Date: January 12, 2006
Senator: Witness - Tober
Topic:
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SPECTER: The Judiciary Committee will now proceed with the confirmation hearing on Judge Samuel Alito for the Supreme Court of the United States.
After our morning session, the committee met in executive session and reviewed confidential data on the background of Judge Alito. And it was all found to be in order.
We're now proceeding with the witnesses, the tradition of the outside witnesses, the independent witnesses. The tradition is to hear first from the American Bar Association and their evaluation of the judicial nominee.
We have structured this portion of our hearing differently from what had been done prior to last year, and that is where the majority took most of the outside witnesses. The tradition has been to have 30 witnesses and the majority party had taken 18 and the minority party 12. And it seemed that it would be more appropriate to have an even split, 15 and 15, and that is the practice we are following. And, of course, the ABA representatives are not witnesses called by either Democrats or Republicans.
And we have really done our best to proceed in a nonpolitical way in the selection of a Supreme Court justice. There can be different evaluations as to how successful we are in that, but that has been our effort.
We have limited testimony to five minutes for outside witnesses. The next witness already nods in agreement. He was here not too long ago for Chief Justice Roberts.
And we have established the five-minute rule because we have 31 witnesses.
SPECTER: And the Senate is not in session and all the members of the committee have other commitments. And it is projected that we will finish today, but we'll have to keep on schedule.
We turn now to the American Bar Association panel. And we welcome Mr. Steve Tober, Ms. Marna Tucker and Mr. John Payton.
In accordance with the practice, the testimony will be given by Mr. Tober, who is the chairman of the American Bar Association Standing Committee on the Federal Judiciary. He's an attorney with the law firm bearing his name; experienced in civil litigation, professional negligence and domestic relations; undergraduate and law degree from Syracuse University; of the board of the Law Review; deeply involved in New Hampshire and New England legal communities; former chairman of the committee to redraft New Hampshire's rule on professional conduct.
We know the laborious job involved, Mr. Tober, which you're about to describe in reaching evaluation of a Supreme Court nominee and the importance of your judgments. So we thank you and Mr. Payton and Ms. Tucker for your public service.
Now, Mr. Tober, the floor is yours.
TOBER: Thank you, Your Honor.
Thank you, Mr. Chairman, members of the committee.
My name is Stephen L. Tober of Portsmouth, New Hampshire. It is my privilege to chair the American Bar Association's Standing Committee on Federal Judiciary.
I am, indeed, joined today by Marna Tucker, our D.C. circuit representative, and by John Payton, our federal circuit representative.
For well over 50 years, the ABA Standing Committee has provided a unique and comprehensive examination of the professional qualifications of candidates for the federal bench. It is composed of 15 distinguished lawyers who represent every judicial circuit in the United States and who annually volunteer hundreds of hours of public service.
TOBER: Our committee conducts a thorough, nonpartisan, non- ideological peer review using well-established standards that measure a nominee's integrity, professional competence and judicial temperament.
With respect to a nomination to the United States Supreme Court, the standing committee's investigation is based upon the premise that such a nominee must possess exceptional professional qualifications. The significance, range and complexity of issues that will be confronted on that court demands no less.
As such, our investigation of a Supreme Court nominee is more extensive and is procedurally different from others in two principal ways.
First, all circuit members on the standing committee reach out to a wide range of individuals within their respective circuits who are most likely to have information regarding the nominee's professional qualifications.
And second, reading groups of scholars and distinguished practitioners have formed to review the nominee's legal writings and advise the standing committee.
The reading groups assist in evaluating the nominee's analytical skills, knowledge of the law, application of the facts to the law, and the ability to communicate effectively.
In the case of Judge Alito, circuit members combined to contact well over 2,000 individuals throughout this nation. Those contacts cut across virtually every demographic consideration and it included judges, lawyers and members of the general community.
Thereafter, circuit members interviewed more than 300 people who knew, had worked with, or had substantial knowledge of the nominee.
All interviews regarding the nominee were fully confidential to assure the most candid of assessments.
Judge Alito has created a substantial written record over his years of public service. Our three reading groups worked collaboratively to read and evaluate nearly 350 of his published opinions, several dozen of his unpublished opinions, a number of his Supreme Court oral argument transcripts and corresponding briefs, and other articles and legal memos.
TOBER: The academic reading groups were composed of distinguished faculty from the Syracuse University College of Law and from the Georgetown University Law Center.
The practitioners group was composed of nationally recognized lawyers intimately familiar with demands of appellate practice at the highest level.
Finally, as we do in any standing committee investigation, a personal interview was conducted with this nominee. Judge Alito met with the three of us on December 12th and he provided us a full opportunity to review matters with him in detail.
After the comprehensive investigation was completed, the findings were assembled into a detailed confidential report. Each member of the standing committee reviewed that final report thoroughly and individually evaluated that nominee using three rating categories: well-qualified, qualified and not qualified.
