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Date: January 10, 2006

Senator: Dewine

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 SPECTER: Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge, you've almost turned the corner here. So that's the good news. The bad news is this is just the first round.

So let me respond if I could, Judge, to three things that I've heard so far during these hearings that have, frankly, disturbed me.

First, I'm bothered by what I consider to be distortions of your record, really in an effort to make you look like something that you're not.

I just read a very interesting article by Stuart Taylor from the National Journal about this issue.

And I would like, Mr. Chairman, to make this a part of the record -- this article -- if I could.

SPECTER: Without objection.

DEWINE: Mr. Taylor describes the opinions of a, quote, "right- wing jurist. This judge has consistently ruled against minorities, striking down affirmative action programs, making it harder for victims of race and gender discrimination to vindicate their rights."

SPECTER: Senator DeWine, your unanimous consent request is granted.

DEWINE: Thank you, sir.

"This judge has struck down a federal law to protect kids from guns; ruled that state and local governments cannot be sued under the Fair Labor Standards Act, leaving 4.7 million workers without a remedy in court.

"This judge has immunized the president from suit, even when he illegally wiretaps political opponents.

"This judge approved a police officer's fatal shooting in the back of an unarmed 15-year-old African-American boy.

"Finally, this judge has called abortion, and I quote, 'morally repugnant' and declared Roe v. Wade to be, quote, 'on a collision course with itself.'

"Based on such a record, no right-thinking Democrat could ever support such a judge."

But as Taylor tells us, this judge is none other than Sandra Day O'Connor, the same Sandra Day O'Connor who has been praised for the past few days as a model of moderation.

Judge, the point Mr. Taylor made is clear: You can distort and misrepresent anyone's record.

And that, I believe, unfortunately, is what some of your opponents are doing to you. It's unfair, it's inaccurate. And it's just flat-out wrong.

Second, I would like to respond to the allegation that you have not written an opinion in favor of a plaintiff alleging race discrimination on the job. You did a very good job a moment ago, when Senator Kyl was talking to you, in describing some of the cases.

I think the facts of these cases are what is particularly interesting.

In Reynolds versus USX Corporation, you ruled that an African- American woman whose coworkers and supervisors regularly made racial and sexual slurs against her and denied her training opportunities was, in fact, entitled to $124,000 in damages and in attorney fees.

In Zubi v. AT&T Corporation, you dissented -- you dissented -- arguing against a stringent limitations period which prevented a civil rights plaintiff from filing a claim. And your position was vindicated -- you were vindicated by the United States Supreme Court unanimously a few years later.

In Smith v. Davis, you disagreed with the district court, which had dismissed an African-American employee's claim of discrimination. Instead, you found that there was evidence to support a finding that the employer's stated reasons for firing the plaintiff were not genuine.

In Goosby v. Johnson & Johnson, you ruled that the plaintiff, an African-American woman, was entitled to a trial under claims of employment discrimination, because you found that there was evidence that the employer was treating white male employees differently than it was treating the plaintiff.

DEWINE: There are more cases, as you've testified to. But I think we make the point.

We would all be better off, and this process, Mr. Chairman, would be better off and would be more instructive if we could evaluate your nomination, Judge, based on your full and complete record.

And, finally, let me add my two cents on this Vanguard issue. I'm going take it from a little different perspective than has been done so far.

To me, this is really a non-issue. In the so-called Vanguard lawsuit, two people were in a financial dispute. The plaintiff sued to force the defendant to turn over $170,000 held by him in some Vanguard accounts. The defendant went to court to prevent Vanguard from turning over the money.

Now, while Vanguard was technically part of the suit, and was technically a defendant, it wasn't really a defendant in any sense of the term that would be used by the public or understood by the public. It was not accused of any wrongdoing. It didn't stand to lose anything.

Really, the only question was whether Vanguard would transfer some of the funds it held for one person over to another. It was simply being asked: Who do I pay the money to? Who do I give the money to? That's all Vanguard was being asked to do. So nothing in the classic sense of being a defendant. Nothing about this case could realistically have affected Vanguard as a company, let alone -- let alone affected your mutual funds. It's a joke. It's ridiculous. It's absurd. And everybody on this panel knows that.

Now, for the sake of the process, I hope we can put these issues behind us.

DEWINE: This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court and to get some idea about how you think as a judge, how you process things, what kind of a judge you will be on the United States Supreme Court.

Now let me turn to the substance. Judge Alito, I want to turn to an issue that is very important to me. In a number of recent cases, the Supreme Court of this country has restricted congressional power in a way that I think is not required by the Constitution.

