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Date: January 10, 2006

Senator: Kyl

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 SPECTER: And I call now on Senator Kyl.

KYL: Thank you, Mr. Chairman.

Mr. Chairman, let me begin by just asking the witness if you'd like to comment again on the unitary executive. I have this specifically in mind because, while I think I understood your explanation of it, Senator Biden just referred to it. And I thought maybe it would be useful to draw the distinction that I heard you draw with respect to your discussion of the unitary executive power, if you could do that please.

ALITO: Yes, certainly, Senator.

As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.

And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.

It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.

So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope.

KYL: Of who, eventually, has the last say about executive power, which would be the president.

ALITO: Right.

KYL: Thank you.

Now, I want to also ask you a question which was asked of Judge Bork in his confirmation hearing. And his answer, as I understand it, was not well accepted by some members of the Senate; was expressed as one of the reasons for their opposition to him. So it's more than just a mundane question, although it's a simple question.

By accepting the president's nomination, you've obviously expressed a willingness to serve on the United States Supreme Court. My question is, why would you want to serve on the United States Supreme Court?

ALITO: I think it's an opportunity for me to serve the country using whatever talent I have. I think that the courts have a very important role to play, but it's a limited role. So it's important for them to do a good job of doing what they're supposed to do, but also not to try to do somebody else's job.

And I think that this is a way in which I can make a contribution to the country and to society. I've tried to do that on the court of appeals, and I would continue to do that if I'm confirmed for the Supreme Court.

KYL: Thank you.

Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it's obvious from my question that I do not support the use of foreign law as authority in United States court opinions.

I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer's 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer's repeated appeals -- appeals brought by the convict -- should be considered cruel and unusual punishment.

KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it's utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it's needlessly disrespectful of the American people as seen through the widespread public criticism of the trend.

Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?

ALITO: I don't think that foreign law is helpful in interpreting the Constitution.

Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights.

The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did.

ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn't say that that's controlling, but it's something that is useful to look to.

In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is.

So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution.

KYL: Thank you.

Now, let me close with this question.

In the Judiciary Committee's questionnaire to you, you were asked about your views of judicial activism. And as part of your answer, you said something intriguing to me. You said, "Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations."

How does one determine that a constitutional violation is deeply rooted? And can you elaborate on what you meant by that and when federal courts should be especially aggressive in their use of equitable powers?

ALITO: What I was referring to were the efforts of lower federal court judges in the South during the days after the decision in Brown v. Board of Education to try to implement that historic decision despite enormous public resistance at times.

ALITO: But this was an example of the federal judiciary not swaying in the wind of public opinion. There was a lot of opposition. And I'm sure that it didn't make them popular.

I've read a number of books concerning the situation in which they found themselves. But, on the whole, they did what a federal judge is supposed to do, which is that they enforced the decision of the Supreme Court of the United States that, after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races.

KYL: Are there other examples that come to your mind of that same application of power? It seems counterintuitive, but when you think about it, it's absolutely essential for the courts sometimes to buck public opinion and enforce what may be considered unpopular laws.

ALITO: Well, there were some examples cited earlier today when the courts said that the executive had overstepped the bounds of its authority. The Youngstown Steel case was cited. And that is certainly an example where President Truman thought that it was necessary to seize the steel mills so as not to interfere with the war effort in Korea, but the Supreme Court said that this was an overstepping of the bounds of executive authority.

There was a reference to United States v. Nixon, where the Supreme Court said that the president of the United States had to comply with a subpoena, with a grand jury subpoena, for documents. And they stood up for what they understood the law to mean, despite the fact that there must have been great pressure against them in another direction.

ALITO: So when situations like that come up, it is the responsibility of the judiciary to hold fast.

KYL: Mr. Chairman, since there are just about 30 seconds left here, rather than ask another question, let me just close with quoting three sentences from the letter sent by the American Bar Association to you dated January 9th. I thought that was especially interesting in view of the subjects that they dealt with, the integrity of the nominee, as well as his abilities and character.

They said, "Fifty years ago, a Supreme Court justice wrote of the traits of character necessary to serve well on the Supreme Court. He referred to the ability to put one's passion behind one's judgment instead of in front of it and to demonstrate what he called dominating humility. It is the belief of the Standing Committee Judge Samuel Alito possesses those same qualities."

I think that's quite a testament to your character and your integrity, and I'm sure you appreciate the Bar Association reaching that conclusion.

Thank you very much, Senator.

SPECTER: We will now recess until 2:15, at which time Senator Kyl will be recognized for 20 minutes, which is the balance of his 30- minute first round.

Recess until 2:15.

