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Date: January 10, 2006

Senator: Sessions

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 SPECTER: Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

We've had a good hearing, I believe. A lot of exchanges have occurred.

I will agree with Senator Biden: I can't remember a nominee being this forthcoming. You've gone into more detail and talked closer to questions that may come up before you -- without going too far, in my opinion -- than we've seen before. You've been very open. And I've been very impressed with your analytical spirit and your ability to handle these cases.

We need an aggressive hearing. I agree with those who say that questions need to be propounded to the nominee because this is the only chance, politically, that we will have; that you will ultimately be on the bench for life, unaccountable to the political process. So it's good to ask questions.

My concern is similar to that of Senator DeWine's: that many of the accusations and allegations are unfounded or distortions are really not fair. And some of the things that have been said about you are not correct. If they were correct, you would not receive the overwhelming support of your colleagues and have their admiration so totally, as you do.

Judge Alito, we talk about the role of a judge and how you handle cases that come before you. You were asked, "What's your opinion on Lopez?" and you said, "Well, I haven't studied that case precisely or at least the background of it. I didn't sit on it."

Would you explain to us, as an appellate judge, as you do today, but also even more so as a Supreme Court justice, how cases come to you and what you should do before you make a decision or express an opinion on the ultimate outcome of a case; why you should be careful; and what this great legal system that we have arranges for before a judge makes that final decision?

ALITO: Well, certainly, Senator.

We have an adversary system. And that means that both sides get the opportunity to present their arguments.

ALITO: And we have established judicial procedures, and they are time-consuming and they are burdensome, and maybe some people would say that some of them are old fashioned, but I think they are work well.

They are designed to make sure that there's a vigorous presentation of both sides of the issue that is presented in the case at hand, not some abstract issue that might be addressed in a law review article or a broad issue that might be addressed in a piece of legislation, but an actual concrete case, a dispute between real parties that comes before the court.

Both sides have the opportunity to present the arguments that they think have a bearing on that case. The judges get the opportunity to read the briefs. And then...

SESSIONS: Can I interrupt you there? And you're talking about the appellate court.

ALITO: That's correct.

SESSIONS: There has been a trial with jurors and witnesses and trial judges and those kind of things that's already occurred. It's now on appeal. No witnesses are being called, but the transcript is available. And one side or the other is alleging that they weren't treated fairly. Is that correct?

ALITO: That's correct.

SESSIONS: So you decide whether or not a fair trial occurred. And how do you continue now with the process and how do you ultimately come to make a decision?

ALITO: Well, we receive briefs, and the briefs are well thought out by the attorneys, and it provides, if the case is well briefed, a strong presentation of the positions on both sides of the question. And if it's an issue of great public importance, there may be other people who file briefs, so-called friends of the court. And on the Supreme Court now these days they get a lot of those on both sides of many of the big issues that come before them.

So that ensures that they have a strong presentation of all the arguments that can be made on both sides of the issue, both sides of the case, and the first step in the process would be to read all of those. And then there would be an oral argument. And at that point the justices of the Supreme Court or the judges of my court...

SESSIONS: Now, oral argument means the lawyers for each party come and orally argue the case before the court, is that correct?

ALITO: That's right.

SESSIONS: Now, you should not have made up your mind even at that point, should you?

ALITO: You shouldn't. I think very often I come into an oral argument with a tentative idea about how the case should be decided, I've thought through the issue as much as I can, but my mind is open to the possibility that something will happen during the oral argument or later in my discussion with the other judges that might change my mind.

So we have the oral argument, and the lawyers will make their presentation and in that situation I have the opportunity to ask questions, unlike today, and that's a better situation to be in. But it gives me a chance to explore the issues in the case that are troubling to me, and I can pose hypotheticals to the lawyers and try to explore how far their arguments go.

And after we have the argument, the judges get together in what's known as the conference. That's a private meeting when just the judges are present. And we each discuss the case. And very often one of my colleagues will say something that makes me think about the case differently than I did going into the conference.

