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Date: January 10, 2006

Senator: Kohl

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SPECTER: Senator Kohl?

KOHL: Thank you very much, Mr. Chairman.

Judge Alito, we heard a lot of discussion yesterday about the proper role of the judge in our system.

KOHL: Some said that a judge should favor neither the, quote, "big guy or the little guy, but simply apply the law and not make the law."

Based on what you said yesterday, I believe that you would agree generally with this characterization.

However, to me, it's not quite so simple. Just as no two umpires call the same game exactly, no two judges see a case in exactly the same way. Laws and the Constitution are often ambiguous and capable of many interpretations. Those interpretations are the result of judges with different judicial philosophies. Some judges have a more liberal judicial philosophy, while others are more conservative.

And we're here trying to figure out what your judicial philosophy is. That's probably the principal point of this hearing.

If the law were so simple we would not have as many 5-4 decisions.

It seems to me that many of the most fundamental protections of civil rights and civil liberties that we take for granted today -- things such as school integration, the principle of one person, one vote, the principle that the accused have a right to a lawyer in criminal cases, and the right of contraception, just to name a few -- have come when judges have been willing to look beyond rigid legal doctrines that prevailed at the times of those rulings.

The neutral approach, that of the judge just applying the law, is very often inadequate to ensure social progress, right historic wrongs and protect civil liberties so essential to our democracy.

So isn't it true, Judge Alito, that a neutral judge would never have reached these conclusions? In fact, for decades, courts did not reach these conclusions.

So would you agree that these cases were rightly decided, number one; and required, number two, that judges apply a more expansive, imaginative view of the Constitution?

ALITO: I think that the Constitution contains both some very specific provisions, and there the job of understanding what the provision means and applying it to new factual situations that come up is relatively easy.

The Constitution sets age limits, for example, for people who want to hold various federal offices and there can't be much debate about what that means or how it applies.

But it also contains some broad principles: no unreasonable search and seizures, the guarantee that nobody will be deprived of life, liberty or property without due process of law, equal protection of the laws. And in those instances, it is the job of the judiciary to try to understand the principle and apply it to the new situations that come before the judiciary.

I think the judiciary has to do that in a neutral fashion. I think judges have to be wary about substituting their own preferences, their own policy judgments for those that are in the Constitution.

They have to identify the principle that is to be applied under these broader provisions of the Constitution and apply it, but I don't see that as being the same thing as the judges injecting his or her policy views or preferences or ideas about the direction in which the society should be moving into the decision-making process.

KOHL: These decisions to which I just referred pushed society into new directions. And they came about -- didn't they? -- as a result of the Supreme Court's willingness to look at the Constitution in perhaps a different and a new way and take a new approach and a new avenue, which is not entirely consistent with a neutral judge simply applying the law.

KOHL: The law is the law. It's not hard to find that out, as you somewhat suggested, that you're an umpire. A ball is a ball; a strike is a strike.

I'm suggesting that it's -- and I would like to hope you would agree that it's somewhat if not a lot more complex and sophisticated. If it weren't true, we could have a lot of views here today.

I think you're unique in many ways. And part of that is your complexity, your sophistication, your ability to look at the Constitution and, if necessary, see new meanings that weren't seen there before. Isn't that true?

ALITO: Well, Senator, I would never say that it is an easy process. There are some easy cases, but there are lot of very difficult cases. And once you have identified the principle, the job of applying it to particular cases is often not easy at all.

But what the judge has to do is make sure that the judge is being true to the principal that is expressed in the Constitution and not to the judge's principle, not to some idea that the judge has.

And sometimes this results in ground-breaking decisions; sometimes that is because new issues come up. Sometimes it is because the principle that is embodied in a constitutional provision has long been neglected.

That was certainly true with respect to the equal protection clause. There was a long period between Plessy v. Ferguson and Brown v. Board of Education when the true meaning of the equal protection clause was not recognized in the decisions of the Supreme Court.

