Date: January 10, 2006
Senator: Cornyn
Topic:
Contents
SPECTER: Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
Judge Alito, are you familiar with the -- I guess the question that lawyers sometimes pose to demonstrate how unfair a question can be -- when did you stop beating your wife?
ALITO: I'm familiar with that question.
CORNYN: I suppose the reason why...
(LAUGHTER)
Since someone was picking on your mother-in-law, I thought I would inject your wife into this.
The point is this: It's an unfair question because it implies, regardless of what your response has been, that at one time you did, when in fact you have not.
And I just want to explore, to start with, Senator Schumer's questions about what is written in this Constitution about abortion. Does the word abortion appear anywhere in the Constitution?
ALITO: No. The word that appears in the Constitution is liberty.
CORNYN: And outside of let's say the Fourth Amendment, perhaps, does the right to privacy appear explicitly stated in the Constitution?
ALITO: There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments.
CORNYN: And the reason it's protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?
ALITO: That's correct. It's a question of interpretation rather than simply looking at what is in the text of the document.
CORNYN: So to ask you whether the right to free speech, which is explicitly protected under the First Amendment of the Constitution, ask you whether that's in there, and then to ask you in the same question or at least same series of questions whether the right to abortion on demand is in the Constitution, one is explicitly stated in the First Amendment. The other is the product of court interpretation.
Isn't that accurate, sir?
ALITO: Yes. That's my view of it.
CORNYN: And it is, to be more specific, it is what the courts have called penumbral rights. In other words, the old -- I can't remember whether it's Griswold or what case -- no doubt you can -- that talked about this being the emanations at the penumbra -- of the emanations from stated rights in the Constitution.
CORNYN: Can you clarify that for us so we get it correct?
ALITO: Yes.
Griswold talked about emanations and penumbras. And Griswold has later been understood by the Supreme Court as being based on the protection of liberty under the Fifth Amendment and the 14th Amendment.
CORNYN: Well, I was particularly troubled by the exchange of questions and answers, because the suggestion is that you have somehow been unresponsive.
And as I said in my opening statement, I do think that there are those who have already decided to vote against your nomination and are looking for some reason to do so. And I think one of the reasons that they may claim is that you've been nonresponsive.
But I was -- I thought it was telling that Senator Schumer said he didn't expect you to answer that question.
I would like to refer back to Senator Biden's comments where he praised you at the close of his remarks. He said: I appreciate you for being responsive. He said: I cannot remember a nominee being this forthcoming. I appreciate that you've answered nearly every question put to you. Thank you for being so responsive.
And indeed, according to one count, you've answered more than 250 questions thus far today.
So I think in all fairness the question is not a fair one to ask you whether the right to an abortion is written in this document. The fact is and the reason why you applied the doctrine of stare decisis is because you recognize the precedential effect, the authoritative effect of the Supreme Court's interpretation of this document as the law of the land, do you not, sir?
ALITO: That's correct.
CORNYN: And you mentioned Plessy v. Ferguson. I think it was Daniel Patrick Moynihan, a Democrat senator from Senator Schumer's state, who said if it weren't for the ability of the courts to go back and revisit these decisions, how would you ever correct a mistake?
And I think the fact is you've mentioned one of the instances where, thank goodness, the court has gone back and revisited a terrible decision which has been a scar on our country and on our jurisprudence, Plessy v. Ferguson.
And if the court had, in Brown v. Board of Education, had felt prohibited from revisiting that mistake, then we would still be living under that scar.
CORNYN: And I think we can all agree that that would be a terrible thing, and thank goodness we have a Supreme Court that has had the courage to go back in accordance with the principles of stare decisis and revisit terribly wrong decisions and to correct them and to bring us where we are today.
You know, it must be strange to have people listen to the questions and answers here, because on one hand you'll hear rather complimentary comments; on the other hand, even senators who are still, at least for the record, undecided -- I hate to think what it would be like if they had actually determined to vote against you already -- making rather strong critical statements.
But it means a lot to me to know that the people who know you best, the people who have worked with you on the 3rd Circuit Court of Appeals, are they complimentary. I happen to believe that we ought to look to the people that know you best as being in the best position to judge your character, your integrity, your competence, and not this caricature that happens during these confirmation proceedings by the attack dogs, the interest groups, who pay a lot of money, spend a lot of time trying to tear down that reputation for integrity and competence that you have worked to hard to build during your lifetime.
But I was struck, and we'll hear more about the judges who have served with you on the 3rd Circuit.
But I was struck by a quote that I read from your former colleague, the late Judge Leon Higginbotham.
Who is Judge Higginbotham, by the way? Or who was he?
ALITO: He was the former chief judge of the 3rd Circuit, and he was a federal judge for many years and greatly respected.
CORNYN: Well, this is what the Harvard Journal of African- American Public Policy, how it described him, in part. It said, "Higginbotham was appointed to the federal circuit bench by President Jimmy Carter in 1977. Higginbotham was also former president of the Philadelphia chapter of the NAACP."
CORNYN: And would it be fair to say that you and Judge Higginbotham, while you served together, you tend to look at the Constitution differently? In other words, could he fairly be described as a liberal?
ALITO: I think probably most people would describe him that way.
I thought we got along very well and we generally agreed. There were cases in which we disagreed, cases in which I dissented from an opinion that he wrote and I think there were cases in which he dissented from opinions that I wrote.
CORNYN: Well, I wonder if you're aware of one thing that he was quoted as having said. This is out of the Los Angeles Times, comments he made about you to Judge Timothy Lewis. Quoted in the Los Angeles Times, quote, "Sam Alito is my favorite judge to sit with on the court. He's a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue."