ALITO: But at the end of the conference, if we've all voted, then we exchange our views and we come to a conclusion about how a case should be decided.

And it's only at the end of that process that we actually have a vote on the decision, and then somebody is given the job of writing an opinion. And sometimes things even change during the opinion-writing process. There have been numerous cases in which I've had the opinion and I've been giving the job of writing an opinion to affirm or the reverse. And in the process of writing the opinion, I see that the position I had previously was wrong -- I change my mind.

And then I will write to the other members of the panel and I will say, "I've thought this through and this is what I've discovered and now I think we should do the opposite of what we agreed." And sometimes they'll agree and sometimes they don't.

So it's a long process, and it's only at the end of that whole process that I think, when the opinion is actually going to be issued, the judge is in the position to say, "Now I've done everything I can with this, and this is how I analyze the issue."

SESSIONS: And you said in your opening statement that one of the habits of minds that a good judge should develop is the habit of delaying reaching conclusions until everything has been considered.

I suppose that's why you would be somewhat reluctant to express an opinion on Lopez or Bush v. Gore or some of these other great decisions, because you would know before you rendered such an important decision in a case like that that you've given it the most thorough analysis and you've heard from all the briefs and considered all the arguments of the parties involved. Is that correct?

ALITO: That's an important part of the legal process.

If anybody has sat on a jury, they've probably been instructed by the judge not to reach any conclusions about the case until they've heard all the evidence -- not to reach premature conclusions.

Judges have the same obligation. It doesn't mean you don't think about things; you do think about them.

ALITO: But you don't reach your final conclusion until you've gone through this entire process.

SESSIONS: Well, you said earlier that no person in this country, no matter how high or powerful, is above the law, and no person is beneath the law.

Can you assure us that you will have the courage and the determination to rule according to your best and highest judgment of the value of the case regardless of whether or not it's the person who appointed you or the Congress who confirmed you or any other political pressures that may fall upon you?

ALITO: I can, Senator. I would do that to the best of my ability.

That's what I've tried to do on the Court of Appeals. And if I'm confirmed, that's what I would do on the Supreme Court.

SESSIONS: Well, I believe you will. That's your reputation. That's what other lawyers say about you. That's what professionals who know you conclude. And I think it's an important commitment that you've made to us.

You know, we have arguments about a number of cases, and the Rybar case has come up a good bit. It involved the machine gun.

I was a United States attorney, as you were. And we prosecuted machine gun cases for years. The Supreme Court has -- under Section 922, there is no jurisdictional element.

Now, historically, criminal statutes of federal law have jurisdictional elements. The most common statutes historically that were prosecuted were interstate transportation of stolen motor vehicle -- it's not a stolen motor vehicle, it's the interstate transportation that makes it a federal crime -- or the interstate transportation of a stolen property, or kidnapping: Kidnapping within a state is not a federal crime, it's only kidnapping that goes interstate.

So I guess I would ask you to explain for those who may be listening today what this historical procedure is that requires a jurisdictional element of an interstate nexus for the federal government to be able to prosecute a crime in some state or county in America.

ALITO: Yes, Senator. Certainly.

Well, let me start with the Constitution. The Constitution gives the legislative branch certain powers and they're enumerated in the Constitution.

And one of those powers is the power to regulate interstate and foreign commerce. And a great deal of legislation that Congress passed during the 20th century was regulation that was based on its power to regulate interstate and foreign commerce.

And many of the criminal statutes that Congress has passed, the federal criminal statutes, are based on Congress' power to regulate interstate and foreign commerce.

So it's necessary for each of these statutes to fall within this power to regulate interstate and foreign commerce. And one of the ways of ensuring that each exercise of this power falls within Congress' authority under the commerce clause is to require that the jurisdictional element be proven in the case.

And in the case of firearms, as I mentioned earlier, the Supreme Court has said it's enough to show that the firearm at some point in its history traveled in interstate and foreign commerce.