SPECTER; The Judiciary Committee hearings will resume.

 

We'll turn now to Senator Kyl, who has 20 more minutes on his first round of 30 minutes.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

First, let me ask unanimous consent to put three items in the record. One of these items related to -- actually, two of them relate to the matter of the CAP that we've heard something about.

I'd like to enter into the record two letters by Democratic attorneys that make clear that Judge Alito has been extremely helpful in advancing the interests of women and minorities.

One letter notes that as U.S. attorney he put women and minorities in supervisory positions. The other is from a president- elect of the National Bar Association for Women.

And also a Washington Post article from January 9th in which a criminal defense attorney and Democrat Alberto Rivas, who served in the U.S. Attorneys Office when Judge Alito was in charge, said -- speaking of the judge -- "While he opposed numeric hiring quotas, he took steps to diversity an office that had the reputation as something of a white boys club."

Mr. Chairman, I hope that this will help address what I think is almost getting to be a...

(CROSSTALK)

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

KYL: Thank you.

Secondly, there has been some discussion of this Knight-Ridder article that has, to my understanding, been rather completely discredited.

And I ask unanimous consent that the detached document analyzing that article be added to the record.

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

KYL: And before the break, Senator Biden suggested that -- at least I understood him to suggest that there was no reason to belong to this organization CAP in 1985 because ROTC was safely on campus at that time.

Judge, let me ask you a question. Do you know what year you joined the CAP?

ALITO: I don't know, Senator. I've tried to wrack my memory about that.

But as I said, if I'd been active in my membership, I think I certainly would remember that.

ALITO: And if I had renewed the membership, I think I would remember that.

So my best reconstruction of this is it was probably sometime around the time when I wrote that statement.

KYL: Long after you were gone from the school?

ALITO: That's correct.

KYL: In that event, Mr. Chairman, I ask unanimous consent to include an article from a campus newspaper, The Princeton Packet, dated February 12, 1985, which expressly explains that ROTC was a core motivation behind the CAP in 1985.

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

KYL: Thank you, Mr. Chairman.

I noted with interest a comment that Senator Durbin made in his opening statement because it referred to a good friend and former colleague of ours, Senator Simon, who put forth a pretty good test about courts.

He said that the real test is, is the court restricting freedom or expanding it?

And I thought about that because it seems to me that so many of these cases about expanding freedom or restricting it are cases that boiled down to the eye of the beholder.

And I specifically thought about the 9th Circuit case -- because my status from the 9th Circuit -- outlawing "under God" in the Pledge of Allegiance, saying that that's unconstitutional.

And I checked: According to one survey that I had access to, 93 percent of the American people support the right to say "under God" in the Pledge of Allegiance.

And I know that the plaintiff in the case, Michael Newdow, thought that he was advancing his freedom or his daughter's freedom in successfully getting the court to strike it down, but it seems to me that the majority of the people are having their freedom restricted in such a case.

And it seems to me -- and I certainly will not ask you because that case could well come before the court again; I wouldn't ask you how you would rule on it.

But as a general proposition, this matter of restricting freedom, is it not the case that in many situations you've got two competing types of freedom liberty involved and it's a question of interpreting the Constitution rather than specifically setting out to advance one sort of freedom as opposed to another?

ALITO: I think that's exactly right, Senator. Often, there are conflicting freedoms and that makes the case difficult.

KYL: Let me ask you, too, there was a concern expressed by Senator Biden that the big factor in your nomination, in his view, was the fact that you would be replacing Justice Sandra O'Connor, and that that might mean that you would change the direction of the court. That's the concern expressed, anyway.

KYL: Now as has been famously said, I know Justice O'Connor. I've been a friend of hers for at least 30 years and I don't think she is any kind of a liberal member of the court. She might properly be called moderately conservative. I'm not sure how she would characterize herself.

But I noted that of the 109 justices to sit on the Supreme Court, nearly half -- 46 to be exact -- have replaced judges appointed by another political party.

So it is not at all uncommon -- indeed, it is almost half the situations in which a different party nominates the justice replacing a sitting judge or justice. And one might expect, therefore, some difference.

But I checked the record, because this had been brought up by Senator Brownback yesterday, and I found -- in the nomination of Justice Ginsburg and the confirmation hearings there -- she replaced Justice White, who I think rightly has been called a centrist on the court; certainly not a liberal.

And yet I saw not one expression of concern by any senator, Democrat or Republican, that Justice Ginsburg might be ruling quite a bit differently than Justice White in decisions in the court.

So it seems to me that that is not a test that is rightly applied. That's their results-oriented test, exactly the same kind of thing that you have said that judges shouldn't do when they approach cases.