ALITO: And when Brown was finally decided, that was not an instance of the court changing the meaning of the equal protection clause; it was an instance of a court writing an incorrect interpretation that had prevailed for a long period of time.

KOHL: OK.

Judge Alito, one of the ways you get at a person's judicial philosophy is to look at the people whom they admire.

In an interview that you gave in 1988, you were asked about your thoughts about Judge Robert Bork's nomination and you said, and I quote, "Judge Bork was one of the most outstanding nominees of this century," unquote.

Many Americans do not share Judge Bork's narrow views about the Constitution, views that would undermine many of the rights that we now take for granted, Judge Alito.

Judge Bork thought that Americans had no constitutional right to use contraception, saying, and I quote, "The right to procreate is not guaranteed explicitly or implicitly by the Constitution," unquote.

Judge Bork thought minorities had no constitutional right to have their votes counted equally, saying that in guaranteeing one man/one vote, the court, quote, "stepped beyond its boundaries as an original matter," unquote.

In 1981, Judge Bork called Roe v. Wade, quote, "an unconstitutional decision, serious and wholly unjustifiable usurpation of state legislative authority," unquote.

In addition, he had an unreasonably broad view of executive power, claiming that a law requiring a president to obtain an order from a court before conducting surveillance in the United States and against U.S. for foreign intelligence purposes was, quote, "a thoroughly bad idea and almost certainly unconstitutional."

Can we assume from your admiration of Judge Bork that you agree with some of these statements, or at least that you support some of these beliefs if you were sitting on the Supreme Court?

KOHL: Frankly, it's curious to me that someone like yourself would consider someone with his views to be, quote, "one of the most outstanding nominees of this century."

ALITO: Senator, when I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination. I do not think the statement goes beyond that.

There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which -- on which I disagree with him.

Most of the things that you just mentioned are points on which I would disagree with him. I expressed my view about Griswold earlier this morning.

On the issue of reapportionment, as I sit here today in 2006, and I think that's what is most relevant, I think that the principle of "one person, one vote" is a fundamental part of our constitutional law. I think it would be -- I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done.

Every legislative district in the country and every congressional district in the country has been reapportioned, has been redistricted numerous times in reliance on the principle of one person, one vote. And the old ways of organizing state legislatures have long been forgotten.

So I think that is very well settled now in the constitutional law of our country.

Under the Fourth Amendment, I have no question about the decision in the United States v. United States District Court -- and I think that is what you were referring to -- which held that a warrant is required for domestic security surveillance.

ALITO: And that was the decision that led to the enactment of the Foreign Intelligence Surveillance Act.

KOHL: Of course. I was only referring to -- or trying to refer to your quote with respect to him and the positions he held, which I suggested were at variance with the positions I thought you held, which you're affirming here in your answer.

So that the quote you're pointing out was something you made as an employee of the Reagan administration?

ALITO: I was. I saw that quoted in the paper yesterday. I think that was in 1980...

KOHL: Not necessarily expressing your own real views?

ALITO: I was a supporter of the nominee of the administration, and he was the nominee of the administration. He was and is an accomplished scholar. He had contributed a great deal to constitutional debate with his writings.

But I don't agree with him on a number of issues, and I've mentioned -- you've hit some of the issues on which I would definitely disagree with him.

KOHL: Very good.

Judge Alito, in a document appended to your job application you also wrote that, quote, "I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by branches of government responsible to the electorate," unquote.

The statement is especially troubling given that elsewhere in this application you wrote, quote, "I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, establishment clause and reapportionment."

KOHL: Judge Alito, what Warren court cases were you specifically talking about? Miranda? One person, one vote? Any of the privacy decisions? What in particular were you talking about?

ALITO: Well, Senator, I'm happy to address that.

The statement was made in that 1985 form. And, of course, that was written 20 years ago. And in the form, what I was doing was, sort of, outlining the development of my thinking about constitutional law. And I went so far as to go back to my college days, which were before, of course, I had even attended law school, much less practiced law or served as a judge.