In my experience as a U.S. attorney and before that as an assistant U.S. attorney, was that this is not a difficult burden for prosecutors to meet. I can't recall a case during the time when I was U.S. attorney where anybody expressed the slightest problem with satisfying this.

So this is a very simple way of satisfying the interstate commerce element in the case of firearms offenses.

SESSIONS: I couldn't agree more. And that's what all the traditional firearm laws call for. And that's how we proved every case that I prosecuted.

You put somebody on -- I proved it once because it said "made in Italy" on the gun. But you prove that the gun had been transported in interstate commerce, and that's an element that gives the federal jurisdiction.

And as I understand your opinion, you said if the Congress had simply put that in the statute as an element of the offense, then it would have met constitutional muster.

So I guess I'd say to my colleagues on the other side and others, maybe we ought to check this law out and let's get up a piece of legislation that puts in the jurisdictional element like all the other historic criminal offenses have, and we get this thing done instead of fussing about it. I feel strongly about that.

But when you don't make it a jurisdictional element, then it's not a matter of proof -- is that not right, Judge Alito? -- and therefore the defendant is not having all the elements of the case proven beyond a reasonable doubt to the jury that hears the case. That's why it's important.

ALITO: That's correct.

SESSIONS: We talked about a lot of these cases. I would just generally like to express my disagreement with those who criticize the Garrett case.

It did involve the University of Alabama. And I believe that the attorney general of Alabama was correct to assert that the plaintiff could sue, could get back wages, could get their job back, but under the sovereign immunity doctrine that protects states from lawsuits, that under the way that statute was passed, they could not get money damages against the state of Alabama.

I think that was the core issue in it.

I also would like to join with Senator DeWine in his very cogent analysis of precedent and super-precedent.

SESSIONS: I think that was insightful for us and would like to be on record as joining with that.

Judge Alito, back 20 years ago, you wrote a memorandum to Solicitor General Charles Fried, who was a law professor, I guess, before he became solicitor general and went back to Harvard and is there now, a brilliant legal mind.

He was the solicitor general. You worked for him. You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania.

And it seemed to me to be a preliminary analysis of that issue and the question of whether or not that case -- whether the Department of Justice should intervene in that case and file a friend of the court brief.

Was it a preliminary overview of the issue and not the final brief or final summary of argument for the appeal?

ALITO: And that's the Thornburg case that you're referring to, Senator?

SESSIONS: Yes.

ALITO: It wasn't the brief, yes. It was a memorandum about whether the government should file a brief as a friend of the court.

SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought the court had overreached and gone too far.

A number of them are quite erroneous, it appeared to me. And you analyzed that very carefully. But, before you concluded your argument, you suggested -- not suggested -- you stated that you did not think a frontal assault on Roe v. Wade would be appropriate. Is that correct?

ALITO: Yes, that's correct.

SESSIONS: And was it not the position of President Reagan and the attorney general of the United States at that time that Roe v. Wade was wrongfully decided and they would seek the opportunity at some point to seek the overruling of it?

ALITO: That was the express position of President Reagan himself. He had spoken on the issue and he had written on the issue.

SESSIONS: So your opinion to the solicitor general as a young staff attorney in the Solicitor General's Office was in some ways contrary to that of the president of the United States?

ALITO; Well, I was doing what I thought my job was as an advocate, which was to outline the litigation strategy that would be in the best interests of my client, given what my client was interested in.

And it seemed to me that the strategy that I recommended was the best strategy to be followed.

SESSIONS: And did they follow your suggestion?

ALITO: No, they did not. They argued that Roe v. Wade should overruled and the Supreme Court rejected that argument.

SESSIONS: They in fact carried out a frontal assault, and it was not approved by the court.

So I think that, to me, plus your other decision in which you ruled that Health and Human Services funds could be utilized to fund an abortion for those who qualified was a close question; that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error. Is that correct?

ALITO: That is correct. That's what I thought the law required. I thought we were required to defer to the Department of Health and Human Services' interpretation of the statute, and so that's how I voted. And if I had been out to implement some sort of agenda to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case.

