their pleasure to 
that of the legislative body.'' Our Framers expected the 
judicial branch to be the least dangerous branch of Government.
    At our meeting in my office in November, I heard Judge 
Alito place emphasis on the limited role of the courts in our 
democratic society. He also reiterated this belief in a 
questionnaire he submitted to this Committee. So I have some 
idea of how Judge Alito approaches the law and views the role 
of a judge. I am hopeful that his commitment to judicial 
restraint and to confining decisions to the law and the 
Constitution will shine through in this hearing, and I believe 
it will, and I am hopeful that my colleagues will give Judge 
Alito a civil, a fair and a dignified process, as well as an up 
or down vote, because as always, the Constitution sets the 
standard: the President nominates, the Senate deliberates, and 
then we are obligated to give our advice and consent in an up 
or down vote.
    Judge Alito, I congratulate you.
    Chairman Specter. Thank you very much, Senator Grassley.
    Senator Biden.

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE 
                       STATE OF DELAWARE

    Senator Biden. Thank you, Mr. Chairman.
    Judge, welcome. Mrs. Alito and your family, welcome. It is 
an incredible honor to be nominated by a President of the 
United States to be an Associate Justice of the Supreme Court, 
and you are to be congratulated.
    Judge, this may be one of the most significant, 
consequential nominations that the Senate will vote on since I 
have been here in the last three decades. I think history has 
delivered you, fortunately or unfortunately, to a moment where 
Supreme Court historians far into the future are going to look 
back on this nomination and make a judgment whether or not with 
your nomination, and if you are confirmed, whether the 
jurisprudence of the Supreme Court begin to change from the 
consensus that existed the last 70 years, or whether it 
continued on the same path it has over the past six or seven 
decades, and that moment is right now.
    Lest we think it is kind of like we all go through this 
process--and I like the phrase ``minuet'' that the Chairman 
used--we all act like there is not an elephant in the room. The 
truth of the matter is, there is significant debate among 
judicial scholars today as to whether or not we have gone off 
on the wrong path with regard to Supreme Court decisions. There 
is a very significant dispute that has existed in 5-4 decisions 
over the past two decades in a Court that is very closely 
divided on the critical, central issues of the day.
    Just to make it clear, I am puzzled by some of the things 
you have said, and I am sure you are going to get a chance to 
tell me what you meant by some of the things you wrote and 
said, but when in your job application you talked about being 
proud, as you should be, to be proud of your subscription to 
and adhering to notions put forward in the National Review that 
you are a proud member of the Federalist Society, the National 
Conservative Political Action Committee, the American Spectator 
is something you look to, et cetera. These are all really very 
bright folks. They all have a very decided opinion on the 
issues of the day--very decided. And those very organizations I 
have named think, for example, we misread the Fifth Amendment 
and have been misreading it for the past three decades. Those 
same groups argue that, in fact, there is no right of privacy 
in the Constitution, et cetera. So people are not making this 
up. In a sense, it is not about you. You find yourself in the 
middle of one of the most significant national debates in 
modern constitutional history because you have been nominated 
to replace a woman, in addition, who has been the deciding vote 
on a significant number of these cases. Since 1995 there have 
been 193 5-4 decisions, and Justice O'Connor 77 percent of the 
time has been the deciding vote. And for 70 years, there has 
been a consensus among scholars and the American people on a 
reading of the Constitution that protects the right of privacy, 
the autonomy of individuals, while at the same time empowering 
the Federal Government to protect the less powerful. Only 
recently has the debate come that States rights are being 
trumped in a fundamental way, a reading of the 10th Amendment 
and 11th Amendment. That is a legitimate debate. Totally 
legitimate. But anybody who pretends that how you read the 10th 
and 11th Amendment does not have a fundamental impact on the 
things we care about is kidding themselves. They are either 
uninformed or they are kidding themselves.
    So, Judge, there is a genuine struggle going on well beyond 
you, well beyond the Congress, in America about how to read the 
Constitution. And I believe at its core we have a Constitution, 
as our Supreme Court's first great Justice Marshall said in 
1819, and I quote, ``intended to endure for the ages to come 
and consequently to be adapted to the various crises of human 
affairs.'' That is the crux of the debate we are having now, 
whether it is an adaptable Constitution. A lot of my friends 
make very powerful and convincing arguments--and they may be 
right--that, no, no, no, no, no, it is not adaptable, it is not 
adaptable. And since our country's founding, we have tried to 
keep Government's heavy hand out of our personal lives while 
ensuring that we do the most important thing, which is to 
protect those who cannot protect themselves. And the debate 
raging today is about whether we will continue along that path 
and whether our courts will continue to be one of the places 
where society puts the little guy--and I know this is not 
something you are supposed to say--the little guy on the same 
footing with the big guy. The one place David is equal to 
Goliath is in the Supreme Court.
    It is also important to note that you are slated to replace 
the first woman ever nominated to the Supreme Court. We can 
pretend that is not the fact, but it is. And through no fault 
of your own, we are cutting the number of women in half on the 
Court. And now, as I said, that is not your fault, but I think 
it means that we have to take, at least speaking for myself, a 
closer look at your stands on issues that are important to 
women. And, moreover, Justice O'Connor brought critical 
qualities to the High Court that not everybody thinks are 
qualities--I happen to think they are--her pragmatism and her 
statecraft. Not that I have always agreed with what she said, 
far from it, but Justice O'Connor has been properly lauded in 
my view as a judge who approached her duties with open-
mindedness and with a sensitivity to the effects her decisions 
would have on everyday, ordinary people. She, unlike Judge 
Bork, did not think that being on the Court would be ``an 
intellectual feast,'' to quote Judge Bork. Justice O'Connor 
also brought balance to our highest Court. Most recently, as 
has been repeated many times, she cautioned about war does not 
give a blank check. Her decisions reflect, in my view, that our 
societies work very hard to improve the workaday world, to open 
doors to workers confronted by powerful employers and for women 
facing harassment and stereotypes.
    Now, I acknowledge this is a very tough job a judge has in 
determining whether or not there is an openness that is 
required under the Constitution. But I also acknowledge that 
prejudice runs very deep in our society, and in the real world, 
discrimination rears its ugly head in the shadows where it is 
very difficult to root it out. But Justice O'Connor was not 
afraid to go into the shadows.
    The Constitution provides for one democratic moment, Judge, 
before a lifetime of judicial independence when the people of 
the United States are entitled to know as much as we can about 
the person that we are about to entrust with safeguarding our 
future and the future of our kids. And, Judge, simply put, that 
is this moment, the one democratic moment in a lifetime of 
absolute judicial independence. And that is what these hearings 
are about, in my view.
    In the coming days, we want to know about what you believe, 
Judge, how you view the Constitution, how you envision the role 
of the Federal courts, what kind of Justice you would seek to 
become. As I said, this one democratic moment when the people, 
through their elected representatives, get to ask questions of 
a President's choice for the highest Court. And I hope you will 
be forthcoming.
    I cannot imagine, notwithstanding what many of my 
colleagues, whom I have great respect for, believe, I can't 
imagine the Founders, when they sat down and wrote the document 
and got to the Appointments Clause and said, You know what? The 
American people are entitled to know before we make him 
President, before we make her Senator, before we make him 
Congressman, what they believe on the major issues of the day. 
But judges, Supreme Court nominees, as long as they are smart 
and honest and decent, it really does not matter what they 
think. We do not have to know. I can't fathom--can't fathom--
that that was the intent of the Founders. They intended the 
American people to know what their nominees thought.
    And I might add--and I will end with this--we just had two 
Supreme Court Justices before our caucus just as they were 
before, I think, the Republican Caucus. They ventured opinions 
on everything. On everything, things that are going to come 
before the Court. It did not in any way jeopardize their 
judicial independence.
    So, Judge, I really hope that this does not turn out to be 
a minuet. I hope it turns out to be a conversation. I believe 
we--you and I and this Committee--owe it to the American people 
in this one democratic moment to have a conversation about the 
issues that will affect their lives profoundly. They are 
entitled to know what you think.
    And I remind my colleagues, many of whom are on this 
Committee, they sure wanted to know what Harriet Miers thought 
about everything. They sure wanted to know in great detail. 
They were about ready to administer blood tests. The good news 
is no blood test here. The good news is no blood test, just a 
conversation, and I hope you will engage in it with us because 
I am anxious to get a sense of how you are going to approach 
these big issues.
    I thank you very much, Judge.
    Chairman Specter. Thank you, Senator Biden.
    Senator Kyl?

  STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman.
    Welcome, Judge Alito, to your confirmation hearing. At the 
outset, I am pleased to note that you have more judicial 
experience than any Supreme Court nominee in more than 70 
years. Indeed, only one Supreme Court Justice in history, one 
Horace Lurton, nominated by President Taft, had more Federal 
appeals court experience. Moreover, you have devoted virtually 
your entire professional life to public service, and the Nation 
owes you gratitude for that service. I look forward to a 
dignified hearing followed by a fair up or down vote on the 
Senate floor.
    Before discussing your nomination, I would like to take a 
moment to express my respect and admiration for the Justice 
whom you are nominated to replace, my fellow Arizonan Sandra 
Day O'Connor, whom I have known for more than 30 years. Justice 
O'Connor has served with great distinction during her career in 
the Arizona Legislature, on the Arizona Court of Appeals, and 
for what has been a quarter of a century on the U.S. Supreme 
Court. Arizonans are deeply proud of Justice O'Connor's service 
to this country. She will always be remembered by Arizonans and 
all Americans as an extraordinary public servant.
    Judge Alito, I would like to discuss your background and 
experience in the context of other Justices on the Supreme 
Court so that everyone understands how well you satisfy what we 
have come to expect from our top judges. Like all the sitting 
Justices, you had an outstanding education. One of your 
classmates at Yale Law School, Tony Kronman, who later went on 
to be the dean of the law school and could, I believe, fairly 
be described as a political liberal, has recently remarked, and 
I quote, ``He impressed me''--speaking of you--``as being more 
interested in the technical, intellectual challenges of the law 
and its legal reasoning than its political uses or 
ramifications.'' Thus, even in your early 20's, it appears you 
were focused on the law as an independent pursuit rather than 
using law to influence political ends.
    With your intellect and education, you could have become a 
wealthy attorney, but instead you devoted virtually all of your 
legal career to the public service. In doing so, you meet, and 
even exceed, the stellar examples set by Justices Thomas and 
Souter, each of whom devoted most of their pre-judicial careers 
to public service. Perhaps this is because, like Justices 
Ginsburg and Scalia, you had a father who was an immigrant to 
this Nation. It seems that immigrants often have a special 
understanding of the incredible opportunities that this Nation 
affords its citizens. Moreover, your father's long service to 
the people of New Jersey both as a schoolteacher and as a civil 
servant in the State legislature plainly served as a model for 
you.
    I also note that you served in the U.S. Army Reserves from 
1972 until 1980. If confirmed, only you and Justice Stevens 
would have any military experience. You would also be the first 
Supreme Court Justice to have served in the Army Reserves since 
Justice Frank Murphy did so during World War II.
    You have spent much of your career as a Federal prosecutor 
pursuing terrorists, mob kingpins, drug dealers, and others who 
threaten our safety and our security. Justice Souter had a 
distinguished career as a State prosecutor, but no sitting 
Justice has served as a Federal prosecutor. Again, this 
experience could prove helpful given that approximately 40 
percent of the Supreme Court docket involves criminal matters.
    You also served as an attorney in the executive branch. 
Like Chief Justice Roberts, you served in the Solicitor 
General's office representing our Government before the Supreme 
Court. And like Justice Scalia, you served in the Office of 
Legal Counsel, providing constitutional advice to the President 
and the rest of the executive branch. In both of these roles, 
your job was to advance the policies of a President who twice 
won an electoral college landslide. He set the agenda, and you 
helped him implement it.
    Similarly, Justice Thomas served Presidents Reagan and Bush 
in political/legal capacities, and Justice Breyer also worked 
in political jobs, both in President Johnson's Justice 
Department and as a lawyer to this Committee.
    I note that you were just 39 when nominated to serve on the 
Third Circuit. Justice Kennedy was only 38 when nominated to 
the Ninth Circuit, and Justice Breyer only 42 when nominated to 
the First Circuit. Like them, you now have a great deal of 
hands-on experience that you can bring to the Court for years 
to come.
    During your judicial service, you amassed an impressive 
record for the Senate to review, including more than 350 
authored opinions. It is this judicial record that should be 
the focus of this Committee, just as it was with all of the 
other sitting Justices on the Court. It appears to me that you 
easily fit into the mold of what this Nation has come to expect 
from a Supreme Court Justice: a first-rate intellect, 
demonstrated academic excellence, a life of engagement with 
serious constitutional analysis, and a reputation for fair-
mindedness and modesty. These are the standards for a Supreme 
Court Justice, and you plainly meet these expectations. As a 
consequence, I view your nomination with a heavy presumption in 
favor of confirmation. Before I conclude, I would like, though, 
to address two other points.
    First, some of my colleagues are fond of asking the 
question, Which side are you on? You have heard that today. 
Politicians must pick sides regularly, every time they vote, so 
it is perhaps natural that they see the world as a battle 
between competing groups. But it is wholly inappropriate as an 
approach to the judicial role. The only relevant side is that 
of the law and the Constitution. We do great injury to the 
integrity of the court system when we start speaking of sides 
and stop devoting ourselves to the pursuit of impartial 
justice.
    During Chief Justice Roberts's confirmation hearings, I was 
struck by the way he answered the question. Then Judge Roberts 
explained that he had been asked earlier in the confirmation 
process, Are you going to be on the side of the little guy? 
Roberts explained that this question troubled him, and this is 
how he answered. He said, ``If the Constitution says that the 
little guy should win, the little guy is going to win. But if 
the Constitution says that the big guy should win, well, then 
the big guy is going to win because my obligation is to the 
Constitution. That's the oath. The oath that a judge takes is 
not that I will look out for particular interests. The oath is 
to uphold the Constitution and the laws of the United States.'' 
And this is the essence of justice. Our courts provide a 
neutral forum for the adjudication of disputes under the law, 
not based on economic or political power, on race, on sex, or 
any other personal characteristics. Big guy, little guy--it 
should make no difference. The rule of law demands neutrality.
    Second, I want to address the proper scope of questioning 
during these hearings, a matter that has also come up already. 
As I reminded Chief Justice Roberts at his hearings, the 
American Bar Association Model Code of Judicial Conduct 
dictates that, and I quote, ``a judge or candidate for election 
or appointment to judicial office shall not, with respect to 
cases, controversies, or issues that are likely to come before 
the court, make pledges, promises, or commitments that are 
inconsistent with the impartial performance of the adjudicative 
duties of the office.'' In other words, no judicial nominee 
should answer any question that is designed to reveal how the 
nominee will rule on any issue that could come before the 
Court. This rule has come to be known as ``the Ginsburg 
standard'' because Justice Ginsburg stated during her own 
confirmation hearings that she would give no forecasts, no 
hints about how she would rule on issues. And I was pleased to 
see that Chief Justice Roberts refused to prejudge issues or 
make promises in exchange for confirmation votes. We are all 
better off because of his principled stand.
    Soon after his confirmation, Justice Ginsburg was asked 
about this Ginsburg standard as applied to the Roberts 
hearings, and she said, ``Judge Roberts was unquestionably 
right. My rule was I will not answer a question that attempts 
to project how I will rule in a case that might come before the 
Court.'' In other words, Justice Ginsburg reaffirmed the 
Ginsburg standard.
    In light of the Chief Justice's confirmation hearings and 
Justice Ginsburg's later remarks, I asked my colleagues for 
basic fair play. Apply the same standards to Judge Alito that 
we applied to John Roberts, Stephen Breyer, Ruth Bader 
Ginsburg, and all of the other sitting Justices. Let's not 
invent a new standard for Judge Alito or change the rules in 
the middle of the game. Politicians must let voters know what 
they think about issues before the election. Judges should not.
    And it is not a hypothetical matter. Senator Kennedy in his 
opening statement expressed concern about the extent of the 
executive branch's authority to conduct surveillance of 
terrorists and said ultimately the courts will decide whether 
the President has gone too far. Indeed they will.
    Judge Alito, I will tell you the same thing I told John 
Roberts. I expect you to adhere to the Code of Judicial 
Conduct, and I want you to know that I will strongly defend 
your refusal to give any indication of how you might rule on 
any matter that might come before you as a judge or to answer 
any question that you believe to be improper under the 
circumstances. Congratulations, Judge Alito, on your 
nomination.
    Chairman Specter. Thank you, Senator Kyl.
    Senator Kohl?

 STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE 
                          OF WISCONSIN

    Senator Kohl. Thank you, Mr. Chairman.
    Judge Alito, let me also send my welcome to you this 
afternoon and to your family. You are to be congratulated on 
your nomination.
    Through its interpretation of the Constitution, the Supreme 
Court hugely shapes the fabric of our society for us and for 
future generations. Over the course of more than 200 years, it 
has found a right to equal education regardless of race. It has 
guaranteed an attorney and a fair trial to all Americans, rich 
and poor alike. It has allowed women to keep private medical 
decisions private. And it has allowed Americans to speak, vote, 
and worship without interference from their Government.
    Through these decisions and many more, the judicial branch 
has in its finest hours stood firmly on the side of individuals 
against those who would trample their rights. In the words of 
Justice Black, ``The courts stand against any winds that blow 
as havens of refuge for those who might otherwise suffer 
because they are helpless, weak, outnumbered, or because they 
are nonconforming victims of prejudice or public excitement.''
    As the guardian of our rights, the Supreme Court makes 
decisions every year which either protect the individual or 
leave him at the mercy of more powerful forces in our society. 
They consider questions like when can a disabled individual sue 
to gain access to a courthouse, when can a parent leave work to 
care for a sick child, when should the Government be allowed to 
listen to a private conversation, and when will the courthouse 
doors open or close to an employee suffering discrimination at 
work.
    Whether interpreting the Constitution or filling in the 
blanks of a law or a regulation, every word of the Court's 
opinion can widen or narrow our rights as Americans and either 
protect us or leave us more vulnerable to any winds that blow. 
If confirmed, you will write the words that will either broaden 
or narrow our rights for the rest of your working life. You 
will be interpreting the Constitution in which we as a people 
place our faith and on which our freedoms as a Nation rest. And 
on a daily basis, the words of your opinions will affect 
countless individuals as they seek protection behind the 
courthouse doors.
    Despite your enormous power, you will be free of all 
constraints, unaccountable and unrecallable. We give Supreme 
Court Justices this freedom because we expect them to remain 
above the pull of politics, to avoid the effects of public 
excitement and allow a broader view, not tied to the whims of 
the majority at a certain moment in the history. So for only a 
short time this month will the people through their Senators be 
able to question and to judge you. In short, before we give you 
the keys to the car, we would like to know where you plan to 
take us.
    To a certain extent, we know more about what is in your 
heart and in your mind than we did with now Justice Roberts. 
You have a long track record as a judge and as a public 
official in the Justice Department. When we met privately and I 
asked you what sort of Supreme Court Justice you would make, 
your answer was fair when you said, ``If you want to know what 
sort of a Justice I would make, then look at what sort of a 
judge I have been.''
    Taking this advice, your critics argue that your judicial 
record demonstrates that you will not sufficiently protect the 
individual, but will instead side with more powerful interests, 
narrow the rights we enjoy, and leave individual Americans more 
vulnerable to abuse. For example, they cite your Casey dissent 
as diminishing the power of married women over their own 
bodies. They identify your decision in the Chittister case as 
evidence that you will make it harder for working people to 
care for a family. They cite the Bray case and others where you 
often side with corporations to block the victims of 
discrimination from getting their day in court. Others raise 
concerns about your views on the rights of the accused when 
faced with the Government's enormous power in the criminal 
justice process.
    In addition to your record on the bench, your opponents 
identify memos you wrote while in the Justice Department as 
further evidence of your hostility to individual rights. For 
example, in your now famous 1985 job application, you expressed 
pride in some of the work you did in the Solicitor General's 
office. You chose to single out the assistance that you 
provided in crafting Supreme Court briefs urging that ``the 
Constitution does not protect a right to an abortion.'' While 
these statements came in the context of your work on behalf of 
the Reagan administration, they were, nevertheless, your self-
proclaimed personal views.
    In the same job application, you wrote that you had pursued 
a legal career because you disagreed with many of the decisions 
of the Warren Court, especially, and I quote, ``in the areas of 
criminal procedure, the Establishment Clause, and 
reapportionment.'' These Warren Court decisions establishing 
one person/one vote, Miranda rights, and protections for 
religious minorities are some of the most important cases 
protecting our rights and our liberties, protecting minorities 
against majority abuses and protecting individuals against 
Government abuses, and yet antagonism toward these decisions 
seems to have motivated your pursuit of the law.
    Your supporters, on the other hand, contend that it is not 
fair to select a few specific cases in light of a career as a 
judge spanning 15 years. Further, they dismiss some of your 
early memos in the Justice Department as old and not 
particularly relevant. They argue that you are well within the 
mainstream of judges, especially Republican-appointed judges.
    So it is our job to sort out the truth about your record, 
separate the rhetoric from the reality, and decide where you 
will lead the country. We will need to examine whether, as your 
critics contend, you will consistently side against the 
individual or whether, as your supporters contend, you are a 
mainstream conservative who will fairly decide all cases. I 
hope these hearings will add to our record in making this 
critical determination.
    This would be an appropriate time to share my perspective 
on how we will judge the nominee. We have used the same test 
for each of the five previous Supreme Court nomination 
hearings: a test of judicial excellence. Judicial excellence, 
it seems to me, involves at least four elements:
    First, a nominee must possess the competence, character, 
and temperament to serve on the bench.
    Second, judicial excellence means that a Supreme Court 
Justice must have a sense of the values from which the core of 
our political and economic system goes. In other words, we 
should not approve any nominee whose extreme judicial 
philosophy would undermine rights and liberties relied upon by 
all Americans.
    Third, judicial excellence requires an understanding that 
the law is more than an intellectual game and more than a 
mental exercise. He or she must recognize that real people with 
real problems are affected by the decisions rendered by the 
Court. Justice, after all, may be blind, but it should not be 
deaf.
    And, finally, judicial excellence requires candor before 
confirmation. We are being asked to give the nominee enormous 
power, and so we want to know what is in your mind and in your 
heart.
    Judge Alito, we are convinced that your intellect and 
experience qualifies you for this position. I enjoyed meeting 
you a few weeks ago and appreciated our discussion. Your legal 
talents are undeniably impressive, and your opinions are 
thoughtful and well reasoned. We are now familiar with your 
abilities in your long tenure as a judge. And yet we do not 
know whether the concerns some have raised about your judicial 
philosophy are overstated or whether we need to have serious 
doubts about your nomination. I look forward to these hearings 
as an opportunity to learn more and measure whether you meet 
our test of judicial excellence.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator DeWine.

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF 
                              OHIO

    Senator DeWine. Thank you, Mr. Chairman.
    Judge Alito, I want to welcome you and your family, 
appreciate you being here with us today.
    The Constitution gives the Senate a solemn duty, a solemn 
duty when it comes to the nomination of any individual to sit 
on the U.S. Supreme Court. While the President is to nominate 
that individual, we in the Senate must provide our advice and 
consent. This function is not well defined. The Constitution 
does not set down a road map. It does not require hearings. In 
fact, it does not even require questioning on your 
understanding of the Constitution or the role of the Supreme 
Court.
    To me, however, these things are certainly important. The 
reason is obvious. When it comes to the Supreme Court, the 
American people have only two times when they have any input 
into how our Constitution is interpreted and who will have the 
privilege to do so. First, we elect a President who has the 
power to nominate Justices to the Supreme Court. Second, the 
people, acting through their representatives in the Senate, 
have their say on whether the President's nominee should in 
fact be confirmed.
    Judge Alito, I want to use our time together today to make 
a point about democracy. When it comes to our Constitution, 
judges perform certainly an important role. But the people, 
acting through their elected representatives, should play an 
even more important role. After all, our Constitution was 
intended as a popular document. It was drafted and ratified by 
the people. It established democratic institutions. It entrusts 
the people with the power to make the tough decisions. In most 
cases, it prefers the will of the people to the unchecked rule 
of judges. If confirmed, Judge, you should always keep this in 
mind.
    In my opinion, Chief Justice Roberts put it best during his 
recent confirmation hearings, when he said, and I quote, ``The 
Framers were not the sort of people, having fought a 
revolution, having fought a revolution to get the right of self 
government, to sit down and say, well, let's take all the 
difficult issues before us, let's have the judges decide them. 
That would have been the farthest thing from their mind,'' end 
of quote.
    Sometimes, Judge, however, I fear that the Supreme Court 
forgets this advice. In the last 15 years, in fact, the Court 
has struck down, in whole or in part, more than 35 acts of this 
Congress, and nearly 60 State and local laws. Without question, 
the Court does play a vital role in our constitutional system. 
Sometimes local, State, and Federal law so clearly run afoul of 
the Constitution, that the Court must step in and strike them 
down.
    In most cases, the Court performs this admirably and with 
great restraint. In recent years, the Court has struck down 
some laws that, in my opinion, did not deserve such a fate. 
Take, for instance, the Americans with Disabilities Act; it 
passed this Congress with overwhelming bipartisan support. The 
law was supported by an extensive factual record, and it was 
based on our Government's longstanding constitutional power to 
fight discrimination wherever it exists. When the Court 
considered the ADA in the Garrett case, however, it ignored the 
Act's broad support, cast aside the legislative record, and 
struck down a portion of the law. The decision was a close one, 
5-4. The majority relied on a highly controversial legal 
theory, and the case evoked a vigorous dissent.
    This is precisely my problem with Garrett. In such a 
difficult case where the Constitution does not clearly support 
the majority's decision, the proper response is not to strike 
down the law. In such a case, the Court should defer to the 
will of the people. In other ways, Judge, the Court's recent 
decisions have made life more difficult for the democratic 
institutions that perform the day-to-day work of our Nation, 
recent cases involving affirmative action and the posting of 
the Ten Commandments on public property, which seem to me at 
least to prove the point. The Court has upheld one affirmative 
action program at the University of Michigan, but struck down 
another one, and has allowed the posting of the Ten 
Commandments outside of a public building, but banned it on the 
inside in another case.
    To add to the confusion, some of the Court's decisions 
involve multiple concurrences and dissents, making it hard, 
even for lawyers and judges to figure out what the law is and 
why.
    Chief Justice Roberts mentioned this problem at his 
hearing. And in one of his final statements as Chief Justice, 
William Rehnquist noted that one of the Court's decisions had 
so many opinions within it that he--and I quote--``didn't know 
we had so many Justices on the Court.''
    What has emerged in certain areas, therefore, is a 
patchwork, a patchwork that leaves local officials, State 
legislators, Members of Congress and the public guessing what 
the law permits and what it does not. In 1937, President 
Franklin Roosevelt reminded us that the Constitution is, and I 
quote, ``a layman's document, not a lawyer's contract.'' But 
that very document does little to serve people when Supreme 
Court decisions are written so that even high-price lawyers 
cannot figure them out.
    I am not the first to raise these democratic concerns. Many 
have faulted the Court for its lack of clarity in certain cases 
and many have criticized its recent lack of deference to 
decisions made by State legislatures and Congress. In fact, 
some have even suggested that this recent trend has transformed 
our democracy from one founded on ``we, the people,'' to one 
ruled by ``we, the Court.'' To me, the criticism has some 
force. The Constitution empowers the people to resolve our 
days' most contentious issues. When judges forget this basic 
truth, they do a disservice to our democracy and to our 
Constitution. Judges are not Members of Congress. They are not 
State legislators, Governors, nor Presidents. Their job is not 
to pass laws, implement regulations, nor to make policy. To use 
the words of Justice Byron White, words that I quoted at our 
last Supreme Court hearing: the role of the judge is simply to 
decide cases; to decide cases, nothing more.
    Judge, from what I have seen so far, you do not need much 
reminding on this score. Your decisions are usually brief and 
to the point. You write with clarity and common sense, and in 
most cases you defer to the decisionmaking of those closest to 
the problem at hand. I do not expect to agree with every case 
that you decide, but your modest approach to judging seems to 
bode well for our democracy.
    Over the next several days the members of this Committee 
will question you to find out what kind of Justice you will be. 
This hearing is really our opportunity to try to answer that 
question. Our constitutional system is founded on democracy, a 
world of people, not the unchecked rule of judges. If 
confirmed, it will be your job to faithfully interpret our 
Constitution and to defend our democracy case by case. I wish 
you well.
    Thank you.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein.

  STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE 
                      STATE OF CALIFORNIA

    Senator Feinstein. Thank you very much, Mr. Chairman.
    Welcome, Judge Alito. I am one that believes your 
appointment to the Supreme Court is the pivotal appointment, 
and because you replace Sandra Day O'Connor and because she was 
the fifth vote on 148 cases, you well could be a very key and 
decisive vote. So during these hearings, I think it is fair for 
us to try to determine whether your legal reasoning is within 
the mainstream of American legal thought and whether you are 
going to follow the law regardless of your personal views about 
the law.
    Since you have provided personal and legal opinions in the 
past, I very much hope that you will be straightforward with 
us, share your thinking, and share your legal reasoning.
    I would like to use my time to discuss with you some of my 
concerns. I have very deep concern about the legacy of the 
Rehnquist Court and its efforts to restrict congressional 
authority to enact legislation by adopting a very narrow view 
of several provisions of the Constitution, including the 
Commerce Clause and the 14th Amendment. This trend, I believe, 
if continued, would restrict and could even prevent the 
Congress from addressing major environmental and social issues 
of the future.
    As I see it, certain of your decisions on the Third Circuit 
raise questions about whether you would continue to advance the 
Rehnquist Court's limited view of congressional authority, and 
I hope to clear that up.
    Let me give you one example here, and that is the Rybar 
case. Your dissent argued that Congress lacked the authority to 
ban the possession and transfer of machine guns based 
essentially on a technicality. The congressional findings from 
previous statutes were not explicitly incorporated in the 
legislation. You took this position even though the Supreme 
Court had made clear in 1939, the Miller case, that Congress 
did have the authority to ban the possession and transfer of 
firearms, and even though Congress had passed three Federal 
statutes that extensively documented the impact that guns and 
gun violence have on interstate commerce. I am concerned that 
your Rybar opinion demonstrates a willingness to strike down 
laws with which you personally may disagree by employing a 
narrow reading of Congress's constitutional authority to enact 
legislation.
    The subject of Executive power has come up, and indeed it 
is a very big one. I think we are all concerned about how you 
approach and decide cases involving expanded Presidential 
powers. Recently there have been several actions taken by the 
administration that highlight why the constitutional checks and 
balances between the branches of Government are so essential. 
These include the use of torture, whether through an expansive 
reading of law, or disregarding Geneva Conventions, including 
the Convention on Torture, whether the President is bound by 
ratified treaties or not, allowing the detention of American 
citizens without providing due process--of course, Sandra Day 
O'Connor was dispositive in the Hamdi case--and whether the 
President can conduct electronic surveillance on Americans 
without a warrant despite legislation that establishes a court 
process for all electronic surveillance.
    I am also concerned with the impact you could have on 
women's rights, and specifically, a woman's right to choose. In 
the 33 years since Roe was decided, there have been 38 
occasions on which Roe has been taken up by the Court. The 
Court has not only declined to overrule Roe, but it has also 
explicitly reaffirmed its central holding. In our private 
meeting, when we spoke about Roe and precedent, you stated that 
you could not think of a case that has been reviewed or 
challenged more than Roe. You also stated that you believe that 
the Constitution does provide a right of privacy and that you 
have a deep respect for precedent.
    However, in 1985, you clearly stated that you believed Roe 
should be overturned and that the Constitution does not protect 
a woman's right to choose. So despite voting to sustain Roe on 
the Third Circuit, your opinions also raise questions about how 
you might rule if not bound by precedent, and of course, 
obviously, I would like to find that out.
    I am also concerned about the role the Court will play in 
protecting individual rights in this and the next century. 
Historically, the Court has been the forum to which individuals 
can turn when they believed their constitutional rights were 
violated. This has been especially noteworthy in the arena of 
civil rights, and as has been mentioned, in that same 1985 job 
application, you wrote that while in college you developed a 
deep interest in constitutional law, and then you said, 
motivated in part by disagreement with the Warren Court's 
decisions, particularly in the areas of criminal procedure, the 
Establishment Clause, and reapportionment. Now, of course, it 
was the Warren Court that brought us Brown v. Board of 
Education, and of course, reapportionment is the bedrock 
principle of ``one man, one vote.'' So exactly what you mean by 
this I think is necessary to clear up.
    Now, additionally, Justice O'Connor was a deciding vote on 
a critical affirmative action case involving the University of 
Michigan, Grutter v. Bollinger. So your views here may well be 
pivotal, so I think the American people deserve to know how you 
feel, how you think, how you would legally reason affirmative 
action legislation.
    When you served in the Solicitor General's Office during 
the Reagan administration, you argued in three cases against 
the constitutionality of affirmative action programs, then once 
on the Third Circuit, you sided against the individual alleging 
discrimination in about three-quarters of the cases before you.
    We have a lot to learn about what your views are and your 
legal reasoning, and how you would apply that legal reasoning. 
I really look forward to the questions, and once again, because 
this appointment is so important, I hope you really will be 
straightforward with us, and thereby be really straightforward 
with the American people.
    So thank you, and welcome.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman.
    I would like to also extend my congratulations to you, 
Judge Alito and your family. It is a very special day, a great 
honor to be nominated to the Supreme Court, the greatest court 
in the world, in my view, and this will be a good process. The 
Senate has an obligation to make a vigorous inquiry, and they 
will do so. I just hope and truly believe that by the end of 
these hearings your answers will be heard. The charges that I 
have heard made I know will be rebutted. People will listen and 
see the answers that you give, and when they do, they will feel 
great confidence in you as a member of the Supreme Court.
    You have a record as a brilliant but modest jurist, one who 
follows the law, who exercises restraint and does not use the 
bench as an opportunity to promote any personal or political 
agenda. This is exactly what I believe the American people want 
in a Justice to the Supreme Court. It is exactly what President 
Bush promised to nominate. You represent philosophically that 
kind of judge who shows restraint, but at the same time you 
bring extraordinary qualifications and abilities.
    As has been said, judges are not politicians. They must 
decide discrete cases before them based on the law and the 
facts of that case. They are not policymakers. Every lawyer 
that has practiced in America knows that. That is what they 
want in a judge. That is what I understand they believe you 
are. That is why the ABA has given you their top rating, in my 
view.
    This ideal of American law is the rule of law. It is the 
American ideal of justice, not to have an agenda, not to allow 
personal views to impact your decisionmaking, and I am real 
proud to see that your record indicates that.
    I like Judge Roberts's phrase of ``modesty.'' I believe 
that is your philosophy also. We had the opportunity for a time 
to serve as United States Attorneys together. You were the top 
prosecutor in the office in New Jersey, one of the largest in 
the country. You had the whole State, much larger than my 
office. I know your reputation as one of ability, but modesty. 
In fact, I remember distinctly somebody told me, ``Don't 
underestimate Sam Alito. He's a modest kind of guy, but he's 
probably the smartest guy in the Department of Justice.'' I 
think that is the reputation you had and one that you can be 
quite proud of.
    Your record of achievement is extraordinary. You were Phi 
Beta Kappa at Princeton and a Woodrow Wilson scholar. You 
attended Yale Law School. You were an editor of the law review, 
elected by your colleagues, and of course, for a graduating law 
student at a prestigious law school or any law school, being an 
editor of the law review is an extraordinary honor.
    You clerked for a Federal judge on the Third Circuit. You 
were an Assistant United States Attorney. You did appellate 
work, handling criminal cases, and as United States Attorney 
you were primarily a prosecutor. As I have checked the record, 
you will be the first person to serve on the Supreme Court 
since Tom Clark, who was appointed by Harry Truman in 1949, 
that had actual Federal prosecutorial experience, which I think 
is a great value. Matter of fact, I know it is a value. I have 
seen instances of Supreme Court rulings where errors have been 
made, mostly as a result of just not understanding the system 
and how it operates.
    As an Assistant Solicitor General you argued 12 cases 
before the Supreme Court. That is an extraordinary number. 
Very, very few people in our country have had the opportunity 
to do that. Very few lawyers will ever in their career do one 
case much less 12.
    So you did a great job, and I think that is why the ABA, 
the American Bar Association has rendered their views on you. 
It is a 15-member committee. All of them participate on a 
Supreme Court nominee. They take this very seriously. They 
interview judges with whom you work. They interview your 
colleagues. They interview people who litigated against you. 
They interview litigants who have lost before you as well as 
those who won before you, your co-counsel. And at the 
conclusion of all of that, they unanimously gave you their 
highest possible rating. I think that is an important thing. 
Some of us on our side of the aisle criticize the ABA. We say 
they tilt a little to the left, but their analysis process and 
the way they go about it provides valuable insight to this 
Committee and to the people of America, that the people of the 
country can know that they have interviewed a host of people 
who have dealt with you in every single area of your life, and 
they found you highly qualified, the best recommendation they 
can give, and that is something you should take great pride in.
    We do not want an activist judge. That is not what we want 
in this country. By ``activist'' I mean a judge who allows his 
personal views to overcome a commitment to faithfully following 
the law, following the law as it is, not as you would like it 
to be, good or bad, following that law. That is what we count 
on. When we violate that, we undermine law, we undermine 
respect for law, and endanger this magnificent heritage of law 
that we have been given. From what I understand your approach 
to law, you have it right, and your record indicates that.
    The judicial oath you take is important. Some might say you 
have to follow precedent and precedent is a very big part of 
what you do, but you take the oath to swear that you will 
support and defend the Constitution of the United States. You 
will take that oath if confirmed, and you have already taken it 
as a Third Circuit Judge. It is an oath not to decide whether a 
decision is good policy or not. That is for the legislative 
branch. It is not an oath to defend the wall that the Supreme 
Court has enclosed sometimes around itself. It is not an oath 
to avoid admitting error in previous decision. But let me be 
more direct. The oath you take is not an oath to uphold 
precedent whether that precedent is super duper or not. If you 
love the Constitution, which I hope you do, and I intend to 
inquire about that, you will enforce the Constitution as it is, 
good and bad. That is your responsibility in our democracy.
    We have already had this morning some matters that have 
been raised, and I think are worthy of just responding to 
briefly because allegations get made in these hearings, you may 
never get a chance by the time this hearing is over to rebut 
some of the things that have already been raised. Senator 
Kennedy claimed that you have not offered an opinion or a 
dissent siding with a claim of racial discrimination. I would 
point him to U.S. v. Kithcart. There you made it clear that the 
Constitution does not allow police officers to racially profile 
black drivers. A police officer received a report that two 
black males in a black sports car had committed three 
robberies. Later they pulled over a driver because he was a 
black man in a black sports car. You wrote that this violated 
the Fourth Amendment. You stated that the mere fact that 
Kithcart was black and the perpetrators had been described as 
two black males was plainly insufficient.
    They also may want to look at your majority opinion in 
Brinson v. Vaughn, where you rule that the Constitution does 
not allow prosecutors to exclude African-Americans from jurors, 
and you granted the petitioner's habeas petition in that case, 
reversing the conviction. You stated the Constitution 
guarantees, ``that a State does not use peremptory challenges 
of jurors to remove any black jurors because of his race, thus 
a prosecutor's decision to refrain from discriminating against 
some African-American voters does not cure discrimination 
against others.''
    As for dissents, you were the lone dissenter calling for an 
expansive interpretation of civil rights laws. Your dissent 
complained in an employer case that the majority had 
substituted its own opinion for the law, and you dissented, and 
later the Supreme Court vindicated you, 9-0.
    I would also note you were questioned about judicial 
independence. I think some of our people have mentioned that, 
but an academic study of Federal Appeals Court opinions rated 
you the fourth most independent judge in the Federal judiciary. 
That is out of 98. They took that based on issues such as 
whether or not you are most likely to disagree with judges or 
agree with judges of a different political party.
    Mr. Chairman, I thank you for your leadership, and look 
forward to a vigorous hearing. I am confident this nominee has 
the skills and graces to make an outstanding Supreme Court 
Justice.
    Chairman Specter. Thank you, Senator Sessions.
    We are going to turn to one more Senator, Senator Feingold, 
for an opening statement, and then we are going to take a 15-
minute break. We will have concluded the opening statements of 
12 of our 18 Judiciary Committee members. That will leave us 
four more. Then Senator Lautenberg and Governor Whitman to make 
the formal presentation of Judge Alito, and then Judge Alito's 
opening statement. At this time we will adjourn and we will 
reconvene at 2:10.
    Pardon me. We are going to proceed with you, Senator 
Feingold.
    [Laughter.]
    Senator Feingold. Thank you, Mr. Chairman, I think.
    Senator Leahy. This is called the potted plant routine, 
Russ.
    [Laughter.]
    Chairman Specter. I am so anxious for the recess, I jumped 
the gun a little.
    [Laughter.]

 STATEMENT OF SENATOR RUSSELL D. FEINGOLD, A U.S. SENATOR FROM 
                     THE STATE OF WISCONSIN

    Senator Feingold. Mr. Chairman, I too want to welcome our 
nominee and thank him in advance for the long hours that he 
will put in this week.
    Judge, I do greatly admire your legal qualifications, and 
of course, your record of public service, and I wish you well 
here. And as with the hearing and the nomination of Chief 
Justice Roberts, I approach this proceeding with an open mind.
    Judge Alito, I know that as a long-time student of the law 
in the Supreme Court, you appreciate the importance of the 
process that we begin today. A position on the Supreme Court is 
one of the highest honors and greatest responsibilities in our 
country. The Constitution requires the Senate to offer its 
advice and decide whether to grant its consent to your 
nomination, and the Senate has duly delegated to the Judiciary 
Committee the task of examining your record and hearing your 
testimony and responses to questions about your views.
    So it is our job in these hearings to try to get a sense 
for ourselves, for our colleagues who are not on the Committee, 
and for the American people, of whether you should be given the 
enormous responsibility of protecting our citizens' 
constitutional freedoms on the Supreme Court. So you will, 
obviously, face tough questions here, Judge.
    No one is entitled to a seat on the Supreme Court simply 
because he has been nominated by the President. I think the 
burden is actually on the nominee to demonstrate that he should 
be confirmed.
    We begin these hearings today at an important time. Less 
than a month ago we learned that this administration has for 
years been spying on American citizens without a court order 
and without following the laws passed by Congress. Americans 
are understandably asking each other whether our Government 
believes it is subject to the rule of law. Now more than ever 
we need a strong and independent judicial branch. We need 
judges who will stand up and tell the executive branch it is 
wrong when it ignores or distorts the laws passed by Congress. 
We need judges who see themselves as custodians of the rights 
and freedoms that the Constitution guarantees even when the 
President of the United States is telling the country that he 
should be able to decide unilaterally, unilaterally, how far 
these freedoms go.
    To win my support, Judge Alito will have to show that he is 
up to the challenge. His instincts sometimes seem to be to 
defer to the executive branch to minimize the ability of the 
courts to question the Executive in national security cases, to 
grant prosecutors whatever powers they seek, and to deny relief 
to those accused of crimes who assert that their constitutional 
rights were violated. So it will be up to Judge Alito to 
satisfy the Senate that he can be fair and objective in these 
kind of cases.
    We need judges on the bench who will ensure that the 
judicial branch of Government is the independent check on 
Executive power that the Constitution requires and that the 
American people expect.
    In these days of corruption investigations and indictments 
in Washington, we also need judges who are beyond ethical 
reproach. In 1990, when the judge appeared before this 
Committee in connection with this nomination to the Court of 
Appeals, Judge Alito promised to recuse himself from cases 
involving a mutual fund company with which he had substantial 
investments, Vanguard. He kept those investments throughout his 
service on the Court of Appeals and still has them today. But 
in 2002 he sat on a panel in a case involving Vanguard. Since 
his nomination to the Supreme Court, we have now heard 
different explanations from the nominee and his supporters 
about why he failed to recuse himself. Needless to say, the 
shifting explanations and justifications are somewhat 
troubling. I hope that we will get the full and final story in 
these hearings.
    Before we grant lifetime tenure to Federal judges, and 
particularly Justices of the Supreme Court, we must make sure 
that they have the highest ethical standards. The stakes for 
this nomination could hardly be higher. Justice O'Connor, as 
many have said, was the swing vote in many important decisions 
in the past decade. Her successor could well be the deciding 
vote in a number of cases that have already been argued this 
term, that may have to be reargued after a new Justice is 
confirmed. The outcome of these cases could shape our society 
for generations to come.
    Now, we do not have the right to know how a nominee would 
rule on those cases. Indeed, we should all hope that the 
nominee does not know either, but we do have a right to know 
what and how a nominee thinks about the important legal issues 
that have come to the Court in recent years. Commenting on past 
Supreme Court decisions, in my view, would no more disqualify a 
nominee from hearing a future case on a similar topic than 
would a current Justice participating in those past decisions. 
Mr. Chairman, it simply cannot be that the only person in 
America who cannot express an opinion on a case where Justice 
O'Connor cast the deciding vote, is the person who has been 
nominated to replace her on the Court.
    So I look forward to questioning you, Judge Alito, about 
Executive power, the death penalty, employment discrimination, 
criminal procedure and other important topics, and I look 
forward to your candid answers. I will have to say that I was 
rather pleased that the judge was actually less guarded in our 
private meeting, than were the other two Supreme Court nominees 
who I had had the privilege to meet. I hope he is even more 
forthcoming in this hearing.
    Given his long judicial record and the memos we have seen 
that express his personal views on legal issues, I expect 
complete answers, and I think my colleagues do too. If a 
nominee expresses a personal view on a legal issue in a memo 
written over a decade ago, I think we and the American people 
have the right to know if he still holds that view today.
    Mr. Chairman, if confirmed to the Supreme Court, Judge 
Alito is likely to have a profound impact on the lives of 
Americans for decades to come. That is a fact. It is clear, Mr. 
Chairman, from how you have planned these hearings, that you 
recognize that.
    Thank you for your efforts to ensure a full and fair 
evaluation of this nominee, and I not only look forward to the 
questioning, but I want to note that I have caused the recess 
to occur 3 minutes and 40 seconds earlier than it normally 
would have.
    [Laughter.]
    Chairman Specter. Thank you, Senator Feingold, for your 
brevity.
    We will now take a 15-minute recess until 2:15.
    [Recess from 2 p.m. to 2:15 p.m.]
    Chairman Specter. It is 2:15. We will resume these 
hearings. Next up on opening statement is Senator Graham.
    Senator Graham. Shall I wait or go ahead, Mr. Chairman?
    [Pause.]
    Chairman Specter. Senator Graham, you may begin.

 STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE 
                    STATE OF SOUTH CAROLINA

    Senator Graham. Thank you, Mr. Chairman, and welcome back, 
Judge. I would hate for you to miss my opening statement, a 
loss for the ages.
    Welcome to the Committee. Welcome to one of the most 
important events in your life. You have got the people that 
mean the most here with you today, your family, and I know they 
are proud of you, and I am certainly proud of what you have 
been able to accomplish.
    To say the least, you come to the Senate in interesting 
political times. There is going to be a lot of talk by the 
Senators of this Committee about concepts that are important to 
Americans, but what I worry the most about is your time, 
believe it or not, will come and go. You will not be here 
forever. It may seem that way, but I think you are going to be 
just fine.
    I don't know what kind of vote you are going to get, but 
you will make it through. It is possible you could talk me out 
of voting for you, but I doubt it. So I won't even try to 
challenge you along those lines. I feel very comfortable with 
you being on the Supreme Court based on what I know, and the 
hearings will be helpful to all of us to find out some issues 
that are important to us.
    We had a talk recently about Executive power. That is very 
important to me. In time of war, I want the executive branch to 
have the tools to protect me, my family and my country. But 
also I believe even during a time of war, the rule of law 
applies.
    I have got some problems with using a force resolution to 
the point that future Presidents may not be able to get a force 
resolution from Congress if you interpret it too broadly. And 
we will talk about those things and we will talk more about it.
    I am going to talk a little bit about some of the points my 
colleagues have been making. Everybody knows you are a 
conservative. The question is are you a mainstream 
conservative. Well, the question I have for my colleagues is 
who would you ask to find out. Would you ask Senator Kennedy? 
Probably not. If you asked me who a mainstream liberal is, I 
would be your worst person to pick because I don't hang out 
over there.
    I suspect that most all of us, if not all of us, will vote 
for you, and I would argue that we represent from the center 
line to the right ditch in our party and if all of us vote for 
you, you have got to be pretty mainstream. So the answer to the 
question, are you a mainstream conservative, will soon be know.
    If every Republican member of the Judiciary Committee votes 
for you and you are not mainstream, that means we are not 
mainstream. And it is a word that means what you want it to 
mean. Advise and consent means what? Whatever you want it to 
mean. Advise and consent means the process has got to work to 
the advantage of people I like, and with people I don't want on 
the Court, it is a different process. That is politics.
    Every Senator will have to live within themselves as to 
what they would like to see happen for the judiciary. My main 
concern here is not about you. It is about us. What are we 
going to be doing as a body to the judiciary when it is all 
said and done?
    Roe v. Wade and abortion. If I wanted to work for Ronald 
Reagan, one of the things I would tell the Reagan 
administration is I think Roe v. Wade was wrongly decided. They 
are likely to hire me because they were trying to prove to the 
Court that the Court took away from elected officials a very 
important right, protecting the unborn.
    I was on a news program with Senator Feinstein this 
weekend, who is a terrific person. She made a very emotional, 
compelling argument that she can remember back-alley abortions 
and women committing suicide when abortion was illegal. I 
understand that is very seared in her memory banks and that is 
important to her.
    Well, let me tell you there is another side to that story. 
There are millions of Americans, a bunch of them in South 
Carolina, who are heartsick that millions of unborn children 
have been sent to certain death because of what judges have 
done. It is a two-sided argument. It is an emotional event in 
our society.
    They are talking about filibustering maybe if you don't 
give the right answer. Well, what could possibly be the right 
answer about Roe v. Wade? If you acknowledge it is a precedent 
of the Court, well, then you would be right. If you refuse to 
listen to someone who is trying to change the way it is applied 
or to overturn it and you will say here I will never listen to 
them, you might talk me out of voting for you. I don't think 
any American should lose the right to challenge any precedent 
that the Supreme Court has issued because the judge wanted to 
get on the Court.
    And you may be a great fan of Roe v. Wade and you think it 
should be there forever. There may be a case where someone 
disagrees with that line of reasoning. What I want from the 
judge is the understanding that precedent matters, but the 
facts, the brief and the law is what you are going to base your 
decision on as to whether or not that precedent stands, not 
some bargain to get on the Court, because I can tell you if 
that ever becomes a reason to filibuster, there are plenty of 
people that I personally know, if it became fashionable to 
stand on the floor of the Senate to stop a nominee on the issue 
of abortion, who feel so deeply, so honestly held belief that 
an abortion is certain death for an unborn child that they 
would stand on their feet forever.
    And is that what we want? Is that where we are going as a 
Nation? Are we going to take one case and one issue and if we 
don't get the answer we like that represents our political view 
on that issue, are we going to bring the judiciary to their 
knees? Are we going to say as a body it doesn't matter how 
smart you are, how many cases you have decided, how many things 
you have done in your life as a lawyer, forget about it, it all 
comes down to this one issue?
    If we do, if we go down that road, there will be no going 
back, and good men and women will be deterred from coming 
before this body to serve their Nation as a judge at the 
highest levels. What we are saying and what we are doing here 
is far more important than just whether or not Judge Alito gets 
through the process.
    What is the proper role of a Senator when it comes to 
advising and consenting? I would argue that if we start taking 
the one or two cases we cherish the most and make that a litmus 
test, we have let our country down and we have changed the 
historical standard.
    Elections matter. Values debates occur all over this 
country. They occur in Presidential elections. It is no mystery 
as to what President Bush would do if he won. He would pick 
people like John Roberts and Sam Alito. That is what he said he 
would do. That is exactly what he has done. He has picked solid 
strict constructionists, conservatives, who have long, 
distinguished legal careers.
    What did President Clinton do? He picked people left of the 
center who worked for Democrats. And it cannot surprise the 
people on the other side that the two people we picked worked 
for Ronald Reagan. We liked Ronald Reagan. President Clinton 
picked Ginsburg and Breyer. Justice Ginsburg was the general 
counsel for the ACLU. If I am going to base my decision based 
on who you represented as a lawyer, how in the world could I 
ever vote for somebody that represented the ACLU?
    If I am going to make my decision based on whether or not I 
agree with the Princeton faculty and administration policies on 
ROTC students and quotas and I am bound by that, I will get 
killed at home. What Princeton does with their admission 
policies and whether or not a ROTC unit should be on a campus 
is an OK thing to debate; at least I hope it is OK. I think 
most Americans are going to be with the group that you are 
associated with, not the policies of Princeton.
    The bottom line is you come here as an individual with a 
life well lived. Everybody who seems to have worked with you as 
a private lawyer, public lawyer and as a judge admires you, 
even though they may disagree with you.
    My biggest concern, members of this Committee, is if we 
don't watch the way we treat people like Judge Alito, we are 
going to drive good men and women away from wanting to serve. 
There will be a Democratic President one day. I don't know 
when, but that is likely to happen, and there will be another 
Justice Ginsburg come over. If she came over in this 
atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't 
get 98 votes, and that is sad to me.
    I hope we will use this opportunity not only to treat you 
fairly, but not use a double standard. I hope we will 
understand that this is bigger than you, this is bigger than 
us, and the way we conduct ourselves and what we expect of you 
we had better be willing to expect when we are not in power.
    Thank you.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman.
    Judge Alito, welcome to you, Mrs. Alito, your two children, 
the rest of your family. I join my colleagues in congratulating 
you on your nomination. If confirmed, you will be one of nine 
people who collectively hold power over everyone who lives in 
this country. You will define our freedom, you will affect our 
security, and you will shape our law. You will determine on 
some days where we pray and how we vote. You will define on 
other days when life begins and what our schools may teach, and 
you will decide from time to time who shall live and who shall 
die. These decisions are final and appeals impossible.
    That is the awesome responsibility and power of a Supreme 
Court Justice, and it is therefore only appropriate that 
everyone who aspires to that office bear a heavy burden when 
they come before the Senate and the American people to prove 
that they are worthy.
    But while every Supreme Court nominee has a great burden, 
yours, Judge Alito, is triply high, first because you have been 
named to replace Sandra Day O'Connor, the pivotal swing vote on 
a divided Court; second, because you seem to have been picked 
to placate the extreme right wing after the hasty withdrawal of 
Harriet Miers; and finally, and most importantly, because your 
record of opinions and statements on a number of critical 
constitutional questions seems quite extreme.
    So, first, as this Committee takes up your nomination, we 
can't forget recent history, because that history increases 
your burden and explains why the American people want us to 
examine every portion of your record with great care.
    Harriet Miers's nomination was blocked by a cadre of 
conservative critics who undermined her at every turn. She 
didn't get to explain her judicial philosophy, she didn't get 
to testify at the hearing, and she did not get the up-or-down 
vote on the Senate floor that her critics are now demanding 
that you receive. Why? For the simple reason that those critics 
couldn't be sure that her judicial philosophy squared with 
their extreme political agenda. They seem to be very sure of 
you. The same critics who called the President on the carpet 
for naming Harriet Miers have rolled out the red carpet for 
you, Judge Alito. We would be remiss if we didn't explore why.
    And there is an additional significance to the Miers 
precedent which is this: everyone now seems to agree that 
nominees should explain their judicial philosophy and ideology. 
After so many of my friends across the aisle spoke so loudly 
about the obligation of nominees to testify candidly about 
their legal views and their judicial philosophy when the 
nominee was Harriet Miers, I hope we will not see a flip-flop 
now that the nominee is Sam Alito.
    The second reason your burden is higher, of course, is that 
you are filling the shoes of Sandra Day O'Connor. Those are big 
shoes to be sure, but hers are also special shoes. She was the 
first woman in the history of the Supreme Court, is the only 
sitting Justice with experience as a legislator, and has been 
the most frequent swing vote in a quarter century of service.
    While Sandra Day O'Connor has been at the fulcrum of the 
Court, you appear poised to add weight to one side. That alone 
is not necessarily cause for alarm or surprise, but is 
certainly a reason for pause. Are you in Justice O'Connor's 
mold or, as the President has vowed, are you in the mold of 
Justices Scalia and Thomas?
    Most importantly, though, your burden is high because of 
your record. Although I haven't made up my mind, I have serious 
concerns about that record. There are reasons to be troubled. 
You are the most prolific dissenter in the Third Circuit.
    This morning, President Bush said Judge Alito has the 
intellect and judicial temperament to be on the Court. But the 
President left out the most important qualification: a 
nominee's judicial philosophy.
    Judge Alito, in case after case, you give the impression of 
applying careful legal reasoning, but too many times you happen 
to reach the most conservative result. Judge Alito, you give 
the impression of being a meticulous legal navigator, but in 
the end you always seem to chart a right-ward course.
    Some wrongly suggest that we are being results-oriented 
when we question the results you have reached. But the opposite 
is true. We are trying to make sure you are capable of being 
fair, no matter the identity of the party before you. 
Sometimes, you give the government a free pass, but refuse to 
give plaintiffs a fair shake. We need to know that Presidents 
and paupers will receive equal justice in your courtroom.
    If the record showed that an umpire repeatedly called 95 
percent of pitches strikes when one team's players were up and 
repeatedly called 95 percent of pitches balls when the other 
team's players were up, one would naturally ask whether the 
umpire was being impartial and fair.
    In many areas, we will expect clear and straightforward 
answers because you have a record on these issues; for example, 
Executive power, congressional power and personal autonomy, 
just to name a few. The President is not a king, free to take 
any action he chooses without limitation by law.
    The Court is not a legislature, free to substitute its own 
judgment for that of elected bodies, and the people are not 
subjects, powerless to control their own most intimate 
decisions. Will your judicial philosophy preserve these 
principles or will it erode them?
    In each of these areas, there is cause for concern. In the 
area of Executive power, Judge Alito, you have embraced and 
endorsed the theory of the unitary Executive. Your deferential 
and absolutist view of separation of powers raises questions.
    Under this view, in times of war the President would, for 
instance, seem to have inherent authority to wiretap American 
citizens without a warrant, to ignore congressional Acts at 
will, or to take any other action he saw fit under his inherent 
powers. We need to know, when a President goes to far, will you 
be a check on his power or will you issue him a blank check to 
exercise whatever power alone he thinks appropriate. Right now, 
that is an open question, given your stated views.
    Similarly on the issue of federalism, you seem to have 
taken an extreme view, substituting your own judgment for that 
of a legislature. Certainly, one important case you wrote, in 
Rybar v. U.S., that Congress exceeded its power by prohibiting 
the possession of fully automatic machine guns. Do you still 
hold these cramped views of congressional power? Will you 
engage in judicial activism to find ways to strike down laws 
that the American people want their elected representatives to 
pass and that the Constitution authorizes?
    And, of course, you have made statements expressing your 
view that the, quote, ``Constitution does not protect the right 
to an abortion,'' unquote. In fact, you said in 1985 that you 
personally believe very strongly this is true. You also spoke 
while in the Justice Department of, quote, ``the opportunity to 
advance the goals of bringing about the eventual overruling of 
Roe v. Wade.''
    It should not be surprising that these statements will 
bring a searching inquiry, as many of my colleagues have 
already suggested. So we will ask you, do you still personally 
believe very strongly that the Constitution does not protect a 
right to an abortion? We will ask, do you view elevation to the 
Supreme Court, where you will no longer be bound by High Court 
precedent, as the long-sought opportunity to advance the goals 
of bringing about the eventual overruling of Roe v. Wade, as 
you stated in 1985?
    Judge Alito, I sincerely hope you will answer our 
questions. Most of the familiar arguments for ducking direct 
questions no longer apply and certainly don't apply in your 
case. For example, the logic of the mantra repeated by John 
Roberts at his hearing that one could not speak on a subject 
because the issue was likely to come before him quickly 
vanishes when the nominee has a written record, as you do, on 
so many subjects.
    Even under the so-called Ginsburg precedent, which was 
endorsed by Judge Roberts, Republican Senators and the White 
House, you have an obligation to answer questions on topics 
that you have written about. On the issue of choice, for 
example, because you have already made blanket statements about 
your view of the Constitution and your support for overruling 
Roe, you have already given the suggestion of pre-judgment on a 
question that will likely come before the Court. So I 
respectfully submit you cannot use that as a basis for not 
answering.
    So I hope, Judge Alito, that when we ask you about prior 
statements you have made about the law, some strong, some even 
strident, you will simply not answer, in effect, no comment. 
That will not dismiss prior expressions of decidedly legal 
opinions as merely personal beliefs, and that will enhance 
neither your credibility nor your reputation for careful legal 
reasoning.
    I look forward, Judge, to a full and fair hearing.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Cornyn.

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Alito, welcome to the Committee, and to your family 
as well. I am a little surprised to learn that you have a 
triply high burden for confirmation here. I guess we will get a 
chance to explore that and the fairness of that, or whether all 
nominees ought to have the same burden before the Committee.
    What I want to also make sure of is that we don't hold you 
to a double standard, that we don't expect of you answers to 
questions that Justice Ginsburg and others declined to answer 
in the interests of the independence of the judiciary and in 
the interests of observing the canons of judicial ethics.
    Nevertheless, we have already heard a great deal about you 
and your credentials for the Supreme Court. As has been noted, 
you served with distinction on the court of appeals. You have 
served as a United States Attorney, and indeed you have served 
your entire adult life in public service.
    We have also heard a bit today--and we will hear more as 
these proceedings unfold--about the testimonials from people 
who have worked with you, people who know you best, whether 
liberal, moderate or conservative. The judges on your court 
have praised you as a thoughtful and open-minded jurist, and we 
will hear more from them later in the week.
    The same can be said of the dozens of law clerks who have 
worked with you over the last 15 years. As you know, law clerks 
are those who advise appellate judges on the cases they hear, 
and you have had law clerks from all political persuasions, 
from members of the Green Party, to Democrat clerks, even a 
clerk that went on to serve as counsel of record for John 
Kerry's campaign for President. And every single one of them 
says that you will make a terrific Supreme Court Justice, that 
you apply the law in a fair and even-handed manner, and that 
you bring no agenda to your job as a judge.
    If fairness, integrity, qualifications and an open mind 
were all that mattered in this process, you would be confirmed 
unanimously. But we know that is not how the process works, or 
at least how it works today. We know that 22 Senators, 
including 5 on this committee, voted against Chief Justice 
Roberts's confirmation just a few short months ago. And my 
suspicion is that you do not come here with a total level 
playing field.
    I am reluctantly inclined to the view that you and other 
nominees of this President to the Supreme Court start with no 
more than 13 votes on this Committee and only 78 votes in the 
full Senate, with a solid, immovable, and unpersuadable block 
of at least 22 votes against you, no matter what you say and no 
matter what you do. Now, that is unfortunate for you, but it is 
even worse for the Senate and its reputation as the world's 
greatest deliberative body.
    The question is why--with so many people from both sides of 
the aisle and across the ideological spectrum supporting your 
nomination--are liberal special interest groups and their 
allies devoting so much time and so much money to defeat your 
nomination? The answer, I am afraid, is that there are a number 
of groups who really don't want a fair-minded judge who has an 
openness to both sides of the argument. Rather, they want 
judges who will impose their liberal agenda on the American 
people--views so liberal that they cannot prevail at the ballot 
box.
    So they want judges who will find traditional marriage 
limited to one man and one woman unconstitutional. They want 
judges who will ban any trace of religious expression from the 
public square. They even want judges who will prohibit 
schoolchildren from reciting the Pledge of Allegiance. As I 
say, none of these are mainstream positions embraced by the 
American people. So the strategy is to try to impose their 
agenda through unelected judges.
    Judge Alito, the reason why these groups are trying to 
defeat your nomination--because you won't support their liberal 
agenda--is precisely why I support it. I want judges on the 
Supreme Court who will not use their position to impose 
personal policy preferences or a political agenda on the 
American people. I want judges on the Supreme Court who will 
respect the words and the meaning of the Constitution, the laws 
enacted by Congress, and the laws enacted by State 
legislatures.
    Now, this doesn't mean, as you know, that a judge will 
always reach what might be called a conservative result. It 
means that judges will reach whatever result is directed by the 
Constitution, by the law, and by the facts of a case. Sometimes 
it might be called conservative, sometimes it might be called 
liberal. But the point is that the meaning of the Constitution 
and other laws should not change unless we the people change 
them.
    A Supreme Court appointment is not a roving commission to 
rewrite our laws however you and your colleagues see fit. I 
will give you one example of an area where I believe our 
Supreme Court has been rewriting the Constitution for a long 
time. It is an area near and dear to me and others in this 
country. I am speaking of the ability of people of faith to 
freely express their beliefs in the public square.
    There is no doubt where the Founding Fathers stood on this 
issue. They believed that people of faith should be permitted 
to express themselves in public. They believed that this 
country was big enough and free enough to allow expression of 
an enormous variety of views and beliefs. They believed that 
freedom of expression included religious views and beliefs, so 
long as the government did not force people to worship in a 
particular manner and remained neutral on what those views and 
beliefs were.
    But this country has gotten seriously off track under the 
Supreme Court when it went so far as to limit the right of even 
private citizens to freely express their religious views in 
public. As I mentioned to you when we met early on in these 
proceedings, I had an opportunity, as some have had on this 
Committee, to argue a case before the U.S. Supreme Court. When 
I was attorney general, I helped argue a case called Santa Fe 
Independent School District v. Doe.
    The school district in that case had the temerity to permit 
student-led, student-initiated prayer before football games. 
And, of course, someone sued. I repeat, this is student-led, 
student-initiated, voluntary prayer. The Supreme Court held by 
a vote of six to three that even this was unconstitutional.
    The decision led the late Chief Justice Rehnquist to remark 
that the Court now exhibits ``hostility to all things religious 
in public life.'' It is hard to disagree with him. Depictions 
or expressions of sex, violence, crime are all permitted 
virtually without limit, but religion, it seems, never.
    Now, this is where you come in, Judge Alito. I appreciate 
your record on the Third Circuit respecting the importance of 
neutrality of government when it comes to religious expression 
on a voluntary basis by individual citizens. It is my sincere 
hope that, when confirmed, you will persuade your colleagues to 
reconsider their attitude toward religious expression and grant 
it the same freedom currently reserved for almost all other 
non-religious speech.
    No wonder many in America seem to believe that the Supreme 
Court has become one more inclined to protect pornography than 
to protect religious expression. Most people in America don't 
believe that ``God'' is a dirty word. But the sad fact is that 
some Americans are left to wonder whether the Supreme Court 
might have greater regard for it if it were.
    Again, welcome to the Committee and thank you for your 
continued willingness to serve our great Nation.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator Durbin?

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you very much, Mr. Chairman. Judge 
Alito, welcome to you and your family before the Judiciary 
Committee. You have heard time and again from my colleagues why 
this seat on the Supreme Court means so much. They have quoted 
the statistics of 193 5-4 decisions where Sandra Day O'Connor 
was the deciding vote in 148 of those instances. She was a 
critical vote in issues of civil rights, human rights, workers' 
rights, women's rights, restraining the power of an 
overreaching President.
    If you look at the record, the enviable record which Sandra 
Day O'Connor has written, you find she was the fifth and 
decisive vote to safeguard Americans' right to privacy, to 
require courtrooms to grant access to the disabled, to allow 
the Federal Government to pass laws to protect the environment, 
to preserve the right of universities to use affirmative 
action, to ban the execution of children in America. And 
Justice O'Connor was the fifth vote to uphold the time-honored 
principle, which bears repeating, of separation of church and 
state. There was real wisdom in the decision of our forefathers 
in writing a Constitution that gave us an opportunity to grow 
as such a diverse Nation, and we should never forget it.
    Justice O'Connor has been the critical decisive vote on 
many issues that go to the heart of who we are as a Nation. We 
believe, many of us, that the decision on filling this vacancy 
is going to tip the scales of justice on the Supreme Court one 
way or the other, and that is why we are so mindful of the 
importance of our task.
    Yesterday, the Chicago Tribune editorialized that anyone 
who questions your nomination has a heavy burden of proof. I 
disagree. I believe the burden of proof is yours, Judge Alito, 
the burden of demonstrating to the American people and this 
Committee that you or any nominee is worthy to serve on the 
highest Court, to succeed Sandra Day O'Connor.
    My friend Illinois Senator Paul Simon once said as a member 
of this same Committee that the test for a Supreme Court 
nominee is not where he stands on any given issue. The test is 
this: Will you use your power on the Court to restrict freedom 
or expand it? In the simplest terms, I think Paul Simon got it 
right. That is the best test because the Supreme Court is the 
last refuge in America for our rights and liberties. In my 
lifetime, it is the Supreme Court, not Congress, that 
integrated public schools, that allowed people of different 
races to marry, and established the principle that our 
Government should respect the value of privacy of American 
families. These decisions are the legacy of Justices who chose 
to expand American freedom. If you are confirmed, Judge Alito, 
will you continue their legacy?
    You and I spoke about the Griswold decision in my office. 
It is hard to imagine that 40 years ago people could be 
convicted of a crime, fined, and sent to prison for using the 
most common forms of birth control. The Supreme Court looked at 
that decision and said that is just wrong. We may not find the 
word ``privacy'' in the Constitution, but that is just inherent 
to our freedom as Americans. It seems like a given now. Who 
would even question it? But it has not been that long ago that 
up here on Capitol Hill we were involved in a bitter debate 
over the tragedy of Terri Schiavo. And Republican congressional 
leaders threatened Federal judges with impeachment if they did 
not agree to intervene into that family's painful personal 
decision. We see it in attempts on Capitol Hill to impose gag 
rules on doctors on what they can say to their patients about 
family planning. And we certainly see it now with an effort by 
this Government to tap our phones, invade our medical records, 
credit information, library records, and the most sensitive 
personal information in the name of national security.
    Now, Justice O'Connor was the critical fifth vote to 
protect our right of privacy. We want to know whether you will 
be that vote as well. You were the only judge on your court to 
authorize a very intrusive search of a 10-year-old girl. You 
were the only judge on your court who voted to diminish the 
right of privacy in the case of Planned Parenthood v. Casey, a 
position that was specifically rejected by the Supreme Court. 
And as a Government lawyer, you wrote that you personally 
believed very strongly the Constitution does not protect the 
right to an abortion.
    Like many, I have thought about this issue of abortion time 
and again. It is not an easy issue for most people. I have 
thought about the law and the impact of my personal religious 
beliefs and feelings. I have thought about the real lives of 
people and the tragic experiences of the women that I have met. 
And I have come to believe over the years that a woman should 
be able to make this agonizing decision with her doctor and her 
family and her conscience and that we should be very careful 
that we don't make that decision a crime except in the most 
extreme circumstances.
    There is also the issue of personal privacy when it comes 
to the Executive power. Throughout our Nation's history, during 
times of war, whether it was habeas corpus in the Civil War, 
the Alien and Sedition Acts in World War I, or Japanese 
internment camps in World War II, Presidents have gone too far. 
And in going too far, they have taken away the individual 
rights of American citizens. The last stop to protect those 
rights and liberties is the Supreme Court. That is why we want 
to make certain that when it comes to the checks and balances 
of the Constitution, you will stand with our Founding Fathers 
in protecting us from a Government or a President determined to 
seize too much power in the name of national security.
    As a Government lawyer, you pushed a policy of legislative 
construction designed to make congressional intent secondary to 
Presidential intent. You wrote, and I quote, ``The President 
will get the last word on questions of interpretation.'' In 
speeches to the Federalist Society, you have identified 
yourself as a strong proponent of the so-called unitary 
Executive theory. That is a marginal theory at best, and yet it 
is one that you have said you believe in.
    This is not an abstract debate. The Bush administration has 
repeatedly cited this theory to justify its most controversial 
policies in the war on terrorism. Under this theory, the Bush 
administration has claimed the right to seize American citizens 
in the United States and imprison them indefinitely without 
charge. They have claimed the right to engage in torture, even 
though American law makes torture a crime. Less than 2 weeks 
ago, the White House claimed the right to set aside the McCain 
torture amendment that passed the Senate 90-9. What was the 
rationale? The unitary Executive theory, which you have 
supported.
    In the Hamdi case, Justice O'Connor wrote for the 
plurality, and it has been quoted many times: ``A state of war 
is not a blank check for the President when it comes to the 
rights of the Nation's citizens.'' If you are confirmed, Judge 
Alito, who will inspire your thinking if this President or any 
President threatens our fundamental constitutional rights? Will 
it be the Federalist Society or will it be Sandra Day O'Connor?
    Two months ago, Rosa Parks was laid to rest. Her body laid 
in state in the Capitol Rotunda, a fitting tribute to the 
mother of our modern civil rights movement. Her courage is well 
known. The courage of Federal Judge Frank Johnson, whom we 
talked about, is well known as well. He was the one who gave 
the legal authority for the right to march from Selma to 
Montgomery, and he suffered dearly for it. He was ostracized 
and rejected. His life was threatened as a result of it.
    When we met in my office, Judge Alito, you told me about 
how your father as a college student was almost expelled for 
standing up to the college president who decided that the 
school basketball team should not use its African-American 
players against an all-white opponent. That university 
president did not want to offend their all-white opponent, but 
your dad stood up, and you were so proud of that moment in your 
family history. I admire your father's courage as well. But 
just as we do not hold the son responsible for the sins of the 
father, neither can we credit the son for the courage of the 
father. As Supreme Court Justice, would you have the courage to 
stand up for civil rights even if it is unpopular?
    We want to understand what you meant in 1985 when you said 
from the heart that you disagreed with the Warren Court on 
reapportionment, the one man/one vote principle. That was a 
civil rights decision. We want you to explain your membership 
in an organization that you highlighted at Princeton University 
that tried to challenge the admission of women and minorities. 
And I think we want to make certain of one thing. We want to 
make certain that every American who stood in silent tribute to 
Rosa Parks hopes that you will break your silence and speak out 
clearly for the civil rights that define our unity as a Nation.
    There have been many controversial cases alluded to here. 
Some people have questioned, What is the difference? What 
difference in my life does it make if Sam Alito is on the bench 
or if he isn't? Why would I care if it is a narrow 
interpretation or a broad interpretation of the law? How does 
it affect my life? We know it affects everyone's life. We were 
reminded just very recently with the tragedy that was in the 
headlines. In one of your dissents, you would have allowed a 
Pennsylvania coal mine to escape worker safety and health 
requirements required by Federal law. Last week's tragedy at 
the Sago mine reminds us that such a decision could have life 
and death consequences.
    Judge Alito, millions of Americans are concerned about your 
nomination. They are worried that you would be a judicial 
activist who would restrict our rights and freedoms. During 
your hearing, you will have a chance to respond, and I hope you 
do. More than any recent nominee, your speeches, your writings, 
your judicial opinions make it clear that you have the burden 
to prove to the American people that you would not come to the 
Supreme Court with any political agenda. Clear and candid 
answers are all that we ask.
    I sincerely hope you can convince the U.S. Senate and the 
American people that you will be a fifth vote on the Supreme 
Court that the American people can trust to protect our most 
basic important freedoms and preserve our time-honored values.
    Thank you very much.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Brownback?

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE 
                           OF KANSAS

    Senator Brownback. Thank you, Mr. Chairman.
    Welcome, Judge Alito, your wife and family. Delighted to 
have you here. You only have two more pitchers, and then you 
get a bat. So I am sure people will be happy to hear from you.
    Mr. Chairman, before I go forward with my statement, I 
would like to enter into the record a summary of four cases 
that Judge Alito has ruled on where he backed employees 
claiming racial discrimination. It has been entered a couple of 
times here that he has not ruled in favor of people claiming 
racial discrimination, and I have a summary of four cases where 
he has, and I want to enter that into the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Judge Alito, I welcome you to the 
hearing. This is an extraordinary process. It is a fabulous 
process and a chance for a discussion with you, with the 
American public, about the role of the judiciary in our society 
today. It has become an ever-expanding and important discussion 
because of the expanding role of the courts in recent years in 
American society. When the courts, improperly, I believe, 
assume the power to decide more political than legal issues in 
nature, the people naturally focus less on the law and more on 
the lawyers that are chosen really to administer the law. Most 
Americans want judges who will stick to interpreting the law 
rather than making it. It is beyond dispute that the 
Constitution and its Framers intended this to be the role of 
judges.
    For instance, although he was perhaps the leading advocate 
for expansive Federal power, you can look at Founding Father 
Alexander Hamilton, nevertheless assuring--assuring--the 
countrymen in Federalist 78 that the role of the Federal courts 
under the proposed Constitution would be limited. He said, 
``The courts must declare the sense of the law, and if they 
should be disposed to exercise will instead of judgment, the 
consequences would equally be the substitution of their 
pleasure to that of the legislative body.''
    It seems like we are back at an old debate--the role of the 
courts--and I believe you and others would look and say that 
the role of the courts is limited, and it is not to decide 
political matters.
    Chief Justice Marshall later explained in Marbury v. 
Madison that the Constitution permitted Federal courts neither 
to write nor execute the laws but, rather, to say what the law 
is. That narrow scope of judicial power was the reason the 
people accepted the idea that the Federal courts could have the 
power of judicial review. That is the ability to decide whether 
a challenged law comports with the Constitution.
    The people believed that while the courts would be 
independent, they would defer to the political branches on 
policy issues. This is the most foundational and fundamental of 
issues. And yet we are back in discussing it because of the 
role of the judiciary expanding in this society today.
    It may seem ironic, but the judicial branch preserves its 
legitimacy through refraining from action on political 
questions. That concept was put forward best by Justice 
Frankfurter, appointed by President Roosevelt. He said, 
``Courts are not representative bodies. They are not designed 
to be a good reflex of a democratic society. Their judgment is 
best informed and, therefore, most dependable within narrow 
limits.''
    Now, I want to take on this point of the reservation of 
certain seats on the bench for certain philosophies, which it 
seems as if we have heard a great deal about today that you 
need to be like Sandra Day O'Connor in judicial philosophy to 
be able to go on her seat on the bench. Some interest groups 
have put forward that philosophy and argued that you deserve 
closer scrutiny because you don't appear to have the same 
philosophy, or even opposition if it is not determined that you 
do not have the same judicial philosophy. This testimony 
suggests that that would change the ideological balance, that 
you would change that ideological balance, therefore, you 
should not be approved. And I say that that notion is not 
anywhere in the understanding of the role of the judges. It 
creates a double standard for your approval and looks 
conveniently--it looks suspiciously convenient for the 
opposition to put forward.
    Seats on the bench are not reserved for causes or 
interests. They are given to those who will uphold the rule of 
law so long as the nominee is well qualified to interpret and 
apply the law. This has long been the case of the Supreme 
Court. And I want to note here that historically the makeup of 
the Court has changed just as elected branches have changed. In 
fact, nearly half of the Justices, 46 of 109, who have served 
on the Supreme Court replaced Justices appointed by a different 
political party. In recent years, even as the Court has become 
an increasingly political body, the Senate is not focused on 
preserving any perceived ideological balance when Democrat 
Presidents have appointed people to the Court. And the best 
example of that is the Senate rejecting that notion when Ruth 
Bader Ginsburg came in front of the Senate and was approved 96-
3 to be on the Supreme Court to replace conservative Justice 
Byron White. This was in 1993.
    Now, Justice Ginsburg, it was noted earlier, was the 
general counsel for the ACLU, certainly a liberal group. It was 
abundantly clear during the confirmation hearing that Ginsburg 
would swing the balance of the Court to the left. But because 
President Clinton won the election and because Justice Ginsburg 
clearly had the intellectual ability and integrity to serve on 
the Court, she was confirmed.

    During her hearing, hardly any mention was made about 
balance with Justice White. The only discussion that occurred 
about Justice White was when Senator Kohl, our colleague, asked 
her what she thought of Justice White's career. And she started 
off by saying that she was not an athlete.

    History has shown that she did, in fact, dramatically 
change the balance of the Court in many critical areas, such as 
abortion, the privacy debate expansion, and child pornography. 
And I have behind me three of the key cases where Justice White 
ruled one way, even wrote the majority opinion, and Justice 
Ginsburg ruled the other way with the majority. You talk about 
a swing of balance, and yet the issue was not even raised at 
Justice Ginsburg's confirmation hearing, and yet now it seems 
as if that is the paramount issue--not only the paramount 
issue, it actually makes you have to go to a higher standard to 
be approved. And that is just simply not the way we have 
operated in the past, nor is it the way we should operate now.

    As I stated at Justice Roberts's hearing, the Court has 
injected itself into many of the political debates of our day, 
and as my colleague Senator Cornyn has mentioned, the Court has 
injected itself in the definition of marriage, deciding whether 
or not human life is worth protecting, permitting Government to 
transfer private property from one person to another, even 
interpreting the Constitution on the basis of foreign and 
international laws.

    The Supreme Court has also issued and never reversed a 
number of decisions that are repugnant to the Constitution's 
vision of human dignity and equality. Although cases like Brown 
v. Board of Education in my State are famous for correcting 
constitutional and court errors, there remain several other 
instances in which the Court strayed and stayed beyond the 
Constitution and the laws of the United States. Among the most 
famous of these Supreme Court cases of exercise of political 
power, I believe, are the cases of Roe v. Wade and Doe v. 
Bolton, two 1973 cases based on false statements which created 
a constitutional right to abortion. And you can claim whatever 
you want to of being pro-life or pro-choice, but the right to 
abortion is not in the Constitution. The Court created it. It 
created a constitutional right. And these decisions removed a 
fully appropriate political judgment from the people of several 
States and has led to many adverse consequences.

    For instance, it has led to the almost complete killing of 
a whole class of people in America. As I noted to my colleagues 
in the Roberts hearings, this year--this year--between 80 to 90 
percent of the children in America diagnosed with Down syndrome 
will be killed in the womb simply because they have a positive 
genetic test--which can be wrong and is often wrong, but they 
would have a positive genetic test for Down syndrome and they 
will be killed.

    America is poorer because of such a policy. We are at our 
best when we help the weakest. The weak make us strong. To kill 
them makes us all the poorer, insensitive, calloused, and 
jaded. Roe has made it not only possible but has found it 
constitutional to kill a whole class of people simply because 
of their genetic makeup. This is the effect of Roe.

    I think this is a proper issue for us to consider, and the 
judge you are replacing noted one time ``that the Court's 
unworkable scheme for constitutionalizing abortion has had this 
institutionally debilitating effect should not be surprising 
since the Court is not suited to the expansive role it has 
claimed for itself in the series of cases that began with 
Roe.''

    You will have many issues in front of you, many that we 
will not discuss here in front of this committee. I think it 
unfortunate that we only narrow in on so few of the cases that 
you are likely to hear in front of you. And yet that is the 
nature of the day because they are the hot, political, heat-
seeking cases. You are undoubtedly qualified. You are cited by 
the ABA to be unanimously well qualified. I look forward to a 
thorough discussion and a hopeful approval of you to be able to 
join the Supreme Court of the United States.

    Thank you, Mr. Chairman.

    Chairman Specter. Thank you very much, Senator Brownback.

    We now move to the final opening statement. When we finish 
the statement of Senator Coburn, we are going to go right to 
the presenters, Senator Lautenberg and Governor Whitman. So I 
would like them to be on notice that we will be doing that in 
just a few moments, and following Senator Lautenberg and 
Governor Whitman, we will be hearing from Judge Alito.

    Senator Coburn, the floor is yours.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Thank you. Judge Alito, welcome. I know you 
are tired of this, and I will try to be as brief as possible.

    One of the advantages of going last is to be able to hear 
what everybody else has said, and as I have listened today, we 
have talked about the unfortunate, the frail. The quotes have 
been ``fair shake for those that are underprivileged.'' We have 
heard values, ``strong, free, and fair,'' ``progress of our 
judiciary.'' We have heard ``the vulnerable, the more 
vulnerable, the weak, those who suffer.'' We have heard of an 
``Alito mold'' that has to be in the mold of somebody else. And 
as a practicing physician, the one disheartening thing that I 
hear is these very common words, this ``right to choose,'' and 
how we sterilize that to not talk about what it really is.

    I have had the unfortunate privilege of caring for over 300 
women who have had complications from this wonderful right to 
choose to kill their unborn babies. And that is what it is. It 
is a right of convenience to take the life. And the question 
that arises as we use all these adjectives and adverbs to 
describe our positions as we approach a Supreme Court nominee 
is where are we in America when we decide that it is legal to 
kill our unborn children. I mean, it is a real question for us. 
I debate honestly with those who disagree with me on this. It 
is a real issue of measurement of our society when we say it is 
fine to destroy unborn life who has a heartbeat at 16 days 
post-conception; 39 days post-conception you can measure the 
brain waves and there is pain felt. The ripping and tearing of 
an unborn child from its mother's womb through the hands of 
another and we say that is fine, you have a constitutional 
right to do that.

    How is it that we have a right of privacy and due process 
to do that, but you do not have the right, as rejected 
unanimously by the Supreme Court in 1997, to take your own life 
in assisted suicide. You know, how is it that we have sodomy 
protected under that due process, but prostitution unprotected. 
It is schizophrenic. And the reason it is schizophrenic is 
there is no foundation for it whatsoever other than a falsely 
created foundation that is in error.

    I don't know if we will ever change that. It is a measure 
of our society. But the fact is you cannot claim in this Senate 
hearing to care for those that are underprivileged, those that 
are at risk, those that are vulnerable, those that are weak, 
those that are suffering, and at the same time say I don't care 
about those who have been ripped from the wombs of women and 
the complications that have come about throughout that.

    So the debate for the American public and the real debate 
here is about Roe. Don't let it--we are going to go off in all 
sorts of directions, but the decisions that are going to be 
made in votes on the Committee and the votes on the floor is 
going to be about Roe, whether or not we as a society have 
decided that this is an ethical process, that we have this 
convenient process that, if we want to rationalize one moral 
choice with another, we just do it through abortion, this 
taking of the life--of life of an unborn child.

    I asked Chief Justice Roberts about this definition of 
life. You know, what is life? The Supreme Court cannot figure 
it out or does not want to figure it out. The fact that we know 
that there is no life if there is no heartbeat and brain waves, 
we know that in every State and every territory. But when we 
have heartbeat and brain waves, we refuse to accept it as the 
presence of life. This lack of logic of which we approach this 
issue because we like and we favor convenience over ethics, we 
favor convenience over the hard parts of life that actually 
make us grow.

    Senator Brownback talked about those with disabilities that 
are destroyed in the womb because of a genetic test that is 
sometimes wrong. I would put forward that we all have 
disabilities. Some of us, you just can't see it. And yet who 
makes the decision on whether or not we're qualified or not. We 
have gone down a road to which we don't have the answers for. 
That is why we have the schizophrenic decisions coming out of 
the Supreme Court that don't balance logically with one versus 
another decision.

    So my hope as we go through this process is to not confuse 
it with easy words and really be honest and straightforward 
about what this is about. I firmly believe that the Court 
should take another direction on many of these moral issues 
that face us. If we are to honor the heritage of our country, 
whether it be in terms of religious freedom, whether it be in 
terms of truly protecting life, protecting not just the unborn 
but who comes next, the infirm, the elderly, the maimed, the 
disabled--that is who comes next. As we get into the budget 
crunch of taking care of those people in the years to come, I 
believe we ought to have that debate honestly and openly. But 
the fact is we are going to cover it with everything except the 
real fact is we have made a mistake going down that road in 
terms of saying we can destroy our unborn children and there 
are no consequences to it.

    So I welcome you. This is a difficult process for you and 
your family. I am hopeful that you will be treated fairly. I am 
very disturbed at the picture that was painted by Senator 
Kennedy that you are not a man of your word, that you are 
dishonest. The implication that you are not reliable I don't 
think is a fair characterization of what I have read. And I 
look forward to you being able to give answers as you can to 
your philosophy. The real debate is we have had an activist 
Court, and the American people do not want an activist Court. 
And the real fear from those who might oppose you is that you 
will bring the Court back within a realm of where the American 
people might want us to be with the Supreme Court, one that 
interprets the law, equal justice under the law, but not 
advancing without us advancing, the legislative body advancing 
ahead of you.

    I welcome you. I return the balance of my time, and I look 
forward to your introduction and your opening statement.

    Chairman Specter. Thank you very much, Senator Coburn.

    We will now turn to our presenting witnesses, Senator 
Lautenberg and Governor Whitman. In accordance with our 
standing rules of the Committee, the presenters will each have 
5 minutes. They have been so informed, and we first welcome our 
colleague, Senator Frank Lautenberg, to present Judge Alito.

PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO 
  BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
STATES, BY HON. FRANK LAUTENBERG, A U.S. SENATOR FROM THE STATE 
                         OF NEW JERSEY

    Senator Lautenberg. Thank you, Mr. Chairman, and Senator 
Leahy, colleagues on this Committee. Thank you for the 
opportunity to testify here today. John Corzine, U.S. Senator, 
and now Governor-elect in New Jersey, wanted to be here, but 
transition duties in Trenton prevent him from doing so.

    Now, I have been honored to serve in the U.S. Senate for 21 
years, and I am convinced that our duty to provide advice and 
consent for Justices of the Supreme Court is our most important 
constitutional responsibility. Our mandate is to be a Nation of 
laws, and the Supreme Court is the place where we look to 
safeguard our civil rights and our individual liberties.

    But I believe that Justices must recognize that our 
Constitution is an 18th century document that needs to be 
applied in the context of the 21st century. We also depend on 
the Supreme Court to uphold the integrity of our Government. So 
I am privileged to have the opportunity to introduce Sam Alito, 
Jr., to this Committee, and his beautiful family that he 
brought along to fortify his candidacy.

    Judge Alito was born and raised in the great State of New 
Jersey. Our State has a legacy of producing outstanding 
jurists, most notably the late William J. Brennan, who ushered 
in our Nation's re-commitment to civil rights in the latter 
half of the 20th century. Another distinguished jurist, Justice 
Antonin Scalia, also was born in New Jersey.

    In 1950, Sam Alito was born in our State's capital city, 
Trenton, New Jersey, to a family of worthy achievement. Judge 
Alito's father--I am moving too quickly here--Judge Alito's 
father was an immigrant from Italy who taught history in high 
school and later ran the New Jersey Office of Legislative 
Services, which is similar to our own congressional Research 
Service, in that it provides objective, unbiased information to 
the legislature. Judge Alito's mother was a librarian, teacher 
and school principal, and she is now 91 and still, as I 
understand it, residing in the family home in Hamilton, New 
Jersey.

    From his parents, Judge Alito learned the importance of 
education and integrity. Judge Alito and his sister went to 
public school in Hamilton, New Jersey, where they both joined 
the debating team. It seemed like the debating experience paid 
off, as both he and his sister have excelled in the legal 
profession.

    Sam Alito then went on to Princeton University, where his 
yearbook entry predicted that one day he would warm a seat on 
the Supreme Court. He graduated from Yale School in 1975, and 
then served as a clerk for Circuit Court Judge Leonard Garth, 
with whom he currently serves.

    In 1977, Sam Alito joined the U.S. Attorney's office in 
Newark, where he met his future wife, Martha, who is present 
here today. They later moved to Washington, where Sam Alito 
served as an assistant to the Solicitor General and later in 
the Department of Justice Office of Legal Counsel.

    In 1987, Judge Alito returned home to New Jersey after 
President Reagan appointed him U.S. Attorney for the District 
of New Jersey. He was a strong prosecutor, and nobody was 
surprised when President George H.W. Bush appointed him to the 
Third Circuit Court in 1990, and I had the privilege of 
introducing him then as well.

    Judge Alito's accomplishments in life are the embodiment of 
the American dream. I am honored today to introduce him to the 
Committee. He is a young man. If the Senate confirms him for a 
lifetime appointment to the Supreme Court, he could serve for 
three decades, or even longer, especially judging it from my 
point of view. His decisions would affect our rights, the 
rights of our children, our grandchildren, and other future 
generations.

    Mr. Chairman, you know well it is the job of this Committee 
to evaluate Judge Alito's qualifications and fitness for the 
Court, including his views on legal issues. And I know every 
member of the Committee takes that obligation seriously, and I 
trust that Judge Alito will be forthcoming and cooperative in 
this process. I have had a chance to meet him. I know that he 
responded to the questions that I put to him. Maybe they were 
too easy, but he responded very well to them.

    I thank you, Mr. Chairman. I am pleased to be here with our 
former Governor, Christie Whitman, and we haven't sat at a 
table together for a long time, but it is a good opportunity to 
do so.

    Thank you.

    Chairman Specter. Senator Lautenberg, do you care to make a 
recommendation on the nominee?

    Senator Lautenberg. I care to present the evidence, just 
the evidence, Mr. Chairman, and we will let the record speak 
for itself.

    Chairman Specter. Our next presenter is Governor Whitman, 
distinguished two-term Governor for the State of New Jersey, 
and in the Cabinet of President Bush as Administrator of the 
Environmental Protection Agency.

    We welcome you here, Governor Whitman, and look forward to 
your testimony.

PRESENTATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO 
  BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED 
   STATES, BY CHRISTINE TODD WHITMAN, FORMER GOVERNOR OF NEW 
JERSEY, AND FORMER ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION 
                             AGENCY

    Governor Whitman. Thank you, Mr. Chairman. It is a pleasure 
to be here today with Senator Lautenberg to introduce Judge 
Samuel A. Alito, Jr., and I do urge your support for his 
nomination to the Supreme Court.

    I won't go into his family background. Senator Lautenberg 
has done that--save to mention one member of the family that he 
didn't, which is that the Judge's sister, Rosemary, is a 
nationally recognized employment attorney and someone who is 
recognized as part of a family that has devoted itself to 
public service and continues to do that.