I mentioned some of the leading areas that were covered by decisions of the Warren court. And the decisions of the Warren court really stimulated my interest in constitutional law.

And I mentioned a book that had been published at the time, Alexander Bickel's book "The Supreme Court and the Idea of Progress," which was probably the first book about what you might call constitutional theory that I had read.

And he was someone who I think most people would describe as a liberal, but he was a critic of the Warren court for a number of reasons. And he was a great proponent of judicial self-restraint, and that was the main point that I took from my pre-law school study of the Warren court.

I spoke a bit about the reapportionment decisions.

ALITO: I don't believe that I -- in fact, I'm quite sure I never was opposed to the one person, one vote concept.

I do recall quite clearly that my father's work at the time -- working for the New Jersey legislature and working on reapportionment -- had brought to my attention the question of just how far that principle of one person, one vote had to be taken in drawing legislative districts.

The New Jersey legislature, and many other legislatures at the time, were trying to redraw their districts in accordance with Reynolds v. Simms, which set out the one person, one vote principle, but it wasn't clear how exactly equal the districts had to be in population.

And in some of the late Warren court decisions, the court seemed to suggest -- did say so for congressional districts -- that they had to be almost exactly equal in population.

And this idea, if applied to the legislatures and to the New Jersey legislative plan, would have wiped the plan out, because there were population deviations, which although not very large, were much larger than the court had said there were going to tolerate in the case of congressional districts.

And I do remember that quite specifically.

Professor Bickel made the argument that the court had taken the one person, one vote principle too far. And I know my father had said that, although he thought it was a good idea, the idea of trying to get the districts to be exactly equal in population at the expense of looking at other factors, such as the shape of the districts and respecting county lines or municipal lines, was a bad idea.

KOHL: Judge Alito, you stated in that same job application that one element of the conservative philosophy that you believed, quote, "very strongly," was the, quote, "legitimacy of a government role in protecting traditional values," unquote.

KOHL: What traditional values were you referring to? And who decides what is a, quote, "traditional value"?

ALITO: Well, again, I'm trying to remember what I thought about that 20 years ago, and I'm trying to reconstruct it.

I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value.

I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value.

I think the ability to raise children in a way that they're not only subjected to -- they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value.

I think that the ability to practice your own conscience is a traditional value.

That's the best I can reconstruct it now, thinking back to 1985.

KOHL: Very good.

Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman. You reasoned, in part, that the number of married woman who would seek an abortion without notifying their husbands would be rather small; in other words, only some women who would be affected.

KOHL: The majority in that case disagreed with you and stated, quote, "Whether the adversely affected group is but a small fraction of the universe, a pregnant woman desiring an abortion seems to us irrelevant to the issue," unquote.

This disagreement begs the question: Is a constitutional right any less of a right if only one person suffers a violation? Or should greater value be placed on that right if a larger number of people have that right violated?

ALITO: Trying to apply the undue burden test at that time to the provisions of the Pennsylvania statute that were before the court in Casey was extremely difficult. I can really remember wrestling with the problem. I took it very seriously, and I mentioned that in my opinion. It presented some really difficult issues.

Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it.

What she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes, but they are pretty close. She did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. That was the information that was available in her opinions to try to understand what this test meant.

Then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? It was a difficult task.

The plaintiffs argued that all of the provisions constituted an undue burden. When the case went to the Supreme Court, Justice Stevens agreed with that.

ALITO: He said they all were an undue burden, things like a 24- hour Waiting time. That was an undue burden because it would inhibit some women from having an abortion.

An informed consent provision -- Justice Stevens thought and the plaintiffs argued that would be an undue burden.

The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden -- the 24-hour waiting period, the informed consent provision, and all of them.

We disagreed on only one and that was the provision regarding spousal notification, with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her.

And it was -- I wrestled with that issue, but based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.