SESSIONS: Back in your memorandum in 1985 on the question of abortion, one of the provisions of the Pennsylvania law that was struck down by the court of appeals simply said that there must be a humane and sanitary disposal of aborted fetuses, and you thought that was unwise and you pointed out that there is a federal statute already on the books that mandates the humane disposal of excess, wild, free-roaming horses and burros. Did you not?

ALITO: Yes, that's correct. That was the statute.

SESSIONS: So this idea that every time a court rules on a pro- abortion opinion that they're always correct, I think is not true. I think the court has been awfully arrogant and dismissive of the states' rights and legitimate concerns in some of these questions that we're dealing with.

Judge Alito, you know the salary that a federal judge makes; is that right?

ALITO: I do, all too well.

SESSIONS: Do you know what it would be on the Supreme Court?

ALITO: I actually don't know exactly, no.

SESSIONS: A little more, I think. Not much. Do you think you can live on that?

ALITO: I can. I've lived on a federal judge's salary up to this point.

SESSIONS: You've been accused of favoring an all-powerful executive a couple times in this committee. Can the president cut your pay?

ALITO: No, he can't do that. The Constitution says that, fortunately.

Well, nobody can. The president certainly can't, and Congress can't either.

(LAUGHTER)

SESSIONS: A sigh of relief there. They can increase it though, right?

ALITO: They can, yes.

SESSIONS: Well, we have a tight budget. Senators and congressmen up here, sometimes privately, they'll tell you they think they need to be paid more. But we're prayed pretty generously in my view. And maybe we need to set some examples about financial management. Maybe we'd like to do more, but it's difficult.

But I raise that because a Supreme Court can declare null and void a legislative enactment by the Congress, can it not, if it violates the Constitution in their opinion?

ALITO: Yes, it can.

SESSIONS: Does anybody review the Supreme Court's review?

ALITO: No.

SESSIONS: And Congress can cut off money for any program they want to. In fact, the Antideficiency Act says it is a crime for any agency of government to spend money that has not been appropriated by Congress. Is that a reviewable act by anyone, for Congress not to fund a program or agency of the United States government?

ALITO: No, I don't think that's reviewable.

SESSIONS: Aren't there things that the executive branch can do that are not reviewable?

ALITO: There are certainly some things that are not reviewable. Vetoes are not reviewable, pardons are not reviewable.

SESSIONS: So the mere allegation that an act of the president is unreviewable may not be as disastrous as it sounds or as bad as it sounds because certain branches are given certain powers.

ALITO: That's correct.

SESSIONS: I'd like to talk a little bit about this question of activism. And I want to be frank about it. Some of our liberal colleagues have correctly made the point that conservatives can be activists, too.

And if you take the definition of activism as an action by a judge who allows their personal, political or social or moral values to override their commitment to the law, do you believe that a judge who is conservative can be an activist just as easily as one who's liberal?

ALITO: Yes, I do. I don't think that activism has anything to do with being a liberal or being a conservative; it has to do with not following the proper judicial role. It has to do with a judge's substituting his or her own views for what the Constitution means and for what the laws mean.

SESSIONS: Now, if a statute passed by Congress plainly violates the Constitution, is it an activist decision if the court strikes it down, in your opinion?

ALITO: No. I think that's been settled since Marbury v. Madison back at the beginning of the 19th century, that when a case is presented to the Supreme Court and there's a question raised about the constitutionality of a statute and the court concludes that the statute is unconstitutional, it's the obligation of a court to follow the Constitution and not the statute.

SESSIONS: Well, if you take the definition of activism I think that Senator Hatch and others have used that indicates, as we just discussed, that it's departing from the faithful application of the law, I think you can have liberal and conservative activists.

But I would just say to you, the mere striking down of a statute as unconstitutional is not activism -- not if you're faithful to the Constitution and to the laws of the land.

SESSIONS: And I would say this: I believe, on our side of the aisle, the deep concern that we have about judicial activism is a legitimate one.