Let me get to a point that Senator Kennedy made.

KYL: He said that you'd been overly deferential to executive power and criticized what he called -- and I think I have this quotation exactly -- your "almost total disregard of the impact of these powers on the rights of individuals."

I'd like to know what your response is to that charge and whether you can cite some specific cases that would refute what he said.

ALITO: Certainly, Senator.

I've tried to decide every case on its own merits. And sometimes that means siding with the government and sometimes it means siding with the party who's claiming a violation of rights. And I do it on an individual basis.

Cases that show that I do that are cases like United States v. Kithcart, which was the case in which an African-American man had been stopped by police officers because there had been a description of some robbery suspects and the perpetrator was described as a black man in a black car, and Mr. Kithcart was a black man in a black car. And they thought that was sufficient to stop the car.

I wrote an opinion saying that was insufficient and that was basically racial profiling and was not permitted.

Another example was Bolden v. Southeastern Pennsylvania Transportation Authority, which had to do with a drug test. And I found that the tests there constituted a search and a seizure and would be a violation absent consent on the part of the party who was searched.

ALITO: There have been a number of criminal cases in which I have sided with the person claiming a violation of rights.

Carpenter v. Vaughn was a case in which I wrote an opinion reversing a death -- I joined an opinion reversing a death penalty. The Braunstein case was another case that came up fairly recently in which I joined an opinion reversing a death penalty.

There have been quite a few cases of this nature, Senator.

KYL: I noted a tax case, too, or a case involving tax evasion, Leveto v. Lapina. Do you remember that 2001 case?

ALITO: I do.

That was the case in which there was a search of I believe it was the office of a veterinarian. And in a way, that is a similar case to the Mellot (ph) case that I was discussing earlier. Although, in Mellot (ph) I thought that the search was carried out properly.

In the Leveto case, on the facts of that case, I thought the search was not carried out properly; that the officers violated the Fourth Amendment in the way they went about carrying out that search. They forced the occupants of these premises to remain on the premises for a very extended period of time while the search was being conducted and violated their Fourth Amendment rights. And that's what I said in the opinion.

KYL: Do you have an idea of how many cases that you've -- that have gone to decision that you have participated in on your 15 years as a Circuit Court judge?

ALITO: I think it's well over 4,000 on the merits.

KYL: And, I mean, I suspect that in those -- of those 4,000 cases, there might be one or two that I disagree with your decisions on, maybe even more than that.

KYL: But the point here is there are numerous cases in which you have found that the government acted improperly in criminal law context, in warrant context, in discrimination context, in other cases in which you have found either that the government acted properly or that, at a minimum, government officials were entitled to some immunity with respect to being privately sued. Is that correct?

ALITO: That's correct, Senator.

KYL: Let me also address this question of discrimination, especially racial discrimination. This is a matter that was discussed in some prior questioning, and specifically in Senator Biden's questions. It dealt with the Sheridan case in which you were the sole dissenter.

In the subsequent United States Supreme Court case, the Reeves decision, my understanding from your answer is that the Supreme Court addressed the same issue of law that you and your colleagues had disagreed about and that the U.S. Supreme Court voted unanimously in an opinion written by Justice O'Connor that the test that you used in the Sheridan case was the correct test to use. Is that correct?

ALITO: Yes, correct, Senator. That is correct.

KYL: Now, there are some other cases involving employees claiming racial discrimination that I've looked at. And one of the senators seemed to suggest, in a comment that he made, that you had never written opinions or decided cases for a black plaintiff. Is that a fair statement?

ALITO: No, it's not accurate.

KYL: Do you recall cases in which you upheld the discriminatory claims of racial minorities?

ALITO: Well, there was a case of Goosby v. Johnson & Johnson and that case can be considered together with the Bray case that I was discussing before the break.

ALITO: Those were both cases in which my colleague, Judge McKee, wrote the opinion, and in the Goosby case I agreed with him. It was a similar case. But it was a case where I thought the facts fell on the other side of the line.

There was a case called Smith v. Davis, which was another case where I joined an opinion upholding the claim of an African American who was claiming racial discrimination.

The Robinson case involved claims of race and gender discrimination, as I recall. There are a number of cases in the criminal law context. I just mentioned the Kithcart case. There was Brenson case. There was Williams v. Price.

There have been many cases involving other forms of discrimination, age discrimination -- the Showalter case. Disability discrimination -- the Manzalusci (ph) case. The case of Shapiro v. Lakewood Township. There was Zubi v. AT&T, which was a case involving the statute of limitations for a claim of racial discrimination.

KYL: And you were the lone dissenter in that case, is that correct?