    Judge Alito personifies the motto of the civic pride 
embodied in the slogan of his hometown, ``Trenton makes, the 
world takes.'' And with the consent of the Senate, one of the 
most important bodies in the world, the U.S. Supreme Court, can 
take a proud product of Trenton, New Jersey, into their 
chambers.

    But I am not here to discuss Judge Alito's family 
background or his State ties. I am here to discuss his own 
history of achievement and his potential to be a great 
Associate Justice of our Supreme Court.

    Sam Alito has excelled at everything he has undertaken. He 
was an exceptional student at Princeton University and Yale Law 
School, an outstanding young attorney at the Justice 
Department, an accomplished United States Attorney, and for the 
past 15 years has been a respected and exemplary Federal 
Appeals Court Judge.

    The American Bar Association just gave him their highest 
rating for his seat as Justice, and in his past two appearances 
before the Senate for confirmation, he has received unanimous 
support.

    There is, however, more to my support of Judge Alito. Like 
other Americans, I have read many articles dissecting positions 
Judge Alito has taken throughout his career, trying to discern 
how he might decide on issues likely to appear before the 
Supreme Court that he would confront as a Justice. I too have 
examined the record. In the final analysis, my decision to 
support Judge Alito for this position is not based on whether I 
agree with him on a particular issue or set of issues or on his 
conformity with any particular political ideology. In fact, 
while we may agree on some political issues, I know there are 
others on which we disagree. Nevertheless, one's agreement or 
disagreement on a political question is, after all, ultimately 
irrelevant to the issue of whether or not Judge Alito should 
serve as an Associate Justice of the Supreme Court.

    The Court's role is not to rule based on Justices' personal 
persuasions, rather on persuasive arguments grounded on fact, 
those facts presented in that particular case, and on their 
interpretation of the Constitution. Those decisions are, of 
course, grounded in the hard reality of disputed fact and the 
messiness of the real world, but they are also guided by 
principles of law and justice which have long been treasured by 
the people of this country. We should look for Justices who 
understand that instinctively in the very core of their being. 
I saw this trait in Judge Alito when he served on the Appeals 
Court during my terms as Governor, and I have every reason and 
every confidence that he will exhibit the same as a Supreme 
Court Justice.

    Policy in the United States is defined through the laws 
crafted by the legislative branch of Government and carried out 
by the executive. Our judges make decisions based on their 
interpretation of the intent of those laws. We do not want 
Justices to conform their decisions' ideologies. We do want 
Justices whose opinions are shaped by the facts before them and 
by their understanding of the Constitution. We should also look 
for Justices who possess the necessary qualities of intellect 
and humility, desirable in those with great responsibility and 
who can express their thinking clearly and in understandable 
language. While we should expect the Justices will hold 
philosophies that will guide their decisions, we should equally 
expect that they will not hold ideologies that will 
predetermine their decisions. That is the genius of our system.

    Mr. Chairman, some have suggested that Judge Alito has an 
ideological agenda. I believe that an honest and complete 
review of his record as a whole will find that his only agenda 
is fidelity to his judicial craft. If Judge Alito has a bias, 
it is in favor of narrowly drawn opinions that respect 
precedent and reflect the facts before him.

    Members of the Committee, yours is an extraordinary 
responsibility. Decisions by our Supreme Court will affect the 
lives of Americans for generations to come. As politicians, 
whether current or retired, we all have deeply held positions 
we want to protect. When I was Governor, it fell to me five 
times to appoint members of the New Jersey State Supreme Court. 
One thing that experience taught me was that it is virtually 
impossible to find judges who will act as you would act were 
you in their position. That is as it should be. Your 
responsibility is to the extent possible to determine whether 
or not the nominee before you has the legal background, 
intelligence and integrity to be a credit to the Court.

    Sam Alito has been a model as a Federal Appeals Court 
Judge. He has shown that he has the intellect, the experience 
and the temperament to serve with true distinction. I have 
every confidence he will be a balanced, fair and thoughtful 
Justice. I urge this Committee to favorably report his 
nomination to the U.S. Senate.

    Thank you very much.

    Chairman Specter. Thank you very much, Governor Whitman.

    Without objection, the statement of Senator Corzine will be 
made a part of the record.

    We appreciate your coming, Senator Lautenberg, appreciate 
your coming Governor Whitman.

    Judge Alito, if you will resume center stage. Judge, you 
can remain standing. We now come to the formal swearing in of 
the nominee. I count 41 cameras in the well.

    [Laughter.]

    Chairman Specter. And there are just behind you, a grouping 
of cameras, seven in number, and I see three more. So you are 
well up to 50, which exceeds the number present, only 28, for 
Chief Justice Roberts. So that may be an omen. I am stalling 
for time a little bit here to allow the photographers to 
position themselves. They have sat, if not patiently, 
impatiently, all day. We may move the swearing in to the 
beginning of the ceremony in the future so they can all go out 
and do something productive.

    [Laughter.]

    Chairman Specter. If you would raise your right hand, do 
you solemnly swear that the testimony you will give before the 
Committee of the Judiciary of the U.S. Senate will be the 
truth, the whole truth and nothing but the truth, so help you 
God?

    Judge Alito. I do.

    Chairman Specter. Thank you, Judge Alito. You may be 
seated, and we welcome whatever opening comments you care to 
make.

STATEMENT OF SAMUEL A. ALITO, JR., OF NEW JERSEY, NOMINEE TO BE 
 AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

    Judge Alito. Thank you very much, Mr. Chairman. I am deeply 
honored to appear before you. I am deeply honored to have been 
nominated for a position on the Supreme Court, and I am humbled 
to have been nominated for the seat that is now held by Justice 
O'Connor. Justice O'Connor has been a pioneer, and her 
dedicated service of the Supreme Court will never be forgotten, 
and the people of the country certainly owe her a great debt 
for the service that she has provided.

    I am very thankful to the President for nominating me, and 
I am also thankful to the members of this Committee and many 
other Senators who took time from their busy schedules to meet 
with me. That was a great honor for me, and I appreciate all of 
the courtesies that were extended to me during those visits. 
And I want to thank Senator Lautenberg and Governor Whitman for 
coming here today and for their kind introductions.

    During the previous weeks, an old story about a lawyer who 
argued a case before the Supreme Court has come to my mind, and 
I thought I might begin this afternoon by sharing that story. 
The story goes as follows:

    This was a lawyer who had never argued a case before the 
Court before, and when the argument began, one of the Justices 
said, ``How did you get here?'' meaning how had his case worked 
its way up through the court system. But the lawyer was rather 
nervous, and he took the question literally, and he said--and 
this was some years ago. He said, ``I came here on the 
Baltimore and Ohio Railroad.''

    This story has come to my mind in recent weeks because I 
have often asked myself how in the world did I get here. And I 
want to try to answer that today and not by saying that I came 
here on I-95 or on Amtrak.

    I am who I am in the first place because of my parents and 
because of the things that they taught me, and I know from my 
own experience as a parent that parents probably teach most 
powerfully not through their words but through their deeds. And 
my parents taught me through the stories of their lives, and I 
don't take any credit for the things that they did or the 
things that they experienced. But they made a great impression 
on me.

    My father was brought to this country as an infant. He lost 
his mother as a teenager. He grew up in poverty. Although he 
graduated at the top of his high school class, he had no money 
for college, and he was set to work in a factory. But at the 
last minute, a kind person in the Trenton area arranged for him 
to receive a $50 scholarship, and that was enough in those days 
for him to pay the tuition at a local college and buy one used 
suit. And that made the difference between his working in a 
factory and going to college.

    After he graduated from college, in 1935, in the midst of 
the Depression, he found that teaching jobs for Italian-
Americans were not easy to come by, and he had to find other 
work for a while. But eventually he became a teacher, and he 
served in the Pacific during World War II, and he worked, as 
has been mentioned, for many years in a nonpartisan position 
for the New Jersey Legislature, which was an institution that 
he revered.

    His story is a story that is typical of a lot of Americans, 
both back in his day and today, and it is the story, as far as 
I can see it, about the opportunities that our country offers 
and also about the need for fairness and about hard work and 
perseverance and the power of a small good deed.

    My mother is a first-generation American. Her father worked 
in the Roebling Steel Mill in Trenton, New Jersey. Her mother 
came from a culture in which women generally did not even leave 
the house alone, and yet my mother became the first person in 
her family to get a college degree. She worked for more than a 
decade before marrying. She went to New York City to get a 
master's degree, and she continued to work as a teacher and a 
principal until she was forced to retire. Both she and my 
father instilled in my sister and me a deep love of learning.

    I got here in part because of the community in which I grew 
up. It was a warm but definitely an unpretentious, down-to-
earth community. Most of the adults in the neighborhood were 
not college graduates. I attended the public schools. In my 
spare time, I played baseball and other sports with my friends. 
And I have happy memories and strong memories of those days and 
good memories of the good sense and the decency of my friends 
and my neighbors.

    And after I graduated from high school, I went a full 12 
miles down the road, but really to a different world, when I 
entered Princeton University. A generation earlier, I think 
that somebody from my background probably would not have felt 
fully comfortable at a college like Princeton, but by the time 
I graduated from high school, things had changed. And this was 
a time of great intellectual excitement for me. Both college 
and law school opened up new worlds of ideas. But this was back 
in the late 1960s and early 1970s. It was a time of turmoil at 
colleges and universities. And I saw some very smart people and 
very privileged people behaving irresponsibly, and I couldn't 
help making a contrast between some of the worst of what I saw 
on the campus and the good sense and the decency of the people 
back in my own community.

    I am here in part because of my experiences as a lawyer. I 
had the good fortune to begin my legal career as a law clerk 
for a judge who really epitomized open-mindedness and fairness. 
He read the record in detail in every single case that came 
before me. He insisted on scrupulously following precedents, 
both the precedents of the Supreme Court and the decisions of 
his own court, the Third Circuit. He taught all of his law 
clerks that every case has to be decided on an individual 
basis, and he really didn't have much use for any grand 
theories.

    After my clerkship finished, I worked for more than a 
decade as an attorney in the Department of Justice, and I can 
still remember the day as an Assistant U.S. Attorney when I 
stood up in court for the first time and I proudly said, ``My 
name is Samuel Alito, and I represent the United States in this 
court.'' It was a great honor for me to have the United States 
as my client during all of those years.

    I have been shaped by the experiences of the people who are 
closest to me, by the things I have learned from Martha; by my 
hopes and my concerns for my children, Phillip and Laura; by 
the experiences of members of my family, who are getting older; 
by my sister's experiences as a trial lawyer in a profession 
that has traditionally been dominated by men. And, of course, I 
have been shaped for the last 15 years by my experiences as a 
judge of the court of appeals.

    During that time, I have sat on thousands of cases. 
Somebody mentioned the exact figure this morning. I don't know 
what the exact figure is, but it is way up in the thousands. 
And I have written hundreds of opinions. And the members of 
this Committee and the members of their staff who have had the 
job of reviewing all of those opinions really have my sympathy.

    [Laughter.]

    Judge Alito. I think that may have constituted cruel and 
unusual punishment.

    I have learned a lot during my years on the Third Circuit, 
particularly, I think, about the way in which a judge should go 
about the work of judging. I have learned by doing, by sitting 
on all of these cases, and I think I have also learned from the 
examples of some really remarkable colleagues.

    When I became a judge, I stopped being a practicing 
attorney, and that was the big change in role. The role of a 
practicing attorney is to achieve a desirable result for the 
client in the particular case at hand. But a judge can't think 
that way. A judge can't have any agenda. A judge can't have any 
preferred outcome in any particular case. And a judge certainly 
doesn't have a client. The judge's only obligation--and it's a 
solemn obligation--is to the rule of law, and what that means 
is that in every single case, the judge has to do what the law 
requires.

    Good judges develop certain habits of mind. One of those 
habits of mind is the habit of delaying reaching conclusions 
until everything has been considered. Good judges are always 
open to the possibility of changing their minds based on the 
next brief that they read or the next argument that is made by 
an attorney who is appearing before them or a comment that is 
made by a colleague during the conference on the case, when the 
judges privately discuss the case.

    It has been a great honor for me to spend my career in 
public service. It has been a particular honor for me to serve 
on the court of appeals for these past 15 years because it has 
given me the opportunity to use whatever talent I have to serve 
my country by upholding the rule of law. And there is nothing 
that is more important for our Republic than the rule of law.

    No person in this country, no matter how high or powerful, 
is above the law, and no person in this country is beneath the 
law.

    Fifteen years ago, when I was sworn in as a judge of the 
court of appeals, I took an oath. I put my hand on the Bible 
and I swore that I would administer justice without respect to 
persons, that I would do equal right to the poor and to the 
rich, and that I would carry out my duties under the 
Constitution and the laws of the United States. And that is 
what I have tried to do to the very best of my ability for the 
past 15 years, and if I am confirmed, I pledge to you that that 
is what I would do on the Supreme Court.

    Thank you.

    Chairman Specter. Thank you very much, Judge Alito, for 
those opening comments.

    We will adjourn at this point, and we will resume tomorrow 
morning at 9:30, when we will start the first round of 
questioning with each Senator on round one having 30 minutes.