KOHL: Judge Alito, in your 1985 job application memo, again, you identified reapportionment as one of the three issues decided by the Warren court with which you disagreed. You even stated that you disagreed with it so strong that it was one of the reasons that you became a lawyer.

The Supreme Court's Warren court decisions on this topic, of course, stood for the fundamental principle of one person, one vote; meaning as a matter of constitutional law that each person's vote must count equally and each electoral district must have the same population.

KOHL: These decisions were more than 20 years old by the time of your 1985 job application. And these decisions stand for a fundamental principle of democracy.

By 1985, virtually no serious scholar or constitutional lawyer could be found to disagree with the principle that each person's vote should count equally.

So what was your disagreement with the Warren court's decisions on this issue, Judge Alito, in 1985? Isn't one person, one vote a basic principle of democracy? Wasn't it in 1985?

ALITO: Senator, I don't believe that I disagreed with the principle of one person, one vote in 1985. I was talking about how I got interested in constitutional law back in college, and I was certainly stimulated at that time by my consideration of the issue of one person, one vote.

But the issue that troubled me toward the end of the Warren court -- and this was during the time when I was in college -- was the question of how far this principle when it came to drawing legislative districts.

Did they have to be almost exactly equal in population in accordance with the last census? Or were larger population variations permitted?

In a case called Kirkpatrick v. Priesler and another one called Wells v. Rockefeller that were decided around 1969, which was right at the end of Chief Justice Warren's tenure on the Supreme Court, the court held that in the case of congressional districts, they had to be almost exactly equal in population.

And as I said, my father was deeply involved in this. When the issue came up again in the context of congressional districting in Karcher v. Daggett, which was around 1985 -- that was the case where he had been an expert witness.

ALITO: And the court struck down the New Jersey congressional districting plan, even though the population variations were under 1 percent.

Now, the court also later said that when you're talking about legislative districts, considerably larger deviations are allowed and you can take into account municipal lines and county lines and things of that nature.

But as of the time when I was in college, as of the time of the two cases that I mentioned, it seemed likely -- a lot of people thought, and certainly I as a college student thought, that the rule was going to be the same for congressional districts as it was for legislative districts. And that seemed to say that the districts would have to be almost exactly equal in population based on the last census.

A problem with that is that while its census is very accurate, it is not perfect, and it does not stay accurate throughout the 10-year period from census to census. People move around, the population grows, population diminishes in certain areas.

It did not seem to make a whole lot of sense, let's say, in the middle of a decade to insist on an absolute population equality based on the last previous census, when everybody knew that the census figures have changed. In doing that, insisting on practically equal population districts, districts of almost exactly equal population. You disregard municipal lines, you disregard county lines. People don't know which district they're going to be voting in. You introduce the possibility of other factors figuring into the districting plan.

KOHL: Family and Medical Leave Act, Judge Alito: In my view, one of the most important pieces of social legislation enacted in the last two decades was the Family and Medical Leave Act in 1993.

KOHL: Among other things, it gives employees the right to take up to 12 weeks of unpaid leave to care for a newborn child or an ill parent or a spouse.

The statute also gives an employee the right to sue his or her employer for damages if the employer violates the employee's rights under this law.

I was disturbed to learn that in the Chittister case, Judge Alito, your ruling denied a state employee the ability to sue his employer for money damages. Your reasoning was directly repudiated by the 2003 Supreme Court decisions of Nevada Department of Human Resources v. Hibbs.

In that case, the Supreme Court, in a decision written by Chief Justice Rehnquist, held that the Family and Medical Leave Act was congruent and proportional to Congress's interest in preventing discrimination based on gender and therefore states could be sued for money damages under the law.

So we're concerned that your view shows a lack of understanding of the problems of ordinary working Americans and the right of women to be free of discrimination in the workplace.

Isn't it true that under your view potentially millions of working Americans would not get the protections that they rely on under the Family and Medical Leave Act, Judge Alito?