ALITO: I was the dissenter in that case...

KYL: And your position was what?

ALITO: My position was that -- the majority's position was that the claim had to be thrown out because of the statute of limitations had been violated. And my position was that the claim should be allowed to go forward because the statute of limitations was longer than the majority had recognized.

And that issue later went to the Supreme Court in a case called Jones v. Donnelly. And the Supreme Court agreed with my position that the longer statute of limitations applied.

KYL: I note there was another case involving an African American woman who claimed that their coworkers had made racial and sexual slurs against her, denied her training opportunities, and so on. And you ruled that she was entitled to $124,000 in damages and attorneys' fees -- a case called Reynolds v. USX Corporation. Do you remember that case?

ALITO: That's right, Senator.

KYL: So the bottom line is there are numerous cases in which you have ruled in favor of minorities -- in particular, African Americans -- in discrimination situations, and also where you've dissented in a situation in which your position was to support the claim of discrimination; and that it would be inaccurate to say that you have not taken that position in the 4,000 plus cases that you have decided.

Is that correct?

ALITO: That's certainly correct, Senator.

KYL: Now there's been a lot of talk about precedent and stare decisis. It's certainly something that we lawyers are familiar with. We regard it as key principle in deciding cases.

KYL: There was a case that was mentioned by a couple of my Democratic colleagues that I'm sure will be discussed further.

But I thought I'd give you an opportunity to talk about it because it certainly seemed to me to be a case in which you were trying to apply Supreme Court precedent, the precedent being the Lopez v. United States case; a case, by the way, in which I note that it was one of those decisions that Justice O'Connor was in the majority, a 5- 4 decision in which her position could be characterized as the swing vote.

Now, you, in United States v. Rybar, agreed with Justice O'Connor in the way that law should be applied relative to intrastate possession of a weapon.

The Lopez case dealt with a congressional act that said that weapons should not be possessed near schools. The court struck that down, saying that that went beyond the commerce clause capability of commerce to legislate in matters of interstate commerce.

In Rybar, what was the issue, you dissented.

By the way, one of the reasons why this case is interesting to me because the 9th Circuit Court of Appeals, again, which is my circuit, has subsequently ruled -- and this is not a conservative court in most people's estimation -- recently agreed with your dissent in a case called U.S. v. Stewart (ph), a 2003 case in which the court overturned the defendant's conviction under the very same statute, holding that the law exceeded Congress's commerce powers.

So it seems to me that it would be hard to argue that your position is, per se, unreasonable. But could you describe in your own words?

ALITO: Well, my position in Rybar was really a very modest position. And it did not go to the question of whether Congress can regulate the possession of machine guns.

In fact, I explained in the opinion that it would be easy for Congress to do that in a couple of ways that differed from the way in which it was done in Rybar.

The statute in Rybar was very similar to the statute that was at issue in Lopez. In fact, I think they are the only two federal firearms statutes that have been cast in that mold.

They simply prohibited the possession of firearms without either congressional findings concerning the effect of the activity on interstate commerce or a jurisdictional element.

And I knew from my experience as a federal prosecutor that most of the federal firearms statutes have a jurisdictional element right in the statute. And what that means is that when the prosecutor presents the case in court, the statute that's used most frequently is the statute that makes it a crime for someone who has been convicted of a felony to possess a firearm.

In that case, when the prosecutor presents the case in court, the prosecutor has to show that the defendant has been convicted of a felony and that the firearm in question had some connection with interstate commerce.

Under Supreme Court precedent, a case called Scarborough, all that's necessary is to show that the firearm at some point in its history passed an interstate or foreign commerce: it was manufactured in one state and then later turned up in another state or manufactured in a foreign country and brought to the United States.

From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed.

ALITO: But for whatever reason, the statute in Lopez and the statute in Rybar were lacking that jurisdictional element.

So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem.

The Supreme Court in Lopez said that there were three reasons why there was a problem with the statute there.

And that case had been decided the year before. And it was my obligation, as a lower court judge, to follow it.

The first was that it involved what the court characterized as a noncommercial activity, and that was the possession of a firearm. And, of course, that was the exactly the same activity that was at issue in Rybar.

The second was the absence of a jurisdictional element, and there was no jurisdictional element in either statute.

And the third was the absence of a congressional finding connecting the activity that was being regulated within interstate commerce.

And I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the Justice Department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which is what the Supreme Court says is required.

KYL: So this is one of those situations in which, if the result was not was intended, you were willing to point out in your decision what Congress could relatively easily have done to get the result that it appeared that Congress wanted to achieve?

ALITO: That's exactly correct.

KYL: Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Kyl.

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