    [Whereupon, at 3:40 p.m., the Committee was adjourned.]
    [The biographical information of Judge Alito follows.] 
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 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                       TUESDAY, JANUARY 10, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. The Judiciary Committee will now proceed 
with the confirmation hearing of Judge Alito for the Supreme 
Court.
    Before beginning the first round of questioning, just a 
little review as to our procedure. As announced, there will be 
a 30-minute allocation for each Senator. We intend to work 
rather late this afternoon, perhaps even into the early 
evening. I do not know that it is possible to complete the 
first round of questioning today. That would be a good 
objective. We will see how it goes.
    Judge Alito, you are free to let us know whenever you want 
to break. We will take a couple of breaks at the midpoint of 
the morning and the afternoon, but there are 18 of us and only 
one of you, so when you would like a break, your schedule takes 
precedence over ours.
    Before beginning the opening round, let me yield to my 
colleague, Senator Leahy, to see if he has some additional 
comments.
    Senator Leahy. I thank you, Mr. Chairman. I also appreciate 
the fact we have kept to the clock. I think it has been 
helpful, and I would hope that Judge Alito would bear with us 
on that. We will have a lot of questions. I think to take the 
time to get to them all--you have always been accommodating 
about that--I think that that requires cooperation on both 
sides of the dais.
    We do have the advantage, Mr. Chairman, that we did not 
have with Judge Roberts's hearings, that we are not in session 
and we are not going to be interrupted by votes, and we have 
the time to do it. I would hope that we do not go into a 
marathon for both his sake and us older guys' sake. But I do 
appreciate that you have run this with fairness and even-
handedness, and I appreciate that.
    Chairman Specter. Since there are no older guys involved or 
gals, we can consider the marathon, but we will keep it within 
bounds. You can start the clock. I will maintain the clock 
meticulously, as we have maintained timing as our Judiciary 
Committee practice.
    Judge Alito, you will be faced with many, many questions on 
many topics. I am going to start today with a woman's right to 
choose, move to Executive power, and then hopefully within the 
30 minutes pick up congressional power.
    Starting with a woman's right to choose, Judge Alito, do 
you accept the legal principles articulated in Griswold v. 
Connecticut, that the Liberty Clause and the Constitution 
carries with it the right to privacy?
    Judge Alito. Senator, I do agree that the Constitution 
protects a right to privacy, and it protects the right to 
privacy in a number of ways. The Fourth Amendment certainly 
speaks to the right of privacy. People have a right to privacy 
in their homes and in their papers, and in their persons. And 
the standard for whether something is a search is whether 
there's an invasion of a right to privacy, a legitimate 
expectation of privacy.
    Chairman Specter. Well, Griswold dealt with the right to 
privacy on contraception for married women. Do you agree with 
that?
    Judge Alito. I agree that Griswold is now I think 
understood by the Supreme Court as based on the Liberty Clauses 
of the Due Process Clause of the Fifth Amendment and the 14th 
Amendment.
    Chairman Specter. Do you agree also with Eisenstadt which 
carried forward Griswold to single people?
    Judge Alito. I do agree with the result in Eisenstadt.
    Chairman Specter. Let me move now directly into Casey v. 
Planned Parenthood, and picking up the gravamen of Casey as it 
has applied, Roe on the woman's right to choose, originating 
from the Privacy Clause with Griswold being its antecedent, and 
I want to take you through some of the specific language of 
Casey to see what your views are, and what weight you would 
ascribe to this rationale as you would view the woman's right 
to choose. In Casey the joint opinion said, ``People have 
ordered their thinking and lives around Roe. To eliminate the 
issue of reliance would be detrimental. For two decades of 
economic and social development people have organized intimate 
relationships and reliance on the availability of abortion in 
the event contraception should fail.'' Pretty earthy language, 
but that is the Supreme Court's language. The Court went on to 
say, ``The ability of women to participate equally in the 
economic and social life of the Nation has become facilitated 
by their ability to control their reproductive lives.''
    Now that states in specific terms the principle of 
reliance, which is one of the mainstays, if not the mainstay, 
on stare decisis precedent to follow tradition. How would you 
weigh that consideration on the woman's right to choose?
    Judge Alito. Well, I think the doctrine of stare decisis is 
a very important doctrine. It's a fundamental part of our legal 
system, and it's the principle that courts in general should 
follow their past precedents, and it's important for a variety 
of reasons. It's important because it limits the power of the 
judiciary. It's important because it protects reliance 
interest, and it's important because it reflect the view that 
courts should respect the judgments and the wisdom that are 
embodied in prior judicial decisions. It's not an inexorable 
command, but it is a general presumption that courts are going 
to follow prior precedents, and as you mentioned--
    Chairman Specter. How do you come to grips with the 
specifics where the Court, in the joint opinion, spoke of 
reliance on the availability of abortion in the event 
contraception should fail, on that specific concept of 
reliance?
    Judge Alito. Well, reliance is, as you mentioned, Mr. 
Chairman, one of the important foundations of the doctrine of 
stare decisis. It is intended to protect reliance interests, 
and people can rely on judicial decisions in a variety of ways. 
There can be concrete economic reliance. Government 
institutions can be built up in reliance on prior decisions. 
Practices of agencies and Government officials can be molded 
based on reliance. People can rely on decisions in a variety of 
ways. In my view--
    Chairman Specter. Let me move on to another important 
quotation out of Casey. Quote: ``A terrible price would be paid 
for overruling Casey, for overruling Roe. It would seriously 
weaken the Court's capacity to exercise the judicial power and 
to function as the Supreme Court of a Nation dedicated to the 
rule of law, and to overrule Roe under fire would subvert the 
Court's legitimacy.''
    Do you see the legitimacy of the Court being involved in 
the precedent of Casey?
    Judge Alito. Well, I think that the Court, and all the 
courts, the Supreme Court, my court, all the Federal courts, 
should be insulated from public opinion. They should do what 
the law requires in all instances. That's why they're not--
that's why the members of the judiciary are not elected. We 
have a basically democratic form of Government, but the 
judiciary is not elected, and that's the reason, so that they 
don't do anything under fire. They do what the law requires.
    Chairman Specter. But do you think there is as fundamental 
a concern as legitimacy of the Court would be involved if Roe 
were to be overturned?
    Judge Alito. Mr. Chairman, I think that the legitimacy of 
the Court would be undermined in any case if the Court made a 
decision based on its perception of public opinion. It should 
make its decisions based on the Constitution and the law. It 
should not be--it should not sway in the wind of public opinion 
at any time.
    Chairman Specter. Let me move to just the final quotation 
that I intend to raise from Casey, and it is, ``After nearly 20 
years of litigation in Roe's wake, we are satisfied that the 
immediate question is not the soundness of Roe's resolution of 
the issue, but the precedentual force that must be accorded to 
its holding.'' That separates out the original soundness of 
Roe, which has been criticized, and then lays emphasis on the 
precedentual value. How would you weigh that consideration were 
this issue to come before you if confirmed?
    Judge Alito. Well, I agree that in every case in which 
there is a prior precedent, the first issue is the issue of 
stare decisis, and the presumption is that the Court will 
follow its prior precedents. There needs to be a special 
justification for overruling a prior precedent.
    Chairman Specter. Let me turn to an analogous situation, 
and that is Chief Justice Rehnquist's change of heart on the 
Miranda ruling. In 1974 in the case of Michigan v. Tucker, he 
was then Justice Rehnquist, wrote an opinion severely limiting 
Miranda, in effect stating he did not like it. Then in the year 
2000 in the case of United States v. Dickerson, Chief Justice 
Rehnquist wrote an opinion of holding Miranda, and he did that 
because, ``Miranda was embedded in the routine police practices 
to a point where the warnings have become a part of our 
National culture.''
    Now, there has been an analogy made from what Chief Justice 
Rehnquist said on the Miranda issue to the Roe issue. How would 
you evaluate the consideration of Roe being embedded in the 
culture of our society?
    Judge Alito. Well, I think that Chief Justice Rehnquist 
there was getting at a very important point, and--
    Chairman Specter. Think he was right?
    Judge Alito. I think he was getting at--he was right in 
saying that reliance can take many forms. It can take a very 
specific and concrete form, and there can be reliance in the 
sense that he was talking about there, and I think what he's 
talking about there is that a great many people, and in that 
instance, police departments around the country, over a long 
period of time, had adapted to the Miranda rule, had 
internalized it. I think that all the branches of Government 
had become familiar with it and comfortable with it, and had 
come to regard it as a good way--after a considerable breaking 
in period--a good way of dealing with a difficult problem, and 
the problem was how to deal with interrogations leading to 
confessions, in terms of--
    Chairman Specter. Judge Alito, let me move to the 
dissenting opinion by Justice Harlan in Poe v. Ullman, where he 
discusses the constitutional concept of liberty and says, ``The 
traditions from which liberty developed, that tradition is a 
living thing.'' Would you agree with Justice Harlan that the 
Constitution embodies the concept of a living thing?
    Judge Alito. I think the Constitution is a living thing in 
the sense that matters, and that is that it is--it sets up a 
framework of Government and a protection of fundamental rights 
that we have lived under very successfully for 200 years, and 
the genius of it is that it is not terribly specific on certain 
things. It sets out some things are very specific, but it sets 
out some general principles, and then leaves it for each 
generation to apply those to the particular factual situations 
that come up.
    Chairman Specter. Would you agree with Cardozo on Palco 
that it represents the values of a changing society?
    Judge Alito. The liberty component of the Fifth Amendment 
and the 14th Amendment, which I was talking about earlier, 
embody the deeply rooted traditions of the country, and it's up 
to each--those traditions and those rights apply to new factual 
situations that come up. As times change, new factual 
situations come up, and the principles have to be applied to 
those situations. The principles don't change. The Constitution 
itself doesn't change, but the factual situations change, and 
as new situations come up, the principles and the rights have 
to be applied to them.
    Chairman Specter. Judge Alito, the commentators have 
characterized Casey as a super precedent. Judge Luttig, in the 
case of Richmond Medical Center, called the Casey decision 
super stare decisis. In quoting from Casey, Judge Luttig 
pointed out, the essential holding of Roe v. Wade should be 
retained and once again reaffirmed. Then in support of Judge 
Luttig's conclusion that Casey was super stare decisis, he 
refers to Stenberg v. Carhart, and quotes the Supreme Court, 
saying, ``We shall not revisit these legal principles.'' That 
is a pretty strong statement for the Court to make, that we 
shall not revisit the principles upon which Roe was founded, 
and the concept of super stare decisis or super precedent 
arises as the commentators have characterized it, by a number 
of different Justices appointed by a number of different judges 
over a considerable period of time. Do you agree that Casey is 
a super precedent or a super stare decisis as Judge Luttig 
said?
    Judge Alito. Well, I personally would not get into 
categorizing precedents as super precedents or super duper 
precedents, or any--
    Chairman Specter. Did you say ``super duper?''
    [Laughter.]
    Judge Alito. Right.
    Chairman Specter. Good.
    Judge Alito. Any sort of categorization like that--
    Chairman Specter. I like that.
    [Laughter.]
    Judge Alito [continuing]. Sort of reminds me of the size of 
laundry detergent in the supermarket.
    [Laughter.]
    Judge Alito. I agree with the underlying thought that when 
a precedent is reaffirmed, that strengthens the precedent, and 
when the Supreme Court says that we are not--
    Chairman Specter. How about being reaffirmed 38 times?
    Judge Alito. Well, I think that when a precedent is 
reaffirmed, each time it's reaffirmed that is a factor that 
should be taken into account in making the judgment about stare 
decisis, and when a precedent is reaffirmed on the ground that 
stare decisis precludes or counsels against reexamination of 
the merits of the precedent, then I agree that that is a 
precedent on precedent.
    Now, I don't want to leave the impression that stare 
decisis is an inexorable command because the Supreme Court has 
said that it is not, but it is a judgment that has to be based, 
taking into account all of the factors that are relevant and 
that are set out in the Supreme Court's cases.
    Chairman Specter. Judge Alito, during the confirmation 
hearing of Chief Justice Roberts, I displayed a chart. I do not 
ordinarily like charts, but this one I think has a lot of 
weight because it lists all 38 cases which have been decided 
since Roe, where the Supreme Court of the United States had the 
opportunity to--Senator Hatch is in the picture now.
    [Laughter.]
    Chairman Specter. It is a good photo op for Senator Hatch. 
Senator Leahy is complaining.
    [Laughter.]
    Senator Leahy. Just balance it on Orrin's head.
    Senator Hatch. Put that over by Leahy.
    Chairman Specter. He wants it on his side.
    [Laughter.]
    Chairman Specter. I think the point of it is that there 
have been so many cases, so many cases, 15 after your statement 
in 1985 that I am about to come to, and eight after Casey v. 
Planned Parenthood, which is why it has special significance, 
and I am not going to press the point about super precedent. I 
am glad I did not have to mention super duper, that you did. 
Thank you very much.
    Let me come now to the statement you made in 1985, that the 
Constitution does not provide a basis for a woman's right to an 
abortion. Do you agree with that statement today, Judge Alito?
    Judge Alito. Well, that was a correct statement of what I 
thought in 1985 from my vantage point in 1985, and that was as 
a line attorney in the Department of Justice in the Reagan 
administration.
    Today if the issue were to come before me, if I am 
fortunate enough to be confirmed and the issue were to come 
before me, the first question would be the question that we've 
been discussing, and that's the issue of stare decisis. And if 
the analysis were to get beyond that point, then I would 
approach the question with an open mind, and I would listen to 
the arguments that were made.
    Chairman Specter. So you would approach it with an open 
mind notwithstanding your 1985 statement?
    Judge Alito. Absolutely, Senator. That was a statement that 
I made at a prior period of time when I was performing a 
different role, and as I said yesterday, when someone becomes a 
judge, you really have to put aside the things that you did as 
a lawyer at prior points in your legal career and think about 
legal issues the way a judge thinks about legal issues.
    Chairman Specter. Judge Alito, coming to the role you had 
in the Solicitor General's Office, where you wrote the 
memorandum in the Thornburgh case, urging restriction and 
ultimate appeal of Roe, that was in your capacity as an 
advocate. And I have seen your other statements that the role 
of an advocate is different from the role of a judge. But when 
you made the statement that the Constitution did not provide 
for the right to an abortion, that was in a statement you made 
where you were looking to get a job, a promotion within the 
Federal Government. So there is a little difference between the 
1985 statement and your advocacy role in the Thornburgh 
memorandum, is there not?
    Judge Alito. Well, there is, Senator, and what I said was 
that that was a true expression of my views at the time, the 
statement in the 1985 appointment form that I filled out. It 
was a statement that I made at a time when I was a line 
attorney in the Department of Justice. I'm not saying that I 
made the statement simply because I was advocating the 
administration's position, but that was the position that I 
held at the time, and that was the position of the 
administration.
    Chairman Specter. Would you state your views, the 
difference as you see it between what you did as an advocate in 
the Solicitor General's Office to what your responsibilities 
would be, are on the Third Circuit, or what they would be on 
the Court if confirmed as a judicial capacity?
    Judge Alito. Well, an advocate has the goal of achieving 
the result that the client wants within the bounds of 
professional responsibility. That's what an advocate is 
supposed to do, and that's what I attempted to do during my 
years as an advocate for the Federal Government. Now, a judge 
doesn't have a client, as I said yesterday, and a judge doesn't 
have an agenda, and a judge has to follow the law. An important 
part of the law in this area, as we look at it in 2006, is the 
law of stare decisis.
    Chairman Specter. Judge Alito, you have written some 361 
opinions that I would like to have the time to discuss quite a 
few of them with you, but I am only going to pick up one in the 
first round, and that is an opinion you wrote in the Elizabeth 
Blackwell Health Center for Women v. Knoll, and that was a case 
where there was a challenge between a Pennsylvania statute, 
which required as a prerequisite to a woman getting Medicaid, 
that she would have had to have reported a rape or an incest to 
the police, and second, a requirement that there be a second 
opinion from a doctor that she needed an abortion to save her 
life. And that statutory requirement, those two provisions 
conflicted with a regulation by the Department of Health and 
Human Services. You were on the Third Circuit, which held that 
the Pennsylvania statute should be stricken in deference to the 
rule of the Health and Human Services Department. And Judge 
Nygaard entered a very forceful dissent saying that this was an 
interpretive rule and it was inappropriate to have that kind of 
an interpretive rule by the Department countervail a statute.
    What was your thinking in that case? Had you been 
predisposed to take a tough line on a woman's right to choose 
or on Medicaid support for someone who had been raped, you 
would have upheld the statute. What was your thinking in that 
case?
    Judge Alito. Well, what you said is correct, Senator. I 
cast the deciding vote there to strike down the Pennsylvania 
statute, and I did it because that's what I thought the law 
required. I thought the law required that we defer to the 
interpretation of the Federal statute that had been made by the 
Department of Health and Human Services. If I had had an agenda 
to strike down any--I'm sorry, to uphold any regulation of 
abortion that came up in any case that was presented to me, 
then I would have voted with Judge Nygaard in that case, and 
that would have turned the decision the other way.
    I've sat on three abortion cases on the Third Circuit. In 
one of them--that was the Casey case--I voted to uphold 
regulations of abortion, and in the other two--the Elizabeth 
Blackwell case and Planned Parenthood v. Farmer--I voted to 
strike them down. And in each instance, I did it because that's 
what I thought the law required.
    Chairman Specter. Judge Alito, I want to turn now to 
Executive power and to ask you first if you agree with the 
quotation from Justice Jackson's concurrence in the Youngstown 
Steel seizure case about the evaluation of Presidential power 
that I cited yesterday.
    Judge Alito. I do. I think it provides a very useful 
framework, and it has been used by the Supreme Court in a 
number of important subsequent cases, in the Dames and Moore, 
for example, involving the release of the hostages from Iran. 
And it doesn't answer every question that comes up in this 
area, but it provides a very useful way of looking at them.
    Chairman Specter. Do you agree with Justice O'Connor's 
statement quoted frequently yesterday from Hamdi that, ``We 
have long since made clear that a state of war is not a blank 
check for the President when it comes to the rights of the 
Nation's citizens,'' when she was citing the Youngstown case? 
Do you agree with that?
    Judge Alito. Absolutely. That's a very important principle. 
Our Constitution applies in times of peace and in times of war, 
and it protects the rights of Americans under all 
circumstances.
    Chairman Specter. You made a speech at Pepperdine where you 
said, in commenting about the decision of the Supreme Court in 
Ex Parte Milligan, that ``The Constitution applies even in an 
extreme emergency.'' The Government made a ``broad and unwise 
argument'' that the Bill of Rights simply doesn't apply during 
wartime.
    Do you stand by that statement?
    Judge Alito. I certainly do, Senator. The Bill of Rights 
applies at all times, and it's particularly important that we 
adhere to the Bill of Rights in times of war and in times of 
national crisis, because that's when there's the greatest 
temptation to depart from them.
    Chairman Specter. Steering clear, Judge Alito, of asking 
you how you would decide a specific case, I think it is very 
important to find out your jurisprudential approach in 
interpreting whether the September 14, 2001, congressional 
resolution authorizing the use of force constituted 
congressional authorization for the National Security Agency to 
engage in electronic surveillance where one party to the 
conversation was in the United States. Let me take just a 
moment to lay out the factual and legal considerations.
    The Foreign Intelligence Surveillance Act of 1978 provides 
it ``shall be the exclusive means by which electronic 
surveillance shall be conducted and the interpretation of 
domestic wire, oral, and electronic communications may be 
conducted.'' The Government contends that the Foreign 
Intelligence Surveillance Act clause, ``except as authorized by 
statute, opens the door to interpreting that resolution to 
authorize the surveillance.''
    Let me give you a series of questions. I don't like to put 
more than one on the table at a time, but I think they are 
necessary in this situation to give the structure as to where I 
am going.
    First, in interpreting whether Congress intended to amend 
FISA by that resolution, would it be relevant that Attorney 
General Gonzales said we were advised that ``that was not 
something we could likely get.''
    Second, if Congress had intended to amend FISA by the 
resolution, wouldn't Congress have specifically said so, as 
Congress did in passing the PATRIOT Act, giving the Executive 
greater flexibility in using roving wiretaps?
    Third, in interpreting statutory construction on whether 
Congress intended to amend FISA by the resolution, what would 
the relevance be of rules of statutory construction that repeal 
or change by implication--that changes by--makes the repeal by 
implication or disfavor, and specific statutory language trumps 
more general pronouncements? How would you weigh and evaluate 
the President's war powers under Article II to engage in 
electronic surveillance with the warrant required by 
congressional authority under Article I in legislating under 
the Foreign Intelligence Surveillance Act? And let me start 
with the broader principles.
    In approaching an issue as to whether the President would 
have Article II powers, inherent constitutional authority to 
conduct electronic surveillance without a wiretap, when you 
have the Foreign Intelligence Surveillance Act on the books, 
making that the exclusive means, what factors would you weigh 
in that format?
    Judge Alito. Well, probably the first consideration would 
be to evaluate the statutory question, and you outlined some of 
the factors and the issues that would arise in interpreting the 
statute, what is meant by the provision of FISA that you quoted 
regarding FISA--the Foreign Intelligence Surveillance Act--
being the exclusive means for conducting surveillance. And 
then, depending on how one worked through that statutory 
question, then I think one might look to Justice Jackson's 
framework. And he said that he divided cases in this area into 
three categories where the President acts with explicit or 
implicit congressional approval, where the President acts and 
Congress has not expressed its view on the matter one way or 
the other, and the final category where the President exercises 
Executive power and Congress--and that is in the face of an 
explicit or implicit congressional opposition to it. And 
depending on how one worked through the statutory issue, then 
the case might fall into one of those three areas.
    But these questions that you pose are obviously very 
difficult and important and complicated questions that are 
quite likely to arise in litigation, perhaps before my own 
court or before the Supreme Court.
    Chairman Specter. Before pursuing that further--and we will 
have a second round--I want to broach one other issue with you. 
My time is almost up. That is, in the memorandum you wrote back 
on February 5, 1986, about the President's power to put a 
signing statement on to influence interpretation of the 
legislation, you wrote this: ``Since the President's approval 
is just as important as that of the House or Senate, it seems 
to follow that the President's understanding of the bill should 
be just as important as that of Congress.''
    Is that really true when you say the President's views are 
as important as Congress's? The President can express his views 
by a veto and then gives Congress the option of overriding a 
veto, which Congress does not have if the President makes a 
signing declaration and seeks to avoid the terms of the 
statute. And we have the authority from the Supreme Court that 
the President cannot impound funds, cannot pick and choose on 
an appropriation. We have the line item veto case where the 
President cannot strike a provision even when authorized by 
Congress.
    Well, I have got 10 second left. I guess when my red light 
goes on, it does not affect you. You can respond. Care to 
comment?
    [Laughter.]
    Judge Alito. I do, Senator. I think the most important part 
of the memo that you are referring to is a fairly big section 
that discussed theoretical problems, and it consists of a list 
of questions, and many of the questions are the questions that 
you have just raised. In that memo, I said this is an 
unexplored area, and here are the theoretical questions that--
and, of course, they are of more than theoretical importance--
that arise in this area.
    That memo is labeled a rough first effort at stating the 
position of the administration. I was writing there on behalf 
of a working group that was looking into the question of 
implementing a decision that had already been made by the 
Attorney General to issue signing statements for the purpose of 
weighing in on the meaning of statutes. And in this memo--as I 
said, it was a rough first effort, and the biggest part of it, 
to my mind, was the statement there are difficult theoretical 
interpretive questions here and here they are. And had I 
followed up on it--and I don't believe I had the opportunity to 
pursue this issue further during my time in the Justice 
Department--it would have been necessary to explore all those 
questions.
    Chairman Specter. Well, my red light went on.
    Senator Leahy?
    Senator Leahy. Well, Judge, good morning.
    Judge Alito. Good morning, Senator.
    Senator Leahy. You survived yesterday listening to us. Now 
we have a chance to listen to you. I will have further 
questions on the memo that Senator Specter spoke of, but it 
gets beyond the theoretical. The last few weeks, we have seen 
it well played out in the press where the President and Senator 
John McCain negotiated rather publicly an amendment, which 
passed overwhelmingly in the House and the Senate, outlawing 
the use of torture by United States officers, yet the President 
in a signing statement implies that it will not apply to him or 
to those under his command as commander in chief. Doesn't that 
get well beyond a theoretical issue there?
    Judge Alito. It is, and I think I said in answering the 
Chairman that there are theoretical issues but they have 
considerable practical importance. But the theoretical issues 
really have to be explored and resolved. I don't believe the 
Supreme Court has done that up to this point. I have not had 
occasion in my 15-plus years on the Third Circuit to come to 
grips with the question of what is the significance of a 
Presidential signing statement in interpreting a statute.
    Senator Leahy. Let me follow with a related issue. I feel 
one of the most important functions of the Supreme Court is to 
stop our Government from intruding into Americans' privacy or 
our freedom or our personal decisions. In my State of Vermont, 
we value our privacy very, very much. I think most Americans do 
automatically, and many times they have to go to the courts to 
make sure that the Government does not--whatever part of the 
Government it is, whatever administration it might be--that 
they do not overreach in going into that privacy.
    Three years ago, the Office of Legal Counsel at the Justice 
Department--and you are familiar with that; you worked there 
years ago--they issued a legal opinion, which they kept very 
secret, in which they concluded that the President of the 
United States had the power to override domestic and 
international laws outlawing torture. It said the President 
could override these laws outlawing torture.
    They tried to redefine torture, and they asserted, I quote, 
that the President enjoys ``complete authority over the conduct 
of war,'' and they went on further to say that if Congress 
passed a criminal law prohibiting torture ``in a manner that 
interferes with the President's direction of such core matters 
as detention and interrogation of enemy combatants,'' that 
would be unconstitutional. They seemed to say that the 
President could immunize people from any prosecution if they 
violated our laws on torture. And that remained the legal basis 
in this administration until somebody apparently at the Justice 
Department leaked it to the press and it became public. Once it 
became public, with the obvious reaction of Republicans, 
Democrats, everybody saying this is outrageous, it is beyond 
the pale, the administration withdrew that opinion as its 
position. The Attorney General even said in his confirmation 
that this no longer--no longer--represented Bush administration 
policy.
    What is your view--and I ask this because the memo has been 
withdrawn. It is not going to come before you. What is your 
view of the legal contention in that memo that the President 
can override the laws and immunize illegal conduct?
    Judge Alito. Well, I think the first thing that has to be 
said is what I said yesterday, and that is that no person in 
this country is above the law, and that includes the President 
and it includes the Supreme Court. Everybody has to follow the 
law, and that means the Constitution of the United States and 
it means the laws that are enacted under the Constitution of 
the United States.
    Now, there are questions that arise concerning Executive 
powers, and those specific questions have to be resolved, I 
think, by looking to that framework that Justice Jackson set 
out that I mentioned earlier.
    Senator Leahy. Well, let's go into one of those specifics. 
Do you believe the President has the constitutional authority 
as commander in chief to override laws enacted by Congress and 
to immunize people under his command from prosecution if they 
violate these laws passed by Congress?
    Judge Alito. Well, if we were in--if a question came up of 
that nature, then I think you'd be in where the President is 
exercising Executive power in the face of a contrary expression 
of congressional will through a statute or even an implicit 
expression of congressional will. You would be in what Justice 
Jackson called ``the twilight zone,'' where the President's 
power is at its lowest point, and I think you would have to 
look at the specifics of the situation. These are the gravest 
sort of constitutional questions that come up, and very often 
they don't make their way to the judiciary or they are not 
resolved by the judiciary. They are resolved by the other 
branches of the Government.
    Senator Leahy. But, Judge, I am a little bit troubled by 
this because you suggested, and I completely agreed with what 
you said, that no one is above the law and no one is beneath 
the law. You are not above the law, I am not, the President is 
not. But are you saying that there are situations where the 
President not only could be above the law passed by Congress, 
but could immunize others, thus putting them above the law?
    I mean, listen to what I am speaking to specifically. We 
passed a law outlawing certain conduct. The President in his 
Bybee memo, which has now been withdrawn, was saying that that 
law won't apply to me or people that I authorize. doesn't that 
place not only the President but anybody he wants above the 
law?
    Judge Alito. Senator, as I said, the President has to 
follow the Constitution and the laws and, in fact, one of the 
most solemn responsibilities of the President--and it is set 
out expressly in the Constitution--is that the President is to 
take care that the laws are faithfully executed, and that means 
the Constitution, it means statutes, it means treaties, it 
means all of the laws of the United States.
    But what I am saying is that sometimes issues of Executive 
power arise and they have to be analyzed under the framework 
that Justice Jackson set out. And you do get cases that are in 
this twilight zone and it is--they have to be decided when they 
come up based on the specifics of the situation.
    Senator Leahy. But are you saying that there could be 
instances where the President could not only ignore the law, 
but authorize others to ignore the law?
    Judge Alito. Well, Senator, if you are in that situation, 
you may have a question about the constitutionality of a 
congressional enactment. You have to know the specifics of--
    Senator Leahy. Let's assume there is not a question of the 
constitutionality of the enactment. Let's make it an easy one. 
We pass a law saying it is against the law to murder somebody 
here in the United States. Could the President authorize 
somebody, either from an intelligence agency or elsewhere, to 
go out and murder somebody and escape prosecution or immunize 
the person from prosecution, absent a Presidential pardon?
    Judge Alito. Neither the President nor anybody else, I 
think, can authorize someone to--can override a statute that is 
constitutional. And I think you are in this--when you are in 
the third category, under Justice Jackson, that is the issue 
which you are grappling with.
    Senator Leahy. But wouldn't it be constitutional for the 
Congress to outlaw Americans from using torture?
    Judge Alito. And Congress has done that, and it is 
certainly an expression of a very deep value of our country.
    Senator Leahy. And if the President were to authorize 
somebody to torture or say that he would immunize somebody from 
prosecution for doing that, he wouldn't have that power, would 
he?
    Judge Alito. Well, Senator, I think the important points 
are that the President has to follow the Constitution and the 
laws, and it is up to Congress to exercise its legislative 
power. But as to specific issues that might come up, I really 
need to know the specifics. I need to know what was done and 
why it was done, and hear the arguments on the issue.
    Senator Leahy. Let's go to some specifics. Senator Specter 
mentioned FISA and your role with FISA, the Foreign 
Intelligence Surveillance Act. Certainly, you had to be 
involved with it, and appropriately so, when you were a U.S. 
Attorney. This law came in after the abuses of the 1960s and 
1970s. We had had President Nixon's enemies list, with the 
government breaking into doctors' offices and wiretapping 
innocent Americans, and so on. After that, the Congress in a 
strong bipartisan effort passed the FISA legislation. We have 
that court which can handle applications in secret for wiretaps 
or surveillance, if necessary, for national security.
    Now, we have just learned that the President has chosen to 
ignore the FISA law and the FISA court. He has issued secret 
orders, and according to the press and the President's own 
press conference, time after time after time secret orders for 
domestically spying on American citizens without obtaining a 
warrant.
    Do you believe the President can circumvent the FISA law, 
and bypass the FISA court to conduct warrantless spying on 
Americans?
    Judge Alito. The President has to comply with the Fourth 
Amendment and the President has to comply with the statutes 
that are passed. This is an issue I was speaking about with 
Chairman Specter that I think is very likely to result in 
litigation in the Federal courts. It could be in my court. It 
certainly could get to the Supreme Court and there may be 
statutory issues involved--the meaning of the provision of FISA 
that you mentioned, the meaning certainly of the authorization 
for the use of military force--and those would have to be 
resolved.
    And in order to resolve them, I would have to know the 
arguments that are made by the contending parties. On what 
basis is it claimed that there is a violation? On what basis 
would the President claim that what occurred fell within the 
authorization of the authorization for the use of military 
force? And then if you got beyond that, there could be 
constitutional questions about the Fourth Amendment, whether it 
was a violation of the Fourth Amendment, whether it was the 
valid exercise of Executive power.
    Senator Leahy. But wouldn't the burden be on the Government 
to prove that it wasn't a violation of the Fourth Amendment if 
you were spying on Americans without a warrant, especially when 
you have courts set up--in this case the FISA court, which sets 
up a very easy procedure to get the warrant? Wouldn't the 
burden be on the Government in that case?
    Judge Alito. Well, Senator, I think the in first instance 
the Government would have to come forward with its theory as to 
why the actions that were taken were lawful. I think that is 
correct.
    Senator Leahy. Well, let me ask you another one. You are 
saying this may come before the Third Circuit or could come 
before the Supreme Court, and I will accept that. But how does 
somebody even get there? If you are conducting illegal secret 
spying on a person, how are they even going to know? Where are 
they going to get the standing to sue?
    Judge Alito. Certainly, if someone is the subject of a 
search and they claim that the search violates a statute or it 
violates the Constitution, then they would have standing to sue 
and they could sue in a Federal court that had jurisdiction.
    Senator Leahy. And I am not asking these as hypothetical 
questions, Judge. People are getting very concerned about this. 
We just found out, again not because the Government told us, 
but because the press found out about it--and thank God that we 
do have a free press because so much of the stuff that is 
supposed to be reported to Congress never is, and we first hear 
about it when it is in the press.
    But we found out that the Department of Defense is going 
around--and this makes me think of COINTELPRO during the 
Vietnam War--they are going around the country photographing 
and spying on people who are protesting the war in Iraq. They 
went, according to the press, and spied on Quakers in Vermont.
    Now, I don't know why they spent all that money to do that. 
If they want to find a Vermonter protesting the war, turn on C-
SPAN. I do it on the Senate floor all the time. But I know some 
of these Quakers. I mean, in the Quaker tradition, they have 
been protesting war throughout this country's history.
    Now, I worry about this culture we are getting, and I just 
want to make sure since Congress is not going to stand up and 
say no, and the administration certainly is authorizing this--I 
want to make sure that the courts are going to say we will 
respect your privacy, we will respect your Fourth Amendment 
rights.
    You know, if you have somebody who has been spied on, would 
you agree--and I think you did, but I want to make sure I am 
correct on this--do you agree that they should have a day in 
court?
    Judge Alito. Certainly. If someone has been the subject of 
illegal law enforcement activities, they should have a day in 
court and that is what the courts are there for, to protect the 
rights of individuals against the government and to--or anyone 
else who violates their rights. And they have to be absolutely 
independent and treat everybody equally.
    Senator Leahy. And those Fourth Amendment rights are pretty 
significant, are they not?
    Judge Alito. They are very significant.
    Senator Leahy. I think they set us apart from most other 
countries in the world, to our betterment. And you were a 
prosecutor; I was a prosecutor. I think we can agree even 
looking of our past professions that it protects us.
    Judge Alito. I agree, Senator. I tried to follow what the 
Fourth Amendment required when I was a prosecutor and I regard 
it as very important.
    Senator Leahy. Well, let me go back to the last time we saw 
Government excesses like this before FISA. When you worked in 
the Reagan administration, you argued to the Supreme Court that 
President Nixon's Attorney General should have absolute 
immunity for domestic spying without a warrant even in the case 
of willful misconduct. In your memo you said, ``I do not 
question that the Attorney General should have immunity, but 
for tactical reasons I would not raise the issue here.''
    Do you believe today that the Attorney General would be 
absolutely immune from civil liability for authorizing 
warrantless wiretaps?
    Judge Alito. No, he would not. That was settled in that 
case. The Supreme Court held that the Attorney General does not 
have--
    Senator Leahy. But you did believe so then?
    Judge Alito. Actually, I recommended that that argument not 
be made. It was made and I think it is important to understand 
the context of that. First of all--
    Senator Leahy. You did say in the memo, ``I do not question 
that the Attorney General should have this immunity.''
    Judge Alito. That is correct, and the background of that, 
if I could just explain very briefly--
    Senator Leahy. Sure.
    Judge Alito [continuing]. Is that we were--there, we were 
not just representing the Government; we were representing 
former Attorney General Mitchell in his individual capacity. He 
was being sued for damages and we were, in a sense, acting as 
his private attorney. And this was an argument that he wanted 
to make. This was an argument that had been made several times 
previously by the Department of Justice during the Carter 
administration and then just a couple of years earlier in 
Harlow v. Fitzgerald in the Reagan administration. And I said I 
didn't think it was a good idea to make the argument in this 
case, but I didn't dispute that it was an argument that was 
there.
    Senator Leahy. You don't have any question that the 
judiciary has a role to play here and there can be judicial 
checks on such things?
    Judge Alito. No. Absolutely, it is the job of the judiciary 
to enforce the Constitution.
    Senator Leahy. Let's go into a couple search cases, and I 
think we have indicated to you that we would bring these up--
Doe v. Groody, Baker v. Monroe Township. Those are unauthorized 
searches. In Doe, the police officers had a warrant for a man 
at a certain address. When they arrived, they found his wife 
and 10-year-old daughter. They were not in the warrant, they 
posed no threat. But the officers detained them and strip-
searched them, the wife and the 10-year-old, the 10-year-old 
girl.
    In Baker, a mother and her three teenage children were 
detained and searched when they arrived at the home of the 
mother's adult son. They didn't live there. They were not in 
the home. They were outside. They didn't pose a threat to the 
police, but they were ordered at gunpoint to lie on the ground. 
They were handcuffed, they were taken into the house and they 
were searched.
    In Doe, the strip-search case of the 10-year-old girl, the 
officers didn't ask for permission to search anybody beyond the 
man they were looking for. In fact, the magistrate didn't give 
a search warrant for anybody else. But you went beyond that and 
you said that they were justified in strip-searching this 10-
year-old and the mother. You went beyond the four corners of 
the search warrant the magistrate gave.
    And one of your members of the Third Circuit, Judge 
Chertoff, who is now the head of Homeland Security and a former 
prosecutor, criticized your reasoning. He said that it would 
come dangerously close to displacing the critical role of the 
independent magistrate.
    Do you continue to hold the position you took in your 
opinion or do you now agree with the majority that they are 
right and you are wrong?
    Judge Alito. Well, Senator, I haven't had occasion to think 
that what I said in that case was correct, but let me just 
explain what was going on there.
    Senator Leahy. Sure.
    Judge Alito. The issue there was whether--the first issue 
was whether the warrant authorized the search of people who 
were on the premises and that was the disagreement between me 
and the majority and it was a rather technical issue about 
whether the affidavit that was submitted by police officers was 
properly incorporated into the warrant for the purposes of 
saying who could be searched.
    And I thought that it was, and I thought that it was quite 
clear that the magistrate had authorized a search for people 
who were on the premises. That was the point of disagreement. I 
was not pleased that a young girl was searched in that case and 
I said so in my opinion. That was an undesirable thing, but the 
issue wasn't whether there should be some sort of rule of 
Fourth Amendment law that a minor can never be searched. And I 
think if we were to--
    Senator Leahy. But we both agree on that, Judge. The only 
reason I bring up these two cases is it seems in both of them 
you went beyond the four corners of the search warrant and you 
settled all issues in a light most favorable--the majority in 
the opinion didn't, but you did--in a light most favorable to 
law enforcement. In fact, in Baker, the majority said that.
    And I worry about this because I always worry that the 
courts must be there to protect individuals against an 
overreaching government. In this case, your position in the 
minority was that you protected what the majority felt was an 
overreaching government.
    Am I putting too strong an analysis on that?
    Judge Alito. I do think you are, Senator.
    Senator Leahy. OK.
    Judge Alito. I think you need to take into account what was 
going on here. The police officers prepared an affidavit and 
they said we have probable cause to believe that this drug 
dealer hides drugs on people who are on the premises. And 
therefore, when we search, we want authorization not just to 
search him, but to search everybody who is found on the 
premises because we think he hides--we have reason to believe 
he hides drugs there.
    And the magistrate who issued the warrant said that the 
affidavit was incorporated into the warrant for the purpose of 
establishing probable cause. And we are supposed to read 
warrants in a common-sense fashion because they are prepared by 
police officers for the most part, not by lawyers, and they are 
often prepared under a lot of time pressure.
    And it seemed to me that, reading this in a common-sense 
fashion, what the magistrate intended to do was to say, yes, 
you have authorization to do what you ask us to do. But even 
beyond that, the issue there was whether these police officers 
could be sued for damages, and they couldn't be sued for 
damages if a reasonable officer could have believed that that 
is what the magistrate intended to authorize. And I thought 
that surely a reasonable officer could view it that way. Now, 
Judge Chertoff looked at it differently and there are cases 
where reasonable people disagree, and that is all that was 
going on.
    Senator Leahy. I know. You look for what a reasonable 
officer would think--I spent 8 years in law enforcement. I 
don't know where any reasonable officer under those 
circumstances would feel they could strip-search a 10-year-old 
girl.
    Let me go into another area, and it is one that touched me 
in your statement yesterday. You spoke eloquently of your 
father's experience when he came to this country. The reason it 
touched me is I was thinking that, when my maternal 
grandparents emigrated to America, to Vermont, speaking only 
Italian, coming from Italy to a new country, I know some of the 
problems they faced--these people speaking this strange 
language. My mother was a child learning English when she went 
to school. People asking, ``Why don't they speak like us? Why 
are they different than us''; those were just some of the 
obstacles they faced.
    In my father's case, my paternal grandfather, whom I never 
knew, named Patrick Leahy, died as a stonecutter in Barre, 
Vermont. My father was a young teen and had to go to work to 
support his mother, my grandmother, whom I also never knew. And 
the signs then were ``No Irish Need Apply'' or ``No Catholics 
Need Apply.'' And I think you and I would be in total agreement 
that we are now at a different world in at least most of our 
country and that we are better people because we have done away 
with that.
    What we both understand, I think, in our core, I would 
hope, is what happens if you have either ethnic prejudice or 
religious prejudice. In my case, my father was a self-taught 
historian, but he never was able to finish high school. I was 
the first Leahy to get a college degree, my sister the next 
one.
    So with that in mind, there was something in your 
background that I was troubled with. That is the Concerned 
Alumni of Princeton University, CAP. This was a group that 
received attention because it was put together, but it resisted 
the admission of women and minorities to Princeton. They were 
hostile to what they felt were people that did not fit 
Princeton's traditional mold--women and minorities.
    Now, two prominent Princetonians--one, Bill Frist, who is 
now the Majority Leader of the United States Senate, in a 
committee, roundly criticized CAP. Bill Bradley, who had joined 
it and then found out what it was, left it, and roundly 
criticized it. And yet you, proudly in 1985, well after this 
criticism, in your job application, proudly wrote that you were 
a member of it, a member of Concerned Alumni of Princeton 
University, a conservative alumni group.
    Why, in heaven's name, Judge, with your background and what 
your father faced, why in heaven's name are you proud of being 
part of CAP?
    Judge Alito. Well, Senator, I have racked my memory about 
this issue, and I really have no specific recollection of that 
organization. But since I put it down on that statement, then I 
certainly must have been a member at that time. But if I had 
been actively involved in the organization in any way, if I had 
attended meetings or been actively involved in any way, I would 
certainly remember that, and I don't.
    I have tried to think of what might have caused me to sign 
up for membership, and if I did, it must have been around that 
time. And the issue that had rankled me about Princeton for 
some time was the issue of ROTC. I was in ROTC when I was at 
Princeton, and the unit was expelled from the campus. And I 
felt that was very wrong. I had a lot of friends who were 
against the war in Vietnam, and I respected their opinions, but 
I didn't think that it was right to oppose the military for 
that reason. And the issue, although the Army unit was 
eventually brought back, the Navy and the Air Force units did 
not come back, and the issue kept coming up. And there were 
people who were strongly opposed to having any unit on campus, 
and the attitude seemed to be that the military was a bad 
institution and that Princeton was too good for the military, 
and that Princeton would somehow be sullied if people in 
uniform were walking around the campus, that the courses didn't 
merit getting credit, that the instructors shouldn't be viewed 
as part of the faculty. And that was the issue that bothered me 
about that.
    Senator Leahy. But, Judge, with all due respect, CAP was 
most noted for the fact that they were worried that too many 
women and too many minorities were going to Princeton. In 1985, 
when everybody knew that is what they stood for, when a 
prominent Republican like Bill Frist and a prominent Democrat 
like Bill Bradley, both had condemned it, you, in your job 
application, proudly stated this as one of your credentials.
    Now, you strike me as a very cautious and careful person, 
and I say that with admiration, because a judge should be. But 
I cannot believe that at 35, when you are applying for a job, 
that you are going to be anything less than careful in putting 
together such a job application, and frankly, I do not know why 
that was a matter of pride for you at that time.
    My time is up. We will come back to this. I have other 
questions.
    Judge Alito. Well, Senator, as you said, from what I now 
know about the group, it seemed to be dedicated to the idea of 
bringing back the Princeton that existed at a prior point in 
time, and as you said, somebody from my background would not 
have been comfortable in an institution like that, and that 
certainly was not any part of my thinking in whatever I did in 
relation to this group.
    Senator Leahy. Or my background either, Judge, or my 
background either.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. Welcome, Judge Alito. We appreciate you and 
the service that you have given, but much has been made about 
your membership in an organization called the Concerned Alumni 
of Princeton. Now, you mentioned this organization in your 1985 
job application for a position in President Reagan's 
administration. And you have told us what you felt--you know 
about your membership in that organization. So is it fair to 
say that you were not a founding member?
    Judge Alito. I certainly was not a founding member.
    Senator Hatch. You were not a board member?
    Judge Alito. I was not a board member.
    Senator Hatch. Or, for that matter, you were not even an 
active member of the organization, to the best of your 
recollection?
    Judge Alito. I don't believe I did anything that was active 
in relation to this organization.
    Senator Hatch. Now, some have suggested, as my friend from 
Massachusetts did yesterday, that by your membership in this 
organization, you are somehow against the rights of women and 
minorities attending colleges. So let me just ask you directly 
on the record: Are you against women and minorities attending 
colleges?
    Judge Alito. Absolutely no, Senator, no.
    Senator Hatch. I felt that that would be your answer. I 
really did.
    [Laughter.]
    Senator Leahy. Tough question, Orrin. Tough question.
    Senator Hatch. It is a good question, though. It is one 
that kind of overcomes the implications that you were.
    Judge Alito. Senator, I had never attended a non-
coeducational school until I went to Princeton, and after I was 
there a short time, I realized the benefits of attending a co-
educational school.
    [Laughter.]
    Senator Hatch. Now, I am glad that you mentioned in your 
opening statement yesterday that a decade earlier, a person 
like yourself--and by this, I assume you meant someone of 
Italian ancestry.
    Judge Alito. I do, Senator, and someone not from any sort 
of exalted economic status.
    Senator Hatch. Modest background, son of an immigrant 
father, and a person who had gone to public school and might 
not have been fully welcomed sometimes at Princeton at that 
time. Now, people like me are not even sure of what an eating 
club is, but it sure as heck does not sound like a cafeteria.
    Judge Alito. No. It's something like a fraternity, except 
it's just a facility. It's a private facility where students 
eat. Traditionally, they were selective. They had a process 
like Vicker and they chose people that they thought fit in with 
the group.
    Senator Hatch. Sure.
    Judge Alito. And I did not choose to belong to an eating 
club. I belonged to a university facility called Stevenson 
Hall, which was named after Adlai Stevenson, and it was one of 
the most co-educational facilities on the campus. It was not 
selective. It was attractive to me because a lot of faculty 
members went there for lunch. There was a master who lived on 
the facility with his family, and it was an opportunity at 
dinner and lunch to talk to faculty members.
    Senator Hatch. Well, much has been written about the just 
and egalitarian changes that took place at Princeton and other 
elite institutions in the 1960s, making them more welcoming to 
persons without an elite background. It has been alleged by 
some--most prominently, I might add, by a Democratic witness 
who was withdrawn at the last minute because of some 
politically embarrassing comments that he made--that your 
membership in this group demonstrates your desire to maintain 
some old boys' network to the detriment of women and 
minorities. Could you comment on that particular suggestion?
    Judge Alito. I certainly had no such desire, and I think 
that what I did when I was a student at Princeton and my 
activities since then illustrate that.
    As I said, when I was at Princeton, I was a member of this 
university facility, and it was open to everybody, and it was 
one of the most co-educational facilities on the campus. And 
since graduating, I have actually been involved in a way in the 
admissions process. I was on the Schools Committee for a number 
of years and interviewed applicants to Princeton, and I think 
that shows my attitude toward the general way in which the 
university has been run.
    Senator Hatch. Well, ROTC programs are an excellent 
opportunity for young men and women to attend college and to 
serve their country through service in the armed forces. Now, 
there are actually more military officers who were ROTC 
students than went to West Point, the Naval Academy, or the Air 
Force Academy. Now, that includes the eminent Colin Powell.
    Now, you were a member of the ROTC; is that true?
    Judge Alito. I was, Senator.
    Senator Hatch. You were a proud member of the ROTC.
    Judge Alito. I was.
    Senator Hatch. Did you enjoy your time in the ROTC and in 
the Army afterward?
    Judge Alito. I was proud to be a member, and the unit was 
thrown off the campus after--well, the decision was made 
shortly after I joined the ROTC, and so I attended the ROTC 
classes on the campus during my junior year, but during my 
senior year the unit had been expelled from the campus, and I 
had to go to Trenton State College occasionally to finish up my 
ROTC work.
    Senator Hatch. I heard a report yesterday that the ROTC 
building on the Princeton campus was actually firebombed at 
about the same time that American servicemen of college age 
were fighting in Vietnam. Is that accurate?
    Judge Alito. That's correct. It was very extensively 
damaged.
    Senator Hatch. Was anybody injured?
    Judge Alito. I don't recall that anybody was injured, but 
certainly there's a serious risk of injury whenever an arson 
takes place.
    Senator Hatch. Now, Judge Alito, some Senators and left-
wing activist groups have focused on one case involving the 
Vanguard Company, claiming that your consideration of that case 
amounts to some kind of ethical lapse. Now, I would observe 
that the universal opinion is that you have unquestioned 
integrity and a record that is above reproach. I know we will 
hear from the American Bar Association later this week, but I 
know their highest rating includes the highest marks for 
integrity. In fact, I have a copy of their recommendations 
here.
    On the issue of integrity, it says, ``The matter of 
integrity is self-defining. A nominee's character and general 
reputation in the legal community are investigated, as are his 
or her industry and diligence. Judge Alito enjoys an excellent 
reputation for integrity and character, notwithstanding a 
widespread awareness of the Vanguard and Smith Barney recusal 
issues. During his personal interview with us, Judge Alito was 
asked about the recusal matter in detail, and he acknowledged 
at length that he takes the matter of recusal very seriously 
and that the cases had `slipped through' the court's screening 
process.''
    I won't read the whole matter, but let me just go toward 
the end. ``Judge Alito explained to the satisfaction of the 
Standing Committee the special circumstances that resulted in 
the screen not working or otherwise not being applied in these 
limited matters''--that is, the screening of cases--``and he 
further accepted responsibility for the errors. We accept his 
explanation and do not believe these matters reflect adversely 
on him. To the contrary, consistent and virtually unanimous 
comment from those interviewed included `He has the utmost 
integrity'; `he is a straight shooter, very honest, and calls 
them as he sees them'; `his reputation is impeccable'; `you can 
find no one with better integrity'; `his integrity and 
character are of the highest caliber'; `he is completely 
forthright and honest'; `his integrity is absolutely 
unquestionable'; `he is a man of great integrity.' ''
    ``On the basis of our interviews with Judge Alito with well 
over 300 judges, lawyers, and members of the legal community 
nationwide, all of whom know Judge Alito professionally, the 
Standing Committee concluded that Judge Alito is an individual 
of excellent integrity.''
    Now, the reason I want to go into this is to kind of get 
rid of this problem that I think is as phony as anything I have 
ever seen in my time around here. Like I say, this case has 
been written about or reported on for weeks in bits and pieces 
so that getting a clear picture of the facts is indeed a 
challenge, let alone getting a clear picture of the ethical 
issues involved as well. And I know you have not had a chance 
to respond to any of it publicly, so I want to give you that 
chance now.
    Now, please take a few minutes and briefly describe the 
facts of the case, and then I have a few questions on the 
issues that are raised by the case.
    Judge Alito. Thank you, Senator, and I appreciate the 
opportunity to address this because a lot has been said about 
it and very little by me. And I think that once the facts are 
set out, I think that everybody will realize that in this 
instance I not only complied with the ethical rules that are 
binding on Federal judges--and they're very strict--but also 
that I did what I have tried to do throughout my career as a 
judge, and that is to go beyond the letter of the ethics rules 
and to avoid any situation where there might be an ethical 
question raised.
    And this was a case where--this is a case that came up in 
2002, 12 years after I took the bench, and I acknowledge that 
if I had to do it over again, there are things that I would 
have done differently. And it's not because I violated any 
ethical standard, but it's because when this case first came 
before me, I did not focus on the issue of recusal and apply my 
own personal standard, which is to go beyond what the code of 
conduct for judges requires.
    This was a pro se case, and we take our pro se cases very 
seriously.
    Senator Hatch. By pro se, explain that.
    Judge Alito. It's a case where the plaintiff was not 
represented by a lawyer. She was representing--she was 
representing--
    Senator Hatch. Paying for her own counsel and represented 
herself.
    Judge Alito. She represented herself initially, and we take 
those very seriously. We give those just as much 
consideration--in fact, more consideration in many respects 
than we do with the cases without lawyers because we take into 
account that somebody who's representing himself or herself 
can't be expected to comply with all the legal technicalities.
    But for whatever reason, our court system for handling the 
monitoring of recusals in these pro se cases is different from 
the system that we use in the cases with lawyers. And maybe 
that's because recusal issues don't come up very often in pro 
se cases. But, in any event, in a case with a lawyer, before 
the case is ever sent to us, we receive what are known as 
clearance sheets, and those are--it's a stack of papers and it 
lists all the cases that the clerk's office is thinking of 
sending to us. It lists the parties in each case, and it lists 
the lawyers in each case. And it says, ``Do you need to recuse 
yourself in any of these cases?'' And this is the time when the 
judges and this is the time when I focus on the issue of 
recusal, and I look at each case. I look at the parties. I look 
at the lawyers. And I ask myself: Is there a reason why I 
should not participate in the case?
    Now, because this case, the Monga case, was a pro se case, 
it didn't come to me with clearance sheets. I just received the 
briefs, and it had been through our staff attorneys' office. 
They take a first look at the pro se cases, and they try to 
make sure--they try to translate the pro se arguments into the 
sort of legal arguments that lawyers would make to help the pro 
se litigants. And they give us a recommended disposition and a 
draft opinion.
    And when this came to me, I just didn't focus on the issue 
of recusal, and I sat on the initial appeal in the case. And 
then after the case was decided, I received a recusal motion. 
And I was quite concerned because I take my ethical 
responsibilities very seriously.
    So I looked into the question of whether I was required 
under the code--because I just wanted to see where the law was 
on this. Was I required under the code of conduct to recuse 
myself in this case? And it seemed to me that I was not. And a 
number of legal experts, experts on legal ethics, have now 
looked into this question, and their conclusion is no, I was 
not required to recuse.
    But I didn't stand on that because of my own personal 
policy of going beyond what the code requires, so I did recuse 
myself. And not only that, I asked that the original decision 
in the case be vacated, that is, wiped off the books and that 
the losing party in the case, the appellant, Ms. Monga, be 
given an entirely new appeal before an entirely new panel. And 
that was done.
    I wanted to make sure that she did not go away from this 
case with the impression that she had gotten anything less than 
an absolutely fair hearing. And then beyond that, I realized 
that the fact that this has slipped through in a pro se case 
pointed to a bigger problem, and that was the absence of 
clearance sheets.
    So since that time, I have developed my own forms that I 
use in my own chambers, and for pro se cases now, there is--I 
have a red sheet of paper printed up, and it is red so nobody 
misses it. And when a pro se case comes in, it initially goes 
to my law clerks, and they prepare a clearance sheet for me in 
that case, and then they do an initial check to see whether 
they spot any recusal problem. And if they don't, then there's 
a space at the bottom where they initial it. And then it comes 
to me, and there's a space at the bottom for me to initial to 
make sure that I focus on the recusal problem. And in very bold 
print at the bottom of the sheet for my secretary, it says, 
``No vote is to be sent in in this case unless this form is 
completely filled out.''
    So there are a number of internal checks now in my own 
office to make sure that I follow my own policy of going beyond 
what the code requires.
    Senator Hatch. In other words, there was never any 
possibility of you benefiting financially no matter how that 
case came out. Is that right?
    Judge Alito. Absolutely no chance.
    Senator Hatch. And you actually did recuse yourself when 
the question was eventually raised, even though you didn't have 
to.
    Judge Alito. That's correct, Senator.
    Senator Hatch. Did you genuinely feel that you were either 
legally or ethically required to recuse under those 
circumstances?
    Judge Alito. I did not think the code required--
    Senator Hatch. You were just going beyond, which has been 
your philosophy and--
    Judge Alito. That's right.
    Senator Hatch [continuing]. Ethical response, your personal 
ethical approach to it.
    Well, your own conclusion certainly is supported by the 
independent ethics experts that you mentioned who have recently 
examined this case. I know one of them is Professor Geoffrey 
Hazard from the University of Pennsylvania. That name stuck out 
in particular because I remember when a financial conflict of 
interest issue arose in connection with the nomination of 
Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy 
and I, we strongly defended the Breyer nomination. I did, too. 
And during the hearings, Senator Kennedy highlighted a letter 
from Professor Geoffrey Hazard to answer Justice Breyer's 
critics.
    Well, Professor Hazard has examined this matter, and 
concluded that you, Judge Alito, handled it, in his words, 
``quite properly.''
    Now, Mr. Chairman, I would like to put not only Professor 
Hazard's letter into the record, but the letter of Steven 
Lubet, Thomas Morgan, and Professor Ronald Rotunda, all of whom 
found that you made no ethical mistakes.
    Chairman Specter. Without objection, all will be made a 
part of the record.
    Senator Hatch. And let me just observe that these are all 
top ethics experts in our country today, and, you know, I have 
to say that Rotunda--or Morgan, of the George Washington 
University Law School, he happens to be the co-author of the 
Nation's most widely read ethics textbook. Now, he was blunt in 
his assessment saying that there was simply no basis for 
suggesting that you did anything improper. So I am glad to put 
those in the record.
    Now, you actually did more than simply recusing yourself in 
this case. As you have explained, you even set up a special 
system to make sure that, you know, there never is going to be 
a question about this. And so you went farther than you were 
legally or ethically mandated to do.
    Judge Alito. I did, Senator, and that is what I have tried 
to do throughout my time on the bench.
    Senator Hatch. Now, when the new panel of judges looked at 
this case, how did they rule?
    Judge Alito. They ruled the same way that we had, and we 
had ruled the same way that the district court did.
    Senator Hatch. OK. So let me just clarify this one more 
time, and you tell me if this accurately describes the 
situation. You did not believe that you were ethically or 
legally required to recuse yourself in this case. All the 
ethics experts agree with you. Yet you recused yourself anyway 
when the issue was raised. The party raising the issue got an 
entirely new hearing before a new and different panel of 
judges, who ruled the same way that you did originally.
    Does that about sum it up?
    Judge Alito. That's correct, Senator.
    Senator Hatch. Well, I have to say, Judge, that you went 
above and beyond your ethical duties here, and I think you are 
to be applauded, not to be criticized, for your rigorous 
attention to judicial impartiality and integrity.
    Now, let me just go into another matter here before I 
finish here. Some Supreme Court nominees have had legislative 
experience. The Justice you will replace, Justice O'Connor, 
served in the Arizona State Senate. Justice Breyer was chief 
counsel to Senator Kennedy when he chaired this Committee. I 
have tremendous respect for both of them.
    Judge Alito, you have had no legislative experience, and 
there are those of us who are concerned that your many years of 
experience in the executive branch may have biased you in favor 
of Executive power, or at least some feel that way and that 
that is a possibility.
    Yesterday, one of my Democratic colleagues claimed that 
your instincts are to defer to the Executive, to grant 
prosecutors whatever power they seek, that sort of thing. I 
suppose that in 15 years on the appeals court you have 
participated in what I would estimate at nearly 5,000 cases. 
You have had many opportunities to review challenges to 
Executive power. Is that correct?
    Judge Alito. I have, yes.
    Senator Hatch. Well, I am thinking of cases such as United 
States v. Kithcart, where you reversed a criminal conviction 
because the police lacked probable cause for a search, or 
Bolden v. Southeastern Pennsylvania Transportation Authority, 
where you ruled for a former maintenance custodian for a public 
transportation agency, concluding that the Fourth Amendment 
barred a suspicionless drug test.
    I want to make it clear that simply giving such examples of 
results on the other side of the ledger does not by itself 
prove that you are a good judge or a bad judge. Without also 
talking about the facts and the law in each case, merely 
tabulating winners and losers does not offer much. But since my 
colleagues on the other side occasionally have their tally 
sheets and actually some have even claimed that you may be 
biased when certain results seem to suit them, could you give 
me some more examples of cases where you voted against 
Executive powers?
    Judge Alito. Yes, certainly, Senator. Brinson v. Vaughn is 
an example of that. That was a habeas case involving a murder 
conviction, and I concluded and my panel concluded--and I wrote 
the opinion saying that there had been racial discrimination, 
or enough to have a hearing on the possibility of racial 
discrimination in the selection of the jury in that case. And, 
therefore, we reversed the decision of the district court.
    Williams v. Price is another example. There we found--and 
that was another murder case, and so what is involved here in 
these cases is really the most important thing that is 
litigated on the criminal side in the Federal courts. That was 
a case where the district court had denied a writ of habeas 
corpus, and we reversed because we found that there had been an 
error in excluding testimony that showed racial bias on the 
part of the jurors.
    There was another murder case, United States v. Murray. 
This was a Federal prosecution, and we had to reverse there 
because we concluded--and I wrote the opinion there--that the 
prosecutors had introduced evidence--
    Senator Hatch. Well, you could go on and on, but my point 
is that in approximately 5,000 cases, you can find just about 
anything you want to, to pluck out and say, ``Oh, he didn't do 
right here,'' or ``He did right here.'' I mean, the fact of the 
matter is that you, as far as I can see, have always done your 
utmost to live up to your responsibilities as a Federal court 
judge and that you have done so throughout your 15 years on the 
bench, even though members of this illustrious body, the United 
State Senate, might differ with you on occasion, and others 
might also. But I don't know a judge alive who has been on the 
bench 15 years that does not have cases that some of our 
illustrious members disagree with. So that is the point I am 
trying to make.
    Let me just shift here for a second. I am interested in 
exploring the kind of judge you are. As you can see, some of 
these questions have all been directed toward what kind of a 
judge you are. But I am interested in what is often referred to 
as a judicial philosophy, which means how you understand the 
role that judges play in our system of Government in general 
and how judges should go about deciding cases in particular.
    I would like to explore this by giving you a chance to 
expand on a few things that you have said or written. In your 
hearing in April 1990, which my friend Senator Kennedy chaired, 
he asked you what qualities are most important for an appellate 
judge. You listed open-mindedness to litigants' arguments, 
close attention to the particular facts and law in the case, 
and trying not to import a judge's own view of the law that 
should be applied in the case.
    Now, in your statement yesterday, you said that your 
experience on the appeals court has taught you a lot about, as 
you put it, ``the way in which a judge should go about the work 
of judging.'' What has that experience taught you? How has it 
shaped the answer you gave before you went on the bench?
    Judge Alito. My general philosophy is that the judiciary 
has a very important role to play, and in speaking with Senator 
Leahy, I highlighted some of that. But the judiciary has to 
protect rights, and it should be vigorous in doing that, and it 
should be vigorous in enforcing the law and in interpreting the 
law, in interpreting the law in accordance with what it really 
means and enforcing the law even if that's unpopular.
    But although the judiciary has a very important role to 
play, it's a limited role. It is not--it should always be 
asking itself whether it is straying over the bounds, whether 
it's invading the authority of the legislature, for example, 
whether it is making policy judgments rather than interpreting 
the law. And that has to be a constant process of re-
examination on the part of the judges. And that's the role that 
the judiciary should play.
    Now, my experience on the bench has really reinforced for 
me the importance of the appellate process and the judicial 
process that I described yesterday. And that is the process of 
really engaging the arguments that are made, reading the 
briefs, and approaching it with an open mind, always with the 
possibility of changing your mind based on the arguments and 
based on the facts of a particular case.
    Senator Hatch. Well, another context in which you have 
discussed your judicial philosophy is the questionnaire that 
you received from this Committee, which asked for your views on 
judicial activism. Now, the very first words of your answer 
were as given here today, that the Constitution sets forth the 
limited role for the judicial branch.
    Now, to hear some of my colleagues describe it yesterday, 
judges have virtually unlimited power to right all wrongs, 
protect everyone from everything, and make sure that Government 
officials everywhere behave themselves.
    Now, as an appeals court judge, the decisions of the 
Supreme Court add to the limitations or constraints you must 
observe, in my opinion. I am wondering whether you believe this 
notion of limited judicial power applies also the Supreme 
Court, and if so, how it applies when there is no higher court 
than the Supreme Court. Does that mean that the Supreme Court 
should perhaps be even more cautious, even more self-restrained 
since there is no appeal from any errors that they might make?
    Judge Alito. I think that's a solemn responsibility that 
they have. When you know that you are the Court of last resort, 
you have to make sure that you get it right.
    It is not true, in my judgment, that the Supreme Court is 
free to do anything that it wants. It has to follow the 
Constitution, and it has to follow the laws. Stare decisis, 
which I was talking about earlier, is an important limitation 
on what the Supreme Court does. And although the Supreme Court 
has the power to overrule a prior precedent, it uses that power 
sparingly, and rightfully so. It should be limited in what it 
does.
    Senator Hatch. Another place in which you have written 
about what might be called judicial philosophy is in your 
opinions--not that you have spent much time opining about such 
matters in the abstract. Nevertheless, I would like you to 
expand a little on a few of the things you have written in this 
regard.
    For instance, in New Jersey Payphone Association v. Town of 
West New York--this was a 2002 case--for example, you wrote the 
following: ``It is well established that, when possible, 
Federal courts should generally base their decisions on non-
constitutional rather than constitutional grounds. The 
rationale behind the doctrine of avoiding constitutional 
questions except as a last resort are grounded in fundamental 
constitutional principles.''
    Can you explain those fundamental principles and whether 
you think the Supreme Court as well as the appeals court should 
follow this imperative to avoid constitutional decisions?
    Judge Alito. I do. I think that's a very important 
principle. As I recall, Justice Brandeis in the Ashwander case 
was the one who articulated it most eloquently, and it's, 
therefore, an important reason because a constitutional 
decision of the Supreme Court has a permanency that a decision 
on an issue of statutory interpretation doesn't have. So if a 
case is decided on statutory grounds, there's a possibility of 
Congress amending the statute to correct the decision if it's 
perceived that the decision is incorrect or it's producing 
undesirable results.
    I think that it's--my philosophy of the way I approach 
issues is to try to make sure that I get right what I decide, 
and that counsels in favor of not trying to do too much, not 
trying to decide questions that are too broad, not trying to 
decide questions that don't have to be decided, and not going 
to broader grounds for a decision when a narrower ground is 
available.
    Senator Hatch. You have addressed issues such as abortion 
at different points in your career. You addressed it when you 
worked for the Solicitor General. You might have addressed it 
in several cases on the appeals court. It might be tempting to 
say that if you came to one conclusion while in one role, you 
will necessarily come to the same conclusion on the issue while 
in a different role.
    Now, I think you have explained it pretty well today, but 
let me just ask one other question. Could you please explain 
how judges address issues differently than advocates? And how 
does the requirement of a case or a controversy or a limitation 
such as a particular standard of review shape how judges 
address these issues?
    Judge Alito. The standards of review are very important, 
and often they are prescribed by Congress. Congress gives us 
authority, jurisdiction to decide certain questions, but it 
says that you don't have the authority to go back and do what 
the trial--what you would have done if you were the trial judge 
or if you were the administrative agency; you have a limited 
authority of review. And I think it's very important for us to 
stay within the bounds of the authority that Congress gives us. 
I think that's a very important part of our function.
    Senator Hatch. Thank you, Judge.
    Chairman Specter. Thank you, Senator Hatch.
    We will now take a 15-minute break and reconvene at 11:20.
    [Recess at 11:06 a.m. to 11:20 a.m.]
    Chairman Specter. We will continue the hearing for Judge 
Alito on confirmation to the Supreme Court of the United 
States, and we now turn in sequence to Senator Kennedy. Let us 
not forget to start the clock.
    Senator Kennedy. Thank you very much, Mr. Chairman.
    There was one interesting omission between the exchange of 
yourself and Senator Hatch on the whole Vanguard issue in 
question, and that was the promise and pledge that you gave to 
this Committee when you were up for the Circuit Court. I have 
it right here. It said: I do not believe that conflicts of 
interest relating to my financial interests are likely to 
arise. I would, however, disqualify myself from any cases 
involving the Vanguard Companies, the brokerage firm of Smith 
Barney or the First Federal Savings & Loan of Rochester, New 
York. So you remember that response. That was a pledge and 
promise to the Committee that you would recuse yourself, was it 
not?
    Judge Alito. Yes, it was, Senator. And as I said in 
answering Senator Hatch's question, if I had it to do over 
again, I would have handled this case differently. There were 
some oversights--
    Senator Kennedy. I am sure you might have, and we have had 
a number of different explanations for this. I would like to 
ask the clerk if they would take down and show the Judge, if 
you would like to be refreshed, about the number of times the 
name Vanguard appears on the brief, and the number of times 
Vanguard appears on the opinion, which I believe you offer. I 
would ask if I could get a clerk to show those two documents.
    Judge Alito. Senator, I'm familiar with that. I don't 
really need to see the document. Senator, the name Vanguard 
certainly appears on the briefs, and it appeared in the draft 
opinion that was sent to us by the staff attorney's office. I 
just didn't focus on the issue of recusal when it came up, and 
that was an oversight on my part, because it didn't give me the 
opportunity to apply my personal policy in going beyond what 
the code requires.
    Senator Kennedy. Did the individuals that responded on the 
ethical issues that were involved in this case, did they know 
that you had pledged and promised to this Committee that you 
would recuse yourself?
    Judge Alito. I believe that they did. I believe that some 
of them at least addressed that specifically--
    Senator Kennedy. Do you know specifically whether they did 
or not?
    Judge Alito. I believe they addressed it in their letter, 
so they must have been aware of it.
    Senator Kennedy. They understood that you had promised this 
Committee that you would recuse yourself? Your testimony now is 
that those that made a comment upon your ethical behavior knew 
as a matter of fact that you had pledged to this Committee that 
you would recuse yourself from the Vanguard cases?
    Judge Alito. Professor Hazard, I know, addressed that 
directly in his letter. I think Professor Rotunda addressed it 
in his letter, so, obviously, if the letters addressed the 
issue, they were aware of what was said on the Senate 
questionnaire.
    Senator Kennedy. And the final answer--and we will move 
on--is that you saw the name Vanguard on the briefs, and you, 
obviously, saw them on the opinion. You are the author of the 
opinion. But your testimony here now is even though you saw the 
names on that, it did not come to mind at that moment that you 
had made the pledge and promise to this Committee that you 
would recuse yourself?
    Judge Alito. I did not focus on the issue of recusal I 
think because 12 years had gone by, and the issue of a Vanguard 
recusal hadn't come up. And one of the reasons why judges tend 
to invest in mutual funds is because they generally don't 
present recusal problems, and pro se cases in particular 
generally don't present recusal problems. And so, no light went 
off. That's all I can say. I didn't focus on the issue of 
recusal.
    Senator Kennedy. This is important, when the lights do go 
on and when the lights do go off, because, actually, the 
accumulation of value of Vanguard had increased dramatically 
during this period of time, had it not?
    Judge Alito. It had, Senator, but I had nothing to gain 
financially by--
    Senator Kennedy. I am not asking you to get on to the 
questions of gain or loss or whatever. I am just asking about 
the pledge to the Committee which you had given, and the fact 
that Vanguard was so obvious, both in the brief and in the 
opinion which you wrote, and the fact that during this period 
of time there had been a sizable increase in the total value of 
Vanguard, and as all of us know, if you are dealing with a case 
dealing with IBM, you cannot have even a single share in that. 
The point about all of this is so interested parties that have 
come before the courts, are going to believe not only in 
reality, but in appearance that they are going to get a fair 
shake. And that, you have said, was certainly your desire, and 
I certainly commend you for at least that desire. But in this 
case, this was something that we recognize and is extremely 
important.
    Judge, in just the past month, Americans have learned that 
the President instructed the National Security Agency to spy on 
them at home, and they have seen an intense public debate over 
when the FBI can look at their library records, and they have 
heard the President announce that he has accepted the McCain 
amendment barring torture. But then just days later, as he 
signed it into law, the President decided he still could order 
torture whenever he believed it was necessary. No check, no 
balance, no independent oversight. So, Judge, we all want to 
protect our communities from terrorists, but we do not want our 
children and grandchildren to live in an America that accepts 
torture and eavesdropping on an American citizen as a way of 
life. We need an independent and vigilant Supreme Court to keep 
that from happening, to enforce the constitutional boundaries 
on Presidential power and blow the whistle when the President 
goes too far.
    Congress passes laws, but this President says that he has 
the sole power to decide whether or not he has to obey those 
laws. Is that proper? I do not think so. But we need Justices 
who can examine this issue objectively, independently and 
fairly, and that is what our Founders intended and what the 
American people deserve.
    So, Judge, we must know whether you can be a Justice who 
understands how to strike that proper balance between 
protecting our liberties and protecting our security, a Justice 
who will check even the President of the United States when he 
has gone too far.
    Chief Justice Marshall was that kind of Justice when he 
told President Jefferson that he had exceeded his war-making 
powers under the Constitution. Justice Jackson was that kind of 
Justice when he told President Truman that he could not use the 
Korean War as an excuse to take over the Nation's steel mills. 
Chief Justice Warren Burger was that kind of Justice when he 
told President Nixon to turn over the White House tapes. And 
Justice O'Connor was that kind of Justice when she told 
President Bush that a state of war is not a blank check for the 
President when it comes to the rights of the Nation's citizens.
    I have serious doubts that you would be that kind of 
Justice. Your record shows time and again that you have been 
overly deferential to Executive power, whether exercised by the 
President, the Attorney General or law enforcement officials. 
And your record shows that even over the strong objections of 
other Federal judges, other Federal judges, you bend over 
backwards to find even the most aggressive exercise of 
Executive power reasonable. But perhaps most disturbing is the 
almost total disregard in your record for the impact of these 
abuses of power on the rights and liberties of individual 
citizens.
    So, Judge Alito, we need to know whether the average 
citizen can get a fair shake from you when the Government is a 
party, and whether you will stand up to a President, any 
President, who ignores the Constitution and uses arguments of 
national security to expand Executive power at the expense of 
individual liberty, whether you will ever be able to conclude 
that the President has gone too far.
    Now, in 1985, in your job application to the Justice 
Department you wrote, ``I believe very strongly in the 
supremacy of the elected branches of Government.'' Those are 
your words; am I right?
    Judge Alito. They are, and that's a very inapt phrase, and 
I--
    Senator Kennedy. Excuse me?
    Judge Alito. It's an inapt phrase, and I certainly didn't 
mean that literally at the time, and I wouldn't say that today. 
The branches of Government are equal. They have different 
responsibilities, but they are all equal, and no branch is 
supreme to the other branch.
    Senator Kennedy. So you have changed your mind?
    Judge Alito. No, I haven't changed my mind, Senator, but 
the phrasing there is very misleading and incorrect. I think 
what I was getting at is the fact that our Constitution gives 
the judiciary a particular role, and there are instances in 
which it can override the judgments that are made by Congress 
and by the Executive, but for the most part our Constitution 
leaves it to the elected branches of Government to make the 
policy decisions for our country.
    Senator Kennedy. I want to move on. Mr. Chairman, the clock 
is off. There are a number of points I want to cover and be 
timely, so I leave it up to the Chair.
    Chairman Specter. Senator Kennedy, you are correct. We have 
a timer over here. We are trying to get the time fixed.
    Senator Kennedy. All right. If I would know when I have 10 
minutes left?
    Chairman Specter. Let us see if we cannot get the clock 
within the view of Senator Kennedy so he can see it when he is 
questioning the witness.
    Senator Kennedy. Thank you, Chair.
    Chairman Specter. And give Senator Kennedy two more 
minutes.
    Senator Kennedy. There you go.
    [Laughter.]
    Senator Kennedy. Be quiet over there, scurrilous dogs.
    [Laughter.]
    Senator Leahy. Seniority has privileges.
    Senator Kennedy. Judge, quite frankly, your record shows 
you still believe in the supremacy of the executive branch, 
Judge Alito. I believe there is a larger pattern in your 
writings and speeches and cases that show an excess of almost 
single-minded deference to the Executive power without showing 
a balanced consideration to the individual rights of people. So 
let us discuss some of your opinions.
    These cases deal specifically with one form or another of 
Executive power, the power of authorities intruding in homes, 
searching people who are not even suspected of committing a 
crime. Mellott v. Heemer--where the U.S. Marshal Service 
forcibly evicted a family of dairy farmers from their home and 
their farm. These farmers had no criminal record, and were 
suspected of no crime, but after they fell on very hard times, 
property was sold at a public auction. U.S. Marshals were sent 
to evict them. Remember, the marshals were sent to carry out a 
civil action, not a criminal action, a civil action. These 
farmers had committed no crime. Now, I respect the U.S. 
Marshals. They have a tough job and they do it with great 
professionalism. But in this case the marshals entered the 
house with loaded guns. The family was unarmed, did not resist, 
but still the marshals pointed loaded guns at their heads, 
chests and backs. One marshal chambered a cartridge in his gun. 
Twice they pushed the wife into her chair.
    The trial judge held there was enough evidence in this case 
to have a jury review the facts, hear the testimony and decide 
whether the marshals used too much force to evict these 
farmers. That did not sit well with you, Judge Alito. You 
grabbed the case away from the jury. You would not let them 
hear the testimony or make up their own mind about whether the 
marshals had gone too far. No, you simply substituted your 
judgment for the jury's, and decided that the marshals' conduct 
was, as a matter of law, objectively reasonable. Judgment for 
the marshals, no jury of their peers for the farmers.
    Why, Judge Alito? Your colleague on the Third Circuit, 
Judge Rendell, called the marshals' conduct ``Gestapo-like'', 
``Gestapo-like''. She said that seven marshals terrorized a 
family and friends, ransacked a home while carrying out an 
unresisted civil eviction. The trial judge thought the decision 
should be made by the jury. Why did you not let the jury 
exercise an independent check on the marshals' actions?
    Judge Alito. There was some additional information 
regarding these people that was important, and that was that 
they had threatened other people, as I recall, and there was 
evidence about the possession of weapons and evidence that they 
would be dangerous, and that was the basis on which the 
marshals acted the way they did. This was a case in which they 
were--the marshals were sued for civil damages, and they 
asserted what's called the Qualified Immunity Defense, and that 
means that if a reasonable person could have thought there was 
a basis for doing what they did, then they are entitled not to 
be tried. And that's the law. I didn't make up that law.
    Senator Kennedy. No, the--
    Chairman Specter. Let him finish, Senator Kennedy.
    Judge Alito. That's not a legal standard that I made up, 
and that was the way I saw the case, and that's the way the 
other judge, who was in the majority, saw the case. Now, these 
cases involve difficult line-drawing arguments at times, and I 
respect Judge Rendell's view of this very much, but reasonable 
people will view these things differently.
    Senator Kennedy. The issue then was the actions of the 
marshals, whether it was reasonable. And here you have a judge, 
Judge Rendell, saying it was Gestapo-like to talk about 
terrorizing a family and friends, ransacking a home while 
carrying out an unresisted civil eviction. Aren't juries there 
to make a judgment and determination whether it was reasonable 
or not reasonable, and did you not, by your action, take that 
away because you ruled as a matter of law that their conduct 
was reasonable?
    Judge Alito. The Supreme Court has told us how we have to 
handle this issue, and it is for the judiciary to decide in the 
first place whether a reasonable officer could have thought 
that what the officer was doing was consistent with the Fourth 
Amendment, and we have to make that decision. Now, if we decide 
that there's an issue of fact. If there's a dispute in the 
testimony about the evidence that the marshals had or about 
what these individuals were doing at the time when the search 
was taking place, or what the marshals did, and certainly those 
factual issues have to be resolved by the jury.
    Senator Kennedy. That is I think certainly the view of 
Judge Rendell.
    Let me move on, if I could, to Doe v. Groody. I know that 
Senator Leahy has talked about this, and gone over the factual 
situation about the strip searching of a 10-year-old girl. This 
case, the police got the warrant to search the house. They 
found the suspect outside, marched him inside where they 
encountered wife and 10-year-old. The police took the wife and 
daughter upstairs, told them to remove their clothing, 
physically searched them, not as a protective frisk or search 
for weapons, but in the hopes of finding contraband. And that 
is when Judge Chertoff, the former Chief Federal Prosecutor for 
New Jersey, the former head of the Criminal Division in the 
Justice Department, President Bush's current Secretary of 
Homeland Security, held that the police went too far. As Judge 
Chertoff said, a search warrant for a premise does not 
constitute a license to search everyone inside.
    You differed. And you have reviewed with us your reasoning 
for it, the fact that you felt that the affidavit which had 
been filed by the police should be included in the search 
warrant. Judge Chertoff takes strong exception to that, as does 
the Fourth Amendment. As you mentioned yourself, the affidavit 
represents the police, the police's view about this situation, 
but the affidavit--the search warrant is what is approved by 
the judge. Those are two different items. They come up every 
time in many, many instances. Why did you feel that under these 
circumstances, under these circumstances, that that affidavit 
should be included, the result of which we have the strip 
searching of a 10-year-old, 10-year-old that will bear the 
scars of that kind of activity probably for the rest of her 
life.
    The Fourth Amendment is clear, we want to protect the 
innocent. We want to have a search warrant that is precise so 
that the police understand it and the person that it is being 
served to understands it. That was all spelled out in the 
judge's opinion. But you went further than that. You said, 
well, in this case we are going to include the affidavit, and 
as a result of your judgment in this case and the inclusion of 
the affidavit, we have the kind of conduct against this 10-
year-old that she will never forget. Why? Why, Judge Alito?
    Judge Alito. Senator, I wasn't happy that a 10-year-old was 
searched. Now, there wasn't any claim in this case that the 
search was carried out in any sort of an abusive fashion. It 
was carried out by a female officer, and that wasn't the issue 
in the case. And I don't think that there should be a Fourth 
Amendment rule. But, of course, it's not up to me to decide 
that minors can never be searched, because if we had a rule 
like that, then where would drug dealers hide their drugs? That 
would lead to greater abuse of minors.
    The technical issue in the case was really not whether a 
warrant can incorporate a search warrant--an affidavit. There's 
no dispute that a judge or a magistrate issuing a warrant can 
say that the affidavit is incorporated, and that was done here. 
The issue was whether--and it was a very technical issue. Was 
it incorporated only on the issue of probable cause or was it 
also incorporated on the issue of who would be searched? If the 
magistrate had said in the warrant, this warrant is 
incorporated as to the people who may be searched, and then in 
the affidavit it said, and it did say this very clearly, we 
want authorization to search anybody who's on the premises, 
then there would be no problem whatsoever.
    The warrant said it was incorporated on the issue of 
probable cause, and I thought that reading it in a common sense 
fashion, which is what we're supposed to do, that necessarily 
meant that the magistrate said there was probable cause to 
search anybody who's found on the premises and that's what I'm 
authorizing you to do.
    Senator Kennedy. And that is what Judge Chertoff took 
strong exception, in a very eloquent statement in talking about 
the protections and the reasons for the strict interpretation 
for the warrant. Let me move on.
    Judge Alito, your Third Circuit decisions don't exist in a 
vacuum. I'd like to, Mr. Chairman, at this point, since there 
have been some questions about whether we are flyspecking these 
cases, I would like to include in the appropriate place in the 
record the Knight Ridder studies that concluded that Judge 
Alito never found a government search unconstitutional; the 
Yale Law School professors study that found that Judge Alito 
ruled for the government in almost every case reviewed--this 
was their conclusion; the Washington Post stories with regard 
to the cases; and also Professor Cass Sunstein's conclusions 
that Judge Alito rules against individuals 84 percent of the 
time.
    Chairman Specter. In accordance with our practices, if you 
want them in the record, they will be there, without objection.
    Senator Kennedy. So just looking at your writings and 
speeches, Judge Alito, you have endorsed the supremacy of the 
elected branch of government. You have clarified that today. 
You argued that the Attorney General should have absolute 
immunity, even for actions that he knows to be unlawful or 
unconstitutional. You suggested that the Court should give a 
President's signing statement great deference in determining 
the meaning and the intent of the law and argued as a matter of 
your own political and judicial philosophy for an almost all-
powerful Presidency. Time and again, even in routine matters 
involving average Americans, you give enormous, almost total 
deference to the exercise of governmental power. So I want to 
ask you about some of the possible abuses of the Executive 
power and infringement on individual rights that we are facing 
in the country today.
    Judge Alito, just a few weeks ago, by a vote of 90 to nine, 
the Senate passed a resolution sponsored by Senator John McCain 
to ban torture, whether it be here at home or abroad, and as a 
former POW in Vietnam, John McCain knows a thing or two about 
torture. For a long time, the White House threatened to veto 
the legislation, and finally, Senator McCain met with the 
President and convinced him to approve the anti-torture law. 
Two weeks after that, the President issued a signing statement, 
no publicity, no press release, no photo op, where he quietly 
gutted his commitment to enforce the law banning torture. The 
President stated, in essence, that whatever the law of the land 
might be, whatever Congress might have written, the Executive 
branch has the right to authorize torture without fear of 
judicial review.
    Now, I raise this issue with you, Judge, I raise this with 
you because you were among the early advocates of these so-
called Presidential signing statements when you were a Justice 
Department official. You urged President Reagan to use the 
signing statements to limit the scope of laws passed by 
Congress, even though Article I of the Constitution vests all 
legislative powers in the Congress. You urged the President to 
adopt what you described as a novel proposal, to issue 
statements aimed at undermining the Court's use of legislative 
history as a guide to the meaning of the law. You wrote these 
words. The President's understanding of the bill should be just 
as important as that of Congress.
    With respect to the statement issued by President Bush 
reserving his right to order torture, is that what you had in 
mind when you said or wrote, the President's understanding of 
the bill should be just as important as that of Congress?
    Judge Alito. When I interpret statutes, and that's 
something that I do with some frequency on the Court of 
Appeals, where I start and often where I end is with the text 
of the statute. And if you do that, I think you eliminate a lot 
of problems involving legislative history and also with signing 
statements. So I think that's the first point that I would 
make.
    Now, I don't say I'm never going to look at legislative 
history, and the role of signing statements in the 
interpretation of statutes is, I think, a territory that's been 
unexplored by the Supreme Court and it certainly is not 
something that I have dealt with as a judge.
    This memo was a memo that resulted from a working group 
meeting that I attended. The Attorney General had already 
decided that as a matter of policy, the administration, the 
Reagan administration, would issue signing statements for 
interpretive purposes and had made an arrangement with the West 
Publishing Company to have those published. And my task from 
this meeting was to summarize where the working group was going 
and where it had been, and I said at the beginning of the 
meeting that this was a rough--at the beginning of the memo 
that this was a rough first effort to outline what the 
administration was planning to do and I was a lawyer for the 
administration at the time. Then I had a big section of that 
memo saying, and these are the theoretical problems and some of 
them are the ones that you mentioned. And that's where I left 
it, and all of that would need to be explored to go any 
further.
    Senator Kennedy. Well, Judge Alito, in the same signing 
statement undermining the McCain anti-torture law, the 
President referred to his authority to supervise the unitary 
Executive branch. That's an unfamiliar term to most Americans, 
but the Wall Street Journal describes it as the foundation of 
the Bush administration's assertion of power to determine the 
fate of enemy prisoners, jailing U.S. citizens as enemy 
combatants without charging them. President Bush has referred 
to this doctrine at least 110 times, while Ronald Reagan and 
the first President Bush combined used the term only seven 
times. President Clinton never used it.
    Judge Alito, the Wall Street Journal reports that officials 
of the Bush administration are concerned that current judges 
are not buying into its unitary Executive theory, so they are 
appointing new judges more sympathetic to their Executive power 
claims. We need to know whether you are one of those judges.
    In 2000, in the year 2000, in a speech soon after the 
election, you referred to the unitary Executive theory as the 
gospel and affirmed your belief in it. So, Judge Alito, the 
President is saying he can ignore the ban on torture passed by 
Congress, that the courts cannot review his conduct. In light 
of your lengthy record on the issues of Executive power, 
deferring to the conduct of law enforcement officials even when 
they are engaged in conduct that your judicial colleagues 
condemn, Judge Chertoff, Judge Rendell, subscribing to the 
theory of unitary Executive, which gives the President complete 
power over the independent agencies, the independent agencies 
that protect our health and safety, believing that the true 
independent special prosecutors who investigate Executive 
wrongdoing are unconstitutional, referring to the supremacy of 
the elected branches over the judicial branch and arguing that 
the court should give equal weight to a President's view about 
the meaning of the laws that Congress has passed, why should we 
believe that you will act as an independent check on the 
President when he claims the power to ignore the laws passed by 
Congress?
    Judge Alito. Well, Senator, let me explain what I 
understand the idea of the unitary Executive to be, and I think 
it's--there's been some misunderstanding, at least as to what I 
understand this concept to mean. I think it's important to draw 
a distinction between two very different ideas. One is the 
scope of Executive power, and often Presidents or occasionally 
Presidents have asserted inherent Executive powers not set out 
in the Constitution. And we might think of that as how big is 
this table, the extent of Executive power.
    And the second question is when you have a power that is 
within the prerogative of the Executive, who controls the 
Executive? And those are separate questions. And the issue of, 
to my mind, the concept of unitary Executive doesn't have to do 
with the scope of Executive power. It has to do with who within 
the Executive branch controls the exercise of Executive power, 
and the theory is the Constitution says the Executive power is 
conferred on the President.
    Now, the power that I was addressing in that speech was the 
power to take care that the laws are faithfully executed, not 
some inherent power but a power that is explicitly set out in 
the Constitution.
    Senator Kennedy. Would that have any effect or impact on 
independent agencies?
    Judge Alito. The status of independent agencies, I think, 
is now settled in the case law. This was addressed in 
Humphrey's Executor way back in 1935 when the Supreme Court 
said that the structure of the Federal Trade Commission didn't 
violate the separation of powers. And then it was revisited and 
reaffirmed in Wiener v. United States in 1958--
    Senator Kennedy. So your understanding of any unitary 
Presidency, that they do not therefore have any kind of 
additional kind of control over the independent agencies that 
has been agreed to by the Congress and signed into law at--
    Judge Alito. I think that Humphrey's Executor is a well-
settled precedent. What the unitary Executive, I think, means 
now, we would look to Morrison, I think, for the best 
expression of it, and it is that things cannot be arranged in 
such a way that interfere with the President's exercise of his 
power on a functional, taking a functional approach.
    Senator Kennedy. I want to just mention this signing of the 
understanding of the legislation that we passed banning 
torture, what the President signed on to. The Executive branch 
shall construe the Title X in Division A relating to detainees 
in a matter with the constitutional authority of the President 
to supervise the unitary Executive branch as the commander in 
chief, and consistent with the constitutional limitations on 
judicial power. Therefore, it is the warning that the courts 
are not going to be able to override the judgments and 
decisions. That is certainly my understanding of those words, 
which will assist in achieving the shared objective of the 
Congress and the President.
    That statement there, in terms of what was agreed to by 
Congress 90-to-9, by John McCain, by President Bush, and then 
we have this signing document which effectively just undermines 
all of that, is something that we have to ask ourselves whether 
this is the way that we understand the way the laws are to be 
made. It is very clear in the Constitution who makes the laws, 
and Congress and the Senate makes it. The President signs it, 
and that is the law. That is the law. These signing statements 
and recognizing these signing statements and giving these value 
in order to basically undermine that whole process is a matter 
of enormous concern.
    Thank you.
    Chairman Specter. Judge Alito, Senator Kennedy had noted 
that there were substantial gains, as he put it, in the 
Vanguard stock or the Vanguard asset during the period of time 
that you held them, but he did not give you an opportunity to 
answer that. I don't like to interrupt in the midst of a series 
of questions, but you can respond to that if you care to do so 
at this time.
    Judge Alito. Mr. Chairman, I had additional holdings in 
Vanguard during my period of service, but I think that the 
important point as far as that is concerned is that nobody has 
claimed that I had anything to gain financially from 
participating in this case and I certainly did not.
    Chairman Specter. Senator Grassley?
    Senator Grassley. I have a much more positive view of you 
than has just been expressed.
    [Laughter.]
    Senator Grassley. I can't be cynical about your judging. In 
fact, maybe from what I have criticized the Supreme Court in a 
long period of time, I might feel you are too cautious, too 
willing to follow precedent.
    But I think in regard to Vanguard, the point ought to be 
made that you did nothing wrong. You didn't violate any law or 
any ethics rule. And the point is being made that maybe you 
didn't remember a promise that you had made to this Committee, 
but let me assure you, don't lose any sleep over that. If 
Senators kept every word they made to their constituents, there 
wouldn't be any Senators left. There is always shortness of 
memory and without ill intent, whether it is on the part of a 
Senator or whether it is on the part of Judge Alito.
    I hope the viewing public is impressed by your intellect 
and your legal capabilities and your judicial record. Clearly, 
they are seeing that you have the kind of background and 
practical experience that it takes to be a Supreme Court 
Justice. In addition, I think you have demonstrated now after 
five or six of us asking you questions that you are very candid 
in answering questions so far and being honest with our 
Committee.
    These nomination hearings that we are holding are, of 
course, a unique opportunity for all of us, Senators and the 
public, to explore more in depth how Supreme Court nominees 
view the roles of justice, how a nominee approaches 
constitutional interpretation and precedent, as well as a 
nominee's appreciation of the separate branches of government, 
and you have been involved in all of those discussions already 
this morning. It is unfortunate that some extreme liberal 
groups have attacked your commitment to the law as well as your 
honesty and integrity, but now you are doing your best, and I 
think doing a good job, of setting the record straight.
    So before I ask you some questions, I want to bring up some 
of these issues that have been brought up against you, and you 
don't necessarily have to respond in any way. I just think it 
is points that ought to be made as I see you. I am only one 
Senator, but I think I have had a good opportunity to study you 
and particularly your cases.
    I would like to address these ethics charges that we have 
seen generated by some of the left-wing liberal interest groups 
and even my colleagues on the other side of the aisle. These 
allegations are just plain absurd. You are going to see some 
charts that hopefully will be held up that I am not going to 
point to, but bring up some of these charges, because I think 
we want to prove that these allegations are absurd. It is 
puzzling to me that anyone would actually believe these claims, 
especially when people who know Judge Alito the best, people 
who have known him for a long period of time and who have 
worked closely with him, better than any of our Senators would 
know you, they all say that you are a man of honor, integrity, 
and principle. They have no question about that.
    The fact is that the ABA looks at issues such as integrity 
and ethics when it evaluates a judicial nominee and it found 
you, Judge Alito, to be unanimously well qualified, a rating 
that Democrats have always claimed to be a gold standard. The 
ABA didn't find a problem with Judge Alito's record.
    Moreover, several leading ethicists from across the 
political spectrum reviewed these allegations and they all 
agreed that you, Judge Alito, acted properly and that none of 
these charges have merit. It says in a letter from George Mason 
University Law Professor Ronald Rotunda, already referred to by 
members, and in a letter to Chairman Specter, quote, ``Neither 
Federal statute nor Federal rules nor Model Code of Judicial 
Conduct of the American Bar Association provide that a judge 
should disqualify himself in any case involving a mutual fund 
company,'' and they give as examples Vanguard, Fidelity, T. 
Rowe Price, ``simply because a judge owns mutual funds that the 
company manages and holds in trust for a judge,'' end of quote. 
So basically, according to law, Judge Alito was not required to 
recuse himself in the Vanguard case, but he did it anyway.
    So let me repeat, five leading ethicists all say Judge 
Alito did nothing wrong. Professor Thomas Morgan, quote, ``In 
my opinion, Judge Alito's participation in the Vanguard case 
was in no way improper, nor does it give any reason to doubt 
that he would fully comply with his ethical responsibilities, 
if confirmed.''
    And Professor Steven Lubet and David McGowan wrote, ``You 
do not need to be a fan of Alito's jurisprudence to recognize 
that he is a man of integrity. Other judges and Justices would 
do well to follow this example,'' end of quote.
    In addition, no complaint filed against Judge Alito has 
ever been validated, and to top it off, we have heard glowing 
statement after glowing statement from folks closest to the 
Judge, your law clerks, Republicans and Democrats alike, as 
well as lawyers and judges who practiced before and worked with 
the Judge on a daily basis. These people know this nominee best 
and they all say that he is a man of humility, a man of 
principle, and they don't have any question about the Judge's 
integrity.
    So it is patently unfair that some folks, intent on 
torpedoing this nomination, are trying to give these 
allegations weight that they don't deserve. It should be clear 
to everyone that this is a blatant tactic to tar Judge Alito's 
honorable and distinguished judicial record, and I hope this 
puts to rest these outrageous claims that Judge Alito doesn't 
have the integrity to be a Supreme Court Justice. It is 
outlandish and should be rejected.
    I am now getting to a question that I want to ask you about 
Executive power. Some of your critics have questioned your 
ability, and we have just heard it recently, to be independent 
from the Executive branch. They pointed principally to your 
work as a lawyer for the Department of Justice 20 years ago, 
suggesting that you would just rubber-stamp administration 
policy. I would like to give you an opportunity to address 
this. So, Judge Alito, do you believe that the Executive branch 
should have unchecked authority?
    Judge Alito. Absolutely not, Senator.
    Senator Grassley. Judge Alito, you do understand that under 
the doctrine of separation of powers, the Supreme Court has an 
obligation to make sure that each branch of government does not 
co-opt authority reserved to the coordinate branch, and do you 
understand that where constitutionally protected rights are 
involved, the courts have an important role to play in making 
sure that the Executive branch does not trample those rights?
    Judge Alito. I certainly do, Senator. Each branch has very 
important individual responsibilities and they should all 
perform their responsibilities.
    Senator Grassley. So clarify for me. Do you believe that 
the President of the United States is above the law and the 
Constitution?
    Judge Alito. Nobody in this country is above the law, and 
that includes the President.
    Senator Grassley. Judge Alito, would you have any 
difficulty ruling against the Executive branch of the Federal 
Government if it were to overstep its authority in the 
Constitution?
    Judge Alito. I would not, Senator. I would judge the cases 
as they come up and I think that I believe very strongly in the 
independence of the judiciary. I have been a member of the 
judiciary now for the past 15-and-a-half years and I understand 
the role that the judiciary has to play, and one of its most 
important roles is to stand up and defend the rights of people 
when they are violated.
    Senator Grassley. This first question is very general. It 
is a new area. I would like to explore in detail what you 
understand to be the proper role of a judge in a democratic 
society. So could you generally give me what your views are on 
this approach?
    Judge Alito. Yes. Our Constitution sets up a system of 
government that is democratic. So the basic policy decisions 
are made by people who are elected by the people so that the 
people can control their own destiny. But the Constitution 
establishes certain principles that can't be violated by the 
Executive branch or by the legislative branch. It sets up a 
structure of government that everybody has to follow and it 
protects fundamental rights. And it is the job of the judiciary 
to enforce the provisions of the Constitution and to enforce 
the laws that are enacted by Congress in accordance with the 
meaning that Congress attached to those laws, not to try to 
change the Constitution, not to try to change the laws, but to 
be vigilant in enforcing the Constitution and in enforcing the 
laws.
    Senator Grassley. What do you think about judges allowing 
their own political and philosophical views to impact on any 
jurisprudence? Second, do you believe that there is any room 
for a judge's own value or personal beliefs when he or she 
interprets the Constitution?
    Judge Alito. Judges have to be careful not to inject their 
own views into the interpretation of the Constitution, and for 
that matter, into the interpretation of statutes. That is not 
the job that we are given. That is not authority that we are 
given. Congress has the law-making authority. You have the 
authority to make the policy decisions and it's the job of the 
judiciary to carry out the policy decisions that are made by 
Congress when it's enacting statutes.
    Senator Grassley. Further explanation on that point, three 
sub-parts. Do you believe that Justices should consider 
political dimensions of controversial cases? Do you believe 
that when faced with hard cases, the Supreme Court should look 
at pleasing the home crowd or splitting the baby? And what is 
the proper role of the Supreme Court in deciding highly charged 
cases, meaning, I suppose in most cases, we would be talking 
about politically charged cases?
    Judge Alito. The Framers of the Constitution made a basic 
decision when they set up the Federal judiciary the way they 
set up it, and there's a reason why they gave Federal judges 
life tenure, and that is so that they will be insulated from 
all of the things that you mentioned. They will not decide 
cases based on the way the wind is blowing at a particular 
time, that at a time of crisis, for example, when people may 
lose sight of fundamental rights, the judiciary stands up for 
fundamental rights, that it is not reluctant to stand up for 
the unpopular and for what the Court termed insular minorities, 
that the Constitution--that the judiciary enforces the 
Constitution and the laws in a steadfast way and not in 
accordance with the way the wind is blowing.
    Senator Grassley. Let us look at the Bill of Rights and 
many other amendments that are often praised in broad, spacious 
terms. If a judge was so inclined, he or she could expand on 
the interpretation, use, and effect of many provisions of the 
Constitution. Do you agree with the school of thought that 
takes the position that when Congress and the Executive branch 
are slow or do not act in a particular manner, act at all, let 
us say, then the Supreme Court would have a license to create 
solutions based on some of the broad wording contained in the 
Constitution? Do you think that this is a proper role for the 
Supreme Court, or do you take the position that judges have a 
duty to respect constitutional restraints?
    Judge Alito. Judges have to respect constitutional 
restraints. They have to exercise what's called judicial self-
restraint because there aren't very many external checks on the 
judiciary on a day-to-day basis. So the judiciary has to 
restrain itself and engage in a constant process of asking 
itself, is this something that we are supposed to be doing or 
are we stepping over the line and invading the area that is 
left to the legislative branch, for example. The judiciary has 
to engage in that on a constant basis.
    Senator Grassley. Well, just suppose that Congress had not 
even acted in a certain area and there are people that are 
bringing cases before the court that would give an opportunity 
to fill in on something that Congress didn't do. What about 
in--
    Judge Alito. The judiciary is not a law-making body. 
Congress is the law-making body. Congress has the legislative 
power and the judiciary has to perform its role and not try to 
perform the role of Congress or the Executive.
    Senator Grassley. I don't know whether you have ever had a 
case where the Framers--where you are dealing with the problems 
that the Framers maybe in broad ways in the Constitution 
couldn't provide for, but how would you apply the words of the 
Constitution into problems that the Framers could not have 
foreseen?
    Judge Alito. There are very important provisions of the 
Constitution that are not cast in specific terms, and I think 
for good reason. They set out a principle, and then it is up to 
the judiciary to apply that principle to the facts that arise 
during different periods in the history of our country.
    The example that I like to cite here is the prohibition 
against unreasonable searches and seizures in the Fourth 
Amendment. Now, this goes all the way back to the adoption of 
the Fourth Amendment at the end of the 18th century and most of 
the types of searches that come up today are things that the 
Framers never could have anticipated. They couldn't foresee 
automobiles or telephones or cell phones or the Internet or any 
of the other means of communication that have prevented new 
search and seizure issues. But they set out a good principle, 
and the principle is that searches can't be carried out unless 
they're reasonable, and generally, there has to be a warrant 
issued by a neutral and detached magistrate before a search can 
be carried out.
    And so as these new types of searches have arisen and new 
means of communication have come into practice, the judiciary 
has applied this principle and the legislative branch has 
applied the principle in statutes like the wiretapping statute 
to the new situations that have come up.
    Senator Grassley. What factors, if any, and there may not 
be any, but what factors, if any, are there which can affect a 
judge's interpretation of the text of the Constitution? Can 
these factors be determined and applied without involving 
personal bias of judges?
    Judge Alito. I think they can. There would be no, I think, 
basis for judges to exercise the power of judicial review if 
they were doing nothing different from what the legislature 
does in passing statutes. So judges have to look to objective 
things, and if it's a question of absolutely first impression, 
and there aren't that many constitutional issues that arise at 
this point in our history that are completely issues of first 
impression, you would look to the text of the Constitution and 
you would look to anything that would shed light on the way in 
which the provision would have been understood by people 
reading it at the time.
    You certainly would look to precedent, which is an 
objective factor, and most of the issues that come up in 
constitutional law now fall within an area in which there is a 
rich and often very complex body of doctrine that has worked 
out. Search and seizure is an example. Most of the issues that 
arise concerning--freedom of speech is another example. There 
is a whole body of doctrine dealing with that, and that's 
objective and you would look to that and you would reason by 
analogy from the precedents that are in existence.
    Senator Grassley. Let me bring up the tension between 
majority rule and individual freedoms. This involves the 
tensions between the American ideal of democratic rule and the 
concept of individual liberties, where neither the majority nor 
the minority can be fully trusted to define the proper spheres 
of our democratic authority and liberty. I assume that you 
agree that there is tension that has to be resolved?
    Judge Alito. There is tension because our system of 
government is fundamentally a democratic system, as I said. The 
authority to make the basic policy decisions that affect 
people's lives, most of them, most of those decisions are to be 
made by the legislature and by the Executive in carrying out 
the law. But the judiciary has the responsibility to exercise 
the power of judicial review. And so if something comes up that 
violates the Constitution, then it's been established now going 
all the way back to Marbury v. Madison, if that comes up in a 
case, it is the duty of the judiciary to say what the law is 
and to enforce the law in that decision, and if that means 
saying that something that another branch of government has 
done is unconstitutional, then that's what the judiciary has to 
do.
    Senator Grassley. How would you go about your duties as a 
Justice in determining where the right of the silent majority 
ends and where the right of the individual begins? What 
principles of constitutional interpretation help you to begin 
your analysis of whether a particular statute infringes upon 
some individual right?
    Judge Alito. I would look to the text of the provision. I 
would look to anything that sheds light on what that would have 
been understood to mean. I would look to precedent, and as I 
mentioned a minute ago, I think in most of the areas now where 
constitutional issues come up with some frequency, there is a 
body of precedent. That would be--that shapes the decision. 
That's generally what is going to dictate the outcome in the 
case, and if it's a new question, then usually the judiciary 
will see where it fits into the body of precedent and reason by 
analogy from prior precedents.
    Senator Grassley. Some judges and scholars believe that in 
resolving this dilemma, the court's obligation to the intent of 
the Constitution are so generalized and remote that judges are 
free to create a Constitution that they think best fits today's 
changing society. What do you think of such an approach?
    Judge Alito. Judges don't have the authority to change the 
Constitution. The whole theory of judicial review that we have, 
I think is contrary to that notion. The Constitution is an 
enduring document and the Constitution doesn't change. It does 
contain some important general principles that have to be 
applied to new factual situations that come up. But in doing 
that, the judiciary has to be very careful not to inject its 
own views into the matter. It has to apply the principles that 
are in the Constitution to the situations that come before the 
judiciary.
    Senator Grassley. I think you heard in opening comments 
some of the members of this Committee that they view the courts 
as a place taking the lead in creating a more just society. Is 
that a role for the courts, and I don't know whether you want 
to call this judicial activism, but I would, is it ever 
justified?
    Judge Alito. Well, I think that if the courts do the job 
that they are supposed to do, they will produce, we will 
produce a more just society. I think if you take a position as 
a Federal judge, you have to have faith that if you do your 
job, then you will be helping to create a more just society. 
The Constitution and the constitutional system that we have is 
designed to produce a just society.
    It gives different responsibilities to different people. 
You could think of a football team or you could think of an 
orchestra where everybody has a different part to play, and the 
whole system won't work if people start playing--start 
performing the role of someone else. Everyone in the system has 
to perform their role, and I think you have to have faith, and 
I think it's a well-grounded faith, that if you do that, if the 
judiciary does what it is supposed to do, the whole system will 
work toward producing a more just society.
    Senator Grassley. I want to go back and expand on a point I 
referred to as maybe Congress not acting some time and what the 
Court should do about that. This was a line of questioning that 
I also asked Chief Justice Roberts when he was before us. At 
that time, I referred to the confirmation of Justice Souter, 
and Justice Souter responded to my questions regarding the 
interpretation of statutory law by speaking about the Court's 
filling vacuums in law left by Congress. Do you believe that 
the Supreme Court should fill in vacuums in the law left by 
Congress, or is this a way for Justices to take an activist 
role in that they get to decide how to fill in generalities and 
resolve contradictions in law? If you are confirmed by the 
Senate, do you believe that your job is to fill in vacuums?
    Judge Alito. Well, I don't know exactly what Justice Souter 
was referring to when he said that, but just speaking for 
myself, I think that it is our job to interpret and to enforce 
the statutes that Congress passes and not to add to those 
statutes and not to take away from those statutes.
    Senator Grassley. Further on judicial restraint, are there 
any situations where you believe it is appropriate for a 
Supreme Court Justice to depart from the issue at hand and 
announce broad sweeping constitutional doctrine, and if you do, 
could you please describe in detail what those circumstances 
might be?
    Judge Alito. I think that the judiciary should decide the 
case--I think judges should decide the case that is before 
them. I think it's hard enough to do that and get it right. If 
judges begin to go further and announce--and decide questions 
that aren't before them, or issue opinions or statements about 
questions that aren't before them--from my personal experience, 
what happens when you do that is that you magnify the chances 
of getting something wrong. When you have an actual concrete 
case of controversy before you, focus on that. It improves your 
ability to think through the issue and it focuses your thinking 
on the issue and it makes for a better decision if you just 
focus on the matter that is at hand and what you have to decide 
and not speak more broadly.
    If you speak more broadly, I think there is a real chance 
of saying something that you don't mean to say, or suggesting 
something that you don't mean to say and deciding questions 
before they have been fully presented to you, before you have 
heard all the arguments about this other question that isn't 
really central to the case that is before you.
    Senator Grassley. You might sometime be faced with what 
people might call a bad law or some unpopular law which 
nonetheless might be constitutional. Do you believe that--I 
guess the question should be, what do you believe would be the 
court's role in that instance? Is the court ever justified in 
correcting what might be a problem out there, presumably 
created by a law Congress passed?
    Judge Alito. Courts do not have the authority to repeal 
statutes or to amend statutes, and so once a court has 
determined what a statute means, then it's the obligation of 
the courts to enforce that statute. Now, sometimes when a case 
of statutory interpretation comes before a court and your first 
look at the statute seems to produce an absurd result, let's 
say, or a very unjust result, then I think the judiciary has 
the obligation to go back and say, well, is this really what 
the statute means, because the legislature generally is not 
going to want to produce a result like that. So maybe our first 
look at this statute has produced an interpretation that's it's 
an incorrect statute. So I think we have to do that.
    And occasionally, a statute will come along or an 
administrative regulation will come along and the way it's 
applied in a particular case shows that there's a problem with 
the statute or the regulation that maybe Congress didn't 
anticipate or the administrative agency didn't anticipate. And 
in those instances, while I think it is the obligation of the 
judiciary to apply the statute that is before the judiciary, I 
think it is proper for us to say, look, this shows how this 
statute or this regulation plays out in the real world in this 
situation and maybe you didn't think about that and maybe 
that's something that you want to take into account if you're 
going to revise the statute or issue a new regulation. I think 
those are proper roles for us.
    Senator Grassley. What is your position regarding results-
oriented jurisprudence, where the rationale is made secondary 
to the actual result reached? When, if ever, is results-
oriented jurisprudence justified?
    Judge Alito. Results-oriented jurisprudence is never 
justified because it is not our job to try to produce 
particular results. We are not policymakers and we shouldn't be 
implementing any sort of policy agenda or policy preferences 
that we have.
    Senator Grassley. In the past few decades, certain interest 
groups and legal scholars and even some Members of Congress 
have tried to convert the Supreme Court from a legal 
institution into political, social, and cultural ones. Because 
of this, the Court has morphed in that direction, I believe, 
becoming a battlefield for warring interest groups who are 
raising and spending millions of dollars on disinformation 
campaigns and website blogs. There are even blogs going on all 
the time about this hearing. Do you think it is because the 
Supreme Court has injected itself into policy issues better 
left to the elected branches of government, or has the Supreme 
Court tried to act as kind of a roving commission, attempting 
to solve perceived societal problems, or maybe it is none of 
the above? What do you think can be done to restore the sense 
of constitutional balance between the Supreme Court and the 
Executive and legislative branches of government and 
understanding all are co-equal?
    Judge Alito. I think the branches are co-equal and I think 
that the judiciary as a whole, including the Supreme Court, 
must always be mindful of the role that it is supposed to play 
in our system of government. It has an important role to play, 
but it's a limited role and it has to do what it is supposed to 
do vigilantly, but it also has to be equally vigilant about not 
stepping over the bounds and invading the authority of Congress 
or invading the authority of the Executive or other government 
officials whose actions may be challenged. I think the 
challenge for the judiciary.
    Senator Grassley. Thank you, Judge Alito.
    Chairman Specter. Thank you, Senator Grassley.
    Senator Biden?
    Senator Biden. Thank you, Mr. Chairman. I understand, 
Judge, I am the only one standing between you and lunch, so I 
will try to make this painless.
    Judge, I would like to say a few very brief things at the 
outset. I am puzzled, and I suspect you may be puzzled by some 
of the questions. I don't think anybody thinks you are a man 
lacking in integrity. I don't think anybody thinks that you are 
a person who is not independent. I think that what people are 
wondering about and puzzled about is not whether you lack 
independence, but whether you independently conclude that the 
Executive trumps the other two branches. They wonder when you 
back--granted, it is back in 1985 or 1984 when you wrote, ``I 
do not question the Attorney General should have this immunity, 
