Date: January 12, 2006
Senator: Kohl
Topic:
Contents
SPECTER: Senator Kohl has asked for 20 minutes.
Senator Kohl, we'll set the clock at 20 minutes for you. And as I said earlier, we have some flexibility here.
KOHL: I thank you very much, Mr. Chairman.
Judge Alito, elected officials make decisions on issues every day as we try to best represent the people of our states. And if our constituents do not think that the choices we make reflect their opinions, then every few years they have an opportunity to vote for someone else.
As you know, that's not the case with the courts. Once confirmed, federal judges have lifetime tenure and are virtually unaccountable.
And that lifetime tenure can result in a judge or in a court that is removed from the thoughts and opinions of most Americans. As public opinion changes on an issue, the court may cease to reflect the views of the country.
If the courts take positions contrary to what most Americans think about an issue or a decide case, very important case, in a way that is clearly out of the mainstream of American thought, what can be done about it? And do you think that the courts need to consider public opinion when deciding cases?
ALITO: I think that the courts were structured the way they are so that they would not decide their cases based on public opinion.
If the framers had wanted the federal courts to follow public opinion, then they would have made federal judges elected officials, as state judges are in many states.
ALITO: They gave them lifetime tenure because they thought there was a critical difference between deciding cases under the Constitution and the laws and responding to public opinion.
Now, they gave the courts limited authority because they wanted most of the decisions that affect people's daily lives to be made by the branches of government that are directly responsible to the people, so that the people can control their own destiny.
The framers' theory was that sovereignty lay with the people and the government was legitimate only insofar as it responded to the people. And that's why Congress is structured the way it is, that's why the presidency is structured the way it is.
But the courts were viewed -- the courts are not a democratic institution. And they were structured the way they are because they saw a difference between the judicial function and the other functions that are performed by the branches of the federal government.
KOHL: Well, and yet the courts, particularly the Rehnquist court, has struck down more laws than any court in recent memory, in response to your comment about the legislatures as being involved in the daily lives of people. And the rate that they've been striking down laws during the Rehnquist court was six times faster than during the first 200 years of our republic.
So how do we deal with the fact that while the legislature, in your opinion, is supposed to represent the daily lives of people, the courts, particularly Supreme Court in recent years, has been striking down the laws of the legislature more often than ever before?
ALITO: Acts of Congress are presumptively constitutional and I don't think that saying that is just words.
ALITO: I think that means something. Members of Congress take an oath to support the Constitution and I think that the presumption of constitutionality means a lot.
And I think that judgments that are reached by the legislative branch in the form of findings of fact, for example, are entitled to great respect because of the structure of our government, the fact that the basic policy decisions are supposed to be made by the legislative branch and carried out by the executive branch, and also for the practical reason or the functional reason that Congress is in a better position to evaluate conditions in our country and conditions in our society and to make findings and to determine what's appropriate to deal with the social and economic problems that we face.
So I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done.
Now, ultimately, Marbury v. Madison decided the question that when a case or controversy comes before the Supreme Court, and the constitutionality of an act of Congress is challenged, it is the duty of the court to decide the question. Unless we were going to go back to 1819, then that's the practice that the federal courts have to follow. But they should always do that with an appreciation of their limited role and the role that the legislature is supposed to play.
KOHL: All right. As a follow-up to that, would you comment on term limits for federal judges or age limits for federal judges?
KOHL: As you know, if a judge so wishes, he or she can serve forever. Do you think that's a good thing in our society?
Should judges be term limited? Should judges, at least, be age limited? Or should they serve just as long as they wish?
ALITO: Well, those are issues that are decided by the Constitution. The framers said that federal judges have life tenure. So, without amending the Constitution, I don't think you could make, you could you have judges serve for a term of years or impose an age limitation on...
KOHL: What is your opinion?
ALITO: On federal judges? I'm not really sure. I understand the arguments in favor of doing both of those things. And state courts do that.
And, although I said yesterday, I didn't think we should look to foreign law in interpreting our Constitution, I don't see a problem in looking to the practices of foreign countries in the way they organize their constitutional courts.
And I believe that many of them do have term limitations on the length of service of a member of the highest court and other members of the judiciary.
So, there are arguments on both sides of the question. If you had a short term of years, you would have a judiciary that was like an elected judiciary. And you would have the advantages and the disadvantages of that kind of structure.
ALITO: But there are arguments on both sides of the question. And it's for other people to decide...
KOHL: Right. We're asking you -- you know, I appreciate that and I appreciate your thoughtfulness. But again, this is the only time -- today may be the last time -- that we ever have a chance as a nation to talk to you.
So you have a thought on it? I mean, I can't believe you don't have a thought. You know, we're not going to amend the Constitution tomorrow based on your thought that you expressed today.
But what is your thought? Do you think it's a good thing for judges to serve unaccountably forever, no age limits, no term limit? Or do you think it might be the best thing for our society for judges, after a reasonably long period of time if you so wish or at a certain age, to phase themselves out?
ALITO: If I had been a delegate to the Constitutional Convention in Philadelphia in 1787, which is a little hard for me to imagine, but if I had been there, and knowing the way things work out, I guess I would narrow the range of possibilities down to -- the range of options that I would consider down to either life tenure or a long term of years so that the judiciary would be insulated from being swayed by popular opinion during a particular period as to the constitutional questions that come before them.
