Date: January, 9 2006
Senator: Feinstein
Topic:
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FEINSTEIN: Thank you very much, Mr. Chairman.
Welcome, Judge Alito.
I'm one that believes that your appointment on the Supreme Court is a 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.
And so during these hearings, I think it's fair for us to try to determine whether your legal reasoning is within the mainstream of American legal thought and whether you're going to follow the law regardless of your personal views about the law.
FEINSTEIN: And 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.
Now, I'd 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 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court's limited view of congressional authority. And I hope to clear that up.
But let me give you one example here, and that's 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 that 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 has on interstate commerce.
FEINSTEIN: I'm 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' constitutional authority to enact legislation.
Now, the subject of executive power has come up. And indeed it is a very big one.
I think we're all concerned about how you approach and decide cases involving expanded presidential powers.
And 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 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 -- whether the president can conduct electronic surveillance on Americans without a warrant, despite legislation that establishes a court process for all intelligence for all electronic surveillance.
I'm 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.
FEINSTEIN: 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's 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'd like to find that out.
I'm 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 decision, 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. the 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.
FEINSTEIN: 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 may well here 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 3rd Circuit you sided against the individual alleging discrimination in about three-quarters of the cases before you.
So we have a lot to learn about what your views are, your legal reasoning, and how you would apply that legal reasoning. So 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.
SPECTER: Thank you, Senator Feinstein.
Senator Sessions?
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