has absolute immunity. But for tactical reasons,'' et cetera. 
So people are puzzled, at least some are puzzled, and so I 
don't want you to read any of this, at least from my 
perspective, as I have read it so far, that people think that 
this is a bad guy. What people are puzzled about with the 
recusal issue was under oath you said, ``I will recuse myself 
on anything relating to''--and then a case comes up. So they 
are looking for an explanation. So it is not about whether you 
are profiting or whether you are, you know, all this malarkey 
about what you broke judicial ethics. It is a simple kind of 
thing. You know, you under oath said, ``I promise if this ever 
comes up, I will recuse myself,'' and then you gave an 
explanation. You know, it slipped, you forgot, it had been 
years earlier, et cetera.
    So don't read it as, you know, this is one of these things 
where we know you are--the people I have spoken to on your 
court--and it is my circuit--have a very high regard for you, 
and I think you are a man of integrity. The question is 
sometimes some of the things you have said and done at least 
puzzle me. And I would like to--and one of the things--this is 
not part of the line of questioning I wanted to ask, but I did 
ask you when you were kind enough to come to my office about 
the Concerned Alumni of Princeton. Were you aware of some of 
the other things they were saying that had nothing to do with 
ROTC? Because there was a great deal of controversy.
    I mean, I can remember--I can remember this. My son was--
well, anyway, he ended up going to that other university, the 
University of Pennsylvania. But I remember, you know, 
Princeton. I had spoken on campus in the early 1970s. This was 
a big thing, up at Princeton at the Woodrow Wilson School. And 
I remember--I didn't remember Bill Frist, but I remember that 
there was this disavowing, that Bill Bradley, this great 
basketball star and now U.S. Senator, was, you know, 
disassociating himself with this outfit, that there was a 
magazine called Prospect. I remember the magazine. And all I 
want to ask is: Were you aware of the other things that this 
outfit was talking about? Were you aware of this controversy 
going on in 1972?
    Judge Alito. Senator, I don't believe that I was, and when 
it was mentioned that Senator Bradley had withdrawn from a 
magazine, that didn't ring any bells for me. I did not recall 
anything like that.
    Senator Biden. It was a pretty outrageous group. I mean, I 
believe you that you were unaware of it, but here I was, 
University of Delaware graduate, a sitting U.S. Senator. I was 
aware of it because I was up there on the campus. I mean, it 
was a big deal. It was a big deal, at least in our area, the 
Delaware Valley, if you know Princeton, Penn, the schools 
around there had this kind of--because the big thing was going 
on at Brown at the time as well.
    And, by the way, for the record, I know you know. When you 
stated in your application that you are a member--you said in 
1985, ``I am a member''--they had restored ROTC. I mean, ROTC 
was back on the campus. But, again, this is just by way of, you 
know, why some of us are puzzled, because if I was aware of it 
and I didn't even like Princeton.
    [Laughter.]
    Senator Biden. No, I mean, I really didn't like Princeton. 
I was an Irish Catholic kid who thought it hadn't changed like 
you concluded it had. I mean, you know, I admit, I have a 
little--you know, one of my real dilemmas is I have two kids 
who went to Ivy League schools. I am not sure my Grandfather 
Finnegan will ever forgive me for allowing that to happen.
    But all kidding aside, I was not a big Princeton fan, and 
so maybe that is why I focused on it and no one else did. But I 
remember at the time.
    The other thing is, Judge, you know, the other thing you 
should be aware of--and kind of don't take this personally what 
is going on here--every nominee who comes before us is viewed 
by all the Senators, left, right, center, Democrat, Republican, 
at least on two levels, at least in my experience here. One is, 
the first one, individual qualifications and what their 
constitutional methodology, their views are, their philosophy. 
But the other is--and it always occurs--whose spot they are 
taking and what impact that will have on the Court. Everybody 
wrote with Roberts after the fact--and a lot of people voted 
for Roberts that were doubtful. I was doubtful. I voted no. But 
he was replacing Rehnquist. So Roberts for Rehnquist, you know, 
what is the worst that can happen, quote-unquote, or the best 
that can happen?
    Now, I am not being facetious. What is the best or worst? 
If you are conservative, the best that can happen is he is as 
good as Rehnquist. From the standpoint of someone who is a 
liberal, the worst that can happen, he is as good as Rehnquist.
    So, I mean, but you are replacing--I mean, we can't lose 
this, and so people understand this. You are replacing someone 
who has been the fulcrum on an otherwise evenly divided Court. 
And a woman who most scholars who write about her and in a 
retrospective about her say this is a woman who viewed things 
from--the phrase you have used--a real-world perspective. This 
was a former legislator. This was a former practitioner. This 
was someone who came to the bench and applied--to her critics, 
she applied too much common sense. Critics would say that she 
was too sensitive to the impact on individuals, you know, what 
would happen to an individual. So her focus on the impact on 
individuals was sometimes criticized and praised. It is just 
important you understand, at least for my questioning, that 
this goes beyond you. It goes to whether or not your taking her 
seat will alter the constitutional framework of this country by 
shifting the balance, 5-4, 4-5, one way or another.
    And that is the context in which at least I want to ask you 
my questions after trying to get some clarification or getting 
some clarification from you on Concerned Princeton--because, 
again, a lot of this just is puzzling, not able to be answered, 
just puzzling.
    Judge, you and I both know--and clearly one of the 
hallmarks, at least in my view, of Justice O'Connor's position 
was she fully understood the real world of discrimination. I 
mean, she felt it. Graduated No. 2 in her class from Stanford, 
could not get a job, was offered a job by law firms. Granted, 
she is a little older than you are, but could not get a job 
because she was a woman. They offered her a job as a secretary. 
And so she understood what I think everybody here from both 
ends of the spectrum here understand, that discrimination has 
become very sophisticated. It has become very, very 
sophisticated, very much more subtle than it was when I got 
here 34 years ago or 50 years ago. And employers don't say 
anymore, you know, ``We don't like blacks in this company,'' or 
``We don't want women here.'' They say things like, ``Well, 
they wouldn't fit in,'' or, you know, ``They tend to be too 
emotional,'' or, you know, ``a little high-strung.'' I mean, 
there are all different ways in which now it has become so much 
more subtle. And that is why we all, Democrat and Republican, 
wrote Title VII. We wrote these laws to try to get at what we 
observed in the real world.
    What we observed in the real world is it is real subtle, 
and so it is harder to make a case of discrimination, even 
though there is no doubt that it still exists.
    And so I would like to talk to you about a couple of anti-
discrimination cases. One is the Bray case. In that case, a 
black woman said she was denied a promotion for a job that she 
was clearly qualified for--there was no doubt she was 
qualified--and she said, ``I was denied that job because I am a 
black woman.'' And it was, as I said, indisputable she was 
qualified. It was indisputable that the corporation failed to 
follow their usual internal hiring procedures. And the 
corporation gave conflicting explanations as to why they 
reached a decision to hire another woman who they asserted was 
more qualified than Ms. Bray.
    Now, the district court judge said, you know, Ms. Bray had 
not even made a prima facie case here--or she made a prima 
facie, but she had not made a sufficient showing to get to a 
jury, I am finding for the corporation here. And Ms. Bray's 
attorney appealed, and it went up to the Third Circuit. And you 
and your colleagues disagreed. Two of your colleagues said, you 
know, Ms. Bray should have a jury trial here, and you said, no, 
I don't think she should, and you set out a standard, as best I 
can understand it. And I want to talk to you about it. And your 
colleagues said that if they applied your standard in Title VII 
cases, discrimination cases, that it would effectively, their 
words, ``eviscerate Title VII,'' because, they went on to say, 
it ``ignores the realities of racial animus.'' They went on to 
say that ``Racial animus runs so deep in some people that they 
are incapable of acknowledging that a black woman is qualified 
for a job.''
    But, Judge, you dismissed that assertion. You said that the 
conflicting statements that the employer made were just loose 
language, and you expressed your concern about allowing 
disgruntled employees to impose costs of a trial on employers. 
And so your colleagues thought you set the bar, I think it is 
fair to say, pretty high in order to make the case that it 
should go to a jury.
    Can you tell me what the difference is between a business 
judgment as to who is most qualified--because actually you said 
this comes down to ``subjective business judgment''--and 
discrimination? You said, ``Subjective business judgment should 
prevail unless the qualifications of the candidate are 
extremely disproportionate.'' What is the difference between 
that in today's world and discrimination? I know you want to 
eliminate discrimination. Explain to me how that test is 
distinguishable from just plain old discrimination.
    Judge Alito. Well, this case was one of quite a few that we 
get that are on the line, and I think when you think about the 
nature of the appellate system, it stands to reason that it is 
going to work out that way. The really strong cases tend to 
settle; the really weak cases are either dismissed and not 
appealed, or they settle for modest amounts. So the ones that 
are hotly contested on appeal tend to be the ones that are 
close to the line, whatever the legal standard is.
    Now, four Federal judges looked at the facts in this case. 
One was Judge Maryanne Trump Barry, who was then the district 
court judge and is now one of my colleagues on the Third 
Circuit. I was one. And we thought the evidence was not quite 
sufficient. And then my colleague, Theodore McKee, and Judge 
Green, a district court judge from Philadelphia, a fine 
district court judge, sitting by designation, thought that the 
evidence was sufficient. And I think that division illustrates 
this was a factual case on which reasonable people would 
disagree. This was a case in which there was no direct evidence 
of discrimination, and I could not agree with you more that we 
can't stop there. There are subtle forms of discrimination, and 
the judicial process has to be attentive to the fact that 
discrimination exists and today a lot of it is driven 
underground.
    But all there was in this case were--all that the plaintiff 
could point to to show that there were facts from which you 
could infer discrimination were a very--what looked like a 
really minor violation of the company's internal practices. 
They had a policy under which if somebody was being considered 
for a promotion, they would interview that person and they 
would decide we are going to promote or we are not going to 
promote. And if they decided they were not going to promote, 
then they were supposed to tell that person, ``We've decided 
we're not going to promote you,'' before they go on to 
interviewing the next person. And in this instance, it appeared 
that they interviewed Ms. Bray, and they decided they weren't 
going to promote her. And then they interviewed the other 
candidate, Ms. Real, before they told Ms. Bray that they 
weren't going to promote her.
    There was no--they had nothing to gain by doing that. So it 
is a fact to be considered--
    Senator Biden. Judge, I don't mean to interrupt. I want to 
make sure I understand. I think the reason for that policy is 
that that is the way people do discriminate. For example, you 
get somebody in, a woman, a black, a Hispanic, whomever, who is 
qualified but you don't want to hire them. And if you say, OK, 
in your own mind, I am going to keep looking until I find 
someone who is more qualified so that I don't have to hire--I 
mean, just so we both understand. That is why that rule is 
there. It is not just a little deal. It is the real world. That 
is how people work. People don't say anymore, ``I am not going 
to hire that man over there because he is black'' or ``he is 
Jewish'' or ``she is a woman.'' They don't do that anymore. 
What they do is they look around and they keep looking until 
they find someone, aha, I got one here who is a Rhodes scholar, 
I got one here who is a white male who happened to have 
experience doing it. That is why they have that rule.
    So, again, I am not questioning your commitment to civil 
rights. What I do wonder about is whether or not you--it is 
presumptuous of me to say this--whether you fully appreciate 
how discrimination does work today. That is why the corporation 
set that rule up: Interview the one inside the company, that 
was our practice, hire inside, tell them they have the job or 
not, so that the supervisor, who may not want to work with a 
black woman, doesn't get a chance to go, ``I am going to keep 
looking. Send me in''--``find me somebody who has some 
experience somewhere else.'' That is why they have the rule, 
right?
    Judge Alito. Well, I think you make a good point, Senator, 
but in this instance, my recollection is--and, in fact, I am 
quite sure of this. These were both people who were from the 
inside. They were both Marriott employees. And I think they 
were both being considered for the position at the time. So it 
wasn't an instance in which they interviewed Ms. Bray and then 
they said, ``Well, she is qualified, but we really don't want 
to hire her. Let's keep looking.''
    If there had been evidence to that effect, then I would 
certainly think for the reasons that you've outlined that you 
could draw a pretty substantial inference of an intent to 
discriminate from that.
    Senator Biden. Well, Judge--
    Judge Alito. But nothing like that was presented to us in 
that case, as I remember it.
    Senator Biden. Weren't the facts in that case also that 
there was a Mr. Josten, who had held the very job--he was 
leaving the job. That is the job being filled. He said, ``In my 
opinion, which I let be known''--excuse me. I beg your pardon. 
It wasn't Mr. Josten. The person who was giving up the job 
said, ``In my opinion, I let it be known to Mr. Josten''--the 
guy doing the hiring--``which Mr. Josten was aware of, that 
Bray was more than qualified to take over my position as 
Director of Services at Park Ridge. To this day''--this is a 
quote--``I cannot understand why she was not offered the 
position.'' That was in the record. It was in the record that 
Josten had said in a deposition under oath she is not 
qualified, when she clearly was qualified.
    I mean, I guess what I am curious about is why in a close 
case like this wouldn't you let the jury decide it? Why did you 
become essentially the trier of fact? I mean, what was your 
thinking?
    Judge Alito. Well, my thinking was that the standard we 
were to apply was could a reasonable jury find that 
discrimination was proven here. And it was my view and it was 
the view of the district judge that a reasonable jury couldn't 
find that. The district judge actually looked at the 
qualifications of the two candidates and said, ``This isn't 
even close. Ms. Real is much better qualified than Ms. Bray.''
    Now, I didn't say that and I didn't think that. I thought 
that they had somewhat different qualifications, and a 
reasonable person could view it either way. But there just 
wasn't anything that I saw that a reasonable person could point 
to as a basis for a reasonable inference of an intent to 
discriminate.
    Senator Biden. Well, again, I am puzzled by this, just 
trying to understand your reasoning, because as you accurately 
point out, you didn't say the one was more qualified. You said 
they were equally qualified. And that is what puzzled me. And 
what really got my attention in the case was you have a 
collegial court, you know, the Third Circuit. I mean, that is 
my observation. I don't follow it quite as closely as the man 
who has appointed about everybody on that court, our Chairman. 
But I follow it very closely, and I thought it was pretty 
strong language that the majority of your panel said that your 
standard would eviscerate the Ninth Amendment. That in Third 
Circuit language is a pretty strong statement.
    Let me move on to another case, if I may, the Sheridan 
case, another discrimination case. Again, a little puzzling to 
me. This is a case where you were the only judge in this 
circumstance out of 11 judges on your circuit who heard the 
appeal who ruled that a jury trial should have been overruled--
a jury verdict should have been overruled. In this case, a 
woman alleged that she was constructively discharged. For the 
non-lawyers listening to this, it means she basically was 
demoted to the point where she was, as a practical matter, 
forced to quit.
    This woman alleged that she was constructively discharged, 
and she argued that it occurred after she had brought a 
discrimination claim and where the record showed that her 
employer said, ``I am going to hound you like a dog.'' It was 
in the record. ``I am going to hound you like a dog for 
bringing this discrimination claim.''
    Now, there was more than one issue. One was whether this 
was vindictive--I forget the proper phrase--or whether or not 
she should have been promoted. The third was whether she was 
constructively discharged.
    And the jury heard the case and said, ``We conclude she was 
constructively discharged,'' i.e., she was basically forced 
out, and she was forced out because she was being discriminated 
against. And 10 out of 11 of your colleagues reached that same 
conclusion.
    But you said--and this is what I want you to explain to me. 
You said, ``An employer may not wish to disclose his real 
reasons for taking punitive action against someone or not 
hiring someone or for his animosity toward someone.'' And you 
went on to say, ``The reason for the animosity on the part of 
the employer might be based on sheer personal antipathy,'' 
which is OK.
    Now, again, this is a matter of real world versus, you 
know, theoretically. Can you tell me how you can tell the 
difference when an employer is saying, ``Ms. Feinstein, I am 
not going to hire you because the person seeking the job has a 
Rhodes scholarship and I like him better, and it turns out they 
weren't a Rhodes scholar. The real reason is I just don't like 
your glasses. I don't like the way you look.''
    I am not being facetious. That is--
    [Laughter.]
    Senator Leahy. I like the way you look, Dianne. You look 
OK.
    Senator Biden. For the record, I am a fan of the woman from 
California.
    But all kidding aside, I mean, that is how it read to me, 
that sheer personal antipathy is OK even when the employer's 
reason for not hiring the person toward whom they showed sheer 
personal antipathy wasn't true. How do you distinguish that 
from discrimination, subtle discrimination? That is tough for 
me.
    Judge Alito. Well, this case concerned an issue that had 
really divided the courts of appeals at the time when our court 
addressed it. And the courts of appeals--this gets into a 
fairly technical question involving a Supreme Court case called 
the McDonnell Douglas case. But to put it in simple terms, the 
courts of appeals have divided into three camps on this. There 
was the pretext-plus camp, which was the one that was the least 
hospitable to claims by employees. There was the pretext-only 
camp, which was the camp that was most favorable to employees. 
And there was the middle camp. And my position was in the 
middle camp, and when the issue went to the Supreme Court--and 
it did a couple of years later--in Reeves v. Sanderson 
Plumbing, Justice O'Connor wrote the opinion for the Supreme 
Court, and she agreed with my analysis of this legal issue, 
that in most instances pretext is sufficient. In fact, in the 
vast majority of instances if the plaintiff can show or could 
point to enough evidence to show that the reason given by the 
employer is a pretext, is incorrect, then that is enough to go 
to the jury. In the vast majority of cases, that is sufficient, 
but not in every case, and that is what I said in Sheridan and 
that is what Justice O'Connor said when she wrote the opinion 
for the Supreme Court in Reeves v. Sanderson Plumbing.
    Senator Biden. Well, I went back and read Reeves and I 
looked at O'Connor's statements, and with all due respect you 
could argue she used the same standard, but it is clear to me 
she would have reached a different conclusion. She would have 
been with your ten colleagues.
    Here is what she said. She said in the Reeves case that she 
would not send the case to the jury if, and I am quoting, 
``One, the record conclusively revealed some other non-
discriminatory reason for the employer's decision.'' I fail to 
see how the record conclusively showed that, and I doubt 
whether she would have seen that.
    Or, two, continuing to quote, ``If the plaintiff created 
only a weak issue of fact as to whether the employer's reason 
was untrue and there was abundant uncontroverted evidence that 
no discrimination had occurred.'' It seems to me she is much 
more prepared to give the benefit of the doubt to the employee 
in that situation and you are much prepared to give the benefit 
of the doubt to the employer.
    I mean, by her own language, I find it hard to figure how 
she would have reached the same substantive conclusion that you 
did that a jury trial wasn't appropriate, notwithstanding the 
fact that I think you make a good point that the test she said 
was more like the test you said. But the real-world outcome, I 
think, she would have been--presumptuous of me to say it--I 
think it would have been 11 to 1 and not 10 to 2 had she been 
on the court, but who knows?
    Judge Alito. Well, Senator, I think the vote on my court 
was a reflection of the standard that they applied and they did 
not apply the Reeves v. Sanderson Plumbing standard. Of course, 
Reeves hadn't been decided at that point, but they applied the 
standard that said if the plaintiff can create a fact issue as 
to whether it was pretextual, then that alone is sufficient. So 
they didn't get into an evaluation of the sort of evidentiary 
points that you were mentioning.
    Senator Biden. Well, they kind of did talk--you would know 
better than I, Judge. I don't mean to suggest I am correcting 
you, but as I read the case, they did get into the minutia 
about--
    Judge Alito. They did.
    Senator Biden [continuing]. The factual minutia. And in the 
Reeves case, O'Connor, not that it is--because there are two 
different cases we are talking about here; we are talking about 
a similar rule, two different cases. O'Connor reversed the 
Fifth Circuit decision and here is what she said when she 
reversed it. She said that she reversed the lower court 
because, quote, ``It proceeded from the assumption that a prime 
facie case of discrimination combined with sufficient evidence 
for the trier of fact to disbelieve the defendant's legitimate 
non-discriminatory reason for its decision is insufficient as a 
matter of law to sustain a jury finding of intentional 
discrimination.''
    It seems to me that is what you did. In my view, that is 
what you did--that is the conclusion you reached in the 
Sheridan case. She overruled in Reeves, as I read it. But at 
any rate, as someone once said, it is your day job and we do 
this part-time. We have other things like wars and foreign 
policy to deal with, so I am not presuming to be as 
knowledgeable about this as you are.
    Let me move on to a third case very quickly--I only have 
two-and-a-half minutes left--and it is the Casey case, Planned 
Parenthood. And I don't care what your position is on abortion. 
This is not about your abortion position. It is about your 
reasoning here. As a matter of fact, with 2 minutes and 30 
seconds, I probably can't get into the case. maybe I should do 
it in a second round, but I should tell you now I want to talk 
to you about, again, the real world here and kind of the 
effects test.
    And so for me, Judge, where I am still remaining somewhat 
puzzled is on whether or not you--whether it is applying the 
unitary Executive standard and what you mean by that or whether 
it is the assertions made relative to how to look at 
discrimination cases, which are difficult, you seem to come 
down--I am not associating myself with the studies done--I 
don't know enough to know whether they are correct or not--by 
Cass Sunstein or others. I don't disagree with them.
    But as I have tried diligently to look at your record, you 
seem to come down more often and give the benefit of the doubt 
to the outfit against whom discrimination is being alleged. You 
seem to lean--in close cases, you lean to the state versus the 
individual. Now, again, a lot of constitutional scholars would 
argue that is perfectly correct.
    All I am suggesting is if I am right--and we will get a 
chance to do this again--if I am right, that would be a change 
that will occur, more than subtle, on the bench, on this Court, 
on a closely divided Court, which would take it in a direction 
that I am not as comfortable with as others may be.
    But at any rate, you have been very gracious. I appreciate 
you being responsive, and I thank the Chair. And I want to note 
for maybe the first time in history, Biden is 40 seconds under 
his time.
    [Laughter.]
    Chairman Specter. Thank you very much, Senator Biden. It is 
greatly appreciated.
    We are going to stay in session for just ten more minutes 
and call now on Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Mr. Chairman, let me begin by just asking the witness if 
you would like to comment again on the unitary Executive. I 
have this specifically in mind because while I think I 
understood your explanation of it, Senator Biden just referred 
to it and I thought maybe it would be useful to draw the 
distinction that I heard you draw with respect to your 
discussion of the unitary Executive power, if you could do 
that, please.
    Judge Alito. Yes, certainly, Senator. As I understand the 
concept, it is the concept that the President is the head of 
the Executive branch. The Constitution says that the President 
is given the Executive power and the idea of the unitary 
Executive is that the President should be able to control the 
Executive branch, however big it is or however small it is, 
whether it is as small as it was when George Washington was 
President or whether it is as big as it is today or even 
bigger.
    It has to do with control of whatever the Executive is 
doing. It doesn't have to do with the scope of Executive power. 
It does not have to do with whether the Executive power that 
the President is given includes a lot of unnamed powers or what 
is often called inherent power. So it is the issue--it is the 
difference between scope and control. And as I understand the 
idea of the unitary Executive, it goes just to the question of 
control. It doesn't go to the question of scope.
    Senator Kyl. Of who eventually has the last say about 
Executive power, which would be the President?
    Judge Alito. Right.
    Senator Kyl. OK, thank you. Now, I want to also ask you a 
question which was asked of Judge Bork in his confirmation 
hearing, and his answer, as I understand it, was not well 
accepted by some Members of the Senate, was expressed as one of 
the reasons for their opposition to him. So it is more than 
just a mundane question, although it is a simple question.
    By accepting the President's nomination, you have obviously 
expressed a willingness to serve on the U.S. Supreme Court. So 
my question is why would you want to serve on the U.S. Supreme 
Court?
    Judge Alito. I think it is an opportunity for me to serve 
the country using whatever talent I have. I think that the 
courts have a very important role to play, but it is a limited 
role. So it is important for them to do a good job of doing 
what they are supposed to do, but also not to try to do 
somebody else's job.
    And I think that this is an area for--this is a way in 
which I can make a contribution to the country and to society. 
I have tried to do that on the court of appeals and I would 
continue to do that if I am confirmed for the Supreme Court.
    Senator Kyl. Thank you. Now, let me ask you a question that 
I also asked now Chief Justice John Roberts, and it is obvious 
from my question that I do not support the use of foreign law 
as authority in United States court opinions.
    I mentioned to him the 2005 case of Roper v. Simmons, in 
which the Supreme Court spent perhaps 20 percent of its legal 
analysis discussing the laws of Great Britain, Saudi Arabia, 
Yemen, Iran, Nigeria and China. And I reminded the Committee of 
Justice Breyer's 1999 dissent from denial of cert in Knight v. 
Florida, in which he relied on the legal opinions of Zimbabwe, 
India, Jamaica and Canada in arguing that a delay caused by a 
convicted murderer's repeated appeals, appeals brought by the 
convict, should be considered cruel and unusual punishment.
    I expressed my view that reliance on foreign law is 
contrary to our constitutional traditions. It undermines 
democratic self-government and it is utterly impractical, given 
the diversity of legal viewpoints worldwide. And I would add 
that it is needlessly disrespectful of the American people, as 
seen through the widespread public criticism of the trend.
    Now, with my cards on the table, I turn to you. What is the 
proper role, in your view, of foreign law in U.S. Supreme Court 
decisions, and when, if ever, is citation to or reliance on 
these foreign laws appropriate?
    Judge Alito. I don't think that foreign law is helpful in 
interpreting the Constitution. Our Constitution does two basic 
things. It sets out the structure of our Government and it 
protects fundamental rights. The structure of our Government is 
unique to our country, and so I don't think that looking to 
decisions of supreme courts of other countries or 
constitutional courts in other countries is very helpful in 
deciding questions relating to the structure of our Government.
    As for the protection of individual rights, I think that we 
should look to our own Constitution and our own precedents. Our 
country has been the leader in protecting individual rights. If 
you look at what the world looked like at the time of the 
adoption of the Bill of Rights, there were not many that 
protected human--in fact, I don't think there were any that 
protected human rights the way our Bill of Rights did.
    We have our own law, we have our own traditions, we have 
our own precedents, and we should look to that in interpreting 
our Constitution. There are other legal issues that come up in 
which I think it is legitimate to look to foreign law. For 
example, if a question comes up concerning the interpretation 
of a treaty that has been entered into by many countries, I 
don't see anything wrong with seeing the way the treaty has 
been interpreted in other countries. I wouldn't say that that 
is controlling, but it is something that is useful to look to.
    In private litigation, it is often the case--I have had 
cases like this in which the rule of decision is based on 
foreign law. There may be a contract between parties and the 
parties will say this contract is to be governed by the laws of 
New Zealand or wherever. So, of course, there, you have to look 
to the law of New Zealand or whatever the country is.
    So there are situations in litigation that come up in 
Federal court when it is legitimate to look to foreign law, but 
I don't think it is helpful in interpreting our Constitution.
    Senator Kyl. Thank you. Now, let me close with this 
question. In the Judiciary Committee's questionnaire to you, 
you were asked about your views of judicial activism, and as 
part of your answer you said something intriguing to me. You 
said some of the finest chapters in the history of the Federal 
courts have been written when Federal judges, despite 
resistance, have steadfastly enforced remedies for deeply 
rooted constitutional violations.
    How does one determine that a constitutional violation is 
deeply rooted, and can you elaborate on what you meant by that 
and when Federal courts should be especially aggressive in 
their use of equitable powers?
    Judge Alito. Well, what I was referring to were the efforts 
of Federal judges, lower Federal court judges in the South 
during the days after the decision in Brown v. Board of 
Education to try to implement that historic decision, despite 
enormous public resistance at times. But they--this was an 
example of the Federal judiciary not swaying in the wind of 
public opinion. There was a lot of opposition and I am sure 
that it didn't make them popular.
    I have read a number of books concerning the situation in 
which they found themselves, but on the whole they behaved--
they did what a Federal judge is supposed to do, which is that 
they enforced the decision of the Supreme Court of the United 
States that, after a long delay, vindicated what the Equal 
Protection Clause of the 14th Amendment was supposed to mean, 
which was to guarantee equal rights to people of all races.
    Senator Kyl. Are there other examples that come to your 
mind of that same application of power? It seems counter 
intuitive, but when you think about it, it is absolutely 
essential for the courts sometimes to buck public opinion and 
enforce what may be considered unpopular laws.
    Judge Alito. Well, there were some examples cited earlier 
today when the courts said that the Executive had overstepped 
the bounds of its authority. The Youngstown Steel case was 
cited, and that is certainly an example where President Truman 
thought that it was necessary to seize the steel mills so as 
not to interfere with the war effort in Korea. But the Supreme 
Court said that this was an overstepping of the bounds of 
Executive authority.
    There was a reference to United States v. Nixon where the 
Supreme Court said that the President of the United States had 
to comply with grand jury subpoena for documents and they stood 
up for what they understood the law to mean, despite the fact 
that there must have been great pressure against them in 
another direction. So when situations like that come up, it is 
the responsibility of the judiciary to hold fast.
    Senator Kyl. Mr. Chairman, since there are just about 30 
seconds left here, rather than ask another question, let me 
just close with quoting three sentences from the letter sent by 
the American Bar Association to you dated January 9. I thought 
this was especially interesting in view of the subjects that 
they dealt with--the integrity of the nominee, as well as his 
abilities and character.
    They said, ``Fifty years ago, a Supreme Court Justice wrote 
of the traits of character necessary to serve well on the 
Supreme Court. He referred to the ability to put one's passion 
behind one's judgment instead of in front of it and to 
demonstrate what he called dominating humility. It is the 
belief of the Standing Committee that Judge Samuel Alito 
possesses those same qualities.''
    I think that is quite a testament to your character and 
your integrity, and I am sure you appreciate the Bar 
Association reaching that conclusion.
    Judge Alito. Thank you very much, Senator.
    Chairman Specter. We will now recess until 2:15, at which 
time Senator Kyl will be recognized for 20 minutes, which is 
the balance of his 30-minute first round.
    Recess until 2:15.
    [Whereupon, at 1:04 p.m., a luncheon recess was taken.]
    [AFTERNOON SESSION 2:15 p.m.]
    Chairman Specter. We will turn now to Senator Kyl, who has 
20 more minutes on his first round of 30 minutes.
    Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. First let me ask 
unanimous consent to put three items in the record, one of 
these items related to--actually, two of them relate to the 
matter of the CAP that we have heard something about. I would 
like to enter into the record two letters by Democratic 
attorneys that make clear that Judge Alito has been extremely 
helpful in advancing the interest of women and minorities. One 
letter notes that as U.S. Attorney, he put women and minorities 
in supervisory positions. The other is from the President-elect 
of the National Bar Association for Women.
    And also a Washington Post article from January 9th, in 
which criminal defense lawyer and Democrat, Alberto Rivas, who 
served in the U.S. Attorney's Office when Judge Alito was in 
charge said, speaking of the judge, ``While he opposed numeric 
hiring quotas, he took steps to diversify an office that had 
the reputation of something of a white boys' club.
    Mr. Chairman, I hope that this will help address what I 
think is almost getting to be a--
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Kyl. Thank you. Secondly, there has been some 
discussion of this Knight-Ridder article that has, to be my 
understanding, been rather completely discredited, and I ask 
unanimous consent that the attached document analyzing that 
article be added to the record.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Before the break, Senator Biden suggested 
that--at least I understood him to suggest that there was no 
reason to belong to this organization, CAP, in 1985 because 
ROTC was safely on campus at that time.
    Judge, let me ask you a question. Do you know what year you 
joined the CAP?
    Judge Alito. I don't know, Senator. I tried to rack my 
memory about that, but as I said, if I had been active in my 
membership, I think I certainly would have remembered that, and 
if I had renewed the membership, I think I would remember that. 
So my best reconstruction of this is that it probably was 
sometime around the time when I wrote that statement.
    Senator Kyl. Long after you were gone from the school.
    Judge Alito. That's correct.
    Senator Kyl. In that event, Mr. Chairman, I ask unanimous 
consent to include in the record an article from the campus 
newspaper, the Princeton Packet, dated February 12th, 1985, 
which expressly explains that ROTC was a core motivation behind 
the CAP in 1985.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Thank you. Mr. Chairman, I noted with interest 
a comment that Senator Durbin made in his opening statement 
because it referred to a good friend and former colleague of 
ours, Senator Simon, who put forth a pretty good test about 
courts. He said that the real test is, is the Court restricting 
freedom or expanding it? I thought about that because it seems 
to me that so many of these cases about expanding freedom or 
restricting it are cases that boil down to the eye of the 
beholder.
    I specifically thought about the Ninth Circuit case, 
because my State is from the Ninth Circuit, outlawing ``under 
God'' in the Pledge of Allegiance, saying that that is 
unconstitutional. I checked, according to the one survey that I 
had access to, 93 percent of the American people support the 
right to say ``under God'' in the Pledge of Allegiance. I know 
that the plaintiff in the case, Michael Newdow, thought that he 
was advancing his freedom or his daughter's freedom in 
successfully getting the Court to strike it down, but it seems 
to me that the majority of the people are having their freedom 
restricted in such a case.
    And I certainly will not ask you because that case could 
well come before the Court again. I would not ask you how you 
would rule on it. But as a general proposition, this matter of 
restricting freedom, is it not the case that in many situations 
you have two competing types of freedom or liberty involved and 
it is a question of interpreting the Constitution rather than 
specifically setting out to advance one sort of freedom as 
opposed to another?
    Judge Alito. I think that's exactly right, Senator. Often 
there are conflicting freedoms and that makes the case 
difficult.
    Senator Kyl. Let me ask you too, there was a concern 
expressed by Senator Biden that the big factor in your 
nomination in his view was the fact that you would be replacing 
Justice Sandra O'Connor, and that that might mean that you 
would change the direction of the Court. That is the concern 
expressed anyway. As has been famously said, I know Justice 
O'Connor. I have been a friend of hers for at least 30 years, 
and I do not think she is any kind of a liberal member of the 
Court. She might properly be called moderately conservative. I 
am not sure how she would characterize herself. But I noted 
that of the 109 Justices to sit on the Supreme Court, nearly 
half, 46 to be exact, have replaced judges appointed by another 
political party, so it is not at all uncommon, indeed, it is 
almost half the situations in which a different party nominates 
the Justice replacing a sitting Justice, and one might expect, 
therefore, some difference.
    But I checked the record because this had been brought up 
by Senator Brownback yesterday. I found in the nomination of 
Justice Ginsburg and the confirmation hearings there, she 
replaced Justice White, who I think rightly has been called a 
centrist on the Court, certainly not a liberal, and yet I saw 
not one expression of concern by any Senator, Democrat or 
Republican, that Justice Ginsburg might be ruling quite a bit 
differently than Justice White in decisions in the Court.
    So it seems to me that that is not a test that is rightly 
applied. That is a results-oriented test, exactly the same kind 
of thing that you have said that judges should not do when they 
approach cases.
    Let me get to a point that Senator Kennedy made. He said 
that you have been overly deferential to Executive power, and 
criticized what he called--and I think I have this quotation 
exactly--``your almost total disregard of the impact of these 
powers on the rights of individuals.'' I would like to know 
what your response is to that charge and whether you can cite 
some specific cases that would refute what he said.
    Judge Alito. Certainly, Senator. I have tried to decide 
every case on its own merits, and sometimes that means siding 
with the Government, and sometimes it means siding with the 
party who's claiming a violation of rights, and I do it on an 
individual basis. Cases that show that I do that are cases like 
United States v. Kithcart, which was a case in which an 
African-American man had been stopped by police officers 
because he was--because there had been a description of some 
robbery suspects, and they had been described as--the 
perpetrator was described as a black man in a black car, and 
Mr. Kithcart was a black man in a black car. And they thought 
that was sufficient to stop the car, and I wrote an opinion 
saying that that was insufficient, and that was basically 
racial profiling and was not permitted.
    Another example is Bolden v. Southeastern Pennsylvania 
Transportation Authority, which had to do with a drug test, and 
I found that the test there constituted a search and a seizure 
and would be a violation absent consent on the part of the 
party who was searched. There have been a number of criminal 
cases in which I've sided with the person claiming a violation 
of rights. Carpenter v. Vaughn was a case in which I wrote an 
opinion reversing a death--I joined an opinion reversing a 
death penalty. The Bronshtein case was another case that came 
up fairly recently in which I joined an opinion reversing a 
death penalty. There have been quite a few cases of this 
nature, Senator.
    Senator Kyl. I noted a tax case too, or a case involving 
tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
    Judge Alito. I do. That was the case in which there was a 
search of a--I believe it was the office of a veterinarian, and 
in a way that is a similar case to the Mellott case that I was 
discussing earlier, although in Mellott I thought that the 
search was carried out properly. In the Leveto case, on the 
facts of that case, I thought the search was not carried out 
properly, that the officers violated the Fourth Amendment in 
the way they went about carrying out that search. They forced 
the occupants of these premises to remain on the premises for a 
very extended period of time while the search was being 
conducted, and violated their Fourth Amendment rights, and 
that's what I said in the opinion.
    Senator Kyl. Do you have an idea of how many cases that 
have gone to decision that you have participated in on your 15 
years as a Circuit Court Judge?
    Judge Alito. I think it's well over 4,000 on the merits.
    Senator Kyl. I suspect that of those 4,000 cases there 
might be one or two that I would disagree with your decisions 
on, maybe even more than that. But the point here is there are 
numerous cases in which you have found that the Government 
acted improperly in criminal law context, in warrant context, 
in discrimination context, in other cases in which you have 
found either that the Government acted properly, or that at a 
minimum, Government officials were entitled to some immunity 
with respect to being privately sued; is that correct?
    Judge Alito. That's correct, Senator.
    Senator Kyl. Let me also address this question of 
discrimination, especially racial discrimination. This is a 
matter that was discussed in some prior questioning. 
Specifically, in Senator Biden's questions, it dealt with the 
Sheridan case in which you were the sole dissenter. In the 
subsequent U.S. Supreme Court case, the Reeves decision, my 
understanding from your answer is that the Supreme Court 
addressed the same issue of law that you and your colleagues 
had disagreed about, and that the U.S. Supreme Court voted 
unanimously, and in an opinion written by Justice O'Connor, 
that the test that you used in the Sheridan case was the 
correct test to use; is that correct?
    Judge Alito. Yes, Senator, that is correct.
    Senator Kyl. Now, there are some other cases involving 
employees claiming racial discrimination that I have looked at, 
and one of the Senators seemed to suggest in a comment that he 
made that you had never written opinions or decided cases for a 
black plaintiff. Is that a fair statement?
    Judge Alito. No, it's not accurate.
    Senator Kyl. Do you recall cases in which you upheld the 
discrimination claims of racial minorities?
    Judge Alito. There was the case of Goosby v. Johnson & 
Johnson, and that case could be considered together with the 
Bray case that I was discussing before the break. Those were 
both cases in which my colleague, Judge McKee wrote the 
opinion, and in the Goosby case I agreed with him. It was a 
similar case, but it was a case where I thought the facts fell 
on the other side of the line.
    There was a case called Smith v. Davis, which was another 
case where I joined an opinion upholding the claim of an 
African-American who was claiming racial discrimination. The 
Robinson case involved claims of race and gender 
discrimination, as I recall. There are a number of cases in the 
criminal law context. I just mentioned the Kithcart case. There 
was the Brinson case. There was Williams v. Price. There have 
been many cases involving other forms of discrimination, age 
discrimination, the Showalter case; disability case, the 
Mondzelewski case; the case of Shapiro v. Lakewood Township. 
There was Zubi v. AT&T, which was a case involving the statute 
of limitations for a claim of racial discrimination.
    Senator Kyl. And you were the lone dissenter in that case, 
is that correct?
    Judge Alito. I was the dissenter in that case.
    Senator Kyl. And your position was what?
    Judge Alito. My position was that--the majority's position 
was that the claim had to be thrown out because the statute of 
limitations had been violated, and my position was that the 
claim should be allowed to go forward because the statute of 
limitations was longer than the majority had recognized. And 
that case--that issue later went to the Supreme Court in a case 
called Jones v. Donnelley and the Supreme Court agreed with my 
position, that the longer statute of limitations applied.
    Senator Kyl. I note there is another case involving an 
African-American woman who claimed that her coworkers had made 
racial and sexual slurs against her, denied her training 
opportunities and so on, and you ruled that she was entitled to 
$124,000 in damages and attorneys' fees, a case called Reynolds 
v. USX Corporation. Do you remember that case?
    Judge Alito. That's right, Senator.
    Senator Kyl. So the bottom line is there are numerous cases 
in which you have ruled in favor of minorities, in particular, 
African-Americans in discrimination situations, and also where 
you have dissented in a situation which your position was to 
support the claim of discrimination, and that it would be 
inaccurate to say that you have not taken that position in the 
4,000 plus cases that you have decided; is that correct?
    Judge Alito. That's certainly correct, Senator.
    Senator Kyl. There has been a lot of talk about precedent 
and stare decisis. It is certainly something that we lawyers 
are familiar with. We regard it as a key principle in deciding 
cases. There was a case that was mentioned by a couple of my 
Democratic colleagues that I am sure will be discussed further, 
but I thought I would give you an opportunity to talk about it 
because it certainly seemed to me to be a case in which you 
were very--that you were trying to apply a Supreme Court 
precedent, the precedent being the Lopez v. United States case, 
a case, by the way, which I note that is one of those decisions 
that Justice O'Connor was in the majority, a 5-4 decision, 
which her position could be characterized as the swing vote.
    Now you, in United States v. Rybar, agreed with Justice 
O'Connor and the way that the law should be applied relative to 
intrastate possession of a weapon. The Lopez case dealt with a 
congressional Act that said that weapons should not be 
possessed near schools. The Court struck that down, saying that 
that went beyond the Commerce Clause capability of commerce to 
legislate in matters of interstate commerce. In Rybar, what was 
the issue? You dissented.
    By the way, one of the reasons why this case is interesting 
to me is because the Ninth Circuit Court of Appeals, again, 
which is my circuit, has subsequently ruled--and this is not a 
conservative court in most people's estimation--recently agreed 
with your dissent in a case called U.S. v. Stewart, a 2003 
case, in which the Court overturned the defendant's conviction 
under the very same statute, holding that the law exceeded 
Congress's commerce powers.
    It seems to me that it would be hard to argue that your 
position is per se unreasonable, but could you describe it in 
your own words?
    Judge Alito. My position in Rybar was really a very modest 
position, and it did not go to the question of whether Congress 
can regulate the possession of machine guns. In fact, I 
explained in the opinion that it would be easy for Congress to 
do that in a couple of ways that differed from the way in which 
it was done in Rybar.
    The statute in Rybar was very similar to the statute that 
was at issue in Lopez. In fact, I think they are the only two 
Federal firearm statutes that have been cast in that mold. They 
simply prohibited the possession of firearms without either 
congressional findings concerning the effect of the activity on 
interstate commerce, or a jurisdictional element. And I knew 
from my experience as a Federal prosecutor that most of the 
Federal firearms statutes have a jurisdictional element right 
in the statute. What that means is that when the prosecutor 
presents the case in court, the statute that is used most 
frequently is the statute that makes it a crime for someone 
who's been convicted of a felony to possess a firearm.
    And in that case, when the prosecutor presents the case in 
court, the prosecutor has to show that the defendant has been 
convicted of a felony, and that the firearm in question had 
some connection with interstate commerce.
    Under Supreme Court precedent, a case called Scarborough, 
all that's necessary is to show that the firearm, at some point 
in its history, passed an interstate or foreign commerce, was 
manufactured in one State and then later turned up in another 
State, or manufactured in a foreign country and brought to the 
United States.
    From my experience, this was never a practical problem, and 
this was how all the Federal firearms statutes had been framed. 
But for whatever reasons, the statute in Lopez and the statute 
in Rybar were lacking that jurisdictional element. So an easy 
way in would Congress could regulate the possession of a 
machine gun would be to insert a jurisdictional element. And as 
I pointed out, as I just pointed out, in my experience as the 
U.S. Attorney in New Jersey, that was never a practical 
problem.
    The Supreme Court in Lopez said that there were three 
reasons why there was a problem with the statute there, and 
that case had been decided just the year before. And it was my 
obligation as a lower-court judge to follow it. The first was 
that it involved what the Court characterized as the 
noncommercial activity, and that was the possession of a 
firearm. And, of course, that was exactly the same activity 
that was at issue in Rybar. The second was the absence of a 
jurisdictional element, and there was no jurisdictional element 
in either statute. And the third was the absence of a 
congressional finding connecting the activity that was being 
regulated with interstate commerce. And I pointed out in my 
opinion that I would have viewed the Rybar case very 
differently if there had been a congressional finding, or if 
the Justice Department, in presenting its argument to us, had 
been able to point to anything that showed that there was a 
substantial effect on interstate commerce, which is what the 
Supreme Court says is required.
    Senator Kyl. So this is one of those situations in which, 
if the result was not what was intended, you were willing to 
point out in your decision what Congress could relatively 
easily have done to get the result that it appeared that 
Congress wanted to achieve?
    Judge Alito. That's exactly correct.
    Senator Kyl. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Kohl?
    Senator Kohl. Thank you very much, Mr. Chairman.
    Judge Alito, we heard a lot of discussion yesterday about 
the proper role of the judge in our system. Some said that a 
judge should favor neither the ``big guy or the little guy, but 
simply apply the law and not make the law.'' Based on what you 
said yesterday, I believe that you would agree generally with 
this characterization.
    However, to me it is not quite so simple. Just as no two 
umpires call the same game exactly, no two judges see a case in 
exactly the same way. Laws and the Constitution are often 
ambiguous and capable of many interpretations. Those 
interpretations are the result of judges with different 
judicial philosophies. Some judges have a more liberal judicial 
philosophy, while others are more conservative, and we are here 
trying to figure out what your judicial philosophy is. That is 
probably the principal point of this hearing.
    If the law were so simple, we would not have as many 5-4 
decisions. It seems to me that many of the most fundamental 
protections of civil rights and civil liberties that we take 
for granted today, things such as school integration, the 
principle of one person/one vote, the principle that the 
accused have a right to a lawyer in criminal cases, and the 
right of contraception, just to name a few, have come when 
judges have been willing to look beyond rigid legal doctrines 
that prevailed at the times of those rulings. The neutral 
approach, that of the judge just applying the law, is very 
often inadequate to ensure social progress, right historic 
wrongs, and protect civil liberties so essential to our 
democracy.
    So isn't it true, Judge Alito, that a neutral judge would 
never have reached these conclusions? In fact, for decades, 
courts did not reach these conclusions. So would you agree that 
these cases were rightly decided, No. 1, and required, No. 2, 
that judges apply a more expansive, imaginative view of the 
Constitution?
    Judge Alito. I think that the Constitution contains both 
some very specific provisions, and there the job of 
understanding what the provision means and applying it to new 
factual situations that come up is relatively easy. The 
Constitution sets age limits, for example, for people who want 
to hold various Federal offices, and there can't be much debate 
about what that means or how it applies. But it also contains 
some broad principles--no unreasonable searches and seizures, 
the guarantee that nobody will be deprived of life, liberty, or 
property without due process of law, equal protection of the 
laws. And in those instances, it is the job of the judiciary to 
try to understand the principle and apply it to the new 
situations that come before the judiciary.
    I think the judiciary has to do that in a neutral fashion. 
I think judges have to be wary about substituting their own 
preferences, their own policy judgments for those that are in 
the Constitution. They have to identify the principle that is 
to be applied under these broader provisions of the 
Constitution and apply it, but I don't see that as being the 
same thing as the judge's injecting his or her policy views or 
preferences or ideas about the direction in which the society 
should be moving into the decisionmaking process.
    Senator Kohl. These decisions to which I just referred push 
society into new directions, and they came about, didn't they, 
as a result of the Supreme Court's willingness to look at the 
Constitution in perhaps a different way, in a new way, and take 
a new approach and a new avenue, which is not entirely 
consistent with a neutral judge simply applying the law. The 
law is the law. It is not hard to find that out. As you 
somewhat suggested, if you are an umpire, a ball is a ball, a 
strike is a strike. I am suggesting that it is--and I think I 
would like to hope you would agree. It is somewhat, if not a 
lot more complex and sophisticated. If it weren't true, we 
could have a lot of views here today.
    I think you are unique in many ways, and part of that is 
your complexity, your sophistication, your ability to look at 
the Constitution and, if necessary, see new meanings that 
weren't seen there before. Isn't that true?
    Judge Alito. Well, Senator, I would never say that it is an 
easy process. There are some easy cases, but there are a lot of 
very difficult cases. And once you have identified the 
principle, the job of applying it to particular cases is often 
not easy at all. But what the judge has to do is make sure that 
the judge is being true to the principle that is expressed in 
the Constitution and not to the judge's principle, not to some 
idea that the judge has. And sometimes this results in ground-
breaking decisions. Sometimes that is because new issues come 
up. Sometimes it is because the principle that is embodied in a 
constitutional provision has long been neglected.
    That was certainly true with respect to the Equal 
Protection Clause. There was a long period between Plessy v. 
Ferguson and Brown v. Board of Education when the true meaning 
of the Equal Protection Clause was not recognized in the 
decisions of the Supreme Court, and when Brown was finally 
decided, that was not an instance of the Court changing the 
meaning of the Equal Protection Clause. It was an instance of 
the Court righting an incorrect interpretation that had 
prevailed for a long period of time.
    Senator Kohl. Judge Alito, one of the ways you get at a 
person's judicial philosophy is to look at the people whom they 
admire. In an interview that you gave in 1988, you were asked 
about your thoughts about Judge Robert Bork's nomination, and 
you said, and I quote, ``Judge Bork was one of the most 
outstanding nominees of this century.''
    Many Americans do not share Judge Bork's narrow views about 
the Constitution, views that would undermine many of the rights 
that we now take for granted, Judge Alito. Judge Bork thought 
that Americans had no constitutional right to use 
contraception, saying, and I quote, ``The right to procreate is 
not guaranteed explicitly or implicitly by the Constitution.''
    Judge Bork thought minorities had no constitutional right 
to have their votes counted equally, saying that in 
guaranteeing one man/one vote, the Court ``stepped beyond its 
boundaries as an original matter.''
    In 1981, Judge Bork called Roe v. Wade ``an 
unconstitutional decision, serious and wholly unjustifiable 
usurpation of State legislative authority.''
    In addition, he had an unreasonably broad view of Executive 
power, claiming that a law requiring the President to obtain an 
order from a court before conducting surveillance in the United 
States and against U.S. citizens for foreign intelligence 
purposes was ``a thoroughly bad idea, and almost certainly 
unconstitutional.''
    Can we assume from your admiration of Judge Bork that you 
agree with some of these statements or at least that you 
support some of these beliefs if you were sitting on the 
Supreme Court? Frankly, it is curious to me that someone like 
yourself would consider someone with his views to be ``one of 
the most outstanding nominees of this century.''
    Judge Alito. Senator, when I made that statement in 1988, I 
was an appointee in the Reagan administration, and Judge Bork 
had been a nominee of the administration, and I had been a 
supporter of the nomination. And I don't think the statement 
goes beyond that.
    There are issues with respect to which I probably agree 
with Judge Bork, and there are a number of issues on which I 
disagree with him. And most of the things that you just 
mentioned are points on which I would disagree with him. I 
expressed my view about Griswold earlier this morning. On the 
issue of reapportionment, as I sit here today in 2006--and I 
think that is what is most relevant--I think that the principle 
of one person/one vote is a fundamental part of our 
constitutional law. And I think it would be--I don't see any 
reason why it should be re-examined, and I don't know that 
anybody is asking for that to be done. Every legislative 
district in the country and every congressional district in the 
country has been reapportioned, has been redistricted numerous 
times in reliance on the principle of one person/one vote. And 
the old ways of organizing State legislatures have long been 
forgotten. So I think that is very well settled now in the 
constitutional law of our country.
    Under the Fourth Amendment, I have no question about the 
decision in United States v. United States District Court, 
which held--and I think that is what you were referring to, 
which held that a warrant is required for domestic security 
surveillance, and that was the decision that led to the 
enactment of the Foreign Intelligence Surveillance Act.
    Senator Kohl. Of course. I was only referring to or trying 
to refer to your quote with respect to him and the positions he 
held, which I suggested were at variance with the positions I 
thought you held, which you are affirming here in your answer. 
So that the quote you are pointing out was something you made 
as an employee of the Reagan administration?
    Judge Alito. I was, and that was in--I saw that quoted in 
the paper yesterday. I think that was in 19--
    Senator Kohl. Not necessarily expressing your own real 
views?
    Judge Alito. I was a supporter of the nominee of the 
administration, and he was the nominee of the administration. 
He was and is an accomplished scholar. He had contributed a 
great deal to constitutional debate with his writings. But I 
don't agree with him on a number of issues, and I mentioned--
you hit some of the issues on which I would definitely disagree 
with him.
    Senator Kohl. Very good.
    Judge Alito, in a document appended to your job 
applications, you also wrote that, ``I disagree strenuously 
with the usurpation by the judiciary of decisionmaking 
authority that should be exercised by branches of Government 
responsible to the electorate.'' The statement is especially 
troubling given that elsewhere in this application you wrote, 
``I developed a deep interest in constitutional law motivated 
in large part by disagreement with Warren Court decisions, 
particularly in the areas of criminal procedure, Establishment 
Clause, and reapportionment.''
    Judge Alito, what Warren Court cases were you specifically 
talking about--Miranda, one person/one vote, any of the privacy 
decisions? What in particular were you talking about?
    Judge Alito. Well, Senator, I am happy to address that. The 
statement was made in that 1985 form, and, of course, that was 
written 20 years ago. And in the form, what I was doing was 
sort of outlining the development of my thinking about 
constitutional law, and I went so far as to go back to my 
college days, which were before, of course, I had even attended 
law school, much less practiced law or served as a judge.
    I mentioned some of the leading areas that were covered by 
decisions of the Warren Court, and the decisions of the Warren 
Court really stimulated my interest in constitutional law. And 
I mentioned a book that had been published the time, Alexander 
Bickel's book ``The Supreme Court and the Idea of Progress,`` 
which was probably the first book about what you might call 
constitutional theory that I had read. And he was someone who I 
think most people would describe as a liberal, but he was a 
critic of the Warren Court for a number of reasons. And he was 
a great proponent of judicial self-restraint, and that was the 
main point that I took from my pre-law school study of the 
Warren Court.
    I spoke a bit about the reapportionment decisions. I don't 
believe that I--in fact, I am quite sure I never was opposed to 
the one person/one vote concept. I do recall quite clearly that 
my father's work at the time working for the New Jersey 
Legislature and working on reapportionment had brought to my 
attention the question of just how far that principle of one 
person/one vote had to be taken in drawing legislative 
districts.
    The New Jersey Legislature and many other legislatures at 
the time were trying to redraw their districts in accordance 
with Reynolds v. Sims, which set out the one person/one vote 
principle. But it wasn't clear how exactly equal the districts 
had to be in population. And in some of the late Warren Court 
decisions, the Court seemed to suggest--did say so for 
congressional districts that they had to be almost exactly 
equal in population. And this idea, if applied to the 
legislatures and to the New Jersey legislative plan, would have 
wiped the plan out because there were population deviations 
which, although not very large, were much larger than the Court 
had said they were going to tolerate in the case of 
congressional districts. And I do remember that quite 
specifically.
    Professor Bickel made the argument that the Court had taken 
the one person/one vote principle too far, and I know my father 
had said that although he thought it was a good idea, the idea 
of trying to get the districts to be exactly equal in 
population at the expense of looking at other factors, such as 
the shape of the district and respecting county lines or 
municipal lines, was a bad idea.
    Senator Kohl. Judge Alito, you stated in that same job 
application that one element of the conservative philosophy 
that you believe ``very strongly'' was the ``legitimacy of a 
government role in protecting traditional values.'' What 
traditional values were you referring to? And who decides what 
is a ``traditional value'' ?
    Judge Alito. Well, again, I'm trying to remember what I 
thought about that 20 years ago, and I'm trying to reconstruct 
it.
    I think a traditional value that I probably had in mind was 
the ability to live in peace and safety in your neighborhood, 
and that was a big issue during the time of the Warren Court, 
and it was still a big issue in 1985 when I wrote that 
statement because that was a time of very high crime rates. I 
think that is a traditional value.
    I think the ability of people to raise a family and raise 
their children in accordance with their own beliefs is a 
traditional value. I think the ability to raise a family, raise 
children in a way that they are not only subjected to--they are 
spared physical threats but also psychological threats that can 
come from elements in the atmosphere is a traditional value. I 
think that the ability to practice your own conscience is a 
traditional value.
    That is the best I can reconstruct it now, thinking back to 
1985.
    Senator Kohl. Very good. Judge Alito, in Casey you argued 
that the requirement that a woman notify her husband did not 
impose an undue burden upon a woman. You reasoned in part that 
the number of married women who would seek an abortion without 
notifying their husbands would be rather small. In other words, 
only some women would be affected. The majority in that case 
disagreed with you and stated, ''Whether the adversely affected 
group is but a small fraction of the universe, a pregnant woman 
desiring an abortion seems to us irrelevant to the issue.''
    This disagreement begs the question. Is a constitutional 
right any less of a right if only one person suffers a 
violation? Or should greater value be placed on that right if a 
larger number of people had that right violated?
    Judge Alito. Trying to apply the undue burden test at that 
time to the provisions of the Pennsylvania statute that were 
before the court in Casey was extremely difficult, and I can 
really remember wrestling with the problem and I took it very 
seriously and I mentioned that in my opinion and it presented 
some really difficult issues. Part of the problem was that the 
law just was not very clear at that time.
    The undue burden standard had been articulated by Justice 
O'Connor in several of her own opinions and there were just a 
few hints in those opinions about what she meant by it. But 
what she said was that an undue burden consisted of an absolute 
obstacle or an extreme burden. Those may not be exact quotes, 
but they're pretty close. And she did say that it was 
insufficient to show simply that a regulation of abortion would 
inhibit some women from going forward and having an abortion. 
Those were the--that was the information that was available in 
her opinions to try to understand what this test meant.
    And so then the question became, how do you apply that to 
the numerous provisions of the Pennsylvania statute that were 
before us, and it was a difficult task. The plaintiffs argued 
that all the provisions constituted an undue burden, and when 
the case went to the Supreme Court, Justice Stevens agreed with 
that. He said they all were an undue burden. Things like a 24-
hour waiting period, that was an undue burden because it would 
inhibit some women from having an abortion. An informed consent 
provision, Justice Stevens thought and plaintiffs argued that 
would be an undue burden.
    The majority on my panel and the joint opinion on the 
Supreme Court found that most of the provisions of the statute 
did not amount to an undue burden, the 24-hour waiting period, 
the informed consent provision, and all of them. We disagreed 
on only one, and that was the provision regarding spousal 
notification with a safety valve provision there that no sort 
of notification was needed if the woman thought that providing 
the notification would present a threat of physical injury to 
her. And I wrestled with that issue, but based on the 
information that I had from Justice O'Connor's opinions, it 
seemed to me that this was not what she had in mind. Now, that 
turned out not to be a correct prediction about how she herself 
would apply the undue burden standard to that statutory 
provision, but that was the best I could do under the 
circumstances.
    Senator Kohl. Judge Alito, in your 1985 job application 
memo again, you identified reapportionment as one of the three 
issued decided by the Warren Court with which you disagreed. 
You even stated that your disagreement was so strong that it 
was one of the reasons that you became a lawyer. The Supreme 
Court's Warren Court decisions on this topic, of course, stood 
for the fundamental principle of one person/one vote, meaning 
as a matter of constitutional law that each person's vote must 
count equally and each electoral district must have the same 
population.
    These decisions were more than 20 years old by the time of 
your 1985 job application and these decisions stand for a 
fundamental principle of democracy. By 1985, virtually no 
serious scholar or constitutional lawyer could be found to 
disagree with the principle that each person's vote should 
count equally. So what was your disagreement with the Warren 
Court's decisions on this issue, Judge Alito, in 1985? Isn't 
one person/one vote a basic principle of democracy? Wasn't it 
in 1985?
    Judge Alito. Senator, I don't believe that I disagreed with 
the principle of one person/one vote in 1985. I was talking 
about how I got interested in constitutional law back in 
college and I was certainly stimulated at that time by my 
consideration of the issue of one person/one vote. But the 
issue that troubled me toward the end of the Warren Court, and 
this was during the time when I was in college, was the 
question of how far this principle went when it came to drawing 
legislative districts. Did they have to be almost exactly equal 
in population in accordance with the last census, or were 
larger population variations permitted?
    In a case called Kirkpatrick v. Preisler and another one 
called Wells v. Rockefeller that were decided around 1969, 
which was right at the end of Chief Justice Warren's tenure on 
the Supreme Court, the Court held that in the case of 
congressional districts, they had to be almost exactly equal in 
population, and as I said, my father was deeply involved in 
this. When the issue came up again in the context of 
congressional districting in Carcher v. Daggett, which was 
around 1985, that was the case where he had been an expert 
witness and the Court struck down the New Jersey congressional 
districting plan even though the population variations were 
under 1 percent. Now, the Court also later said that when 
you're talking about legislative districts, considerably larger 
deviations are allowed and you can take into account municipal 
lines and county lines and things of that nature.
    But as of the time when I was in college, as in the time of 
the two cases that I mentioned, it seemed likely--a lot of 
people thought, and certainly I as a college student thought 
that the rule was going to be the same for congressional 
districts as it was for legislative districts and that seemed 
to say that the districts would have to be almost exactly equal 
in population based on the last census.
    Now, a problem with that is that while the census is very 
accurate, it's not perfect and it doesn't stay accurate 
throughout the 10-year period from census to census. People 
move around. The population grows. The population diminishes in 
certain areas. So it didn't seem to make a whole lot of sense, 
let's say in the middle of a decade, to insist on absolute 
population equality based on the last previous census when 
everybody knew that the census figures had changed, and in 
doing that, in insisting on practically equal population 
districts, districts of almost exactly equal population, you 
disregard municipal lines, you disregard county lines. People 
don't know which district they're going to be voting in. You 
introduce the possibility of other factors figuring into the 
districting plan.
    Senator Kohl. OK. Family and Medical Leave Act, Judge 
Alito. In my view, one of the most important pieces of social 
legislation enacted in the last two decades was the Family and 
Medical Leave Act in 1993. Among other things, it gives 
employees the right to take up to 12 weeks of unpaid leave to 
care for a newborn child or an ill parent or a spouse. The 
statute also gives an employee the right to sue his or her 
employer for damages if the employer violates the employee's 
rights under this law.
    I was disturbed to learn that in the Chittister case, Judge 
Alito, your ruling denied a State employee the ability to sue 
his employer for money damages. Your reasoning was directly 
repudiated by the 2003 Supreme Court decision of Nevada 
Department of Human Resources v. Hibbs. In that case, the 
Supreme Court, in a decision written by Chief Justice 
Rehnquist, held that the Family and Medical Leave Act was 
congruent and proportional to Congress's interest in preventing 
discrimination based on gender, and therefore States could be 
sued for money damages under the law.
    So we are concerned that your view shows a lack of 
understanding of the problems of ordinary working Americans and 
the right of women to be free of discrimination in the 
workplace. Isn't it true that under your view, potentially 
millions of working Americans would not get the protections 
that they rely on under the Family and Medical Leave Act? Judge 
Alito?
    Judge Alito. Well, Senator, I'm happy to address that 
because I think there's been some confusion about what the 
issue was in Chittister and how it relates to the Supreme 
Court's decision in Nevada v. Hibbs, and they're actually two 
entirely different provisions of the Family and Medical Leave 
Act.
    The provision that was at issue in my case was not the one 
in Hibbs and at last count, seven circuits had decided that 
issue, the issue that was before my court in Chittister, 
exactly the same way we did. I counted up the number of Court 
of Appeals judges who endorsed that position and it's over 20. 
I think it's 22. And they include some of the most 
distinguished Court of Appeals judges in the country and judges 
who have been appointed by Presidents of both parties.
    The issue in Hibbs had to do with a provision of the Family 
and Medical Leave Act that requires employers to provide 
employees with a certain amount of leave for the purpose of 
taking care of another family member. The provision--and that 
was the one that the Supreme Court addressed in the Hibbs case. 
The provision in the Chittister case is a provision that 
requires employers to give employees a certain amount of leave 
for personal illness. The standard that has to be applied here 
is the one the Supreme Court has set out, and it's a 
controversial standard, but as a lower court judge, it's the 
one I had to apply, and that was whether what was done was 
congruent and proportional to constitutional violations.
    What the Court said in Hibbs was that there was a record of 
constitutional violations, and remember, here we're talking 
about the provision that has to do with leave to take care of 
another person, and what they said was that there were many 
instances in which employers, State employers, had plans that 
provided more leave for that purpose for women than for men and 
the reason was because of the stereotype that if somebody in 
the family got sick, it would be the woman, not a man, who 
would have to take off from work to take care of that person.
    But the provision that was at issue in Chittister had to do 
with leave for one's own personal illness and there was no 
record that employers give--and a man was subjected to this, 
and there was no record that State employers, or for that 
matter any other employers, had plans that provided more sick 
leave for men than for women or that any stereotypes were 
involved in the situation. And so that was why I concluded, and 
the unanimous panel that I sat on concluded, and all of these 
seven other circuits concluded that that provision did not 
satisfy the standard that the Supreme Court had established.
    Senator Kohl. A last question. Judge Alito, I understand 
that you're reluctant to comment on cases that you would likely 
have coming before you in the future, but I'd like to ask you a 
question about a case that the Supreme Court certainly will 
never see again, the 2000 Presidential election contest between 
President Bush and Vice President Gore. Many commentators see 
the Bush v. Gore decision as an example of judicial activism, 
an example of the judiciary improperly injecting itself into a 
political dispute. Indeed, it appears to many of us who have 
looked at your record that Bush v. Gore seems contrary to so 
many of the principles that you stand for, that the President 
has said you stand for when making your nomination in talking 
about judicial restraint, not legislating from the bench and, 
of course, respecting the rights of the States.
    So, Judge Alito, I'd like to ask you, was the Supreme Court 
correct to take this case in the first place?
    Judge Alito. Well, Senator, I think you're probably right 
and I hope you're right that that sort of issue doesn't come 
before the Supreme Court again. Some of the--the Equal 
Protection ground that the majority relied on in Bush v. Gore 
does involve principles that could come up in future elections 
and in future cases.
    But as to that particular case, my answer has to be, I 
really don't know. I have not had the opportunity--I have not 
studied it in the way I would study a case that comes before me 
as a judge and I would have to go through the whole judicial 
process--
    Senator Kohl. That was a huge, huge case and I would like 
to hope, and I would bet, that you thought about it an awful 
lot because you are who you are. And I would like for you to 
give an opinion from the convictions of your heart, as a person 
who's very restrained with respect to judicial activism, this 
being a case of extreme judicial activism. Were they correct in 
taking this case, in your opinion?
    Judge Alito. Well, there's the issue of whether they should 
have taken it and the issue of how it should be decided, and 
Senator, my honest answer is I have not studied it in the way I 
would study the issue if it were to come before me as a judge 
and that would require putting out of my mind any personal 
thoughts that I had on the matter and thinking about the--
listening to all the arguments and reading the briefs and 
thinking about it in the way that I do when I decide legal 
issues that are before me as a judge. That's the only--that's 
the best answer I can give you to that question. It was 
obviously a very important and difficult and controversial 
case, and in a situation like that, the obligation of a judge 
all the more is to be restrained and not to--is to go through 
the judicial decisionmaking process, and only at the end of 
that reach a conclusion about the issue.
    Senator Kohl. Thank you, Judge. Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Kohl.
    Senator DeWine?
    Senator DeWine. Thank you, Mr. Chairman.
    Judge, you have almost turned the corner here, so that's 
the good news. The bad news is, this is just the first round.
    [Laughter.]
    Senator DeWine. Let me respond, if I could, Judge, to three 
things that I've heard so far during these hearings that have, 
frankly, disturbed me. First, I am bothered by what I consider 
to be distortions of your record, really in an effort to make 
you look like something that you are not.
    I just read a very interesting article by Stuart Taylor 
from the National Journal about this issue, and I would like, 
Mr. Chairman, to make this a part of the record, this article, 
if I could.
    Chairman Specter. Without objection.
    Senator DeWine. Mr. Taylor describes the opinions of a, 
quote, ''right-wing jurist.'' This judge has consistently ruled 
against minorities, striking down affirmative action programs, 
making it harder for victims of race and gender discrimination 
to vindicate their rights.
    Chairman Specter. Senator DeWine, your unanimous consent 
request is granted.
    Senator DeWine. Thank you, sir. This judge has struck down 
a Federal law to protect kids from guns, ruled that State and 
local governments cannot be sued under the Fair Labor Standards 
Act, leaving 4.7 million workers without a remedy in court. 
This judge has immunized the President from suit, even when he 
illegally wiretaps political opponents. This judge approved a 
police officer's fatal shooting in the back of an unarmed 15-
year-old African-American boy. Finally, this judge has called 
abortion, and I quote, ``morally repugnant'' and declared Roe 
v. Wade to be on, quote, ``on a collision course with itself.''
    Based on such a record, no right-thinking Democrat could 
ever support such a judge. But as Taylor tells us, this judge 
is none other than Sandra Day O'Connor, the same Sandra Day 
O'Connor who has been praised for the past few days as a model 
of moderation.
    Judge, the point Mr. Taylor made is clear. You can distort 
and misrepresent anyone's record, and that, I believe, 
unfortunately, is what some of your opponents are doing to you. 
It is unfair, it is inaccurate, and it is just flat-out wrong.
    Second, I would like to respond to the allegation that you 
have not written an opinion in favor of plaintiff alleging race 
discrimination on the job. You did a very good job a moment ago 
when Senator Kyl was talking to you in describing some of these 
cases. I think the facts of these cases are what is 
particularly interesting. In Reynolds v. USX Corporation, you 
ruled that an African-American woman whose coworkers and 
supervisors regularly made racial and sexual slurs against her 
and denied her training opportunities was, in fact, entitled to 
$124,000 in damages and in attorney fees.
    In Zubi v. AT&T Corporation, you dissented. You dissented, 
arguing against a stringent limitations period which prevented 
a civil rights plaintiff from filing a claim, and your position 
was vindicated. You were vindicated by the United States 
Supreme Court unanimously a few years later.
    In Smith v. Davis, you disagreed with the district court, 
which had dismissed an African-American employee's claim of 
discrimination. Instead, you found that there was evidence to 
support a finding that the employer's stated reasons for firing 
the plaintiff were not genuine.
    In Goosby v. Johnson & Johnson, you ruled that the 
plaintiff, an African-American woman, was entitled to a trial 
under claims of employment discrimination because you found 
that there was evidence that the employer was treating white 
male employees differently than it was treating the plaintiff. 
There are more cases, as you have testified to, but I think we 
make the point.
    We would all be better off and this process, Mr. Chairman, 
would be better off and would be more instructive if we could 
evaluate your nomination, Judge, based on your full and 
complete record.
    Finally, let me add my two cents on this Vanguard issue. I 
am going to take it from a little different perspective than 
has been done so far. To me, this is really a non-issue. In the 
so-called Vanguard lawsuit, two people were in a financial 
dispute. The plaintiff sued to force the defendant to turn over 
$170,000 held by him in some Vanguard accounts. The defendant 
went to court to prevent Vanguard from turning over the money.
    Now, while Vanguard was technically part of the suit and 
was technically a defendant, it wasn't really a defendant in 
any sense of the term that would be used by the public or 
understood by the public. It was not accused of any wrongdoing, 
it didn't stand to lose anything.
    Really, the only question was whether Vanguard would 
transfer some of the funds it held for one person over to 
another. It was simply being asked, who do I pay the money to, 
who do I give the money to. That is all Vanguard was being 
asked to do, so nothing in the classic sense of being a 
defendant. Nothing about this case could realistically have 
affected Vanguard as a company, let alone affected your mutual 
fund. It is a joke, it is ridiculous, it is absurd, and 
everybody on this panel knows that.
    Now, for the sake of the process, I hope we can put these 
issues behind us. This hearing is really our opportunity to 
fully and fairly evaluate your qualifications for the High 
Court and to get some idea about how you think as a judge, how 
you process things, what kind of a judge you will be on the 
United States Supreme Court.
    Now, let me turn to the substance. Judge Alito, I want to 
turn to an issue that is very important to me. In a number of 
recent cases, the Supreme Court of this country has restricted 
congressional power in a way that I think is not required by 
the Constitution.
    In my opening statement, I mentioned the Supreme Court's 
decision in Board of Trustees v. Garrett, a five-to-four 
decision. To me, that case is the best example of this recent 
trend, and it is not a good trend, in my opinion.
    Garrett involved a woman who claimed that she had been 
discriminated against because she was disabled. She was 
employed by the State of Alabama and she sued the State under 
the Americans with Disabilities Act. The Supreme Court threw 
out the suit, however, holding that Congress lacked the power 
to make the State subject to suit.
    Now, Judge, as I see it, the problem with Garrett is that 
the Court ignored findings made by Congress. While we were 
considering the ADA, we held 13 hearings and even set up a task 
force that held hearings in every State in the Union, attended 
by more than 30,000 individuals. Based on these hearings, we 
found hundreds of examples, hundreds of examples of people with 
disabilities being discriminated against by the States in 
employment decisions.
    Further, we found that, and I quote, ``Two-thirds of all 
disabled Americans between the ages of 16 and 64 were not 
working at all, even though a large majority of them were 
capable of doing so.'' And, finally, we found that this 
discrimination flowed from, and I quote, ``stereotypic 
assumptions about people with disabilities,'' as well as, and I 
quote, ``purposeful unequal treatment,'' end of quote. Sadly, 
however, in Garrett the Court said that this was just not 
enough. In fact, it held that we had not pointed to any 
evidence that the States discriminated in employment decisions 
against people with disabilities.
    Judge Alito, from a review of your decisions, it appears to 
me that you tended to defer in close cases to the decisions of 
those individuals closest to the problem at hand. I applaud you 
for taking that approach.
    Now, let me ask you, in your opinion, what role should a 
judge play when reviewing congressional fact-finding, and how 
can you assure us that you will show appropriate deference to 
the role of Congress as the representatives of the people in 
this democracy when we pass important legislation?
    Judge Alito. I think that the judiciary should have great 
respect for findings of fact that are made by Congress. And in 
the Rybar decision that I was discussing earlier, although it 
is controversial and it involved an application of the Lopez 
decision, I stated that that decision would have been very 
different from--that case would have been very different for me 
if Congress had made findings, and that is because of two 
things.
    I am fully aware of the fact that the members of the 
judiciary are not the only officers in the United States who 
take an oath to support and defend the Constitution of the 
United States. Members of Congress take an oath to support the 
Constitution and officers of the Executive branch take an oath 
to support the Constitution, and I presume that they go about 
their work in good faith.
    The second point--and this goes directly to the issue of 
findings--is that the judiciary is not equipped at all to make 
findings about what is going on in the real world, not this 
sort of legislative findings. And Congress, of course, is in 
the best position to do that. You have constituents. Members of 
Congress hear from their constituents. Congress can have 
hearings and examine complex social issues, receive statistical 
data, hear testimony from experts, analyze that and synthesize 
that and reduce that to findings. And when Congress makes 
findings on questions that have a bearing on the 
constitutionality of legislation, I think they are entitled to 
great respect.
    Senator DeWine. Well, Judge, I appreciate your response. We 
can't ask you, obviously, to decide any particular case, but 
what we are trying to do today is get a general idea of how you 
approach cases. And we have, as I said, looked at your previous 
cases. We have a good idea from that, but I appreciate this 
exchange.
    Let me followup with this. Garrett is the law of the land 
today. Nonetheless, let me ask you whether, after Garrett, 
Congress might still have a way to protect the disabled. Rather 
than focus on the problem caused by Garrett, let me focus on 
the solution. To me, even after Garrett, Congress still has the 
power to protect the disabled under the Spending Clause of the 
Constitution. I would like to explore maybe that with you, if I 
could. Let me give you an example of how this might work.
    You, of course, are very familiar with South Dakota v. 
Dole. In that case, Congress had wanted to establish a national 
drinking age of 21. As you know, we, of course, don't have the 
power to require that under our Constitution. Therefore, 
Congress used its power under the Spending Clause. We said to 
the States, if you don't establish a 21-year-old drinking age, 
you will lose 5 percent of your Federal highway dollars.
    This left the States with a choice: adopt a 21-year-old 
drinking age or lose 5 percent of their Federal money. When 
presented with such a choice, the States kept the money and 
changed their drinking age to 21. It seems to me that Congress 
might be able to use this same approach to require the States 
to waive their immunity from suit under statutes like the ADA.
    Judge, based on your experience, could you give me your 
understanding of what Congress can do and what it can't do 
under its Spending Clause power, maybe just go back and look at 
some recent cases and give me a little--
    Judge Alito. Yes, certainly, Senator. Well, I think you 
have pointed to the leading case in this area, and that is 
South Dakota v. Dole. South Dakota v. Dole recognizes that 
Congress has broad powers under the Spending Clause, and that 
when Congress provides money to the States, Congress can attach 
conditions to that money, to the receipt of the money, provided 
that certain standards are met.
    One thing that has to be done under the Supreme Court's 
cases is that there has to be a clear statement that the 
conditions are attached to the receipt of the money. And the 
Supreme Court views this like a contract, so that the parties 
need to have--the party receiving the notice has to have clear 
and fair notice about what it is agreeing to by taking the 
money. And then beyond that, the condition--if that is 
satisfied, then the condition has to be germane to the purposes 
of the funds.
    And in South Dakota v. Dole, the Court found that the 
drinking age and the 55-mile-an-hour speed limit were germane 
to the purpose of the expenditures, and these, I believe, were 
Federal highway funds. So those are the standards that would be 
applied to any future legislation under the current precedents 
if the future legislation invokes Congress's broad power under 
the Spending Clause.
    Senator DeWine. That is helpful. Thank you, Judge.
    During the confirmation hearing of Chief Justice Roberts, 
Chairman Specter showed us a chart stating that the Supreme 
Court had the opportunity to overrule Roe v. Wade in 38 cases. 
Because of this, the Chairman suggested that Roe was not only 
super precedent, but super duper precedent. The Chairman has 
made the same argument at the hearing today. In fact, he 
brought the chart out again today.
    Now, Judge, just to show you that not all members of this 
panel are like-minded, I want to tell you that I disagree. To 
me, Roe is not super precedent. I believe Roe is a precedent, 
but I don't believe it is super duper precedent or super 
precedent.
    First, although the Court has applied Roe in 38 cases, it 
has not directly taken up the issue of whether to overrule Roe 
in every one of those cases. In fact, out of those 38 cases, I 
have only found 4 in which the Court directly addressed the 
status of Roe as binding precedent.
    In Webster, the Court asked whether Roe should be 
reaffirmed, but ultimately avoided the issue. In three cases--
City of Akron, Thornburgh and Casey--the Court did reaffirm 
Roe. But the last of these, Casey, did so in a way that hardly 
left Roe on firm footing. In fact, Casey altered Roe by 
eliminating the strict scrutiny standard of review and 
replacing it with a lesser undue burden test. The result has 
been that many restrictions on abortion have been upheld.
    Second, just because Roe has been applied and reaffirmed 
does not make it a special form of precedent. Many other cases 
have been applied for decades before eventually being 
overruled. For example, Plessy v. Ferguson, the case 
establishing the principle of separate but equal, was upheld 
for nearly 60 years before it was overruled, and certainly 
discredited today.
    Lochner v. New York, a case that greatly limited the power 
of the States to protect children and workers, was consistently 
applied for more than 30 years before it was overruled. And 
Swift v. Tyson, a case establishing the doctrine of Federal 
common law, was a bedrock principle of American law repeatedly 
applied and upheld for nearly 100 years before it too was 
struck down. Thus, the mere fact that Roe has been upheld for 
more than 30 years does not mean that it is entitled to special 
deference.
    Third, from the start, Roe has been criticized by lawyers, 
scholars and judges, whether Democrats or Republicans and, to 
date, it does remain controversial.
    Fourth, much has happened over the last 30 years to 
undermine the soundness of Roe. Senator Brownback has mentioned 
how the facts of Roe have changed. We now know that the 
plaintiff in Roe based her case on false statements and that 
she wants the case overturned. We also know much about the life 
of babies in utero that we did not know 30 years ago.
    We even know something about the internal deliberations of 
the Justices who decided Roe. In an internal Supreme Court 
memo, Justice Harry Blackmun, the author of Roe, acknowledged 
that the trimester framework established in his opinion was, 
and I quote, ''arbitrary.'' And Justice Lewis Powell said that 
he could not find a right to an abortion within the 
Constitution and decided instead to rely on his gut.
    Finally, whatever the term ``super precedent'' means, I do 
not think that it describes Roe. In an article by William 
Landis and Richard Posner, super precedent was defined this 
way. It is a, and I quote, ``precedent that is so effective in 
defining the requirements of the law that it prevents legal 
decisions arising in the first place, or if they do arise, 
induces them to be settled without litigation,'' end of quote. 
In other words, super precedent is precedent that is so firmly 
entrenched in our legal system that people simply don't 
question it.
    Marbury v. Madison, the case establishing the power of 
judicial review, is super precedent. It is so well settled that 
litigants do not challenge it in court. In fact, it is one of 
the fundamental assumptions upon which our constitutional 
system is built. Roe is hardly Marbury. Is Roe Supreme Court 
precedent? Certainly, but in my view it is not super duper 
precedent or even super precedent. It is precedent, nothing 
more.
    Judge, I want to turn now to another topic, to an issue 
that several Federal judges in Ohio have brought up to me 
during our conversations. As you know, the Supreme Court 
currently decides about 75 cases a term. This number is down 
dramatically from where it was just a generation ago. In 1976, 
for example, the Court decided almost 400 cases on the merits, 
more than five times what it does today.
    This incredible shrinking Supreme Court docket has been the 
focus of much attention over the past few years, a lot of 
discussion. One result of the Court deciding fewer and fewer 
cases is that more and more circuit splits are left unresolved, 
which is what I want to talk to you about.
    As we all know, a circuit split occurs when two or more 
Federal Courts of Appeals disagree on an issue of Federal law. 
As of late, circuit splits have become so pervasive that the 
Seton Hall Law School came out last year with a new Law Review 
dedicated exclusively to that issue. There is also a website 
written by a law professor at the University of Richmond, 
solely committed to identifying new circuit splits. Hardly a 
week passes when at least one does not emerge.
    To me, these pervasive and unaddressed circuit splits 
create three problems: one, organizations that transact 
business across State lines, get caught in the cross-hairs of 
the his confusion, being subject to one interpretation of 
Federal law in California and a different one in the State of 
Ohio; second, Federal judges are placed in a difficult 
situation trying to figure out what the law requires. In fact, 
a number of Federal judges in Ohio have talked to me, as I 
said, about this; and finally, circuit splits undermine the 
goal of having uniformity in our Federal law.
    Let me just ask what is your opinion about this issue? In 
your experience has the Supreme Court's shrinking docket caused 
problems for businesses, lower court judges, individuals? Is 
there a problem with the number of unresolved circuit splits? 
And if the Court takes more cases, do you think that will solve 
the problem?
    Judge Alito. Well, that's a difficult issue for me to 
address from my current position as a judge of a court of 
appeals because the Supreme Court is my boss, and I am 
reluctant to suggest that I think they should be doubling their 
workload.
    [Laughter.]
    Senator DeWine. Oh, go ahead.
    [Laughter.]
    Judge Alito. That's not the sort of--or even increasing it 
at all. That's not the sort of thing that subordinates 
generally do regarding superiors. But circuit splits are 
certainly undesirable, and I think everybody recognizes that, 
and that's one of the grounds for granting certiorari. I know 
that when Justice White was on the Court he regularly would 
dissent from denial of certiorari in cases where there was a 
circuit split because he felt strongly that circuit splits 
should be resolved by the Supreme Court.
    I have friends, former colleagues from prior times in my 
career, who are appellate attorneys who specialize in cases 
before the Supreme Court and in appellate litigation generally, 
and occasionally I hear them complain about unresolved circuit 
splits that are difficult for their clients. So I'm aware of 
their complaints.
    I haven't personally kept track of the number of circuit 
splits that exist, but certainly they are undesirable thing, 
and it is a ground for granting certiorari, and I think one of 
the jobs that the Supreme Court has is to iron out circuit 
splits. There can be disagreements about whether there really 
is a circuit split, obviously, in a particular case, and there 
can be differences of opinion about the timing for resolving 
circuit splits. Sometimes the Supreme Court thinks it's 
advisable to wait and see how an issue plays out in a number of 
circuits before the Supreme Court decides to take on the issue, 
and that may improve their ability to resolve the issue when 
the case generally--when the case eventually comes before them.
    Senator DeWine. Judge, let me suggest that I think it is a 
problem and I think the Supreme Court needs to deal with it. 
Chief Justice Roberts indicated that he thought the Court could 
take on more, and I would suggest that they could. I appreciate 
your comments.
    Judge Alito, let me ask you about Congress's power to 
protect our children from the proliferation of pornography on 
the Internet. This is an important issue. I raised it at the 
last hearing. It is one that I think is very troubling. 
Congress has tried several times to protect our children from 
being exposed to pornography on the Internet. In 1996, we 
passed the Communications Decency Act, but the Supreme Court 
struck it down, citing the First Amendment. A few years later 
we passed the Child Online Protection Act. Again, the Court 
struck it down.
    What bothers me about these cases is they fail to account 
for something that to me seems relatively simple. At the core 
of the First Amendment is the protection of political speech, 
but it seems to me that pornography is altogether different. 
Unlike political speech, pornography has very little value if 
it has any value at all. It does not communicate a message 
other than one that degrades women. It does not contribute to 
the public debate, and actually causes harm to the victims who 
take part in making it, and those who use it.
    There are, of course, a number of cases that seem to 
recognize that pornography is of lesser value speech. In Young 
v. American Mini Theaters the Court upheld zoning regulations 
on adult theaters. In doing so, Justice Stevens had this to 
say, and I quote, ``Even though we recognize that the First 
Amendment will not tolerate the total suppression of erotic 
materials that have some arguably artistic value, it is 
manifest that society's interest in protecting this type of 
expression is of a wholly different and lesser magnitude than 
the interest and untrammeled political debate.''
    Let me ask you, Judge, what is your thinking on this 
subject? Is pornography lesser value speech, as Justice Stevens 
has seemed to suggest, and are there, or should there be, 
different levels of speech under the First Amendment?
    Judge Alito. I think that the problem of protecting 
children from pornography on the Internet illustrates the fact 
that although the task of the judiciary is to apply principles 
that are in the Constitution and not make up its own 
principles, to apply those to different factual situations when 
the world changes, and in particular, in the First Amendment 
context, when means of communication changes. The job of 
applying the principles that have been worked out--and I think 
in this area worked out with a great deal of effort over a 
period of time--in the pre-Internet world, applying those to 
the world of the Internet is a really difficult problem, and I 
understand it. Congress has been struggling with it, and I know 
the judiciary has been struggling with it.
    The law, of course, as you know, constitutional law draws a 
distinction between obscenity, which has no First Amendment 
protection but is subject to a very strict definition, and 
pornography, which is not obscenity but is sexually related 
materials, with respect to minors, the Supreme Court has said 
that it's permissible for a State to regulate the sale of 
pornography to minors, has greater authority there. I think 
that's the Ginsburg case. It has greater authority there than 
it does with respect to the distribution of pornography to 
adults.
    Now, in the pre-Internet world, the job of preventing 
minors from purchasing pornography was a lot simpler. If they 
wanted to get it, I guess they would have to go to a store or 
some place and buy it. But on the Internet, of course, it's 
readily available from any computer terminal, and a lot of 
minors today are a lot more sophisticated in the use of 
computers than their parents, so the ability of parents to 
monitor what they're doing and supervise what they're doing is 
greatly impaired by this difference in computer aptitude. I 
can't say much more about the question than that. It is a 
difficult question. I think that there needs to be additional 
effort in this area, probably by all branches of Government so 
that the law fully takes into account the differences regarding 
communication over the Internet and access to materials over 
the Internet by minors.
    Senator DeWine. Judge, I have one last question. If 
confirmed to the Supreme Court, only part of your job will be 
hearing arguments and issuing opinions. An equally important 
part of the job will involve deciding which cases to hear in 
the first place. Each year the Supreme Court receives 
approximately 8,000 petitions for cert., cert. petitions, as 
they are called. These are petitions by a party to a lawsuit 
asking the Court to hear its case. Out of these 8,000 annual 
requests, the Court decides to hear only about 75 to 80. For 
many years individual Justices would review each cert. petition 
and cast a vote on whether to hear the case. Today, however, 
eight of the Justices are part of what is called the cert. 
pool. Here is how it works. All petitions are put into a pool. 
A single law clerk then picks up a petition, writes a memo 
recommending for or against hearing the case. That memo is then 
circulated to the eight Justices in the cert. pool who use it 
to cast their vote on whether to hear the case. Justice Stevens 
is the only one who does not participate in this pool. Instead 
he has his staff prepare a memo on each case with a 
recommendation tailored to his own thinking on an issue. It 
would seem to me that the cert. pool greatly limits the 
exchange of ideas among members of the Court.
    I wonder if you could tell me how you would intend to 
proceed, if you are going to use the pool or if you are going 
to do what Justice Stevens does, or if you have thought about 
it.
    Judge Alito. I have--I'm aware of the issue, but I have not 
thought past what might happen with these confirmation 
proceedings. So it's not the kind of issue that I have really 
thought through in my mind. If I'm fortunate enough to be 
confirmed, I think I would assess the situation at that time 
and talk to the Supreme Court Justices and see what their views 
are, the reasons why they're proceeding in one way or another.
    I know from my perspective as a lower court judge, that 
there is a constant conflict between the obligation that we 
have to deal with a very heavy caseload and the need for the 
judge, as opposed to a law clerk or a staff employee of the 
Court to deal with the cases. We cannot delegate our judicial 
responsibility, but we do need to call on--we need to find 
ways, and we do find ways, of using--of obtaining assistance 
from clerks and staff, employees, so that we can deal with the 
large caseload that we have.
    Senator DeWine. Thank you, Judge.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    Good afternoon, Judge. Because Sandra Day O'Connor was the 
fifth vote on both Lopez and Morrison, I think I would like to 
start with the Commerce Clause, and your views of federalism. 
Do you agree with the direction the Supreme Court took in 
Lopez?
    Judge Alito. Well, Senator that really relates to the next 
case in the Lopez-Morrison line of cases that might come before 
the Supreme Court, and so I don't know how I can address that 
question without knowing what that case is, and of course, my 
resolution of it would--
    Senator Feinstein. I was just asking you about Lopez, but--
    Judge Alito. Well, Lopez is--
    Senator Feinstein [continuing]. If you do not want to 
answer, that is OK.
    Judge Alito. Lopez is a precedent of the Court, and it's 
been followed in Morrison, and then it has to be considered 
within connection with the Supreme Court's decision in Raich, 
and I think that all three of those have to be taken into 
account together. I don't think there's any question at this 
point in our history that Congress's power under the Commerce 
Clause is quite broad, and I think that reflects a number of 
things, including the way in which our economy and our society 
has developed, and all of the foreign and intrastate activity 
that takes place, we do still have a Federal system of 
Government, and I think most people believe that that is the 
system that's set up by our Constitution.
    Senator Feinstein. Having said that, I pulled the Rybar 
case and read it over the noon break. Let me just see if we 
agree on the facts, and stop me if you think I am misquoting or 
misstating anything. The Rybar case essentially took place the 
year after Lopez. It involved Mr. Rybar, who was a federally 
licensed gun dealer who went to a gun show in Pennsylvania and 
bought a Chinese type 54, 7.62-millimeter submachine gun one 
day, sold it to Mr. Baublitz, went back the next day and sold 
him a military M-3, 45 caliber submachine gun. The grand jury 
indicted him on two counts of unlawful possession of a machine 
gun in violation of the law, and two counts of unlawful 
transfer of an unregistered firearm. He changed his plea, pled 
guilty to two counts. I think he pled conditionally guilty to 
two counts.
    When the case came before you, and I read with great 
interest your dissenting opinion, you said, and I quote, ``If 
Lopez, which happened the year before, does not govern this 
case, then it may well be a precedent that's strictly limited 
to its own peculiar circumstances, but our responsibility is to 
apply Supreme Court precedent. That responsibility, it seems to 
me, requires us to invalidate the statutory provision at issue 
here in its present form.''
    And then you went on to say that the present form ``might 
be sustainable in its current form if Congress made findings 
that the purely intrastate possession of machine guns has a 
substantial effect on interstate commerce, or if Congress or 
the Executive assembled empirical evidence documenting such a 
link. If, as the Government and the majority boldly insist, the 
purely intrastate possession of machine guns has such an 
effect, these steps are not too much to demand to protect our 
system of constitutional federalism.''
    So if I understand this, you essentially said that you 
wanted to follow precedent, newly established law in this area, 
and you left a little hedge that if the Congress did make 
findings in that law, then that might be a different situation. 
If Congress did make findings, would you have agreed that that 
statute would have been constitutional?
    Judge Alito. Well, what I said in the opinion and what I 
will reiterate this afternoon is that it would have been a very 
different case for me. I don't think I can express an opinion 
on how I would have decided a hypothetical case.
    Senator Feinstein. It is not hypothetical. I am just asking 
you if there were findings, as you said, you might have 
sustained the law--
    Judge Alito. And I read it like that. I think it would have 
been--
    Senator Feinstein. I am just asking you, would you have 
sustained the law for findings--
    Judge Alito. I don't think that I can give you a definitive 
answer to the question because that involves a case that's 
different from the case that came before me. But I repeat what 
I said there, it would have been a very different matter if 
Congress had made findings. I have the greatest respect for 
findings. This is an area where Congress has the expertise and 
where Congress has the opportunity to assemble facts and to 
assess the facts. We on the appellate judiciary don't have that 
opportunity. So if Congress had made findings--and I didn't 
insist on findings. If the Executive branch, which was 
defending the statute, had pointed to testimony at hearings--
and that's been done in other Commerce Clause cases--or 
statements by responsible Government officials with expertise 
in the area of firearms control, or any other evidence that 
substantiated this, it would have been a very different case 
for me, and of course, if there had been a jurisdictional 
element, then I think it's perfectly clear under the precedents 
that it would have been constitutional.
    Senator Feinstein. I accept that with one exception. I 
think most people know that guns, particularly machine guns, do 
affect interstate commerce, and there is generally no question 
about that. With one look at the gun trace, even before Mr. 
Rybar had the gun, the likelihood was that it came across State 
lines, particularly the Chinese model. So I think that is a 
difficult extrapolation for me to understand, but that is not 
necessarily dispositive.
    Let me go on. At the conclusion of your dissent, you wrote 
that, ``Even today, the normative case for federalism remains 
strong.'' Now, federalism is often used to describe the 
strengthening of State powers at the expense of the Federal 
Government. What exactly did you mean by that statement?
    Judge Alito. I meant that there are activities that--and I 
think there is general agreement on this, and it goes beyond 
what the Constitution requires into areas of policy that I 
think Congress respects. I think there is general agreement 
that there are some activities that have traditionally been 
handled by the States and by local governments. Those are areas 
in which they have taken the lead because the view has been 
that they are in the best position to deal with that. And that 
was the issue that was directly addressed by Justice Kennedy's 
concurrence in Lopez. He relied in large part on the fact 
that--he put heavy reliance on the fact that what was involved 
in Lopez was a law relating to schools. And although the 
Federal Government certainly has a role in education, 
traditionally that has been regarded as something that is 
primarily to be handled at the State and local level.
    Senator Feinstein. OK. Now, you cited a law review article 
by a professor named Stephen Calabrese. In that article, he 
argues that Lopez was a revolution that shattered forever the 
notion that after 50 years of Commerce Clause precedent, we 
could never go back to the days of limited national power. Do 
you agree with that?
    Judge Alito. I agree that Lopez was a startling development 
for a lot of people. When I was in law school, I think the 
traditional wisdom was that the commerce power reached 
everything, that there was no limit to the power, that nothing 
could ever exceed the power. And Lopez and the Lopez line of 
cases have not made huge inroads on that principle, but it was 
the first time in a long time that a statute had been held to 
exceed Congress's commerce power. So to that extent, yes, it 
was a revolution, but how big of a one--
    Senator Feinstein. See, I would say not yet has it made 
that kind of a dent, and that is why your nomination is so 
important, because you could be a decisive vote in this area.
    Do you believe that the Supreme Court's Commerce Clause 
decisions in the 50 years preceding Lopez are settled law?
    Judge Alito. I think that--I'd have to talk about 
individual cases, but I do think most of those are--the ones 
that come to my mind I think are well-settled precedents.
    Senator Feinstein. OK. Now, unlike the machine gun law in 
Rybar, the Family and Medical Leave Act in Chittister did 
include congressional findings of fact, as the Supreme Court 
confirmed, and yet you authored the majority opinion to 
invalidate the law.
    Judge Alito. Well, in Chittister--
    Senator Feinstein. Do you see a contradiction in that?
    Judge Alito. I don't, Senator. I don't believe that there 
were congressional findings in Chittister that went to the 
issue in Chittister.
    Senator Feinstein. OK. That is good. Now, let me ask you 
some questions. Is it enough for Congress to provide findings 
of fact in a statute, or do the findings of fact need to be 
deemed sufficient by a court?
    Judge Alito. Well, what the Supreme Court has said is that 
findings of fact are very helpful when they are provided. And 
the Court will certainly treat them with respect. But they are 
neither--they are not necessarily definitive, and they also are 
not necessary. Congress doesn't have to make findings. It is 
helpful when it does it, and under the Supreme Court's cases, 
the findings are not necessarily definitive. That is what the 
Supreme Court has said about this.
    Senator Feinstein. Yes, but you struck down Rybar. 
Essentially, you said it would have a much better chance with 
you if it had findings of fact. And this was a case where prior 
laws had major findings of fact with respect to machine guns. I 
mean, this wasn't a new thing.
    Judge Alito. Senator, I looked very carefully at all of the 
materials that were cited by the other judges in Rybar and that 
were provided by the Government. And the things that were cited 
from the legislative history of the prior statutes did not, in 
my view, go to the issue in Rybar. All of those prior statutes 
were statutes that had jurisdictional elements in them. All 
that I was looking for was some evidence that the possession of 
a machine gun--not the transfer of a machine gun or the sale of 
a machine gun, but the mere possession had a substantial effect 
on interstate commerce. That is what I understood the Supreme 
Court precedent to require. And it is not a very heavy burden 
to show that something has a substantial effect on interstate 
commerce, but that is what I understood the Supreme Court 
precedent to require and that is what I was looking for.
    Senator Feinstein. OK. Let's move to the issue of a woman's 
right to choose and Roe. This morning, Senator Specter talked 
about how Casey reaffirmed the original soundness of Roe and 
then put emphasis on precedent. And he then asked, ``How would 
you weigh that consideration were this issue to come before 
you, if confirmed? '' And in response, you said, and I would 
like to quote, ``Well, I agree that in every case in which 
there is prior precedent, the first issue is the issue of stare 
decisis, and the presumption is that the Court will follow its 
prior precedents. There needs to be a special justification for 
overruling a prior precedent.''
    Can you give us a few examples of a special justification, 
not including Brown v. Board of Education, which you think 
would qualify?
    Judge Alito. There are a number of factors that figure in 
the application of stare decisis in particular cases. There are 
factors that weigh in favor of stare decisis, and there are 
factors that weigh against stare decisis. Factors that weigh in 
favor of stare decisis are things like what the initial vote 
was on the case, the length of time that the case has been on 
the book, whether it has been reaffirmed, whether it has been 
reaffirmed on stare decisis grounds, whether there has been 
reliance, the nature and the extent of the reliance, whether 
the precedent has proven to be workable. Those are all factors 
that have to be considered on an individual basis.
    Senator Feinstein. But I am asking you what the special 
justification would be, that you mentioned this morning, to 
overcome precedence and reliance?
    Judge Alito. Well, I think what needs to be done is a 
consideration of all of the factors that are relevant. This is 
not a mathematical formula. It would be a lot easier for 
everybody if it were. But it is not. The Supreme Court has said 
that this is a question that calls for the exercise of 
judgment. They have said there has to be a special 
justification for overruling a precedent. There is a 
presumption that precedents will be followed. But it is not--
the rule of stare decisis is not an inexorable command, and I 
don't think anybody would want a rule in the area of 
constitutional law that pointed in that--that said that a 
constitutional decision, once handed down, can never be 
overruled.
    So it's a matter of weighing all of the--taking into 
account all of the factors and seeing whether there is a strong 
case based on all the relevant--
    Senator Feinstein. My question was a different one, 
respectfully.
    Judge Alito. I am sorry, Senator.
    Senator Feinstein. It was, can you give me a few examples 
of what you think would qualify as a special justification for 
overruling prior precedent? And the reason I ask you this is in 
our private conversation, you said to me that you did not think 
there had been any case you could think of that had been more 
tested than Roe.
    Judge Alito. Well, Roe has--sorry.
    Senator Feinstein. What special circumstance would there be 
which would overcome this kind--whether you call it super 
precedent or super duper or anything, but this kind of 
protracted testing over a 33-year period of time?
    Judge Alito. Senator, I'm sorry if I didn't understand your 
question previously. One situation in which there is a special 
justification for overruling a precedent is if the rule has 
proven to be unworkable. An example where the Supreme Court 
thought that a rule had proven to be unworkable is provided by 
National League of Cities and San Antonio Transit Authority v. 
Garcia. National League of Cities asked whether something was 
traditionally a sovereign function. And that resulted in a 
whole series of cases in the lower courts, a large number of 
cases in the lower courts, and a number of cases in the Supreme 
Court in which the courts had to decide whether something was 
on one side of this line or not, and it proved in the view of 
the Supreme Court to be a very difficult standard to work with. 
And, finally, in Garcia, they said this is unworkable, and we 
are going to overrule National League of Cities, and we are 
going to leave it to Congress to deal with the federalism issue 
that is presented here. This is an example of the Supreme Court 
saying there is a federalism concern here, but it is one that 
Congress rather than the Court would have to deal with.
    Sometimes changes in the situation in the real world can 
call for the overruling of a precedent. An example of that is 
provided by Katz v. United States, which I was talking about 
this morning in relation to wiretapping. The old rule under 
Olmstead was that in order for there to be a search, you had to 
look to property law. You had to see whether there was an 
invasion of a property interest. And then with the development 
of electronic communications and electronic surveillance, 
wiretapping or other forms of electronic surveillance, which is 
what was involved in Katz, the Supreme Court said this isn't a 
sensible way to apply the Fourth Amendment principle under the 
conditions of the modern world, and they said famously that the 
Fourth Amendment protects people, not places. So they shifted--
they found the doctrinal underpinnings of the old Olmstead rule 
to be undermined by developments in the society, and they 
shifted the focus from property law to whether somebody had an 
expectation of privacy.
    So those are examples.
    Senator Feinstein. Well, and you did say that you believe 
the Constitution provides a right of privacy.
    Judge Alito. I did say that. The 14th Amendment protects 
liberty. The Fifth Amendment protects liberty. And I think it 
is well accepted that this has a substantive component, and 
that that component includes aspects of privacy that have 
constitutional protection.
    Senator Feinstein. Let me ask you about your dissent in 
Casey. You reasoned that most women seeking abortions are 
either unmarried or would tell their husbands and, therefore, 
few would be harmed if spousal notification was required. 
Justice O'Connor, on the other hand, ruled, and I quote, ``The 
proper focus of constitutional inquiry is the group for whom 
the law is a restriction, not the group for whom the law is 
irrelevant.''
    Why did you propose a different approach than Justice 
O'Connor?
    Judge Alito. Well, I mentioned the fact in my opinion that 
this provision applied only to married women, but I don't think 
that was really the focus of what I was getting at. I think--
and I agree with her that you look at the group that's 
affected, not the group that's unaffected, and the standard 
that she had--so that would be women who fell within this 
provision of the Pennsylvania law. And the standard that she 
had articulated in the earlier cases was, as I described it a 
couple of minutes ago, that an undue burden in her view had to 
be an absolute obstacle or an extreme obstacle, and it could 
not be simply something that inhibited some women. The ``some 
women'' phrase was her phrase, not my phrase.
    Senator Feinstein. Now, I am going to ask you about one 
other quote that some of my colleagues may disagree with what 
Justice O'Connor said, but she said it, and that is, ``The 
State may not give to a man the kind of dominion and control 
over his wife that parents exercise over their children.'' Do 
you agree with that?
    Judge Alito. I never equated the situation of an adult 
woman who fell within the notification provision of the 
Pennsylvania statute with the situation of a minor who was 
required to provide notice. There is an analogy, and the 
earlier case that Justice O'Connor had decided, the Hodgson 
case, was a minor notification statute. But I think I made it 
quite clear in my opinion that this was nothing more than an 
analogy and that there was no close--these situations were very 
distinct, and I was aware of that, and I think I pointed that 
out.
    Senator Feinstein. Let me move on, if I might. One of the 
core principles of Roe is that a woman's health must be 
protected. In Casey, Justice O'Connor specifically wrote that 
after viability, the State may, if it chooses, regulate and 
even proscribe abortion, except where it is necessary in 
appropriate medical judgment for the preservation of the life 
of the mother. This requirement to protect a woman's health was 
also reaffirmed in Stenberg v. Carhart, where it was said the 
Court rejects Nebraska's contention that there is no need for 
health exception.
    Do you agree, if the statute restricts access to abortion, 
that it must protect the health of the mother in order for it 
to be constitutional?
    Judge Alito. Well, I think that the case law is very clear 
about protecting the life and the health of the mother is the 
compelling interest throughout pregnancy. I think that's very 
clear in the case law.
    Senator Feinstein. Thank you. I appreciate that.
    In 1985, at the time you wrote the strategy memo on 
Thornburgh, the Court had already held in Roe, Akron, and 
eventually 30 other cases, that a woman had a constitutional 
right to choose whether to continue a pregnancy. In addition, 
in your memo, you specifically wrote that in the Akron case, 
the Supreme Court reaffirmed Roe. However, despite this, your 
memo outlined a strategy to eventually overturn Roe.
    My question is a little different from what you discussed 
somewhat yesterday. What was your view of precedent at the time 
you wrote that memo?
    Judge Alito. Well, I think there are two things that I 
should say in response to that. The first is that I did not 
advocate in the memo that an argument be made that Roe be 
overruled, and therefore, the whole issue, had the Government 
proceeded with the argument that I recommended, the issue of 
stare decisis wouldn't have been presented and so there wasn't 
any occasion for me to talk about stare decisis in the memo and 
I did not talk about it. I think there's a mention of it in a 
footnote. So I didn't address it and there wasn't an occasion 
to address it.
    The second thing I would say is that stare decisis is a 
concern for the judiciary much more than it is for an advocate. 
An advocate is trying to achieve a result, and so an advocate 
is--for an advocate, stare decisis can be either a great 
benefit if it is in your favor or an obstacle to get over. But 
it isn't the kind of issue that needs to be grappled with in 
the way in which a court has to grapple with stare decisis.
    Senator Feinstein. OK. In Casey, you wrote about the harms 
caused by spousal notification to the practical effect that the 
law will not amount to an undue burden unless the effect is 
greater than the burden imposed on minors. Just to go back to 
that, is this what you meant?
    Judge Alito. Well, Senator, I don't--I do not equate the 
situation of a married woman with the situation of a minor--
    Senator Feinstein. I know you keep saying that, but I keep 
going back to the words and they seem to say something else.
    Judge Alito. Well, I think if you look at the words, I 
actually said that I don't equate these two situations. I was 
mindful of the fact that they are very different situations. 
But often, the law proceeds on the basis--legal reasoning is 
based on analogy, and so if you take a situation that's quite 
different and yet has some relationship to a situation that 
comes up later, you can draw some analogies while still 
recognizing that the two situations are very different.
    If you're talking about the potential for abuse, that 
certainly is something that can come up in either of these two 
contexts and it's a tragedy in either context. If a single 
minor is abused as a result of notification, that's a tragedy. 
If a single adult woman is abused as a result of notification, 
it's a tragedy.
    But what I think I'm getting at there is that this is what 
we had. This is what I had. This was the information that I had 
to work with to try to understand what this provision meant. 
And so you work with what you've got and that's what I had and 
I was trying to see to what degree the prior situation was 
relevant and to what degree it wasn't relevant to the issue 
that was before me.
    Senator Feinstein. I'd like to quickly just switch subjects 
for a moment just to clarify something you said this morning, 
and this has to do with electronic surveillance of Americans. 
As you know, in 1978, the Congress, after a lot of 
introspection, passed a bill called the Foreign Intelligence 
Surveillance Act, which we call FISA, which essentially set up 
the parameters for all electronic surveillance within the 
United States. It's very specific, if you read it. There is a 
great concern right now because of what's been happening with 
respect to electronic surveillance, quite possibly involving 
Americans as well as foreigners.
    You said something interesting this morning. You said, 
generally, there has to be a warrant issued by a neutral and 
detached magistrate before a search can be carried out. Now, 
with respect to the FISA law, Senator Birch Bayh, the Chairman 
of the Intelligence Committee at the time, spells out in the 
Committee Report that this covers all surveillance in the 
United States. And then President Carter, when he signed the 
law, said this covers all surveillance within the United 
States. So there is a burgeoning question as to whether the 
President now has the authority to wiretap Americans without 
going to the FISA court.
    When you said, generally, there has to be a warrant, what 
that said to me was you were providing for an exception. Is 
that correct? Are you providing for an exception?
    Judge Alito. I think that what I was addressing when I said 
that was what the Fourth Amendment means, the general principle 
that is set out in the Fourth Amendment, and the case law under 
the Fourth Amendment says that a warrant is generally required, 
but there are well-recognized situations in which a search can 
be carried out without a warrant. Exigent circumstances is a 
situation that comes immediately to mind if--
    Senator Feinstein. Well, let me stop you here. Do you 
recognize Justice Jackson's comment in the 1952 steel case 
where he set up that tripartite framework--
    Judge Alito. I do--
    Senator Feinstein [continuing]. Of Presidential authority 
and when it is at its weakest is when Congress has legislated? 
And in 1978, Congress did legislate and covered the horizon, so 
to speak?
    Judge Alito. Yes, Senator, I recognize that and I think 
that's a very useful framework for addressing issues of 
Executive power. Now, there is a question about what the 
meaning of what Congress did, and that would be a statutory 
question. What is the meaning of the provision of FISA in 
question, and maybe there's no substantial argument about what 
was meant there, but maybe there would be an issue about what 
was meant there, and certainly there could be an issue about 
the meaning of the authorization on the use of military force. 
How far was that intended to go?
    And so the statutory question, I think, would--that 
certainly would be an issue that could come up in this 
situation and probably you would need to--I think you would 
have to resolve the statutory question before you could figure 
out which of the three categories that Justice Jackson set out 
the case fell into.
    Senator Feinstein. Thank you. I've run out of time. I'll 
continue this next session. Thank you.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you, Senator Feinstein.
    Senator Sessions?
    Senator Sessions. Thank you, Mr. Chairman. We've got a good 
hearing, I believe. A lot of exchanges have occurred. I will 
agree with Senator Biden. I can't remember a nominee being this 
forthcoming. You have gone into more detail about questions 
that may come up before you without going too far, in my 
opinion, than we have seen before. You have been very open and 
I have been very impressed with your analytical spirit and your 
ability to handle these cases.
    We need an aggressive hearing. I agree with those who say 
that questions need to be propounded to the nominee because 
this is the only chance that, politically, that we will have, 
that you will ultimately be on the bench for life, 
unaccountable to the political process. So it is good to ask 
questions.
    My concern is similar to that of Senator DeWine, that many 
of the accusations and allegations are unfounded or distortions 
are really not fair, and some of the things that have been said 
about you are not correct. If they were correct, you would not 
receive the overwhelming support of your colleagues and have 
that admiration so totally as you do.
    Judge Alito, we talk about the role of a judge and how you 
handle cases that come before you. You were asked, what is your 
opinion on Lopez, and you said, well, I haven't studied that 
case precisely, or at least the background of it. I didn't sit 
on it. Would you explain to us, as an appellate judge, as you 
do today, but also even more so as a Supreme Court Justice, how 
cases come to you and what you should do before you make a 
decision or express an opinion on the ultimate outcome of a 
case, why you should be careful and what this great legal 
system that we have arranges for before a judge makes that 
final decision?
    Judge Alito. Well, certainly, Senator. We have an adversary 
system and that means that both sides get the opportunity to 
present their arguments, and we have established judicial 
procedures and they are time consuming and they are burdensome 
and maybe some people would say that some of them are old 
fashioned. But I think they work well and they are designed to 
make sure that there's the vigorous presentation of both sides 
of the issue that is presented in the case at hand, not some 
abstract issue that might be addressed in a law review article 
or a broad issue that might be addressed in a piece of 
legislation, but an actual concrete case, a dispute between 
real parties that comes before the court. Both sides have the 
opportunity to present the arguments that they think have a 
bearing on that case. The judges get the opportunity to read 
the briefs, and then in--
    Senator Sessions. Can I interrupt you there? And you are 
talking about the appellate court.
    Judge Alito. That's correct.
    Senator Sessions. There has been a trial with jurors and 
witnesses and trial judges and those kinds of things that has 
already occurred. It is now on appeal. No witnesses are being 
called, but the transcript is available and one side or the 
other is alleging that they weren't treated fairly, is that 
correct?
    Judge Alito. That's correct.
    Senator Sessions. So you decide whether or not a fair trial 
occurred. Continue now with the process and how you ultimately 
come to make a decision.
    Judge Alito. Well, we receive briefs and the briefs are 
well thought out by the attorneys and it provides, if the case 
is well briefed, a strong presentation of the positions on both 
sides of the question, and if it's an issue of great public 
importance, there may be other people who file briefs, so 
called friends of the court. On the Supreme Court now these 
days, they get a lot of those on both sides of many of the big 
issues that come before them. So that ensures that they have a 
strong presentation of all the arguments that can be made on 
both sides of the issue, both sides of the case.
    The first step in the process would be to read all of those 
and then there would be an oral argument. At that point, the 
Justices of the Supreme Court or the judges of my court--
    Senator Sessions. Now, oral argument means the lawyers for 
each party come and orally argue the case before the court, is 
that correct?
    Judge Alito. That's right, and--
    Senator Sessions. Now, you should not have made up your 
mind even at that point, should you?
    Judge Alito. You shouldn't. I think very often, I come into 
an oral argument with a tentative idea about how the case 
should be decided. I've thought through the issue as much as I 
can, but my mind is open to the possibility that something will 