And as between those, I'm not sure which I would choose. If the judiciary is going to exercise the power of judicial review in enforcing constitutional rights, then I would think that one of those two options would be the best.
But I wasn't in Philadelphia in 1787. So I have (inaudible) on that question.
KOHL: Judge, at the end of its term last year, in a 5-4 decision, the Supreme Court ruled in Kelo v. City of New London that it was constitutional for a local government to seize private property for private economic development.
Many people are alarmed about the consequences of this ruling because of the words of Justice O'Connor. Under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall or any farm with a factory," unquote.
KOHL: So what is your view of the Kelo decision, Judge Alito?
ALITO: Well, what I can say is that it's a precedent of the court, and it built on the Midkiff decision, which had been handed down a number of years earlier.
I know that it touches some very sensitive nerves. When someone's home is being taken away, using the power of eminent domain, that is a blow to a lot of people.
Even if they're going to get compensated at fair market value for their home, the home often means more to people than just dollars and cents. It's a place that often involves a lot of emotion. They have emotional attachments to it. They've lived in it a long time. They're familiar with the neighborhood. They want to be with the neighbors they like. They want to stay in the same area. They may have emotional attachments to things in the home.
So it's a tremendous blow. And I suppose that when -- I would imagine that when someone's home is being taken away, a modest home, for the purpose of building a very expensive commercial structure, that that is particularly galling.
But Kelo was the decision of the court, and I've got my view about stare decisis. And should that issue come up again, then obviously the stare decisis factors would have to be considered. The stare decisis question would have to be the first question addressed. And the factors that I've discussed would have to be weighed.
KOHL: Well, your comment is, "On the one, and on the other hand," and I do appreciate that.
KOHL: But I'd ask you, if you would, venture an opinion more precisely, specifically, do you agree in general with Justice O'Connor's dissent?
ALITO: Well, Senator, I don't think I can answer that beyond what I've said.
If the issue were to come before me and if I'm confirmed, then I would first have to consider whether there's any reason for not following Kelo, which is a precedent of the Supreme Court and grew out of the earlier precedent that I discussed, that I mentioned.
Now, I'm not suggesting which way I would decide that question of stare decisis, but that is the way our legal system works; that decisions are presumptively to be followed. And I would have to address that question.
If I got beyond it, I would have to go through the whole judicial process that is set up so that questions of constitutional law and other questions are decided in the best way, reading the briefs, listening to the arguments, participating in the conference and only after that reaching a decision on the merits of it.
KOHL: All right.
As a follow-up, Judge Alito, if confirmed you'll be replacing Justice O'Connor, who is a justice who will be remembered by history as one of the most influential justices of the 20th century. She's also, as you know, a much beloved person.
How will you be different from her, Judge Alito? How do you think Justice O'Connor ought to be remembered, Judge Alito? And how are you like or not like Justice O'Connor as a judge?
ALITO: She certainly will be remembered from many reasons and I think with great admiration. I think she is held in great admiration by the American people at this time, and I think that when people look back they will have great admiration for her work.
She obviously was a pioneering figure, and was an inspiration for many people who want to pursue legal careers and other careers.
She has been a very dedicated justice and has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts, and that's something that is an important part of our judicial process.
I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. I think that is a central feature of best traditions of our judicial system.
KOHL: She was seen as someone who in a general way was a dissenter of the court. You never had an idea whether she might look a little left or a little right, but she was seen as the center of the court, which as you know is central to your nomination.
And you've said you had great respect for her. You've said you respect her as a justice who did look at the facts and made judgments based on those facts, which is -- I think, you would say about yourself -- umpire calling balls and strikes, pretty much as they see them.
Do you see yourself as a justice, if you're confirmed, who in many ways will fill the same role as Justice O'Connor has filled?
ALITO: I think that anybody who is appointed to any judicial position has to be himself or herself. And I don't think that anybody can try to replace the person or can duplicate the approach of the person who that person is replacing.
ALITO: We all have to proceed in accordance with our own abilities and our own outlook.
And so I don't think that -- I think we all have to be who we are. But I think we can emulate the great jurists of the past. Which is not to say that we can equal them, but we can look at what they've done and see the things that they've done very well and try to approach what they've done in various areas.
And I think that I certainly would try to emulate Justice O'Connor in the ways that I've described. I wouldn't flatter myself to say that I could equal her in any of those ways, but I would certainly try to emulate the conscientious and dignified way in which she's gone about the performance of her judicial duties.
KOHL: You may have answered this question already, but as I said, she was at the center of the court -- at least viewed as a person at the center of the court and served a very useful purpose in that respect.
Is it, in your opinion, likely that you might turn out, in a general way, to be that kind of a justice?
ALITO: I can only answer that, really, by saying what I think I've said before, which is that I'd be the same sort of justice in the Supreme Court as I've been a judge on the court of appeals.
ALITO: I am my own person, with whatever abilities I have and whatever limitations I have. And I think if anybody looks at my record on the court of appeals they can get an idea about the way I approach the work of being a judge. And that's what I would try to do on the Supreme Court.
I don't think I can do anything other than that, and that's what I think I should do, and that's what I would do if I'm confirmed.
KOHL: Judge Alito, I thank you very much.
Mr. Chairman, I thank you very much.
SPECTER: Thank you, Senator Kohl.
We'll take our break now and resume at 10 minutes after 11:00.
(RECESS)
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