In my opening statement I mentioned the Supreme Court's decision in the Board of Trustees v. Garrett, a 5-4 decision. To me, that case is a best example of this recent trend. And it's not a good trend in my opinion.

Garrett involved a woman who claimed that she had been discriminated against because she was disabled. She was employed by the state of Alabama and she sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, however, holding that Congress lacked the power to make the state subject to suit.

Judge, as I see it, the problem with Garrett is that the court ignored findings made by Congress. While we were considering the ADA, we held 13 hearings and even set up a task force that held hearings in every state of the union, attended by more than 30,000 individuals.

Based on these hearings, we found hundreds of examples -- hundreds of examples -- of people with disabilities being discriminated against by the states and in employment decisions.

Further, we found that, and I quote, two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all -- even though a large majority of them were capable of doing so.

And finally -- we found that this discrimination flowed from, and I quote, "stereotypic assumptions about people with disabilities as well as" -- and I quote -- "purposeful unequal treatment," end of quote.

Sadly, however, in Garrett, the court said that this was just not enough. In fact, it held that we had not pointed to any evidence that the states discriminated in employment decisions against people with disabilities.

Judge Alito, from a review of your decisions, it appears to me that you tended to defer in close cases to the decisions of those individuals closest to the problem at hand.

DEWINE: I applaud you for taking that approach.

Now, let me ask: In your opinion, what role should a judge play when reviewing congressional fact-finding? And how can you ensure us -- how can you assure us -- that you will show appropriate deference to the role of Congress as the representative of the people in this democracy when we pass important legislation?

ALITO: I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different -- that case would have been very different for me if Congress had made findings.

And that's because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith.

The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what's going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings.

And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.

DEWINE: Well, Judge, I appreciate your response.

We can't ask you, obviously, to decide any particular case. But what we're trying to do today is get the general idea of how you approach cases. And we've looked at your previous cases. We have a pretty good idea from that. But I appreciate this exchange.

Let me follow up with this. Garrett is the law of the land today. Nonetheless, let me ask you, whether, after Garrett, Congress might still have a way to protect the disabled. Rather than focus on the problem caused by Garrett, let me focus on the solution.

To me, even after Garrett, Congress still has the power to protect the disabled under the spending clause of the Constitution. I'd like to explore, maybe, that with you if I could.

Let me give you an example how this might work. Of course, you're very familiar with South Dakota v. Dole. In that case, Congress had wanted to establish a national drinking age of 21.

As you know, we, of course, don't have the power to require that under our Constitution. Therefore, Congress used its power under the spending clause.

We said to the states, "If you don't establish a 21-year-old drinking age, you will lose 5 percent of your federal highway dollars."

This left the states with a choice: adopt a 21-year-old drinking age or lose 5 percent of their federal money. When presented with such a choice, the states kept the money and changed the drinking age to 21.

It seems to me that Congress might be able to use this same approach to require the states to waive their immunity from suit under statutes like the ADA.

Judge, based on your experience, could you give me your understanding of what Congress can do and what it can't do under the spending clause power? Maybe just go back and look at recent cases and give me a little indication.

ALITO: Yes, certainly, Senator.

Well, I think you've pointed to the leading case in this area, and that's South Dakota v. Dole.

And South Dakota v. Dole recognizes that Congress has broad powers under the spending clause. And that when Congress provides money to the states, Congress can attach conditions to the receipt of the money, provided that certain standards are met.

One thing that has to be done under the Supreme Court's cases is that there has to be a clear statement that the conditions are attached to the receipt of the money.

The Supreme Court views this like a contract so that the party receiving the notice has to have clear and fair notice about what it's agreeing to by taking the money.

ALITO: And then beyond that, if that's satisfied, then the condition has to be germane to the purposes of the funds.

And in South Dakota v. Dole, the court found that the drinking age and the 55 mile-an-hour speed limit were germane to the purpose of the expenditures. And these, I believe, were federal highway funds.

So those are the standards that would be applied to any future legislation under the current precedents if the future legislation invokes Congress' broad power under the spending clause.

DEWINE: That's helpful.

Thank you, Judge.

During the confirmation hearing of Chief Justice Roberts, Chairman Specter showed us a chart stating that the Supreme Court had the opportunity to overrule Roe v. Wade in 38 cases. Because of this, the chairman suggested that Roe was not only a super-precedent, but super-duper-precedent.

The chairman has made the same argument at the hearing today. In fact, he brought the chart out again today.

Now, Judge, just to show you that not all members of this panel are like-minded, I want to tell you that I disagree. To me, Roe is not super-precedent. I believe Roe is precedent, but I don't believe it's super-duper-precedent, nor super-precedent.