happen during the oral argument or later in my discussion with 
the other judges that might change my mind.
    So we have the oral argument and the lawyers will make 
their presentation. In that situation, I have the opportunity 
to ask questions, unlike today. That's a better situation to be 
in, but it gives me a chance to explore the issues in the case 
that are troubling to me and I can pose hypotheticals to the 
lawyers and try to explore how far their arguments go.
    And after we have the argument, the judges get together in 
what's known as the conference. That's a private meeting when 
just the judges are present. And we each discuss the case, and 
very often one of my colleagues will say something that makes 
me think about the case differently than I did going into the 
conference. But at the end of the conference, if we've all 
voted, then we exchange our views and we come to a conclusion 
about how a case should be decided.
    And it's only at the end of that process that we actually 
have a vote on the decision, and then somebody is given the job 
of writing an opinion and sometimes things even change during 
the opinion writing process. There have been numerous cases in 
which I've had the opinion and I've been given the job of 
writing an opinion to affirm and in the process of--or the 
reverse, and in the process of writing the opinion, I see that 
the position that I had previously was wrong. I changed my 
mind. And then I will write to the other members of the panel 
and I will say, I have thought this through and this is what I 
discovered and now I think we should do the opposite of what we 
agreed, and sometimes they'll agree with me and sometimes they 
won't.
    So it's a long process and it's only at the end of that 
whole process that I think a judge is in the position, when the 
opinion is actually going to be issued, the judge is in the 
position to say, now I've done everything I can with this and 
this is how I analyze the issue.
    Senator Sessions. And you said in your opening statement 
that one of the habits that a good judge should develop is the 
habit of delaying reaching conclusions until everything has 
been considered, and I suppose that's why you would be somewhat 
reluctant to express an opinion on Lopez or Bush v. Gore or 
some of these other great decisions, because you would know 
before you rendered such an important decision in a case like 
that that you've given it the most thorough analysis and you've 
read all the briefs and considered all the arguments of the 
parties involved, is that correct?
    Judge Alito. That's an important part of the legal process. 
If anybody has sat on a jury, they've probably been instructed 
by the judge not to reach any conclusions about the case until 
they've heard all the evidence, not to reach premature 
conclusions, and judges have the same obligation. Now, it 
doesn't mean you don't think about things. You do think about 
them, but you don't reach your final conclusion until you've 
gone through this entire process.
    Senator Sessions. You said earlier that no person in this 
country, no matter how high or powerful, is above the law, and 
no person is beneath the law. Can you assure us that you have 
the courage and the determination to rule according to your 
best and highest judgment of the value of the case, regardless 
of whether or not the person who appointed you or the Congress 
who confirmed you or any other political pressures that may 
fall upon you?
    Judge Alito. I can, Senator. I would do that to the best of 
my ability. That is what I've tried to do on the court of 
appeals, and if I'm confirmed, that's what I would do on the 
Supreme Court.
    Senator Sessions. I believe you will. That is your 
reputation. That is what other lawyers say about you. That is 
what professionals who know you conclude. I think it is an 
important commitment that you have made to us.
    You know, we have arguments about a number of cases and the 
Rybar case has come up a good bit. It involves the machine gun. 
I was a United States Attorney, as you were, and I prosecuted 
machine gun cases for years. The Supreme Court said, on Section 
922, there is no jurisdictional element. Now, historically, 
criminal statutes of Federal law have jurisdictional elements. 
The most common statutes historically that were prosecuted were 
interstate transportation of stolen motor vehicles. It is not a 
stolen motor vehicle, it is the interstate transportation that 
makes it a Federal crime, or the interstate transportation of a 
stolen property, or kidnapping. Kidnapping within a State is 
not a Federal crime, it is only kidnapping that goes 
interstate.
    So I guess I would ask you to explain for those who may be 
listening today what this historical procedure is that requires 
a jurisdictional element of an interstate nexus for the Federal 
Government to be able to prosecute a crime in some State or 
county in America.
    Judge Alito. Yes, Senator. Certainly. Well, let me start 
with the Constitution. The Constitution gives the legislative 
branch certain powers, and they're enumerated in the 
Constitution. One of those powers is the power to regulate 
interstate and foreign commerce, and a great deal of 
legislation that Congress passed during the 20th century was 
regulation that was based on its power to regulate interstate 
and foreign commerce, and many of the criminal statutes that 
Congress has passed, the Federal criminal statutes, are based 
on Congress's power to regulate interstate and foreign 
commerce.
    So it's necessary for each of these statutes to fall within 
this power to regulate interstate and foreign commerce, and one 
of the ways of ensuring that each exercise of this power falls 
within Congress's authority under the Commerce Clause is to 
require that the jurisdictional element be proven in the case. 
In the case of firearms, as I mentioned earlier, the Supreme 
Court has said it's enough to show that the firearm at some 
point in its history traveled in interstate and foreign 
commerce, and my experience as a U.S. Attorney and before that 
as an Assistant U.S. Attorney was that this is not a difficult 
burden for prosecutors to meet. I can't recall a case during 
the time I was U.S. Attorney where anybody expressed the 
slightest problem with satisfying this. So this is a very 
simple way of satisfying the interstate commerce element in the 
case of firearms offenses.
    Senator Sessions. I couldn't agree more, and that is what 
all the traditional firearms laws call for and that is how we 
proved every case that I prosecuted. I approved it once because 
it said, ``Made in Italy'' on the gun. But you prove that the 
gun has been transported in interstate commerce and that is an 
element that gives the Federal jurisdiction. As I understand 
your opinion, you said if the Congress had simply put that in 
the statute as an element of the offense, then it would have 
met constitutional muster.
    So I guess I would say to my colleagues on the other side 
and others, maybe we ought to check this law out and write a 
piece of legislation that puts in the jurisdictional element 
like all the other historic criminal offenses have and we get 
this thing done instead of fussing about it. I feel strongly 
about that.
    But when you don't make it a jurisdictional element, then 
it is not a matter of proof, is that not right, Judge Alito, 
and therefore, the defendant does not have all the elements of 
the case proven beyond a reasonable doubt to the jury that here 
is the case? That is why it is important.
    Judge Alito. That is correct.
    Senator Sessions. We talked about a lot of these cases. I 
would just generally like to express my disagreement with those 
who criticize the Garrett case. It did involve the University 
of Alabama. I believe that the Attorney General of Alabama was 
correct to assert that the plaintiff could sue, could get back 
wages, could get their job back, but under the Sovereign 
Immunity Doctrine that protects States from lawsuits, that 
under the way that statute was passed, they could not get money 
damages against the State of Alabama. I think that was the core 
issue in it.
    I also would like to join with Senator DeWine in his very 
cogent analysis of precedent and super precedent. I think that 
was insightful for us and would like to be on the record as 
joining with that.
    Judge Alito, back 20 years ago, you wrote a memorandum to 
Solicitor General Charles Fried, who was a law professor, I 
guess, before he became Solicitor General and went back to 
Harvard and is there now, a brilliant legal mind. He was the 
Solicitor General. You worked for him. You submitted a 
memorandum on a Pennsylvania case, a case that came out of 
Pennsylvania, and it seemed to me to be a preliminary analysis 
of that issue and the question of whether or not that case 
should be--whether the Department of Justice should intervene 
in that case and file a friend of the court brief. Was it a 
preliminary overview of the issue and not the final brief or 
final summary of argument for the appeal?
    Judge Alito. And that's the Thornburgh case that you're 
referring to, Senator.
    Senator Sessions. Thornburgh.
    Judge Alito. Yes. It wasn't a brief. It was a memorandum 
about whether the government should file a brief as a friend of 
the court.
    Senator Sessions. And you pointed out a number of points in 
that decision that was being questioned that I thought were--
the court had overreached and gone too far. A number of them 
are quite erroneous, it appeared to me, and you analyzed that 
very carefully. But before you concluded your argument, you 
suggested, and not suggested, you stated that you did not think 
a frontal assault on Roe v. Wade would be appropriate, is that 
correct?
    Judge Alito. Yes, that's correct.
    Senator Sessions. And was it not the position of President 
Reagan and the Attorney General of the United States at that 
time that Roe v. Wade was wrongfully decided and they would 
seek the opportunity at some point to seek the overruling of 
it?
    Judge Alito. That was the express position of President 
Reagan himself. He had spoken on the issue and he had written 
on the issue.
    Senator Sessions. So your opinion to the Solicitor General 
as a young staff attorney in the Solicitor General's office 
was, in some ways, contrary to that of the President of the 
United States?
    Judge Alito. Well, I was doing what I thought my job was as 
an advocate, which was to outline the litigation strategy that 
would be in the best interests of my client, given what my 
client was interested in, and it seemed to me that the strategy 
that I recommended was the best strategy to be followed.
    Senator Sessions. And did they follow your suggestions?
    Judge Alito. No, they did not. They argued that Roe v. Wade 
should be overruled and the Supreme Court rejected that--
    Senator Sessions. They, in fact, carried out a frontal 
assault and it was not approved by the Court. So I think that, 
to me, plus your other decision in which you ruled that Health 
and Human Services funds could be utilized to fund an abortion 
for those who qualified was a closed question, that case was, I 
thought. There was a dissent in it, but you ruled in favor of 
the pro-choice, the pro-abortion side of that case even though 
a dissent argued that it was in error, is that correct?
    Judge Alito. That is correct. That's what I thought the law 
required. I thought we were required to defer to the Department 
of Health and Human Services's interpretation of the statute 
and so that's how I voted. And if I'd been out to implement 
some sort of agenda to strike down--to uphold any abortion 
regulation that came along, then I would not have voted the way 
I did in that Elizabeth Blackwell case.
    Senator Sessions. Back in your memorandum in 1985 on the 
question of abortion, one of the provisions of the Pennsylvania 
law that was struck down by the court of appeals simply said 
that there must be a humane and sanitary disposal of aborted 
fetuses, and you thought that was unwise and you pointed out 
that there's a Federal statute already on the books that 
mandates the humane disposal of excess wild free-roaming horses 
and burros, did you not?
    Judge Alito. Yes, that's correct. That was the statute.
    Senator Sessions. So this idea that every time a court 
rules on a pro-abortion opinion, that they're always correct, I 
think is not true. I think the court has been awfully arrogant 
and dismissive of the States' rights and legitimate concerns in 
some of these questions that we're dealing with.
    Judge Alito, you know the salary that a Federal judge 
makes, is that right?
    Judge Alito. I do, all too well.
    [Laughter.]
    Senator Sessions. You know what it would be on the Supreme 
Court?
    Judge Alito. I actually don't know exactly, no.
    Senator Sessions. It's a little more, I think, not much. Do 
you think you can live on that?
    Judge Alito. I can. I've lived on a Federal judge's salary 
up to this point.
    Senator Sessions. You've been accused of favoring an all-
powerful Executive a couple of times in this Committee. Can the 
President cut your pay?
    Judge Alito. No, he can't do that. That's in--the 
Constitution says that, fortunately. Well, nobody can. The 
President certainly can't and Congress can't, either.
    [Laughter.]
    Senator Sessions. Have a sigh of relief there. They can 
increase it, though, right?
    Judge Alito. They can, yes.
    [Laughter.]
    Senator Sessions. Well, we have a tight budget. Senators 
and Congressmen feel, sometimes privately they will tell you 
they think they need to be paid more, but we are paid pretty 
generously, in my view, and maybe we need to set some examples 
about financial management. Maybe we would like to do more, but 
it is difficult.
    But I raise that point because a Supreme Court can declare 
null and void a legislative enactment by the Congress, can it 
not, if it violates the Constitution--
    Judge Alito. Yes. Yes, it can.
    Senator Sessions [continuing]. In their opinion?
    Judge Alito. Yes.
    Senator Sessions. Does anybody review the Supreme Court's 
review?
    Judge Alito. No. No.
    Senator Sessions. And Congress can cut off money for any 
program they want to. In fact, the Anti-Deficiency Act says it 
is a crime for any agency of government to spend money that has 
not been appropriated by Congress. Is that a reviewable Act by 
anyone, for Congress not to fund a program or agency of the 
U.S. Government?
    Judge Alito. No, I don't think that's reviewable.
    Senator Sessions. And aren't there things that the 
Executive branch can do that are not reviewable?
    Judge Alito. There are certainly some things that are not 
reviewable. Vetoes are not reviewable. Pardons are not 
reviewable.
    Senator Sessions. So the mere allegation that an act of the 
President is unreviewable may not be as disastrous as it sounds 
or as bad as it sounds, because certain branches are given 
certain powers.
    Judge Alito. That's correct.
    Senator Sessions. I would like to talk a little bit about 
this question of activism, and I want to be frank about it. 
Some of our liberal colleagues have correctly made the point 
that conservatives can be activists, too. And if you take the 
definition of activism as an action by a judge who allows their 
personal, political, or social or moral values to override 
their commitment to the law, do you believe that a judge who is 
conservative can be an activist just as easily as one who is 
liberal?
    Judge Alito. Yes, I do. I don't think that activism has 
anything to do with being a liberal or being a conservative. It 
has to do with not following the proper judicial role. It has 
to do with a judge's substituting his or her own views for what 
the Constitution means and for what the laws mean.
    Senator Sessions. Now, if a statute passed by Congress 
plainly violates the Constitution, is it an activist decision 
if the Court strikes it down, in your opinion?
    Judge Alito. No, I think that's been settled since Marbury 
v. Madison back at the beginning of the 19th century, that when 
a case is presented to the Supreme Court and there is a 
question raised about the constitutionality of a statute and 
the Court concludes that the statute is unconstitutional, it's 
the obligation of the Court to follow the Constitution and not 
the statute.
    Senator Sessions. Well, if you take the definition of 
activism I think that Senator Hatch and others have used that 
indicates, as we just discussed, that it is departing from the 
faithful application of the law, I think you can have liberal 
and conservative activists. But I would just say to you the 
mere striking down of a statute that is unconstitutional is not 
activism, not if you are faithful to the Constitution and to 
the laws of the land.
    And I would say this: I believe on our side of the aisle, 
the deep concern that we have about judicial activism is a 
legitimate one. We believe that there has been a liberal social 
agenda being promoted too often by the courts that is foreign 
to our history and contrary to the wishes of the American 
people. I believe your philosophy is not one to enforce a 
conservative activism. I believe your philosophy is simply to 
follow the law and let the political branches debate these 
issues and decide them through the proper political process.
    Is that fair to say?
    Judge Alito. That's exactly correct. The judiciary should 
do what it is supposed to do, but it has to have respect for 
the political process. And our constitutional system sets up a 
Government under which most of the decisions, the policy 
decisions, the things that affect people in their daily lives--
the spending of money, taxing, decisions about foreign policy, 
and many other areas--are to be made by the political branches 
of the Government, and the judiciary's role is confined to 
enforcing the Constitution and enforcing the laws and not going 
beyond that.
    Senator Sessions. As you analyze how to interpret the 
Constitution of the United States or a statute passed by the 
U.S. Congress, do you believe that authoritative insight can be 
obtained by reading the opinions of the European Union?
    Judge Alito. I don't. I don't think that it's very 
helpful--in fact, I don't think it is helpful to look at the 
decisions of foreign courts for the interpretation of our 
Constitution. I think we can do very well with our own 
Constitution and our own judicial precedents and our own 
traditions. And I don't say that with disrespect to the other 
countries. But I don't think that there are insights to be 
provided on issues of American constitutional law by examining 
the decisions of foreign courts.
    I think that it's very interesting from a political science 
perspective to see what they've done, and I've personally been 
interested in this over the years. And I think it's flattering 
to us that so many other countries have followed our judicial 
traditions. But on issues of interpretation of our 
Constitution, I don't think that that's useful.
    Senator Sessions. Judge Alito, this is a big deal in our 
country today. Millions of Americans believe that the Court is 
losing discipline, that it is not remaining faithful to the 
Constitution. And, in fact, I share many of those views. A lot 
of people do.
    Do you think that if a court, in fact, is not faithful to 
the law but allows personal or political or social views to 
influence their decisions, that this could in the long run 
endanger public respect for law and even undermine the great 
heritage of the rule of law that we have in this country?
    Judge Alito. I think that everybody who holds a public 
office under the Constitution has a solemn responsibility to 
follow the Constitution and the laws that define the role that 
that person, that officer is supposed to play. And I think that 
the continued success of our constitutional system and public 
respect for the constitutional system are dependent on people 
who have the public trust doing that, making a really strong 
effort to follow the provisions of the Constitution and other 
laws that define the role that they are supposed to play.
    Senator Sessions. I would like to just once more touch on 
this Groody case in which there was a search of a young girl. A 
warrant was issued, was it not, by a Federal magistrate? Was it 
a Federal magistrate?
    Judge Alito. It was a State magistrate.
    Senator Sessions. A State magistrate. And the police 
officers go to the State magistrate, and they get a warrant, 
and the magistrate says that the affidavit is made a part of 
the search warrant. And the officers take it, and in their 
search warrant, they made affidavit that the individuals in 
this house known for distributing drugs often had drugs on 
their persons. And they then went and executed the warrant 
after going to the court and getting approval. And they find 
people on the premises, and there were two females, and a 
female officer took the two females into an upstairs bedroom 
and did a quick search by asking them to pull down their outer 
garments--not all their garments--pull up their blouse, and 
determined they had no contraband or weapons on them. And that 
was that. And the case came before you, years later, I suppose, 
on a lawsuit against the police officers. And that is what you 
were ruling on, were you not?
    Judge Alito. That's right, whether they were liable for 
money damages. And under the law, if they had a reasonable 
belief that they were authorized by the warrant to search 
people who were found on the premises, then they should not be 
liable for civil damages. The warrant had been--the warrant had 
incorporated the affidavit for purposes of establishing 
probable cause, and the officers had said in the affidavit that 
there is probable cause to believe that people on the premises 
may have drugs on their possession, and the magistrate judge 
had accepted that by incorporating the affidavit for purposes 
of probable cause. And under those circumstances, I thought 
that at a minimum it was reasonable for the officers to believe 
that the judicial officer, the magistrate, had said that they 
were to do exactly what they did.
    Senator Sessions. I agree.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions. Thank you, 
Judge Alito.
    At this point we will take a break until 5 minutes to 5.
    [Recess 4:39 p.m. to 4:55 p.m.]
    Chairman Specter. We now turn to Senator Feingold for 30 
minutes.
    Senator Feingold. Judge, thank you for all your patience 
today and throughout this process.
    Judge Alito. Thank you, Senator.
    Senator Feingold. There has already been a lot of 
discussion of this topic today, but I would like to be sure I 
understand your opinion about whether the President, as 
Commander in Chief, can ignore or disobey an express 
prohibition that Congress has passed. The Torture Statute is 
one example, but, obviously, I could imagine a variety of 
others as well, as I am sure you could.
    So here is the question: what are the limits, if any, on 
the President's power to do what he thinks is necessary to 
protect national security regardless of what laws Congress 
passes?
    Judge Alito. Well, when you say regardless of what laws 
Congress passes, I think that puts us in that third category 
that Justice Jackson outlined, the twilight zone, where 
according to Justice Jackson, the President has whatever 
constitutional powers he has under--he possesses under Article 
II, minus what is taken away by whatever Congress has done, by 
an implicit expression of opposition or the enactment of a 
statute. And to go beyond that point, I think we need to know 
the specifics of the case. We need to know the constitutional 
power that the President--the type of Executive power the 
President is asserting and the situation in which it's being 
asserted, and exactly what Congress has done.
    Senator Feingold. Then let us take a more concrete example. 
Does the President, in your opinion, have the authority, acting 
as Commander in Chief, to authorize warrantless searches of 
Americans' homes and wiretaps of their conversations in 
violation of the criminal and Foreign Intelligence Surveillance 
statutes of this country?
    Judge Alito. That's the issue that's been framed by the 
developments that have been in the news over the past few 
weeks, and as I understand the situation, it can involve 
statutory questions, the interpretation of FISA, and the 
provision of FISA that says that no wiretapping may be done 
except as authorized by FISA or otherwise authorized by law, 
and the meaning of the authorization for the use of military 
force, and then constitutional questions. And those would be--
those are issues, as I said this morning, that may well result 
in litigation. They could come before me on the Court of 
Appeals for the Third Circuit. They certainly could come before 
the Supreme Court. And before--those are weighty issues 
involving two of the most important considerations that can 
arise in constitutional law, the protection of a country and 
the protection of people's fundamental rights, and I would have 
to know the specifics and the arguments that were made.
    Senator Feingold. They are indeed important questions, and 
that is why it is so important for me to try to figure out 
where you would be heading on this kind of an issue, and in 
fact, the question I just asked you was not something I 
formulated right now. It is the question that I asked word for 
word of the Attorney General of the United States at his 
confirmation hearing in January 2005. He answered as follows: 
``Senator, the August 30th memo--that's the memo that we 
sometimes refer to as the torture memo--has been withdrawn. It 
has been rejected, including that section regarding the 
Commander in Chief authority to ignore the criminal statutes. 
So it's been rejected by the Executive branch. I categorically 
reject it. And in addition to that, as I've said repeatedly 
today, this administration does not engage in torture and will 
not condone torture. And so what you're really discussing is a 
hypothetical situation,'' was the end of his quotation.
    Well, we now know, of course, that it was not a 
hypothetical situation at all, and when the Attorney General 
said he categorically rejected the torture memo, including the 
section regarding the Commander in Chief's authority to ignore 
criminal statutes, he was also not being straight with this 
Committee. So I would like you to try to answer this question. 
Can the President violate or direct or authorize others to 
violate the criminal laws of the United States?
    Judge Alito. The President has the obligation, under 
Article II of the Constitution, to take care that the laws are 
faithfully executed. And the laws mean, first and foremost, the 
Constitution of the United States. That applies to everybody. 
It applies to the President. And the President, no less than 
anybody else, has to abide by the Constitution. And it also 
means that the President must take care that the statutes of 
the United States that are consistent with the Constitution are 
complied with, and the President has an obligation to follow 
those statutes as well.
    Those are the important general principles, and the 
application of them in a particular case depends on the facts 
of the case and the arguments, and a judge needs to know the 
arguments that are being made on both sides before reaching a 
conclusion about the result. Those are the overriding 
considerations.
    Senator Feingold. I take that answer--and, obviously, you 
may not be able to comment on it because of the possibility of 
it coming before you--I take that to be a pretty serious answer 
in terms of the President's responsibilities to uphold and make 
sure that the laws are followed, including the criminal laws of 
the United States. So given the fact that this interpretation 
of the FISA law may well come before you at some point, I take 
it, as you have indicated, that would not only be an initial 
part of your analysis, but an awfully important analysis of 
whether the President has the power to override these criminal 
statutes. I certainly want to say for the record I do not 
believe the President has the ability to do that in this case, 
and in fact, I think, it would be almost impossible to 
interpret the FISA law in any other way than it clearly states, 
that it is the exclusive authority with regard to wiretapping 
outside of the criminal law.
    You said earlier today, Judge, in response to Senator 
Leahy, that these types of gravely important constitutional 
questions very often do not end up being resolved by the 
judiciary, but rather by the other two branches. So what is the 
proper role of the judiciary in resolving a dispute over the 
President's power to disobey an express statutory prohibition?
    Judge Alito. Well, the judiciary has the responsibility to 
decide cases and controversies that are presented to the 
judiciary, and that means that there has to be a concrete 
dispute between parties, and the parties have to have standing 
under the Constitution, and there's a whole doctrine that's 
called the Political Question Doctrine, but it's a very 
misleading term for people who are not lawyers. It doesn't mean 
that a dispute has something to do with politics or anything 
like that, it means that the dispute--in the sense in which 
people usually use the term ``politics''--it means that it's a 
kind of dispute that the Supreme Court has outlined as being 
not a proper dispute to be resolved by the judiciary, involving 
a constitutional issue that should be resolved often between 
the branches of Government.
    And I was talking earlier about some things that the 
President does that are not reviewable, vetoes, pardons, et 
cetera. There are things that Congress does that are not 
reviewable, impeachment, et cetera. In Baker v. Carr, Justice 
Brennan's opinion outlined a whole list of factors that inform 
the analysis of whether something is a justiciable dispute, and 
sometimes these disputes between the branches of Government are 
held by the Supreme Court to fall into that category of being 
disputes that can't properly be resolved by the courts.
    Senator Feingold. Do you expect that this matter of the 
warrantless searches is likely to be resolved with regard to 
the initial political question doctrine, or do you think it 
would be likely to be resolved on the merits with regard to the 
statute and the Constitution?
    Judge Alito. I don't think I could answer that without 
providing sort of an advisory opinion about something that 
could well come up. If this does come up in litigation, then 
the courts have an obligation to decide whether it's a 
justiciable dispute.
    The Political Question Doctrine, this doctrine of issues 
that are not justiciable, often involves conflicts between the 
branches of the Government, and when a person is asserting the 
person's individual rights are violated, that is the type of 
case that is often resolved, I mean typically resolved by the 
judiciary.
    Senator Feingold. Judge, are we not going to be in kind of 
a tough spot if we find out the Supreme Court cannot help us 
figure out whether the FISA law is an exclusive authority or 
not? Is that not going to be hard to resolve between the 
Executive and the Congress?
    Judge Alito. Well, Senator, when I was--when I referred--
when I said in reference to Senator Leahy's question that often 
disputes between the two branches are resolved without 
resorting to the courts, I don't think I was referring 
specifically to this issue, and if I gave that impression, that 
was a false impression.
    I think I was--what I meant to say, and what I hope that I 
did say, was that separation powers disputes in general 
sometimes fall within this doctrine.
    Senator Feingold. You noted a few times today that the 
questions of the President's power in the wiretapping area and 
other areas will likely come before the courts, including the 
Supreme Court. You just did that. As I understand it, you have 
prepared for these hearings over the past few months with a 
variety of practice sessions. Some have called them moot courts 
or murder boards. Was the question of the President's power in 
time of war to take action contrary to a Federal statute ever 
raised in any way during any of the practice sessions for these 
hearings?
    Judge Alito. I have had practice sessions on a great 
variety of subjects, and I don't know whether that specific 
issue was brought up. It may have been. But what I can tell 
you--
    Senator Feingold. You do not recall whether this issue or 
the question of--
    Judge Alito. Well, exactly--no, the issue of FISA certainly 
has been something that I have studied, and FISA is not 
something that has come before me as a judge.
    Senator Feingold. But you do not recall whether or not this 
was covered in the practice session?
    Judge Alito. No, no. The specific question that you raised 
about the conflict between the President's authority to say 
that a statute enacted by Congress should not be followed, but 
the general area of wiretapping and foreign intelligence 
surveillance wiretapping--
    Senator Feingold. And in fact, the recent events that have 
led to this dispute--
    Judge Alito. And the recent--
    Senator Feingold [continuing]. And the possibility--
    Judge Alito. And the recent events.
    Senator Feingold [continuing]. That it may come before you, 
right, Judge?
    Judge Alito. That's correct, but--
    Senator Feingold. OK. Who was present at these practice 
sessions where these questions were discussed, and who gave you 
feedback or suggestions or made any comment whatsoever on the 
answers you gave?
    Judge Alito. Nobody at these sessions or at any of the 
sessions that I had has ever told me what to say in response to 
any question, and--
    Senator Feingold. I just asked--were there no comments or--
    Judge Alito. The comments that I've received--
    Senator Feingold. No advice?
    Chairman Specter. Let him answer the question, Senator 
Feingold.
    Judge Alito. The advice that I've received has gone 
generally to familiarizing me with the format of this hearing, 
which is very different from the format of legal proceedings in 
which I have participated either as a judge or previously when 
I was arguing a legal issue as a lawyer. But nobody has told me 
what to say. Everything that I have said is an expression of my 
own ideas.
    Senator Feingold. And I do not question that. Judge, I 
asked you though whether anybody gave you any feedback or 
suggestions or made any comment whatsoever on the answers you 
gave in the practice session?
    Judge Alito. In general, yes, they've given me feedback, 
mostly about the form of the question--the form of the answers.
    Senator Feingold. Have you received any other advice or 
suggestions, directly or indirectly, from anyone in the 
administration on how you should answer these questions?
    Judge Alito. Not as to the substance of the question, no, 
Senator.
    Senator Feingold. Only as to the style?
    Judge Alito. That's correct, as to the format, not as to 
the--not as to what I should say I think about any of these 
questions, absolutely not. I've been a judge for 15 years, and 
I've made up my own mind during all that time, and--
    Senator Feingold. And again, I am not suggesting that. I am 
asking whether or not--
    Judge Alito. No, I just want to make that clear.
    Senator Feingold [continuing]. Somebody talked about the 
possible legal bases that the President might assert with 
regard to the ability to do this wiretapping outside of the 
FISA statute. Was that kind of a discussion held?
    Judge Alito. Nobody actually told me the bases that the 
President was asserting. I found the letter that was released 
last week or the week before by an Assistant Attorney General, 
setting out arguments relating to this, on the Internet myself, 
and printed it out, and I studied it to get some idea of some 
of the issues that might be involved here. And I looked at some 
other materials that legal scholars have put out on this issue, 
but nobody in the administration actually has briefed me on 
what the administration's position is with respect to this 
issue.
    Senator Feingold. Does it strike you as being inappropriate 
for members of the Department of Justice or the White House 
staff, who are currently defending the President's actions and 
the NSA domestic spying program, to be giving you advice on how 
you might handle questions about that topic in the hearing?
    Judge Alito. It would be very inappropriate for them to 
tell me what I should say, and I wouldn't have been receptive 
to that sort of advice, and I did not receive that kind of 
advice.
    Senator Feingold. Thank you, Judge. I want to come back to 
Mitchell v. Forsythe, in which you participated in the 
Solicitor General's Office. As we have already heard, that case 
considered the Government's argument that President Nixon's 
Attorney General, John Mitchell, should be granted absolute 
immunity for authorizing warrantless wiretaps, and you signed 
the Government's brief, making that argument. The Supreme Court 
rejected the claim of absolute immunity, noting that the 
Attorney General, acting in the inherently secretive national 
security context, has few built-in restraints. Justice White, 
writing for the Court in Mitchell, said, ``The danger that high 
Federal officials will disregard constitutional rights in their 
zeal to protect national security is sufficiently real to 
counsel against affording such officials an absolute 
immunity.''
    Now, that statement still has a lot of relevance today, 
does it not?
    Judge Alito. Yes, it does. Absolute immunity is quite 
restricted under our legal system, but there are some high-
ranking officials in all three branches of the Government, who 
do have absolute immunity just from civil damages, not from 
criminal liability or from impeachment, or removal from office, 
but for--or for injunctive relief, they can be ordered to 
comply with the Constitution, but as far as civil damages are 
concerned.
    Senator Feingold. But when you were at the Solicitor 
General's Office you wrote this memo about the case, saying, 
``I do not question the Attorney General should have this 
immunity for authorizing warrantless wiretap.'' Why did you not 
question the Attorney General's absolute immunity?
    Judge Alito. First of all, because it was the position that 
our client, whom we represented in an individual capacity, and 
it was his money that was at stake here, wanted to make. So we 
had an obligation that was somewhat akin to the obligation of a 
private attorney representing a client.
    Second, it was an argument to which the Department was 
committed. It has been made in Kissinger v. Halperin in the 
Carter administration. It was repeated in Harlow v. Fitzgerald 
in the Reagan administration. In Harlow v. Fitzgerald, the 
Supreme Court, while rejecting the idea that cabinet officers 
in general should have absolute immunity from civil damages, 
had said something like, and I'm not going to be able to 
provide an exact quote, but something like, but the situation 
could well be different for people who are involved in 
sensitive national security matters or foreign matters.
    Senator Feingold. But you said in your memo that, quote, 
``I do not question the Attorney General's absolute immunity.'' 
You did not say it is, quote, ``it is the position of our 
office,'' or as you were just saying, this administration has 
argued this in the past. You, in effect, injected yourself into 
the statement. Clearly, you were expressing your personal 
opinion on this legal issue, were you not?
    Judge Alito. Senator, I actually don't think I was 
expressing a personal opinion. I was saying that in my capacity 
as the writer of this memo who was recommending that the 
argument not be made, even though it was one that our client 
wanted to have made, I wasn't disputing the general argument to 
which the Department was committed. But I thought that we 
should take a different approach, that we should just argue the 
issue of appealability. But that was not the approach that was 
taken.
    Senator Feingold. Let us go on to the Solicitor General's 
brief in the Mitchell case, which you signed. That brief argues 
strongly for the need for absolute immunity, arguing that it is 
far more important to give the Attorney General as much 
latitude as possible in the national security context than to, 
as the brief puts it, quote, ``defer the occasional malevolent 
official,'' from violating the law. Now, I find this statement 
particularly troubling today in light of the current 
administration's warrantless wiretapping in the name of 
national security. Do you agree with that statement in the 
brief, that broad deference is warranted even if some Attorneys 
General may abuse their power?
    Judge Alito. I think the issue of the scope of the immunity 
that the Attorney General has is now settled by Mitchell v. 
Forsythe. That is the law. It was considered--the argument was 
considered by the Supreme Court and they decided the question.
    Judges have absolute immunity for their judicial decisions. 
Members of Congress and their staff have absolute immunity for 
things that they do that are integral to the legislative 
process. The President has absolute immunity from civil damages 
for the President's official acts. But absolute immunity is 
used very sparingly because of just the considerations that 
you're referring to. But the consideration on the other side is 
that people who are involved in lots of things that make other 
people angry--judges deciding cases, Members of Congress 
passing legislation, Presidents doing all sorts of things--
would otherwise be subjected to the threat of so many political 
reprisals that they would be driven from office. It's a policy 
judgment that our law has made that some people should have 
absolute immunity, but it's used very sparingly.
    Senator Feingold. I find your comments interesting because, 
of course, the argument is often fairly made that after 9/11, 
we have to recognize the important role that our Executive 
plays in protecting the American people. But I would also argue 
that it is a particularly compelling time to make sure there 
isn't undue deference, given the types of powers that the 
Executive may seek to use in trying to fight this threat.
    In your class notes from a seminar you gave at Pepperdine 
Law School on ``Civil Liberties in Times of Emergency,'' you 
repeatedly raised the question of whether the judiciary has the 
capability to review certain types of determinations made by 
the Executive branch in national security cases in particularly 
factual issues, and we have recently seen an example of a court 
evidently expressing its frustration at a national security 
case when the facts presented to it by the Executive, which it 
had accepted, apparently did not hold up. Of course, I am 
talking about the Fourth Circuit's serious concern it hadn't 
been told that Jose Padilla needed to be held militarily as an 
enemy combatant because he had plotted to use a dirty bomb in 
the United States, and then finding out that three-and-a-half 
years later, the Justice Department wanted to transfer him to 
law enforcement authorities to stand trial for entirely 
different and much less serious crimes. In Padilla, the Fourth 
Circuit was originally willing to defer to the Executive's 
assertion that it needed to hold Padilla militarily. It was 
quite upset, and justifiably, I think, to find out that it 
might not have deserved such deference.
    I am not going to ask you about that case because I know 
that case is coming before the Supreme Court, but I do want you 
to say something about the role of the judiciary in evaluating 
the facts presented to it in national security cases by the 
Executive branch. How does a court decide whether to rely on 
the facts presented to it by the Executive in a national 
security case?
    Judge Alito. What I was doing in that talk at Pepperdine 
was framing that question, and it's a lot easier to frame the 
question and to ask students to think about it and give me 
their reactions than it is to answer it. We've had examples of 
instances in which the judiciary in the past has had to 
confront this issue of reviewing factual presentations of the 
Executive in times of national crisis and there have been 
instances in which the judiciary has accepted--and I'm thinking 
of the Japanese internment cases, has accepted, which were one 
of the great constitutional tragedies that our country has 
experienced--has accepted factual presentations by the 
political--by the Executive branch that turned out not to be 
true, and from my reading of what went on, were not believed to 
be true by some high-ranking Executive officials at the time.
    But there is the problem of judicial fact finding, which I 
was talking about earlier, and the context of things that may 
be taking place on the battlefield, for example, or things that 
are taking place in wartime probably are more difficult for the 
judiciary to evaluate than other factual questions. So that's 
the dilemma and I can't say that I can provide a clear answer 
to it.
    Senator Feingold. I do appreciate your referencing the 
Korematsu case and the problem there and how this is going to 
become an even more serious issue.
    I want to switch to something else, the matter of the 
Vanguard case and the recusal. This has been characterized 
today as a non-issue. One Senator said it is a joke, it is 
ridiculous. Another one said it is an absurd, just plain 
absurd. And another, the same Senator said it was a blatant 
tactic to torpedo your nomination.
    Well, Judge, I was the Senator that asked Judge Roberts 
very searching questions about whether or not he should have 
recused himself in the Hamdi case. I am sure he didn't enjoy 
it. I didn't particularly enjoy asking the questions, but in 
the end, I voted for him.
    So let me just say to my colleagues, I reject this idea 
that when we come here to do our job of examining a nominee, 
that asking questions about an ethical issue is somehow a 
political game or an attempt to torpedo a nomination. You know, 
this idea of insulating yourselves and insulating the nominee 
before we even ask questions about a subject really is not 
conducive to the kind of process that this Chairman and this 
Ranking Member have made possible on the first nomination and 
this one, as well. So I think this is our job and I ask you 
these questions in this spirit. I might add, although my time 
is limited, that when you hear the actual facts of it, whatever 
conclusions we draw, it is certainly not a trivial matter. It 
is something that I think we ought to cover.
    So let me begin by following up on Senator Kennedy's 
question regarding the promise you made to the Committee. In 
1990, in your Senate questionnaire at the time of your 
nomination to the Third Circuit, you were asked how you would 
handle potential conflicts of interest. You told the Committee 
that you did not believe conflicts of interest relating to your 
financial interests were likely to arise. Nevertheless, you 
wrote, quote, ``I would, however, disqualify myself from any 
cases involving the Vanguard Companies, the brokerage firm 
Smith Barney, or the First Federal Savings and Loan of 
Rochester, New York.'' You also wrote that you would disqualify 
yourself from any case involving your sister's law firm and 
from any case in which you participated or that was under your 
supervision in the United States Attorney's Office. Now, 
whether or not such recusals were required under the Federal 
recusal law, your statement to the Committee was clear, 
unambiguous, and not time limited. Now, I think for that reason 
alone, it is more than legitimate to ask some questions in 
front of this Committee about this.
    This morning, Senator Hatch read from a letter from the 
ABA, apparently received yesterday, although we did not see it 
until today. That letter talked about what you told the ABA 
when you asked about Vanguard and the other ethics issues. You 
also answered a number of questions from Senator Hatch about 
the case.
    But your responses to both the ABA, as far as we can tell 
from the letter, and Senator Hatch did not say anything at all 
about your promise to this Committee. Instead, you responded by 
saying that you didn't notice the recusal issue because you did 
not get so-called clearance sheets in this case because it was 
a pro se case and that you didn't, quote, ``focus'' on the 
issue of recusal. You also didn't mention something that the 
clerk of your court told us in a letter, that all judges have 
standing recusal lists that all cases--all cases--both pro se 
cases and cases where the parties are represented by counsel 
are checked against before they are sent to judges.
    So my first question is this. After you were sworn in as 
judge, did you notify the court of your commitments to the 
Senate and request that the Vanguard Companies, Smith Barney, 
and First Federal Savings and Loan be included on your standing 
list of parties whose involvement in a case would require your 
recusal?
    Judge Alito. Senator, I don't have a copy of the initial 
computer list, so I can't answer that question. At some point, 
Vanguard--the computer lists that are available from, I think, 
1992 and 1993 do not have Vanguard on it and I don't know why 
that is so--
    Senator Feingold. So you don't recall whether you notified 
them or not?
    Judge Alito. I do not know.
    Senator Feingold. Judge, we know you notified the court in 
1990 that the U.S. Attorney's Office and your sister's law firm 
should be on your standing recusal list because you recused 
yourself from a number of such cases in the first several years 
you were on the bench. And we also finally received additional 
documents just yesterday from the court. These documents show 
that the Vanguard Companies and the other financial entities 
you listed in 1990 were not on your standing recusal list, 
which you approved in 1993, 1994, 1995, or 1996. Do you 
remember removing them from your standing recusal list, or is 
it fair to assume--or is it your belief that they were never 
put on your recusal list?
    Judge Alito. Senator, I don't know. I don't know whether 
I--whether they were removed. I don't think I ever told the 
clerk's office, take them off. It may be that at some point, I 
submitted a new list and they were not on the list. I do think 
it's important to keep in mind that this list is just an aid 
for the judge. This is not a comprehensive list of everything 
that will cause a judge to recuse himself.
    Senator Feingold. I understand. I just want to get the 
facts down. So to be clear on the facts, there is no evidence 
that you requested that Vanguard appear on your standing 
recusal list before 2003 when you informed the clerk that 
Vanguard and apparently also Smith Barney should be added, and 
you don't have any independent recollection of adding them to 
the list before then, either--
    Judge Alito. That's correct.
    Senator Feingold [continuing]. Isn't it?
    Judge Alito. That's correct.
    Senator Feingold. Now, you explained to the ABA that the 
problem in these cases was that the conflict screen system was 
not working in these cases and you told Senator Kennedy and 
Senator Hatch this morning that there were some oversights in 
this case, and you wrote in a November 10 letter to Senator 
Specter, due to an oversight, it did not occur to you that 
Vanguard's status might call for your recusal. But it seems 
that the problem was not that the screening program was not 
working or that there was a computer glitch, as you and the 
White House originally suggested, but either that Vanguard was 
not on your recusal list and you didn't remember your promise, 
or that you did not recognize that Vanguard was a party in the 
case. Isn't that a fair characterization?
    Judge Alito. Well, there was an oversight and the oversight 
was on my part in not focusing on the issue of recusal when I 
first received the case.
    Senator Feingold. So there wasn't--so the problem really--
you can admit now, can't you, that this was not a computer 
glitch or a failure of the screening system. You are really 
saying something very different at this point.
    Judge Alito. I am not saying something different as to the 
screening system. The screening system was exactly what I 
described this morning, and I described that to the ABA, 
involving--
    Senator Feingold. But you don't think it was a computer 
glitch anymore, do you?
    Judge Alito. It was not a complete computer glitch, and if 
I could just explain, the origin of that was that when I was 
down here shortly after the President announced his intention 
to nominate me, I started to be--I started to receive questions 
about this Vanguard issue and I was receiving information from 
our clerk's office, and that based on the information that I 
received, it was my impression that there had been a computer 
glitch and that was the origin of that statement and that 
information that constitutional--
    Senator Feingold. Let me ask you this in my last few 
seconds. When you wrote to Judge Scirica indicating that you 
would recuse yourself from the Monga v. Ottenburg case, why did 
you feel the need to argue that you weren't, in fact, required 
to do so? Why not just admit you made a mistake, agree to 
recuse, and move on? Why didn't you just do that when the issue 
was raised here instead of coming up with these different 
explanations that in some cases, I think, have become 
unconvincing?
    Judge Alito. Well, Senator, when the recusal motion came 
in, I was disturbed by it and I wanted to see what the Code of 
Conduct exactly required in this context. Twelve years had gone 
by and no Vanguard case had come up and I hadn't had an 
occasion to look at this issue. And when I looked at it, it--
the recusal motion was very harsh and it accused me of 
unethical conduct and I took it seriously and I wanted to see 
what the Code required, and I researched it and it was my 
conclusion that I was not required by the Code to recuse, but 
then I went on and said, but I still don't want to participate 
in this case and I would like to have the initial decision 
vacated and make sure that Ms. Maharaj had an entirely new 
appeal, and that's what I asked for and that's what was done.
    Senator Feingold. Thank you, Judge.
    Senator Hatch. Mr. Chairman?
    Chairman Specter. Senator Hatch?
    Senator Hatch. On this particular issue, could I take just 
2 minutes out of my next round?
    Chairman Specter. If you want to comment, you may, and 
Senator Feingold can have an opportunity to respond.
    Senator Hatch. Sure. On your form that you filled out, the 
question was, explain how you will resolve any potential 
conflict of interest, including the procedure you will follow 
in determining these areas of concern. Identify the categories 
of litigation and financial arrangements that are likely to 
present potential conflicts of interest during your initial 
service in the position to which you have been nominated. Now, 
this case arose 12 years later, didn't it?
    Judge Alito. Yes, it did, Senator.
    Senator Hatch. That is hardly your initial service. To be 
held to that type of a standard, especially in a case that 
every ethics professor I know of says you didn't do anything 
wrong in, seems to me is going a little bit beyond the pale 
here and it is overblown. Frankly, I think you have got to read 
the whole thing. You are a good lawyer and you have agreed to 
do it, but it was during your initial service. Now, I guess you 
could interpret initial service to be a year or two or 3 years, 
but 12 years? I don't think so.
    Senator Feingold. Mr. Chairman?
    Chairman Specter. Senator Feingold, do you care to--
    Senator Feingold. Yes. I mean, the fact is the nominee 
continues to have the holdings in Vanguard. They have 
appreciated in value. The time hasn't changed that. I think the 
Judge here was at least trying to suggest there might have been 
some mistake made here and instead we are getting sort of 
after-the-fact justifications that put some kind of a time 
limit on the promise he made to this Committee, and there was 
no time limit on the promise that was made to the Committee.
    Senator Hatch. I still have 30 seconds left. Judge, No. 1, 
you have researched it and you didn't have to recuse yourself. 
You concluded that?
    Judge Alito. Yes, I did.
    Senator Hatch. No. 2, these ethics professors have 
concluded that, right?
    Judge Alito. That is right.
    Senator Hatch. No. 3, you have tried to comport with the 
highest standards of ethics during your whole 15 years on the 
bench, right?
    Judge Alito. I have tried to do that and to go beyond 
what--
    Senator Hatch. No. 4, I believe we will have judges from 
that court who will say that you have.
    Chairman Specter. Senator Feingold?
    Senator Feingold. Mr. Chairman, I am curious if this isn't 
a situation where he felt the need to recuse himself why he 
wouldn't have put Vanguard on the list as something he should 
recuse himself from--
    Senator Hatch. Because he was mistaken, that is why.
    Chairman Specter. We are going to move on now. I think that 
this slight exchange is permissible as an exception to our 
general rules. It livens up the afternoon.
    [Laughter.]
    Senator Hatch. I want my 2 minutes back.
    Chairman Specter. Anything at about 5:30 in the afternoon 
is welcome.
    [Laughter.]
    Chairman Specter. Senator Graham?
    Senator Graham. That was an interesting exchange. I guess 
there is no rule against beating a dead horse or we would all 
have quit a long time ago, so--
    [Laughter.]
    Senator Graham [continuing]. So in the next 30 minutes, I 
am going to ask you the same questions you have been asked for 
a whole day, and I hope you will understand if any of us come 
before a court and we can't remember Abramoff, you will tend to 
believe us.
    [Laughter.]
    Senator Graham. Now I know why they give you a lifetime 
appointment for doing this. I was skeptical before, but I think 
once is enough in a lifetime.
    For what it is worth, I think you have done a great job. 
You have been very forthcoming. You have seldom used--I may 
have to decide that you have answered a lot of questions and I 
particularly enjoyed Senator Feingold's questions about 
Executive power and I will pick up on that.
    No. 1, from a personal point of view, do you believe the 
attacks on 9/11 against our Nation were a crime or an act of 
war?
    Judge Alito. That is a hard question to answer and--
    Senator Graham. Good.
    Judge Alito. That is a way of buying 30 seconds while I 
think about the answer. Senator, I think that what I think 
personally about this is really not something that would be--
that would inform anything that I would have to do as a judge.
    Senator Graham. Well, Judge, I guess I disagree because I 
think we are at war and the law of armed conflict in a wartime 
environment is different than dealing with domestic criminal 
enterprises. Do you agree with that?
    Judge Alito. It certainly is.
    Senator Graham. We have laws on the books that protect us, 
the Fourth Amendment included, from our own law enforcement 
agencies coming against our own citizens. But we also have laws 
on the books during a time of war to protect or country from 
being infiltrated by foreign powers and bodies who wish to do 
harm to us. That is a totally different legal concept. Is that 
correct?
    Judge Alito. I am reluctant to get into this because I 
think that things like act of war can well have particular 
legal meanings in particular contexts and, you know, under the 
Constitution.
    Senator Graham. Do you doubt that our Nation has been in an 
armed conflict with terrorist organizations since 9/11, that we 
have been in an undeclared state of war?
    Judge Alito. In a lay sense, certainly we have been in a 
conflict with terrorist organizations. I am just concerned that 
in the law all these phrases can have particular meanings that 
are defined by the cases.
    Senator Graham. That is very important, and let's have a 
continuing legal education seminar here about the law of armed 
conflict in the Hamdi case. The Hamdi case is precedent. Is 
that correct? It is a decision of the Supreme Court.
    Judge Alito. It certainly is, yes.
    Senator Graham. And it tells us at least two to three 
things. No. 1, it tells us something that I find reassuring 
that the Bill of Rights, the Constitution, survive even in a 
time of war.
    Judge Alito. That is certainly true.
    Senator Graham. So there is a holding in that case that I 
want to associate myself with, and I think Senator Feingold 
does, that even during a time of war when your values are 
threatened by an enemy who does not adhere to those values, 
they will not be threatened by your Government unless there is 
a good reason. Do you agree with that?
    Judge Alito. Senator, I agree that the Constitution was 
meant to deal with all of the contingencies that our country 
was going to face. And I think the Framers hoped that we would 
not get involved in many wars, but they were students of 
history and I am sure they realized that there would be wars. 
They provided for war powers for the President and for 
Congress, and the structure is meant to apply both in peace and 
in war.
    Senator Graham. And you said in your previous testimony 
that no political figure in this country is above the law, even 
in a time of war.
    Judge Alito. That is correct.
    Senator Graham. There is another aspect of the Hamdi case 
that no one has picked up upon, but I will read to you. ``In 
light of these principles, it is of no moment that the 
authorization to use military force does not use specific 
language of detention, because detention to prevent a 
combatant's return to the battle field is a fundamental 
incident of waging war. In permitting the use of necessary and 
appropriate force, Congress has clearly and unmistakably 
authorized detention in the narrow circumstances considered 
here, and those circumstances were a person alleged by the 
Executive branch to be an enemy combatant.''
    And one of the principles we found from the Hamdi case is 
that because we are, in my opinion, at war and Congress has 
authorized the President to use force against our enemies, the 
Executive branch, according to the Hamdi case, inherent to his 
power of being Commander in Chief, can detain people who have 
been caught on the battle field.
    Does that make sense to you? Do you agree that is the 
principle of the Hamdi case?
    Judge Alito. That is the principle of the Hamdi case.
    Senator Graham. And it makes perfect sense because if we 
catch someone in Afghanistan or Iraq or any other place in the 
world who is committing acts of violence against our troops or 
our forces, or we catch people here in the United States who 
have infiltrated our country for the purpose of sabotaging our 
Nation, there is no requirement in the law to catch and release 
these people, is there?
    Judge Alito. Well, Hamdi speaks to the situation of an 
individual who was caught on the battlefield.
    Senator Graham. In the history of our Nation, when we 
captured German and Japanese prisoners, was there ever a legal 
requirement anybody advanced that after a specific period of 
time you have to let them go?
    Judge Alito. It is my understanding that the prisoners of 
war who were taken in World War II were held until the conflict 
was over.
    Senator Graham. It would be an absurd conclusion for a 
court or anyone else to tell the executive branch that if you 
caught somebody legitimately engaged in hostile activities 
against the United States that you have to let them go and go 
back and fight us again. That makes no sense, does it?
    Judge Alito. Well, I explained what my understanding is 
about how this matter of holding prisoners was handled in prior 
wars. This issue was addressed in Hamdi, in what was discussed 
in Hamdi in the context of--
    Senator Graham. In the Padilla case, they held an American 
citizen who was engaged in hostile activities against the 
United States allegedly as an enemy combatant and the Fourth 
Circuit said the President, during a time of hostility, has the 
ability to do that.
    Do you agree that that is a part of our jurisprudence?
    Judge Alito. That was the holding in Padilla.
    Senator Graham. Yes.
    Judge Alito. Yes, that was the holding of the lower court 
in--of Padilla, yes.
    Senator Graham. Now, the point I am trying to make is that 
when you are engaged in hostilities, there are some things that 
we assume the President will do. If we don't kill the enemy, we 
capture the enemy. The President, as the Commander in Chief, 
will make sure they don't go back to the battle.
    No. 2, if we catch someone and there is a question to their 
status, whether or not you are prisoner of war under the Geneva 
Conventions, are you an enemy combatant, who traditionally in 
our constitutional democracy determines whether or not--the 
status of a person engaged in hostilities?
    Judge Alito. Well, Padilla--I am sorry--Hamdi said that a 
person who is being detained, an unlawful person who is 
asserted to be an unlawful combatant and who is being detained, 
has the right--has due process rights. And the issue of the 
type of tribunal--and they explained to some degree how that 
would be handled, but the identity of the particular tribunal 
that would be required to adjudicate that was not an issue that 
was decided in Hamdi or any of the other cases.
    Senator Graham. Can you show me an example in American 
jurisprudence where the question of status, whether a person 
was a lawful combatant or an unlawful combatant, was decided by 
a court and not the military?
    Judge Alito. I can't think of an example. I can't say that 
I am able to survey the whole history of this issue, but I 
can't think of one.
    Senator Graham. Can you show me a case in American 
jurisprudence where an enemy prisoner held by our military was 
allowed to bring a lawsuit against our own military regarding 
their detention?
    Judge Alito. I am not aware of such a case.
    Senator Graham. Is there a constitutional right for a 
foreign non-citizen enemy prisoner to have access to our courts 
to sue regarding their condition of confinement under our 
Constitution?
    Judge Alito. Well, I am not aware of a precedent that 
addresses the issue.
    Senator Graham. Do you know of any case where an enemy 
prisoner of war brought a habeas petition in World War II 
objecting to their confinement to our Federal judiciary?
    Judge Alito. There may have been a lower court case. I am 
trying to remember the exact status of the individual and it 
was--
    Senator Graham. Well, let me help you. There were two 
cases. One of them involved six saboteurs, the In Re Quirin--
    Judge Alito. Quirin case, yes.
    Senator Graham. Would you agree with me that that case 
stood for the proposition that in a time of war or declared 
hostilities, an illegal combatant, even though they may be an 
American citizen--the proper forum for them to be tried in is a 
military tribunal and they are not entitled to a jury trial as 
an American citizen in a non-wartime environment?
    Judge Alito. Well, those were a number of German saboteurs 
who landed by submarine in the United States and they were 
taken into custody and they were tried before a military 
tribunal and the case went up to the Supreme Court. The Supreme 
Court sustained their being tried before a military tribunal. 
At least one of them claimed to be an American citizen, and 
most of them--I think all but one or two actually were 
executed.
    Senator Graham. And our Supreme Court said that is the 
proper forum during a wartime environment to try people who are 
engaged in illegal combat activities against our country. Is 
that correct?
    Judge Alito. Well, they sustained what was done under the 
circumstances that I described.
    Senator Graham. Well, that would be a precedent, then, 
wouldn't it?
    Judge Alito. It is the precedent, yes.
    Senator Graham. OK. There was a case involving six German 
soldiers captured in Japan and transferred to Germany, and they 
brought a habeas petition to be released in the Eisen--I can't 
remember the--
    Judge Alito. Eisentrager.
    Senator Graham. Well, you know it. Tell me what the court 
decided there.
    Judge Alito. Well, they were--as I recall, they were 
Germans who were found in China assisting the Japanese--
    Senator Graham. China and not Japan. You are right.
    Judge Alito [continuing]. Assisting the Japanese after the 
termination of the war with Germany, and they were unsuccessful 
in their habeas petition. And that was interpreted prior to the 
Supreme Court's decisions a couple of years ago to mean that 
there was a lack of habeas jurisdiction over them because they 
were being held in territory that was not U.S. territory.
    Senator Graham. For those who are watching who are not 
lawyers, generally speaking in all of the wars that we have 
been involved in, we don't let the people trying to kill us sue 
us, right? And we're not going to let them go at an arbitrary 
time period if we think they are still dangerous because we 
don't want to go have to shoot at them again or let them shoot 
at us again.
    Is that a good summary of the law of armed conflict?
    Judge Alito. The precedent--I don't know whether I would 
put it quite that broadly, Senator.
    [Laughter.]
    Judge Alito. The precedent that you--Johnson v. 
Eisentrager, of course, has been substantially modified, if not 
overruled. Ex Parte Quirin, of course, is still a precedent. 
There was a lower court precedent involving someone who fought 
with the Italian Army and I can't remember the exact name of 
it, and that was the case that I thought you were referring to 
when you first framed the question. But those are the 
precedents in the area.
    Then if you go back to the Civil War, there is Ex Parte 
Milligan and a few others. Now, in Hamdi--
    Senator Graham. We don't have to go back that far.
    Judge Alito. Well, in this area, I think it is actually 
instructive to do it. But in Hamdi, the Court addressed this 
question of how long the detention should take place and they 
said--because they were responding to the argument that this 
situation is not like the wars of the past which had a more or 
less fixed--it was not anticipated that they would go on for a 
generation and they said we will get to that if it develops 
that way.
    Senator Graham. Who is better able to determine if an enemy 
combatant, properly held, has ongoing intelligence value to our 
country? Is it the military or a judge?
    Judge Alito. On intelligence matters, I would think that is 
an area where the judiciary doesn't have expertise. But we do 
get into this issue I was discussing with Senator Feingold 
about the degree to which--the balance between the judiciary's 
performing its function in cases involving individual rights 
and its desire not to intrude into areas where it lacks 
expertise particularly in times of war and national crisis.
    Senator Graham. So having said that, if we have a decision 
to make as a country when to let someone go who is an enemy 
combatant, I guess we have got two choices: we can have court 
cases, or we can allow the military to make a determination if 
that person still presents a threat to the United States, and 
whether or not that person has an intelligence value by further 
confinement.
    Do you feel the courts possess the capabilities and the 
competence to make those two decisions better than the 
military?
    Judge Alito. The courts do not have expertise in foreign 
affairs or in military affairs, and they certainly should 
recognize that. And that is one powerful consideration in 
addressing legal issues that may come up in this context. But 
there is the other powerful consideration that it is the 
responsibility of the courts to protect individual rights in 
cases that are properly before the Court, cases where they have 
jurisdiction in one way or another, cases that are fit for 
judicial resolution.
    Senator Graham. I totally understand that, but our courts 
have not by tradition gotten involved in running military jails 
during time of war. I can't think of one time where a prisoner 
of war housed in the United States during World War II, a 
German Nazi or a Japanese prisoner was able to go and sue our 
own troops about their confinement. I think there is a reason 
there is none of those cases. It would lead to chaos.
    Now, when it comes to treating detainees and how to treat 
them, I think the Congress has a big, big role to play, and I 
think that the courts have a big role to play. Are you familiar 
with the Geneva Convention?
    Judge Alito. I have some familiarity with it.
    Senator Graham. Do you believe it has been good for our 
country to be a signatory to that convention?
    Judge Alito. I think it has, but it's not really my area of 
authority. That's Congress's area of authority.
    Senator Graham. Well, just as an American citizen, are you 
proud of the fact that your country has signed up to the Geneva 
Convention and that we have laid out a system of how we treat 
people who fall into our hands and how we will engage in war?
    Judge Alito. I think the Geneva Convention--and I'm not an 
expert on the Geneva Conventions, but I think they express some 
very deep values of the American people, and we have been a 
signatory of them for some time, and I think that--
    Senator Graham. Now, let's go back to the legal application 
of the Geneva Convention. If someone was captured by an 
American force and detained, either at home or abroad, would 
the Geneva Convention give that detainee a private cause of 
action against the U.S. Government?
    Judge Alito. Well, that's an issue, I believe, in the 
Hamdan case, which is an actual case that's before the Supreme 
Court. It goes to the question of whether a treaty is self-
executing or not. Some treaties are self-executing.
    Senator Graham. Has there ever been an occasion in all the 
wars we have fought where the Geneva Convention was involved 
whether the courts treated the Geneva Convention as a private 
cause of action to bring a lawsuit against our own troops?
    Judge Alito. I'm not familiar with such a case, but I can't 
say whether there might be some case or not.
    Senator Graham. Now, when it comes to what authority the 
Executive has during a time of war, we know the Supreme Court 
has said it is implicit from the force resolution that you can 
detain people captured on the battlefield. Hamdi stands for 
that proposition. Is that correct?
    Judge Alito. That's what was involved in Hamdi.
    Senator Graham. The problem that Senator Feingold has and I 
have and some of the rest of us have is does that force 
resolution--does it have the legal effect of creating the 
exception to the FISA court? And I know that may come before 
you, but let's talk about generally how the law works.
    You say that the President has to follow every statute on 
the books unless the statute allows an exception for the 
President. Is that a fair statement? Just being President, you 
cannot set aside the law.
    Judge Alito. The President has to follow the law, and that 
means the Constitution and the laws that are enacted consistent 
with the Constitution.
    Senator Graham. There is a statute that we have on the 
books against torture. Are you familiar with that statute?
    Judge Alito. The Convention Against Torture, well, the 
statutes implementing the Convention Against Torture.
    Senator Graham. And the statute provides the death penalty 
for somebody who violates the conventions as a possible 
punishment.
    Judge Alito. That's right. If death results, the death 
penalty is available.
    Senator Graham. So this idea that Senator McCain somehow 
banned torture is not quite right. The Convention on Torture 
and the statute that we have implementing that convention were 
on the books long before this year. Is that correct?
    Judge Alito. Yes, they were.
    Senator Graham. Do you believe that any President, because 
we are at war, could say, ``The statute on torture gets in the 
way of my ability to defend the United States, therefore, I 
don't have to comply with it''?
    Judge Alito. The President has to comply with the 
Constitution and the laws of the United States that are enacted 
consistent with the Constitution. That is the principle. The 
President is not above the Constitution and the laws.
    Now, there are issues about the interpretation of the laws 
and the interpretation of the Constitution, but--
    Senator Graham. Are you a strict constructionist?
    Judge Alito. I think it depends on what you mean by that 
phrase, and if you--
    Senator Graham. Well, let's forget that. We will never get 
to the end of that.
    [Laughter.]
    Senator Graham. Have you heard the term used?
    Judge Alito. I have heard the term used.
    Senator Graham. Is it fair to say that when it is used by 
politicians, people like me, we are trying to tell the public 
we want a judge who looks at things very narrowly, that does 
not make a bunch of stuff up? Is that a fair understanding of 
what a strict constructionist may be in the political world?
    Judge Alito. Well, if a strict constructionist is a judge 
who doesn't make things up, then I'm a strict constructionist.
    Senator Graham. There you go.
    [Laughter.]
    Judge Alito. I agree with that, Senator.
    Senator Graham. Now, if there is a force resolution that 
Congress passes to allow any President to engage in military 
activity against someone trying to do us harm, and the force 
resolution says the President is authorized to use all 
necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks on September 11, 
2001, or just make it generic, if someone argued that that 
declaration by Congress was a blanket exemption to the warrant 
requirement under FISA, would that be a product of strict 
constructionist legal reasoning?
    Judge Alito. I think that a strict constructionist, as you 
understand it, would engage in a certain process in evaluating 
that question, and a strict constructionist, a person who 
interprets the law--and that's how I would put it. A person who 
interprets the law would look at the language of the 
authorization for the use of military force and legislative 
history that was informative, maybe past practices--were there 
prior enactments that are analogous to that? What was the 
understanding of those? And a host of other considerations that 
might go into the interpretive process.
    Senator Graham. I guess what I am saying, Judge, is I can 
understand when the Court ruled that the President has it 
within his authority to detain people on the battlefield under 
this force resolution, that makes sense. I understand why the 
President believes he has the ability to surveil the enemy at a 
time of war. And the idea that our President or this 
administration took the law in their own hands and ignored 
precedent of other Presidents or case law and just tried to 
make a power grab I don't agree with. But this is really not 
about you, so you don't have to listen. I am talking to other 
people right now.
    [Laughter.]
    Senator Graham. The point I am trying to make is what 
Justice Jackson made, that when it comes to issues like this, 
when we surveil our enemy and we cross our own borders and we 
have information about our own people, we need, in my opinion, 
Judge, to have the President at the strongest. And that would 
be when Congress through collaboration with the President comes 
up with a method of dealing with that situation, and that it 
could be very dangerous in the long run if we overinterpret war 
resolutions, because I have got a problem with that. And I 
believe that if we don't watch it and we overinterpret these 
resolutions, we will have a chilling effect for the next 
President. The next President who wants to use force to protect 
us in a justifiable manner may be less likely to get that 
resolution approved if we go too far.
    And, Judge, you are likely to rule on these issues, and my 
hope is before you rule that we all sit down between the 
Executive and the legislative and we talk about this. Because 
as you said before, our Nation, not only our legal system, is 
strongest when we work together. Executive power, the 
Constitution allows the President to nominate judges. If 
Congress tried to change that by statute and say that we would 
like to pick the judges, what would happen, hypothetically?
    Judge Alito. I have a certain self-interest in the answer 
to that question.
    Senator Graham. I thought you might.
    [Laughter.]
    Judge Alito. I think that--
    Senator Graham. Clearly--clearly--the statute would fall to 
the Constitution. A veto is not reviewable by courts because 
that is basically a political decision. Under the Constitution, 
what is the vote requirement to get confirmed to the Supreme 
Court?
    Judge Alito. It is a majority.
    Senator Graham. Hypothetically speaking, what if the Senate 
passed a statute or had a rule that said you cannot get a vote 
to be on the Supreme Court unless you get 60 votes? How does 
that sit with you?
    Judge Alito. Speaking in my personal capacity or in my 
judicial capacity?
    [Laughter.]
    Senator Graham. Your judicial capacity.
    Judge Alito. Senator, I just don't think I should answer 
questions like--constitutional questions like that. I need to 
know--
    Senator Graham. What if the Senate said during an 
impeachment that we don't want a two-thirds vote of the Senate, 
we want a majority vote, would the Senate's action fall to the 
Constitution?
    Judge Alito. Well, when--there are certain questions that 
seem perfectly clear, and I guess there is no harm in 
answering--
    Senator Graham. Is there any doubt in your mind the 
Constitution requires a majority vote to be on the Supreme 
Court or any other Federal judicial office?
    Judge Alito. You know what? I remember this phrase from law 
school--
    Senator Graham. Is that a super duper precedent?
    Judge Alito. I think it's what we call in law school ``the 
slippery slope,'' and if you start answering the easy 
questions, you're going to be sliding down the ski run and into 
the hard questions, and that's what--
    Senator Graham. Well, then--
    Judge Alito.--I'm not too happy to do.
    Senator Graham. That is what I tried to get you to do, and 
I am glad you didn't do it.
    The bottom line to this exercise is you have got a job, I 
have got a job, and what disturbs me a bit is that we are 
beginning to hold the lawyer responsible for the client. And in 
my remaining time here, what damage could be done to the legal 
profession or the judiciary if people in my profession start 
holding your client's position against the advocate?
    Judge Alito. Well, I think it has been traditionally 
recognized that lawyers have an obligation to their clients. 
That's how our legal system works. Some lawyers have private 
clients. Some lawyers work for Government agencies, and the 
lawyer-client relationship there is not exactly the same. But, 
still, there is a lawyer-client relationship. And I think our 
whole system is based on the idea that justice is best served--
    Senator Graham. If you were an Attorney General 
representing a State that passed a ban on partial-birth 
abortion, would it be fair to that Attorney General if they 
came before this Committee to hold that against them if you 
disagreed with them on the subject matter?
    Judge Alito. I think that Attorneys General--I can speak to 
the issue of the Attorney General of the United States because 
I know there's a statute and there's an understanding about 
what the Attorney General of the United States will do when an 
Act of Congress is called into question, and the obligation of 
the Attorney General is to defend the constitutionality of the 
Act of Congress unless no reasonable--
    Senator Graham. A lawyer's obligation is to defend their 
client's interest. Is that an accurate statement of what a 
lawyer is supposed to do?
    Judge Alito. It certainly is, yes.
    Senator Graham. No matter whether that client is popular or 
not or the position is popular or not. Is that correct?
    Judge Alito. Consistent with ethical obligations and 
professional responsibility, yes, indeed.
    Senator Graham. What has this process been like for you and 
your family? And in a short period of time, could you tell us 
how to improve it?
    Judge Alito. Well, it's been a combination of--at times 
it's been a thrill and at times it's been extremely 
disorienting. I spent the last 15 years as a judge on the court 
of appeals, and you probably could not think of a more 
cloistered existence than a judge on the court of appeals. Most 
of the time nobody other than the parties pays attention to 
what we do. When an article is written in the paper about one 
of our decisions, it's ``a Federal appeals court in 
Philadelphia'' or in whatever city. And this has been a strange 
process for me. I made some reference to that yesterday, but I 
understand the reason for it. And I am reluctant in my current 
capacity as a nominee to offer any suggestions about the 
process. I think that's--you're carrying out your 
responsibility. I spoke about the fact that different people 
under the Constitution have different obligations, and you have 
the advice and consent function, Congress, the Senate does. And 
I think it's for the Senate to decide what it should do in this 
area.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer?
    Senator Schumer. Thank you, Senator Specter. And I want to 
thank you, Judge Alito. It has been a long day.
    Judge Alito, in 1985 you wrote that the Constitution--these 
are your words--does not protect a right to an abortion. And 
you said to Senator Specter a long time ago, I think it was 
about 9:30 this morning, 9:45, that those words accurately 
reflected your view at the time.
    Now let me ask you, do they accurately reflect your view 
today? Do you stand by that statement? Do you disavow it? Do 
you embrace it? It is OK if you distance yourself from it and 
it is fine if you embrace it. We just want to know your view.
    Judge Alito. Senator, it was an accurate statement of my 
views at the time. That was in 1985, and I made it from my 
vantage point as an attorney in the Solicitor General's Office, 
but it was an expression of what I thought at that time. If the 
issue were to come before me as a judge, if I am confirmed and 
if this issue were to come up, the first question that would 
have to be addressed is the question of stare decisis, which I 
have discussed earlier, and it's a very important doctrine and 
that was the starting point and the ending point of the joint 
opinion in Casey. And then if I were to get beyond that, if a 
court were to get beyond the issue of stare decisis, then I 
would have to go through the whole judicial decisionmaking 
process before reaching a conclusion.
    Senator Schumer. But sir, I am not asking you about stare 
decisis. I am not asking you about cases. I am asking you about 
this, the United States Constitution. As far as I know, it is 
the same as it was in 1985 with the exception of the 27th 
Amendment, which has nothing to do with what we are talking 
about. Regardless of case law, in 1985, you stated--you stated 
it proudly, unequivocally, without exception--that the 
Constitution does not protect a right to an abortion. Do you 
believe that now?
    Judge Alito. Senator--
    Senator Schumer. I am not asking about case law. I am not 
asking about stare decisis. I am asking your view about this 
document and whether what you stated in 1985 you believe today, 
you have changed your view, you have distanced your view. You 
can give me a direct answer. It doesn't matter right now which 
way you answer, but I think it is important that you answer 
that question.
    Judge Alito. The answer to the question is that I would 
address that issue in accordance with the judicial process as I 
understand it and as I have practiced it. That is the only way 
I can answer that question.
    Senator Schumer. Sir, I am not asking for the process. 
Obviously, you would use a judicial mindframe. You have been a 
judge for 15 years. I am asking you, you stated what you 
believed the Constitution contained. You didn't say the 
Constitution as interpreted by this or that. You didn't say the 
Constitution with this exception or that exception. It was a 
statement you made directly. You made it proudly. You said you 
are particularly proud of that personal belief that you had. Do 
you still believe it?
    Judge Alito. And Senator, I would make up my mind on that 
question if I got to it, if I got past the issue of stare 
decisis, after going through the whole process that I have 
described. I would need to know the case that was before me and 
I would have to consider the arguments, and they might be 
different arguments from the arguments that were available in 
1985--
    Senator Schumer. But sir, I am not asking you about case 
law. Now, maybe you read a case and it changed your view of the 
Constitution. I am asking you, and not about the process you 
would use. I am asking you about your view of the Constitution, 
because as we all know, and we are going to talk about stare 
decisis in a few minutes, that if somebody believes, a judge, 
especially a Supreme Court Justice, that something is 
unconstitutional, even though stare decisis is on the books, 
governs the way you are and there is precedent on the books for 
decades, it is still important to know your view of what the 
Constitution contains.
    And let me just say, a few hours ago, in the same memo, I 
can't remember who asked the question, but you said you backed 
off one of the statements you had written. You said it was 
inapt, which taught me something. I didn't know that there was 
a word that was inapt, but you said that it was inapt to have 
written that the elected branches are supreme. So you discussed 
that, your view on that issue, without reference to case law 
because there was no reference to case law when you wrote it. 
There was no reference to case law when you wrote this.
    Can you tell us your view, just one more time, your view 
about the Constitution not protecting the right to an abortion, 
which you have talked about before and you said you personally 
proudly held that view. Can you?
    Judge Alito. The question about the supremacy--the 
statement about the supremacy of the elected branches of 
government went to my understanding of the constitutional 
structure of our country, and so certainly that's a subject 
that it is proper for me to talk about. But the only way--you 
are asking me how I would decide an issue--
    Senator Schumer. No, I am not. I am asking you what you 
believe is in the Constitution.
    Judge Alito. You are asking me my view of a question that--
    Senator Schumer. I am not asking about a question. I am 
asking about the Constitution, in all due respect, and 
something you wrote about before--
    Judge Alito. The Constitution contains the Due Process 
Clause of the Fifth Amendment and the 14th Amendment. It 
provides protection for liberty. It provides substantive 
protection. And the Supreme Court has told us what the standard 
is for determining whether something falls within the scope of 
the protection--
    Senator Schumer. Does the Constitution protect the right to 
free speech?
    Judge Alito. Certainly, it does. That is in the First 
Amendment.
    Senator Schumer. So why can't you answer the question of 
does the Constitution protect the right to an abortion the same 
way, without talking about stare decisis, without talking about 
cases, et cetera?
    Judge Alito. Because answering the question of whether the 
Constitution provides a right to free speech is simply 
responding to whether there is language in the First Amendment 
that says that the freedom of speech and freedom of the press 
can't be abridged. Asking about the issue of abortion has to do 
with the interpretation of certain provisions of the 
Constitution.
    Senator Schumer. Well, OK. I know you are not going to 
answer the question. I didn't expect really that you would, 
although I think it would be important that you would. I think 
it is part of your obligation to us that you do, particularly 
that you stated it once before. So any idea that you are 
approaching this totally fresh without any inclination or bias 
goes by the wayside.
    But I do have to tell you, Judge, your refusal, I find 
troubling. It is sort of as if I asked a friend of mine 20 
years ago, if a friend of mine 20 years ago said to me, he 
said, ``You know, I really can't stand my mother-in-law,'' and 
a few weeks ago I saw him and I said, ``Do you still hate your 
mother-in-law?'' He said, ``Well, I'm now married to her 
daughter for 21 years, not 1 year.'' I said, ``No, no, no. Do 
you still hate your mother-in-law?'' And he said, ``Mmm, I 
can't really comment.'' What do you think I would think?
    Judge Alito. Senator, I think--
    Senator Schumer. Let me just move on. You have a very nice 
mother-in-law. I see her right here and she seems like a very 
nice person.
    [Laughter.]
    Senator Schumer. OK.
    Judge Alito. I have not changed my opinion of my mother-in-
law. That's a question--
    Senator Schumer. I am glad you haven't. She seems nice.
    Judge Alito.--I can answer that question.
    Senator Schumer. Let me go now to stare decisis, because 
what you have said is you start out with stare decisis, 
although I think a lot of people would argue you start out with 
the Constitution upon which stare decisis is built. OK. Now, 
you have tried to reassure us that stare decisis means a great 
deal to you. You point out that prior Supreme Court precedents 
like Roe will stand because of the principle. While you are on 
the Third Circuit, of course, you can't overrule precedents of 
the Supreme Court, but when you are on the Supreme Court, you 
have a little bit more flexibility.
    I just want to ask you this. Stare decisis is not an 
immutable principle, right? You have said that before in 
reference to Senator Feinstein. When Chief Justice Roberts was 
here, he said it was discretionary. So it is not immutable, is 
that right? You have told us it is not an inexorable command. 
It doesn't require you to follow the precedent.
    Judge Alito. It is a strong principle--
    Senator Schumer. Correct.
    Judge Alito [continuing]. And in general, courts follow 
precedents. They need a special--the Supreme Court needs a 
special justification for overruling a prior case.
    Senator Schumer. But they have found them, and I think you 
went over this. I can't recall if it was Senator Kohl or 
Senator Feinstein, but you went through some cases. In recent 
years, the Court has overruled various cases in a rather short 
amount of time. You mentioned, I think it was, National League 
of Cities about fair labor standards and it was overruled just 
9 years later by Garcia. Stanford v. Kentucky was overruled by 
Roper v. Simmons. Bowers v. Hardwick was overruled by Lawrence 
v. Texas. And, of course, Brown v. Board was overruled by 
Plessy. So the bottom line, I mean, we can go through this--
    Senator Hatch. Plessy was overruled by Brown.
    Senator Schumer. I mean, Plessy was overruled by Brown. I 
apologize.
    So the only point I am making is that despite stare 
decisis, it doesn't mean a Supreme Court Justice who strongly 
believes in stare decisis won't ever overrule a case, is that 
correct? You can give me a yes or no on that. It is pretty 
easy.
    Judge Alito. Yes.
    Senator Schumer. Of course. OK. So now let us try this 
another way. Here is a quote: ``Stare decisis provides 
continuity to our system. It provides predictability, and in 
our process of case-by-case decisionmaking, I think it is a 
very important and critical concept.'' The statement sounds 
reasonable to me. It sounds to me like it is something you said 
to Senator Specter and others, right?
    Judge Alito. I agree with the statement.
    Senator Schumer. Yes. Let me show you who said that 
statement. It was Justice Thomas. Justice Thomas came before us 
and stated that, and yet when he got on the Supreme Court, he 
voted to overrule, or expressed a desire to overrule, a whole 
lot of cases, including some very important ones on the Court. 
Here are some quotes. ``Casey must be overruled.'' ``Buckley v. 
Valeo should be overruled.'' ``Bacchus,'' just last year, 
``should be overruled.'' And as you can see, it is a very large 
number of cases, and these aren't all of them. In fact, Justice 
Thomas said that a 1789 unanimous case by the Supreme Court, 
Calder v. Bull, which no one talked about for centuries, should 
be overruled. So what do you think of Justice Thomas's theory 
of stare decisis and how he applies it?
    Judge Alito. Well, Senator, I have explained my 
understanding of the doctrine of stare decisis and it is 
important to me. I think it is an important part of our legal 
system. It is--
    Senator Schumer. How about what Justice Thomas--what do you 
think of what he is doing?
    Judge Alito. Well, I don't think I should comment on all of 
those cases.
    Senator Schumer. OK. Let me just say this. You may not want 
to comment, but his fellow Justice, Justice Scalia, did. Here 
is what Justice Scalia said about Justice Thomas and stare 
decisis, and remember what he said when he was sitting in the 
same chair you are sitting in. He pledged fealty to stare 
decisis.
    Justice Scalia said, Justice Thomas, quote, ``doesn't 
believe in stare decisis, period. If a constitutional line of 
authority is wrong, he would say, let us get it right.'' Then 
Justice Scalia said, ``I wouldn't,'' speaking of himself, ``I 
wouldn't do that.'' And it is particularly relevant, because if 
you believe something is not in the Constitution, at least the 
way Justice Thomas talks about stare decisis, he would let the 
Constitution overrule it and stare decisis would go by the 
wayside, and I am not saying Justice Thomas was disingenuous 
with the Committee when he was here. I am just saying that 
stare decisis is something of an elastic concept that different 
judges apply in different ways.
    So let me go to another one here. I think I have covered 
everything I want to do with Justice Thomas. Here is another 
quote. ``There is a need for stability and continuity in the 
law. There is a need for predictability in legal doctrine and 
it is important that the law not be considered as shifting 
every time the personnel of the Supreme Court changes.'' That 
again sounds reasonable to me, quite a lot like what you said. 
You don't have any dispute with that statement, do you?
    Judge Alito. No, I don't.
    Senator Schumer. OK. Well, let us see who said that one. It 
was Robert Bork when he came before this Committee to be 
nominated. Now, here is what Judge Bork wrote in the National 
Review Online just a few weeks ago. He wrote, quote, 
``Overturning Roe v. Wade should be the sine qua non of a 
respectable jurisprudence. Many Justices have made the point 
that what controls is the Constitution itself, not what the 
Court has said about it in the past.'' And even before his 
hearing, by the way, he sort of cut back on what he said at the 
hearing, I guess. It may have been in a different context, but 
here is a quote that he said a year, I think, before he came 
before us. He said, ``I don't think that in the field of 
constitutional law precedent is all that important.'' He said, 
in effect, that a Justice's view of the Constitution trumps 
stare decisis. That is not an unrespectable view. It is 
probably not the majority view of Justices, but it is there.
    So, for example, it was his view, similar to Justice 
Thomas, that the Constitution does not protect a right to--that 
if the Constitution does not protect the right to an abortion, 
as you wrote in 1985, but we are not talking about how you feel 
today, it would be overruled. It should be overruled despite 
stare decisis. And one of the things I am concerned about here 
is that what you wrote, and I think Senator Kohl went over it a 
little bit, is what you wrote about Judge Bork in 1988. And by 
the way, this was not when you were working for someone or 
applying for a job. As I understand it, you were the U.S. 
Attorney in New Jersey, well ensconced, a very good U.S. 
Attorney, and it was with some New Jersey news outlet. I saw 
the cite, but I didn't know what it was. You said that, about 
Justice Bork, ``I think he was one of the most outstanding 
nominees of this century. He's a man of unequaled ability,'' 
and here's the key point, ``understanding of constitutional 
history, and then someone who has thought deeply throughout his 
entire life.''
    Now, first, one of the most outstanding of the 20th century 
with Oliver Wendell Holmes and Benjamin Cardozo, and people you 
have expressed admiration for, Frankfurter, and Brennan and 
Harlan, I find it disconcerting that you would say that he is a 
great nominee of the 20th century in his understanding of 
constitutional law, and yet he so abjectly rejects stare 
decisis.
    Judge Alito. Well, I certainly was not aware of what he had 
said about stare decisis when I made those comments. I have 
explained those comments. They were made when I was an 
appointee of President Reagan, and Judge Bork was President 
Reagan's--
    Senator Schumer. Excuse me. You were not working in the 
White House. You were a U.S. Attorney prosecuting cases. There 
was no obligation for you to say what you said, right?
    Judge Alito. No, but I had been in the Department of 
Justice at the time of--
    Senator Schumer. I know, but it was a voluntary interview 
with some New Jersey news outlet, is that correct?
    Judge Alito. And I was asked a question about Judge Bork, 
and I had been in the Department at the time of his nomination, 
and I was an appointee of President Reagan, and I was a 
supporter of the nomination.
    Senator Schumer. Let's go to the next line of questioning 
here, but again, the point being judges, Justices, overrule 
cases despite stare decisis, particularly when they think the 
Constitution dictates otherwise. And now I want to turn to your 
own record in the Third Circuit, something you mentioned 
yesterday and today. When you have been on the Third Circuit, 
of course, you had to follow Supreme Court precedent, and you 
professed a whole lot of times your desire to do that, and I am 
not disputing that here. But it is also true that when you were 
on the Third Circuit, a more apt analogy in terms of stare 
decisis would be about Third Circuit precedents, because if you 
should get on the Supreme Court, stare decisis will apply to 
Supreme Court decisions the way stare decisis to a Third 
Circuit Judge applies to Third Circuit decisions. That is 
pretty fair, right?
    Judge Alito. Yes, and I've tried to follow Third Circuit 
precedents while I've been--
    Senator Schumer. Although you have dissented more than most 
of your fellow judges, but we will leave that aside. What I 
want to show here is how many times, when you were on the Third 
Circuit, your fellow judges on the Third Circuit--who I am sure 
have high respect for you. I know a lot of them are coming here 
in a few days, and I think that is nice, I do not have any 
problem with that.
    [Laughter.]
    Senator Schumer. Well, there has been some criticism about 
it, not by me.
    I just want to show you what they have said when it comes 
to their view of your respect for Third Circuit precedent, 
stare decisis, as relevant as we can find it to you. So I am 
going to read a few. There are a whole bunch. But in Dia v. 
Ashcroft--they are all on this chart I guess. There are too 
many so the print is not large enough for most people to see. I 
wish there were fewer. In Dia v. Ashcroft the majority of your 
court said that your opinion ``guts the statutory standard and 
ignores our precedent.'' In LePages, Inc. v. 3M your opinion 
was criticized as ``being contrary to our precedent and that of 
the Supreme Court.'' In RNS Services v. Secretary of Labor you 
again dissented, and the majority again argued that, ``Your 
dissent overlooks our holding in the instant case and prior 
cases.'' In Riley v. Taylor, the en banc majority argued that 
your view ignored case after case relied by the majority, and 
``accords little weight to those authorities.'' In Texas 
Eastern Transmission Corp., a panel criticized your opinion 
because, ``It does not comport with our reading of the relevant 
case law.'' In Bray v. Marriott Hotels, the majority noted that 
binding circuit precedent made your analysis improper in a 
discrimination case.
    And the list goes on and on. I do not have to--but other 
cases that are mentioned here, United Artists v. Warrington, 
Beauty Time v. VU Skin Systems. Here is a final one, Rappa v. 
New Castle County, Judge Garth, the man I think you clerked for 
and is regarded as a mentor to you, wrote that your majority 
opinion was ``unprecedented'' in its ``disregard of established 
principles of stare decisis.'' ``Nothing,'' Judge Garth wrote, 
``in the jurisprudence of the Supreme Court or in ours suggests 
that a three-judge panel of a court of appeals is free to 
substitute its own judgment for that of a four-justice 
plurality opinion, let alone that of the entire court.''
    So those are just some of the cases in which your own 
colleagues said you did not follow stare decisis. Now, there 
may have been good reason. I am not--you are much more expert 
on these cases than I am. There may have been good reason for 
you to do it, but I think it shows something, and that is, you, 
if we have to project as to what kind of a Supreme Court 
Justice you will be, are not going to be as reluctant as some 
to overturn precedent even by the rules of stare decisis. And 
so you wonder if you are as willing as you are to depart from 
precedent on the Third Circuit, what is going to happen if you 
should get on the Supreme Court? Your response because I 
mentioned a whole lot of cases here.
    Judge Alito. You did, Senator, and I think that you need to 
examine each of the cases to see whether what I did was 
justified. Let me just take one that struck me when you read 
from it, and that was the United Artists case. What I said 
there was that a Supreme Court decision that had come up, that 
had been handed down after the most recent Third Circuit 
decision relating to the issue, superseded what our court had 
said. So I was following an aspect of stare decisis there. I 
was following what we call horizontal--I'm sorry--vertical 
stare decisis following the Supreme Court, and I don't think 
there's any dispute that when the Supreme Court hands down a 
decision that's in conflict with one of our earlier cases, we 
have to follow the Supreme Court.
    Senator Schumer. Yes, but there is no question that in that 
situation, Judge Cowen said your opinion was, ``wrong to 
revisit an issue that has already been decided and failed to 
give respect and deference to the circuit's well-established 
jurisprudence employing the improper motive test in the 
substantive due process land use context. It is rather 
complicated, but he is sure saying you did not follow, in his 
view, you did not follow court precedent.
    Judge Alito. And, Senator, there was this body of Third 
Circuit precedent, and then--and it said that it's proper for a 
Federal court to get involved in a zoning dispute, which is 
traditionally a local matter, if there is simply an improper 
motive, whatever that might be. And in the--after that the 
Supreme Court, in an opinion by Justice Souter, emphasized that 
the test under substantive due process in an area like this, an 
area that the other judge in the majority and I thought was 
like this, is whether what was done shocks the conscience.
    And so you have a Supreme Court decision intervening, and 
in that situation I thought it was our obligation--and I wrote 
the majority opinion there--to follow what the Supreme Court 
had said.
    Senator Schumer. But my only point being here is one 
judge's view of what stare decisis requires, and another 
judge's view of what stare decisis requires, are not always the 
same. The concept has some degree of elasticity, and when, in 
reference to questions by people, you say, well, how do you 
feel about this case--and particularly Roe, which has been 
where we started off here--``I believe in stare decisis,'' it 
means that you are going to take precedent into account, but it 
certainly does not necessarily mean where you would come out.
    Let me tell you where I conclude where you would come out, 
just sort of summarizing this argument. First, again, greatly 
disturbing I think to many Americans would be that you will not 
distance yourself from your 1985 view that the Constitution 
does not protect a right to a woman's right to choose, that 
that view has not changed, that you have refused to say, unlike 
you did in another part of that 1985 memo, that you think it is 
wrong now, which would lead one to think that you probably 
believe in it.
    Second, you have told us you respect precedent and stare 
decisis, but we have seen that the stated respect for stare 
decisis hardly determines whether a Supreme Court Justice will 
vote to uphold precedents, not because when they come here they 
are being disingenuous with us. I do not think that at all. But 
because the concept is somewhat elastic, because it does not 
guarantee that you will uphold precedent, and particularly does 
not guarantee it when the Constitution conflicts with stare 
decisis, with the precedents of the Court.
    And finally, to top it off, we have seen that your Third 
Circuit record can hardly provide a great deal of comfort in 
this area either, that many of your fellow judges criticized 
you for ignoring, abandoning, or overruling precedent.
    Taken together these pieces are very disturbing to me. Your 
blanket 1985 statement, not distanced from, that the 
Constitution does not protect the right to an abortion; the 
fact that respect for precedent and stability does not prevent 
overruling of a past decision; and your own record of reversing 
or ignoring precedent on the Third Circuit lead to one 
inevitable conclusion.
    We can only conclude that if the question came before you, 
it is very likely that you would vote to overrule Roe v. Wade.
    I yield back my time.
    Judge Alito. Well, Senator, could I just respond to that--
    Senator Schumer. Please, the time is yours.
    Judge Alito [continuing]. To that question. My Third 
Circuit record, in looking at abortion cases, provides the best 
indication of my belief that it is my obligation to follow the 
law in this area and in all other areas. If I had had an agenda 
to uphold any abortion regulation that came along, I would not 
have voted as I did in my Third Circuit cases.
    Now, I've testified here today about what I think about 
stare decisis. I do think it's a very important legal doctrine, 
and I've explained the factors that figure into it. It would be 
the first question that I would consider if an issue like this 
came before me.
    Senator Schumer. Let me just say though, you have ruled on 
certain cases. Many of them were on technicalities. And in all 
of them as a Third Circuit Judge, you were bound by Supreme 
Court precedent. You never, in the Third Circuit, were squarely 
presented with the question that I asked, which is a decisive 
question, which is whether the Constitution protects a woman's 
right to choose. You were never asked in the court, you were 
never asked to overturn Roe v. Wade. And even if you were in 
the Third Circuit, you could not, because you were bound by the 
precedent of the Court. I do not think your Third Circuit 
rulings are dispositive on what you would do should you become 
a U.S. Supreme Court Justice.
    Thank you, Mr. Chairman.
    Judge Alito. If the matter were to come up before me on the 
Supreme Court, I would consider the issue of stare decisis, and 
if the case got beyond that, I would go through that entire 
judicial decisionmaking process that I described. That's not a 
formality to me. That is the way in which I think a judge or a 
Justice has to address legal issues, and I think that is very 
important, and I don't know a way to answer a question about 
how I would decide a constitutional question that might come up 
in the future, other than to say I would go through that whole 
process.
    I don't agree with the idea that the Constitution always 
trumps stare decisis--
    Senator Schumer. Does not always, but sometimes--
    Chairman Specter. Let him finish his answer, Senator 
Schumer.
    Senator Schumer. I am sorry.
    Judge Alito. I don't agree with the theory that the 
Constitution always trumps stare decisis. There would be no 
need for the--there would be no room for the doctrine of stare 
decisis in constitutional law if that were the case.
    Senator Schumer. But, sir, it can trump stare decisis, does 
not always, but can. Is that correct?
    Judge Alito. It certainly can, and I think that is a good 
thing because otherwise, Plessy v. Ferguson would still be on 
the books.
    Senator Schumer. Thank you.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Schumer.
    Senator Cornyn?
    Senator Cornyn. Thank you, Mr. Chairman.
    Judge Alito, are you familiar with the question that 
lawyers sometimes pose to demonstrate how unfair a question can 
be: ``When did you stop beating your wife? ''
    Judge Alito. I am familiar with that question.
    Senator Cornyn. And I suppose the reason why--
    [Laughter.]
    Senator Cornyn. Since someone was picking on your mother-
in-law, I thought we would inject your wife into this. But the 
point is this: it is an unfair question because it implies, 
regardless of what your response has been, that at one time you 
did, when, in fact, you have not.
    And I just want to explore, to start with, Senator 
Schumer's questions about what is written in this Constitution 
about abortion. Does the word abortion appear anywhere in the 
Constitution?
    Judge Alito. No. The word that appears in the Constitution 
is ``liberty.''
    Senator Cornyn. And outside of, let's say, the Fourth 
Amendment, perhaps, does a right to privacy appear, explicitly 
stated, in the Constitution?
    Judge Alito. There is no express reference to privacy in 
the Constitution, but it is protected by the Fourth Amendment 
and in certain circumstances by the First Amendment and in 
certain circumstances by the Fifth and the 14th Amendments.
    Senator Cornyn. And the reason it is protected is because 
the Supreme Court has so interpreted the Constitution. Isn't 
that correct, sir?
    Judge Alito. That is correct. It is a question of 
interpretation rather than simply looking at what is in the 
text of the document.
    Senator Cornyn. So to ask you whether the right to free 
speech, which is explicitly protected under the First Amendment 
of the Constitution--to ask you whether that is in there and 
then just ask you in the same question, or at least same series 
of questions, whether the right to abortion on demand is in the 
Constitution, one is explicitly stated in the First Amendment; 
the other is the product of Court interpretation. Isn't that 
accurate, sir?
    Judge Alito. Yes, that is my view of it.
    Senator Cornyn. And to be more specific, it is what the 
courts have called penumbral rights. In other words, Griswold, 
I believe it was, talked about this being the penumbra of the 
emanations from stated rights in the Constitution. Can you 
clarify that for us so we can get it right?
    Judge Alito. Yes. Griswold talked about emanations and 
penumbras, and Griswold has later been understood by the 
Supreme Court as being based on the protection of liberty under 
the Fifth Amendment and the 14th Amendment.
    Senator Cornyn. Well, I was particularly troubled by the 
exchange of questions and answers because the suggestion is 
that you have somehow been unresponsive. And as I said in my 
opening statement, I do think that there are those who have 
already decided to vote against your nomination and are looking 
for some reason to do so. And I think one of the reasons that 
they may claim is that you have been nonresponsive. But I 
thought it was telling that Senator Schumer said he didn't 
expect you to answer that question.
    I would like to refer back to Senator Biden's comments 
where he praised you at the close of his remarks. He said, ``I 
appreciate you for being responsive.''
    I agree with him. I cannot remember a nominee being this 
forthcoming. I appreciate that you have answered nearly every 
question put to you. Thank you for being so responsive. And 
indeed, according to one count, you have answered more than 250 
questions thus far today.
    So I think in all fairness, the question is not a fair one 
to ask you whether the right to an abortion is written in this 
document. The fact is, and the reason why you apply the 
doctrine of stare decisis is because you recognize the 
precedential effect, the authoritative effect of the Supreme 
Court's interpretation of this document as the law of the land, 
do you not, sir?
    Judge Alito. That is correct.
    Senator Cornyn. And you mentioned Plessy v. Ferguson. I 
think it was Daniel Patrick Moynihan, a Democrat Senator from 
Senator Schumer's State, who said if it weren't for the ability 
of the courts to go back and revisit these decisions, how would 
you ever correct a mistake? And I think the fact is that you 
have mentioned one of the instances where, thank goodness, the 
Court has gone back and revisited a terrible decision which has 
been a scar on our country and our jurisprudence, Plessy v. 
Ferguson.
    And if the Court, in Brown v. Board of Education, had felt 
prohibited from revisiting that mistake, then we would still be 
living under that scar and I think we can all agree that that 
would be a terrible thing. And thank goodness, we have a 
Supreme Court that has had the courage to go back, in 
accordance with the principles of stare decisis, and revisit 
terribly wrong decisions and to correct them and to bring us 
where we are today.
    You know, it must be strange to have people listen to the 
questions and answers here because on one hand, you will hear 
rather complimentary comments. On the other hand, even Senators 
who are still at least for the record undecided--I hate to 
think what it would be like if they had actually determined to 
vote against you already--making rather strong critical 
statements.
    But it means a lot to me to know that the people who know 
you best, the people who have worked with you on the Third 
Circuit Court of Appeals, are very complimentary. I happen to 
believe that we ought to look to the people that know you best 
as being in the best position to judge your character, your 
integrity, your competence, and not this caricature that 
happens during these confirmation proceedings by the attack 
dogs, the interest groups who pay a lot of money, spend a lot 
of time trying to tear down that reputation for integrity and 
competence that you have worked so hard to build during your 
lifetime.
    But I was struck--and we will hear more about the judges 
who have served with you on the Third Circuit--but I was struck 
by a quote that I read from your former colleague, the late 
Judge Leon Higginbotham.
    Who is Judge Higginbotham, by the way, or who was he?
    Judge Alito. Well, he was the former Chief Judge of the 
Third Circuit and he was a Federal judge for many years and 
greatly respected.
    Senator Cornyn. Well, this is what the Harvard Journal of 
African-American Public Policy--how it described him, in part. 
They said, ``Higginbotham was appointed to the Federal circuit 
bench by President Jimmy Carter in 1977. Higginbotham is also 
former president of the Philadelphia Chapter of the NAACP.''
    And would it be fair to say that you and Judge 
Higginbotham, while you served together, you tended to look at 
the Constitution differently? In other words, could he fairly 
be described as a liberal?
    Judge Alito. I think probably most people would describe 
him that way. I thought we got along very well, and we 
generally agreed. There were cases in which we disagreed and 
cases in which I dissented from an opinion that he wrote. And I 
think there were cases in which he dissented from opinions that 
I wrote.
    Senator Cornyn. Well, I wonder if you are aware of one 
thing that he was quoted as having said. This is out of the Los 
Angeles Times, comments he made about you to Judge Timothy 
Lewis, quoted in the Los Angeles Times, ``Sam Alito is my 
favorite judge to sit with on the court. He is a wonderful 
judge and a terrific human being. Sam Alito is my kind of 
conservative. He is intellectually honest, he doesn't have an 
agenda, he is not an idealogue.''
    Were you aware that Judge Higginbotham had said that about 
you?
    Judge Alito. No, I wasn't. I was not.
    Senator Cornyn. Well, I am pleased to tell you he did say 
it, according to the Los Angeles Times, and I think it is a 
high compliment that someone who would have perhaps such a 
divergent view and perhaps different political beliefs than you 
would say those sorts of things about you and your record on 
the Third Circuit Court of Appeals.
    Now, I have some charts, too, like Senator Schumer. I like 
my charts better than his, but we will let others be the judge. 
But I want to ask you a little bit about Justice Sandra Day 
O'Connor. You had some very high compliments about her 
yesterday. Senator Kyl, her fellow Arizonan, said some 
wonderful things about her, and I am confident that all of 
those accolades are well deserved. Some have called her the 
model Supreme Court Justice, and that is high praise, it really 
is.
    And I would like to submit for my colleagues' consideration 
that if Sandra Day O'Connor was in the mainstream, then Sam 
Alito is, too, and this is why. For example, Justice O'Connor 
and Judge Sam Alito both set limits on Congress's commerce 
power. Sandra Day O'Connor and Sam Alito both struck down 
affirmative action policies that had strict numerical quotas, 
and both--this ought to be a shocker to some based on what we 
have heard here today--both Justice Sandra Day O'Connor and 
Judge Sam Alito have criticized Roe v. Wade.
    In fact, this is pretty astonishing to me. According to the 
Harvard Law Review, over the last decade Justice O'Connor 
agreed more often with Chief Justice Rehnquist, 80 percent of 
the time, than with any other Justice. And let's go through 
these individually.
    First of all we talk about whether it can be a Federal 
crime to possess a machine gun that doesn't implicate 
trafficking or some aspect of interstate commerce. But, you 
know, all we have to do is go back to a little bit of the 
history we all learn in high school to remember the Articles of 
Confederation and the fact that the States were all-powerful. 
The national Government was crippled because it really had no 
power and was subject to the unanimous vote of the states 
before it could do things that were very important.
    And so then in Philadelphia, the delegates there wrote, and 
ultimately ratified, a Federal Constitution. But you already 
alluded to this earlier. This Constitution takes into account 
that not only will the national Government have certain powers, 
but there will also be some powers still reserved to the 
States.
    It is a fact, is it not, sir, that when we talk about 
federalism, really what we are talking about is the fact that 
our Federal Government, our national Government is one of 
enumerated powers that are set out in the Constitution and all 
powers that are not enumerated or necessary and proper to the 
execution of those enumerated powers as a general rule are 
reserved to the states?
    Judge Alito. Yes, that is the structure of the 
Constitution. The Federal Government has certain--has 
enumerated powers. Some of them are broad, but those are the 
powers the Federal Government has and the theory--and the 
structure is that everything else was reserved for the States.
    Senator Cornyn. And so when someone suggests that you are 
taking a crabbed or cramped or unorthodox view toward 
congressional power because you say that it is not clear from 
the statute or the crime with which an individual is charged 
that interstate commerce is implicated, aren't you enforcing 
that original understanding of what powers were expressly or 
otherwise delegated to the Federal Government and what powers 
were reserved to the States?
    Judge Alito. Well, that is what Lopez, as I understand it, 
tried to do. It said that although the commerce power is broad, 
it is not all-encompassing. It involves the regulation of 
interstate and foreign commerce, and this statute that we have 
in Lopez goes beyond that. And my case, the Rybar case, seems 
to me to be as close to the situation in Lopez as any case that 
I was aware of.
    Senator Cornyn. Well, I know my constituents back in Texas, 
and I suspect people all across the country would be glad to 
know that you don't believe that all wisdom and all power is 
centered in Washington, D.C., but that under our Federal system 
the State and Federal governments are partners, and that 
enforcing this structure that is a product of our history and a 
product of our Constitution is an important thing for judges to 
do.
    But it is interesting because if Sandra Day O'Connor was in 
the mainstream on the interpretation of the Commerce Clause, 
then so is Judge Sam Alito. As a matter of fact, I believe in 
Rybar you said the question before the court is whether Lopez 
is a constitutional freak, or words to that effect, because as 
you pointed out, it was a little bit of a shock to everyone's 
system to see the Supreme Court was actually serious about 
recognizing the authority of the States and that there are 
limits to congressional power. But Lopez reestablished or 
perhaps restated that understanding.
    Judge O'Connor joined the majority in the Lopez decision, 
did she not, sir?
    Judge Alito. Yes, she did.
    Senator Cornyn. And so she shared at least to that extent 
your conviction that there is some limit to congressional power 
and that there was some point beyond which Congress's authority 
could not reach unless it was made clear that it was pursuant 
to one of the powers enumerated under the Constitution. Did I 
say that roughly correctly?
    Judge Alito. I agree with that she said that Congress's 
power under the Commerce Clause is not all-encompassing. And my 
job as a court of appeals judge is not to say that a decision 
of the Supreme Court should be limited to its facts; in other 
words, not applied as a precedent in any other comparable 
situation that comes along. My job is to take those precedents 
seriously and that is what I tried to do.
    Senator Cornyn. So when Justice O'Connor held in Lopez that 
Congress could not prohibit the possession of handguns near 
schools because mere possession is not commerce, you were doing 
your very best to stick to that precedent established by the 
U.S. Supreme Court when you wrote your opinion in Rybar. Is 
that correct?
    Judge Alito. That's correct. In Lopez, the Supreme Court 
said that possession of a firearm, mere possession is not a 
commercial activity, and the interstate commerce--the Commerce 
Clause authorizes the regulation of interstate commerce, and 
the activity involved in Rybar was the possession of a firearm. 
So it followed that if it was a noncommercial activity in 
Lopez, it must be a noncommercial activity in Rybar. That's how 
I saw it.
    Senator Cornyn. And you didn't say the State couldn't 
criminalize possession of a machine gun, did you?
    Judge Alito. No. The State could, and I think a great 
majority of States, if not--the great majority certainly have 
legislation of that nature.
    Senator Cornyn. And you pointed out here that if the 
Congress had been a little more careful in showing the basis 
upon which mere possession could affect interstate commerce, 
that that would be a different case, and perhaps the outcome 
might have been different in Rybar.
    Judge Alito. Yes, that was a strong point that I made in 
the dissent, that if Congress had made findings, it would have 
been a very different case for me.
    Senator Cornyn. You know, the interesting thing to me about 
Rybar as well, you have been accused of always ruling for the 
big guy or the government. But in Rybar you decided for the 
person accused of illegally possessing the machine gun.
    Judge Alito. Well, that's correct. He was a criminal 
defendant.
    Senator Cornyn. You didn't rule for the government?
    Judge Alito. No, I did not. I thought the government had 
not come forward with evidence to support the position that 
they were arguing.
    Senator Cornyn. Well, there is another question about 
affirmative action cases. We have alluded a little bit to that. 
And Justice Sandra Day O'Connor, the model Supreme Court 
Justice who is clearly in the mainstream, you and Justice 
O'Connor both agreed to strike down affirmative action policies 
which set numerical quotas which resulted in reverse 
discrimination. She did in Wygant v. Jackson Board of Education 
in 1986. You did in Taxman v. Board of Education in 1996. Would 
you agree with that, sir?
    Judge Alito. I would. Taxman was a case that our court 
considered en banc, that is, all the judges were sitting, and I 
sit on a very moderate court that is certainly not unreceptive 
to the concept of affirmative action in general. But the vote 
in that case was 8-4. It wasn't a close vote. And I joined the 
opinion that was written by my late colleague, Judge Mansmann, 
holding that that particular affirmative action plan was in 
violation of Title VII.
    Senator Cornyn. Let's talk again about Roe v. Wade. Now, 
this is going to be a shocker for some people based upon what 
has gone on before, because it has been suggested that but for 
Sandra Day O'Connor, Roe v. Wade may be overruled; that this is 
really what lies in the balance here during your confirmation 
proceedings. But the fact is that Justice Sandra Day O'Connor, 
the model Supreme Court Justice, wrote in The City of Akron v. 
Akron Center for Reproductive Health, ``The trimester three-
stage approach adopted by the Court in Roe cannot be supported 
as a legitimate or useful framework.'' Roe, she said, ``is 
clearly on a collision course with itself.''
    And in the memorandum for which you have been disparaged 
many a time when you were in the Solicitor General's office, 
you recommended, ``Don't mount a frontal attack on Roe v. Wade 
but instead use the opportunity to nudge the Court toward the 
principles in Justice O'Connor's Akron dissent.''
    So when you had an opportunity to urge the reversal of Roe 
v. Wade, even as a lawyer for the administration, you urged a 
more cautious approach and one consistent with Justice 
O'Connor's opinion at the time. Isn't that correct, sir?
    Judge Alito. Yes, Justice O'Connor's opinion in Akron, 
which was the last previous big Supreme Court decision at that 
time, was one of the things that influenced me in the memo that 
I wrote in Thornburgh. She analyzed Roe, and I was quite 
persuaded by the points that she made in the Akron decision. 
And the general approach--the arguments that I was recommending 
that the Government make in the Thornburgh case were along the 
lines of the undue burden standard I think that was later--that 
she later adopted. I was arguing that the particular provisions 
should be challenged on their own terms. One of the provisions 
was an informed consent provision that was virtually identical 
to the informed consent provision that later came up in Casey, 
and in Casey it was upheld.
    Senator Cornyn. Well, let's talk about Casey. That was a 
1992 decision by the U.S. Supreme Court. Isn't that correct, 
sir?
    Judge Alito. Yes.
    Senator Cornyn. And in Casey, Justice Kennedy, Justice 
Souter, and Justice O'Connor, the model Supreme Court Justice, 
essentially scuttled the principal argument in favor of the 
right to abortion based on this trimester approach, which 
Justice O'Connor criticized and which has also been criticized 
by people like Justice Ginsburg, former counsel to the American 
Civil Liberties Union, who now serves on the Court; Laurence 
Tribe, a well-known liberal legal scholar at Harvard. The fact 
is Roe v. Wade, the writing itself, the justification for the 
decision has been widely criticized by legal scholars all 
across the spectrum, has it not, sir?
    Judge Alito. It certainly had been at the time of the 1985 
memo, and although I wasn't recommending that the Government 
get into that issue, I mentioned in the memo some of the 
authors who had criticized Roe's reasoning.
    Senator Cornyn. Well, and in 1992, the only thing that 
really survived in Roe v. Wade, which was written 33 years ago, 
was the essential holding--I guess you could call it that--and 
there have been some quotes about the importance of reliance 
interests in terms of observing--giving it the benefits of 
stare decisis or precedent. But essentially the whole legal 
scheme or basis upon which abortion was protected was changed 
to an undue burden standard. Isn't that right, sir?
    Judge Alito. In Casey, the Supreme Court moved away from 
the trimester approach, and they adopted the undue burden 
standard, which had been set out in some earlier opinions by 
Justice O'Connor and the joint opinion in Casey made it clear 
that that was now the governing standard under Supreme Court 
law.
    Senator Cornyn. But the plurality opinion--Justice 
O'Connor, Justice Kennedy, Justice Souter--did not say you can 
have abortion without limitation. It did recognize the right of 
the States to pass laws which regulate abortion as long as it 
did not create an undue burden on a woman's right to have an 
abortion, according to that decision. Isn't that roughly what 
the plurality said?
    Judge Alito. Yes, that's what they held.
    Senator Cornyn. Let's get the other chart.
    My point is that if on at least three counts, on the basis 
of does Congress's commerce power, limitations on congressional 
authority in the affirmative action area, and in terms of 
criticizing the basis upon which Roe v. Wade was decided 33 
years ago, you and Justice O'Connor bear a lot of similarities. 
I would just ask that if Justice O'Connor is a model Supreme 
Court Justice and, therefore, by definition is not outside the 
mainstream, then it strikes me that Sam Alito is not outside 
the mainstream, either.
    Another thing you have been criticized for is your 
unlimited view of Presidential power, that is the way it has 
been phrased, the suggestion that somehow you are always going 
to defer to the President and the Executive branch when the 
legislative branch and the Executive branch vie for authority, 
whether it is in the intelligence gathering area, the National 
Security Agency and this electronic eavesdropping, which is 
really an early warning system to try to identify terrorists so 
we can protect ourselves against another 9/11, or other acts of 
Presidential power.
    Senator Graham talked a little bit about the Hamdi 
decision, where the U.S. Supreme Court interpreted the use of 
force authorization that was issued by Congress after the 9/11 
attack authorizing the President to use necessary force to 
defeat the Taliban and al Qaeda, the supposed perpetrators of 
the 9/11 attacks. The question came up in Hamdi whether that 
included an authorization by Congress to detain terrorists 
without charging them with a crime. My understanding is in that 
case that the Supreme Court, it was fractured, but the 
plurality opinion that Justice O'Connor wrote said that that 
authorization of use of force was a congressional Act which 
trumped the statutory limitation that Congress had previously 
passed about detaining American citizens without charging them 
with a crime. Did I get that roughly correct?
    Judge Alito. Yes, that's exactly correct. Eighteen U.S.C. 
4001, which is called the anti-detention statute, says that 
nobody may be detained without authorization, and in Hamdi, 
Justice O'Connor's opinion concluded that the authorization for 
the use of military force constituted statutory authorization 
to detain a person who had been taken prisoner as an unlawful 
combatant in Afghanistan.
    Senator Cornyn. Well, I appreciate you pointing out that 
one of the other important statements in Hamdi was that people 
who are detained have certain due process rights and that the 
President cannot exercise his powers as Commander in Chief 
without judicial review or without anyone else looking at it, 
including a court or military tribunal under appropriate 
circumstances. But the fact is, Justice O'Connor took a view of 
Presidential power there that some might consider to be rather 
broad, the power to detain an American citizen who is a 
suspected terrorist without actually charging them with a crime 
for the reasons that Senator Graham stated, that if that person 
who was actually captured in Afghanistan and brought to 
Guantanamo Bay, if they were released, then they likely would 
return to the battlefield and plot and plan and execute lethal 
attacks on American citizens.
    Interestingly, people like to characterize judges as 
conservative or liberal. One interesting thing to me about that 
is Justice Scalia, who you have been likened to, actually 
dissented and held that it was unconstitutional for the 
President to detain these individuals without charging them 
with some crime, like treason or something else, isn't that 
correct, sir?
    Judge Alito. Yes, that's correct. This is a case where 
Justice O'Connor's view of the scope of Executive power was 
broader, considerably broader, than Justice Scalia's. Justice 
Scalia's position was that unless habeas corpus is suspended, 
and there are only limited circumstances in which that can take 
place, then there would have to be a criminal trial.
    Senator Cornyn. Judge Scalito, my--Alito, excuse me. After 
talking about Judge Scalia--you know what I was thinking in the 
back of my mind, a nickname that you have acquired sometimes, 
and I apologize.
    But the fact is that people try to characterize judges as 
being somewhere on the political spectrum or making results-
oriented decisions based on some ideology. But the fact is, and 
I will just ask you if you agree with this, whether good judges 
who try to apply the law to cases and facts that come before 
them on an individual basis without regard to who wins and who 
loses, their decisions could be characterized as liberal, 
conservative, and anywhere in between. Has that been your 
experience?
    Judge Alito. I think that is correct, Senator. I think that 
all these labels when you are trying to describe how judges 
behave, how they do their work, have their limitations and 
different people use them in different ways.
    Senator Cornyn. Thank you very much.
    Chairman Specter. Well, thank you very much, Senator 
Cornyn, for that round of questions. When Senator Cornyn 
misstates even one word, with his competency, you know it is 
getting late.
    [Laughter.]
    Chairman Specter. Thank you, Judge Alito, for your--we can 
all agree, there may be some areas of controversy among the 18 
of us, but I think we can all agree about your stamina and your 
poise and your good humor and even some subtle humor.
    Your family has shown the same kind of stamina. The crowd 
has pretty well emptied out, but the Alitos are all still here 
and they have provided not only support but occasion for a 
comment or two. I noticed a big smile on your wife's face when 
you were asked if you stopped beating your wife.
    [Laughter.]
    Judge Alito. I wasn't asked whether she had stopped beating 
me.
    [Laughter.]
    Chairman Specter. Now that is some of that subtle humor 
that your profiles talk about. We would like to see a little 
more of it, Judge. Perhaps if we went 11 hours instead of 10 
hours, we would get to that.
    Senator Leahy. Oh, please don't.
    [Laughter.]
    Chairman Specter. I have been vastly--
    Senator Leahy. I will certify that he is very, very funny. 
Just don't do the other two hours.
    [Laughter.]
    Chairman Specter. That raises the question as to what else 
you will certify to, Senator Leahy.
    Senator Leahy. That is enough for today.
    [Laughter.]
    Chairman Specter. I want to make one comment, which I have 
been pondering as to whether I ought to make it, but there is a 
story which is inapplicable to you, Judge Alito, so I think I 
can make it. The question is always raised, who is behind a 
successful man, and the answer is a surprised mother-in-law.
    [Laughter.]
    Chairman Specter. But you have negated that infrequently 
told story.
    So I want to thank you for your testimony today and I want 
to thank my colleagues for what we are proceeding to do here in 
accordance with our commitment to have a full, fair, and 
dignified hearing. I think we are on the way. These proceedings 
are being very broadly covered. You can't pick up the front 
page of any newspaper in America without seeing your smiling 
face, Judge. In an era where the media is filled with criticism 
about the Congress, I think it is a good day for the U.S. 
Congress to have these proceedings because people have been 
watching them and they see long hours and they see seriousness 
and they see important issues and they see the kind of dignity 
which we have had here today. I thank my colleagues and I thank 
you, Judge Alito.
    We will resume this hearing tomorrow morning at 9:30.
    [Whereupon, at 7:03 p.m., the Committee was adjourned, to 
reconvene on Wednesday, January 11, 2006, at 9:30 a.m.]


