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Date: January 10, 2006

Senator: Hatch

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 SPECTER: Senator Hatch?

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.

You mentioned this organization in your 1985 job application for a position in President Reagan's administration. And you've 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?

ALITO: I certainly was not a founding member.

HATCH: You were not a board member?

ALITO: I was not a board member.

HATCH: Or for that matter, you were not even an active member of the organization, to the best of your recollection?

ALITO: I don't believe I did anything that was active in relation to this organization.

HATCH: Well, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were 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?

ALITO: Absolutely not, Senator. No.

HATCH: You know, I felt that that would be your answer. I really did.

(LAUGHTER)

That's a good question, though. It's one that kind of overcomes the implications that you were.

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 coeducational school.

(LAUGHTER)

HATCH: I'm 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...

ALITO: I did, Senator. And someone not from any sort of exalted economic status.

HATCH: Modest background. Son of an immigrant father and a person who had gone to public schooling might not have been fully welcomed sometimes at Princeton at that time.

Now, people like me are not even sure what an eating club is, but it sure as heck does not sound like a cafeteria.

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 "bicker" and they chose people that they thought fit in with the group.

And I didn't 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 coeducational facilities on the campus.

ALITO: 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 to have dinner and lunch to talk to faculty members.

HATCH: Well, much has been written about the just and egalitarian changes that took place at Princeton and other elite institutions in the 1960's, 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 boy's network to the detriment of women and minorities.

Could you comment on that particular suggestion?

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 coeducational facilities on the campus.

And since graduating, I have actually been involved in a way in the admissions process. I was on the school's 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.

HATCH: Well, ROTC programs, sir, are an excellent opportunity for young men and women to attend college and 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.

HATCH: You were a member of the ROTC; is that true?

ALITO: I was, Senator.

HATCH: You were a proud member of the ROTC.

ALITO: I was.

HATCH: Did you enjoy your time in the ROTC and in the Army afterward?

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.

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?

ALITO: That's correct. It was very extensively damaged.

HATCH: Was anybody injured?

ALITO: I don't recall that anybody was injured, but certainly there's a serious risk of injury whenever an arson takes place.

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.

HATCH: On the issue of integrity, it says, "The man 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, quote, 'slipped through,' unquote, the court 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 comments from those interviewed include, quote, '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 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's as phony as anything I've 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.

HATCH: And I know you've not had a chance to respond to any of it publicly, so I want to give you that chance 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.

ALITO: Thank you, Senator.

And I appreciate the opportunity to address this, because a lot's 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've 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 is a case that came up in 2002, 12 years after I took the bench, and I acknowledged 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.

HATCH: By pro se...

ALITO: It's a case where the plaintiff was not represented by a lawyer. She was representing...

HATCH: She was paying for her own counsel and represented herself.

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 is 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 sheet of -- 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 attorney's 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.

ALITO: 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. And I wanted to make sure 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 had 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's -- I have a red sheet of paper printed up, and it's 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.

ALITO: 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.

HATCH: In other words, there was never any possibility of you benefiting financially, no matter how that case came out, is that right?

ALITO: There was absolutely no chance and...

HATCH: You actually did recuse yourself when the question was eventually raised, even though you didn't have to?

ALITO: That's correct, Senator.

HATCH: Did you genuinely feel you were either legally or ethically required to recuse under those circumstances?

ALITO: I did not think the code required me...

HATCH: You were just going beyond, which has been your philosophy...

ALITO: That's right.

HATCH: ... and 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 Geoffery Hazard from the University of Pennsylvania.

Now, 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 hearing, Senator Kennedy highlighted a letter from Professor Geoffery Hazard to answer Justice Breyer's critics.

Well, Professor Hazard, he has examined this matter and concluded that you, Judge Alito, handled it, in his words, "quite properly."

Now, Mr. Chairman, I'd like to put not only Professor Hazard's letter into the record, but the letter of Stephen Lubet, Thomas Morgan and Professor Ronald Rotunda, all of whom found that you made no ethical mistakes.

SPECTER: Without objection, all will be made a part of the record.

HATCH: All right.

And let me just observe that these are all top ethics experts in our country today. And, you know, I have to say that 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'm glad to put those in the record.

Now, you actually did more than simply recusing yourself in this case. As you have explained, you have even set up a special system to make sure that this -- you know, that there never is going to be a question about this. And so you went farther than you were legally or ethically mandated to do.

ALITO: I did, Senator. And that is what I have tried to do throughout my time on the bench.

HATCH: When the new panel of judges looked at this case, how did they rule?

ALITO: They ruled the same way that we had, and we had ruled the same way that the district court did.

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?

ALITO: That's correct, Senator.

HATCH: Well, I have to say, Judge, that you went above and beyond your ethical duties here. And I think you're 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.

HATCH: 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. Clearly, some feel that way, that that's 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. And I suppose that in 15 years on the appeals court, that you have participated in what I would estimate nearly 5,000 cases.

You have had many opportunities to review challenges to executive power. Is that correct?

ALITO: I have, yes.

HATCH: Well, I am thinking of cases such as the United States v. Kithcart, where you reversed a criminal conviction because the police lacked probable cause for a search; or Bolton 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?

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's 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 the 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...

HATCH: 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 States Senate, might differ with you on occasion, and others might also.

HATCH: But I don't know a judge alive who's been on the bench 15 years that doesn't have cases that some of our illustrious members disagree with. So that's 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 the 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-mindness 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, quote, "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?

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 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.

ALITO: And that has to be a constant process of reexamination 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. And I described it 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 the particular case.

HATCH: Well, another context in which you 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.

As an appeals court judge, the decisions of the Supreme Court add to the limitations or constraints you must observe, in my opinion.

I'm wondering whether you believe this notion of limited judicial power applies also to the Supreme Court; and if so, how it applies when there is no higher court than the Supreme Court.

HATCH: 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?

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.

HATCH: Another place in which you have written about what might be called judicial philosophy is in your opinions; not that you've 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. Quote, "It is well established that when possible federal courts should generally base their decisions on nonconstitutional rather than constitutional grounds. The rationale behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles," unquote.

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?

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.

ALITO: 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 my philosophy of the way I approached 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.

HATCH: You've 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've explained it pretty well, 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 the case or a controversy or a limitations such as a particular standard of review shape how judges address these issues?

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 you would have done if you were the trial judge or if you were the administrative state. 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. And I think that's a very important part of our function.

HATCH: Thank you, Judge.

SPECTER: Thank you, Senator Hatch.

We will now take a 15-minute break and reconvene at 11:20.

(RECESS)

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