First, although the court has applied Roe in 38 cases, it has not directly taken up the issue of whether to overrule Roe in every one of those cases.

In fact, out of those 38 cases, I've only found four in which the court directly addressed the status of Roe as binding precedent.

In Webster, the court asked whether Roe should be reaffirmed but ultimately avoided the issue.

In three cases, City of Akron, Thornburgh and Casey, the court did reaffirm Roe.

DEWINE: But the last of these, Casey, did so in a way that hardly left Roe on firm footing. In fact, Casey altered Roe by eliminating the strict scrutiny standard of review and replacing it with a lesser, undue burden tests. The result has been many restrictions on abortion have been upheld.

Second, just because Roe has been applied and reaffirmed does not make it a special form of precedent. Many other cases have been applied for decades before eventually being overruled.

For example, Plessy v. Ferguson, the case establishing the principle of separate but equal was upheld for 60 years before it was overruled, and certainly discredited today; Lochner v. New York, a case that greatly limited the power of the states to protect children and workers, was consistently applied for more than 30 years before it was overruled. And Swift v. Tyson, the case establishing the doctrine of federal common law, was a bedrock principle of American law repeatedly applied and upheld for nearly 100 years before it, too, was struck down.

Thus the mere fact that Roe has been upheld for more than 30 years does not mean that it's entitled to special deference.

Third, from the start, Roe has been criticized by lawyers, scholars and judges, whether Democrats or Republicans. And to date, it does remain controversial.

Fourth, much has happened over the last 30 years to undermine the soundness of Roe.

Senator Brownback has mentioned how the facts of Roe have changed. We now know that the plaintiff in Roe based her case on false statements and that she wants the case overturned.

We also know much about the life of babies in utero that we did not know 30 years ago.

We even know something about the internal deliberations of the justices who decided Roe. In an internal Supreme Court memo, Justice Harry Blackmun, the author of Roe, acknowledged that the trimester framework established in his opinion was, and I quote, "arbitrary."

DEWINE: And Justice Lewis Powell said that he could not find a right to an abortion within the Constitution and decided instead to rely on his gut.

Finally, whatever the term super-precedent means, I do not think that it describes Roe. In an article by William Landis and Richard Posner, super-precedent was defined this way: "It is a" -- and I quote -- "precedent that is so effective in defining the requirements of the law that it prevents legal decisions arising in the first place or, if they do arise, it induces them to be settled without litigation," end of quote.

In other words, super-precedent is precedent that is so firmly entrenched in our legal system that people simply don't question it.

Marbury v. Madison, the case establishing the power of judicial review, is super-precedent. It's so well-settled that litigants do not challenge it in court. In fact, it is one of the fundamental assumptions upon which our constitutional system is built.

Roe is hardly Marbury. Is Roe Supreme Court precedent? Certainly. But in my view, it is not super-precedent -- is not super- duper-precedent or even super-precedent. It is precedent. Nothing more.

Judge, I want to turn now to another topic, to an issue that several federal judges in Ohio have brought up to me during our conversations. As you know, the Supreme Court currently decides about 75 cases a term. This number is down dramatically from where it was just a generation ago.

1976, for example, the court decided almost 400 cases on the merits; more than five times what it does today.

This incredible shrinking Supreme Court docket has been the focus of much attention over the past few years, a lot of discussion. And one result of the court deciding fewer and fewer cases is that more and more circuit splits are left unresolved, which is what I want to talk about.

As we all know, a circuit split occurs two or more federal courts of appeals disagree on issue of federal law. As of late, circuit splits have become so pervasive that the Seton Hall Law School came out last year with a new law review dedicated exclusively to that issue.

DEWINE: There is also a Web site written by a law professor at the University of Richmond solely committed to identifying new circuit splits. Hardly a week passes when at least one does not emerge.

To me, these pervasive and unaddressed circuit splits create three problems.

One, organizations that transact business across state lines get caught in the crosshairs of this confusion, being subject to one interpretation of federal law in California and a different one in the state of Ohio.

Second, federal judges are placed in difficult situations trying to figure out what the law requires. In fact, a number of federal judges in Ohio have talked to me, as I said, about this.

And finally, circuit splits undermine the goal of having uniformity in our federal law.

Let me just ask you, what is your opinion about this issue? In your experience, has the Supreme Court's shrinking docket caused problems for businesses, lower court judges, and individuals? Is there a problem with the number of unresolved circuit splits? And if the court takes more cases, do you think that will solve the problem?

ALITO: Well, that's a difficult issue for me to address from my current position as a judge on the Court of Appeals...