 NOMINATION OF SAMUEL A. ALITO, JR., OF NEW JERSEY, TO BE AN ASSOCIATE 
           JUSTICE OF THE SUPREME COURT OF THE UNITED STATES

                              ----------                              


                      WEDNESDAY, JANUARY 11, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room 216, Hart Senate Office Building, Hon. Arlen Specter, 
Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, 
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, 
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
    Chairman Specter. The Judiciary Committee will now proceed 
with the confirmation hearing for Judge Alito for the Supreme 
Court of the United States.
    Welcome back, Judge Alito.
    We have three members who have not had their first round of 
questioning of 30 minutes, and we will proceed there, and then 
we will have a second round of questioning for 20 minutes each. 
I expect we will need to work a long day today. It is my hope 
that we might finish the questioning of Judge Alito. That might 
be overly optimistic, but we will see how things go.
    Senator Durbin, you are recognized for 30 minutes.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Senator Leahy. Before we start the clock on Senator Durbin, 
if I might say on the questions, one, I admire the stamina both 
of the nominee and his family, but a number of us have been 
troubled by what we see as inconsistencies in some of the 
answers, and we are going to want to go into those in some 
depth, on the issue of one person/one vote, Vanguard recusal, 
unitary theory of Government, CAP and so on.
    I want to clear up in my mind and in the minds of many over 
here what we see as inconsistencies. I know many have announced 
up here exactly how they are going to vote before they even ask 
questions. I am one of the one who likes to make up my mind 
after asking the questions, so there will be a number more.
    Chairman Specter. Thank you, Senator Leahy. I appreciate 
the comment. There are many issues. Judge Alito has responded 
for about 7\1/2\ hours so far, and we are going to have another 
hour and a half on opening statements, and then with each 
Senator having 20 minutes on a second round, six more hours. So 
we will see if he has covered the waterfront, and this will be 
a full and fair hearing. We will give every opportunity to ask 
the questions.
    Senator Leahy. Mr. Chairman, with you as Chairman, I know 
it will be a full and fair hearing, and that is one thing that 
every single Democrat on this side is aware of.
    Chairman Specter. I think that is very important for the 
nominee, for the Committee and for the country, and we will do 
that. The adjunct to full, fair is dignified, and I think so 
far we are on track.
    OK, Senator Durbin, keep us on track. Senator Durbin is 
recognized. We will start the clock at 30 minutes.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Judge Alito, thank you for coming for the second day and 
not quite the end of the first round. I thank your family for 
their patience, listening to all of our questions, and I hope 
that at the end of the day we will feel that we have really 
added something to the process of choosing a person to serve in 
a lifetime appointment to the highest Court in our land.
    I listened to you carefully yesterday address an issue 
which is very important to me, the Griswold case, because I 
think that it is a starting point for me when it comes to 
appointments to the Supreme Court. If I had any doubt in my 
mind that a Supreme Court nominee recognized the basic right of 
privacy of American citizens as articulated in Griswold, I 
could not support the nominee. And I listened as you explained 
that you supported that right of privacy and that you found the 
Griswold decision grounded in the Fifth Amendment as well as 
the 14th Amendment.
    I would ask you at this point--you obviously support Brown 
v. Board of Education, do you, and the finding of the Court in 
that?
    Judge Alito. Certainly, Senator.
    Senator Durbin. Do you believe that the Constitution 
protects the right of children in America to be educated in 
schools that are not segregated?
    Judge Alito. Absolutely, Senator. That was one of the 
greatest, if not the single greatest thing that the Supreme 
Court of the United States has ever done.
    Senator Durbin. As you read that Supreme Court decision, 
that historic decision, they find the basis for that decision 
was the Equal Protection Clause of our Constitution.
    Judge Alito. Yes, they did, and that was, I think--of 
course, we fought a Civil War to get the 14th Amendment and to 
adopt the constitutional principle of equality for people of 
all races.
    Senator Durbin. The reason I ask you about those two cases 
is that neither of those cases referred to explicit language in 
the Constitution. Those cases were based on concepts of 
equality and liberty within our Constitution, and the Griswold 
case took that concept of liberty and said it means privacy, 
though the word is not in our Constitution, and the Brown v. 
Board of Education case took the concept of equality, equal 
protection, and said, that means public education will not be 
segregated. I raise that because I listened carefully as 
Senator Schumer asked you yesterday about Roe v. Wade, and I 
could not understand your conclusion. You conceded the fact 
that we have free speech because it is explicit in our 
Constitution, a protected constitutional right, and yet, when 
Senator Schumer asked you repeatedly, ``Do you find that Roe v. 
Wade established and recognized a constitutional protection for 
a woman to make this most private decision,'' you would not 
answer. You would not give a direct answer. On two Supreme 
Court cases, Griswold and Brown now, you have said, just as we 
started this hearing, that you believe there is a 
constitutional basis for this protection and for this right, 
and yet when it came to Roe v. Wade you would not.
    Most of us are troubled by this 1985 memo. You said 
yesterday you would have an open mind when it came to this 
issue. I am sorry to report that your memo seeking a job in the 
Reagan administration does not evidence an open mind. It 
evidences a mind that, sadly, is closed in some areas. 
Yesterday when you were asked about one man/one vote, you 
clarified it, said those were my views then, they are not my 
views now. When Senator Kohl asked you about the power and 
authority of elected branches as opposed to others, no, you 
said, I want to clarify that is not my view now.
    And yet, when we have tried to press you on this critical 
statement that you made in that application, a statement which 
was made by you that said the Constitution does not protect the 
right to an abortion, you have been unwilling to distance 
yourself and to say that you disagree with that. I think this 
is critically important, because as far as I am concerned, 
Judge Alito, we have to rely on the Supreme Court to protect 
our rights and freedoms, especially our right to privacy. For 
you to say that you are for Griswold, you accept the 
constitutional basis for Griswold, but you cannot bring 
yourself to say there is a constitutional basis for the right 
of a woman's privacy when she is making a tragic, painful 
decision about continuing a pregnancy that may risk her health 
or her life, I am troubled by that.
    Why can you say unequivocally that you find constitutional 
support for Griswold, unequivocally you find constitutional 
support for Brown, but cannot bring yourself to say that you 
find constitutional support for a woman's right to choose?
    Judge Alito. Brown v. Board of Education, as you pointed 
out, is based on the Equal Protection Clause of the 14th 
Amendment, and the 14th Amendment, of course, was adopted and 
ratified after the Civil War. It talks about equality. It talks 
about equal protection of the law, and the principle that was 
finally recognized in Brown v. Board of Education, after nearly 
a century of misapplication of the 14th Amendment, is that 
denying people the opportunity, people of a particular race the 
opportunity to attend schools, or for that matter, to make use 
of other public facilities that are open to people of a 
different race, denies them equality. They're not treated the 
same way. An African-American is not treated the same way as a 
white person when they're treated that way, so they're denied 
equality, and that is based squarely on the language of the 
Equal Protection Clause and on the principle, the principle 
that was--the magnificent principle that emerged from this 
great struggle that is embodied in the Equal Protection Clause.
    Griswold concerned the marital right to privacy, and when 
the decision was handed down, it was written by Justice 
Douglas, and he based that on his theories of--his theory of 
emanations and penumbras from various constitutional 
provisions, the Ninth Amendment and the Fourth Amendment, and a 
variety of others, but it has been understood in later cases as 
based on the Due Process Clause of the 14th Amendment, which 
says that no person shall be denied due process--shall be 
denied liberty without due process of law. And that's my 
understanding of it.
    And the issue that was involved in Griswold, the possession 
of contraceptives by married people, is not an issue that is 
likely to come before the courts again. It's not likely to come 
before the Third Circuit, it's not likely to come before the 
Supreme Court, so I feel an ability to comment, a greater 
ability to comment on that than I do on an issue that is 
involved in litigation.
    And what I have said about Roe is that if the issue were to 
come before me if I am confirmed, and I'm on the Supreme Court, 
and the issue comes up, the first step in the analysis for me 
would be the issue of stare decisis, and that would be very 
important. The things that I said in the 1985 memo were a true 
expression of my views at the time from my vantage point as an 
attorney in the Solicitor General's Office, but that was 20 
years ago, and a great deal has happened in the case law since 
then. Thornburgh was decided, and then Webster and then Casey 
and a number of other decisions. So the stare decisis analysis 
would have to take account of that entire line of case law.
    And then if I got beyond that, I would approach the 
question--and of course in Casey, that was the beginning and 
the ending point of the analysis in the joint opinion. If I 
were to get beyond that, I would approach that question the way 
I approach every legal issue that I approach as a judge, and 
that is to approach it with an open mind, and to go through the 
whole judicial process which is designed--and I believe 
strongly in it--to achieve good results, to achieve good 
decisionmaking.
    Senator Durbin. This is what troubles me, that you do not 
see Roe as a natural extension of Griswold, that you do not see 
the privacy rights of Griswold ended by the decision in Roe, 
that you decided to create categories of cases that have been 
decided by the Court that you will concede have constitutional 
protection, but you have left in question the future of Roe v. 
Wade.
    Yesterday, Senator Specter asked you, as he asked John 
Roberts before you, a series of questions about whether or not 
you accept the concept that this is somehow a precedent that we 
can rely on, that is embedded in our experience, that if it 
were changed it would call into question the legitimacy of the 
Court, and time and time again he brought you to the edge, 
hoping that you would agree, and rarely if ever did you 
acknowledge that you would agree. You made the most general 
statement that you believe reliance was part of stare decisis.
    But let me just ask you this. John Roberts said that Roe v. 
Wade is the settled law of the land. Do you believe it is the 
settled law of the land?
    Judge Alito. Roe v. Wade is an important precedent of the 
Supreme Court. It was decided in 1973, so it has been on the 
books for a long time. It has been challenged on a number of 
occasions, and I discussed those yesterday, and the Supreme 
Court has reaffirmed the decision, sometimes on the merits, 
sometimes in Casey based on stare decisis, and I think that 
when a decision is challenged and it is reaffirmed that 
strengthens its value as stare decisis for at least two 
reasons. First of all, the more often a decision is reaffirmed, 
the more people tend to rely on it, and second, I think stare 
decisis reflects the view that there is wisdom embedded in 
decisions that have been made by prior Justices who take the 
same oath and are scholars and are conscientious, and when they 
examine a question and they reach a conclusion, I think that's 
entitled to considerable respect, and of course, the more times 
that happens, the more respect the decision is entitled to, and 
that's my view of that. So it is a very important precedent 
that--
    Senator Durbin. Is it the settled law of the land?
    Judge Alito. It is a--if settled means that it can't be re-
examined, then that's one thing. If settled means that it is a 
precedent that is entitled to respect as stare decisis, and all 
of the factors that I've mentioned come into play, including 
the reaffirmation and all of that, then it is a precedent that 
is protected, entitled to respect under the doctrine of stare 
decisis in that way.
    Senator Durbin. How do you see it?
    Judge Alito. I have explained, Senator, as best I can how I 
see it. It is a precedent that has now been on the books for 
several decades. It has been challenged. It has been 
reaffirmed, but it is an issue that is involved in litigation 
now at all levels. There is an abortion case before the Supreme 
Court this term. There are abortion cases in the lower courts. 
I've sat on three of them on the Court of Appeals for the Third 
Circuit. I'm sure there are others in other courts of appeals, 
or working their way toward the courts of appeals right now, so 
it's an issue that is involved in a considerable amount of 
litigation that is going on.
    Senator Durbin. I would say, Judge Alito, this is a painful 
issue for most of us. It is a difficult issue for most of us. 
The act of abortion itself is many times a hard decision, a sad 
decision, a tragic decision. I believe that for 30 years we 
have tried to strike a balance in this country to say it is a 
legal procedure, but it should be discouraged. It should be 
legal but rare, and we should try to find ways to reduce the 
incidence of abortion. But as I listen to the way that you have 
answered this question this morning and yesterday, and the fact 
that you have refused to refute that statement in the 1985 job 
application, I am concerned. I am concerned that many people 
will leave this hearing with a question as to whether or not 
you could be the deciding vote that would eliminate the 
legality of abortion, that would make it illegal in this 
country, would criminalize the conduct of women who are seeking 
to terminate pregnancies for fear of their lives and the 
conduct of doctors who help them. That is very troubling, 
particularly because you have stated that you are committed to 
this right of privacy.
    If I could move to another issue that came up yesterday, I 
did not understand your answer to one question and I want to 
clarify it. This so-called Concerned Alumni of Princeton. You 
noted in your application for a job with the Department of 
Justice you belonged to two organizations, the Federalist 
Society and the Concerned Alumni of Princeton. I will not get 
into Federalist Society, because every time I say those words 
they go into a rage that I am somehow guilty of McCarthy-like 
tactics, asking who are these people in the Federalist Society? 
I will not touch it.
    Let me just go to the Concerned Alumni of Princeton. I did 
not understand your answer. Your answer said something about 
ROTC being discontinued at Princeton University. I know you 
were involved in ROTC. I am told that by the time you filled 
out this application, ROTC had been restored. I do not believe 
you were suggesting that bringing more women and minorities to 
Princeton would somehow jeopardize the future of ROTC. I do not 
know that that is the case.
    But there is a woman named Diane Weeks, who was a colleague 
of yours in the New Jersey U.S. Attorney's Office, and she said 
that she was troubled by your membership in this group. She 
said you had a first-rate legal mind, but here is what she went 
on to say. ``When I saw Concerned Alumni of Princeton on that 
1985 job application, I was flabbergasted,'' she said. ``I was 
totally stunned. I couldn't believe it. CAP made it clear to 
women like me that we were not wanted on campus, and he is 
touting his membership in this group in 1985, 13 years after he 
graduated? He's not a young man by this point,'' she said, 
``and I don't buy for a second that he was doing it just to get 
a job. Membership in CAP gives a good sense of what someone's 
personal beliefs are. I'm very troubled by this, and if I were 
in the Senate, I would want some answers.''
    I don't think explaining discontinuing ROTC at Princeton is 
an answer. What is your answer? Why did you include this 
controversial organization as one of your qualifications for 
being part of the Reagan administration? As you said, with your 
background, with your immigrant background and the fact that 
Princeton had just started allowing people of your background 
as students, how could you identify with a group that would 
discriminate against women and minorities?
    Judge Alito. Well, Diane Weeks was an Assistant U.S. 
Attorney in the U.S. Attorney's Office in New Jersey, and 
somebody that I hired, and one of many women whom I hired when 
I was U.S. Attorney, and I think that illustrates my attitude 
toward equality for women.
    I've said what I can say about what I can recall about this 
group, Senator, which is virtually nothing. I put it down on 
the `85 form as a group in which I was a member. I didn't say I 
was anything more than a member. And since I put it down, I'm 
sure that I was a member at the time, but I'm also sure--and I 
have racked my memory on this--that if I had participated in 
the group in any active way, if I had attended meetings or done 
anything else substantial in connection with this group, I 
would remember it, and if I had renewed my membership, for 
example, over a period of years, I'm sure I would remember 
that. So that's the best I can reconstruct as to what happened 
with this group.
    I mentioned, in wracking my memory about this, I said, what 
would it have been, what could it have been about the 
administration of Princeton that would have caused me to sign 
up to be a member of this group around the time of this 
application? And I don't have a specific recollection, but I do 
know that the issue of ROTC has bothered me for a long period 
of time. The expulsion of the units at the time when I was a 
student there, struck me as a very bad thing for Princeton to 
do.
    Senator Durbin. Do women and minorities have anything to do 
with that?
    Judge Alito. No, and I did not join this group, I'm quite 
confident, because of any attitude toward women or minorities. 
What has bothered me about--what bothered me about the 
Princeton administration over a period of time was the 
treatment of ROTC, and after the unit was brought back, I know 
there's been a continuing controversy over a period of years 
about whether it would be kept on campus, whether in any way 
this was demeaning to the university to have an ROTC unit on 
campus, whether students who were enrolled in ROTC could 
receive credit for the courses, whether the members of--whether 
the ROTC instructors could be considered in any way a part of 
the faculty. All of this bothered me, and it is my recollection 
that it continued over a period of time.
    Senator Durbin. Let me ask you, if I might, to reflect on a 
couple other things. You are a Bruce Springsteen fan?
    Judge Alito. I am to some degree, yes.
    Senator Durbin. I guess most people in New Jersey would be, 
they should be.
    Judge Alito. There was the movement sometime ago--we don't 
have an official State song, and there was a movement to make 
``Born to Run'' our official State song, but it didn't quite 
make it.
    Senator Durbin. We will stick with Lincoln in Illinois, but 
I can understand your commitment to Bruce Springsteen. They 
once asked him, ``How do you come up with the songs that you 
write and the characters that are in them?'' And he said, ``I 
have a familiarity with the crushing hand of fate.'' It is a 
great line.
    I want to ask you about the crushing hand of fate in 
several of your decisions. Riley v. Taylor. This cas involved 
the murder conviction of an African-American defendant, and the 
question was raised as to whether he had a fair trial, and the 
people who argued in his defense said that when we take a look 
at the various people who were involved in these jury pools in 
the murder cases here, we find that the local prosecutors had 
eliminated all the African-Americans in four murder trials that 
had taken place during the year that led up to his trial. And 
they raised the question in his case whether there had been a 
conscious effort to eliminate African-American jurors in this 
case involving an African-American defendant.
    And you dismissed the statistical evidence of these all-
white juries, and you made a statement that said the 
significance of an all-white jury was as relevant as the fact 
that five of the past six Presidents of the United States have 
been left-handed.
    That is a troubling analogy, and I am not the only one 
troubled. Your colleagues on the Third Circuit were troubled as 
well. Here is what they said: ``The dissent''--your dissent--
``has overlooked the obvious fact that there is no provision in 
the Constitution that protects persons from discrimination 
based on whether they are right-handed or left-handed. To 
suggest any comparability to striking of jurors based on their 
race is to minimize the history of discrimination against 
prospective black jurors and black defendants.''
    Why did you use that analogy that apparently is so 
inappropriate?
    Judge Alito. Well, the analogy went to the issue of 
statistics and the use and misuse of statistics and the fact 
that statistics can be quite misleading. Statistics are very 
powerful, but statistics can also be very misleading, and 
that's what that was referring to. There's a whole--I mean, 
statistics is a branch of mathematics, and there are ways to 
analyze statistics so that you draw sound conclusions from them 
and avoid erroneous conclusions from them. Sometimes when you 
see a pattern, it's the result of a cause, and sometimes when 
you see something that looks like it might be a pattern, it's 
the result of chance.
    Riley was a very, very difficult case, and I can tell you I 
struggled over that case because the issue of racial 
discrimination in the criminal justice system is an issue of 
enormous importance. Obviously, it's very important for the 
defendant. It's important for the society so that everybody 
knows that everyone in this country is treated equally 
regardless of race. And it's important for law enforcement, 
because I know from years as a prosecutor that nothing is a 
greater poison for law enforcement than even the slightest hint 
of unfairness.
    The issue of racial discrimination in the jury had to be 
viewed by our court and by me under the habeas corpus statute 
that Congress passed, and that gave us an important role to 
play, but a very limited role. The Pennsylvania--and what the 
habeas corpus statute is that if the State courts have decided 
a question on the merits and they've applied the correct legal 
standard, the correct constitutional standard, we can't 
authorize a granting of a writ of habeas corpus unless they 
were unreasonable. It's not enough for us to say, ``We don't 
agree with it.'' We have to say, ``You were unreasonable.''
    Now, I think seven members of the Pennsylvania judiciary--
well, I think there were more. There was the judge who heard 
the State habeas case and the Pennsylvania Supreme Court, and 
the Pennsylvania Supreme Court, as I recall, was unanimous on 
the issue that there hadn't been racial discrimination in the 
selection of the jury in the case.
    Then the case came up to us, and the issue was whether the 
State courts were unreasonable in finding that the particular 
peremptory challenges at issue in this case were not based on 
race. And it was a tough question, but I didn't see how we 
could overturn what they had done under the habeas standard. 
Now--
    Senator Durbin. I would just say, Judge, in many of these 
tough questions as I read through your cases, you end up ruling 
in favor of established institutions and against individuals. 
Let me tell you another one, Pirolli v. World Flavors. Remember 
this case? A mentally retarded individual, Kenneth Pirolli, 
physically harassed at his workplace, subjected to a hostile, 
abusive work environment, and sexually assaulted by his 
coworkers. According to his deposition testimony, he said they 
attempted to rape him.
    I could read to you what is in that record here, but it is 
so graphic and it tells in such detail the sexual assault that 
he was subjected to that I am not going to read it into the 
record. But I bet you remember it.
    And when it came to whether or not he should have a trial, 
as to whether he was entitled to bring his case before a jury, 
you said no, stand by the summary judgment, don't take this to 
a jury. You dissented from the majority position here. And the 
reason you dissented was, I think, significant. It wasn't about 
Kenneth Pirolli or the merits of his case. It was about the 
conduct and efforts of his lawyer.
    You noted the fact that his lawyer had not adequately 
provided citations in his brief to places in the record 
describing the harassment. So you held Kenneth Pirolli 
responsible for the fact that his lawyer didn't do a good job--
at least in your view--and denied him his day in court. How do 
you explain that crushing hand of fate on this man who was a 
victim of sexual harassment?
    Judge Alito. Well, Senator, the district court thought that 
the defendant in that case was entitled to summary--was 
entitled to summary judgment, and so I think that says 
something about the facts of the case and whether it was a 
particularly strong case.
    There's a very important principle involved in the 
appellate practice, and I think it goes with the idea of 
judicial self-restraint. It is that certain things are to be 
decided at certain levels in the court system, and that 
requires that parties raise issues in the trial court; and that 
if they do not raise the issue in the trial court, then absent 
some extraordinary circumstances, they shouldn't be able to 
raise the issue on appeal. And that was the principle there.
    Now, this was not a criminal case. In a criminal case, 
there's a constitutional right to counsel, and so a person can 
claim ineffective assistance of counsel. And we treat that 
issue differently in criminal cases than we do in civil cases.
    Senator Durbin. I would just say that you are arguing on 
the merits of the district court decision. Your statement in 
dissent criticized his lawyer for the brief that they presented 
to your court. That seems to me to be an unfair treatment of a 
man who I think deserved a day in court.
    Let me ask you about another group looking for a day in 
court, the RNS Services v. Secretary of Labor case that I 
referred to in my opening statement. It is a timely case. It is 
about mine safety. You know what happened in West Virginia a 
few days ago and yesterday in the State of Kentucky where there 
are serious questions being raised about whether there is 
adequate mine safety. And in this case, there was a question as 
to whether or not the Federal and State mine safety provisions 
applied to a company in a certain activity. And you concluded 
they did not apply. You concluded that you would narrowly 
construe the statute passed by Congress, and in construing it 
in that way, that the requirements of inspecting this mine 
location would not be subject to Federal law.
    Again, you dissented and you ruled on the side of the 
company, on the side of the established institution, against 
the coal miners and against the workers in this circumstance. 
It is a recurring pattern. The crushing hand of fate here seems 
to always come down against the workers and the consumers and 
in favor of these established institutions and corporations.
    How would you explain the fact that you would so narrowly 
construe a statute when you knew that the lives and safety of 
coal miners were at stake?
    Judge Alito. The facility that was involved in that case 
was not a mine as a lay person would think of a mine. It wasn't 
an underground facility. It wasn't like the facility in West 
Virginia where the terrible accident occurred a few days ago. 
It was basically a pile of coal that was being loaded onto 
trucks to be transported to another place. The definition of a 
mine under the Federal law is very broad, and it's not limited 
to what ordinary people would think of as a mine. And there was 
an argument that this facility, which, as I said, as I recall, 
was basically a big pile of coal on top of the ground and coal 
was being hauled away to a cogeneration facility. Is that a 
mine? An ordinary person would look at that and say that's not 
a mine, that's a pile of coal.
    But the issue in the case was the kind of technical issue 
of interpretation that we get all the time, and the question 
was is this a mine in the sense of the law, and I thought it 
was not a mine in the sense of the law.
    Now, that conclusion, I don't believe, would mean that this 
facility would be spared safety regulation at either the 
Federal or local level. It's been a long time since I worked on 
that case, but I would imagine that if the facility is not 
governed by the Federal mining laws, it would be covered by 
OSHA, by the Occupational Safety and Health Administration, and 
perhaps by State law. So the issue would not be whether this 
facility would be allowed, which was not a mine in the ordinary 
sense, would be allowed to operate in an unsafe fashion. It was 
which body of laws and regulations would govern the facility.
    Senator Durbin. Judge, I would say that your opinion did 
not prevail. The two other judges, both Reagan appointees, who 
saw this case on the side of the workers, understood that the 
wording of the law is as follows: ``Congress declares that the 
first priority and concern of all in the coal or other mining 
industry must be the safety and health of its most precious 
resource--the miner.'' And instead of taking the obvious 
interpretation that these were people working in the mining 
industry, even if they were outside of the underground mine and 
the danger that it presents, you drew this statute as narrowly 
as you could--construed it as narrowly as you could to take the 
company position here that the Federal Mine Safety and Health 
Administration did not have jurisdiction.
    I find this as a recurring pattern, and it raises a 
question in my mind whether the average person, the 
dispossessed person, the poor person who finally had their day 
in court and may make it all the way through the process to the 
Supreme Court, are going to be subject to the crushing hand of 
fate when it comes to your decisions. They have been many times 
at the Third Circuit, and that is a concern which I will 
continue when we have further questions in the next round.
    Thank you, Mr. Chairman.
    Chairman Specter. Do you care to respond, Judge Alito?
    Judge Alito. Yes, could I just say a couple of words? That 
case was a case of statutory interpretation and applying the 
statute, and that's how I thought it came out. There have been 
many other cases that I have worked on on the court of appeals 
where I have come out in favor of the small person who was 
challenging a big institution, and I could mention a number of 
them.
    Let me just mention Shore v. Regional High School because I 
think it has some relation to the Pirolli case, which you 
mentioned. This was a case in which a high school student had 
been bullied unmercifully by other students in his school 
because of their perception of his sexual orientation. He had 
been bullied to the point of attempting to commit suicide, and 
his parents wanted to enroll him at an adjacent public high 
school, and the school board said, no, you can't do that. And I 
wrote an opinion upholding their right to have him placed in a 
safe school in an adjacent municipality.
    That is just one example, but all of these cases involve 
what judges are supposed to do, which is to take the law and 
apply it to the particular facts of the case that is before 
them.
    Chairman Specter. Thank you very much, Judge Alito.
    Senator Brownback?
    Senator Brownback. Thank you very much, Mr. Chairman.
    Good morning, Judge Alito, Mrs. Alito, family members. Good 
to have you here.
    I have got a number of areas I would like to ask you 
questions about, and I am hopeful we can get through them and 
maybe reduce the need of time in a second round, which would 
probably be pleasing to your ears.
    I want to first go at this area, because it seems to keep 
coming up, that I think is really not applicable and not 
reflective of your record that you always take the side of the 
big institution and against the little guy, as you just stated. 
But then I want to get into a number of areas of constitutional 
law, some of which you have written on, religious freedom type 
cases, takings cases. I would like to get into some of these 
areas.
    But I want to enter into the record, Mr. Chairman, a letter 
from a former law clerk of yours, David Walk, dated January 6, 
2006. David worked with you in the New Jersey U.S. Attorney's 
Office. I don't know if you remember David or not.
    Judge Alito. I do. He was a fine--
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Thank you.
    He is a lifelong Democrat, former member of the ACLU, and 
talks about how fair you were to everybody's rights. But then 
he cites the case of Franklin Igbonwa. This was a Nigerian set 
to be deported for drug dealing who had testified against other 
Nigerian drug dealers and was fearful of being deported, that 
he would be killed once back in Nigeria. The other two judges 
said his case--he shouldn't be believed on the face of it, and 
you said he should and that the trial court should have given 
more deference to this Nigerian to be deported. This was 
somebody that David Walk represented. Talk about a little guy 
in a case, and that is one that is cited in this particular 
record and letter that I would hope my colleague from Illinois 
could take a chance at, because it is a legitimate point of 
view. And saying, well, it looks like you always take one side 
or the other, here is where another side was taken.
    And then here is a letter from another individual who 
worked with you, Cathy Fleming, lifelong Democrat, president-
elect, National Women's Bar Association, gives an unqualified 
endorsement of you. She says, ``By providing my credentials as 
an outspoken women's rights advocate and liberal-minded 
criminal defense attorney, I hope you will appreciate the 
significance of my unqualified and enthusiastic recommendation 
of Sam Alito for the Supreme Court.''
    I think one can kind of look in the past and try to say, 
well, OK, there is this problem, there is that, but then when 
people that know you well put their names to letters saying 
differently, I think that's also something we should consider, 
and I would ask that that letter be put into the record as 
well.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Brownback. Thank you.
    Judge Alito, the Supreme Court has gotten a number of 
things wrong at times, too. That would be correct, and the 
answer when the Court gets things wrong is to overturn the 
case. That is the way it works. Isn't that correct?
    Judge Alito. Well, when the Court gets something wrong and 
there's a prior precedent, then you have to analyze the 
doctrine of stare decisis. It is an important doctrine, and I 
have said a lot about it, but--
    Senator Brownback. Wait, let me just ask you, was Plessy 
wrong, Plessy v. Ferguson?
    Judge Alito. Plessy was certainly wrong.
    Senator Brownback. OK, and you have gone through this. 
Brown v. Board of Education, which is in my hometown of Topeka, 
Kansas. I was there last year at the dedication of the 
schoolhouse. Fifty years ago, that overturned Plessy. Plessy 
had stood on the books since 1896. I don't know if you knew the 
number. And I have got a chart up here. It was depended upon by 
a number of people for a long period of time. You have got it 
sitting on the books for 60 years, twice the length of time of 
Roe v. Wade. You have got these number of cases that considered 
Plessy and upheld Plessy to the dependency. And yet Brown comes 
along, 1950s case, poor little girl has to walk by the all-
white school to go to the black school in Topeka, Kansas. And 
the Court looks at this and they say unanimously that is just 
not right.
    Now, stare decisis would say in the Brown case you should 
uphold Plessy. Is that correct?
    Judge Alito. It certainly would be a factor that you would 
consider in determining whether to overrule it.
    Senator Brownback. But obviously--
    Judge Alito. A doctrine that you would consider.
    Senator Brownback. Obviously, Brown over turned it, and 
thank goodness it did. Correct?
    Judge Alito. Certainly.
    Senator Brownback. It overturned all these super duper 
precedents that had been depended upon in this case because the 
Court got it wrong in Plessy. Is that correct?
    Judge Alito. The Court certainly got it wrong in Plessy, 
and it got it spectacularly wrong in Plessy, and it took a long 
time for that erroneous decision to be overruled.
    One of things I think that people should have understood is 
that separate facilities, even if they were absolutely equal in 
every respect, even if they were identical, could never give 
people equal treatment under the law.
    Senator Brownback. They don't.
    Judge Alito. I think they should have recognized that. But 
one of the things that was illustrated in those cases--and 
Sweatt v. Painter, the last one on the list brought that out--
was that, in fact, the facilities, the supposedly equal 
facilities were never equal, and the continuing series of 
litigation that was brought by the NAACP to challenge racial 
discrimination illustrated--if the illustration was needed, the 
litigation illustrated that, in fact, the facilities that were 
supposedly equal were not equal. And that was an important 
factor, I think, in leading to the decision in Brown v. Board 
of Education
    Senator Brownback. I want to give you another number, and 
that is, in over 200 other cases, the Court has revisited and 
revised earlier judgments. In other words, in some portion or 
in all of the cases, the Court got it wrong in some 200 cases. 
And thank goodness the Court is willing to review various 
cases.
    I want to give you an example of a couple, though, that the 
Court hasn't reviewed yet that I think are spectacularly wrong. 
The 1927 case of Buck v. Bell, I don't know if you are familiar 
with that case. The Court examined a Virginia statute that 
permitted the sterilization of the mentally impaired. Carrie 
Buck, a patient at the so-called Virginia State Colony for 
Epileptics and Feeble Minded, was scheduled to be sterilized 
after doctors alleged she was a genetic threat to the 
population due to her diminished mental capacity. Buck's 
guardian challenged the decision to have Carrie sterilized all 
the way to the Supreme Court, but in an 8-1 decision, the Court 
found that it was in the State's interest to have her 
sterilized.
    The majority opinion written by Justice Oliver Wendell 
Holmes said, ``We have seen more than once that the public 
welfare may call upon the best citizens for their lives. It 
would be strange if it could not call upon those who already 
sap the strength of the State for these lesser sacrifices, 
often not felt to be such by those concerned, in order to 
prevent our being swamped with incompetence.''
    Clearly, some precedents are undeserving of respect because 
they are repugnant to the Constitution. Isn't Plessy repugnant 
to the Constitution?
    Judge Alito. It certainly was repugnant to the Equal 
Protection Clause.
    Senator Brownback. And the vision of human dignity, isn't 
Buck and those sort of statements by Oliver Wendell Holmes 
repugnant to the Constitution?
    Judge Alito. I think they are repugnant to the traditions 
of our country. I don't think there is any question about that.
    Senator Brownback. I will give you another case, the 
Korematsu v. United States case, a 1944 case. World War II 
broke out following Japanese attacks on Pearl Harbor. Feelings 
spread that Japanese-Americans, both naturalized and those born 
in the United States, might not be loyal to the United States 
and should be removed from the West Coast. So great was the 
fear that even the esteemed writer Walter Lippmann stated that, 
``Nobody's constitutional rights include the right to reside 
and do business on a battlefield. There is plenty of room 
elsewhere for him to exercise his rights.''
    President Roosevelt signed an Executive order removing 
them. Korematsu contested the constitutionality, Fred Korematsu 
did, of his internment. In Korematsu v. the United States, the 
Supreme Court held that military necessity justified the 
internment program and that Fred Korematsu had no protection 
against relocation under the Constitution.
    Of course, that was later overturned--excuse me, that was 
never overturned. In 1948, Congress enacted the Japanese 
American Evacuation Claims Act to provide some monetary 
compensation. In 1980, Congress again revisited the case. In 
1988, Congress passed legislation apologizing for the 
internment and awarded each survivor $20,000. In 1999, Fred 
Korematsu was awarded the Presidential Medal of Freedom, the 
highest civilian honor that anyone can receive. Justice has not 
been done because Korematsu remains on the books. It is still 
on the books.
    Roe v. Wade. You have had every question on that, but I 
want to point out its difficulty. My colleagues on the other 
side look at this as completely settled law, but let's see what 
the legal experts say about how settled it is.
    Laurence Tribe, who will be here to testify, I believe, 
probably against you in a little bit. Let's see what he says, a 
professor of law at Harvard: ``One of the most curious things 
about Roe is that, behind its own verbal smokescreen, the 
substantive judgment on which it rests is nowhere to be 
found.'' Settled law? Super duper precedents? Laurence Tribe 
has some questions about it.
    Justice Ruth Bader Ginsburg: ``Roe, I believe, would have 
been more acceptable as a judicial decision if it had not gone 
beyond a ruling on the extreme statute before the Court. Heavy-
handed judicial intervention was difficult to justify and 
appears to have provoked, not resolved, conflict.'' Provoked, 
not resolved, conflict--one of your potential colleagues says.
    Edward Lazarus, former clerk to Chief Justice Harry 
Blackmun, who wrote Roe: ``As a matter of constitutional 
interpretation and judicial method, Roe borders on the 
indefensible. I say this as someone utterly committed to the 
right to choose, as someone who believes such a right was 
grounded elsewhere in the Constitution, instead of where Roe 
placed it, and as someone who loved Roe's author like a 
grandfather.'' Settled law? Edward Lazarus has some questions 
about it being settled.
    Let's look at John Hart Ely, former Dean of Stanford Law 
School, excellent law school in the country, one of the top law 
schools in the country: Roe v. Wade ``is not constitutional law 
and gives almost no sense of an obligation to try to be. What 
is frightening about Roe is that this super-protected right is 
not inferable from the language of the Constitution, the 
Framers' thinking respecting the specific problem in issue, any 
general value derivable from the provisions they included, or 
the Nation's governmental structure.'' John Hart Ely. Do you 
think he thinks Roe is settled law? Not constitutional and 
gives no sense of an obligation to try to be.
    Alan Dershowitz, professor of law, Harvard Law School, one 
of the top law schools in the country. It is not Princeton, 
but... Roe v. Wade and Bush v. Gore ``represent opposite sides 
of the same currency of judicial activism in areas more 
appropriately left to the political process. Judges have no 
special competency, qualifications, or mandate to decide 
between equally compelling moral claims, as in the abortion 
controversy. Clear governing constitutional principles are not 
present in either case.'' Settled law? Super duper precedents?
    I think there are places where the Court gets it wrong, and 
hopefully they will continue to be willing to revisit it.
    Now I want to look at a couple of areas of law in addition 
to this. Your view of the Constitution--and yesterday you hit 
at this, I thought, on some of the edges, but I just want to 
get your thoughts of how you view the Constitution, how you 
would review it. There are these different schools of thought 
on this of strict constructionist, living document, 
originalist, and there are several others that float around out 
there. How do you generally look at the Constitution? And I am 
aware yesterday you were saying that some provisions are very 
clear and some are not, and you seem to apply a different set 
of viewpoints on those of the Constitution. Could you 
articulate your view of how you look and interpret the 
Constitution?
    Judge Alito. First of all, Senator, I think the 
Constitution means something, and I don't think it means 
whatever I might want it to mean or whatever any other member 
of the judiciary might want it to mean. It has its own meaning, 
and it is the job of a judge, the job of a Supreme Court 
Justice, to interpret the Constitution, not distort the 
Constitution, not add to the Constitution or subtract from the 
Constitution.
    In interpreting the Constitution, I think we should proceed 
in the way we proceed in interpreting other important legal 
authorities. In interpreting statutes, for example, I think we 
should look to the text of the Constitution and we should look 
to the meaning that someone would have taken from the text of 
the Constitution at the time of its adoption. But I think we 
have to recognize that the Constitution is very different from 
statutes in some important respects. Statutes are often very 
detailed, and they generally don't exist without revision for 
very long periods of time. The Constitution was adopted to 
endure throughout the history of our country, and considering 
how long our country has existed, it's been amended relatively 
few times. And the magic of that, I think, is that it sets out 
a basic structure for our Government and protects fundamental 
rights. But on a number of very important issues, I think the 
Framers recognized that times would change, new questions would 
come up, and so they didn't purport to adopt a detailed code, 
for example, governing searches and seizures. That was the 
example I gave yesterday, and I will come back to it. They 
could have set out a detailed code of search and seizure. They 
didn't do that. They said that the people are protected against 
unreasonable searches and seizures, and they left it for the 
courts--and, of course, the legislative body can supplement 
this--to apply that principle to the new situations that come 
up.
    Now, when that is done, that doesn't amount to an amendment 
of the Constitution or a changing of the Constitution. It 
amounts to--it involves the application of a constitutional 
principle to the situation at hand.
    Senator Brownback. Let me go to a specific area you have 
written quite a bit about, and that is on religious liberties 
and free exercise. And I have looked at these cases, and this 
is going to be an active area of law in front of the Supreme 
Court. It has been for the last 40 years.
    You wrote the case of ACLU v. Schundler, a Third Circuit 
case, considered--it is an ACLU challenge to religious displays 
erected by Jersey City on the Plaza of City Hall. Jersey City 
for decades had had holiday displays of a menorah and Christmas 
tree. Litigation resulted in permanent pulling of this. The 
city came back and said, OK, if that is not good enough, we 
will put a nativity scene, a menorah, a Christmas tree, Frosty 
the Snowman, Santa Claus, Kwanzaa symbols, and signs explaining 
the display. So, OK, if two is not enough, we will add more 
into it, and they were again challenged by the ACLU. The 
district court found no constitutional violation.
    A panel of the Third Circuit, not including you, reversed 
that decision. The panel found no basis for the demystification 
approach, as they put it, and expressed skepticism as to 
constitutional display.
    On remand, the district court held that there was a 
constitutional violation. The city appealed. You sat on the 
panel that heard that appeal. In a 2-1 decision, you upheld the 
constitutionality of the modified display.
    In your decision, you specifically cited Justice O'Connor 
and two particular issues regarding excessive entanglement with 
religious institutions and Government endorsement or 
disapproval of religion. Because Justice O'Connor used these 
factors to uphold similar displays in prior cases, you applied 
them to your upholding in that case. That is a correct 
interpretation. Is that correct, Judge Alito?
    Judge Alito. Yes, it is, Senator.
    Senator Brownback. Because these are coming up so much in 
front of the Court, are these types of displays, you feel, 
generally constitutionally permissible?
    Judge Alito. Well, this is an area in which the Supreme 
Court has handed down several decisions, and like a lot of 
the--like a number of the issues that the Court has addressed 
under the Establishment Clause, it has drawn some fairly fine 
lines. The first case involving a display of this nature was 
the Pawtucket, Rhode Island, display that was involved in Lynch 
v. Donnelly, and it was a display that was similar to the 
display in Jersey City. It included both religious and secular 
symbols. And they found that that was not a violation.
    Senator Brownback. I want to jump in here because I have 
got several ways I want to. When I read your opinions, what I 
hear you to write is you would rather have a robust public 
square than a naked public square, that you think there is room 
for these sorts of displays in the public square.
    Judge Alito. Well, that was exactly what Jersey City had 
decided in that case, and Jersey City said: We are one of the 
most religiously diverse, ethnically diverse, racially diverse 
communities you will find anywhere in the country. This is 
right across the New York harbor from the Statue of Liberty and 
from Ellis Island, and it is still an entry point for a lot of 
people coming into the country. And so they had--over the 
course of the year, at the appropriate time, they had a 
Christmas display, they had a display of a menorah--on that 
particular year, Hanukkah was early in the month of December, 
so the display, the menorah was up at a different point. They 
had a display--they had celebrations for Muslim festivals, for 
Hindu festivals, for Buddhist festivals, for Latino festivals, 
for festivals concerning the many ethnic groups in the 
community. And their view was that this is the way we should 
show that all of these groups are valuable parts of our 
community and express our embracing of them. And this display, 
they said, reflected that philosophy and applying the 
precedents that the Supreme Court had provided in this area, 
the Pawtucket case and a later case involving a display in 
Pittsburgh, Judge Rendell and I, who were the judges in the 
majority on that case, said this is constitutional, this is 
consistent with the Establishment Clause.
    Senator Brownback. Well, and that is what--as we have had 
this 40 years of cases, I really hope we can have a public 
square that celebrates and not that it has got to be completely 
naked to views, and I appreciate that.
    You wrote in a free exercise case, C.H. v. Olivia, a case 
in which a child sued through his parents for violation of his 
free speech and free exercise rights, when his school removed 
and repositioned a poster he had made of a religious figure 
that was important to him. It was a picture of Jesus. The 
poster was part of an assignment which students were instructed 
to show something for which they were thankful. The district 
court granted judgment on the pleadings in favor of the 
defendant, the school district. The Third Circuit affirmed. You 
dissented in that opinion. Can you elaborate on your reasoning 
in that particular opinion? Do you remember the case?
    Judge Alito. Yes, Senator, I do. Justice O'Connor pointed 
out something that's very critical in this area. She said there 
is a big difference between Government speech endorsing 
religion and private religious speech, and this case--and 
private religious speech can't be discriminated against. It has 
to be treated equally with secular speech. And in this case, 
this involved a student who--and there were two incidents. One 
involved reading. The students in the class were told that if 
they could read at a certain level, they would have--their 
reward would be to be able to read their favorite story to the 
class. And this student satisfied those requirements, and the 
student wanted to read a very simplified version of the story 
of Jacob and Esau to the class. And the teacher said, ``No, you 
can't read that to the class. You can read that privately to me 
off in a corner.''
    And then Thanksgiving was coming along, and the students 
were told, ``Draw a picture of something that you're thankful 
for,'' and I guess the teacher expected they were going to draw 
pictures of football games and turkeys and things like that. 
But this student drew a picture of Jesus and said, ``That's 
what I'm thankful for.'' And the teacher put all the other 
pictures up in the hall, but would not put this student's 
picture up in the hall because of its religious content.
    And that, we found, was a violation of this principle that 
you have to treat religious speech equally with secular speech. 
If you ask a student to say something about a topic, what are 
you thankful for, and the student says something that fits 
within the topic that the student was asked to talk about, then 
you can't discriminate against one kind of speech or another.
    Senator Brownback. I thought it was a very interesting 
stance, and I think appropriate, that you took, and I wanted 
to--obviously very active areas of the law that we have.
    I want to look at the issue of checks and balances on the 
Federal court. It is a very active area here in Congress as a 
lot of people across the country and certainly Members of 
Congress have grown the feeling that we can rule however--we 
can do whatever we want to here, but wait until the Court 
decides, that it is the Court that have moved beyond judicial 
restraint. I asked this of John Roberts, and I asked what is--
the checks and balances on Congress are obvious, the President 
can veto a bill, a court can declare something 
unconstitutional, checks and balances executive branch are 
clear, they can be challenged, their actions, in the court, the 
court can say the President can't do that, we cannot 
appropriate the money from here. We have got checks and 
balances, and people are well known. Any high school government 
student would know that.
    Checks and balances on the Court. When I talked with John 
Roberts about this, he said basically the only check and 
balance is judicial restraint. It is what the Court restrains 
itself in. And yet you have within the Constitution a provision 
that is there that I asked him about that I want to ask you 
about. Article III, Section 2 goes, ``In all cases''--excuse 
me. ``In all the other cases before mentioned, the Supreme 
Court shall have appellate jurisdiction, both as to law and 
fact,'' and then it goes on with this interesting Exceptions 
Clause, ``with such exceptions, and under such regulations as 
the Congress shall make.'' The last phrase known as the 
Exceptions Clause.
    What do you believe is Congress's power to define the 
jurisdiction of the Supreme Court under the Exceptions Clause?
    Judge Alito. Well, the Exceptions Clause obviously gives 
Congress the authority to define the appellate jurisdiction of 
the Supreme Court, and it can provide for various avenues by 
which cases get to the Supreme Court, and that has changed over 
the years.
    There's been a controversy, never resolved, about the exact 
scope of the authority. It came up in Ex Parte McCardle in the 
post-Civil War era, and it has been raised by--it has been 
discussed by scholars in subsequent years, and there are 
several schools of thought in the question about whether it 
would be consistent with the Constitution for Congress to 
eliminate jurisdiction in the Supreme Court over a particular 
type of case, that's an unresolved issue that the scholars have 
addressed, and some argue that that falls within the Exceptions 
Clause, and some argue that it would be inconsistent with other 
provisions of the Constitution.
    Senator Brownback. What I see taking place in this country, 
as the Court gets more and more involved in tough political 
issues, is you are going to be pressing other bodies then to 
say, ``Look, we believe these decisions should be here. We 
believe the issues on the competing interests of an abortion, 
the mother and the child, should be decided by legislative 
bodies,'' but the Court said no. Issue of marriage is coming 
through the court system right now. As the Court keeps getting 
involved in these areas, I think you are going to see these 
sorts of constitutional issues being explored more and more.
    Marriage case I want the take you to because that is making 
its way through the Federal Court. Forty-five of our 50 States 
have deemed marriage being between the union of a man and a 
woman. The State of Nebraska passes a State constitutional 
amendment, 70 percent of the people voting for it, saying that 
marriage is the union of a man and a woman. Yet a Federal judge 
in that case threw out the State constitutional amendment on 
novel constitutional grounds, and it is now making its way up 
through the system. The Congress has passed the Defense of 
Marriage Act, DOMA, passed overwhelmingly, signed into law by 
President Clinton, basically did two things. First establishes 
for purposes of Federal law marriage would be defined as the 
union of a man and a woman, and second, it would provide that 
no State would be forced to recognize a marriage entered into 
in another State. A number of legal scholars believe that this 
second part violates the Full Faith and Credit Clause of the 
Constitution.
    Judge Alito, this case is coming forward, and will probably 
be resolved in the Federal courts if it is not resolved by the 
Congress through constitutional amendment. What is your 
understanding of the meaning of the Full Faith and Credit 
Clause, and does this apply to the institution of marriage 
which has been traditionally an issue and an area left up to 
the States?
    Judge Alito. Well, several constitutional doctrines seem to 
be implicated by the matters that you discussed. The Full Faith 
and Credit Clause in general means that one State must honor 
judgments that are issued by a court of another State, and it's 
an important part of the process. It is an important part of 
the Federal system, so that we don't have worrying decisions in 
different States. It is not my--I have not had cases involving 
this, but there are--the doctrine has a certain, has certain 
boundaries to it. There are exceptions, and it covers certain 
areas and doesn't cover other areas, and a challenge to the 
Defense of Marriage Act under the Full Faith and Credit Clause 
would call into question the precise scope of the doctrine.
    And I believe that scholars have expressed differing views 
about how it would apply in that situation, and that's an issue 
that may well come up within the Federal courts, almost certain 
to do so.
    Senator Brownback. Yes. And I know you cannot express on 
it. One last thing I would like to get into just very briefly 
is the Takings Clause in the Kelo case that was in a 
neighboring circuit to yours, Kelo v. City of New London, where 
private property was taken by a private--another private 
group--private property was taken by a public group and given 
to another private group. Judge O'Connor wrote eloquently in 
her dissent, ``Nothing is to prevent the State from replacing 
any Motel 6 with the Ritz Carlton, or any home with a shopping 
mall, or any farm with a factory now.''
    I just conclude by putting that in front of you, saying 
that this is one that people have relied upon for a long time, 
that you could not take private property to another private 
individual for public use, and I hope that is one that the 
Court will end up reviewing at some point in time.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Brownback.
    Senator Coburn?
    Senator Coburn. Thank you, Mr. Chairman. Good morning, long 
day.
    I would like to put a few things into the record if I may. 
One is just a list of cases where Judge Alito ruled for the 
little guy. There has been a lot made, and here is a list of 
nine cases with specifics where he in fact--one of these I 
think he mentioned, but not the others. And I would like 
unanimous consent to--
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Coburn. Actually, there are 15 cases.
    I also want to go back and quote from somebody who was a 
member of CAP, and this is a Judge Napolitano. He is a 
commentator on one of the news shows. I would like his 
statements put into the record from yesterday, where he 
clarified what CAP was about, and clarified the interest of 
ROTC at Princeton, and the fact that that was one of the 
leading reasons that that organization was formed, so I would 
like for those to be admitted as well.
    As you know, I am not an attorney. Sometimes it is very 
disadvantageous on this panel, but at times it is advantageous. 
I have this little thing that I have to depend on, and I kind 
of read it for what it says. As you talk about stare decisis--
is that mentioned anywhere in here?
    Judge Alito. It is not expressly mentioned in the 
Constitution.
    Senator Coburn. It is actually a procedure of common 
English law, correct?
    Judge Alito. That's its origin, yes.
    Senator Coburn. That is its origin, and we use that as a 
tool for working with the Constitution. Can you recall the 
number of times that precedents have been reversed by the 
Supreme Court?
    Judge Alito. I don't know the exact figure, Senator.
    Senator Coburn. I think it is around 170 some times, 
affecting some 225 cases, I believe. That is close. That may 
not be exactly accurate. So, in fact, it is a tool used to help 
us with the law, but our Founders did not say you have to use 
stare decisis in this, did they?
    Judge Alito. No, they didn't. They conferred the judicial 
power on the judiciary, and I think that contemplated that the 
Federal judiciary would be permitted to proceed with--in 
accordance with fundamental judicial procedures as they had 
been known--
    Senator Coburn. At the time.
    Judge Alito. At the time.
    Senator Coburn. And Article III, section 2 really 
delineates the scope for the courts in this country, and what 
it says is, ``All cases in law and equity arising under this 
Constitution, the laws of the United States and treaties made, 
or which shall be made under their authority.'' So that really 
gives us the scope under Article III, section 2. I was 
interested when Senator Kyl asked you yesterday about foreign 
law. That is something extremely disturbing to a lot of 
Americans, that many on the Supreme Court today will reference 
or pick and choose the foreign law that they want to use to 
help them make a decision to interpret our Constitution, where 
in fact, the oath of office mentions no foreign law. Matter of 
fact it says the obligation is to use the United States law, 
the Constitution and the treaties, and that is exactly what 
Article III, section 2 says. So there is no reference at all to 
foreign law in terms of your obligations or your 
responsibility, and matter of fact, the absence of it would say 
that maybe this ought to be what we use, and the codified law 
of the Congress and the treaties rather than foreign law.
    The question I have for you--and I could not get Judge 
Roberts to answer it because of the conflict that might occur 
afterwards, but I have the feeling that the vast majority of 
Americans do not think it is proper for the Supreme Court to 
use foreign law. I personally believe that that is an 
indication of not good behavior by a Justice, whether it be a 
Justice at a appellate division, or a magistrate, or a Supreme 
Court Justice. I just wondered if you had any comments on that 
comment.
    Judge Alito. Well, I don't think that we should look to 
foreign law to interpret our own Constitution. I agree with you 
that the laws of the United States consist of the Constitution 
and treaties and laws, and I would add regulations that are 
promulgated in accordance with law. And I don't think that it's 
appropriate or useful to look to foreign law in interpreting 
the provisions of our Constitution. I think the Framers would 
be stunned by the idea that the Bill of Rights is to be 
interpreted by taking a poll of the countries of the world. The 
purpose of the Bill of Rights was to give Americans rights that 
were recognized practically nowhere else in the world at the 
time. The Framers did not want Americans to have the rights of 
people in France or the rights of people in Russia, or any of 
the other countries on the continent of Europe at the time. 
They wanted them to have the rights of Americans, and I think 
we should interpret our Constitution--we should interpret our 
Constitution. I don't think it's appropriate to look to foreign 
law.
    I also don't think that it's--I think that it presents a 
host of practical problems that have been pointed out. You have 
to decide which countries you are going to survey, and then it 
is often difficult to understand exactly what you are to make 
of foreign court decisions. All countries don't set up their 
court systems the same way. Foreign courts may have greater 
authority than the courts of the United States. They may be 
given a policymaking role, and therefore, it would be more 
appropriate for them to weigh in on policy issues. When our 
Constitution was being debated, there was a serious proposal to 
have members of the judiciary sit on a council of revision, 
where they would have a policymaking role before legislation 
was passed, and other countries can set up their judiciary in 
that way. So you'd have to understand the jurisdiction and the 
authority of the foreign courts.
    And then sometimes it's misleading to look to just one 
narrow provision of foreign law without considering the larger 
body of law in which it's located. That can be--if you focus 
too narrowly on that, you may distort the big picture, so for 
those reasons, I just don't think that's a useful thing to do.
    Senator Coburn. It actually undermines democracy because 
you get a pick and choose, and the people of this country do 
not get a pick and choose that law, as people from a different 
country. So it actually is a violation of the Constitution, and 
to me, I very strongly and adamantly feel that it violates the 
good behavior, which is mentioned as part of the qualifications 
and the maintenance of that position.
    I am sorry Senator Durbin left. I wanted to razz him a 
little bit. You have taken quite a bit of criticism on what 
things that you have written and said in 1985, but I want to 
put forward, for 45 years Senator Durbin was adamantly pro-
life, and he wrote multiple, multiple letters expressing that 
up until 1989. He is a very strong advocate for the abortion 
stance and a free right to choose, but I think it is important 
that the American people--if he has the ability to change his 
mind on something, something he wrote in 1989, certainly you 
have the ability to say something was ineptly put. This is just 
Senator Durbin, I am teasing him a little bit, but I think it 
is important that people recognize people can change their 
mind. I continue to believe the Supreme Court's decision in Roe 
v. Wade should be reversed. There are other Members that are 
adamantly pro-abortion, pro the destruction of human life today 
that have changed their mind, changed their position. So it is 
hard to be critical of you and on something you had written in 
1985, when many of us have backtracked on things that we have 
said through the years. So I think it puts a little bit of 
perspective into where we are going.
    I want to spend just a minute, if I can, yesterday during 
Senator Feinstein's questioning there was some discussion about 
the Health Exception to any regulations pertaining to abortion. 
And on January 22nd, when Roe was decided, the Court also 
decided Doe v. Bolton, and in that case the Court ruled that a 
woman's right to abortion cannot be limited by the State if 
abortion was sought for reasons of maternal health. As a 
practicing physician, I agree with that. I have actually 
performed abortions on women who were going to die if they did 
not have an abortion, so the choice was somebody alive versus 
losing both.
    The Court defined health as all factors, physical, 
emotional, psychological, familial, and a woman's age relevant 
to the well-being of the patient. This exception effectively 
expanded the right to abortion for any reason through all the 
entire pregnancy. Since that time, States have been trying to 
find ways to effectively regulate abortion without intruding on 
this health exception, but it has proven nearly impossible. The 
absence of knowledge is something that Roe v. Wade, which I 
believe was wrongly decided, has hurt us immensely in this 
country, and the absence of informed consent on abortion has 
hurt us immensely.
    Mr. Chairman, I would like to enter into the record a study 
published, a 35-year longitudinal study, which was just 
released this January from New Zealand, that followed women, 
600 women for 35 years from the time of the abortion, that 
studied the ill health effects of--
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Coburn. I would also like to enter into the record 
a Breast Cancer Institute study and analysis of a Lancet 3/25/
04 article, and also the testimony of Dr. Elizabeth Shadigian, 
University of Michigan, Clinical Associate Professor, 
Department of Obstetrics and Gynecology, as to the 
complications.
    Chairman Specter. All of those documents, without 
objection, will be made a part of the record.
    Senator Coburn. It is amazing what we do not know, and as I 
explained in my opening statement, once we go down a path, the 
complications associated--the rulings that you make have major 
impact. I understand the questions that you cannot answer on 
things that are going to come before us, and I cannot pretend 
to know what is in your heart about those issues. But what I do 
know is you were pretty aggressively approached on positions in 
terms of Justice O'Connor and Executive power. There seemed to 
be a blinding contradiction during some of your questions that 
were presented by my colleagues yesterday that raised concerns 
that you are too close to the Executive and too supportive of 
Executive power. They wanted to be sure that you respect the 
role of the judiciary and are free from the influences of the 
political branches. However, they then argue that you should 
have the same ideology of Justice O'Connor to maintain the 
balance on the Court. I have trouble figuring out how they can 
have it both ways. That is an inherently political desire.
    Is there anything in the Constitution, this little 
document, that says what the ideology ought to be of one 
Supreme Court Justice replacing another one?
    Judge Alito. The Supreme Court simply gives the President 
the authority to nominate Justices of the Supreme Court and 
other Federal judges, and gives Congress the advice and consent 
responsibility, and doesn't go further than that.
    Senator Coburn. And the President, by being elected, the 
only person in this country who is elected by the whole 
country, is given that honor and that privilege as well as that 
responsibility, and then we have the responsibility to advise 
and consent to that; is that correct?
    Judge Alito. That's correct.
    Senator Coburn. But nowhere in the Constitution, nor by 
precedent--matter of fact, the precedents are just exactly the 
opposite of that--is it stated that somebody has to have the 
same philosophy as somebody that is coming off the Court.
    Judge Alito. I think that every Supreme Court Justice is an 
individual, and I think every nominee is an individual, and no 
nominee can ever be a duplicate of someone who retires, and 
particularly when someone retires after such a distinguished 
career and such a historic career as Justice O'Connor. Nobody 
can be expected as a nominee to fit that mold.
    Senator Coburn. So the fact that you have to fit the Sandra 
Day O'Connor mold is really a misapplication of--there is no 
precedent that would say that.
    Judge Alito. The only--if I'm confirmed, I'll be myself. 
I'll be the same person that I was on the Court of Appeals. 
That's the only thing that I can say in answer to that.
    Senator Coburn. Let me repeat some facts that one of my 
colleagues mentioned yesterday. Of the 109 Justices to sit on 
the Supreme Court, nearly half have replaced Justices appointed 
by another political party. President Clinton replaced Justice 
White, who dissented on Roe v. Wade, with Justice Ginsburg, who 
argued for a right to abortion. Justice Ginsburg was, I think, 
three votes against her in the Senate when she was approached, 
and she took it completely opposite, but she was well 
qualified. She had integrity, and she was voted onto the Court 
even though many people knew that her philosophy was very 
different from theirs; is that true?
    Judge Alito. She was--the vote was 90 something to a small 
number. I know that, yes.
    Senator Coburn. A lot of times in these hearings, you do 
not get a chance to say, why would you want to be a Justice of 
the Supreme Court of the United States? Why would you want that 
responsibility? Why do you want to go through this process to 
be able to achieve that position? Can you tell the American 
people why?
    Judge Alito. I think it's a chance to make a contribution. 
I think it's a chance to use whatever talent I have in the most 
productive way that I can think of. There are a lot of things 
that I can't do and a lot of things that I couldn't do very 
well if I was given the assignment of doing them, but I've 
spent most of my career as an appellate attorney. Well, I spent 
most of my career before becoming a judge as an appellate 
attorney and now I've spent 15 years as an appellate judge and 
I think this is what I do best. I think this gives me an 
opportunity to make a contribution to the country and to the 
society, because the Supreme Court has a very important role to 
play and it's important that it do the things that it's 
supposed to do well and I would do my very best to further 
that.
    And it is also important for the Supreme Court, and for 
that matter, all of the Federal courts, to exercise restraint. 
As you were referring to earlier, that has turned out to be the 
principal check on the way the judiciary does its work on a 
day-to-day basis. The judiciary is not checked in its day-to-
day work in the same way as the Congress and the President. The 
Congress can pass a law or pass a bill and the President can 
veto it. One House can pass a bill, the other House may not go 
along. The President has to propose legislation to Congress if 
the President wants legislation. Congress can pass laws that 
the President doesn't like. There are checks and balances that 
are worked out in the ordinary processes of government.
    But when it comes to the judiciary in deciding 
constitutional cases, the judiciary is checked on a daily basis 
primarily by its own discipline, its own self-restraint. And so 
it's important for--the judiciary has these twin 
responsibilities that are in intention at times, doing what it 
is supposed to do and doing those things well and vigorously 
and courageously, if it comes to that, but at the same time, 
constantly monitoring its own activities and asking, are we 
doing what we are supposed to be doing as judges? Are we 
functioning as judges, or are we stepping over the line? Are we 
turning ourselves into legislators? Are we turning ourselves 
into members of the executive branch or administrators? And the 
judiciary has to maintain its independence. That's of critical 
importance, and that's an important part of the role and that 
also has to be informed by this sense of self-restraint.
    Senator Coburn. Thank you. During Judge Roberts's hearing, 
Senator Feinstein tried to get him to talk and speak out of his 
heart and I thought it was a great question so that the 
American people can see your heart. This booklet is designed to 
protect the weak, to give equality to those who might not be 
able to do it themselves, to protect the frail, to make sure 
that there is equal justice under the law. You know, I think at 
times during these hearings you have been unfairly criticized 
or characterized as that you don't care about the less 
fortunate. You don't care about the little guy. You don't care 
about the weak or the innocent. Can you comment just about Sam 
Alito and what he cares about and let us see a little bit of 
your heart and what is important to you and why?
    Judge Alito. Senator, I tried to--in my opening statement, 
I tried to provide a little picture of who I am as a human 
being and how my background and my experiences have shaped me 
and brought me to this point. I don't come from an affluent 
background or a privileged background. My parents were both 
quite poor when they were growing up. I know about their 
experiences, and I didn't experience those things. I don't take 
credit for anything that they did or anything that they 
overcame, but I think that children learn a lot from their 
parents and they learn from what the parents say, but I think 
they learn a lot more from what the parents do and from what 
they take from the stories of their parents' lives.
    And that's why I went into that in my opening statement, 
because when a case comes before me involving, let's say, 
someone who is an immigrant, and we get an awful lot of 
immigration cases and naturalization cases, I can't help but 
think of my own ancestors because it wasn't that long ago when 
they were in that position. And so it's my job to apply the 
law. It's not my job to change the law or to bend the law to 
achieve any results, but I have to, when I look at those cases, 
I have to say to myself, and I do say to myself, this could be 
your grandfather. This could be your grandmother. They were not 
citizens at one time and they were people who came to this 
country.
    When I have cases involving children, I can't help but 
think of my own children and think about my children being 
treated in the way the children may be treated in the case 
that's before me. And that goes down the line. When I get a 
case about discrimination, I have to think about people in my 
own family who suffered discrimination because of their ethnic 
background or because of religion or because of gender, and I 
do take that into account. When I have a case involving someone 
who's been subjected to discrimination because of disability, I 
have to think of people who I've known and admired very greatly 
who had disabilities and I've watched them struggle to overcome 
the barriers that society puts up, often just because it 
doesn't think of what it's doing, the barriers that it puts up 
to them.
    So those are some of the experiences that have shaped me as 
a person.
    Senator Coburn. Thank you. Mr. Chairman, I think I will 
yield back the balance of my time at this time and if I have 
additional questions, I will get them in the next round.
    Chairman Specter. Thank you very much, Senator Coburn.
    We will now proceed to the second round of questioning, 
with each Senator having 20 minutes, and we will take 20 
minutes more and then we will take a break.
    Is it appropriate for the Court to declare Acts of Congress 
unconstitutional because of our, quote, ``method of 
reasoning''? Does the Court have some superior insights on a 
method of reasoning? Is it appropriate for the Court to declare 
Acts of Congress unconstitutional, functioning as a taskmaster 
to make sure that Congress does its homework? There have been a 
series of decisions which have seriously undercut congressional 
power where, in my opinion, the Court has usurped the authority 
of Congress, and this moves into the often-criticized range of 
congressional legislation--judicial legislation and derogation 
of the congressional power.
    We are seeking, Judge Alito, to have an appropriate 
equilibrium in our system and the beauty of the American system 
is that no one has too much power. We call it separation of 
power. Although not specifically mentioned in the Constitution, 
we call it checks and balances. We have looked into the issue 
of tremendous importance. Regrettably, we haven't plumbed it, 
only scratched the surface, but our time is limited on the 
authority of the President under War Powers Article II 
contrasted with Congress's authority to legislate for privacy 
under the Foreign Intelligence Surveillance Act, and I want to 
move into two other analogous areas, Congress versus the Court 
and the Court versus Congress, as Congress has taken away the 
jurisdiction of the Court, notably very recently by stripping 
habeas corpus jurisdiction on detainees.
    When the Congress legislated to protect women against 
violence, the Congress did so with a very expansive record. It 
wasn't like Lopez, which was a revolution where the Court upset 
60 years of congressional power under the Commerce Act, but in 
the case of U.S. v. Morrison involving the legislation to 
protect women against violence, there was a record which 
included gender bias from task forces in 21 States, five 
separate reports. Notwithstanding a, quote, ``mountain of 
evidence,'' as noted by four dissenters, the Court declared the 
Act unconstitutional because of our method of reasoning.
    Now, you are a judge. You may be a Supreme Court Justice. 
Is there something we are missing? Do you judges have some 
method of reasoning which is superior to the method of 
reasoning of the Congress?
    Judge Alito. I think the branches of government are equal 
and everybody, all the officers in all the branches of 
government take an oath to the same Constitution--
    Chairman Specter. Equality on method of reasoning?
    Judge Alito. I would never suggest that judges have 
superior reasoning power than does Congress. I think what the 
Court was getting at when it made that statement in Morrison, 
and yesterday, I looked at something that I had written and 
said that was not well phrased, I think that what the Court was 
getting at there in Morrison was that it was applying a certain 
standard, a certain legal standard as to whether something 
substantially affected commerce, and I think that is what they 
were getting at, but--
    Chairman Specter. It is hard to figure out what they were 
getting at. We do know what they said. They said our method of 
reasoning was defective. But I take it from your statement you 
wouldn't subscribe to overturning congressional Acts because of 
our method of reasoning?
    Judge Alito. I think that Congress's ability to reason is 
fully equal to that of the judiciary and I think Congress--
    Chairman Specter. And you think that even after appearing 
here for a day and a half?
    [Laughter.]
    Judge Alito. I have always thought that and nothing has 
changed my mind about that.
    Senator Hatch. I am starting to worry about you.
    [Laughter.]
    Chairman Specter. That is on Senator Hatch's time.
    [Laughter.]
    Chairman Specter. Let me take up the Americans with 
Disabilities Act on two decisions within a couple of years of 
each other, one where the Supreme Court declared 
unconstitutional the Americans with Disabilities Act because it 
applied to employment, upholding the Act as it applied to 
access to facilities. Justice Scalia had a ringing dissent when 
the Court imposed the standard of congruence and 
proportionality, a very difficult standard which you wrestled 
with in the family leave case.
    The congruent and proportional standard came to the Court 
in the Boerne case in 1997, so it is very recent origin and it 
has all the earmarks of having been pulled out of the thin air. 
Justice Scalia said that it was a thinly veiled invitation to 
judicial arbitrariness and policy-driven decisionmaking. 
Justice Scalia criticized the majority opinion for functioning 
as a taskmaster to see to it that Congress had done its 
homework. Here again, there was a voluminous record, 13 
congressional hearings. Thirty-thousand people were surveyed.
    Do you think, Judge Alito, that a test like congruence and 
proportionality is fair notice to the Congress on what we can 
do by way of legislation? Here, we are dealing--and it is maybe 
worth just a little explanation. When Congress legislates on 
constitutional issues under Article V of the 14th Amendment, 
the Court then makes a comparison to State immunity under the 
11th Amendment. But do you think that is a fair test as to what 
we are to try to figure out what the Supreme Court is later 
going to say is congruent and proportionate?
    Judge Alito. Well, like many tests in the law, it is not a 
mathematical or a scientific formula that can produce a 
particular result with certainty as it is applied to particular 
situations. It addresses--
    Chairman Specter. How about just fair notice? Never mind 
mathematical certainty.
    Judge Alito. It addresses a difficult problem the Court has 
grappled with over the years and that is the scope of 
Congress's authority under Section V of the 15th Amendment--of 
the 14th Amendment to pass legislation enforcing the provisions 
of the 14th Amendment, and one argument that has been made 
which would represent a very narrow interpretation of 
congressional power, and this is basically the argument that 
Justice Scalia--the position that Justice Scalia took in the 
dissent that you mentioned, is that Congress' authority doesn't 
extend any further than remedying actual violations of the 14th 
Amendment, that there is no--Congress doesn't have additional 
authority to enact prophylactic measures outside of the area of 
race, which Justice Scalia would treat differently and 
recognize broader authority because of the historical origin of 
the 14th Amendment.
    Chairman Specter. Judge Alito, what is wrong with the test 
of Maryland v. Wirtz and Gonzales v. Raich, because you take a 
look at power under the Commerce Clause and to be applicable to 
our legislation under the Americans with Disabilities Act? That 
test is where the Court has gone into some length to say what 
you have gone into repeatedly, that judges have no expertise. 
It is up to the Congress to have hearings. It is up to the 
Congress to find facts. It is up to the Congress to find out 
what goes on in the real world.
    In Wirtz in 1968 and reaffirmed recently in Gonzales v. 
Raich after Morrison, after Lopez, quote, ``where we find the 
legislators have a rational basis for finding a chosen 
regulatory scheme necessary for the protection of commerce,'' 
could apply as well to disability, ``our investigation is at an 
end.'' What is wrong with that? Would you subscribe to that 
test over the proportionate and congruence test?
    Judge Alito. There are a number of tests that have been 
used and proposed over the years in this area and this is the 
subject, I think, of continuing litigation in the Supreme 
Court. There is the Maryland v. Wirtz approach and then the 
City of Boerne approach, and you mentioned that the City of 
Boerne is a relatively recent decision and it's been followed 
by a number of subsequent decisions--
    Chairman Specter. Where did it come from? Where did the 
Boerne test on proportionate and congruence come from if not 
thin air?
    Judge Alito. Well, I think it was an effort by the majority 
in that case to identify a standard that would not strictly 
limit congressional power to remedying established violations 
of the 14th Amendment without going--while still, in their 
view, retaining the necessary remedial connection to Section V 
of the 14th Amendment. It is an approach that they have used in 
a number of cases and the cases have not come out--sometimes 
the results in the cases have not been predictable.
    You mentioned the contrast between the two decisions under 
the Americans with Disabilities Act. I think Nevada v. Hibbs 
was a decision that some people--that surprised some people 
based on the Court's prior precedents. So there is, I think, 
still some ferment in this area and I am sure it is a question 
that's going to be--that will come up in future cases.
    Chairman Specter. Well, we are speaking not only to you, 
Judge Alito, but to the Court. The Court watches these 
proceedings and I think they ought to know what the Congress 
thinks about making us schoolchildren per challenging our 
method of reasoning. We are considering legislation which would 
give Congress standing to go into the Supreme Court to uphold 
our cases. Right now, the Solicitor General does that, but he 
is in the executive branch. We don't want to derogate the 
Solicitor General in your presence, Judge Alito, but the 
thinking that we have had was to speak about the decisions, the 
Court's decisions on the floor in the Senate, nobody pays 
attention to that. Maybe we would try to come in as amicus. Why 
do that? We have the power to grant standing. We can grant 
standing to ourselves and come into Court and fight to uphold 
constitutionality.
    Let me move at this point to the recent legislation which 
takes away the jurisdiction of the Federal bench to hear habeas 
corpus decisions. It is in the context of the detainees.
    Justice O'Connor in Hamdi laid out the law in flat terms. 
All agree that absent suspension, the Writ of Habeas Corpus 
remains available to every individual detained within the 
United States, every individual, not just citizens. And then 
she spells out the way you suspend the writ, and you do it only 
by rebellion or invasion. Then this recent legislation says the 
District Columbia Court of Appeals shall have the exclusive 
jurisdiction to determine the validity of any final decision by 
the Combatant Status Review Tribunal. If it means what it says, 
and judges like to look to the statute as opposed to going to 
congressional intent, if it means what it says, that there is 
exclusive jurisdiction, there is no jurisdiction of the Supreme 
Court.
    This may come before the Court, but what factors would you 
consider to be relevant in making the analysis as to again 
maintaining equilibrium between the Court and the Congress of 
our authority to take away Federal court jurisdiction on this 
important item?
    Judge Alito. In the area of habeas corpus, there are a 
number of important principles that have to be considered in 
reviewing any legislation that is argued to--that someone 
contends has altered habeas jurisdiction. The first is that the 
Court said in a case called INS v. Cyr that if there is an 
attempt to--that habeas jurisdiction can't be taken away unless 
it's clear in the statute that that's what was intended. Habeas 
jurisdiction is not to be repealed by implication. That's one 
important principle.
    And then in Felker v. Turpin, which involved the Anti-
Terrorism and Effective Death Penalty Act of 1996, Congress--
I'm sorry, the Supreme Court considered arguments about whether 
provisions of that legislation which restructured Federal 
habeas review violated the Constitution and they found that 
there wasn't a violation because the essentials of the writ 
were preserved. And so if other legislation is challenged, it 
would have to be reviewed under standards like that.
    Chairman Specter. Judge Alito, I want to move now to a 
subject on efforts to have television in the Supreme Court of 
the United States, a subject very near and dear to my heart. I 
have been pushing it for a long time. I am personally convinced 
that it is going to come some day. I am not sure whether it 
will come during my tenure in the Senate, more likely to come 
during the tenure of Chief Justice Roberts in the Supreme 
Court, or your tenure, if confirmed.
    The Supreme Court said in the Richmond Television case 
that, quote, ``the rights of a public trial belong not just to 
the accused, but to the public and the press, as well. Such 
openness has long been recognized as an indispensable attribute 
in the Anglo-Saxon trial.'' There are many other lines of 
authority, but only a few moments left to set the stage here, 
but the Supreme Court has the final word.
    We can talk about the President's war power under Article 
II and the congressional authority under the Foreign 
Intelligence Surveillance Act, but the Court makes the 
decision. We can talk about taking away habeas corpus 
jurisdiction, but the Court decides whether we can do it or 
not. We can talk about the insult of declaring Acts of Congress 
unconstitutional because of our method of reasoning, but the 
Court can do that. And the Court has made these decisions on 
all the important subjects. The Court decided who would be 
President of the United States in Bush v. Gore. The Court 
decides who lives on a woman's right to choose, who dies on the 
right to die, on the death penalty, on every critical decision.
    The Congress has the authority to do many things on the 
administrative level, such as we set the starting date for the 
Court, the first Monday in October. We set what is a quorum for 
the Court, six members. Congress sets the size of the Court, 
the effort made by President Roosevelt to increase the number 
from nine to 15. We put provisions in on speedy trial, time 
limits on habeas corpus matters.
    In recent times, some of those who have objected to 
televising the Court have been on television quite a bit 
themselves. When Justice Scalia and Justice Breyer come on TV, 
it is a pretty good show. There is not much surfing when that 
happens, like surfing when my turn comes to question.
    [Laughter.]
    Chairman Specter. But this proceeding on confirmation of 
Supreme Court Justices has attracted a lot of attention. As I 
said to you yesterday, I am tired of picking up the front page 
everywhere and seeing your picture on it. Fred Hume was on Fox 
News talking about going to a Redskins game in 1991 when 
Justice Thomas was being confirmed and how he had his earsets 
on to listen to the proceedings. I think Senator Leahy was 
questioning Professor Hill at that particular time.
    But how about it? Why shouldn't the Supreme Court be open 
to the public with television?
    Judge Alito. Well, I had the opportunity to deal with this 
issue actually in relation to my own court a number of years 
ago. All the courts of appeals were given the authority to 
allow their oral arguments to be televised if they wanted and 
we had a debate within our court about whether we would, or 
whether we should allow television cameras in our courtroom and 
I argued that we should do it. I thought that it would be a 
useful--
    Chairman Specter. You have taken a position on this issue?
    Judge Alito. Well, I did, and this is one of the matters on 
which I ended up in dissent in my court.
    [Laughter.]
    Judge Alito. I think the majority was fearful that our 
Nielsen numbers would be in the negatives.
    Chairman Specter. Could you promise the same result?
    [Laughter.]
    Chairman Specter. Could you promise the same result, if 
confirmed, to be a dissenter for the Court to allow TV?
    Senator Grassley. Be careful how you answer.
    Chairman Specter. Be careful how you answer everything, as 
you have been.
    Judge Alito. The issue is a little bit different on the 
Supreme Court and it would be presumptuous for me to talk about 
it right now, particularly since I think at least one of the 
Justices has said that a television camera would make its way 
into the Supreme Court courtroom over his dead body, so I 
wouldn't want to comment on it.
    Chairman Specter. Justice Souter. But quite a few of his 
colleagues have been on television.
    Let me ask you this, Judge Alito. I know what the answer 
will be, with 7 seconds left. Will you keep an open mind?
    Judge Alito. I will keep an open mind despite the position 
I took on the Third Circuit.
    [Laughter.]
    Chairman Specter. Thank you, Judge Alito.
    We will now take a 15-minute break and we will reconvene at 
11:35.
    [Recess 11:18 a.m. to 11:35 a.m.]
    Chairman Specter. The hearing will resume. Turning to the 
distinguished ranking member, Senator Leahy, for 20 minutes.
    Senator Leahy. Thank you, Mr. Chairman.
    Judge Alito, welcome back. If the past is any prologue, you 
probably do not have more than another day or so of this to go 
through. I am concerned. I want to just state this right out, 
concerned that you may be retreating from part of your record. 
I think that some of the answers that--I have expressed this 
concern, mentioned to the Chairman I am concerned that some of 
your answers were inconsistent with past statements. All of us 
want to know your legal and constitutional philosophy.
    So let's go back to the questions that I was asking 
yesterday about checking Presidential power, and we spoke about 
Justice Jackson's opinion in Youngstown. Justice Jackson, as 
you know, is a hero of mine, and I point often to the 
Youngstown case. But when Congress acts to strain the 
President's power, as we did with the anti-torture statutes and 
the Foreign Intelligence Surveillance Act, I believe the 
President's power then is at its lowest ebb. You seemed to be 
saying yesterday that fell into the second category of Jackson, 
the twilight zone. Actually, I believe you were mistaken on 
that. Justice Jackson spoke of the twilight zone area, or as he 
said, zone of twilight, where Congress had not acted.
    So let us go to the landmark decision in Hamdi, and Justice 
O'Connor's decision. The issue there was whether due process 
required that a U.S. citizen, should have a meaningful chance 
to challenge the factual basis for his detention by the 
Government.
    Now, Justice O'Connor wrote that the President does not 
have a blank check even in time of war. Yesterday you told 
Senator Specter that you agreed with Justice O'Connor's general 
statement. A very different view was in the dissent. Justice 
Thomas would have upheld the extreme claims with the all 
powerful and essentially unchecked President. He argued the 
Government's powers could not be balanced away by the Court, 
and there is no occasion to balance a competing interest. Which 
one is right, Justice O'Connor or Justice Thomas? They are 
quite a bit different.
    Judge Alito. Justice O'Connor wrote the opinion of the 
Court. The first question that she addressed in Hamdi was 
whether it was lawful to detain Hamdi, and it was a statutory 
question, and it was a question whether--it was whether he was 
being detained in violation of what is often referred to as the 
anti-detention statute, which was passed to prevent a 
repetition of the Japanese internment that occurred during 
World War II, and she concluded that the authorization for the 
use of military force constituted authorization for detention. 
And then she went on to the issue of the constitutional 
procedures that would have to be followed before someone could 
be detained, and she looked to standard procedural due process 
law in this area, and identified some of the requirements that 
would have to be followed before someone could be detained.
    And now issues have arisen about the identity of the 
tribunal that is to make a determination about detaining people 
who are taken into custody during the war on terrorism, and 
that's one of the issues that's working its way through the 
court system.
    Senator Leahy. No, I am not talking about things working 
their way through, but just on Hamdi, which has already been 
decided. Would you say that Justice O'Connor basically applied 
the Jackson test, not the twilight zone test, but the test of 
where the President's power is at its lowest ebb?
    Judge Alito. In addressing the statutory question I don't 
think she had any need to get into Justice Jackson's framework 
as well.
    Senator Leahy. Would you say it would be consistent with 
what Justice Jackson said?
    Judge Alito. I think it certainly is consistent with what 
Justice Jackson said.
    Senator Leahy. Which decision do you personally agree with, 
hers or the dissent by Justice Thomas?
    Judge Alito. I think that the war powers are divided 
between the executive branch and Congress. I think that's a 
starting point to look at in this area. The President is the 
Commander in Chief, and he has authority in the area of foreign 
affairs, and is recognized in Supreme Court decisions as the 
sole organ of the country in conducting foreign affairs.
    Senator Leahy. But you are not going to say which of the 
two decisions you agree with.
    Judge Alito. Well, I'm trying to explain my understanding 
of the division of authority in this area, and I think that 
it's divided between the executive and the Congress. I 
certainly don't think that the President has a blank check in 
time of war. He does have the responsibility as the Commander 
in Chief, which is an awesome responsibility.
    Senator Leahy. And we all understand that and appreciate 
that. I understood, listening to Chief Justice Roberts, when he 
was here sitting where you are, that he felt that Justice 
O'Connor's decision most clearly tracked the Jackson standards 
in Youngstown.
    But I want to get more into this unitary Executive theory 
because I really had questions listening to you yesterday. You 
have said as recently as five years ago, that you believe the 
unitary Executive theory best captures the constitutional role 
of Presidential power. You were a sitting judge when you said 
that. And do you still adhere to that constitutional view that 
you were expressing 5 years ago?
    Judge Alito. I think that the considerations that inform 
the theory of the unitary Executive are still important in 
determining, in deciding separation of powers issues that arise 
in this area. Of course, when questions come up involving the 
power of removal, which was the particular power that I was 
talking about in the talk that you're referring to, those are 
now governed by a line of precedents from Myers going through 
Humphrey's Executor and Wiener and Morrison, where the Court 
held 8-1 that the removal restrictions that were placed on an 
independent counsel under the Independent Counsel Act did not 
violate separation of powers principles. So those would be 
applied. Those would be the governing precedents on the 
question of removal, but my point in the talk was that the 
considerations that underlie this theory are relevant, should 
inform decisionmaking in the area going beyond the narrow 
question of removal.
    Senator Leahy. But in the past you criticized Morrison. Are 
you saying now that you are comfortable with Morrison, that you 
accept it?
    Judge Alito. Morrison is a settled--is a precedent of the 
Court. It was an 8-1 decision. It's entitled to respect under 
stare decisis. It concerns the Independent Counsel Act, which 
no longer is in force.
    Senator Leahy. So do you hold today that the Independent 
Counsel statute was beyond the congressional authority to 
authorize--to enact?
    Judge Alito. No. I don't think that was ever my position.
    Senator Leahy. All right. Under the theory of unitary 
Executive that you have espoused, what weight and relevance 
should the Supreme Court give to a Presidential signing 
statement? I ask that because these are real issues. I mean we 
passed the McCain-Warner, et al. statute against torture, when 
the President did a separate signing statement. After he signed 
it into law, he did not veto it. He had the right and, of 
course, the ability to veto it. He did not veto it. He signed 
it into law, and then he wrote a sidebar, a signing statement 
basically saying that it will not apply to him or those acting 
under his order if he does not want it to.
    Under the unitary Executive theory, one could argue that he 
has an absolute right to ignore a law that Congress has 
written. What kind of weight do you think should be given to 
signing statements?
    Judge Alito. I don't see any connection between the concept 
of a unitary Executive and the weight that should be given to 
signing statements in interpreting statutes. I view those as 
entirely separate questions. The question of the unitary 
Executive, as I was explaining yesterday, does not concern the 
scope of Executive powers. It concerns who controls whatever 
power the Executive has. You could have an Executive with very 
narrow powers and still have a unitary Executive. So those are 
entirely different questions.
    The scope of Executive power gets into the question of 
inherent Executive power.
    Senator Leahy. Let's go into that a little bit because back 
in the days when I was a prosecutor, I mean I was very shocked 
what happened in the Saturday Night Massacre. A President 
orders certain things to be done. The Attorney General says, 
no, I won't do it. Fires him. The Deputy Attorney General, 
said, ``OK, you do it,'' and Deputy Attorney General would not, 
saying it violated the law. Fires him. They keep on going down 
to finally find one person, a person you have praised, Robert 
Bork, who says, ``Fine, I'll fire him. I'll do what the 
President says.''
    You have criticized Congress for allowing these independent 
agencies to refine and apply policies passed by Congress. You 
said that insofar as the President is the Chief Executive, he 
should follow their policies, not Congress.
    So let's take one, for example, the Federal Election 
Commission, independent agency. They make policies. Suppose the 
President, whoever was the President, did not like the fact 
they were investigating somebody who had contributed to him. 
Could he order them to stop that investigation?
    Judge Alito. Senator, I don't think I have ever said that--
I don't think I've ever challenged the constitutionality of 
independent agencies. My understanding--
    Senator Leahy. No, but you have said--my understanding is 
that you chastised Congress for giving so much power to them 
when the power should be in the President or in the Executive.
    Judge Alito. Senator, I don't think I've ever said that 
either. I said that I thought that there was merit to the 
theory of the unitary Executive, and I tried to explain how I 
thought that should play out in the post-Morrison world, 
accepting Morrison as the Supreme Court's latest decision in a 
resounding 8-1 decision on the issue of removal. How should the 
issue of--how should the concept of the unitary Executive play 
out in the post-Morrison world?
    On the issue of removal, my understanding of where the law 
stands now is that Myers established that there are certain 
officers of the executive branch whom the President has the 
authority to remove as he sees fit. There are--and there are 
those--
    Senator Leahy. Of course, he could fire his whole cabinet 
today if he wanted to. We all accept that.
    Judge Alito. Well, that was the issue that was presented by 
the Tenure in Office Act that led to the impeachment of the 
first President Johnson, and in Myers, Chief Justice Taft, 
although the Act of that controversy was long past, Chief 
Justice Taft opined that the Tenure in Office Act had been 
unconstitutional.
    Senator Leahy. But let us not go off the subject of these 
independent agencies that we have set up. Use as an example the 
FEC, the Federal Election Commission. Could the President, if 
he did not like somebody they were investigating, a contributor 
or something, could he order them to stop?
    Judge Alito. What Morrison says is that Congress can place 
restrictions on the removal of inferior officers, provided that 
those removal restrictions don't interfere with the President's 
exercise of Executive authority. So they adopted a functional 
approach, and that was the Court's latest word on this 
question. They looked back to Humphrey's Executor, and Wiener, 
which had talked about categories, and they--categories of 
quasi-judicial and quasi-legislative officers, and they 
reformulated this as a functional approach, and that's the 
approach that would now be applied.
    Senator Leahy. Do you believe the President has the power 
to curtail investigations, for example, by the Department of 
Justice?
    Judge Alito. I don't think--
    Senator Leahy. The Department of Justice is under him.
    Judge Alito. I don't think the President is above the law, 
and the President is the head of the executive branch, and I've 
explained my understanding of the removal restrictions that can 
and cannot be placed on officers of the executive branch.
    Senator Leahy. But could he order them to stop an 
investigation?
    Judge Alito. Well, you'd have to look at the facts of the 
case and the particular officer that we're talking about.
    Senator Leahy. Could he order the FBI to conduct 
surveillance in a way not authorized by statute?
    Judge Alito. The President is subject to constitutional 
restrictions, and he cannot lawfully direct the FBI or anybody 
in the Justice Department or anybody else in the executive 
branch to do anything that violates the Constitution.
    Senator Leahy. Could he--I am speaking now of statute--
could he order our intelligence agencies to do something that 
was specifically prohibited by statute?
    Judge Alito. My answer to that is the same thing. He has to 
follow the Constitution and the laws of the United States. He 
has to take care that the laws are faithfully executed. If a 
statute is unconstitutional, then the President--then the 
Constitution would trump the statute. But if a statute is not 
unconstitutional then the statute is binding on the President 
and everyone else.
    Senator Leahy. Does the President have unlimited power just 
to declare a statute, especially if it is a statute that he had 
signed into law, to then declare it unconstitutional or say he 
is not going to follow it?
    Judge Alito. If the matter is later challenged in court, of 
course, the President isn't going to have the last word on that 
question, that's for sure. And the courts would exercise 
absolutely independent judgment on that question. It's 
emphatically the duty of the courts to say what the law is when 
constitutional questions are raised in cases that come before 
the courts.
    Senator Leahy. That is an answer I agree with. Thank you. 
In other areas, SEC, can he order them to stop an investigation 
if it is somebody he does not want investigated?
    Judge Alito. Well, the independent agencies are governed by 
Humphrey's Executor and cases that follow that, and there have 
been restrictions placed on the removal of commissioners of the 
independent agencies, and they have been sustained by the 
Supreme Court. That's where the Supreme Court precedent on the 
issue stands.
    Senator Leahy. Is that settled law?
    Judge Alito. It is a line of precedent that culminated, I 
would say--there have been a few additional cases relating to 
this, the Edmond case and the Freitag case, but I would look to 
Morrison, which was an 8-1 decision involving a subject of 
considerable public controversy, the removal of an independent 
counsel, removal of restrictions on that independent counsel.
    Senator Leahy. I am still having some difficulty with 
statements you have made about the unitary Executive and how 
you would apply it. You said yesterday, in answer to a question 
I asked, that when people's rights are violated, they should 
have their day in court. The courts are there to protect the 
rights of individuals. I do not think anybody in this room 
would disagree with that. It is the practice we look at in PIRG 
v. Magnesium Electron. You concluded the Congress did not have 
the constitutional authority to authorize citizens to bring a 
suit against polluters under the Clean Water Act, whether the 
people had justiciable claims or not, there were a number of 
people downstream from Magnesium Electron. They said the water 
had been polluted. They brought a suit. You threw it out. Judge 
Lewis dissented, said it should have gone back to the lower 
court on the question of facts.
    I will give you a two-part question. One, why did you send 
that case back to the lower court? And do you accept Laidlaw as 
being settled law?
    Judge Alito. Well, Magnesium Electron presented the 
question of whether we had a case or controversy under Article 
III, and that's the fundamental limit on our jurisdiction. The 
Supreme Court has said that we do not have a case or 
controversy before us if we do not have a party that has 
constitutional standing which requires injury in fact. And the 
issue was whether the plaintiffs in that case had established 
injury in fact. There was a plant that was discharging certain 
things into a creek, which eventually emptied into the Delaware 
River, and the plaintiffs in the case alleged that they enjoyed 
the Delaware River in a variety of ways. They ate fish from the 
river. They drank water from the river. They walked along the 
river.
    But there was no--there was nothing in the evidence--and 
Judge Lewis agreed on this. Judge Roth wrote the opinion and I 
agreed with Judge Roth, and Judge Lewis agreed with us on this 
point, there was nothing in the record.
    Senator Leahy. But didn't Judge Lewis agree with you on the 
legal point, but he suggested sending it back to the lower 
court to determine whether there were facts to give standing? I 
mean, we all agree you can't be in a case if you don't have 
standing, but didn't Judge Lewis say, send it back to the lower 
court so they can determine on the facts whether there might be 
standing?
    Judge Alito. The evidence that was before us did not show 
that there was any standing on the part of the plaintiffs. 
There was no evidence of harm to the Delaware River in any way 
from the discharges and that was the basis of Judge Roth's 
opinion which with I agreed. As I recall, Judge Lewis's point 
was that the case should go back to the district court so that 
the plaintiffs could have an opportunity to present additional 
evidence. But as I recall, they were not even arguing before us 
that they had additional evidence. They were not arguing before 
us, as I recall, that we have additional evidence and we'd like 
the opportunity to go back to the district court to present it. 
That's my recollection of the matter.
    Senator Leahy. And the other part of my question is 
Laidlaw, is it settled law?
    Judge Alito. Well, Laidlaw is a precedent on the Supreme 
Court and my answer to the question there is the same. It's 
entitled to the respect of stare decisis.
    Chairman Specter. Thank you, Senator Leahy.
    Senator Hatch?
    Senator Hatch. Judge Alito, I just want to clarify a few 
matters. In his questioning this morning, Senator Durbin from 
Illinois I think apparently misstated what Chief Justice 
Roberts said during his confirmation hearing. Senator Durbin 
claimed that now the Chief Justice said that Roe was the 
settled law of the land. In fact, that exchange that Senator 
Durbin referred to was made during the confirmation process for 
Judge Roberts to the Circuit Court of Appeals for the District 
of Columbia, where he would have to admit that that would be 
settled law for him in that court. It is beyond question that 
for a circuit court nominee, the Supreme Court's pronouncements 
on specific questions are binding precedents and will be the 
settled law of the land.
    Moreover, contrary to the distinguished Senator from 
Illinois's suggestion, then-Judge Roberts's testimony in his 
recent confirmation hearing, and Judge, your testimony today 
and yesterday, you have both been entirely consistent in this 
particular matter. I just wanted to clarify that because there 
is a difference between a nominee for the circuit court of 
appeals saying that something is settled law that he or she has 
to be bound by than by somebody who is a nominee for the 
Supreme Court, and that is just a matter of clarification that 
I would like to make at this time.
    Now, yesterday, you were asked, I think, some 340 questions 
by 15 Senators and you are getting a bunch today. I am told 
that you felt that you had to decline to answer only about 5 
percent of them. That is even lower than previous Supreme Court 
nominees, by far in most cases. This hearing has hopefully 
provided an opportunity for you to address our concerns and 
answer some of the criticisms from members of this Committee. 
But, of course, there is always a battle waged outside of this 
Committee room by the special interest groups, who are also 
making charges and launching really unfair attacks on you. Now, 
these attacks typically go directly across the airwaves or the 
Internet with hardly a chance to even catch them, let alone 
address them or rebut them or correct them. So I want to give 
you a chance to respond to some of these attacks by some of 
these left-wing groups, many of which are certainly less than 
responsible and, in my view, pretty reprehensible in what they 
do in these matters.
    One group says in a press release that in the Chittister 
case and at other times in your career on the bench, you go out 
of your way to rule against workers. This group claims what it 
calls your views and biases are strong evidence that you would, 
in their words, quote, ``rarely rule in favor of those seeking 
justice in the courts.'' I think that is a good example of how 
misleading some of these groups can actually be, where they are 
looking only for results in certain cases rather than upholding 
of the law itself in those particular cases. In that particular 
case, they are apparently willing to ignore two things about 
the cases they discuss. The ignore the facts, they ignore the 
law, and that is all, just the facts and the law. But they also 
ignore what you have written and they ignore what you have said 
here today.
    How about that criticism, Judge? In Chittister, did you go 
out of your way to rule against workers? What were the facts 
and the law in the case and why did you think that they 
required the result that you finally upheld in that case?
    Judge Alito. I felt the result was dictated by Supreme 
Court precedent, and I wasn't the only one who thought that. 
That was a unanimous decision of our panel. Judge McKee and, I 
believe, Judge Fulham from the District Court in Philadelphia 
were on that panel. They all agreed, and it is my recollection 
that seven other courts of appeals have decided the case the 
same way. More than 20 court of appeals--that issue the same 
way. More than 20 court of appeals judges, including judges 
appointed by all recent Presidents, have reached that decision.
    I think when you look at the law and the facts of the case, 
it becomes clear why there is so much unanimity on the 
question. Whether one likes the test or not, the test that we 
in the lower courts have to apply in this area is the 
congruence and proportionality test from City of Boerne, and 
therefore, what we had to do was to see whether there was a 
record of discrimination relating to the particular provision 
that was at issue in Chittister, which had to do with leave for 
personal illness. So there would have to be some evidence that 
State employers had given more leave for personal illness to 
men than women, or more leave for personal illness to women 
than men, and there was no evidence whatsoever on this issue. 
That's why all of these courts of appeals reached the 
conclusion that they did in Chittister.
    Senator Hatch. When somebody takes an unfair crack at me, I 
can come back at them as a Member of the U.S. Senate. But 
because you are a judge and not a politician, you really don't 
have the opportunity, really, to address fully these 
misrepresentations of your views, and there have been plenty of 
them in this process that you have had to undergo. So I wanted 
to give you some opportunity here.
    For example, one liberal group sent an e-mail around just 
yesterday that claimed you were not responsive to a question 
about whether the President can immunize executive branch 
officials who directly violate the law. Now, is it an accurate 
representation of your views to suggest that you argued that 
executive branch officials should be fully immunized for their 
violations of the law?
    Judge Alito. No, it is not a correct expression of my 
views. The President, like everybody else, has to follow the 
Constitution and the laws. He has to follow the Constitution at 
all times and he has to follow all the laws that are enacted 
consistent with the Constitution. That's clear.
    Now, on the Mitchell v. Forsythe case, which they may be 
referring to, that was simply--I was simply saying that a 
certain argument relating to immunity from civil damages was an 
argument that had been made before and it was an argument that 
was being requested by our client in the case who was being 
sued in his individual capacity, and I recommended that we not 
make the argument, but I said, I don't dispute this argument, 
and that's all that was involved there.
    Senator Hatch. Let me just say this. I want to allow you to 
respond to a tactic that has been used by several of our 
colleagues here in these hearings. They observed results in 
some past cases and then they expressed concerns that entire 
groups or categories of litigants might not be able to get a 
fair shake by you in the court. One of them yesterday wondered 
whether the average citizen, quote, ``can get a fair shake from 
you when the government is a party.'' Another did the same 
thing this morning. It is one thing to express disagreement 
with your decisions, and, of course, as I said before, to look 
only at results and ignore the facts and the law is 
fundamentally misguided and it is a misleading way of 
evaluating judicial decisions.
    But let us be clear what is being floated around here with 
this type of tactic. Those who say, because you ruled this way 
in the past, litigants cannot get a fair shake in the future, 
are saying, Judge, that you are biased, that you prejudge these 