We believe that there has been a liberal social agenda being promoted too often by the courts that is foreign to history and contrary to the wishes of the American people.

I believe your philosophy is not one to enforce a conservative activism. I believe your philosophy is simply to follow the law and let the political branches debate these issues and decide them through the popular political process. Is that fair to say?

ALITO: That's exactly correct. The judiciary should do what it is supposed to do, but it has to have respect for the political process. And our constitutional system sets up a government under which most of the decisions, the policy decisions, the things that affect people in their daily lives -- the spending of money, taxing, decisions about foreign policy, and many other areas -- are to be made by the political branches of the government.

And the judiciary's role is confined to enforcing the Constitution and enforcing the laws and not going beyond that.

SESSIONS: As you analyze how to interpret the Constitution of the United States or a statute passed by the United States Congress, do you believe that authoritative insight can be attained by reading the opinions of the European Union?

ALITO: I don't. I don't think that it's very helpful. In fact, I don't think it is helpful to look at the decisions of foreign courts for the interpretation of our Constitution.

I think we can do very well with our own Constitution and our own judicial precedents and our own traditions. And I don't say that with disrespect to the other countries, but I don't think that there are insights to be provided on issues of American constitutional law by examining the decisions of foreign courts.

I think that's it's very interesting from a political science perspective to see what they've done and I've personally been interested in this over the years.

ALITO: And I think it's flattering to us that so many other countries have followed our judicial traditions.

But on issues of interpretation of our Constitution, I don't think that that's useful.

SESSIONS: Judge Alito, this is a big deal in our country today.

Millions of Americans believe that the court is losing discipline, that it's not remaining faithful to the Constitution. And, in fact, I share many of those views, a lot of people do.

And do you think that if a court, in fact, is not faithful to the law but allows personal or political or social views to influence their decisions, that this could in the long run endanger public respect for law and even undermine the great heritage of the rule of law that we have in this country?

ALITO: I think that everybody who holds a public office under the Constitution has a solemn responsibility to follow the Constitution and the laws that define the role that person, that officer is supposed to play.

And I think that the continued success of our constitutional system and public respect for the constitutional system are dependent on people who have the public trust doing that, making a really strong effort to follow the provisions of the Constitution and other laws that define the role that they are supposed to play.

SESSIONS: I'd like to just once more touch on this Groody case in which there was a search of a young girl. A warrant was issued, was it not, by a federal magistrate? Was it a federal magistrate?

ALITO: It was a state magistrate.

SESSIONS: A state magistrate.

And police officers go to the state magistrate and they get a warrant and the magistrate says that the affidavit is made a part of the search warrant.

SESSIONS: And the officers take it, and in their search warrant they made affidavit that the individuals in this house known for distributing drugs often had drugs on their persons, and they then went and executed the warrant after going to the court and getting approval. And they find people on the premises.

And there were two females and a female officer took the two females into a bathroom and did a quick search by asking them to pull down their outer garments -- not all their garments -- pull up their blouse, and determined they had no contraband or weapons on them. And that was that.

And the case came before you, years later I suppose, on a lawsuit against the police officers. And that's what you were ruling on, were you not?

ALITO: That's right, whether they were liable for money damages. And under the law, if they had a reasonable belief that they were authorized by the warrant to search people who were found on the premises, then they should not be liable for civil damages.

The warrant had incorporated the affidavit for purposes of establishing probable cause and the officers had said in the affidavit that there is probable cause to believe that people on the premises may have drugs on their possession, and the magistrate judge had accepted that by incorporating the affidavit for purposes of probable cause. And under those circumstances, I thought that, at a minimum, it was reasonable for the officers to believe that -- the judicial officer, the magistrate had said that they were to do exactly what they did.

SESSIONS: I agree.

Thank you, Mr. Chairman.

SESSIONS: Thank you, Senator Sessions.

Thank you, Judge Alito.

At this point we'll take a break until five minutes to 5.

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