Needless to say, to merit a evaluation of well-qualified, the nominee must possess professional qualifications and achievements of the highest standing.
During our investigation, questions were raised concerning the nominee's recusal practice and also concerning some aspects of his judicial temperament. We have carefully reviewed and resolved those questions to our satisfaction as we have detailed in our accompanying correspondence to your committee which, Mr. Chairman, we ask to be made part of this record.
SPECTER: Without objection, they will be made part of the record.
TOBER: Thank you, sir.
We are ultimately persuaded that Judge Alito has, throughout his 15 years on the federal bench, established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair.
As such, on the basis of its comprehensive investigation and with one recusal, the standing committee unanimously concluded that Judge Samuel A. Alito Jr. is well qualified to serve as associate justice on the United States Supreme Court.
TOBER: His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard.
Mr. Chairman, let me say once again what we noted here back in September. The goal of the ABA Standing Committee has always been and remains in concert with the goal of your committee: to assure a qualified and independent judiciary for the American people.
And with that, thank you for the opportunity to present these remarks.
SPECTER: Thank you very much, Mr. Tober for your work and for ending right on the button, five minutes to a T.
TOBER: I worked on that, sir.
(LAUGHTER)
SPECTER: That quality of yours would recommend you for a Supreme Court argument where Chief Justice Rehnquist stopped the speaker in mid-sentence.
A word from Judge Becker, who will testify later. He was looking for an opportunity -- he stopped me in mid-sentence one day. He was looking for an opportunity to stop the speaker in the middle of the word "if." I didn't give him that chance.
(LAUGHTER)
Before proceeding to questions, I want to yield to Senator Leahy to see if he has any opening comments that he wants to make.
LEAHY: I don't, Mr. Chairman. I don't. Thank you, though.
SPECTER: We have five-minute rounds for each of the members of the committee.
Mr. Tober, picking up on your testimony that you found Judge Alito to have even-handed application of the law, how would you amplify that with respect to what kind of materials you looked at, what your evaluation was and what led you to that conclusion?
TOBER: Be happy to, Mr. Chairman.
The conclusion was reached in large measure in interviews with, as I said, well over 300 individuals around this country, over 130 of whom were federal judges, many were state judges, many were colleagues, co-counsel, opposing counsel, who almost uniformly talked in terms of his evenhandedness, of his open-mindedness, of his willingness to be fair. He's called "a judge's judge" more than once in those interviews.
When we interviewed him, we had questions that would have been on that issue. And we discussed that issue with him, to get his own personal perspective on it. We were satisfied with what we heard at that time.
And perhaps it's best reflected in his writings, which, again, I indicated the body of that work was read by our three reading groups collaboratively. And the conclusion that was reached, if you will, the overarching conclusion that was reached, is that this is a judge who brings pragmatic skills to his decision-making.
We discussed that with him in that interview that we had on December 12th. He tries to do what he thinks is right with respect to the application of the law that's before him. He took us through how he analyzes that approach, up to the point that when he is just about ready to release his decision, he looks back once again at the law to make sure he hasn't misapprehended something in the first instance; and secondly, to make sure that the outcome is fair.
That, to me, suggests...
SPECTER: So he came back to you twice?
TOBER: I'm sorry?
SPECTER: Was your testimony that he came back to you? What did you mean he came back and took another look?
TOBER: He would look at his draft opinion, Mr. Chairman, before it would be issued. And he would look back at the law that he was applying in that opinion and the outcome that was occurring in that opinion, just to justify in his mind one more time that the outcome would be fair.
SPECTER: Did your group study all of his opinions?
TOBER: The reading groups read 350 of his published opinions, scores of his unpublished opinions, and other materials, yes.
SPECTER: And did they make any analysis?
An issue has been raised as to whether Judge Alito unduly favored the powerful or the government. Did your ABA analysis reach that issue?
TOBER: That issue is one that we looked at. And we discuss it in our letter of evaluation. And I gave some examples of the some of the disparate results that we were told about.
TOBER: One of the reading groups reported to us that they could not reach a full conclusion on whether or not there was some attempt to favor one outcome for a group of litigants over another. And while there were a couple of members in a couple other reading groups that may have said the same thing in so many words, there were a significant number of other individuals in the reading groups who said they couldn't find any such evidence of that. It was inconclusive with respect to the reading groups.
What was of interest in the reading group reports to us was a comment that was echoed by others, which is that in looking for a sense of partiality in the opinions, the conclusion that was left very often was one of pragmatism.
SPECTER: Let me interrupt you, because my time is almost up, to ask you to clarify. What was inconclusive in your studies?
TOBER: It was inconclusive whether or not there were certain categories of parties who might have come out at the wrong end of Judge Alito's opinions.
SPECTER: Did some of those readers find that he was impartial and some find the contrary?
TOBER: My understanding is it was inconclusive. We did not receive any clarion call at one point that he was representing or suggesting to have a bias against any particular group of litigants before him.
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