cases, that you are less than fair and impartial, something 
that virtually everybody who knows you, including all of the 
people who testified before the American Bar Association, say 
is false, that you prejudge these cases, you are less than fair 
and impartial. That is a very serious charge, even if it is 
cloaked in suggestions and innuendo.
    Judge, you previously mentioned you oath of office, an oath 
before God to do equal justice to everyone without regard to 
who the parties are. How do you react to this suggestion that 
the way you have ruled in the past shows or even suggests that 
you are biased and that entire categories of litigants may not 
get a fair shake before you?
    Judge Alito. Well, I reject that. I believe very strongly 
in treating everybody who comes before me absolutely equal. I 
take that oath very seriously and I have tried to do my very 
best to abide by that during my 15 years on the bench.
    Now, I don't think a judge should be keeping a scorecard 
about how many times the judge votes for one category of 
litigant versus another in particular types of cases. That 
would be wrong. We are supposed to do justice on an individual 
basis in the cases that come before us. But I think that if 
anybody looks at the categories of--looks at the cases that I 
have voted on in any of the categories of cases that have been 
cited, they will see that there are decisions on both sides. In 
every type of employment discrimination case, for example, 
there are decisions on both sides.
    Senator Hatch. Most employment discrimination cases really 
are decided at the lower level.
    Judge Alito. Most of them are, yes.
    Senator Hatch. And when they get up to your level, it is 
generally decided on technical or procedural bases. Am I wrong 
in that?
    Judge Alito. No, that is correct, Senator.
    Senator Hatch. And sometimes you have to uphold the law, 
even though you may be uncomfortable with the law yourself.
    Judge Alito. We have to decide the cases on the facts that 
are in the record and the law that applies.
    Senator Hatch. That is right. Let me just ask you about a 
few of your cases, because it is easy to cherry-pick these 
cases and find a sentence here you don't like and a sentence 
there you don't like and criticize you in the process as though 
you are not being fair when, in fact, everybody who knows you 
knows your impeccable reputation for fairness, dignity, 
decency, honor, and capacity, and that is why you got the 
highest rating from the American Bar Association and deserve 
it, and you twice got that, and I know how tough they can be.
    But let me just give you a couple of illustrations. Zubi v. 
AT&T. You were the lone dissenter in that case. What did you 
dissent from?
    Judge Alito. I dissented from a majority decision that held 
that Mr. Zubi, who was claiming racial discrimination, would 
not have his day in court because of the statutory--
    Senator Hatch. You would have given him his day in court, 
right--
    Judge Alito. I would have, yes--
    Senator Hatch [continuing]. If it had been up to you?
    Judge Alito. Yes.
    Senator Hatch. All right. How about U.S. v. Kithcart? I 
don't expect you to remember all these cases, and if you don't, 
just raise your hand and I will try and recite them, but this 
was a Fourth Amendment case. You held that the Fourth Amendment 
does not allow police to target drivers because of the color of 
their skin, is that right?
    Judge Alito. That is right. That was essentially a case of 
racial profiling and I wrote an opinion holding that that was a 
violation of the Fourth Amendment.
    Senator Hatch. And that was even after a police officer 
received a report that two black men in a black sportscar had 
committed three robberies, and she pulled over the first black 
man in a black sportscar, or the first black sportscar she saw. 
But you ruled for the defendant and against racial profiling in 
that case.
    Judge Alito. That's correct, Senator.
    Senator Hatch. OK. In Thomas v. Commissioner of Social 
Security, just to mention a few of these cases to show that you 
are going to do what is right, regardless. Sometimes in these 
employment cases and even other cases, when they get up on 
appeal, they are fairly technical in nature and you have got to 
do what is right under the law. But in Thomas v. Commissioner 
of Social Security--do you recall that case?
    Judge Alito. I do, yes.
    Senator Hatch. What did you do there?
    Judge Alito. Well, that was a case where I think that the 
Supreme Court thought that my opinion had gone too far in favor 
of the little guy who was involved there. That was a--
    Senator Hatch. This was a woman with disabilities, right?
    Judge Alito. That's right, a woman who was trying to get--
    Senator Hatch. And she sought Social Security benefits.
    Judge Alito.--Social Security disability benefits, and in 
order to be eligible for those, she had to be unable to perform 
any job that existed in substantial numbers in the national 
economy.
    Senator Hatch. She had a job as an elevator operator, if I 
recall.
    Judge Alito. That's right. As the case was presented to us, 
the only job that she could perform was her past job, which was 
as an elevator operator, and what I said was that you can't 
deny somebody Social Security benefits because the person is 
able to do a job that no longer exists in any substantial 
numbers in the national economy. You can't deny benefits based 
on a hypothetical job. It has to be based on a real job. And 
the Supreme Court didn't see it that way, but it seems to me 
that the way we ruled was consistent with what I thought--
    Senator Hatch. So in other words, you stood up for the 
person seeking rights here. The Supreme Court overruled you.
    Judge Alito. That's right.
    Senator Hatch. Oh my goodness. In the landmark case of, how 
do you pronounce it, Fatin v. INS?
    Judge Alito. ``Fatten,'' I think.
    Senator Hatch. This involved an Iranian woman--Iranian 
women who refused to conform to their government's gender-
specific laws and social norms, whether or not they should be 
granted asylum in America. How did you rule in that case?
    Judge Alito. I think that was one of the first cases in the 
Federal courts to hold that requiring a woman to be returned to 
a country where she would have to wear a veil and conform to 
other practices like that would amount to persecution if that 
was deeply offensive to her and that subjecting a woman to 
persecution in Iran or any other country to which she would be 
returned based on feminism would be persecution on the basis of 
political opinion.
    Senator Hatch. I have got another nine or ten cases and 
perhaps even more than I could go through, but the point is 
that whenever they deserve to win, they win, regardless of 
whether they are rich or poor, whether they are powerful or 
not. You basically upheld the law in these cases, is that 
correct?
    Judge Alito. That is what I've tried to do.
    Senator Hatch. And where you have been in dissent, you have 
tried to do it to the best of your ability.
    Judge Alito. That's right, Senator.
    Senator Hatch. OK. Let me just mention one other thing. 
This business of Vanguard, when you signed that back in 1990, 
12 years before the matter for which you are being criticized, 
not by anybody who has any ethical, professorial, or other 
knowledge, not by the American Bar Association, not by the vast 
majority of lawyers who look at these matters, that particular 
statement said, will you during your, quote, ``initial 
service.'' It seems to me those are important words. You 
haven't tried to hide behind that. You have just honestly 
explained that, basically, you made a mistake, which really 
wasn't a mistake according to all the ethics people and 
according to the American Bar Association. And now, instead of 
the original accusation and the original implication, you are 
being accused of not being forthcoming because of that original 
statement on your application form, to the Committee 
questionnaire.
    But the fact of the matter is that, quote, ``initial 
service'' doesn't mean 12 years away, does it, when there is no 
chance in the world that you had ever received any monetary 
benefit from Vanguard?
    Judge Alito. Well, I don't think initial service means 12 
years away--
    Senator Hatch. Neither do I and neither does anybody who 
cares about justice and about what is right in this matter. So 
to blow that out of proportion like your adversaries have done 
is really pretty offensive. I could go on and on and be 
stronger on that, but the fact of the matter is, I just wanted 
to make that statement. ``Initial service,'' unquote, is pretty 
clear.
    Let me just say that, sometimes, I just can't make sense 
out of what some of your critics are saying. On the one hand, 
they want to portray you as some sort of a robotic patsy for 
big government who does not think for himself. Yesterday, one 
of my Democratic colleagues even suggested that the Bush 
administration was trying to manipulate you to give responses 
favorable to them in this hearing. Now, you quite rightly said, 
and I think you were fairly restrained about saying it, that 
you have been a judge for 15 years and are quite capable of 
thinking for yourself.
    On the other hand, then your critics then turn it around 
and attack you for supposedly dissenting too much, as if you 
should actually stop doing all that thinking for yourself and 
just fall in line with the majority in all of your cases.
    Now, Judge, I know that appeals court judges--that the 
appeals courts themselves are collegial bodies, but how do you 
view dissenting from your colleagues? How do you decide when to 
do it? How do you know how often you dissent in your court, or 
do you know how often you dissent in your court and whether it 
is out of step with your colleagues? Could you give us some 
answers there?
    Judge Alito. Yes. I think that it is important for a multi-
member court to issue a judgment and to speak clearly to the 
lower courts and the parties. And so when I've been in a 
position where taking an independent position would result in 
the absence of a judgment. I had gone out of my way to make 
sure that there was a judgment, that there was a majority 
opinion. An example of that is the Rappa case where we were 
really divided three ways, and my position was close to Judge 
Becker's opinion, and Judge Becker had the opinion-writing 
assignment, and I issued an opinion saying, ``I don't 
completely agree with the way Judge Becker analyzed this issue. 
I would analyze it differently. But I'm joining his opinion so 
that there is a majority opinion, so that there is a clear 
statement of the law for the guidance of the parties.'' I think 
that's the first principle.
    Second is that judges should be respectful of each other's 
views, and I don't have any--I have tried never to write a 
dissenting opinion or respond in a majority opinion to a 
dissenting opinion in a way that was not completely respectful 
of the views of the other members of the court.
    It's useful to dissent if there's a chance that the case 
may go en banc, and that's happened in a number of cases where 
I've dissented. It's useful to dissent if there is a chance 
that the case may go to the Supreme Court and so that the 
Supreme Court will have the benefit of a different expression 
of views, and there have been cases--
    Senator Hatch. Well, would it surprise you to know that you 
have dissented only 79 times in nearly 5,000 cases in which you 
have participated? That comes to about 1.6 percent, which is 
considerably lower than most others who have been on the 
appellate courts. And I would observe that the Washington Post 
concluded in an editorial that your dissenting opinions ``are 
the work of a serious and scholarly judge whose arguments 
deserve respect.'' I certainly agree wholeheartedly with that 
assessment.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Hatch.
    Senator Kennedy?
    Senator Kennedy. Thank you very much, Mr. Chairman.
    Judge Alito, I hadn't planned to get into Vanguard on this 
particular round, but I chaired those hearings when you were 
promoted to the circuit court, and I was also the one that 
filed those questions which you responded to. And you responded 
under oath when you promised the Committee that you would 
recuse yourself on Vanguard issues.
    Now I am just hearing from you that you believe that that 
pledge was somehow conditioned. Unlike my friend--and he is my 
friend--from Iowa that says, well, a pledge is just a pledge, 
it is like any political pledge around here. It is a political 
promise and doesn't carry much weight.
    That is not my opinion, and I don't think it is the opinion 
of most of the Members of this body. You made a pledge to the 
Senate, effectively to the American people, that you were going 
to recuse yourself. Now you say, well, it was just for an 
initial time, and I think 12 years is more than I really had in 
mind, or you just qualified your answer.
    How long, when you made that pledge and that promise to the 
Committee, how long did you intend to keep it?
    Judge Alito. Well, Senator--
    Senator Kennedy. And when that time was up, did you ever 
imagine that you might get back to the Committee and say, ``I 
believe my time is up on Vanguard''?
    Judge Alito. Well, Senator, the statement that I--the 
nature of the question that I was responding to did not figure 
in the way the Monga case was handled, and I thought I made 
that clear yesterday. I was following throughout my time on the 
bench the practice of going beyond the code, and had I focused 
on this issue when the matter came before me, I would have 
recused myself at that time, as I later did.
    But in answer to Senator Hatch's question, looking at that 
question today and looking at the answer, the question was: 
What do you intend to do during your initial period of service? 
And I think that that's what the answer has to be read as 
responding to. But just to be clear, that was not--I'm not 
saying that that's why this played out the way it did. I'm just 
saying that's how I think the question and the answer--that's 
how I think the question and any response to the answer by any 
nominee needs to be interpreted.
    Senator Kennedy. Well, if there is someone that can just 
understand what you just told us, I would be interested in it, 
because I don't.
    Senator Hatch. Well, I will be glad to explain it.
    Senator Kennedy. Well, if--Mr. Chairman.
    [Laughter.]
    Senator Kennedy. You in response to Senator Hatch did not 
believe you were bound by the promise because you said in your 
mind you felt that it was just for the initial period of it. 
That is another issue, because initially it was meant to 
include the investments that you had at that particular time. 
You might have those investments and then discard an investment 
and, therefore, no longer have a conflict. That is what--as the 
asker of the question had intended. But you have added another 
wrinkle to it. You have just indicated that when you made a 
pledge to the Committee that you were going to recuse yourself, 
that you thought that at some time you were going to be 
released. And I would just like to know how long that was going 
to be. Was that going to be 2 years? Was it going to be 3 
years? Was it going to be 5 years? When did you feel that you 
were going to be released if that--
    Judge Alito. Well, Senator, I--
    Senator Kennedy [continuing]. If we followed your 
interpretation?
    Judge Alito. Senator, I did not rely on that time 
limitation in relation to what I did in the Monga case, and I 
hope I have made that clear. If I didn't in my previous answer, 
I do want to make it clear. I did not rely on that in my 
handling of the Monga case.
    Looking at the question now, where it says ``initial period 
of service,'' I would say that 12 years late is not the initial 
period of service. But that was not--
    Senator Kennedy. When did it stop, then? When did you think 
that your pledge to the Committee halted, after how many years? 
Six months?
    Judge Alito. Well, Senator, I don't--
    Senator Kennedy. What did you intend at the time that you 
made the pledge? What was in your mind at that time? I am not 
interested in what is in your mind at this time, but what was 
in your mind at that time.
    Judge Alito. I can't specifically recall what was in my 
mind at that time, but I'll tell you what I'm pretty sure I had 
in mind. I was not a judge, and I was being considered for a 
judicial position. And what I was trying to express was 
basically the policy that I followed during all my years on the 
bench, which is to bend over backwards to make sure that I 
didn't do anything that came close to violating the code of 
conduct or give anybody the impression that I was doing 
anything that was improper.
    Senator Kennedy. The last question on this is: How long, 
then, when you made the promise under oath to the Committee 
that you were going to recuse yourself--and you understand that 
now to be--in your own interpretation just to be the initial 
time--how long did you think that that pledge and promise 
lasted?
    Judge Alito. Senator, as I said--
    Senator Kennedy. That is my question.
    Judge Alito. And, Senator, as I said, I can't tell you 15 
years later exactly what I thought when I read that question. 
It refers to the initial period of service, and looking at it 
now, it doesn't seem to me that 12 years later is the initial 
period of service.
    Senator Kennedy. Well, my question to you, which I guess 
I'm not going to get an answer to, is: When did it? Is 10 
years--how about 3 years, is that--
    Judge Alito. Well, I don't know exactly what the time 
limitation would be, but 12 years does seem to me not to be the 
initial period.
    Senator Kennedy. We will come back. I just want to mention, 
in fairness to my friend and colleague--both my friends, 
Senator Hatch and Senator Durbin, in Senator Hatch's quoting of 
Senator Durbin that you responded on the question of the Roe v. 
Wade in the--when you were in the circuit court, I have here 
the record that said--of the hearings of Roberts, and the 
question was asked by Senator Specter to Judge Roberts during 
the time of his consideration for the Supreme Court. So I want 
that to be--Senator Durbin can clarify the record, but I wanted 
that to be clarified so that there wasn't a confusion about it.
    Now, in the time that I have, Judge Alito, I listened 
carefully to responses that you gave to Senator Leahy about the 
CAP organization at Princeton. And I listened to other 
responses that you gave to our colleagues, and again to Senator 
Durbin earlier today. But I have just some questions on this to 
at least try to finalize, at least in my mind, and it might be 
useful in the Committee's mind as well.
    You had indicated in your 1985 job application that you 
were a member of the Federalist Society for Law and Public 
Policy and a regular participant at its luncheon and a member 
of the Concerned Alumni of Princeton University, a conservative 
alumni group. And you said yesterday that you racked your 
memory about the issue and really had no specific recollection 
of the organization. Is that correct?
    Judge Alito. I have no specific recollection of joining the 
organization.
    Senator Kennedy. And you also said yesterday and today to 
Senator Durbin that you very likely joined CAP because of your 
concern over the ROTC program being kicked off campus. Is that 
correct?
    Judge Alito. Well, what I said specifically was that I 
racked my memory as to why I might have joined, and the issue 
that had bothered me for a period of time as an undergraduate 
and in the 1980s, around the time of this--when I made this 
statement, was the issue of ROTC. This was the issue about the 
administration of Princeton that bothered me. I had a high 
regard for Princeton in many respects in general and had 
participated in a lot of their activities. But this issue 
bothered me a great deal at various times. That's what I said.
    Senator Kennedy. And, finally, you said yesterday that you 
very likely joined CAP around 1985 just before you were 
applying to the high-level job in the Justice Department under 
President Ronald Reagan. I think that is correct.
    Judge Alito. Senator, what I specifically said, as I 
recall, is that if I had done anything substantial in relation 
to this group, including renewing my membership, I would 
remember that. And I do not remember that.
    Senator Kennedy. So I want to ask a few things that I hope 
can clear this up. You have no memory of being a member. You 
graduated from Princeton in 1972, the same year CAP was 
founded. You call CAP a conservative alumni group.
    It also published a publication called Prospect, which 
includes articles by CAP members about the policies that the 
organization promoted. You are familiar with that?
    Judge Alito. I don't recall seeing the magazine. I might--
    Senator Kennedy. But you know that they had a magazine?
    Judge Alito. I have been--I have learned of that in recent 
weeks.
    Senator Kennedy. So a 1983 Prospect essay titled ``In 
Defense of Elitism'' stated, ``People nowadays just don't seem 
to know their place. Everywhere one turns, blacks and Hispanics 
are demanding jobs simply because they're black and Hispanic. 
The physically handicapped are trying to gain equal 
representation in professional sports, and homosexuals are 
demanding that Government vouchsafe them the right to bear 
children.''
    Did you read that, that article?
    Senator Feinstein. Finish the last line.
    Senator Kennedy. Finish the last line. ``And homosexuals 
are''--
    Senator Feinstein. ``And now here come women.''
    Senator Kennedy. If the Senator would let me just--
    Senator Feinstein. Yes, I--
    [Laughter.]
    Senator Kennedy. Can I get 2 more minutes from my friend? 
Just to continue along--I apologize, Judge. Did you read this 
article?
    Judge Alito. I feel confident that I didn't. If that--I am 
not familiar with the article, and I don't have a context in 
which those things were said. But they are antithetical to--
    Senator Kennedy. Well, could you think of any context that 
they could be--
    Judge Alito. It's hard to imagine. If that's what anybody 
was endorsing, I disagree with all of that. I would never 
endorse it. I never have endorsed it. Had I thought that that's 
what this organization stood for, I would never associate 
myself with it in any way.
    Senator Kennedy. The June 1984 edition of Prospect magazine 
contains a short article on AIDS. I know that we have come a 
long way since then in our understanding of the disease, but 
even for that time, the insensitivity of statements in this 
article are breathtaking. It announces that a team of doctors 
has found that the AIDS virus in Rhesus monkeys was similar to 
the virus occurring in human beings. And the article then goes 
on with this terrible statement: ``Now the scientist must find 
humans--or, rather, homosexuals to submit themselves to 
experimental treatment. Perhaps Princeton's Gay Alliance may 
want to hold an election.''
    You didn't read that article?
    Judge Alito. I feel confident that I didn't, Senator, 
because I would not have anything to do with statements of that 
nature.
    Senator Kennedy. In 1973, a year after you graduated, and 
during your first year at Yale Law School, former Senator Bill 
Bradley very publicly disassociated himself with CAP because of 
its right-wing views and unsupported allegations about the 
university. His letter of resignation was published in the 
Prospect, garnered much attention on campus and among the 
alumni.
    Were you aware at the time of that, at the time that you 
listed the organization in your application?
    Judge Alito. I don't think I was aware of that until recent 
weeks when I was informed of it.
    Senator Kennedy. And in 1974, an alumni panel including 
now-Senator Frist unanimously concluded that CAP had presented 
a distorted, narrow, hostile view of the university. Were you 
aware of that at the time of the job application?
    Judge Alito. I was not aware of it until very recently.
    Senator Kennedy. In 1980, the New York Times article about 
the coeducation of Princeton, CAP is described as an 
organization against the admittance of women. In 1980, you were 
working as an Assistant U.S. Attorney in Trenton, New Jersey. 
Did you read the New York Times? Did you see this article?
    Judge Alito. I don't believe that I saw the article.
    Senator Kennedy. And did you read a letter from CAP mailed 
in 1984--this is the year before you put CAP on your 
application--to every living alumni--to every living alumni, so 
I assume you received it--which declared Princeton is no longer 
the university you knew it to be. As evidence, among other 
reasons, it cited the fact that admission rates for African-
Americans and Hispanics were on the rise while those of alumni 
children were falling, and Princeton's president, at the time, 
had urged the then-all-male eating clubs to admit females.
    And in December 1984, President William Bowen responded by 
sending his own letter. This is the president of Princeton--he 
responded by sending his own letter to all of the alumni in 
which he called CAP's letter callous and outrageous. This 
letter was the subject of a January 1985 Wall Street Journal 
editorial, congratulating President Bowen for engaging his 
critics in a free and open debate. This would be right about 
the time that you told Senator Kyl you probably joined the 
organization. Did you receive the Bowen letter or did you read 
the Wall Street Journal, which was pretty familiar reading for 
certainly a lot of people that were in the Reagan 
administration?
    Judge Alito. Senator, I testified to everything that I can 
recall relating to this and I do not recall knowing any of 
these things about the organization, and many of the things 
that you've mentioned are things that I have always stood 
against. In your description of the letter that prompted 
President Bowen's letter, there is talk about returning the 
Princeton that used to be. There is talk about eating clubs, 
about all-male eating clubs. There is talk about the admission 
of alumni children. There is opposition to opening up the 
admissions process.
    None of that is something that I would identify with. I was 
not the son of an alumnus. I was not a member of an eating 
club. I was not a member of an eating facility that was 
selective. I was not a member of an all-male eating facility 
and I would not have identified with any of that. If I had 
received any information at any point regarding any of the 
matters that you have referred to in relation to this 
organization, I would never have had anything to do with it.
    Senator Kennedy. Do you think that these are conservative 
views?
    Judge Alito. Senator, whatever I knew about this 
organization in 1985, I identified as conservative. I don't 
identify those views as conservative. What I do recall as an 
issue that bothered me in relation to the Princeton 
administration as an undergraduate and continuing into the 
1980s was their treatment of the ROTC unit and their general 
attitude toward the military, which they did not treat with the 
respect that I thought was deserving. The idea that it was 
beneath Princeton to have an ROTC unit on campus was an 
offensive idea to me.
    Senator Kennedy. Just moving on, you mentioned--and I only 
have a few minutes left--you joined CAP because of your concern 
about keeping ROTC on campus. Now, ROTC was a fairly 
contentious issue on Princeton's campus in the early 1970s. The 
program was slated to be terminated in 1970, when you were an 
undergraduate. By 1973, 1 year after you graduated, ROTC had 
returned to campus and was no longer a source of debate. And 
from what I can tell, by 1985, it was basically a dead issue. 
In fact, my staff reviewed the editions of Prospect from 1983 
to 1985 and could find only one mention of ROTC, and it appears 
in a 1985 issue released for homecoming that year that says, 
``ROTC is Popular Once Again.'' Here is the Prospect, 1985, 
``ROTC is Popular Once Again.'' This is just about the time 
that you were submitting this organization in your job 
application.
    Judge Alito. Senator--I'm sorry.
    Senator Kennedy. Briefly, please.
    Judge Alito. It's my recollection that this was a 
continuing source of controversy. There were people on the 
campus, members of the faculty, as I recall, who wanted the 
unit removed from the campus. There was certainly controversy 
about whether students could get credit for courses, which I 
believe was a military requirement for the maintenance of the 
unit. There was controversy, as I recall, about the status of 
the instructors, whether they could be given any kind of a 
status in relation to the faculty. I don't know the exact 
dates, but it's my recollection that this was a continuing 
source of controversy.
    Senator Kennedy. Mr. Chairman, my time is running out. I 
had wanted to just wind up on a few more brief questions on 
this. But I have to say that Judge Alito, that his explanations 
about his membership in this sort of radical group and why you 
listed it on your job application are extremely troubling. In 
fact, I don't think that they add up.
    Last month, I sent a letter to Senator Specter asking a 
number of questions about your membership in CAP and I asked 
Senator Specter to make a formal Committee request for the 
documents in the possession of the Library of Congress as part 
of the William Rusher papers. Mr. Rusher was the publisher of 
the National Review, was an active founder and leader of CAP. 
Do you have any hesitation or reason for us not to look at 
those documents?
    Judge Alito. They're not my documents, Senator, and I have 
no--
    Senator Kennedy. Do you think they would be helpful to us?
    Judge Alito [continuing]. Opinion about it whatsoever.
    Senator Kennedy. Do you think they would be helpful?
    Judge Alito. Senator, I don't believe I had any active 
involvement with this group.
    Senator Kennedy. Well--
    Judge Alito. I have racked my memory and I can't recall 
anything, and if I had been involved actively in any way in the 
group, I'm sure that I would remember that.
    Senator Kennedy. Mr. Chairman, if I could have your 
attention, I think we ought to vote on issuing a subpoena to 
the custodian of those CAP records. I want to do that at an 
appropriate time. I move that the Committee go into executive 
session for the purpose of voting on the issuance of the 
subpoena of those records.
    Chairman Specter. We will consider that, Senator Kennedy. 
There are many, many requests which are coming to me from many 
quarters. Quite candidly, I view the request, if it is really a 
matter of importance, you and I see each other all the time. 
You have never mentioned it to me. I do not ascribe a great 
deal of weight. We actually didn't get a letter, but--
    Senator Kennedy. You did get a letter, are you saying?
    Chairman Specter. Well, now wait a minute. You don't know 
what I got. I am about to--
    Senator Kennedy. Of course, I do, Senator, since I sent it.
    Chairman Specter. Well, the sender--
    Senator Kennedy. I have got it right here.
    Chairman Specter [continuing]. Doesn't necessarily know 
what the recipient gets, Senator Kennedy.
    Senator Kennedy. I have got it right here.
    Chairman Specter. You are not in the position to say what I 
received. If you will bear with me for just one minute--
    Senator Kennedy. But I am in a position to say what I sent 
to you on December 22, so I renew my--
    Chairman Specter. You are in a position to tell me what you 
sent.
    Senator Kennedy. I renew my request, Senator, and if I am 
going to be denied, then I would appeal the decision of the 
Chair. I think we are entitled to this information. It deals 
with the fundamental issues of equality and discrimination. 
This nominee has indicated he has no objection to us seeing 
these issues. We have gone over the questions and we are 
entitled to get that kind of information. And if you are going 
to rule it out of order, I want to have a vote on that here on 
our Committee.
    Chairman Specter. Well, don't be premature, Senator 
Kennedy. I am not about to make a ruling on this state of the 
record. I hope you won't mind if I consider it, and I hope you 
won't mind if I give you the specifics that there was no letter 
which I received. I take umbrage at your telling me what I 
received. I don't mind your telling me what you mailed. But 
there is a big difference between what is mailed and what is 
received and you know that.
    We are going to move on now. Senator Grassley?
    Senator Kennedy. Mr. Chairman, I would appeal the ruling of 
the Chair on this. I want--
    Chairman Specter. There has been no ruling of the Chair, 
Senator Kennedy.
    Senator Kennedy. But my request is that we go into 
executive session for the sole purpose of voting on a subpoena 
for these records that are held over at the Library of 
Congress, for that purpose and that purpose only, and if I am 
going to be denied that, I would want to give notice to the 
Chair that you are going to have it again and again and again 
and we are going to have votes of this Committee again and 
again and again until we have a resolution. I think that--
    Chairman Specter. Well, Senator Kennedy, I am not concerned 
about your threats to have votes again, again, and again, and I 
am the Chairman of this Committee and I have heard your request 
and I will consider it, and I am not going to have you run this 
Committee and decide when we are going to go into executive 
session.
    We are in the middle of a round of hearings. This is the 
first time you have personally called it to my attention and 
this is the first time that I have focused on it and I will 
consider it in due course.
    Now, we will move to Senator Grassley for 20 minutes.
    Senator Grassley. We have gone over this same ground many 
times. I suppose, maybe to some extent, both sides are guilty 
of that. We have an old saying in the Midwest about if a horse 
is dead, quit beating it, and I think several horses have been 
beaten to death, particularly on the other side, and you have 
been very consistent in your answers and I thank you. I think 
that that speaks to the intellectual honesty of your positions.
    It is kind of like we are in the fourth quarter of a 
football game and you are the quarterback and your team is way 
ahead here in the fourth quarter. Opponents are very desperate, 
trying to sack you, and aren't doing a very good job of it. 
They haven't hit you all day now for 2 days. You are going to 
keep getting these last-minute ``Hail Marys'' thrown at you, so 
just bear with us.
    I want to compliment you, first of all, before I ask some 
questions, and I just did to some extent about the consistency 
of your testimony, but I think it has been good. I think under 
very difficult circumstances, you have handled yourself very 
well, being responsive, forthright, thoughtful. I sense in you 
a person that is very sincere, and obviously, I don't know you 
except this appearance here and the small period of time we 
spent in my office. It seems like you have modesty. That is a 
breath of fresh air, demonstrating a command of and very much a 
respect for the law and the Constitution, of course.
    This is all stuff that we ought to be looking for in the 
tradition of Alexander Hamilton saying the role of the Senate 
is to make sure that only competent people get on the Court and 
that political hacks don't get on the Court. You are surely no 
political hack and you are very competent, and that has been 
demonstrated with your fair and open-minded approach to your 
being a judicial person.
    It is too bad that we are getting this misconstruing of 
your record or the answers, the claim that you have not written 
a single opinion on the merits in favor of a person of color 
alleging race discrimination on the job in your 15 years on the 
bench. I have looked at a lot of opinions you have given and it 
is just not true. Your record shows that you ruled in favor of 
minorities making allegations of racial discrimination in 
employment, not once but in a number of cases.
    The claim that you acted unethically in the Vanguard case 
just is not true. You did nothing improper and actually went 
beyond the rule to ensure compliance. The claim that you would 
support an unchecked Executive is just not true. Your record 
shows that you have repeatedly ruled against the government and 
that you have told us no one, including the President, is above 
the law.
    The claim that you have ruled the vast majority of the time 
against the claims of individual citizens in favor of the 
government and large corporations is just not true. The 
reality, as I see it, is that you have found in favor of the 
little guy in numerous cases, but because of who was right and 
who was wrong, not just because you have got a bias one way or 
the other. Your critics are, I think, grasping at any straw to 
tarnish your record, and that is unfortunate.
    Judge Alito, in your opening statement, you said, and I 
hope I quote you accurately, no person in this country, no 
matter how high or powerful, is above the law, and no person in 
this country is beneath the law. You didn't go into detail 
about what you meant. I think it is quite clear, above the law, 
but give us that diverse opinion, above the law versus beneath 
the law.
    Judge Alito. Every person has equal rights under the law in 
this country, and that involves people who have no money--that 
includes people who have no money. That includes people who do 
not hold any higher or prestigious position. It includes people 
who are citizens and people who are not citizens. Everybody is 
entitled to be treated equally under the law, and I think 
that's one of the greatest things about our country and about 
our legal system.
    Senator Grassley. You have been criticized for being 
hostile to voting rights based upon a statement that you wrote 
20 years ago when you were applying for a job with the Justice 
Department during the Reagan years. In fact, yesterday, some of 
my colleagues repeated that assertion, but it is apparent to me 
that it is off the mark.
    Specifically, in your 1985 statement, you wrote that you 
became interested in constitutional law and went to law school 
in part because you had some disagreements over Warren Court 
decisions, including some regarding reapportionment. Of course, 
that is understandable because the Warren Court had handed down 
very many decisions on reapportionment and they had been 
criticized as unworkable and that, in fact, the Supreme Court 
backed away from some. So there was disagreement, there was 
debate over those issues at that time, probably a lot less 
today but still recently there is going to be a case going to 
the Court.
    Some have questioned your 1985 statement regarding 
electoral reapportionment, that is how districts are drawn. 
They have suggested that you are hostile to the principle of 
one person/one vote. Clarify for me. Nowhere in your 1985 
statement did I find that you wrote that you ever disagreed 
with the principle of one person/one vote, did you?
    Judge Alito. I never disagreed with that principle, 
Senator. What I disagreed with when I was in college was the 
application of the principle in some of the--the elaboration of 
the principle in some of the late Warren Court decisions, and 
this grew out of my father's work with the New Jersey 
legislature. He had been the Secretary to the State 
Constitutional Convention in 1966, which redrew the provisions 
of the State Constitution relating to the composition of the 
legislature in an effort to bring it into compliance with the 
one person/one vote standard.
    These provisions, however, because they tried to respect 
county and municipal lines, as I recall, resulted in population 
deviations of under 10 percent, but those deviations were much 
higher than the ones that the Supreme Court said in the late 
decisions that I'm talking about would be tolerated regarding 
congressional districts. There was a belief that that principle 
would be applied across the board, both to congressional 
districts and to legislative districts, and that would have 
wiped out the plan that had been adopted. And I was quite 
familiar with all of this, and it seemed to me an instance of 
taking a good principle, which is one person/one vote, and 
taking it to extremes, requiring that districts be exactly 
equal in population, which did not seem to me to be a sensible 
idea.
    Senator Grassley. Isn't it true that the words ``one 
person/one vote'' weren't even in your statement?
    Judge Alito. Those words are not in my statement.
    Senator Grassley. Just to make--go ahead.
    Judge Alito. Just to add, Senator, that this issue of how 
nearly exact the districts had to be was an issue that was 
working its way to the Supreme Court or maybe it had actually 
been there--I've forgotten the exact chronology--at the time of 
the 1985 statement in Karcher v. Daggett, which involved the 
New Jersey Congressional districting plan.
    Senator Grassley. Well, just to make sure that there is no 
lingering confusion then, let me ask you straight out: Do you 
believe in the principle of one person/one vote?
    Judge Alito. I do. I think it's a fundamental part of our 
constitutional law.
    Senator Grassley. I find it curious that the same people 
who are questioning your integrity are either asserting or 
implying that you took a position against the principle of one 
man or one person/one vote when it is demonstrably false that 
you ever did.
    Further, on another point, some have suggested that you are 
hostile to women and minorities. Obviously, I don't think that 
is the case. I think you have demonstrated that sincerity in 
just very recent statements today.
    Now, in the Washington Post article, Alberto Rivas, a 
criminal defense lawyer and a Democrat, said you ``took steps 
to diversify an office''--this is when you were U.S. Attorney. 
You ``took steps to diversify an office that had a reputation 
as something of a white boys' club.'' Rivas said that when you 
hired him at the U.S. Attorney's Office in New Jersey, he was 
the only Latino lawyer in the office, and by the time you left 
that office, Rivas said there were four Latino lawyers as well 
as African-American lawyers. Your commitment also included 
advancing women attorneys and promoting them into senior 
positions during your tenure as U.S. Attorney. And I understand 
that when you started in that office, only two of the 15 
divisional leadership attorneys, chiefs or deputy chiefs, or 
attorneys in charge were women, and 2 years later you had more 
than doubled that number, and 5 of the 17 divisional leadership 
attorneys were women.
    Now, on the Federal bench, you have hired many women and 
minorities to serve as law clerks, and you had a discussion 
with Senator Brownback earlier mentioning some very 
complimentary things that Cathy Fleming, your former deputy 
chief and acting chief of the Special Prosecutions Unit in the 
New Jersey office, and David Walk, a former lawyer in that 
office, had to say about you and your treatment of women and 
minorities. They both, being lifelong Democrats, vouched in 
those statements for your qualities as a judge and your respect 
for individual rights.
    And, Mr. Chairman, if these letters--and they may have 
already been put in the record, but if they aren't in the 
record, I would like to have those put in the record.
    Chairman Specter. Without objection, they will be made a 
part of the record.
    Senator Grassley. Several of your dissents have been 
referred to today, or in the last 2 days, and so I wanted to 
comment on this suggestion that you are way out of the 
mainstream because you have written a lot of dissenting 
opinions. I don't find that you have written so many as a 
percentage of your total thing, but whatever reason you did it, 
you did it with good reason.
    But judges disagree all the time, and that is to be 
expected, and obviously there is nothing wrong with that. And, 
in fact, the Supreme Court has agreed with your dissents on 
several occasions, I recall from reading a synopsis of your 
opinions, and the reality is, as I see it, you don't disagree 
with majority opinions more frequently than most Federal 
appeals judges do in similar cases. And of more than 4,800 
cases--and that we got from the Washington Post. But of more 
than 4,800 cases that you decided during your tenure on the 
Third Circuit, you dissented only in 79 cases, which would be 
only 1.6 percent of all those cases.
    So, you know, I don't think that there is anything very 
extraordinary about the number of dissents or the dissents, and 
particularly when the Supreme Court has agreed with your 
opinion in reversing the Third Circuit.
    I would like to go to the issue of some historical basis 
for our constitutional law. The role of historical precedent in 
constitutional laws I find very interesting. For example, qui 
tam lawsuits have been a feature of Anglo-American law since 
the Middle Ages and have been a common feature of Federal 
statutory law even since the 1st Congress. Yet their 
constitutionality has never been clearly adjudicated by the 
Supreme Court.
    What role does longstanding, historical practice play in 
assessing the constitutionality of a Government act or 
practice?
    Judge Alito. Well, it can be very relevant in many 
instances. One place where this has come up is when a statute 
was passed by the 1st Congress--and this has happened on a 
number of occasions. The 1st Congress, which was responsible 
for the Bill of Rights, passed a number of statutes relating to 
provisions of the Bill of Rights, and the Supreme Court has 
often looked to those and said this is the same Congress that 
proposed the Bill of Rights, and they did this in enacting a 
statute, so that gives us a good indication of what they had in 
mind. And when there has been a legal practice that has existed 
for--that predated the Constitution, then that certainly is 
relevant in considering its constitutionality.
    Senator Grassley. I would like to have you think about 
legislative history and how you might use it or how often you 
might use it, or even how often--maybe if you got a rough 
quantifiable answer, how often you might use it. The Supreme 
Court, I think, has quite often stated legislative history of a 
particular bill would be critical in their interpretation of 
it. What is your position with respect to legislative history? 
How important is it to you? And how have you utilized history 
in interpreting statutes?
    Judge Alito. I have often looked to legislative history in 
the cases that I've written concerning statutory 
interpretation. And I think if anybody looks at those opinions, 
they will see that.
    When I interpret a statute, I do begin with the text of the 
statute. I think that certainly is the clearest indication of 
what Congress as a whole had in mind in passing the statute. 
And sometimes the language of the statute is dispositive and it 
is really--the decision can be made based on the language of 
the statute itself.
    But when there is an ambiguity in the statute, I think it 
is entirely legitimate to look to legislative history, and as I 
said, I have often done that. I think it needs to be done with 
caution. Just because one Member of Congress said something on 
the floor, obviously that doesn't necessarily reflect the view 
of the majority who voted for the legislation. So it has to be 
done carefully and I think with a realistic evaluation of the 
legislative process, but I'm not one of the judges who thinks 
that you should never look to legislative history. I think it 
has its place.
    Senator Grassley. Are you familiar with the legal arguments 
that some opponents of the False Claims Act have made to the 
effect that its qui tam provisions are unconstitutional under 
Articles II and III? And if you are, do you have any opinion on 
those arguments that are used without prejudicing any review of 
it you might give?
    Judge Alito. Well, the issue hasn't come up before me. I 
have a little bit of familiarity with the arguments. And I 
don't think I--I think that all I can say on the question is 
that the qui tam statute is of historical origin, as you 
pointed out, and we have seen what it has produced in terms of 
tangible results in the cases that have been brought under the 
statute in recent years. And should an issue relating to its 
constitutionality come before me, either on the Third Circuit 
or the Supreme Court, then I would have to follow that whole 
judicial process that I've described and evaluate the arguments 
and certainly study the question much more thoroughly than I 
have done up to this point.
    Senator Grassley. You may have just answered this question, 
but I would like to get it explicitly on the record. Have you 
ever written or spoken publicly about the issue of the 
constitutionality of qui tam or any other provision of the 
False Claims Act, and if so, the circumstances and the context?
    Judge Alito. I'm quite sure I've never written or spoken 
about its constitutionality.
    Senator Grassley. Do you feel that you have any bias 
against the False Claims Act or Whistle-Blower Protection Act 
that would impact the ability of you to fairly decide cases 
involving those issues?
    Judge Alito. I certainly don't, Senator.
    Senator Grassley. I would like to ask you about the opinion 
you authored in Mystic. As author of the legislation that we 
call the False Claims Act, it has returned billions of dollars 
to the Federal Government and has become a very effective tool 
in combating fraud against the American taxpayers. So I follow 
court cases on this as much as I can.
    The False Claims Act contains a provision that 
jurisdictionally bars lawsuits based on public disclosure, 
including such things as administrative reports and 
investigations. The purpose of this provision is to prevent an 
individual who has read about a description of a fraud in a 
newspaper report, public document, or Government report from 
simply taking that material and using it as a basis for a case.
    In Mystic, the qui tam relater had made a FOIA request and 
utilized some of the documents he received in response to FOIA 
in filing that qui tam case. In your opinion, you determined 
that the qui tam relater had based his False Claims Act lawsuit 
on public disclosure made in an administrative report or 
investigation. To come to that conclusion, you had to equate 
that the qui tam relater, who was acting on behalf of the 
Government, as the public. But I think it is clear that 
Congress did not equate such qui tam relaters with the public 
when it wrote the public disclosure bar provision. That is 
because if Congress had done so, then everything qui tam 
relaters know is known to the public, which doesn't make any 
sense.
    So because my time has run out, I don't want to go on with 
a question, but do you see what I am getting at? Could you 
react to that?
    Judge Alito. I do, and I understand that's a very strong 
argument. I remember that I found that a very difficult issue 
to deal with, and I spent a lot of time on it, and my view of 
the matter elicited a strong and a very persuasive, I think, 
dissent by one of my colleagues. So it is a tough issue, and if 
that were to come up again, I would have to really reconsider 
it.
    Senator Grassley. Just in your last sentence, you gave 
pretty much the same answer that Judge Roberts did. He had 
dissented in a case, too, and it kind of worries me when we get 
two of you on the Court that may be unfamiliar with 
congressional intent on false claims.
    Thank you very much.
    Chairman Specter. Thank you, Senator Grassley.
    That will be all. We will recess until 2 o'clock.
    Senator Kennedy. Mr. Chairman?
    Chairman Specter. Yes, Senator Kennedy?
    Senator Kennedy. Just as a quick matter of personal 
privilege, I would like to include in the record the response 
from your staff to this letter that I wrote to you on the 22nd 
and also my staff response to your staff's response to the 
letter, include them in the record.
    Chairman Specter. Like all requests, unanimous consent for 
the record, they are granted.
    Senator Durbin. Mr. Chairman? Mr. Chairman?
    Chairman Specter. Senator Durbin?
    Senator Durbin. Mr. Chairman, I--
    Chairman Specter. I just want it known that we are now into 
the lunch hour, but go ahead, Senator Durbin.
    Senator Durbin. Mr. Chairman, I sent you a note and you 
were kind enough to come and speak to me about it. I would just 
ask for 2 minutes time to respond to comments made by members 
of the Committee mentioning my name after I asked questions 
this morning. You have asked if I would wait until Senator 
Coburn returned to the Committee, and in deference to the 
respect to my colleague, I will do that.
    Senator Leahy. Could I also, Mr. Chairman, on this--
    Chairman Specter. Well, I appreciate it very much, waiting 
for Senator Coburn. I think it is a good practice, when 
comments are made about other members, to do it while they are 
here or to ask their joinder. And that is why if you have 
something to say to Senator Coburn, I want him here; otherwise, 
he will have something to say and you are not here.
    Senator Leahy. In fact--
    Senator Durbin. He did already, Mr. Chairman.
    Chairman Specter. Now Senator Leahy is recognized into the 
lunch hour.
    Senator Leahy. Into the lunch hour. Mr. Chairman, if I 
might, I came very close to objecting when Senator Coburn was 
speaking and referring to Senator Durbin. Senator Coburn is a 
new--he is a valued member of the Committee, of course but new, 
and I wanted to say that I have been here for 30 years. I have 
always made it a point, if I am going to raise something, to 
get word to the other party. I think it is a good way of doing 
it, and you have been totally fair in that.
    I would urge Senators, if they are going to start quoting 
each other, that maybe we have ``quote time'' or something like 
that. Senator Durbin is absolutely right in wanting to be able 
to respond to what was said.
    Chairman Specter. Well, I think that we might agree on best 
practice, but when you deal with Senators, my view is to give 
Senators great latitude as to what they want to undertake to 
do. And if Senator Coburn wants to make a comment without 
Senator Durbin here, I think that is going to be his call, 
although my preference would be to the contrary. But when 
Senator Durbin wants time to respond, I immediately sent word 
to him he would have the time that he requested. And then I 
sent for Senator Coburn. And Senator Coburn is in a meeting 
that he couldn't leave, but we will get the two of you together 
fairly promptly.
    Senator Durbin. Thank you.
    Chairman Specter. Lunchtime.
    [Whereupon, at 1:05 p.m., the Committee was adjourned, to 
reconvene at 2 p.m., this same day.]
    [AFTERNOON SESSION]
    Chairman Specter. The Committee will resume, and it is now 
Senator Biden's turn for his second round for 20 minutes.
    Senator Biden?
    Senator Biden. Thank you very much, Mr. Chairman.
    Judge, good to see you. As I said to you--we happened to 
run into each other in the hallway coming in--what I would like 
to do, if I may, is go back and revisit two areas that you were 
questioned on yesterday, and a little bit maybe today. I do not 
recall actually. I think it was yesterday. One is the Casey 
case and I want to make sure I understand because I am still a 
little bit puzzled by your reasoning, but let me start off and 
make it clear.
    From my perspective, the abortion is a different--I am 
trying to figure out how you arrived at interpreting a Supreme 
Court Justice's standard that was being applied, and how it 
came out differently than others. Yesterday you said when I 
think it was Senator Kohl asked you, that you agreed with 
Justice O'Connor, ``that you look at the group that's affected, 
not the group that's unaffected.'' But when you wrote your 
dissent, you said, and I quote, ``It seems safe to assume that 
some percentage, despite an initial inclination not to tell 
their husbands, would notify their husbands without suffering 
substantial ill effects, acknowledging some would suffer 
substantial ill effects.''
    Can you rationalize yesterday's statement and your dissent 
for me? Explain it to me.
    Judge Alito. Well, I think what you look at is the group 
that is required to notify. You don't look at the group that's 
not required to notify, so unmarried women are not examined 
here because the notification requirement obviously does not 
apply to them.
    Then my understanding of Justice O'Connor's standard, which 
was the ``more than some woman'' standard, let me put it that 
way, although she didn't put it quite that strongly. She said 
that it is insufficient that some women are inhibited from 
having an abortion as a result of the requirement. So you look 
at the people who are affected by--who are within the scope of 
the provision, and then you would see how many of the people 
within the scope of the provision would be inhibited from 
having an abortion as a result of what was involved. You don't 
look at people who aren't regulated at all, and you don't just 
look at the people who would be inhibited because both of those 
would not be the right thing to look at.
    So in the case of--let's take the case of the informed 
consent requirement. You'd look at everybody who was required 
to receive the information that was within the informed consent 
provision, and then you would ask how many of the people, how 
many of the women who were regulated by this, would be 
inhibited from having an abortion as a result of the 
requirement. That was my understanding and that is my 
understanding of what she was talking about.
    Senator Biden. You referenced in your dissent in Casey the 
Thornburgh case. What was the issue in Thornburgh?
    Judge Alito. Thornburgh concerned--
    Senator Biden. Excuse me. That prompted her to come up with 
the statement that you referenced, which was that it does not 
have to affect everyone?
    Judge Alito. Well, she was setting our her understanding of 
what the standard was, of the Undue Burden Standard. Now, in 
Thornburgh there were several provisions of a previous version 
of the Pennsylvania statute at issue. There was an informed 
consent provision, as I recall. There was a provision relating 
to health insurance. There was a provision relating to 
notification of a minor's parents. There were a number of 
provisions involved. And my recollection is that when she made 
the statement, she was talking about the Undue Burden Standard 
itself. It was an explanation of what she meant by the Undue 
Burden Standard.
    Senator Biden. As I went back and read it, my understanding 
was--and I will not, in the interest of time, read her entire 
two paragraphs here--but the part of Casey which she found to 
be a particular problem as being declared unconstitutional by 
her colleagues was where a doctor, an obstetrician would have 
to read to a woman certain verbiage that would explain the pros 
and cons about an abortion, or at least downsides of an 
abortion. And she said the State has an interest in promoting 
life, and so even though some women might be offended by that, 
it was still OK, it was still constitutional.
    That language is the language that the discussion about 
even though some women would be affected, you transposed, in 
good conscience, to a case where notification to a husband was 
required. And one of the things that I had some difficulty with 
is whether or not there really were comparable issues here. In 
one case it was about whether or not a woman would fear for her 
life, for example, an exception was given, if she informed her 
husband. Another case, it was not about that that O'Connor was 
referring to, she was referring to about whether or not it put 
an undue burden on a woman to be told, ``By the way, this can 
happen when you have an abortion, and this is the state the 
fetus is, et cetera.'' And that is the part that kind of 
disturbs me, or that perplexes me anyway, about the real world 
here.
    Senator Specter references the Violence Against Women Act. 
We did a lot of work on that. There is overwhelming evidence 
that there are women who would be fearful of going home and 
telling their husbands they are going to have an abortion, not 
fearful physically, fearful that the husband had all the 
economic power and said, ``I am divorcing you and I am taking 
the kids and having a custody battle, and you don't have the 
money to hire a lawyer.''
    Are they comparable ill effects? That is, that kind of ill 
effect on a woman that if she tells her husband, he is going to 
sue for divorce and seek custody of the children, knowing that 
he has all the economic horsepower and she has no ability to go 
out and hire a significant lawyer? Is that comparable to the 
doctor saying, ``By the way, if you have an abortion, here is 
what happens?''
    Judge Alito. No. The informed consent provision presented 
an easier--easier isn't even the right word--a less difficult 
question than the spousal notification provision. I don't think 
there's any question about that. They both involved the same 
standard, which was the Undue Burden Standard. And therefore, I 
thought--and I still think that's what's said in reference to 
one provision is relevant in determining what the standard was.
    The big issue, when this case was before us, was whether 
the standard was undue burden or not. It's funny how cases look 
different after they've progressed through the Supreme Court 
than they do when they're first presented to the court of 
appeals. That was the most hotly contested argument before us. 
Had there been any change in the Supreme Court's case law--and 
the plaintiffs argued strenuously that there had not--but our 
panel, after some effort, determined under the Marks standard 
for determining what the holding of a case is when there's no 
majority opinion, that the standard was the Undue Burden 
Standard. And there just wasn't a lot to go on. I think I said 
that yesterday. I looked for whatever guidance I could find.
    Senator Biden. Again, I am not questioning the sincerity of 
your search. Again, it gets down to the thing that keeps coming 
up with me, is not that you do not care about the little guy 
and all of that, that your reading of statutory language, 
Supreme Court precedent, the Constitution, seems to me to not 
reflect some of the genuine real-life differences that exist. 
The idea that you acknowledged that some women would suffer ill 
effects, substantial ill effects from informing their husbands, 
but because it was only a small percentage that met the Undue 
Burden test, that did not meet the Undue Burden test, it seems 
to me--
    Anyway, the majority disagreed with you, and I happen to 
disagree with you because I guess maybe it is because we have 
been so exposed to how so many women are within their 
relationships can suffer significant consequences for 
challenging a position that their husband does not want to 
accept, whether it has to do with abortion or what school their 
child goes to, and it is pretty consequential. But that is my 
problem with how you arrived at your reasoning--or your 
reasoning how you arrived at your conclusion.
    Let me move on to another area in the interest of time 
here. Yesterday there was discussion about the Family and 
Medical Leave Act, and you correctly stated there were two 
distinct parts of the Act, and the Hibbs case dealt with one, 
and Chittister dealt with another. Can you explain that again 
for me?
    Judge Alito. Yes. Hibbs concerned a provision that required 
employers to give employees leave to be out of work to take 
care of a family member. And there was a record that employers, 
State employers had given more leave for this purpose to women 
than they had to men, and that was based on the stereotype that 
when somebody in the family gets sick and somebody has to leave 
work to take care of the family member, it's the woman and not 
the man, and it reinforced the stereotype, of course, because 
having such a policy would encourage, would put pressure on 
women to leave for this purpose, as opposed to the man. If 
there was a woman and a man in the family, and somebody had to 
leave work to take care of a sick family member, and you have a 
plan like this, this is going to pressure the woman to do that. 
So the Hibbs court found that that was a sufficient record of 
gender discrimination to justify the passage of legislation 
under Section 5 of the 14th Amendment.
    Chittister concerned a provision that related to leave for 
personal illness, and there's no reason to think that men or 
women get sick more often one than the other, or what was to 
the point, that State employers had given men more sick time 
than women, or women more sick time than men. And so with that 
record, it was the conclusion of my court, and I believe seven 
other circuits, that this was a different issue. These cases 
were decided before and after Hibbs and that could not be 
justified if you accept the Congruence and Proportionality 
Standard.
    Senator Biden. On the Congruence and Proportionality 
Standard, we in the Congress thought we were speaking to that 
because were you aware or your colleagues--speak for yourself, 
actually, you cannot speak for them--that one in four people 
taking sick leave under the Act are women for pregnancy-related 
disabilities? That we, when we wrote the law, we said 
explicitly that working women, we wanted the bill to protect 
working women from the dangers that pregnancy-based 
distinctions could be extended to limit their employment 
opportunities. I mean the practical world is that a fair number 
of women who are pregnant are told in the last--and I yield to 
my doctor at the end of the dais on the other side--but it is 
not unusual for a woman to be told that she needs to, the last 
month of pregnancy or 2 months of pregnancy, have bed rest. And 
if that counts against her 12 weeks, employers--we did 
establish there is a record where employers say, ``Hey, look, 
man, we are going to give men and women the same leave, 
notwithstanding the fact that women in fact in many 
circumstances--and one in four of them are pregnancy-related--
need more time because of the pregnancy.'' I mean was that 
discussed by you guys or women?
    Judge Alito. I'm quite certain it never was. I would have 
made a reference to it in the opinion if that had been 
mentioned. I am not aware of that coming up in the other 
circuit opinions on the issue. We are, to a degree--we can't 
know everything about the real world, and we're dependent on 
the arguments that are presented to us to a degree. I don't 
believe that argument was ever presented.
    Senator Biden. Congress expressly stated that the purpose 
of the Act was, quote, ``to minimize the potential for 
employment discrimination by ensuring generally that leave is 
available for eligible medical reasons, including maternity-
related disability.'' That is why the decision confuses me. I 
think all you probably have to do is turn to your wife and say, 
``Hey, the real world, when you are pregnant does that sometime 
inhibit the amount of time you are required to be away from 
your job?'' Fortunately, most women, like my wife and my 
daughter-in-law, work up to the time, but a lot cannot.
    Let me suggest also, as I said to you in the hallway, I 
want to kind of set the record straight on Princeton. One of 
the reasons why I am perplexed and many of us are perplexed by 
your answers regarding the CAP, the organization, is that it 
does not fit with your background. As we both said in the 
hallway, I read your opening statement again, where you said 
that ``a generation earlier I think that somebody from my 
background probably would not have felt fully comfortable at a 
college like Princeton.'' And I pointed out to you I am about 
10 years older than you, that is how I felt. That was what I 
was referencing yesterday about my, you know, Irish-Catholic 
kid from Claymont.
    And the thing that surprises, or at least puzzles, me is 
that it was kind of, I thought, it was a pretty widely known 
debate that in the Ivies, the one sort of last holdout, 
fighting to not admit as many women and fighting not to admit 
as many minorities, was Princeton. There was a whole battle 
over it, as you heard referenced in terms of the Wall Street 
Journal and mailings to alumni.
    And I noticed someone in the press. I want to be able to 
wear the hat given to me by pointing out that the reason I can 
wear this hat proudly today after being on campus as much as I 
have at Princeton is today, 28.7 percent of Princeton's 
undergraduate population is minority, and today, the class of 
2005, 47 percent--47 percent--are women. So that is what that 
battle was all about, a lot of us thought. I would be proud if 
my daughter were at Princeton Graduate School instead of Penn 
now, although I am very proud she is at Penn, but that is what 
this debate was about, Judge, and that is why it still confuses 
me.
    I am going to ask you a straightforward question and I hope 
it doesn't offend you. Did, when you listed CAP, was part of 
your rationale for listing it in an application you thought 
that would appeal to the outfit you were applying to, the 
people looking at your resume?
    Judge Alito. Well, Senator, as I said, I don't have a 
recollection of having anything to do with CAP, so all I can 
say is that I put it down on the '85 form and therefore I must 
have been a member at around that time, and that's--I can't--
    Senator Biden. I am not even suggesting about whether you 
were or were not remembering. Was part of the reason--I am 
looking for a reason. I am looking to be able to say--because 
you don't impress me as someone, especially from your 
background, that would want to keep Princeton as--I won't go 
back and read the quotes--keep Princeton as, you know, imagine 
my father's 50th reunion, having 40 percent women, isn't that 
awful. You don't impress me as belonging to that club.
    Judge Alito. Well, I wasn't.
    Senator Biden. So the only explanation I can think of--and 
you are not. You are a very informed guy. I mean, you are 
sitting up there in North Jersey as a U.S. Attorney. As I said, 
it is in the Wall Street Journal. It is a debate going on. You 
are getting letters. The only thing I could figure is you 
figured that a relatively conservative Reagan administration 
Justice Department would say, hey, maybe that is the kind of 
guy I want. I can't understand why else you would put it down. 
But if that is not the reason, if you just listed the outfits 
you belong to, that still perplexes me, but anyway--
    Judge Alito. Well, Senator, I wasn't a member of that club 
as you refer to it. By the time I entered Princeton, there were 
many minorities in my class. The practice of not including 
minorities had ended, and my class was not coeducational when 
we were admitted, and as I said yesterday, I had never 
previously attended a non-coeducational school--
    Senator Biden. You had about 300 women, if I am guessing 
right, when you got admitted, roughly. When were you admitted?
    Judge Alito. I was admitted in 1968. It was not 
coeducational. It went coeducational while I was there--
    Senator Biden. In 1971, 1970-71, there were 300 women. Now, 
there are 2,100 in that same class.
    Anyway, I thank you very much, Judge. I yield the floor.
    Chairman Specter. Thank you very much, Senator Biden.
    We now have both Senator Durbin and Senator Coburn present. 
Senator Durbin, you have asked for 2 minutes as a matter of 
personal privilege.
    Senator Durbin. Thank you very much, Mr. Chairman, and I 
will make it brief.
    Chairman Specter. You have 2 minutes.
    Senator Durbin. In a courtroom and in a Committee room, it 
is not unusual to try to rehabilitate a witness. When hard 
questions are asked, people come back with information. Mr. 
Gillespie and his team are down there providing information, as 
are others. It is perfectly acceptable. We would do the same 
thing if the shoe were on the other foot.
    Two personal references to me were made after I left the 
room, and I apologize for leaving the Committee room. One 
related to the fact that I had earlier been in the pro-life 
position in my political life, and it is true. I made reference 
to this in my opening statement. I have stood for election more 
than 12 times in the House and the Senate, general and primary, 
stating my position as pro-choice, so the voters of Illinois 
know that.
    I had asked Judge Alito whether his position had changed 
from 1985. That was the nature of my questions to you this 
morning. I don't consider that to be a shortcoming if you would 
concede it changed, although at this point, you have not made 
that concession. Abraham Lincoln was once accused of changing 
his position on an issue and he said, I would rather be right 
some of the time than wrong all of the time, and so I don't 
think changing your mind is necessarily condemnation.
    The second point I would like to make specifically is my 
reference to settled law. Roe v. Wade is settled law, and I am 
sorry that Senator Hatch is not here at the moment, but I would 
like to read into the record exactly what was said on September 
13, 2005, before this Committee when Senator Specter said, 
Judge Roberts--
    Chairman Specter. Does this involve Senator Hatch, Senator 
Durbin?
    Senator Durbin. It does. Senator Hatch raised the question 
that I had said--
    [Laughter.]
    Senator Durbin [continuing]. That this position--
    Chairman Specter. Shouldn't we have Senator Hatch here?
    Senator Durbin. If you want to wait, I will wait.
    Chairman Specter. Yes, I would like to wait until Senator 
Hatch arrives. That way, we may be able to conclude this not in 
2 minutes, but in less than 2 hours.
    I have made inquiries on the Rusher issue over the lunch 
hour, and I have some things to say about it, but I am not 
going to say them until Senator Kennedy arrives--
    [Laughter.]
    Chairman Specter. --so I have asked staff to inform Senator 
Kennedy that I await his arrival.
    In the meantime, if it pleases this august body, we will 
proceed with the hearing. Senator Kyl?
    Senator Kyl. Thank you, Mr. Chairman. I do want to tie some 
loose ends up and one of them makes reference to something 
Senator Kennedy read. Would it be OK if I proceed with that? I 
think it would be fine. This has to do with this last matter 
that Senator Biden was also discussing and that is the 
Princeton alumni group.
    Just to make sure that the key facts are understood here, 
you believe you joined, Judge Alito, around 1985 because of a 
concerned threat to ROTC at Princeton University, is that 
correct?
    Judge Alito. Well, Senator, I don't recall joining, but I 
do remember that that was the issue relating to the 
administration that was bothering me for a period of time, 
including that period.
    Senator Kyl. And just for the record, Mr. Chairman, I would 
ask unanimous consent to insert a quotation from the Princeton 
packet. I will just quote it here. Prospect editor Denise 
DeSouza added that CAP is concerned about the formation of a 
third-world center, a campaign to eliminate the Army ROTC 
program, and what it perceives as the decline of Princeton 
athletics.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. Second, on this matter, and I refer to this as 
the very scurrilous material read by Senator Kennedy, I suspect 
we would all agree was scurrilous material, had you ever heard 
of any of that material that he read a while ago before today?
    Judge Alito. No, Senator.
    Senator Kyl. I believe you said you vehemently disagreed 
with it, is that correct?
    Judge Alito. I do. I deplore those things.
    Senator Kyl. And would disavow it?
    Judge Alito. I disavow it. I would never associate myself 
with those things.
    Senator Kyl. Did you know that such things had been 
published by the PAC when you were a member of it, or when you 
joined it?
    Judge Alito. Absolutely not. I would never be a member of 
an organization that took those positions.
    Senator Kyl. OK. And also, Mr. Chairman, unanimous consent 
for the record to contain the disclaimer which the editors of 
the Prospect include in the magazine. It reads, ``The 
appearance of an article in Prospect does not necessarily 
represent an endorsement of the author's beliefs by the 
Concerned Alumni of Princeton.''
    Chairman Specter. Without objection, it, too, will be made 
a part of the record.
    Senator Kyl. OK. Now let us return to your 15 years as a 
judge and how matters might come before you in the U.S. Supreme 
Court. I just wanted to also refer to something that I put in 
the record yesterday. It is a very difficult thing to look at 
4,000 cases and conclude that, when you have ruled on both 
sides of issues depending upon different fact situations, as we 
have talked about before, that you necessarily favor one side 
or the other. One of the areas of concern was in the area of 
discrimination. I just want to read one sentence of what I 
inserted in the record yesterday regarding employment 
discrimination and see if you have any other comment on it.
    A 2003 study of employment discrimination claims in Federal 
court found that Federal appeals court judges sided with 
employment discrimination plaintiffs in only 13 percent of the 
cases. Judge Alito's record of four out of 18, or 22 percent, 
is actually more favorable to plaintiffs. Do you know that to 
be incorrect or do you have any other comment on it?
    Judge Alito. I don't know--I'm not familiar with the 
statistics. The way the appeals system is set up, the types 
of--I think that's what results in the statistics that you 
mentioned, the low rate of success for plaintiffs, because 
these cases are generally cases in which summary judgment has 
been granted for the defendant. If the district court denies 
summary judgment for the defendant, then the case will go to 
trial and very often is settled, or there's a trial and then 
there's no appeal after the trial. So the cases that we get, 
most of the cases that we get are cases that have been looked 
at by a conscientious district judge and found not to be cases 
that should go to trial and I think that's what produces those 
statistics.
    Senator Kyl. And that's an interesting lesson, I think, for 
all of us, to be able to explain why certain cases come to 
courts and why they would be more on one side than the other. 
It is an important lesson, I think, both for lawyers and non-
lawyers to appreciate that kind of dynamic, because otherwise, 
if you just look at raw statistics and don't know the 
background, you could come to different conclusions. So I 
appreciate that.
    In another area, it is apparent to me that you are simply 
not going to be able to satisfy some of my colleagues because 
you will not absolutely commit to rule the way that they want 
to on a couple of key issues, for example, on the issue of 
abortion. You have repeatedly confirmed the significance in the 
role of precedent, in this case, Roe v. Wade. You also noted 
situations in which, as a Third Circuit Court judge, you 
adhered to the Roe v. Wade precedent.
    But you have declined to announce your constitutional view 
of Roe today, despite repeated attempts by some of my 
colleagues to get you to do it in these hearings. Implied in 
your answer is the point that to do that here would commit you 
to a particular result, something you cannot ethically do. Are 
there cases regarding abortion that you believe may come before 
the U.S. Supreme Court?
    Judge Alito. There certainly are cases that may come before 
the Supreme Court. There is a case involving abortion before 
the Court this term, and they come up with some regularity. 
Many of them involve the application of Roe. Most of them 
involve the application of Roe or the application of other 
precedents that build on Roe. But it is entirely possible that 
a case involving Roe itself could come up at some point in the 
future.
    Senator Kyl. Now, I said in my opening statement that I 
would defend your right to decline to say in advance how you 
would rule on matters that could come before you, but kind of 
along the same lines that you did a moment ago, perhaps you 
could tell us the reason for the rule, in other words, to 
elaborate on the damage that would be done if judges indicate 
in advance how they might rule on cases. What is the reason for 
that rule?
    Judge Alito. In my mind, the most important reason is that 
to do that would undermine the entire judicial decisionmaking 
process. We have a process for deciding legal issues and it is 
critically important that we stick to that process, and that 
means that when an issue comes before us, the briefs are not a 
formality. The arguments of the attorneys are not a formality. 
We should read those very carefully and we should study the 
issue and we should study all the authorities that are cited to 
us and carefully consider all of the arguments that are 
presented to us, both in the briefs and in the attorneys' oral 
presentation, and then go into the conference and discuss the 
case among the members of the court, and we shouldn't decide 
legal questions without questions that are going to--not just 
abstract questions as if we were in a constitutional law 
seminar, but cases that are going to have an impact on the real 
world. We shouldn't decide those questions even in our own 
minds without going through that whole process.
    If we announce--if a judge or a judicial nominee announced 
before even reading the briefs or getting the case or hearing 
the argument what he or she thought about the ultimate legal 
issue, all of that would be rendered meaningless and people 
would lose all their respect for the judicial system, and with 
justification, because that is not the way in which members of 
the judiciary are supposed to go about the work of deciding 
cases.
    Senator Kyl. I have talked about this image we have of Lady 
Justice, the blind figure with the scales of justice in her 
hand, and try to describe why she has the blindfold across her 
eyes. I just marvel at our judicial system, and having 
represented clients in court for 20 years myself, how we in 
America are willing to literally put our lives sometimes, 
certainly our freedom and our fortune, in the hands of a 
person, one judge frequently, sometimes a jury, sometimes not, 
sometimes more than one judge, but frequently a judge. How 
would people possibly have the trust to put everything they 
own, or their own freedom, in the hands of a person if we as a 
country hadn't established over 200 years of adhering to this 
rule of law, this notion that justice is blind, that the facts 
of your case and the law will decide whether you win or lose 
and nothing else?
    It is a remarkable phenomenon, if you stop to think about 
it, and not all countries do that, and even countries that have 
judicial systems, I don't think one can have near the 
confidence in that we do here in the United States. So it is a 
critical, critical principle that plays itself out in 
courtrooms around this country every day and it is something 
that I think we have to fight to preserve as much as we 
possibly can, and I appreciate your explanation of that.
    Just a couple of final things and I am going to be able to 
yield back some of my time. I just can't resist pointing out 
one little irony here and it has to do with the precedent that 
I spoke of before, Roe v. Wade, that is so important to several 
members of this Committee. It was written by a Justice who 
himself was, at least in some cases, willing to throw off 
precedent. Do you remember who wrote the opinion in Roe v. 
Wade?
    Judge Alito. It was Justice Blackman.
    Senator Kyl. Justice Blackman, and in, one might say, an 
infamous 1994 dissent from a denial of cert in the case of 
Collins v. Collins, Justice Blackman wrote that he would refuse 
to follow all Supreme Court precedent on the death penalty, 
which has been ruled constitutional by the Court, of course, by 
saying that he would, and I quote, ``no longer tinker with the 
machinery of death,'' end of quote. I suspect that is not the 
way to deal with precedent. If you have a comment on it, fine, 
but again, I just think it ironic that the decision perhaps 
most in focus here was authored by a judge who himself was 
quite willing to throw off precedent, I would argue in a rather 
cavalier way, in a situation in which he didn't like it.
    Let me just close by putting something in the record and 
making a comment. Mr. Chairman, I ask unanimous consent to 
insert the following statement in the record, but I would like 
to read it because it is a statement of the Majority Leader of 
the Senate, Bill Frist.
    Chairman Specter. Without objection, it will be made a part 
of the record.
    Senator Kyl. And let me briefly read it. ``As a Princeton 
alumnus, I had concerns about CAP, but I have no concerns about 
Judge Alito's credibility, integrity, and his commitment to 
protecting the equal rights of all Americans. Judge Alito has 
condemned discrimination, and his record of more than 15 years 
demonstrates his commitment to equal rights for women and 
minorities.
    ``Old documents of a now-defunct organization will not tell 
us more than Alito's statements and record already have. 
Further, the views that the Democrats attribute to Alito 
through CAP were the views expressed by an individual member in 
a magazine, who was not speaking for the organization and 
certainly not for Judge Alito. This is another transparent 
attempt by Democrats to wage an unfair smear campaign against 
an exceptionally qualified nominee.''
    Mr. Chairman, I read that not to attribute the views to any 
member of this committee, but I think it is important that the 
reputation of this fine jurist be based upon his actions as a 
jurist for over 15 years, as I said in my opening statement--
longer than any other justice of the U.S. Supreme Court, except 
for one, 70 years ago, on a circuit court of appeals--with a 
record of over 4,000 decisions and an ample opportunity to know 
what kind of a person he is, what kind of a judge he has been, 
and, I would argue, what kind of a judge that he would make.
    I do not believe that his answers to questions have been 
inconsistent or unforthcoming. I believe that, as a matter of 
fact, Judge, you have been very forthcoming in your answers to 
questions, including getting right up to the edge on a lot of 
matters that arguably could come before the Court. But you did 
not try to dodge or duck those questions at all. In fact, let 
me just read for the record two or three statements relating to 
your performance here at this hearing, if I could, please.
    Well, Senator Biden isn't here, so I won't read what he has 
said. But it is on the chart. And I appreciate what he said, by 
the way.
    Jill Zuckman, who writes for the Chicago Tribune: ``Judge 
Alito has gone farther and I think that has given a lot more 
substance to these hearings, said Specter--meaning our 
distinguished chairman, Arlen Specter.''
    And then, Dana Milbank, writing in the Washington Post: 
``Unlike John G. Roberts, Jr., who made frequent attempts to 
soften his views and dodge many of the questions, Alito took 
almost every question.''
    I am not going to subscribe to the first part of that last 
quotation with respect to Judge Roberts, but I think it is true 
that you have taken the questions, you have answered them to 
the best of your ability, and you have only stopped short when 
not to do so would be to commit to a decision in a case that 
you are not ethically permitted to do and that would do 
injustice to the rule of law and the parties that might come 
before the Court.
    So I want to commend you for being so forthcoming, for 
answering our questions, and for testifying in a very 
thoughtful, and as has been apparent to everybody, without any 
notes or materials or referring to any other people here, with 
great knowledge about both the matters on which you have worked 
and the law generally.
    Thank you, Judge.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you very much, Senator Kyl.
    Senator Kohl.
    Senator Kohl. Thank you very much, Mr. Chairman.
    Judge Alito, after the first day of questions, it seems 
very clear that you believe there are certain bedrock 
principles in American constitutional law, principles like the 
right of one man, one vote in redistricting, the right of 
children not to have to go to schools unless they are 
integrated schools, the right for people to have privacy in 
making decisions about contraception, and other rights.
    Even though these are cases where the principles are raised 
and their application is debated on the margins or even more 
fundamentally, I believe you have said and you are willing to 
say that you will not question the underlying principle 
involved on these issues. And I commend you for that. We are 
assured, and I believe, that you clearly do stand by those 
principles.
    And yet, when you are asked about Roe v. Wade and the 
following case of Casey, cases that say the Government should 
not place an undue burden on a woman's right to choose, when we 
ask about principles of that sort, you are unwilling to make 
the same statement of support.
    Now, I understand that there will be cases where plaintiffs 
argue on the margins about Roe and Casey, where there are 
efforts to narrow or broaden these principles, just as there 
are cases that narrow or broaden the principles of one man, one 
vote or the issue enunciated in Brown v. Board of Education or 
Griswold. But you are willing to stand by those other legal 
principles and yet you are not taking the same position with 
regard to the principles embodied in Roe and Casey.
    Could you explain that, please?
    Judge Alito. Senator, I think it's important to draw a 
distinction between issues that could realistically come up 
before the courts and issues that are very much, that are still 
very much in play--which is to say, the subject of litigation 
in the courts. And I felt comfortable about commenting on one 
person, one vote and, of course, Brown v. Board of Education 
because those are not issues that are any longer the subject of 
litigation in our country, not the fundamental principles that 
are embodied in those decisions. And the Griswold case, 
likewise, concerns an issue that is not realistically likely to 
come before the courts.
    Roe, on the other hand, involves an issue that is involved 
in a considerable amount of litigation before the courts, and 
so that's where I feel that I must draw the line, because on 
issues that could realistically come up, it would be improper 
for me to express a view and I would not reach a conclusion 
regarding any issue like that before going through the whole 
judicial process that I described.
    Senator Kohl. I think there is strength to what you say, 
but I also believe it is not inaccurate to say that these other 
issues on the margins, just as Roe on the margins, are still 
coming up and may yet come up before the Court. And I still 
feel that while you are prepared to take a position on these 
other issues which is almost bottom-line, clearly bottom-line, 
you are not prepared to take that same position--which you 
could, if you wished; you could take that position if you 
wished. And I think what that does suggest is that what you are 
saying is that it is possible, if a case comes before you, that 
you would take a look at the principles underlying Roe and 
Casey and see them in a way that would overturn Roe and Casey.
    Now, you may say, well, obviously the answer is yes. But I 
just want to get that clarified for the record.
    Judge Alito. Well, what I would do if a case like that were 
to come before me, and if I'm confirmed, is to follow the two-
step process that I've talked about, which is first to consider 
the issue of stare decisis. And there's been a considerable 
body of case law now on this issue going back to Roe and, in 
particular over the last 20 years, and in the Casey opinion, 
that was where the joint opinion began and the joint opinion 
ended. And then only if I got beyond that issue would I 
consider the underlying issue. And that's what I would do if 
the issue were to come up. And I don't believe that it would be 
appropriate and it wouldn't even be realistic for me to go 
further than that.
    Senator Kohl. That is correct. And in your mind, you are 
not prepared to say that the principle embodied in Roe v. Wade 
and the principle embodied in Casey is clearly established law 
that is not subject, to your mind, to review. You are not 
prepared--I mean, that is not your position, which I think you 
have said. But I think, at least for me, a clarification of 
that would be of some importance.
    Judge Alito. Well, in light of the current state of 
litigation relating to the issue of abortion--and as I said, 
there's an abortion case before the Supreme Court this term and 
there are undoubtedly abortion cases before the lower Federal 
courts; I know there are--I don't believe that it's appropriate 
for me to go further than that in relation to that issue.
    Senator Kohl. All right.
    Judge Alito, the President nominated you for the Supreme 
Court because of your record as a person and as a judge. Groups 
and individuals, particularly on the right, quickly endorsed 
you soon after your nomination because they feel comfortable 
with your record as you have established it over several 
decades now, where you have come from, and where you are on the 
issues that are important to them. We also assume that you 
yourself are very proud of your record, as you should be. As a 
man of principle and conviction, which we believe you are, you 
worked on issues throughout your career as a Justice Department 
attorney that you believed in, that you cared about, that 
mattered to you. And I am certain you would say that if you 
didn't believe in these things, you would not have gone to work 
for that particular Justice Department under that particular 
administration.
    And yet yesterday during the hearing, you seemed to walk 
away from a lot of your record. For example, when asked about 
an interview where you supported Judge Bork, calling him ``one 
of the most outstanding nominees of this century,'' you 
answered that you were just supporting the administration's 
position, that that wasn't your position. And even then, you 
distanced yourself from a number of his views, after having 
said that he was one of the most outstanding nominees of this 
century. You are a man of conviction; I am sure you are. And 
you are not just a mouthpiece for people. You never have been 
and you never will be--which is to your credit.
    When asked about the strong position you took opposing a 
woman's right to choose in your job application, you said that 
only reflected how you felt then and did not suggest anything 
of what you believe now. What you felt then you felt as a full-
grown man, and you are saying that is not necessarily how you 
feel now.
    When asked about your membership in a radical organization 
at Princeton, a group that you cited with pride on your job 
application, you said that you could not remember anything 
about the group at all.
    When asked about the citation on your job application where 
you refer to the importance of traditional values, and what you 
meant by traditional values, then you answered, somewhat 
incomprehensibly, when you said that you were protecting 
children from ``psychological threats that come from elements 
in the atmosphere is a traditional value.''
    I also asked you about your statement on your job 
application that you disagreed with the Warren Court's rulings 
on reapportionment, rulings that stand for the basic principle 
of one person, one vote. Indeed, you said your disagreement was 
so strong that it contributed to your decision to pursue a 
legal career. Yesterday you stated that you in fact did not 
disagree with the principle of one person, one vote--not then, 
not now.
    So, Judge, this is the only time that the people of this 
country are going to have an opportunity to get a sense of who 
you are, what you believe in, what you stand for, who you are 
as a person. I think you would say that the American people 
have the absolute right to know that, without condition, 
without any political considerations, that the most important 
part of this hearing is that the American people get a chance, 
through our questions and your answers, to know who you really 
are. I would like to hope that you would say the job isn't 
worth it if we can't do that and do that well. And I believe 
you believe that.
    So I would like to ask you how you bring into a sense of 
harmony some of these things that you have done and said 
throughout your career which have brought you to this situation 
in which you are now, a person being nominated to serve on the 
Supreme Court, and some of the positions which you have taken 
in the last few days which, in effect, distance you from some 
of the very things that you have done and stood for over a 
career that bring you to where you are today.
    Judge Alito. Senator, you mentioned a number of things and 
I've tried to jot them down so that I could cover at least the 
major things that you mentioned.
    You mentioned--and I guess I'll take these in reverse order 
of chronology--you mentioned the statement in the 1985 
statement relating to reapportionment. And I've tried to 
explain what I had in mind. The statement in the '85 statement 
talked about what I thought about reapportionment when I was in 
college. And the reason why I mentioned that--why would I 
mention what I thought about constitutional law in college 
before I'd even been to law school?
    What I was attempting to do was to explain the development 
of my thinking about the role of the judiciary and about 
constitutional law and, in particular my development of my 
strong belief in judicial self-restraint. And the first place 
in which I saw a theoretical explanation of that doctrine, 
which I found persuasive at the time, was Alexander's Bickel's 
book, ``The Supreme Court and the Idea of Progress,'' which 
came out during the time when I was in college. I think it was 
the first book about constitutional theory, so to speak, that I 
had read. And he addressed the issue of one person, one vote, 
and that linked up in my mind with the experiences of my father 
in working on the reapportionment of the New Jersey 
legislature.
    And at the time when I was in college, there was an issue 
that was very much a live issue at the time as to what one 
person, one vote meant. Did it mean that you took this 
principle of one person, one vote and applied it with blinding 
literalness so that every district was exactly equal in 
population, or very close to that, with a population deviation 
of under 1 percent, or could other factors that people thought 
were legitimate factors to be considered in drawing districts, 
such as respecting county lines and municipal lines; was it 
permissible to take those into account? That's what I know I 
was thinking about reapportionment back in my college days.
    I referred in the statement to traditional values, and I 
said yesterday at this point in 2006, I can't say for sure 
exactly what was on my mind in 1985, when I made reference to 
traditional values. But I tried to describe some of the things 
that I probably thought were traditional--thought of as 
traditional values, and I listed a number of them. One--and a 
lot of them had to do with the ability of people to live and 
raise a family in the sort of neighborhood where I grew up. And 
I gave a little description of that earlier.
    So it would include things like being able to live in peace 
and safety. I think that's a traditional value, and that was 
very much at stake when I was in college in the late '60s and 
early '70s and in 1985, because these were eras of high crime. 
And a lot of the work that I had done up to 1985 as an 
assistant U.S. attorney and working on criminal cases in the 
Solicitor General's Office seemed to me to be involved with 
this issue of protecting people from the threat of crime.
    I think I mentioned the ability to raise children the way 
you want, to instill your values, not to have them subject to 
certain external threats. And these were--you know, I've tried 
to think of why would these have been at issue in the mid-80s. 
And they were at issue because of things like some of the 
things I was referring to earlier today about children being 
able to, and students being able to express their religious 
views at school in a nondiscriminatory way, so that religious 
speech was not discriminated against. And that was very much at 
issue in the '80s. Congress passed the Equal Access Act at 
about that time to embody that principle.
    So those were some of the things that came to my mind as 
traditional values.
    The 1985 statement in reference to abortion, I have not 
distanced myself from it. I have said that that was a correct 
expression of what I thought in 1985 when I wrote it. It was 
written in 1985, and that was 20 years ago. And there's been a 
lot of case law in the intervening years. There was Thornburgh 
and there was Webster and Casey, all of which involved direct 
challenges to Roe, and there were other cases applying Roe.
    So that's what I had in mind with respect to the matters 
that you've covered.
    Senator Kohl. Last question. When we met privately, I asked 
you what sort of Supreme Court Justice you would make and your 
answer was fair when you said if you want to know what sort of 
justice I would make, look at the sort of judge that I have 
been.
    Last week, the Washington Post did exactly that in an 
analysis of your record as a Third Circuit judge for the past 
15 years. They analyzed 221 cases that you sat on and in which 
the court's decision was divided. I recognize that in every 
case there is a difference and that it must be decided on its 
facts. Nonetheless, this data reveals patterns and tendencies 
in your decisions, among other things, as you may have 
recollected from the Post article.
    It was found that in civil rights cases you sided against 
three out of every four people who claimed to have been victims 
of discrimination. This was a significantly greater rate than 
other judges in a national sample of cases. Of 33 criminal 
cases the newspaper analyzed, you sided with the criminal 
defendant only three times. This was a very much lower rate 
than the national sample. In immigration cases, the Post also 
found that you sided with immigrants who were trying to win 
asylum or block deportation only in one out of eight cases 
analyzed. This was much less than most judges in the national 
sample.
    Now, the Washington Post was not the only one to perform an 
analysis of your record. Noted constitutional law professor 
Cass Sunstein, for example, found that, ``When there is a 
conflict between institutions and individual rights, Judge 
Alito's dissenting opinions argue against individual rights 84 
percent of the time.''
    So what can we glean from these analyses of Judge Alito and 
what might they indicate with respect to your posture on cases 
should you become a Justice of the Supreme Court?
    Judge Alito. On the discrimination cases, Senator, I think 
that the statistic that Senator Kyl just cited speaks directly 
to that, a comparison of the number of times in which people 
claiming discrimination prevailed in the cases won my vote 
compared to the average for circuit judges in general. And I 
think that those statistics--that my statistics and the 
statistics for circuit judges in general have to be viewed 
against the background of--have to be viewed with a recognition 
of the way in which these discrimination cases come up through 
the court system. Most of them are cases in which the person 
claiming the violation lost in the district court, and that 
means that a district court judge--and they are not always 
right, but most of the time they are right. And they are 
conscientious people, and they apply the same law that we do. 
They found that these were not meritorious cases. And so if you 
start out with a group of cases that have already been found to 
be not meritorious, it stands to reason that probably not a 
very high percentage of them will ultimately be found to be 
meritorious.
    On the immigration cases, I take very seriously--and I 
don't know what the statistics are in this area, but I can tell 
you this, that I take very seriously the scope of review that I 
am supposed to perform as an appellate judge. And that is 
usually dictated by Congress, and in the area of immigration, 
Congress has spoken clearly. And as to factual decisions that 
are made by an immigration judge, what Congress has told us is 
you are not to disturb those unless no reasonable fact finder 
could have reached the conclusion that the immigration judge 
did. And I very often see a record where I think it's doubtful. 
I say to myself, ``I might have decided this differently if I 
were the immigration judge.'' But I wasn't there. I didn't see 
the witnesses testify personally. And Congress has told me what 
my role is there. My role is not to substitute my judgment for 
that of the immigration judge. My job is to say, Could a 
reasonable person have reached the conclusion that the 
immigration judge did? And if I find that a reasonable person 
could have reached that conclusion, then it's my job to deny 
the petition for review. And that's what I do in those 
instances.
    Senator Kohl. I appreciate that. I would just comment again 
that your siding with immigrants who were trying to win asylum 
or block deportation, you sided only in one out of eight cases 
that they analyzed, and this was much less than most judges in 
a national sample who are about evenly divided in their 
decisions on these issues. This was what their analysis 
indicated.
    So, you know, for whatever it is worth, you were one out of 
eight; in the national sample of judges, it was about 50 
percent. I only bring that up for your comment.
    I thank you very much, Judge Alito, and, Mr. Chairman, I 
thank you.
    Chairman Specter. Thank you, Senator Kohl.
    We have made some inquiries about the issue which Senator 
Kennedy has raised about the Concerned Alumni of Princeton. As 
to the letter, I am 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 is 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 Committee, based 
on all that I knew about it. A very brief conversation.
    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 he 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 am 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 stated, these are the records that the Library of 
Congress, the Rusher records, those records and others at the 
med. 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 
would be glad to have us look at his record, and that he had 
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, but I didn't want to 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 am 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 puzzled. 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 is 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 been more vigilant.
    Senator Kennedy?
    Senator Kennedy. Thank you, Mr. Chairman. I welcome the 
fact that we are 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 would 
have access to those records. And it was a letter to you, as we 
would do, and would followup with the staff, which is the usual 
procedure here. I regret I have not been down in the gym since 
before Christmas so I have missed you down there.
    But the important fact is we are going to get that 
information. I think that is what is 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 it would have even been 
necessary. But I don't think you would be able to look through 
the transcript on the exchanges that we had with the nominee 
and not feel that we have an important responsibility to 
followup.
    So I am grateful that we will have that chance to followup, 
and I look forward to the further considerations and evaluation 
of the material and further considerations of the hearing.
    Chairman Specter. Enough said.
    Senator Leahy, you have a unanimous consent request?
    Senator Leahy. Yes, Mr. Chairman. As I had understood, we 
will be going back to another round, so if I have 
misunderstood, you will 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 reported the President has cited the 
unitary Executive 103 times in Presidential signing statements. 
So I would like to put that article and some articles from the 
Post that are relevant in the record. In fact, in the defense 
bill, the McCain torture amendment, he specifically employed a 
signing statement mentioning the unitary Executive, and I would 
like to make that part of the record.
    Chairman Specter. Without objection, those documents will 
be made a part of the record.
    Senator DeWine, 20 minutes.
    Senator DeWine. Thank you, Mr. Chairman.
    Judge, yesterday you and I discussed the concerns that I 
have about the Supreme Court's willingness to strike down law 
passed by this Congress and by State legislators. This lack of 
what I consider to be appropriate deference by the Court 
endangers our ability to protect the rights of our citizens.
    One of the groups that I am most concerned about in that 
context is people with disabilities. Congress has passed a 
number of laws to assure that people with disabilities have 
equal access and equal opportunities. I think it is critically 
important that we make sure that those with disabilities have 
these opportunities to participate fully in our society in 
every way possible.
    As you know, Judge, the Americans with Disabilities Act was 
a landmark piece of legislation passed by this Congress in our 
ongoing efforts to assure that people with disabilities are 
treated fairly. The 1999 case of Olmstead v. L.C. was an 
important Supreme Court case interpreting this law. As you 
know, Olmstead held that Title II of the ADA requires States to 
serve individuals with disabilities in community settings 
whenever possible, instead of segregating them while providing 
them with care.
    Olmstead was decided after the case of Helen L. v. DiDario, 
a case which, of course, you are familiar with, a Third Circuit 
case, that reached essentially the same conclusion. Although 
you were not on the Helen L. panel, you along with four other 
judges voted to rehear the case en banc.
    So let me ask you, Judge, if you could, to discuss with us 
your reasoning behind voting to rehear the Helen L. case. I 
would like to ask you, did that vote to rehear the case mean 
that you thought that the Helen L. case was decided incorrectly 
or that you opposed the later holding in Olmstead? Let me also 
ask you, now that Olmstead has been decided, do your reasons 
for voting to rehear the Helen L. case still apply? And do you 
have any concerns with the Supreme Court's holding in Olmstead 
that would cause you to question the validity of that 
particular decision?
    Judge Alito. I certainly don't have any concerns about the 
decision in Olmstead. I would have to look at my own file in 
the Helen L. case--and I doubt that there is any file in the 
case at this point--to try and see if there's anything in there 
to indicate specifically why I voted for rehearing in the case. 
And perhaps if--but I can say this: that I read the decision 
again, and one important part of the opinion in the case 
attempts to distinguish an earlier Third Circuit case that 
seemed to be somewhat closely related--closely related to the 
issue that was at hand. And I noted there were five votes for 
rehearing in the case, and that's quite unusual. It's unusual 
for there to be that many votes for rehearing.
    Most of the time--I would say most of the time when we vote 
for rehearing, the reason is because we think that there may be 
an inconsistency in our court case law, and that doesn't 
necessarily mean that we think that the decision we're voting 
to rehear was incorrect. Quite often, we think the decision 
that we are voting to reconsider is correct, but that it is 
inconsistent with a prior case that needs to be overruled, and 
we are very scrupulous about following our own precedents, not 
ignoring them. So if we have a precedent out there and it seems 
to us to be wrong and the issue comes up in a later case, then 
our mechanism is to vote to rehear.
    That happens very often, and my guess, based on what I can 
tell just from reading the opinion and looking at the votes for 
rehearing and the judges who voted for rehearing, is that could 
have been what was going on.
    Senator DeWine. I appreciate your answer, Judge.
    As the Chair of this Committee's Subcommittee on Antitrust, 
I have seen that it is often very hard to draw the line between 
anticompetitive conduct and, frankly, just good old-fashioned 
competition. Let me give you an example that Senator Kohl and I 
have done a great deal of work on, and, frankly, Senator Kohl 
has really taken a lead on. Many hospitals buy their supplies 
through group purchasing organizations, known as GPOs. These 
organizations purchase products for a large number of hospitals 
at one time, which decreases prices, but also gives them 
extraordinary power over which products get used and which ones 
don't get used. Often, GPOs reach deals with major suppliers to 
buy items in bundles; in other words, buy a number of different 
products from those suppliers in order to get discounts on all 
the products. It saves money, but it also means that smaller 
companies, which many only offer one of these products, have 
really a hard time competing with the large discounts being 
offered. The result is that smaller companies have difficulty 
getting into the market even if their one specific product may 
be better or it may even be cheaper.
    Judge, you had a case that dealt with bundling like this. 
It was the 3M v. LePage case. In that case, 3M, which sells 
Scotch tape, was selling it as part of a bundle with other 
products. The result was that LePage, which was offering a 
cheaper competing tape, was having a hard time getting stores 
to sell its tape because if the stores then did, they would 
have to give up the chance to save money on all the other 3M 
products that they carried. The majority ruled against 3M, but 
you dissented. I wonder if you could please explain your 
reasoning behind that dissent and explain what type of bundle 
discounts you think would violate the antitrust laws.
    Judge Alito. Well, let me preface what I'm going to say by 
saying that I'm not an antitrust expert and so I plod my way 
through these antitrust issues when they come up. But this was 
a tough one and it was a monopolization case and it required an 
examination of all the factors that were relevant to a 
determination of whether 3M was engaging in monopolization.
    3M was selling the product, as I recall, it was selling 
these products--it was not selling them below its cost. It was 
selling them above its cost, but 3M was--because of its scale 
or because it was more efficient, was able to produce its 
product more cheaply. I remember looking at the authorities 
that had discussed this and the writing of leading antitrust 
experts on bundling issues and that factor, taken together with 
the other factors in the case, persuaded Judge Greenberg and I, 
and we were the majority on the case at the panel level, that 
there wasn't sufficient evidence of monopolization here. And 
then when the case went en banc, the court as a whole came out 
the other way.
    But my understanding of the state of the scholarship on 
this issue right now and on the way economists view the issue 
is that I believe that, or many of them who believe that this 
is--a situation like this is not--does not involve 
monopolization. This is not a way in which a company like that 
can engage in a predatory practice over a period of time. But 
there is uncertainty, really, about how the monopolization 
standard applies to issues of bundling. So I think it's quite 
up in the air, and should it come up again, I think it merits 
reexamination.
    Senator DeWine. Thank you, Judge. Judge, you have heard a 
lot of discussion and many of us have said that we don't like 
it when judges legislate from the bench. For judges to properly 
perform their function, obviously, it is crucial that they 
attempt to put their own policy preferences aside in the cases 
before them. But it seems to me that this is a lot easier said 
than done.
    Our Constitution is not a dictionary. It contains a number 
of very broad, undefined phrases. Let me give you some 
examples. The Fourth Amendment prohibits unreasonable searches 
and seizures. The 14th Amendment says that the State shall not 
deprive any person of liberty without due process of law. The 
Eighth Amendment prohibits cruel and unusual punishments. I am 
sure you could supply a lot more examples than I am.
    When confronted with such broad phrases, like 
``unreasonable'' or ``liberty,'' ``cruel and unusual,'' how do 
you know whether you are making policy or merely interpreting 
the Constitution itself? What tools will you use as a Supreme 
Court Justice to ensure that your personal views do not play a 
role in your decisionmaking?
    Judge Alito. In all the areas that you mentioned, there is 
now a considerable body of case law, and that is a real 
limitation on the exercise of judicial power. That is one of 
the important reasons for the doctrine of stare decisis. In the 
78th Federalist Paper, when Alexander Hamilton was responding 
to the people who were worried about this power of judicial 
review, who thought that it would give the judiciary too much 
power, he specifically cited the fact that members of the 
judiciary would be bound up by precedent and this would 
restrain them. This would keep them from injecting their own 
views into the decisionmaking process.
    Under the Fourth Amendment, there is an enormous body of 
case law now and there are many types of searches that are--
it's established in case law that a warrant is required. There 
are types of searches where it's established now that the 
activity can be conducted with reasonable suspicion, a Terry 
stop, for example, other types of searches require probable 
cause. And there are many specialized types of searches, 
administrative searches, roadblocks constructed for certain 
purposes, border searches, and so forth.
    Under the Due Process Clause of the Fifth Amendment and the 
14th Amendment, there is a great body of case law on procedural 
due process and most of the due process issues involve 
procedural due process, what sort of process is required. There 
is a standard for cases involving the substantive component of 
that.
    Under the Eighth Amendment, since the Supreme Court in 
Gregg v. Georgia ruled that the death penalty is permissible 
under certain circumstances, there is a very large body and a 
complex body of case law within which a judge would work in 
deciding cases in that field.
    Senator DeWine. Judge, let me turn to an area that I talked 
with Judge Roberts about, and that is free speech in the public 
square. To me, there is perhaps no right in our Constitution 
that is really as important as freedom of speech. The heart of 
the First Amendment is the idea that people have a right to 
speak their mind but also be heard on matters of public 
concern. Traditionally, our citizens have expressed their 
opinion on public issues by turning to the public square. They 
do it in parks, streets, sidewalks, anywhere that people 
gather. It is as old as the country--older than our country.
    Lately, however, I believe that we are seeing a disturbing 
trend. In many cases, governments have sought to restrict 
speech in the public arena, sometimes with success, sometimes 
without. Let me give you some examples. In one recent case, a 
Wisconsin woman was kicked off a city bus when she tried to 
distribute a book containing Bible stories to individuals 
sitting next to her. In many towns and cities across the 
country, individuals are prohibited from placing political 
signs on their own property. They are told what size they can 
put out. They are told the times they can put it out, the dates 
they can put it out, et cetera. In many public places, 
individuals have been forced to hold up signs of protest and 
been confined to ``free speech zones,'' far away from the event 
that they wish to protest. These individuals are doing nothing 
more, many times, than just standing their with their sign.
    These sorts of restrictions concern me because they limit 
the ability of individuals not only to speak, but also to be 
heard in public places, people who want to talk about politics, 
religion, or any other matter of public concern. I think we 
need to be careful as a society before we limit what people can 
say and where they can say it.
    Let me ask you, how do you approach challenges to 
government restrictions on the ability of individuals to speak 
and be heard in public places, and what, Judge, factors do you 
consider when deciding which restrictions on speech in the 
public square are proper under the First Amendment and which 
ones are not?
    Judge Alito. I think that freedom of speech and freedom of 
the press and all the freedoms set out in the First Amendment 
are matters of the utmost importance. Freedom of speech is not 
only important for its own said, but it is vital to the 
preservation of our form of government, and I think that if 
anybody reviews that opinions that I've written in the area of 
freedom of expression and other First Amendment--
    Senator DeWine. I have looked at some of them, at least--
    Judge Alito. --they will see that I strongly support those 
rights.
    The issue of speech in particular places is a daunting 
issue. The Supreme Court has addressed it by developing the 
forum doctrine, and they have identified what they call a 
public forum, which would be something like a public street, 
where people's ability to speak is at the maximum. At the other 
extreme, there is a private forum. My chambers would be a 
private forum. A Senator's office would be a private forum. 
Someone would not have a right to come in from the street and 
speak in a place like that. And then there are what they call 
limited public forums or dedicated public forums or fora, 
places where people can speak freely, but only at particular 
times on particular subjects, a place that is dedicated to free 
speech but only on a particular subject, for example. That is 
the way they analyze it.
    Now, some people would say that there are developments in 
society that have resulted in the shrinking of public fora that 
make it more difficult for people to express themselves. I know 
that I'm not up to date on New Jersey case law under the New 