ALITO: Well, Senator, I'm happy to address that, because I think there has been some confusion about what the issue was in Chittister and how it relates to the Supreme Court's decision in Nevada v. Hibbs.

There are actually two zero entirely different provisions of the Family and Medical Leave Act. The provision that was at issue in my case was not the one in Hibbs. And, at last count, seven circuits had decided that issue, the issue that was before my court in Chittister, exactly the same way we did.

ALITO: I counted up the number of court of appeals judges who endorsed that position and it's over 20; I think it's 22. And they include some of the most distinguished court of appeals judges in the country and judges who have been appointed by presidents of both parties.

The issue in Hibbs had to do with a provision of the Family and Medical Leave Act that requires employers to provide employees with a certain amount of leave for the purpose of taking care of another family member. And that was the one that the Supreme Court addressed in the Hibbs case.

The provision in the Chittister case is a provision that requires employers to give employees a certain amount of leave for personal illness.

The standard that has to be applied here is the one the Supreme Court has set out, and it's a controversial standard, but as a lower court judge is the one I had to apply. And that was whether what was done was congruent and proportional to constitutional violations.

What the court said in Hibbs was that there was a record of constitutional violations. And remember, here we're talking about the provision that has to do with leave to take care of another person.

And what they said was that there were many instances in which employers, state employers, had plans that provided more leave for that purpose for women than for men. And the reason was because of the stereotype, that if somebody in the family got sick, it would be the woman, not a man, who would have to take off from work to take care of that person.

But the provision that was at issue in Chittister had to with leave for one's own personal illness. And a man was objecting to this. And there was no record that state employers, or for that matter any other employers, had plans that provided more sick leave for men than for women or that any stereotypes were involved in the situation.

So that was why I concluded and the unanimous panel that I sat on concluded and all of these seven other circuits concluded that that provision did not satisfy the standard that the Supreme Court had established.

KOHL: Last question.

Judge Alito, I understand that you're reluctant to comment on cases that you would likely have coming before you in the future, but I'd like to ask you about a case that the Supreme Court certainly will never see again: 2000 presidential election contest between President Bush, Vice President Gore.

KOHL: Many commentators see the Bush v. Gore decision as an example of judicial activism, an example of the judiciary improperly injecting itself into a political dispute.

Indeed it appears to many of us who've looked at your record that Bush v. Gore seems contrary to so many of the principles that you stand for, that the president has said you stand for when making your nomination: talking about judicial restraint, not legislating from the bench and, of course, respecting the rights of the states.

So, Judge Alito, I'd like to ask you: Was the Supreme Court correct to take this case in the first place?

ALITO: Well, Senator, I think you're probably right, and I hope you're right, that, that sort of issue doesn't come before the Supreme Court again.

Some of the equal protection ground that the majority relied on in Bush v. Gore does involve principles that could come up in future elections and in future cases.

As to that particular case, my answer has to be, I really don't know. I have not studied it in the way I would study a case that comes before me as a judge. And I would have to go through the whole judicial process.

KOHL: That was a huge, huge case.

And I would like to hope and I would bet that you thought about it an awful lot, because you are who you are. And I would like for you to give an opinion from the convictions of your heart.

KOHL: As a person who's very restrained with respect to judicial activism, this being a case of extreme judicial activism, were they correct in taking this case, in your opinion?

ALITO: Well, there's the issue of whether they should take it and the issue of how it should be decided.

And, Senator, my honest answer is I have not studied it in the way that I would study the issue if it were to come before me as a judge.

And that would require putting out of my mind any personal thoughts that I had on the matter and listening to all of the arguments and reading the briefs and thinking about it in the way that I do when I decide legal issues that are before me as a judge.

And that's the best answer I can give you to that question.

It was obviously a very important and difficult and controversial case. And in a situation like that, the obligation of a judge all the more is to be restrained and is to go through the judicial decision- making process and only at the end of that reach a conclusion about the issue.

KOHL: Thank you, Judge.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Kohl.

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