Date: January 12, 2006
Senator: Schumer
Topic:
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SPECTER: Senator DeWine, do you have any questions?
DEWINE: Mr. Chairman, I'll reserve my time.
SPECTER: Senator DeWine reserves his time.
SPECTER: Senator Schumer, you're recognized for up to 25 minutes.
SCHUMER: Thank you, Mr. Chairman.
SPECTER: With our conversation that you're going to ask new questions...
SCHUMER: That's what I want ask. But...
LEAHY: It's a new day.
(LAUGHTER)
SCHUMER: But I think some of my old questions, the ones I've asked before, should bother you. They bother me.
But, in any case, I do have a few other issues that I do want to talk to you about. But, first, there's just a general question on presidential power.
Let's just assume that it was found that the president's right to wiretap people, the way we're discussing it now in terms of the recent NSA revelations, was found constitutional.
Would there be a different standard if, say, the president -- does that necessarily allow the president to then go ahead and go into people's homes here in America, American citizens, without a warrant?
Does the one necessarily lead to the other?
ALITO: I would have to understand -- I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.
SCHUMER: But let's assume it is constitutional.
ALITO: I'd have to know what the arguments were made about it and on what ground was found to be constitutional.
SCHUMER: So, it could follow, but might not? Is that what you are saying?
ALITO: It very well might not. I would have to know the constitutional grounds for the decision relating to the wiretapping and I have no idea what that would be.
It may well not extend to things like physical searches of homes.
SCHUMER: Is there a difference? Is there a constitutional difference between a wiretap and an actual physical search of the home on Fourth Amendment grounds? Is there any that you know in the cases?
ALITO: There are differences. Yes, there are certainly are.
SCHUMER: Thank you.
ALITO: General criminal wiretapping is subject to all the rules that are set out in Title III, which are thought to be based in large part on Fourth Amendment requirements. And the warrant requirement is very strong in the area of electronic surveillance.
When you're talking about other types of searches, the searches can take place in a variety of places for a variety of reasons.
SCHUMER: But if it can be done under the inherent power that the president has for the one, why couldn't it be done for the other? I'm not asking about the statute.
ALITO: There's also a Fourth Amendment issue.
SCHUMER: In both cases.
ALITO: In both cases. And the Fourth Amendment could play out very differently in those two contexts.
SCHUMER: Now I'd like to go back to some of the line of questioning that Senator Durbin explored yesterday when he mentioned the crushing hand of fate: Bruce Springsteen.
Judge Alito, I assume you believe that you will be able to be fair in every case that comes before you on the Supreme Court.
ALITO: I have no reason to think I will not be. I certainly will.
SPECTER: And you don't believe that you prejudged any legal or constitutional issue?
ALITO: I don't believe that I have.
SCHUMER: And you'll take care to apply the rules of law and procedure equally and evenhandedly no matter who the parties are, prosecution or defense?
ALITO: Certainly will, yes, Senator.
SCHUMER: Employer or employee?
ALITO: I will apply the laws evenhandedly to everyone.
SCHUMER: And I take it you believe that you've done just that on the 3rd Circuit while you were there.
ALITO: I believe I have.
SCHUMER: OK.
Now, yesterday, Senator Durbin asked about Pirolli v. World Flavors, and you remember that case. You discussed it with Senator Durbin.
And the case involved the claims of a mentally retarded man who brought suit against his employer for violent and persistent sexual harassment by his coworkers.
SCHUMER: Am I right?
ALITO: Those were the claims, yes.
SCHUMER: And the majority allowed the case to proceed, finding that the court had, quote, "discretion to consider issues not raised in the brief." And they did so to give the plaintiff his day in court. You exercise your discretion to vote against giving him his day in court because his lawyer failed to raise the argument in the brief.
As you told Senator Durbin, "There is a very important principle involved in appellate practice" -- these are your words -- "I think it goes with the idea of judicial self-restraint. And that requires 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 should not be able to raise the issue on appeal, and that was the principle there."
Those are your words. Right?
ALITO: I believe they are. Yes.
SCHUMER: OK. Now I'd like to go to two other cases that you had when you are on the 3rd Circuit. The first one is Smith v. Horn, where a similar issue arose. That was a criminal case involving a habeas corpus petition brought by a criminal defendant, right?
ALITO: Yes, it was.
SCHUMER: And it turns out that in that case as well, just like Pirolli, one of the parties had failed to raise a relevant argument in its brief, right?
ALITO: Smith v. Horn was really not comparable to Pirolli, for a very important reason. Smith v. Horn was a habeas case. And so what is involved there is not simply a dispute between private parties -- and of course disputes between private parties are very important and individual rights can dissolve...
SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.
I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.
They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates."
SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.
In the first case, you said to that retarded individual, "Sorry, you're out of luck." In the second case, you said to the government, "I'll make your argument for you." And that doesn't seem even handed to me.
Can you explain the difference, please?
ALITO: Yes, Senator.
As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.
What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.
And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.
SCHUMER: Now, that applies to the government as well as to the defendant?
ALITO: Absolutely.
The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?
Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.
SCHUMER: But the majority didn't agree with you in that situation, did they?
ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.
And my position on...
SCHUMER: Let me ask you -- I understand your explanation.
SCHUMER: I'm not sure I agree with it. But let me go on to another one. This is Dillinger.
In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.
They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?
ALITO: I don't have a recollection of all the facts...
(CROSSTALK)
SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.
The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.
You dissented, with the result, had you prevailed, that the accident victim's case would have been over.
The majority describe your approach as follows. Quote: "There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial."
So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?
ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case.
SCHUMER: Can you explain the difference between the two for us; why in one case it was OK and why in another case it wasn't?
ALITO: Senator, I'd have to refresh my recollection of Dillinger.
But what you've just mentioned relates to the principle that it is appropriate for an appellate court to affirm a decision of a lower court on an alternative ground when the basis for that is apparent from the record of the case.
So if the facts -- if it's a purely legal issue, for example, and you're talking about whether you're going to affirm or whether you're going to reverse...
SCHUMER: But was that the case in Dillinger?
ALITO: Well, without refreshing my recollection, I wouldn't be able to say.
SCHUMER: Oh, OK.
ALITO: But what you read to me...
SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another.
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