Jersey Constitution, but it's my belief that our State has read 
this--has a different forum doctrine in things like shopping 
centers. Malls that are privately owned are considered to be 
public fora under a New Jersey State law. I think some other 
States view it that way and that's a competing way of 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, it can't say, but we're not going to 
allow--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--the subject 
that they can talk about, government can't impose a viewpoint 
discrimination.
    Senator DeWine. 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 noted that you are certainly familiar with the 
issue of commercial speech. In the 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? How, 
if confirmed, will you approach the so-called commercial speech 
claims under the First Amendment?
    Judge 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. 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, and it's connected 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 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, I mean, 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.
    Senator DeWine. I thank you, Judge. That is an interesting 
set of facts. I thank you, sir.
    Chairman Specter. Thank you, Senator DeWine.
    Senator Feinstein?
    Senator Feinstein. Thank you very much, Mr. Chairman.
    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 is true, you have retired it on 
equanimity. I really think you are to be congratulated.
    This is in 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.
    My question is, did you mean it that way?
    Judge 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's been--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.
    Senator Feinstein. I always believe everything I read in 
the Washington Post.
    [Laughter.]
    Judge Alito. Well, that is an important principle, 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 in the--not going to 
reach a conclusion until they have gone through the judicial 
process. And it's not a facade, it's a--it's not a meaningless 
exercise. It's a very important one.
    Senator Feinstein. Let me try this. I would like to read a 
line 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 is the question.
    Specter: Judge Roberts, in your confirmation hearing for 
the Circuit Court, your testimony read to this effect, and it 
has been widely quoted. ``Roe is the settled law of the land.'' 
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 the 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, ``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 
precedentual value.''
    Roberts: I think the initial question for the judge 
confronting an issue in this area, you don't go straight to Roe 
decision. You being with Casey, which modified the Roe 
framework and reaffirmed its central holding.
    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 is 
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 is the Chief Justice. It seems to me appropriate for you to 
comment on it and say where you might differ with it.
    Judge Alito. Well, the statement covers a lot of ground, 
and let me try to remember the major points. I certainly agree 
with the point--
    Senator Feinstein. I can give it to you if you would like? 
Would that be helpful?
    Judge Alito. Certainly, I would be happy to look at it.
    Senator Feinstein. Would someone take it down to him? Show 
him the place.
    [Pause.]
    Judge 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, and 
obviously, the most recent ones are the relevant provisions of 
the Supreme Court.
    I have 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 re-examination of the merits of the issue, we 
think stare decisis counsel 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 I think--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.
    Senator Feinstein. But you do not agree that it is well 
settled in the Court?
    Judge Alito. I think that depends on what one means by the 
terms ``well settled.''
    Senator Feinstein. I actually agree with you, because 
others have said that, and then gone out and voted to overthrow 
it, so it is like saying, ``I have no quarrel with that.''
    Judge Alito. 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 to read your brief. I'm 
not going to listen to your argument. I'm not going to 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--
    Senator 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 cases pending in the court right now on 
one man/one vote, and that is where I have a hard time. The 
cases are Lulac v. Perry, Travis County v. Perry, Jackson v. 
Perry, and GI Form of Texas v. Perry. That is where I have a 
hard time. If you are 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.
    Judge Alito. I don't think it's appropriate for me to speak 
about issues that could realistically come up, and my view 
about 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 segregated racial--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--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 decisionmaking process.
    Senator Feinstein. OK. I will let you off the hook on that 
one.
    One of the reasons that some of us are so concerned about 
the Commerce Clause is because we see major law being 
overturned if the Rehnquist Court continues its march. Let me 
give you some examples concerning the environment, and these 
are cases that will be before you, so I do not expect you to 
comment on the case, but to understand them.
    The Clean Water Act was passed in 1972, and it included a 
provision permitting citizens or citizen groups to bring 
lawsuits for violation of the Act. In Public Interest Research 
Group of New Jersey v. Magnesium Electron, a citizen's 
environmental group sued a chemical manufacturer under the 
Clean Water Act for polluting a river used by members of the 
group. The trial court found that the defendant committed 150 
Clean Water Act violations. On appeal, you are the decisive 
vote in a 2-1 decision, overturning the trial court's decision, 
even though it was undisputed that the defendant committed the 
150 violations of the Clean Water Act.
    Your decision, as I understand it, was based upon your 
conclusion that the environmental group did not have standing 
to sue under the Clean Water Act, because even though members 
of the environmental group had stopped using the river due to 
the pollution, they did not prove any injury to the 
environment. The decision, if broadly applied, would have 
gutted the citizen lawsuit provision of the Clean Water Act.
    Now, 3 years later in Friends of the Earth v. Laidlaw, the 
Supreme Court, in a 7-2 decision, rejected this reasoning, and 
held that a citizen only needed to show that he or she was 
harmed by the Clean Water Act violation, and did not need to 
prove a broader injury to the environment.
    So you see where the concern comes with respect to 
overthrowing something on a technicality that can have enormous 
implications. Do you agree with the Supreme Court's decision in 
Friends of the Earth v. Laidlaw?
    Judge Alito. Well, it's a precedent of the Court, and I 
have respect for it, and as you mentioned--and it's governed by 
stare decisis, and as you mentioned, it was decided after the 
decision of my court in the Magnesium Electron case. And I 
haven't gone back and thought about the question of whether 
Laidlaw creates doubt about the soundness of the decision in 
Magnesium Electron. If it does, then it does, and if the issue 
were to come up again before the Third Circuit, for example, 
and I sat on the issue, then I would follow Supreme Court 
precedent if I concluded that it was in conflict with the 
decision of the prior court of appeals decision.
    We have--our jurisdiction, under the Constitution, is 
limited to cases and controversies, and the Supreme Court has 
said that means you have to have a plaintiff who has suffered 
injury in fact. And although there was a disagreement on the 
panel about the procedure we should use going forward, 
everybody on the panel agreed--Judge Roth and I who were in the 
majority, and Judge Lewis who dissented on a procedural point 
that I'll get to--that the plaintiffs in that case had not even 
alleged personal injury. They alleged that they enjoyed the 
Delaware River in a variety of ways. As I recall, they walked 
along the canal path, they ate fish from the river, they drank 
water from the river, but there was no evidence that the 
discharges into a creek some distance upstream from the river 
had had any effect whatsoever on the river, and therefore, 
there was nothing to support a claim that they were personally 
injured by the discharges of this plant.
    Now, there would presumably be other people who could take 
legal action against the plant for its violations of the law, 
and nobody would condone that, but our obligation under Article 
III is to confine ourselves to cases within our constitutional 
jurisdiction.
    Senator Feinstein. Of course you are going to have two 
cases challenging the application of the Clean Water Act to 
nonnavigable waters under the Commerce Clause, and as you 
probably know, we have lost 90 percent of the wetlands in the 
United States. This is a very big deal. I mean there are many 
of us that would hate to see wetlands be made virtually 
impossible because it is very difficult to prove when something 
becomes navigable, as opposed to nonnavigable, which is kind of 
the question that is before the Court. I only say that because 
if this march to restrict Congress continues, you could strike 
down the Endangered Species Act, you could strike down the 
Clean Water Act, you could strike down the Clean Air Act, and I 
think that would be catastrophic for the United States.
    If I can, let me just switch to another topic. A year ago 
all of us became very concerned and involved and some horrified 
with the Terri Schiavo case, and as I recall the case, the 
local courts held that her life support could be turned off. 
The State Supreme Court held the same thing. And then there was 
an effort--and I think a Federal district court held it--to 
bring it up to the Supreme Court. What do you believe the role 
of the Federal courts should be in the arena of end-of-life 
decisions?
    Judge Alito. Well, there's a constitutional issue, 
certainly, at the bottom of that and there are issues of 
jurisdiction. There are statutory issues and Congress specifies 
the jurisdiction of the lower courts and so Congress can give 
us a role in decisions of this nature or Congress can keep the 
Federal courts out of it and leave it to the State courts 
where, for the most part, issues in this area have been 
adjudicated. But if there is a Federal constitutional right 
involved, then someone may have jurisdiction--then, of course, 
the Federal courts have traditionally been a forum for the 
adjudication of Federal constitutional rights.
    The underlying statutory--I'm sorry, the constitutional 
issue is the one that the Supreme Court addressed in the Cruzan 
case and in the case of Washington v. Glucksburg, and this is 
obviously one of the most sensitive issues that comes up in our 
legal system and involves something that a lot of people have 
had to face and a lot more people are going to have to face 
decisions involving the end of life, and with the advances in 
medical technology, this is going to be a very tough issue for 
an awful lot of people.
    In Cruzan, the Court proceeded on--they said, we assume 
that there is a constitutional right to refuse medical 
treatment that a person doesn't want, and there certainly has 
long been a common law right to refuse medical treatment that a 
person doesn't want. If somebody gives you medical treatment 
and you say, ``I don't want it,'' and they perform an operation 
on you or do something like that, that's a battery under the 
common law and you can be sued, and the Supreme Court assumed 
that that was a fundamental right under due process but said 
that there wasn't a violation of the right under the 
circumstances in Cruzan, where the State of Missouri had 
imposed certain restrictions--regulations that had to be 
complied with before a person who was comatose could be taken 
off life support.
    And then in Washington v. Glucksburg, they addressed the 
issue of whether there was a constitutional right to assisted 
suicide and they concluded that there was not, that there 
were--and they applied the standard to be applied under the Due 
Process Clause or its substantive component, whether a right is 
firmly rooted in the traditions of our country and implicit in 
the concept of ordered liberty, but there were some concurring 
opinions that recognized that these were issues that were on 
the cutting edge of medical technology, let me put it that way, 
or they were issues on which more empirical evidence might 
become relevant in the future.
    Senator Feinstein. Thank you very much. I notice I just 
have 40 seconds left. Will we have another round, Mr. Chairman?
    Chairman Specter. Well, that is something that--let us talk 
about. I would very much like to finish today. As I said 
earlier, that may be an ambitious schedule, but let us talk 
about it.
    Senator Feinstein. Thank you.
    Chairman Specter. Senator Sessions?
    Senator Sessions. Thank you, Chairman Specter.
    Judge Alito, I want to thank you for your patience and good 
spirits and your thoroughness in answering questions. You have 
been very forthcoming. I think very few people could disagree 
that on case after case that you have been asked about, you 
have gone as far as you legitimately should go to express your 
understanding of the law and what is important there.
    I know your entire record has been examined extensively. 
You think about it, the FBI does a background check. They found 
out every place you lived and talked to your neighbors and 
checked your criminal history. The Department of Justice has a 
big inquiry that they do before they submit your nomination to 
the President, or the President submits your nomination to the 
Senate. The American Bar Association has interviewed 300 of 
your colleagues before they made their recommendation that you 
are well qualified in a unanimous vote. The Senate has its 
questionnaire. Outside groups look at it and create studies and 
data. They read everything you have written to find things that 
they might be unhappy with. So I think, all in all, you are 
coming through this with very little mud upon you, for which I 
congratulate you. I think it is something that you can be proud 
of. Most of us on this side of the aisle would not like to have 
our record scrutinized in the way yours has been.
    I know some of us have made mistakes in our statements 
already in the hearing, we have to admit. I will admit that I 
was one of them. I first said that you were ranked No. 4 in 
being the most independent judge out of 900 judges in the 
country. As I see the numbers more clearly, you were No. 4 out 
of 98 appellate judges examined in that system, but that still 
shows that you are an independent, nonideological judge, 
willing to--one of the factors they used was whether or not you 
always agreed with nominees of your party, and so I think that 
speaks well for your record and that is why you have gained 
such a broad respect from your colleagues.
    I just wanted to briefly mention some of these studies that 
go into your background. People have looked at it, incredibly, 
to the most minute detail. You were asked earlier about saying 
that you only rule one out of eight times for immigrants 
seeking asylum, but looking at the asylum cases nationwide, 
most of those are the government's position is affirmed. It has 
already been decided by a lower court or administrative body. 
You are simply reviewing their decision.
    But in immigrant asylum cases nationwide, the court of 
appeals generally ruled for the asylum-seeker 11 percent of the 
time. During your record on the bench, you ruled for asylum-
seekers 18 percent of the time. In your published opinions, the 
average court of appeals judge in America ruled for immigrants 
8 percent of the time. In your published opinions, you ruled 
for them 19 percent of the time.
    I think this not only shows that the charges against you 
there are not well placed, it shows just how carefully your 
record is being examined by people as you move through the 
system.
    Another example, civil rights. I think your critics have 
cherry-picked from some of your 4,800 cases that you have ruled 
on. In your opinions on civil rights, your panel was unanimous 
90 percent of the time, and when you sat on a panel where both 
the other judges were Democratic appointees, your decision was 
unanimous 100 percent of the time. So I think that speaks well 
for your overall record on civil rights. It certainly would 
indicate that you are not hostile to a legitimate civil rights 
complaint.
    You were asked about one environmental case by Senator 
Feinstein, and you ruled on that case based on standing. That 
is an important issue in the legal system, don't you agree?
    Judge Alito. It is--
    Senator Sessions. It is a well recognized principle.
    Judge Alito. It is a constitutional principle.
    Senator Sessions. It does not have to do with whether you 
were for or against the environmental issue in question, but 
simply whether the person bringing the suit was a legitimate 
person to bring that suit.
    Judge Alito. That's right, and it doesn't have anything to 
do with Congress's power to regulate the environment under the 
Commerce Clause. That's a separate question. Congress--it's 
totally separate. One has to do with the scope of congressional 
power. The other has to do with who can bring the suit.
    Senator Sessions. And with regard to environmental cases, 
you have rendered, according to one of these studies, you have 
authored six environmental opinions. You sided with the 
environmental regulatory body in five of those six opinions. 
Indeed, Professor Cass Sunstein, who has served as an advisor 
to the Democratic members of this Committee on changing the 
ground rules of confirmation, which was really a precursor to 
the commencement of a filibuster, Professor Cass Sunstein said 
this about you. Quote, ``This is a judge who, if the text is 
pro-environment, he is very likely to follow it. This is not 
someone who, like some judges, has a kind of pro-business 
orientation in his approach to the law.'' I think that is also 
a statement that you can take pride in.
    I would offer for the record, Mr. Chairman, another article 
by Stuart Taylor of the National Journal, Monday, December 12, 
in which he, in a very effective way, dismisses much of the 
complaints that have been made against Judge Alito--
    Chairman Specter. Without objection, that will be made part 
of the record.
    Senator Sessions. He says the systematic--this is his 
quote. ``The systematic slanting, conscious or unconscious, of 
this and many other news reports have helped fuel a 
disingenuous campaign by liberal groups and Senators to 
caricature Alito as a conservative ideologue. In fact, this is 
a judge who, while surely too conservative for the taste of 
liberal ideologues, is widely admired by liberals, moderates, 
and conservatives who know him well as a fair-minded, committed 
to apolitical judging and wedded to no ideological agenda other 
than restraint in the exercise of judicial power,'' close 
quote. I would offer that for the record.
    Also, with regard to your challenges on Vanguard, on 
matters that have impacted your integrity, I would like to 
quote from the American Bar Association's interview 
questionnaires that they did on you among those who know you 
well. 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 conflict 
allegations. They go on to say, ``To the contrary, consistent 
and virtually unanimous comments from those interviewed include 
he has utmost integrity, he is a straight-shooter, very honest 
and calls them as he sees them.'' These are quotes 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 the legitimacy of some of those 
concerns?
    Judge Alito. Well, I do, Senator, and I--
    Senator Sessions. Regardless of the technical laws it 
involves, but just that fundamental policy.
    Judge 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 would be--that was 
thought by the city to be beneficial to the economic welfare of 
the city, but 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.
    Senator Sessions. Well, let's talk about that a little bit. 
Because this is a matter of real power and it is a matter that 
the Congress gets drawn into sometimes whether we want to be 
drawn into it or not. We have 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, a Federal court, on 
marriage, on redefining the traditional statutory definition on 
marriage contained in States and in State constitutions around 
the country. In Kelo, it is 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 could 
include some private redevelopment on the area, in their minds.
    See, that is not founded in the Constitution. That is an 
overreach, in my opinion. On the Pledge of Allegiance case, the 
Newdow case, the Ninth Circuit, which includes approximately 20 
percent of the people in the United States, ruled that the 
Pledge of Allegiance was unconstitutional. The Supreme Court 
sort of side-stepped the fundamental issue and said that there 
was not standing on behalf of Mr. Newdow, and sent that back to 
a lower court. He now got him some plaintiffs that apparently 
have standing. He has taken it to the district court in 
California, and he has won that case. They have concluded that 
the Ninth Circuit law remains in effect so that 20 percent of 
the population of the United States, really, are not able, if 
you follow that opinion, to render the Pledge of Allegiance. 
Yet we have chaplains and In God We Trust in the Senate chamber 
and those kind of issues.
    So I don't believe that that is founded in the 
Constitution. I think the American people do not. And they are 
asking some real questions of us. So I guess I won't try to get 
you drawn into those.
    But I want to do this. The doctrine of judicial review, 
Marbury v. Madison. You already indicated Hamilton didn't favor 
that. But the Court found it. But it is not expressly stated in 
the Constitution, is it?
    Judge Alito. No, it's not.
    Senator Sessions. And it definitely shifts the balance of 
power between the branches because the Court now has the power 
to, by a stroke of its pen, five of its nine members, to strike 
down any law they say violates the Constitution. That is true, 
is it not?
    Judge Alito. Well, they decide constitutional questions, 
and the doctrine has been established since Marbury v. Madison, 
that's right.
    Senator Sessions. Well, but there are explicit powers given 
to the Congress. And Senator Coburn raised some of those. 
Article III, Section 2 has these words: ``In all the other 
Cases before mentioned,''--this is the Constitution's grant of 
power to the courts--``the supreme Court shall have appellate 
Jurisdiction, both as to Law and Fact, with such Exceptions, 
and under such Regulations as the Congress shall make.''
    Now, those words are in the Constitution, are they not?
    Judge Alito. Yes, they are.
    Senator Sessions. And as you said, if the words are 
expected to have some meaning, you would give them some 
meaning, at least, would you not?
    Judge Alito. I think that's undisputed, that they have a 
meaning.
    Senator Sessions. So Congress has some power here. We have 
not exercised that power, certainly in recent years. In Ex 
Parte McCardle, the Supreme Court in 1869 agreed that, though 
the judicial power is conferred by the Constitution, it is 
conferred under such exceptions as Congress shall make. Then 
there is the Impeachment power--the Senator mentioned that. And 
then the establishment of lower courts. Article III, Section 1 
says, ``The judicial Power of the United States, shall be 
vested in one supreme Court, and in such inferior Courts as 
Congress may from time to time establish.'' That indicates that 
Congress can establish or disestablish courts, does it not?
    Judge Alito. I think it's undisputed that the so-called 
inferior courts--and I don't particularly like the term as a 
judge of the court of appeals--but the so-called inferior 
courts are totally the creation of Congress.
    Senator Sessions. Now I would just ask you to comment on 
this thought. Chief Justice Roberts, in his hearings--and I 
asked him some questions similar to this--indicated that he was 
concerned about activism by the Court, overreaching by the 
Court, and he felt that this overreaching had the--created a 
danger that it could undermine respect for law in our country. 
Do you share that view?
    Judge Alito. I agree that overreaching by the courts can 
undermine respect for law. Our authority is based on the belief 
that what we are doing is different from what Congress is 
doing. Because otherwise, why would people tolerate our 
functioning? Nobody elects us. And we have a system of 
Government that is fundamentally democratic. It's based on the 
sovereignty of the people. So how do you explain an unelected 
branch of Government making decisions?
    So all of our authority is based on the idea, which was 
expressed in Marbury v. Madison, that the Constitution is law. 
It's not conceptually different from statutory law. And our job 
is to interpret the Constitution--it has a meaning--and apply 
it to the situations that come up.
    Senator Sessions. Well, right now there is a strong feeling 
that I share that the Court on some very important issues that 
people care deeply about is exceeding its authority. They are 
calling on me and members of--and those of us in Congress to do 
something about it. I get a lot of letters saying withdraw 
jurisdiction, why aren't you supporting legislation to do that? 
And Congress, I think, has shown restraint.
    But I hope that when you become a member of this august 
body, the Supreme Court--and I believe you will--that you will 
take those concerns with you and share with the members of the 
Court that their views on policy issues are of no greater value 
than mine, frankly--at least in my opinion they are not--and 
that the Congress has been showing some restraint here. But we 
really want the Court to be more modest and to draw back from 
some of its intervention in policy issues that are causing much 
angst around the country.
    If you want to comment on that. Otherwise, Mr. Chairman, I 
would yield my time.
    Judge Alito. Well, Senator, I think your policy views are 
much more legitimate than the policy views of the judiciary 
because Members of Congress are elected for the purpose of 
formulating and implementing public policy. And members of the 
judiciary are appointed for the purpose of interpreting and 
applying the law.
    Senator Sessions. Thank you very much.
    Chairman Specter. Thank you, Senator Sessions.
    We will now stand in recess until 4:20.
    [Recess 4:04 p.m. to 4:20 p.m.]
    Chairman Specter. The hearing will resume.
    We will turn to Senator Feingold for 20 minutes.
    Senator Feingold. Thank you, Mr. Chairman.
    Good afternoon, Judge. I hope, if nothing else, you 
associate me with breaks in the proceedings, because it seems 
to happen every time my questions are up.
    Judge, yesterday I asked you about your preparation for 
these hearings over the past few months with a variety of 
practice sessions. You confirmed that you had had these 
sessions and that a great variety of subjects came up in them, 
and that is fine. I know this is not an easy process, and I 
would certainly expect you to prepare in this way.
    What I want to ask now, though, is simply if you can 
provide a list of all the people who participated in any of 
those practice sessions, and I would request that the folks 
here sitting behind you in back of the Department of Justice 
help you put that list together this evening and get it to us 
tomorrow morning so that we have time to ask about it during 
tomorrow's session, if necessary. Can you do that for me, 
Judge?
    Judge Alito. I certainly have no objection to that.
    Senator Feingold. Thank you very much. Now I want to get 
into a subject that really requires some attention here and 
hasn't had much attention given the important role that it 
plays in the job of a Supreme Court Justice, and that is the 
issue of capital punishment or the death penalty.
    Judge Alito, the idea that defendants are entitled to 
effective legal representation is a fundamental part of our 
criminal justice system. In fact, of course, it is enshrined in 
the Sixth Amendment's guarantee that the accused have ``the 
assistance of counsel for his defense.'' Nowhere is this 
guarantee obviously more important than in cases where the 
defendant's life is on the line. In a death penalty case you 
decided in 2004 called Rompilla v. Horn, you rejected the 
defendant's argument that his attorneys had failed to do an 
adequate investigation to prepare for his sentencing hearing. 
As a result, key mitigating evidence about his horrible 
childhood was never presented to the sentencing jury, which 
ultimately sentenced him to death.
    As you know, the Supreme Court reversed your decision, 
ruling that the defense attorney's failure to even review 
evidence they knew the prosecution was going to introduce at 
sentencing violated the Sixth Amendment. This case was one of 
several Supreme Court cases in recent years to express 
particular concern--particular concern about the adequacy of 
indigent representation and the fairness of the capital 
sentencing process.
    In fact, in several recent decisions, including Rompilla, 
the Court has overturned death sentences because defense 
attorneys did not do adequate investigations to turn up 
potential mitigating evidence and because jury instructions did 
not clearly allow jurors to consider any and all possible 
mitigating evidence. And Justice O'Connor, whom you have been 
nominated to replace, has, of course, often been the author or 
the deciding vote in these cases.
    Judge, what are your views on these issues? Is the Court's 
recent emphasis on the importance of fully developing and 
considering mitigating evidence in capital sentencing 
proceedings headed in the right direction?
    Judge Alito. It is vitally important that all criminal 
defendants receive effective representation, and I could not 
agree with you more strongly that this is of the utmost 
importance in death penalty cases where so much is at stake.
    In the Rompilla case that you mentioned, we had to apply 
the standard of review that is set out in the habeas corpus 
statute as revised by Congress. And where there has been a 
determination on the merits by the State courts on an issue 
like whether a defendant received effective representation 
within the meaning of the Sixth Amendment and where the State 
courts have applied the correct legal standard, we are not 
allowed to disturb their decision unless what they did was 
unreasonable.
    Senator Feingold. Well, let me ask you then, because you 
are obviously pointing out the fact that you approached the 
Rompilla case as an appellate court judge bound by prior 
Supreme Court precedent, and yet you found that no 
constitutional violation had occurred. And I believe when we 
discussed this case in my office, you indicated you still think 
your decision was correct.
    So the question now is: Would your approach have been any 
different as a Supreme Court Justice? What about your decision 
on the outcome of the case?
    Judge Alito. Well, my decision, I spoke directly to the 
issue in the Rompilla case as I saw it when it came before me. 
And my evaluation of the performance of the attorneys in that 
case was fully set out in the opinion that I wrote. They were--
one of them was a very experienced criminal defense attorney. 
He was the head of the public defender's office, and there was 
no dispute whatsoever that this was an attorney of competence 
and experience and great dedication to the defendant in this 
case, and that attorney was assisted by another attorney in the 
office, and together they were extremely dedicated to this 
case.
    Now, a number of judges took a look at this. All of the 
Pennsylvania judiciary, with the possible exception of one 
justice--I can't remember clearly whether there was one justice 
who disagreed--thought that there had been effective 
representation provided in this case.
    Senator Feingold. This really isn't about the difference 
between being on the court of appeals and the Supreme Court. 
You apparently, based on what you know, would have ruled the 
same way had you been on the Supreme Court.
    Judge Alito. Well, my evaluation of the facts of the case 
would be the same. Now, if a case came--
    Senator Feingold. In other words, that there was not a 
violation of the Sixth Amendment.
    Judge Alito. Well, I should add, however, that if a case 
came up in the future, the Supreme Court's decision in that 
case is a precedent that I would have to deal with. And they--
    Senator Feingold. Fair enough.
    Judge Alito [continuing]. Expressed a view as to how the 
standard applies to the facts of the case. It was a 5-4 
decision. But it would be a precedent that I would follow.
    Senator Feingold. Well, now let's go back to my original 
question, which is, Do you think the Supreme Court has been 
heading in the right direction in these cases?
    Judge Alito. Well, I think that the Supreme Court is 
correct in viewing this as a very important part of the 
criminal justice system, and in particular, a very important 
part of the representation of clients in Eighth Amendment 
cases.
    Senator Feingold. Isn't the Court doing more than that? The 
Court is moving in the direction of giving greater recognition 
and ruling on the inadequacy of counsel in this case.
    Judge Alito. And I think it's entirely appropriate that 
there be a searching review in every case as to whether a 
defendant in any criminal case, but in particular, of course, 
in a capital case, has received the representation that the 
defendant is entitled to under the Sixth Amendment.
    Senator Feingold. Do you think your replacing Justice 
O'Connor will change the direction of the Court in this regard?
    Judge Alito. I would approach these cases under the law 
that the Supreme Court has established in this area, with the 
recognition that I have attempted to explain of how important I 
believe this right is in all cases and in death cases in 
particular. When the Supreme Court reviews a case that has come 
up through the Federal system, in a habeas proceeding, then the 
Supreme Court, just like my court, should apply the standards 
that are set out in the habeas corpus statute.
    Senator Feingold. Let's go to a different one. Wiggins v. 
Smith is a Supreme Court case decided in 2003 also addressing 
inadequate mitigation investigation. In that case, Justice 
O'Connor, writing for the majority, found trial counsel 
ineffective for failing to conduct an adequate investigation 
into possible mitigating evidence that could be presented at 
sentencing. Had the attorney done adequate investigation, he 
would have found abundant evidence of childhood physical and 
sexual abuse as well as diminished mental capacity. Do you 
think that case was right decided?
    Judge Alito. Well, I discussed Wiggins in Rompilla, and I 
thought that it was distinguishable. Wiggins, as described, as 
I recall it, was a case where the attorney had reason--the 
attorney simply didn't conduct an investigation without any 
sound strategic reason for not investigating a particular 
matter.
    Senator Feingold. So you have no sense that that was 
wrongly decided?
    Judge Alito. I have no sense that that was wrong. I thought 
it was different from the Rompilla case.
    Senator Feingold. According to two independent studies, 
your record in death penalty cases has been more anti-capital 
defendant even than most Republican-appointed judges. In fact, 
in every disputed capital case that you heard, that is, cases 
in which a panel of three judges did not all agree, you would 
have ruled against the defendant. How do you explain this 
seeming tendency to favor the Government in capital cases?
    Judge Alito. I have only sat on a handful of capital cases, 
and in some of them I voted to uphold the death penalty, and in 
a number of them I voted to strike down the death penalty. In 
Carpenter v. Vaughn, I voted to strike down the death penalty. 
In the most recent death penalty case I sat on, the Bronshtein 
case, I voted to strike down the death penalty because of the 
procedure that was followed at the penalty phase in that case. 
In the Cruz case, I was part of a panel that vacated a decision 
of the district court rejecting the claim of a habeas 
petitioner. There have been other cases where I voted to uphold 
the death penalty.
    Senator Feingold. Justice Stevens recently gave a speech at 
the American Bar Association in which he raised a number of 
serious concerns about the administration of the death penalty. 
He pointed to aspects of capital proceedings that he believes 
unfairly tilt the balance in favor of the prosecution both at 
the trial and sentencing stages. Specifically, he raised 
concerns about the jury selection process, arguing that jurors 
are questioned so extensively about the death penalty that they 
might assume their role is primarily to decide this sentence 
for a presumptively guilty defendant.
    He also argued that a representation of indigent defendants 
remains an issue that has not been adequately addressed, and he 
noted that elected State judges may have a ``subtle bias'' in 
favor of death because they have to face re-election.
    Now, I know all of us on this Committee have the greatest 
respect for State court judges, but we all can understand the 
pressures of a re-election campaign. So what are your views on 
the potential of these three issues--the jury selection, the 
inadequate representation, and an elected judiciary--to skew a 
capital prosecution against the defendant? And do you share 
these concerns that Justice Stevens outlined?
    Judge Alito. I certainly share a concern that there should 
be a fair procedure for the selection of jurors. That certainly 
is a concern. The issue of the election of judges at the State 
level or the appointment of judges at the State level is a 
matter for State legislatures to decide, and within my circuit, 
we have three States. In New Jersey and in Delaware, the State 
judiciary is appointed; in Pennsylvania, the State judiciary is 
elected. And I've had the opportunity to view the work of all 
three of the Supreme Courts in those States, and I think they 
all are of a very high quality. I think the elected judges in 
Pennsylvania do a conscientious effort to carry out their 
responsibilities, and I think--I have a high regard for the 
judiciary in all of those States.
    So based on the experience of--on my experience, I think 
you can have highly competent and certainly conscientious State 
judges who are appointed and the same sort of judges who are 
elected. And, of course, we do have habeas corpus and it is an 
important--it's important to make sure that constitutional 
rights are respected, and the scope of the review that we 
conduct under habeas is up to Congress. Congress reformulated 
the standards in the AEDPA, in the Antiterrorism and Effective 
Death Penalty Act of 1996, limiting our review, and it's our 
obligation to conduct the kind of review that Congress has 
indicated we should be conducting.
    Senator Feingold. Well, Judge, it sounds like you perhaps 
have a lesser level of concern about some of these matters than 
Justice Stevens. The only thing I would note is that one of the 
most striking things about the history of Justices that have 
gone to the Court sometimes who are pro-death penalty, an 
amazing number have come to the conclusion that this is the one 
area where, once they get there, they realize that these 
problems are much more severe than they might have thought 
before they became Supreme Court Justices, and I, should you be 
confirmed, look forward to how you react to these issues after 
you've become a Supreme Court Justice, should you do so.
    In the past few years, the Supreme Court has limited the 
application of the death penalty based on the Eighth 
Amendment's ban on cruel and unusual punishment. In Atkins v. 
Virginia, the Court ruled that mentally retarded inmates cannot 
be executed, and in Roper v. Simmons, it held that individuals 
who were minors when they committed capital crimes cannot be 
executed as punishment for their actions.
    Do you agree with these decisions?
    Judge Alito. Those decisions applied the standard that the 
Supreme Court formulated sometime earlier in determining 
whether the imposition of the death penalty on particular 
categories of defendants would violate the Eighth Amendment, 
and they looked to evolving standards of decency. And that is a 
line of precedent in the Supreme Court, and those are 
precedents of the Supreme Court, and they're entitled to the 
respect of stare decisis.
    Senator Feingold. Can you just tell me what your general 
approach to the Eighth Amendment would be in the context of the 
death penalty?
    Judge Alito. My approach would be to work within the body 
of precedent that we have. As I mentioned earlier, the Supreme 
Court has devoted a lot of attention to this issue since 1976 
when it held that the death penalty is permissible, provided 
that adequate procedures are implemented by the States so that 
the decision about who receives the death penalty and who does 
not is not arbitrary and capricious, so that there is a 
rationality to the selection process. And the rules in this 
area are quite complex, but I would work within the body of 
precedent that is available.
    Senator Feingold. Let me go to a topic that we have talked 
about before. We had a good discussion of the recusal issue in 
the Vanguard case yesterday, and I hadn't intended to ask more 
about it. But your discussions with Senator Kennedy and Senator 
Hatch today make further questioning a little bit necessary.
    Senator Hatch noted that the Committee's questionnaire 
asked about financial conflicts of interest during the period 
of your initial service as a judge. Now, the reason for wording 
the question like that, of course, is that nominees have no way 
of knowing when they are up for confirmation whether they will 
have the same investments 5, 10, 25 years later. The Committee 
obviously can't ask for a comprehensive list of possible future 
financial conflicts. So, for example, if you have stock in 
Microsoft and you list that as a financial conflict on your 
questionnaire, you still have to recuse yourself from a 
Microsoft case 15 years later if you still have the stock. 
Isn't that right?
    Judge Alito. If you're required to recuse yourself if you 
have stock in Microsoft, even one share, you must recuse 
yourself.
    Senator Feingold. You still have to recuse yourself even if 
it is 15 years later, right?
    Judge Alito. Certainly that's true.
    Senator Feingold. So the question in the Senate 
questionnaire about financial investments is not time-limited 
based on the question being about initial service on the court, 
is it?
    Judge Alito. Well, I want to be clear on my answer 
respecting this as it bears on the Monga case, the Vanguard 
case, because that's what we're discussing.
    The wording of the Senate questionnaire was not the reason 
for the way I settled the case, and I've tried--
    Senator Feingold. I just want to know if you have any 
question in your mind why the question is phrased that way on 
the questionnaire.
    Judge Alito. Reading the question, it does seem to me that 
``initial period of service'' is a temporal limitation.
    Senator Feingold. I want to be sure we don't leave the 
impression from these hearings that people don't have an 
obligation to recuse themselves from a financial conflict just 
because of the passage of time. You have already indicated if 
that financial conflict continues, that is an indefinite and 
permanent restriction until that financial holding is gone. 
Isn't that--
    Judge Alito. Absolutely, and that's under the Code of 
Judicial Conduct, Canon 3(C)(3) I think it is. If you have a 
financial interest, you must recuse yourself, and that's, of 
course, a continuing obligation.
    Senator Feingold. It is not temporal?
    Judge Alito. The obligation to comply with the code of 
conduct for Federal judges applies to every Federal judge for 
as long as they serve.
    Senator Feingold. And that is why I have to say that I am a 
bit frustrated that people are trying to obscure what I think 
was pretty clear testimony by you yesterday by bringing up this 
period of initial service issue. In response to Senator 
Kennedy, you made it clear again that your failure to recuse in 
the Vanguard case had nothing to do with the suggestion that 
your promise was time-limited. But I want to get this on the 
record again, and hopefully this will lay any confusion to 
rest. This idea that your promise to the Committee was somehow 
limited to your initial service on the court, that was not the 
reason you failed to recuse yourself from the case in 2002, was 
it?
    Judge Alito. It was not the reason in 2002. I do think 
reading the question, it has a temporal limitation. If that 
wasn't the intent, I think people could read it--certainly when 
you say ``initial period of service,'' people will read that to 
mean--
    Senator Feingold. This has nothing to do with why you 
didn't recuse yourself.
    Judge Alito. It did not have to do with what I did in the 
Monga case.
    Senator Feingold. And it is not as if you noticed that 
Vanguard was a party, remembered your promise to the Committee, 
and then made a specific decision not to recuse because the 
promise had expired?
    Judge Alito. No, it was not that at all.
    Senator Feingold. And you finally added Vanguard to your 
standing recusal list in December 2003 and it is on your list 
today. Isn't that right?
    Judge Alito. It is on my list today.
    Senator Feingold. Do you plan to recuse yourself from 
Vanguard cases that come before the Supreme Court if you are 
confirmed for as long as you keep your Vanguard mutual funds?
    Judge Alito. Well, if I am confirmed, I will very strictly 
comply with the ethical obligations that apply to Supreme Court 
Justices. Supreme Court recusals are a bit different from 
recusals in the court of appeals, and so the obligation to sit 
when you are not recused is one that has to be considered very 
seriously by somebody on the Supreme Court or, I would think, 
on a State supreme court, for example.
    Senator Feingold. Is there any question, if you still have 
holdings in Vanguard and a case comes before the Supreme Court 
that you should recuse yourself?
    Judge Alito. Well, under the Code of Judicial Conduct, I 
don't believe that I am required to recuse myself in Vanguard 
cases. And I would strictly comply with the ethical obligations 
that apply to a Supreme Court Justice.
    Senator Feingold. You are not going to make a promise here 
that you are not going to rule on Vanguard cases while you have 
holdings in Vanguard when you are on the Supreme Court?
    Judge Alito. Well, what I want to say about recusals on the 
Supreme Court is that the decisionmaking process on the Supreme 
Court, or any court with a fixed membership, a fixed number of 
jurists who sit on each case, recusal in that situation 
creates--affects the decisionmaking process because instead of 
having 9 Justices, you have 8, you have the potential for a 
tie.
    On the court of appeals, that is a much less significant 
consideration because we always sit in panels of three, we have 
many judges on our court and many cases, so if I don't sit on a 
case involving Vanguard, it just means somebody else will sit 
on the case involving Vanguard, it will still be decided by a 
three-judge panel.
    Senator Feingold. I would add on that point that that may 
be true, but it is also true that the Supreme Court is the last 
stop, and if somebody does not recuse himself, there is really 
no remedy, and that is why it is so important that somebody 
would recuse himself.
    Judge Alito. It is very important for somebody on the 
Supreme Court to fulfill strictly the obligation not to sit 
when the person should not sit, but it's also important for--
given the matters that I just discussed--for a Justice to sit 
if the Justice is not required to recuse.
    Senator Feingold. Judge, my time is up.
    Mr. Chairman, we do not yet have the communication from 
Judge Alito to the clerk on December 10th, 2003 that caused 
Vanguard to be added to his standing recusal list, and whether 
that was an e-mail or a form that Judge Alito filled out or 
something else, we have requested it, so I am just asking for 
the assistance of the Chairman in getting that document so we 
can complete the record.
    Chairman Specter. Senator Feingold, we will take a look at 
it and see what the facts are.
    Senator Feingold. Thank you.
    Chairman Specter. Thank you, Senator Feingold.
    Senator Graham?
    Senator Graham. Thank you, Mr. Chairman.
    Judge Alito, maybe we could continue with the Vanguard 
issues just for a moment, and I know you have been asked every 
conceivable combination of questions, but Senator Feingold is 
very sincere about ethics in Government. He practices what he 
preaches, and he has been one of the leaders trying to make 
this place operate better. My impression of you is that you are 
a good model for judges in terms of ethical conduct based on 
what everybody says who knows you. I do not claim to be a close 
associate of yours, but the ABA has looked at this and said 
that it did not reflect poorly on you. Three hundred lawyers 
and judges who know you have said that you are just really sort 
of what we want in a judge, and maybe that is not enough, but 
that is a pretty good start. I do not think you could get 300 
people to say that about me or some of us, but.
    The question I have, the criminal prosecutor or lawyer in 
me has this question to ask: why would you make a conscious 
decision not to recuse yourself? Why would Judge Alito sit down 
in the corner of a room and say, ``I think I've got a conflict, 
but I'm just going to let it go and hear the case anyway?'' I 
am baffled as to why you would make a conscious decision in 
this situation not to recuse yourself. Do you have an 
explanation?
    Judge Alito. There's no reason why I would make such a 
conscious decision. I had nothing whatsoever to gain by 
participating in this case, and nobody has suggested that I 
did. This case involved some thousands of dollars. Vanguard 
manages billions of dollars of funds. The idea that the outcome 
of this case could have some effect on the mutual funds that I 
hold is beyond preposterous, and I don't understand anybody to 
have suggested anything like that.
    Senator Graham. I have been asking myself that question 
quietly, what is in it for this guy? Why would he bring all of 
this grief upon himself consciously? Is it to intentionally 
break a promise to the Senate so you would go through hell for 
3 days? I do not think so. So I am going to accept your word, 
like the ABA, and I am going to move on, and I do not know if 
anybody else will.
    Now, your days at Princeton, the more I know about 
Princeton, it is an interesting place.
    [Laughter.]
    Senator Graham. What is an eating society?
    Judge Alito. It's a--the eating clubs are privately owned 
facilities where upperclassmen join for the purpose of taking 
their meals. The first 2 years, when I was there--the situation 
is now a bit more diversified as far as eating is concerned--
but when I was there, and traditionally, the freshmen and 
sophomores ate in university dining halls, and then as juniors 
and seniors they had to find other places to eat, and these 
were private facilities.
    Senator Graham. What is a selective eating society?
    Judge Alito. It's one where you apply to be a member like a 
fraternity, and you go through a process that is somewhat 
similar to that, and they select you if they like you.
    Senator Graham. Were you a member of a selective eating 
society?
    Judge Alito. No, I was not.
    Senator Graham. Did people not like you, or--
    [Laughter.]
    Senator Graham [continuing]. You just did not apply?
    Judge Alito. I didn't apply.
    Senator Graham. Let me tell you who did apply. Donald 
Rumsfeld was a member of a selective eating society at 
Princeton, and that is an interesting comment I thought. 
Woodrow Wilson, Jim Leach, good friend of mine over in the 
House. Mitch Daniels, the Governor of Indiana, was a member of 
a nonselective eating society. Senator Claiborne Pell was a 
member of nonselective eating societies. And other Princeton 
alumni who are Members of Congress could not verify their 
participation or lack thereof in eating clubs, including 
Senator Sarbanes, Bond, Frist and Representative Marshall, and 
I promise you, I will get to the bottom of that before this is 
all done.
    [Laughter.]
    Senator Graham. This organization that was mentioned very 
prominently earlier in the day, did you ever write an article 
for this organization?
    Judge Alito. No, I did not.
    Senator Graham. Some quotes were shown from people who did 
write for this organization that you disavowed. Do you remember 
that exchange?
    Judge Alito. I disavow them. I deplore them. I--they 
represent things that I have always stood against, and I can't 
express too strongly.
    Senator Graham. If you do not mind, the suspicious nature 
that I have is that you may be saying that because you want to 
get on the Supreme Court, that you are disavowing this now 
because it does not look good. Really, what I would look at to 
believe you or not--I am going to be very honest with you--is 
how have you lived your life? Are you really a closet bigot?
    Judge Alito. I'm not any kind of a bigot. I'm not--
    Senator Graham. No, sir, you are not. And you know why I 
believe that? Not because you just said it, but that is a good 
enough reason because you seem to be a decent, honorable man. I 
have reams of quotes from people who have worked with you, 
African-American judges--I have lost my quotes, I do not know 
where they are--but glowing quotes about who you are, the way 
you have lived your life, law clerks, men and women, black and 
white, your colleagues who say that ``Sam Alito, whether I 
agree with him or not, is a really good man.''
    And do you know why I believe you when you say that you 
disavow those quotes? Because of the way you have lived your 
life and the way you and your wife are raising your children. 
Let me tell you this, guilt by association is going to drive 
good men and women away from wanting to sit where you are 
sitting. And we are going to go through this ourselves as 
Congressmen and Senators. People are going to take the fact 
that we got a campaign donation from somebody who is found out 
to be a little different than we thought they were, and our 
political opponents are going to say, ``Aha, I got you.'' And 
we are going to say, ``Wait a minute. I didn't know that. I 
didn't take the money for that reason.'' You know what? I am 
going to believe these Senators and Congressmen for the most 
part because that is the way we do our business. We meet people 
here every day. We have photos taken with people, and sometimes 
you wish you did not have your photo taken. But that does not 
mean that you are a bad person because of that association.
    Judge Alito, I am sorry that you have had to go through 
this. I am sorry that your family has had to sit here and 
listen to this.
    Let's talk about another time not so long ago, and another 
judge, and some of her writings, and see if the Senate is 
changing for the better or for the worse. Justice Ginsburg, who 
I need to go have a cup of coffee with because I constantly 
bring her up, and I do not dislike the lady, I admire her. But 
let's put it bluntly, under today's environment from a 
conservative's point of view, she would have a very hard time, 
because Justice Ginsburg was the General Counsel for the ACLU 
from 1973 to 1980, and if you want me to tar somebody by their 
association, I can put up some pretty wild cases from my point 
of view where she was involved. But you know what? I respect 
her because her job as an attorney for the ACLU is to represent 
the most unpopular causes. As far as I can tell, during her 
time with the ACLU, she was honest, she was ethical, and she 
fought for the most unpopular causes, and for that, I respect 
her.
    But you put some things down on an application about your 
view of the law in Roe v. Wade, and it is taking an 
unbelievable effort on your part, I think, to convince people 
that when I was a lawyer I did this, when I applied for a job I 
was doing this, and as a judge I will do this.
    Here is what Justice Ginsburg said in an article she wrote 
titled ``Some Thoughts on Autonomy and Equality in Relationship 
to Roe v. Wade.'' ``The conflict, however, is not simply one 
between a fetus's interest and a woman's interest, narrowly 
conceived. Nor is the overriding issue State versus private 
control of a woman's body for a span of 9 months. Also in the 
balance is a woman's autonomous charge of her full life's 
course, her ability to stand in relation to man, society and 
the State as an independent self-sustaining equal citizen.''
    She wrote further, ``As long as the Government paid for 
childbirth, the argument proceeded, public funding could not be 
denied for abortion, often a safer and always a far less 
expensive course short and long term. By paying for childbirth 
but not abortion, the Government increased spending and 
intruded upon or steered a choice. Roe had ranked as a woman's 
fundamental right. The public funding of abortion decisions 
appear''--denying a requirement of public funding appear 
``incongruous following so soon after the intrepid 1973 ruling. 
The Court did not adequately explain why the fundamental choice 
principle and trimester approach embraced in Roe did not bar 
the sovereign, at least at the previability stage of pregnancy, 
from taking sides and being required to provide funding for the 
abortions of poor women.''
    If that writing does not suggest an allegiance to Roe, if 
that writing does not suggest from her point of view as the 
author of that article, not only is Roe an important 
constitutional right, the Government ought to pay for abortions 
in certain circumstances. If she were here today, and a 
Democrat President had nominated her, and we take on the role 
that our colleagues are playing against you, not only would she 
not have gotten 96 votes, I think she would have been for a 
very rough experience. And what has changed?
    Justice Ginsburg openly expressed a legal theory about Roe 
v. Wade. My question to you, if I am arguing a case that would 
alter Roe v. Wade, would I have the ability, because of her 
prior writings, to ask her to recuse herself based on those 
writings alone?
    Judge Alito. I don't think you would, Senator. I think it's 
established that prior writings of a member of the judiciary do 
not require the recusal of that member of the judiciary.
    Senator Graham. I think you are absolutely right, Judge. 
Let me tell you what she said at the hearing when it was her 
time to sit where you are sitting. ``You asked me about my 
thinking on equal protection versus individual autonomy. My 
answer is that both are implicated. The decision whether or not 
to bear a child is central to a woman's life, to her well-being 
and dignity. It is a decision that she must make for herself. 
When Government controls that decision for her, she is being 
treated as less than a fully adult human responsible for her 
own choices.''
    A sentiment that I think our pro-choice colleagues share, a 
sentiment that I disagree with because I think the decision 
does affect humanity, and that is the unborn child. I do not 
question her religion. I do not question her patriotism. She 
gave an answer that was very honest and was very direct, and 
pro-life Republicans and pro-life Democrats never thought about 
disqualifying her. She did not go through what you went 
through. Pro-life Republicans and pro-life Democrats set her 
comment aside and judged her based on her whole record and 
believed she was worthy to sit on the Supreme Court, and she 
got 96 votes.
    And what you have said in your writings about the other 
side of the issue pales in comparison to what she said before 
she came to this body.
    I don't know how many votes you are going to get. You are 
going to get confirmed, and it is not going to be 96. Judge 
Roberts got 78, and I am afraid to say that you are probably 
going to get less.
    To my colleagues, I know abortion is important. It is 
important to me, it is important to you. I know it is an 
important central concept in our jurisprudence. But we can't 
build a judiciary around that one issue. We can't make judges 
pledge allegiance to one case. We can't expect them to do 
things that would destroy their independence. You can vote yes, 
you vote no. You can use any reason you would like. I just beg 
my colleagues, let us not go down a road that the country can't 
sustain and the judiciary will not be able to tolerate.
    People set aside her writing, set aside her candid 
statement and gave her the benefit of the doubt that she would 
apply the law when her time came. She replaced Justice White. 
We knew that that vote was going to change. I don't think any 
Republican had any doubt that if there was a Roe v. Wade issue, 
she would vote differently than Justice White, but you never 
know.
    The one thing I can tell the public about you and John 
Roberts is that you are first-round NFL draft picks, but I 
don't know what you are going to do ten or 20 years from now 
because I think you are men of great integrity, and I may be 
very well disappointed in some of your legal reasoning, but I 
will never be disappointed in you if you do your job as you see 
it fit.
    The last thing I am going to read--do you know Cathy 
Fleming?
    Judge Alito. I do. She was an attorney, a supervisor in the 
U.S. Attorney's Office in New Jersey.
    Senator Graham. Did you ask her to write a letter on your 
behalf?
    Judge Alito. I did not, no.
    Senator Graham. ``Judge Alito did not ask me to write this 
letter. I volunteered.''
    [Laughter.]
    Senator Graham. I am glad you said that, by the way.
    [Laughter.]
    Senator Graham. ``I am a lifelong Democrat. I am the 
president-elect of the National Women's Bar Association. I 
chair the corporate integrity and the white collar crime group 
at a national law firm. I do not speak on behalf of either my 
law firm or the Women's Bar Association. I speak for myself 
only. But by providing my credentials as an outspoken women's 
rights advocate and liberal-minded criminal defense attorney, I 
hope you will appreciate the significance of my unqualified and 
enthusiastic recommendation of Sam Alito for the Supreme Court. 
Sam possesses the best qualities for judges. He is thoughtful. 
He is brilliant. He is measured. He is serious. And he is 
conscious of the awesome responsibility imposed by his 
position. I cannot think of a better quality for a Supreme 
Court Justice. It is my fervent hope that politics will not 
prevent this extraordinary capable candidate from serving as an 
Associate Justice on the U.S. Supreme Court.''
    I share her hope. Thank you. I yield back my time.
    Chairman Specter. Thank you, Senator Graham.
    Senator Schumer?
    Senator Schumer. Thank you, Mr. Chairman. Thank you, Judge 
Alito.
    First, I want to go over some of the things you said 
yesterday. Judge Alito, you testified yesterday that you would 
keep an open mind, isn't that right?
    Judge Alito. I did and I do.
    Senator Schumer. Now, are you aware of any nominee in the 
history of the Republic who has come before the Senate and 
testified he would keep a closed mind?
    Judge Alito. I am not aware of that, but I can only speak 
for myself. I will keep an open mind on all issues.
    Senator Schumer. You also testified yesterday that no one, 
not even the President, is above the law, right?
    Judge Alito. That's certainly true.
    Senator Schumer. Yes. And are you aware of any nominee in 
the history of this Republic of whatever political philosophy, 
judicial philosophy, or denomination who has come before the 
Senate--party denomination--and testified that, actually, there 
are a few people who are above the law?
    Judge Alito. I am not aware of a nominee like that, 
Senator.
    Senator Schumer. And you also testified that the Court 
should have respect for the Congress, isn't that right?
    Judge Alito. Yes.
    Senator Schumer. Do you know of any nominees who came 
before the Senate and said, ``The heck with you guys. I don't 
have any respect for the Congress.''
    Judge Alito. Senator, I can only speak for myself, and 
those are true expressions of what I think.
    Senator Schumer. I know that, but all I want to say is--and 
I don't doubt your sincerity in saying them, but this morning's 
newspapers were filled with headlines to the effect you would 
keep an open mind. I don't find that really to be news, nor do 
I find it very helpful in figuring out what kind of Justice you 
would be.
    My friends on the other side of the aisle have repeatedly 
said you have answered over 200 questions. Now it is probably 
300. But a response is not an answer, and you have responded to 
more than 300 questions, but in all due respect, you haven't 
answered enough of them. So again, I think we ought to make 
clear that at least to many of us here, we haven't gotten the 
answers to questions, yes or no, on some important issues.
    With that, I would like to return to Roe, something that we 
discussed yesterday at some length. You did say yesterday that 
you would keep an open mind. You said, first, you would look at 
stare decisis and then you would keep an open mind after going 
through stare decisis. But when I asked you questions about 
your prior statements to see if you would keep an open mind so 
I could make a determination, so the American people could make 
a determination, you really didn't answer the question.
    Now, we have heard pledges about having an open mind 
before. I want to read you one. It is another hearing, someone 
who sat in your chair. ``I have no agenda, Senator. I have 
tried here as well as in my other endeavors as a judge to 
remain impartial, to remain open-minded, and I am open-minded 
on this particular issue.'' I will bet you can guess who that 
nominee was, Clarence Thomas on the issue of the Constitution 
and the right to choose, the very issue I have asked you about, 
when he sat in that chair 15 years ago.
    So someone pledging an open mind doesn't tell us very much, 
because I think there were a lot of people on this Committee 
who were surprised--I wasn't there--were surprised by how 
Justice Thomas ruled based on his testimony. He didn't tell 
them enough.
    Now, yesterday, as you know, I asked you whether you 
believe today that the Constitution protects the right to an 
abortion, given that in 1985 you flatly said that it doesn't, 
and you didn't answer that question. Then I asked you whether 
the Constitution protects the right to free speech, and you 
said yes. Then I asked, how could you answer one and not the 
other, and your answer as to why you could discuss one and not 
the other was essentially that the words ``free speech'' appear 
in the Constitution, but that, and this is your words, ``the 
issue of abortion has to do with the interpretation of certain 
provisions in the Constitution, the 14th Amendment.''
    Now, Judge Alito, the words ``one person/one vote'' are not 
in the Constitution. You know that. And yet you said yesterday, 
and I think you repeated today to Senator Kohl and maybe 
Senator Feinstein, as well, but what you said yesterday was, 
quote, ``I think that one person/one vote is very well settled 
now in the constitutional law of our country.'' So you were 
able to answer on the basis of something as to whether it is 
settled, not being in the--the words are not in the 
Constitution.
    But you were queried by a few of my colleagues and you had 
a different explanation. Now, you said you can answer on the 
other issues because it is settled law. It is not going to come 
before the Court. So let us go over settled law a little bit.
    In case after case, you have been telling us--you have been 
comfortable telling us that certain cases are settled, and yet 
you won't use that word with respect to Roe. You have done it 
in a host of other cases and issues. I will read a few. ``So I 
think that one person/one vote is very well settled now in the 
constitutional law of our history,'' in response to Senator 
Kohl. ``The status of independent agencies, I think, is settled 
in the case law.'' That was in response to Senator Leahy. ``But 
I do think that most of those Commerce Clause cases in the 
years proceeding Lopez, the ones that come to mind, I think, 
are well-settled precedents,'' in reference to Senator 
Feinstein. ``I think the scope of immunity that the attorney 
has is now settled by Mitchell v. Forsythe and that's the 
law.''
    So can you answer the question? Is Roe settled or not? It 
is less of a concern which way you answer. I would just like 
you to answer the question. You can say, Roe is not settled. 
Roe can absolutely be reexamined. I think a lot of people think 
that is the answer you want to give, but it is controversial 
and you may not want to give it because it is controversial, 
even though some of these other issues will come before the 
Court. Commerce Clause cases will come before the Court. 
Certain types of one man/one vote cases will come before the 
Court. Certain types of administrative agencies will come 
before the Court.
    So why is it only when it comes to Roe you can't tell us 
whether it is settled, whether it is not settled, or how it is 
settled, and you can pick any formulation you want. Other 
judges have commented on Roe being settled. Lindsey Graham 
pointed out--he is not here, but Ruth Bader Ginsburg talked 
about her view and she still got a lot of votes on the other 
side of the aisle. The same might happen to you.
    So the question, Judge Alito--
    [Laughter.]
    Senator Schumer. The question, Judge Alito, is why won't 
you talk to us about Roe in terms of whether it is settled or 
not when you will about so many other issues, even issues that 
would come before the Court?
    Judge Alito. The line that I have tried to draw, and I've 
tried to be as forthcoming as I can with the Committee. I've 
tried to provide as many answers as I could, and obviously, I'm 
speaking here extemporaneously in response to questions. The 
line that I have tried to draw is between issues that I don't 
think realistically will come before the Court, and on those, I 
feel more freedom to respond. One person/one vote is an example 
of that--
    Senator Schumer. What about Commerce--sorry to interrupt, 
but we have limited time. What about Commerce Clause? Raich 
came to the court a couple of years ago. Raich has roots all 
the way back in Wickard v. Filburn. You talked about Commerce 
Clause cases being settled.
    Judge Alito. Well, it depends on which Commerce Clause 
cases you're talking about. Certainly, the initial Commerce 
Clause cases that moved away from the pre-New Deal 
understanding of the Commerce Clause have been on the books for 
a long time. Maybe I have been more forthcoming than I should 
have been in some areas, and if that's the case in providing 
these extemporaneous answers, I can be faulted for that. But 
the line that I have to draw, and I think every nominee, 
including Justice Ginsburg, has drawn, is to say that when it 
comes to something that realistically could come before the 
Court, they can't answer about how they would decide that 
question. That would be a disservice to the judicial process.
    Senator Schumer. I understand your view. I just think there 
are some inconsistencies there. I would argue you ought to err 
on the side of being more forthcoming. This is the last chance 
we and the American people will have to make a decision before 
a lifetime appointment.
    But I want to move on to another issue also related to Roe. 
Now, you did say that in 1985, you believed that the 
Constitution did not protect the right to an abortion, and at 
that time, you were a mature legal mind. You were 35. You were 
already a Federal prosecutor. You were serving in the Solicitor 
General's Office. You had a pretty good understanding of the 
Constitution. You had argued cases related to Roe before the 
Supreme Court, I think, 12 times by 1985. So you were a well-
seasoned, mature, established legal mind at that time, is that 
fair to say?
    Judge Alito. Well, Senator, most of what you said is 
certainly correct, but I had not argued any case involving Roe 
before the Supreme Court.
    Senator Schumer. I see. You had argued 12 cases before the 
Supreme Court?
    Judge Alito. Yes, that's correct.
    Senator Schumer. Sorry. Now, let me ask you this. When you 
wrote that statement, you did not, as we discussed yesterday, 
when you wrote that the Constitution does not protect the right 
to an abortion, you had no exceptions. So that would mean, at 
least in 1985, your view then, there would be no constitutional 
protection for a woman to terminate her pregnancy even if the 
termination was needed to preserve her future ability to have 
children, right?
    Judge Alito. Well, Senator, it was a general statement. It 
didn't go into--it didn't--
    Senator Schumer. But it had no exceptions. You could make 
that--
    Judge Alito. It was one sentence and it certainly didn't 
represent--there was no attempt--
    Senator Schumer. You didn't write any exception for that 
situation, correct? It just said, the Constitution does not 
protect. It was without exception. And yesterday, you didn't 
argue with me when I mentioned that, without exception.
    Judge Alito. I don't recall you using the word, ``without 
exception.''
    Senator Schumer. I think I did.
    Judge Alito. Senator, it's one--well, I'm not disputing 
that--
    Senator Schumer. OK. So if you believe--
    Judge Alito. Could I just answer that question?
    Senator Schumer. Yes, please.
    Judge Alito. It's one sentence and it certainly is not an 
attempt to set out a comprehensive view of the subject.
    Senator Schumer. No, I understand that, but it was a very 
strong statement. It didn't talk about any exceptions at all, 
and the way I read that statement, even if a woman was raped by 
her father, she would have no constitutional protection to have 
an abortion and terminate that pregnancy. If you believe the 
Constitution protects no right to an abortion, that would 
follow, wouldn't it?
    Judge Alito. I think the statement speaks for itself, and 
it's one sentence and it's not an effort to set out a 
comprehensive--
    Senator Schumer. Well, knowing these examples, do you still 
refuse to distance yourself in any way from a broad, 
unqualified statement without exception that the Constitution 
does not protect the right to an abortion, no ands, ifs, or 
buts is my words, but--
    Judge Alito. What I actually said was that I was proud of 
my participation in the Thornburgh case in which the government 
made the argument that it made in the Thornburgh case--
    Senator Schumer. Right, but you said in the previous 
sentence of that statement that you personally held those 
views.
    Judge Alito. That's correct, but what I was talking about 
there was the Thornburgh case and nothing more than the 
Thornburgh case.
    Senator Schumer. I understand, but you haven't rethought 
the position at all, even knowing these extreme cases and the 
hardship that it might cause--
    Judge Alito. What you've pointed out is exactly why, if the 
issue were to come up and one were to get beyond stare decisis, 
the whole judicial decisionmaking process would have to be gone 
through. You'd have to know--
    Senator Schumer. You didn't think that through in 1985?
    Judge Alito. I was not involved in--
    Senator Schumer. When you wrote the statement. When you 
wrote that statement.
    Judge Alito. And when I wrote this statement, what I was 
saying was that I was proud of what I had done in relation to 
the Thornburgh case, which was to write the memo that the 
Committee is aware of, which did not argue that Roe should be 
overruled. It did not argue that the Government should argue 
that Roe should be overruled, but that the decision should be 
challenged on other grounds that were quite similar--
    Senator Schumer. I understand what you wrote, but you 
also--we can bring the statement up here, but I don't want to 
go over the thing of yesterday. I would just ask you to think 
of all the consequences of a broad statement, even from 1985, 
that the Constitution does not protect the right to an 
abortion. There is not an exception of health to the mother, 
not an exception of rape or incest, not an exception of any of 
these others. I didn't see any of those in your job 
application.
    But I want to conclude on one--
    Judge Alito. Senator, it was one--
    Senator Schumer. Go ahead, please.
    Judge Alito. It was one sentence, and I think what you're 
saying highlights the importance of not addressing this until 
the judicial process takes place where all of this complexity 
would be taken into account.
    Senator Schumer. In all due respect, sir, I think it 
highlights the importance of and obligation to discuss it, 
particularly in light of a strong statement before, but we will 
have to differ on that.
    I want to go back to the CAP issue in conclusion, because 
some of the statements just don't add up and I just want to try 
to figure this out a little better. You graduated from 
Princeton in 1972. I am just going to state, to save us a 
little time, a series of facts here. You filled out the 
application to apply for the job in the Reagan administration 
in 1985, where you mention membership in that group. Now, is it 
fair to say you joined sometime around 1972?
    Judge Alito. I think that's very unlikely.
    Senator Schumer. Unlikely?
    Judge Alito. Very unlikely.
    Senator Schumer. When do you--you have no idea when you 
joined?
    Judge Alito. I don't, but if I had done anything 
substantial in relation to this, including renewing membership 
or being a member over a lengthy period of time, I feel 
confident that I would remember that.
    Senator Schumer. OK. So you don't remember renewing 
membership, writing out a check at a certain time, getting a 
magazine, this Prospect magazine, once a month, once a quarter, 
once a year? You have no recollection of any of that?
    Judge Alito. I don't.
    Senator Schumer. OK. Well, here is what the--and let me 
just ask you one other question. I take it in 1985 you were a 
member of a whole lot of different groups. I mean, you were a 
member of the Bar Association. You might have been your 
neighborhood guy, I respect that, maybe a neighborhood 
association in New Jersey where you lived, maybe other 
Princeton alumni organizations. In your 1990 application, there 
are a bunch of other organizations you list as being members 
of. So you were a member of a whole lot of groups.
    Judge Alito. I was a member of some other groups, not a 
whole lot--
    Senator Schumer. Yes, OK, a bunch. More than two?
    Judge Alito. Some other groups, yes.
    Senator Schumer. OK. Here is what I don't understand. I 
think here is what a lot of people don't understand. You are a 
member of other groups. You hardly have any recollection of 
this organization. And yet, somehow in 1985, you put it on your 
application. Why did you? Why did you list that particular 
organization on your application when you have such vague 
recollection of it? Why didn't you put the National Bar 
Association--I mean, the American Bar Association or one of the 
other groups that you were a member of? It wasn't a long list 
where you were trying to list--you somehow plucked this group, 
which you now say you have almost no recollection about, and 
put it on the application, and this group, as we have heard, is 
controversial. Just try to give us some understanding of your 
state of mind in 1985, why that group, with its tawdry history 
even public then, although you said, in all fairness, you 
didn't know about it, but why that group? Why was it plucked 
out and put on the application?
    Judge Alito. Well, I deplore all of those statements that 
were shown on the chart.
    Senator Schumer. Understood.
    Judge Alito. I would never associate myself with those 
statements--
    Senator Schumer. What made you pick that group? I 
understand. I am not trying to--
    Judge Alito. I think you have to look at the question that 
I was responding to and the form that I was filling out. I was 
applying for a position in the Reagan administration, and my 
answers were truthful statements, but what I was trying to 
outline were the things that were relevant to obtaining a 
political position. I mentioned some very minor political 
contributions. I didn't mention contributions to charitable 
organizations, and that's not because the contributions to 
charitable organizations were unimportant. It's just that--
    Senator Schumer. Can you reach back, because it is an 
important issue now--it has become one--and try to figure out 
your state of mind then and what made you pick this 
organization. What did you--I mean, I see why you picked the 
Federalist Society. That is obvious. Why did you pick this one?
    Judge Alito. Well, Senator, since I don't remember this 
organization, I can't answer your question specifically, but I 
think that the answer to the question lies in the nature of the 
form that I was filling out and the things that I put. I think 
the illustration of the political contributions goes right to 
the point. Why did I mention small political contributions and 
not charitable contributions?
    Senator Schumer. Can I ask you--
    Judge Alito. It wasn't that the charitable contributions 
were less important. It was that they were not as relevant to 
obtaining a political position.
    Senator Schumer. Why didn't you put it on your application 
in 1990? It wasn't there.
    Judge Alito. I didn't remember it.
    Senator Schumer. But you remembered it from 1972, or 
whenever you joined, to 1985, formed in 1972. Why I think you 
probably joined earlier is because of what you said about ROTC, 
which is a much bigger issue in its early history than its 
later history. And you remember that. You remember it up until 
1985, and then by 1990, you had forgotten it.
    Let me just say, I am glad--this is by way of explanation. 
That is why Senator Kennedy made his request. I am glad, 
Senator Specter, that you have acceded to it. I think there are 
unanswered questions here that we really have an obligation to 
answer, and maybe the documents we get will give us some of 
those answers. Thank you, Mr. Chairman.
    Judge Alito. Senator, I have--
    Senator Schumer. Please.
    Judge Alito. I have told the Committee everything that I 
can about this organization, and the most important thing I 
want to tell the Committee is that I have no association with 
those comments that were made, even if they were made in 
letters to the editor or in articles that simply represented 
the views of the authors of those articles. They are not my 
views now. They never were my views. They represent things that 
I deplore. I have always deplored any form of racial 
discrimination or bigotry. I was never opposed to the admission 
of women to Princeton. After I had been there for a few months, 
I realized the difference between the non-coeducational 
atmosphere that was there and the coeducational atmosphere that 
I had had throughout my prior schooling. When it came time for 
me to join an eating facility, I chose one that was one of the 
most coeducational facilities on the campus.
    Senator Schumer. I just can't figure out why you put this 
group on here.
    Chairman Specter. Senator Schumer, your time is up, Senator 
Schumer.
    Senator Cornyn?
    Senator Cornyn. Judge Alito, let me tell you how desperate 
your opponents are to defeat your nomination. Late last 
Wednesday--or, excuse me, last Thursday, a name of a witness 
was listed relative to this whole issue of Concerned Alumni of 
Princeton that included the name of a man named Stephen Dujak. 
Is that name familiar to you?
    Judge Alito. Not other than from seeing the witness list.
    Senator Cornyn. Well, by the end of the day on Friday, his 
name was gone from the witness list of those witnesses intended 
to be called by the other party. As it turned out, it was 
revealed that in April of 2003, that he had authored an op-ed 
piece for the Los Angeles Times entitled, ``Animals Suffer a 
Perpetual Holocaust,'' and in that article, he wrote this. He 
said, ``Like the victims of the Holocaust, animals are rounded 
up, trucked hundreds of miles to the kill floor, and 
slaughtered. Comparisons to the Holocaust are not only 
appropriate but inescapable, because whether we wish to admit 
it or not, cows, chickens, pigs, and turkeys are capable of 
feeling loneliness, fear, pain, joy, and affection as we are. 
To those who defend the modern-day Holocaust on animals by 
saying that animals are slaughtered for food to give us 
sustenance, I ask if the victims of the Holocaust had been 
eaten, would that have justified the abuse and murder? Did the 
fact that lamp shades, soaps, and other useful products were 
made from their bodies excuse the Holocaust? No. Pain is 
pain.''
    Judge Alito, I read that to point out to you the 
desperation of your opponents. This was to be a principal 
witness who was going to come in and say why your membership in 
Concerned Alumni of Princeton was a terrible thing. But the 
fact is that I think they have stumbled by their overreaching 
by demonstrating the desperation that they feel and how few 
ways they have to criticize your testimony, your career, your 
integrity, and who you are as a person based upon the facts and 
I think it speaks volumes.
    It is clear to me, at least, that part of the reasonings or 
the rationale given for a ``no'' vote against you by some on 
this Committee and perhaps on the floor of the Senate will be 
that you have not been responsive to questions. We have a chart 
here that I think is instructive. This is as of 3 p.m. on day 
two. We couldn't get any more current than that. But as this 
indicates, so far in this hearing, 441 questions have been 
asked and 431 have been answered, or 98 percent. Justice 
Ginsburg, and we have heard a lot about her and what she would 
answer and would not answer and what her philosophy was, her 
beliefs, before she was confirmed by the Senate with only three 
votes against, she had 384 questions asked and she answered 307 
of those for an 80 percent answer rate.
    You know, listening to the back and forth about whether you 
have been responsive to questions reminds me of a saying that I 
heard recently: ``I can answer the question, but I can't 
understand it for you.''
    In other words, I think you have done, to the best of your 
ability and to the limits of your ethical responsibility, tried 
to be responsive to the questions here. Obviously, no one can 
make that decision but the Senators who will ultimately vote on 
that. But certainly the public and the world, people all across 
this great country who may be listening to this hearing and 
will be judging for themselves both the fairness of the 
proceeding and your responsiveness to the questions, I believe 
that they will conclude that not only have you been responsive 
but that you have been very forthcoming in answering the 
questions that have been asked of you, but that, like Justice 
Ginsburg and others before her, you believe that it is 
important to maintain the independence of the judiciary, that 
you are not willing to make the judiciary subservient to the 
Senate or the Congress in order to get a vote for confirmation. 
And I applaud you for that.
    You know, yesterday I made a mistake. I know Senator 
Sessions confessed a mistake and, as it turned out, I went over 
and talked to Senator Biden because I had quoted him and it 
turned out I didn't quite quote him accurately. But I told him 
we have corrected the record to make sure it reflected his 
words, because it is important to me to make sure that we are 
accurate and we are clear.
    But yesterday I made a mistake and referred to you as Judge 
Scalito. And I was embarrassed by that, and I asked your--
begged your pardon for that. For those that may not be in on 
the joke, the idea is, the argument by some is somehow you are 
a clone of Judge Scalia. Well, I have found for myself 
everything we have heard, everything I have come to learn about 
you is that you are a clone of no one, that you are an 
individual who is particularly gifted and talented and 
experienced and someone who has been, notwithstanding the abuse 
that you suffer during the confirmation process, willing to 
offer yourself for public service in a very important role, and 
that is as a member of the United States Supreme Court.
    But yesterday my colleague from New York put up some 
quotes. Now, it was late in the day and I think most of the 
press had gone--and maybe that is a good thing. People had 
gotten tired, but you had to still sit here and listen to the 
questions and respond to those. But he put up a quote, which 
was relatively innocuous on its face, and it asked about things 
like do you believe that continuity in the law is important. 
And you said yes and it seems unarguable to me. But then he 
said, well, that was a quote from Clarence Thomas. And I 
suppose that was going to attribute to you all of the baggage 
that those on the left feel that Justice Thomas carries and all 
of the views that he has espoused and all of his performance on 
the bench.
    Later, he asked whether you agreed with another quote, and 
here again it was a sort of black-letter law, good-government 
quote. And you agreed that, yes, you agreed with that quote. 
And he said, Ah-ha, Judge Bork said that. Meaning somehow that 
you were carrying whatever baggage people on the left feel that 
Judge Bork carries and you somehow embrace or subscribe to 
everything he believes.
    I want to give you an opportunity, Judge Alito, to tell us 
whether you feel like you are a clone of Judge Scalia, Judge 
Thomas, Judge Bork, or whether you believe that you are your 
own man, you come to your own conclusions based on careful 
study and your experience in the law. Would you comment on that 
for me, please?
    Judge Alito. Yes, Senator. I am who I am and I'm my own 
person. And I'm not like any other Justice on the Supreme Court 
now or anybody else who served on the Supreme Court in the 
past. I don't think any jurist is a duplicate of any other 
jurist. I think that the Committee and anybody who's interested 
in the sort of judge I am can get a very clear picture of that 
by looking at my record on the court of appeals. And I've been 
on the court of appeals for 15 years and have sat on over 4,000 
cases. And most of the cases that come to the court of appeals 
never go any further. We're the last stop in 99 percent of the 
cases, probably higher than that. And we know that when we're 
deciding those cases.
    And I think if anybody reads the opinions that I've written 
and the opinions that I've joined, they can see exactly the 
sort of jurist that I am. They will find some opinions I'm sure 
that they will disagree with. But if they look at the whole set 
of opinions that I've written or joined, they can get a very 
clear picture of me. I'm not like anybody else. I don't claim 
to have the abilities of some of the distinguished members of 
the Supreme Court now or in the past. I have my--whatever 
abilities that I have. But they are my own.
    Senator Cornyn. Let me tell you what Cass Sunstein has said 
about you. You may be familiar with the op-ed piece that was 
written in the Akron Beacon Journal on November 3, 2005. This 
is--of course, you know Professor Sunstein from the University 
of Chicago, a brilliant and liberal legal scholar. But he 
concludes in this op-ed--and this is how he describes you based 
upon his review of your life's work as a judge.
    He said, ``Alito sits on a liberal court''--and this is an 
analysis of your dissents. ``Alito sits on a liberal court, so 
his dissents can be from relatively liberal rulings. None of 
Alito's opinions is reckless or irresponsible or especially 
far-reaching. His disagreement is unfailingly respectful. His 
dissents are lawyerly rather than bombastic. He does not berate 
his colleagues. Alito does not place political ideology at the 
forefront. He doesn't claim an ambitious or controversial 
theory of interpretation. He avoids abstraction. He's not 
endorsed the view associated with Justices Antonin Scalia and 
Clarence Thomas that the Constitution should be interpreted to 
fit with the original understanding of those who ratified it. 
Several of his opinions insist on careful attention to 
governing legal text, but that approach is perfectly 
legitimate, to say the least.''
    Judge Alito, I think it is important for people listening 
to understand that you are indeed your own man and that you do 
the very best job that you can with the skills and the talents 
that God has given you, and that you are willing to serve, and 
we ought to applaud you for that. And it is really, to me, 
demeaning to suggest some sort of guilt by association or that 
you must be a clone of some other judge or someone who outside 
groups hold up to disrespect and ridicule.
    So I hope that, as I say, those listening, both in the 
Senate and outside, will make up their mind about you based 
upon the evidence that we have heard and that is available and 
not based on those sort of specious comparisons.
    Now, let me ask--you know, believing as I do that you have 
been responsive, and expecting as I do that those who vote 
against you will claim that you have been nonresponsive 
notwithstanding the chart I showed you and your willingness to 
respond to the questions, you know, Senator Schumer--who is an 
enormously talented and very bright lawyer in his own right--
was pressing you on whether Roe v. Wade is settled. And, I've 
really tried to analyze for myself, when is it that judges and 
nominees are willing to go out on a limb, so to speak, and say, 
yes, that's settled law or to talk more expansively about an 
issue; and when is it that they feel less comfortable, less 
free, more constrained by their ethical obligations or their 
desire to preserve the independence of the judiciary?
    And what I have concluded--and I would like to get your 
reaction to this--is the more settled, to use the word Senator 
Schumer has, the more accepted in the society, in our culture, 
the more free nominees feel to talk about it; but the more a 
nominee feels like this is an issue that not only is going to 
come back, it is going to come back soon--as a matter of fact, 
it may be on the Court's docket now--the less free, the more 
bound by your ethical obligations you feel, the more you feel 
it is important to preserve your independence as a judge.
    And we have mentioned a couple of them--Brown v. Board of 
Education, which expresses a commitment to equal justice under 
the law that all Americans embrace, virtually speaking. You 
have felt free to express a view on that case, have you not, 
sir?
    Judge Alito. I have. The line I've tried to draw is whether 
something realistically could come up in litigation before the 
court of appeals or before the Supreme Court. And I--
    Senator Cornyn. Does that mean that you don't expect Brown 
v. Board of Education to be attacked, or someone to come before 
the Court and ask that it be overruled?
    Judge Alito. I don't. There's no realistic possibility of 
that, so I felt freer to talk about something like that.
    Senator Cornyn. But you do believe, and I think with good 
cause, that there will be continuous attempts to address the 
abortion issue because of its divisive nature and because 
Americans are so divided on that issue, or at least some aspect 
of the issue. To what extent, for example, can the Congress 
pass laws which ban the barbaric practice of partial birth 
abortion, to what extent can Congress or the States pass laws 
that provide for minors to seek--requiring them to seek 
parental--or provide their parents notice, with an appropriate 
judicial bypass for those who are abused or neglected or 
abandoned by their parents? That is an issue that is at the 
forefront of America's consciousness and really, I think, sort 
of the subtext under which a lot of the wars over judicial 
nominations are fought. Would you agree with that, more or 
less?
    Judge Alito. It's an issue that is in litigation now, and I 
think you can look at the course of litigation over the past 20 
years and you can see a number of cases--and of course this has 
been highlighted--in which the Supreme Court has been asked to 
overrule Roe and it has repeatedly refused to do that. But 
there's nothing--there's no comparable pattern, for example, 
with respect to Brown v. Board of Education or one person, one 
vote.
    Senator Cornyn. Well, in the closing two and a half minutes 
that I have, I mentioned the Cass Sunstein op-ed, which, from 
my reading, even though I am sure you and Professor Sunstein 
don't see eye-to-eye on all legal issues, he seems to be highly 
complimentary of you, is the way I interpreted those two 
paragraphs I read out of the op-ed piece.
    Now, a national newspaper, the Washington Post, on January 
1st--that is the Washington Post, not National Review--did an 
analysis of your voting record on the Third Circuit. They found 
that in virtually every type of case, whether labor, 
employment--your record was no different than the average 
Republican-appointed judge. And to me, that is sort of the--
said another way, that means that you are within the 
conservative mainstream in terms of your judicial philosophy.
    Now, I know that you and other legal scholars have some 
trouble with this approach by political scientists to try to 
survey your opinions and categorize them and say, well, this is 
who you are, because you don't decide cases that way, do you? 
You decide individual cases based upon the legal arguments, the 
merits, and the facts. Isn't that correct, sir?
    Judge Alito. That's right, and it would be a bad thing if 
judges started keeping these scorecards and said, oh, I've 
ruled a certain number of times in favor of one side; when the 
next case comes up, I'd better rule on the other side. That's 
exactly what we don't want judges to do.
    Senator Cornyn. You anticipated my next question, and that 
would be if somehow it disqualifies you because of how 
political scientists have somehow ranked your sympathy with 
certain types of cases, how often you have ruled in favor of 
one type of litigant and another--as opposed to an individual 
case-by-case decisionmaking process contemplated by the 
Constitution--I doubt it will be long before prospective 
nominees to the Federal judiciary will be keeping that kind of 
chart. And when litigants come into court, they are going to be 
tempted to look at that and say, well, I've ruled for too many 
plaintiffs, I'd better rule for a defendant this time. Or, no, 
I've shown too much sympathy for civil rights plaintiffs, I'd 
better rule for the government this time. Which would totally 
skew your responsibility as a Federal judge, in my view.
    Judge Alito, my time has run out. Thank you for your 
response to my questions.
    Judge Alito. Thank you, Senator.
    Chairman Specter. Thank you, Senator Cornyn.
    We will take now another break for 15 minutes.
    I have had requests from two Senators on the Democratic 
side for a third round. We have three more Senators to question 
on the 20-minute round--
    Senator Leahy. We have several more than the two.
    Chairman Specter. Well, Senator Leahy, that is what I would 
like to ascertain so that we can figure out the schedule for 
the balance of the evening. We have 1 hour more for three 
Senators at 20 minutes; I want to figure out what we are going 
to do the rest of the evening. I want to figure out when we are 
going to bring on the outside witnesses who are available 
tomorrow. So if there are other requests, I would like to have 
them.
    But now we will stand in recess until 5:55.
    [Recess 5:40 p.m. to 5:55 p.m.]
    Chairman Specter. We will proceed now to the last three 
Senators who have not had a second round of 20 minutes--Senator 
Durbin, Senator Brownback and Senator Coburn.
    As I had mentioned before, I have had requests from two 
Senators for a third round. Senator Leahy advises that there 
are others and I would like the specifications. Senator Biden 
is prepared to proceed--has requested 20 minutes and is 
prepared to proceed. Senator Feinstein has requested 10 minutes 
and she has a doctor's appointment, so she won't be able to be 
here this evening, and we will accommodate her on that.
    But I would like to know who else wants time so we can plan 
what we are going to do for the balance of the evening and 
hereafter. I have had requests on my side of the aisle as to 
whether we are having a Friday session and I have had a request 
as to whether we are having a Saturday session. And I told both 
of those requestors to stand by. And I do piecework, so I am 
here for the duration.
    Senator Leahy.
    Senator Leahy. Mr. Chairman, I have been told that each one 
of the people on this side want another round. I know I want to 
look at the transcript this evening and I will have a few more 
questions. Obviously, you can do what you want. Judge Alito has 
shown that he has the stamina of Hercules. I am not sure that 
all the rest of us do. Senator Coats is hanging in there, but 
he is able to bail out now and then.
    I would suggest you finish with the Senators who are here 
tonight. That would get us out of here around seven or a little 
later; come back in the morning. This is very similar to what 
we did with Chief Justice Roberts. Come back in the morning, 
and I have a feeling that whatever rounds it takes, we would 
probably wrap it up in relatively expeditious order.
    But then we wouldn't be looking like we are trying to ram 
this through. It is a lifetime appointment, after all. We get 
it done. I think most of the outside witnesses have been told 
that they were going to testify on Friday, anyway, in all 
likelihood. That is my suggestion.
    Chairman Specter. Well, that is not true. There are people 
who can't be here on Friday among the outside witnesses who 
were looking at Thursday.
    Senator Leahy. Well, who knows? We will probably be wrapped 
up in time so that we can leave here sometime Thursday.
    Chairman Specter. Well, Senator Leahy--
    Senator Leahy. It is up to you.
    Chairman Specter [continuing]. The only way we will know 
what is going to happen--I want to know who wants more time so 
I can see what is going to go on tomorrow, if we are going to 
go beyond Senator Feinstein tomorrow. We had this exact same 
situation with Chief Justice Roberts and we worked on into 
Wednesday evening and then we got an understanding as to what 
we were going to do on Thursday.
    Senator Leahy. Well, we are into Wednesday evening now 
already, so I mean we have done--
    Chairman Specter. Well, why don't we proceed with our few 
witnesses so as not to spend any more time, and if I could have 
the advice from you--
    Senator Leahy. Sure.
    Chairman Specter.--Senator Leahy, and from Senator Kennedy. 
Senator Durbin has 20 minutes. He probably has more time than 
he needs.
    Senator Leahy. I have yet to find a situation in this 
Committee, Mr. Chairman, when you and I haven't been able to 
work things out because you have always been eminently fair.
    Chairman Specter. OK. Well, to put all the cards on the 
table, the only compelling force, if there such a thing as a 
compelling force for Senators, is to figure out how to avoid 
working this evening by telling me what you want to do 
tomorrow. That is a fairly simple formula.
    Senator Leahy. Who was the Leader, Mr. Chairman, who once 
said moving the Senate around was like transporting bull frogs 
in a wheel barrow?
    Chairman Specter. Senator Baker, who is author of the 
``herding cats.''
    Senator Durbin, you are recognized for 20 minutes.
    Senator Durbin. Thank you very much. And, Judge Alito, if I 
am not mistaken, this is how we started the day. I think we are 
now into about eight-and-a-half hours, which means we are both 
on overtime by any measurable workplace standard in America. 
Thank you for your endurance, and to your family as well. I 
know it is a stressful and tough situation.
    Let me say at the outset I asked you a question earlier 
today about settled law and John Roberts's statement before the 
Committee. I have spoken to one of your corner men over here, 
Ed Gillespie, and he and I have a difference of opinion about 
what it says in the record. I commend to my colleagues the 
record itself, September 13, 2005, page 145, and I stand by my 
earlier statement. Enough said about that.
    I want to ask you about two substantive issues. We are not 
going to go to Princeton or any other place. The unitary 
Executive: the reason it is important is that there are some 
people even on the Supreme Court who believe the unitary 
Executive theory--and I don't know if it is always associated 
with the Federalist Society, but sometimes associated with the 
Federalist Society and their members--but the unitary Executive 
theory gives a President extraordinary power. And under that 
theory, some argue that a President, particularly in a wartime 
situation, can ignore and violate laws as Commander in Chief--
critically important and timely as we debate eavesdropping and 
the like.
    You have made it clear that when you spoke to the 
Federalist Society in 2000, you were not talking about scope of 
the President's power, but you were talking instead as to 
whether or not he would have control over the executive branch. 
I hope I am characterizing your statement correctly.
    Judge Alito. That is exactly correct, and I think in the 
speech I said there is a debate about the scope of what is 
meant by the Executive power, but there isn't any debate that 
the President has the power to take care that the laws are 
faithfully executed, and that was the scope of the power that I 
was discussing.
    Senator Durbin. So my question to you is this: What about 
those who do argue the unitary Executive scope theory? Do you 
agree with their analysis, do you disagree? Would you be 
joining Justice Thomas, in particular, in his dissent in 
Hamdi--in arguing that in this situation a President has more 
power than the law expressly gives him?
    Judge Alito. I don't think that the unitary Executive has 
anything to do with that. Let me just say that at the outset. I 
think that--and if other people use that term to mean the scope 
of Executive power, that certainly isn't the way that I 
understand--
    Senator Durbin. That is not your point of view?
    Judge Alito. That is not my point of view.
    Senator Durbin. You don't accept that point of view?
    Judge Alito. No. I think--
    Senator Durbin. If an argument is made that that is how 
they are going to expand the power of the President, as you 
testify today, that is not your position or your feeling? Say 
it in your own words.
    Judge Alito. It is not my--the unitary--when I talk about 
the unitary Executive, I am talking about the President's 
control over the Executive branch, no matter how big or how 
small, no matter how much power it has or how little power it 
has.
    To me, the issue of the scope of Executive power is an 
entirely different question and it goes to what can you read 
into simply the term ``Executive.'' That is part of it and, of 
course, there are some other powers that are given to the 
President in Article II, the commander in chief power, for 
example. And there can be a debate, of course, about the scope 
of that power, but that doesn't have to do with the unitary 
Executive.
    Senator Durbin. So when Hamdi draws that line and Justice 
O'Connor makes that statement about no blank check for a 
President in times of war when it comes to the rights of 
American citizens, and there is a dissent from Justice Thomas, 
who argues unitary Executive, scope of powers, more power to 
the President, you are coming down on the majority side and not 
on the Thomas side of that argument. Is that fair to say?
    Judge Alito. Well, I am not coming down--I don't recall 
that Justice Thomas uses the term ``unitary Executive'' in his 
dissent. It doesn't stick out in my mind that he did. If he 
did, he is using it there in a sense that is different from the 
sense in which I was using the term.
    Senator Durbin. Fair enough. Let me move to another area. I 
hate to return to that infamous 1985 memo, but there is one 
element of it we have really not asked you about, and that is 
your reference to the Establishment Clause. So instead of going 
into that memo, let me just try to explore with you for a 
moment your feelings about religion in our diverse society and 
under the Constitution. You have heard some questions from the 
other side about it from Senator Brownback, Senator Cornyn and 
others, and I would like to try to get into this a little bit.
    There seems to be a debate within the Court between two 
standards for judging conduct as to whether it is 
constitutional in relation to freedom of exercise of religion, 
as well as establishment. And the two theories, if I can 
describe them quickly, are the Lemon theory which has three 
tests that the Burger Court came out with in 1971 and the new 
coercion theory.
    Are you familiar with both of those theories?
    Judge Alito. I am, and there is actually a third theory, 
the endorsement test.
    Senator Durbin. Where do you come down? Do you subscribe to 
any one of those as an accurate analysis of what the Founding 
Fathers meant under the Establishment Clause?
    Judge Alito. I don't think the Court has settled on any 
single theory that it applies in every case. There are cases in 
which it finds the Lemon theory, the Lemon test, which now has 
two parts, whether the statute has--whether whatever is at 
issue has a secular purpose and whether the primary effect is 
to advance or inhibit religion. There are instances in which it 
applies that. It tends to apply that in cases involving 
funding.
    There is the endorsement test, and it applies that in 
certain cases. Typically, it applies those in cases involving 
things like the displaying of symbols that may have religious--
that have religious significance. So it itself has not found a 
single test that it applies in all of these cases.
    Senator Durbin. Well, where are you? If the Court is 
divided, and it appears it is, where do you come down? I mean, 
do you--please tell me.
    Judge Alito. Well, I don't have a--I do not myself have a 
grand, unified theory of the Establishment Clause. As a lower 
court judge, of course, my job has been to apply those 
precedents, and this is an area in which I think the Court has 
been--you can just see by the number of cases that it has 
decided it has been attempting to find the best way of 
expressing its view of what the Establishment Clause requires.
    I certainly agree that it embodies a very important 
principle and one that has been instrumental in allowing us to 
live together successfully as probably the most religiously 
diverse country in the world, and maybe in the history of the 
world. And it's a very important principle, but I myself do not 
have a grand, unified theory of this.
    Senator Durbin. Let me ask you a few starting points. The 
question was asked of John Roberts about his personal religious 
and moral belief. And I would ask you in the most open-ended 
fashion. We all come to our roles in life with life experience 
and with values. When you are calculating and making a 
decision, if you were on the Supreme Court, tell me what role 
your personal religious or moral beliefs will play in that 
decision process.
    Judge Alito. Well, my personal religious beliefs are 
important to me in my private life. They are an important part 
of the way I was raised and they have been important to Martha 
and me in raising our children. But my obligation as a judge is 
to interpret and apply the Constitution and the laws of the 
United States, and not my personal religious beliefs or any 
personal moral beliefs that I have, and there is nothing about 
my religious beliefs that interferes with my doing that. I have 
a particular role to play as a judge and that does not involve 
imposing any religious views that I have or moral views that I 
have on the rest of the country.
    Senator Durbin. That is virtually the same answer given by 
Justice Roberts and I think from my point of view that is the 
right answer. It is the same challenge many of us face on this 
side of the table with decisions that we face.
    Now, I asked Judge Roberts the following: Does the Free 
Exercise Clause, in addition to the Establishment Clause, 
protect the right of a person to be respected in America if 
they have no religious beliefs, the non-believers?
    Judge Alito. Yes, it does. It is freedom to worship and not 
worship, as you choose, and compelling somebody to worship 
would be a clear violation of the religion clauses of the First 
Amendment.
    Senator Durbin. Let me go to a specific case, the Black 
Horse Pike Regional Board of Education case, in which you were 
involved. And it is an interesting case and I hope this fact 
pattern that I describe to you is correct.
    The school board policy allowed the seniors at this school 
to vote on having a graduation prayer, and the decision, it was 
suggested, was whether that was coercing students who didn't 
agree with that religious prayer or had no religious belief.
    What is your feeling, or what was your feeling at that time 
when it came to that decision?
    Judge Alito. Well, that was the case that followed Lee v. 
Weisman and preceded the Santa Fe case, which dealt with a 
prayer before a football game. Lee v. Weisman involved a 
situation in which the principal--and that was the most 
directly relevant and a rather recent precedent at the time of 
the Black Horse Pike case.
    In Lee v. Weisman, the principal of a middle school, as I 
recall, decided that there would be an invocation at the middle 
school graduation, and selected a member of the clergy, a local 
rabbi, to deliver the prayer and specified the nature of the 
prayer that would be appropriate for the circumstances. And the 
Supreme Court held that that was a violation of the 
Establishment Clause.
    The case that we considered in the Black Horse Pike case 
involved a situation in which the high school left it up to the 
students through an election to decide whether there would be a 
prayer at the high school graduation and left it up to them to 
select the person who would conduct the prayer, the student who 
would lead them in the prayer, if that was--if they decided by 
a vote to do that.
    And so our job at that point was to decide whether this 
fell on one side or the other of a line that I referred to 
earlier which Justice O'Connor very helpfully--the distinction 
that she drew between government religious speech, which is not 
allowed, and private religious speech which is protected. The 
government itself cannot speak on religious matters, but the 
government also can't discriminate against private religious 
speech. And we had here a situation--
    Senator Durbin. That goes back to the Oliva case where the 
student comes up with the drawing of Jesus, and that is a 
voluntary, personal and private expression, as you have 
described it.
    Judge Alito. That is correct, and the Supreme Court has 
recognized this in any number of cases. In the Rosenberger case 
and the Good News Club case and the Lamb's Chapel case, they 
have drawn this distinction.
    So here we had a situation involving an election by the 
students to pick somebody to lead them in prayer, and which 
side of the line did it fall on? Well, it wasn't individual 
student speech, but it was collective student speech by way of 
an election. And that was what we had to decide, which side of 
this line it fell on. And Judge Mansmann, who wrote the opinion 
that I joined in that case, explained why we thought it fell on 
the side of the line of individual student speech.
    Senator Durbin. Let me ask you about that. Let me explore 
for a second. You are dealing with a school board policy. A 
school board is a government agency. They have set up the 
policy, so it is not coming entirely from a voluntary personal 
situation, like the Oliva case. And you know that the majority 
is going to rule in the decision on whether there will be a 
prayer and what the substance of the prayer will be.
    How, then, could you respect the rights of the minority, 
including people with different religious beliefs and non-
believers, if you leave it up to a majority vote?
    Judge Alito. Well, that is why--that factor is why it was a 
case that didn't--there could be debate about which side of 
this line it fell on. Now, I think there also was a disclaimer 
that was distributed at the time of the graduation explaining 
to anybody who was in attendance that the prayer was not 
endorsed--if there was a prayer, it wasn't endorsed by the 
school board, and that this was a decision of the students.
    There are factors there that fall on one side of the line. 
There are factors there that point to the case being put on one 
side of that line, factors that point to putting the case on 
the other side of the line. And Judge Mansmann's opinion 
explained why she thought, and I agree, that it would fall on 
the private student speech side of the line. But it was a 
question that was debatable.
    And then the Sante Fe case came along later. It didn't 
involved exactly the same situation, but it involved a related 
situation, and that is now the Supreme Court's expression of 
its opinion in the form of a precedent on the application to--
the application of this test that I have been talking about, a 
situation like this.
    Senator Durbin. As you have described it, this is not an 
easy call. There are circumstances on both sides, and yet in 
your dissent you use the phrase referring to the majority as 
``hostility toward religion.'' It seems to me that you could 
make a case that I am not hostile toward religion, but trying 
to be sensitive to the rights of all to believe or not to 
believe in America and come down on the opposite side of the 
case.
    Were you overstating your position in using that phrase 
``hostility toward religion'' in describing the majority?
    Judge Alito. That was--it was Judge Mansmann's opinion, in 
which I joined, and I don't remember the phrase ``hostility to 
religion.'' Obviously, it must be in there. I certainly don't 
think that she meant to suggest that those who were objecting 
to this were proceeding in bad faith, or even that they were 
hostile to religion.
    I think what she--I can't speak for her and I don't recall 
the specific language, but looking at it now, the way I would 
put it was that she probably thought that this was not giving 
as much room for private religious speech as should be given.
    Senator Durbin. I couldn't tell you what in the heck I ever 
wrote in law school about anything, but in the second year in 
law school you wrote a paper, I take it, some research, which 
you had to tell us about here relative to the issue of 
religion, and then in the 1985 memo raised the question about 
the Warren Court on the Establishment Clause.
    What was it that the Warren Court decided on the 
Establishment Clause that troubled you, if you remember?
    Judge Alito. Well, I actually think that the student note 
from the Yale Law Journal is an illustration of the sort of 
thing that has interested me and troubled me about the 
jurisprudence in this area for a long time.
    In the law school note, I talked about two--what are called 
the release time cases. It was the McCollum case and Zorach v. 
Clausen, both of which were decided just before Chief Justice 
Warren took his seat. And they involved situations that were 
quite similar. There was a distinction between the two 
programs, but they were quite similar and the Court reached 
contrary conclusions.
    And unfortunately this has been a repeating--a recurring 
pattern in the Establishment Clause jurisprudence, cases that 
turn on extremely fine distinctions. The Supreme Court held in 
Board of Education v. Allen, if I am remembering the correct 
case, at the end of the Warren Court that it was permissible 
for a school board to supply secular books to schools that are 
related to a religious--that are religiously oriented. And then 
later in another case--I think it was Wolman--they said but you 
can't--but that doesn't apply to other instructional material, 
other secular instructional material.
    And this has been the thing about the Establishment Clause 
that has bothered me, the absence of just what your initial 
question was pointing to, some sort of theory that draws 
distinctions that don't turn on these very fine lines.
    Senator Durbin. Tell me about the Establishment Clause in a 
more contemporary context if you can. You talked about the case 
of the Warren Court in providing secular books to religious 
schools, which I find no problem with. I think that is 
acceptable from my point of view, for whatever that is worth.
    But what about the concept and theory of financial support 
from a government agency to a school that is a religious school 
where the money is used for the purpose of teaching religion or 
proselytizing?
    Judge Alito. Well, I think the Court's precedents have been 
very clear on that that the money--that a government body 
cannot supply money to a school for the purpose of conducting 
religious education. And I don't recall any--I don't recall a 
suggestion in dissenting opinions--maybe there is one that I am 
not recalling here that says that that would be permissible.
    Senator Durbin. I am running out of time, but it would go 
back to my first question. I think under the coercion test, 
there is some argument among some on the Court and others that 
not applying Lemon but using this new coercion test may give 
them more leeway when it comes to this kind of financial 
support and vouchers, but I don't want to presume that.
    And I thank you for your responses to these questions.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Durbin.
    Senator Brownback.
    Senator Brownback. Thank you, Mr. Chairman.
    We started off this morning and we will end today. I want 
to thank you for al