DEWINE: It's coming, Judge.

ALITO: ... because the Supreme Court is my boss. And I am reluctant to suggest that I think they should be doubling their workload.

DEWINE: Oh, go ahead.

ALITO: Or even increasing it at all. That's not the sort of thing that subordinates generally do regarding superiors.

But circuit splits are certainly undesirable. And I think everybody recognizes that, and that's one of the grounds for granting certiori. I know that when Justice White was on the court he regularly would dissent from the denial of certiori in cases where there was a circuit split because he felt strongly that circuit splits should be resolved by the Supreme Court.

ALITO: I have friends, former colleagues from prior times in my career who are appellate attorneys, who specialize in cases before the Supreme Court and in appellate litigation generally. And occasionally I hear them complain about unresolved circuit splits that are difficult for their clients.

And so I'm aware of their complaints.

I haven't personally kept track of the number of circuit splits that exist, but certainly they are an undesirable thing and it is a ground for granting certiori. And I think one of the jobs that the Supreme Court has is to iron out circuit splits.

There can be disagreements about whether there really is a circuit split, obviously, in a particular case, and there can be differences of opinion about the timing for resolving circuit splits. Sometimes the Supreme Court thinks it's advisable to wait and see how an issue plays out in a number of circuits before the Supreme Court decides to take on the issue. And that may improve their ability to resolve the issue when the case eventually comes before them.

DEWINE: Judge, let me just suggest that I think it's a problem. And I think the Supreme Court needs to deal with it. Chief Justice Roberts indicated he thought the court could take on more. And I would suggest that they could. So I appreciate your comments.

Judge Alito, let me ask you about Congress' power to protect our children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling.

Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment. A few years later, we passed the Child Online Protection Act. Again, the court struck it down.

What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all.

DEWINE: It doesn't communicate a message, other than one that degrades women. It does not contribute to the public debate. And it actually causes harm to the victims who take part in making it and those who use it.

There are, of course, a number of cases that seem to recognize that pornography is of lesser-value speech. In Young v. American Minitheaters, the court upheld zoning regulations on adult theaters.

In doing so, Justice Stevens had this to say, and I quote, "Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate."

Let me ask you, Judge, what is your thinking on the subject? Is pornography lesser-value speech as Justice Stevens has seemed to suggest? And are there or should there be different levels of speech under the First Amendment?

ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that, although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations, when the world changes and, in particular, when, in the First Amendment context when means of communication changes, the job of applying the principles that have been worked out -- and I think in this area, worked out with a great deal of effort over a period of time in the pre-Internet world -- applying those to the world of the Internet is a really difficult problem.

And I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it.

The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it's permissible for a state to regulate the sale of pornography to minors.

It has greater authority there. I think that's the Ginsburg case. It has great authority there than it does with respect to the distribution of pornography to adults.

ALITO: Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it.

But on the Internet, of course, it's readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they're doing and supervise what they're doing is greatly impaired by this difference in computer aptitude.

And I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.

DEWINE: Judge, I have one last question.

If confirmed to the Supreme Court, only part of your job will be hearing arguments and issuing opinions. An equally important part of the job will be involved deciding which cases to hear in the first place.

Each year the Supreme Court receives approximately 8,000 petitions for cert -- cert petitions as they are called. These are petitions by a party to a lawsuit asking the court to hear its case.

Out of these 8,000 annual requests, the court decides to hear only about 75 to 80. For many years, individual justices would review each cert petition and cast a vote on whether to hear the case. Today, however, eight of the justices are part of what is called the cert pool.

Here's how it works. All petitions are put into a pool. A single law clerk then picks up a petition and writes a memo recommending for or against hearing the case. That memo is then circulated to the eight justices in the cert pool who use it to cast their vote on whether to hear the case.

Justice Stevens is the only one who does not participate in this pool. Instead, he has his staff prepare a memo on each case with a recommendation tailored to his own thinking on an issue.

It would seem to me that the cert pool greatly limits the exchange of ideas among members of the court.

DEWINE: I wonder if you could tell me how you would intend to proceed, if you're going to use the pool or if you are going to do what Justice Stevens does, or if you've thought about it.

ALITO: Well, I'm aware of the issue. But I have not thought past what might happen with these confirmation proceedings.

(LAUGHTER)

So it's not the kind of issue that I have really thought through in my mind.

If I'm fortunate enough to be confirmed, I think I would assess the situation at that time and talk to the Supreme Court justices and see what their views are, the reasons why they're proceeding in one way or another.

I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases.

We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have.

DEWINE: Thank you, Judge.

SPECTER: Thank you, Senator DeWine.

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