Were you aware that Judge Higginbotham had said that about you?
ALITO: No, I wasn't. I was not.
CORNYN: Well, I'm pleased to tell you he did say it, according to the Los Angeles Times. And I think it's a high compliment that someone who would have, perhaps, such a divergent view and, perhaps, different political beliefs than you would say those sorts of things about you and your record on the 3rd Circuit Court of Appeals.
Now, I have some charts, too, like Senator Schumer. I like my charts better than his, but we'll let others be the judge.
But I want to ask you a little bit about Justice Sandra Day O'Connor. You had some very high compliments about her yesterday.
CORNYN: And that's high praise. It really is.
And I would like to submit for my colleagues' consideration that if Sandra Day O'Connor was in the mainstream, then Sam Alito is, too. And this is why.
For example, Justice O'Connor and Judge Sam Alito both set limits on Congress' commerce power.
Sandra Day O'Connor and Sam Alito both struck down affirmative action policies that had strict numerical quotas.
And both -- this ought to be a shocker to some based on what we've heard here today -- is that both Justice Sandra Day O'Connor and Judge Sam Alito have criticized Roe v. Wade.
In fact -- this is pretty astonishing to me -- according to the Harvard Law Review, over the last decade, Justice O'Connor agreed more often with Chief Justice Rehnquist, 80 percent of the time, than with any other justice.
And let's go through these individually.
First of all, you know, we talk about whether it can be a federal crime to possess a machine gun that doesn't implicate trafficking or some aspect of interstate commerce. But, you know, all we have to do is go back to a little bit of the history we all learn in high school to remember the Articles of Confederation and the fact that the states were all powerful, that the national government was crippled because it really had no power and it was subject to the unanimous vote of the states before it could do things that were very important.
And so then in Philadelphia, the delegates there wrote -- and ultimately it was ratified -- a federal Constitution. But you already alluded to this earlier.
CORNYN: This Constitution takes into account that not only will the national government have certain powers, but there also be some powers still reserved to the states.
In fact, it is a fact, is it not, sir, that when we talk about federalism, really what we're talking about is the fact that our federal government, our national government is one of enumerated powers that are set out in the Constitution, and all powers that are not enumerated or necessary and proper to the execution of those enumerated powers as a general rule are reserved to the states?
ALITO: Yes.
That's the structure of the Constitution. The federal government has enumerated powers. Some of them are broad. But those are the powers the federal government has. And the structure is that everything else was reserved for the states.
CORNYN: And so when someone suggests that you're taking a crabbed or cramped or unorthodox view toward congressional power because you say that it's not clear from the statute or the crime with which an individual is charged that interstate commerce is implicated, aren't you enforcing that original understanding of what powers were expressly or otherwise delegated to the federal government and what powers were reserved to the state?
ALITO: Well, that's what Lopez, as I understand it, tried to do. It said that although the commerce power is broad, it is not all encompassing. It involves the regulation of interstate and foreign commerce. And this statute that we have in Lopez goes beyond that.
And my case, the Rybar case, seemed to me to be as close to the situation in Lopez as any case that I was aware of.
CORNYN: Well, I know my constituents back in Texas, and I suspect people all across the country would be glad to know that you don't believe that all wisdom and all power is centered in Washington, D.C., but that under our federal system the state and federal governments are partners and that enforcing this structure that is a product of our history and a product of our Constitution is an important thing for judges to do.
CORNYN: But it's interesting, because if Sandra Day O'Connor was in the mainstream on the commerce clause, the interpretation of the commerce clause, then so is Judge Sam Alito.
As a matter of fact, the Lopez case that -- I believe in Rybar you said the question before the court is whether Lopez is a constitutional freak, or words to that effect.
Because, as you pointed out, it was a little bit of a shock to everyone's system to see the Supreme Court was actually serious about recognizing the authority of the states and to recognize that there are limits to congressional power. But Lopez re-established, or perhaps restated, that understanding.
Justice O'Connor joined the majority in the Lopez decision, did she not, sir?
ALITO: Yes, she did.
CORNYN: And so she shared, at least to that extent, your conviction that there is some limit to congressional power and that there was some point beyond which Congress' authority could not reach unless it was made clear that it was pursuant to one of the powers enumerated under the Constitution. Did I say that roughly correct?
ALITO: I agree with it. She said that Congress' power under the commerce clause is not all-encompassing.
And my job as a Court of Appeals judge is not to say that a decision of the Supreme Court should be limited to its facts -- in other words, not applied as a precedent in any other comparable situation that comes along -- my job is to take those precedents seriously, and that's what I tried to do.
CORNYN: So when Justice O'Connor held in Lopez that Congress cannot prohibit the possession of handguns near schools because mere possession is not commerce, you were doing your very best to stick to that precedent established by the United States Supreme Court when you wrote your opinion in Rybar, is that correct?
ALITO: That's correct.
In Lopez, the Supreme Court said that possession of a firearm -- mere possession -- is not a commercial activity and the interstate commerce -- the commerce clause authorizes the regulation of interstate commerce and the activity involved in Rybar was the possession of a firearm.
ALITO: So it followed that if it was a noncommercial activity in Lopez, it must be a noncommercial activity in Rybar. That's how I saw it.
CORNYN: And you didn't say the state couldn't criminalize possession of a machine gun, did you?
ALITO: The state could. And I think the great majority certainly have legislation of that nature.
CORNYN: And you pointed out here that if the Congress had been a little more careful in showing the basis upon which mere possession could affect interstate commerce, that that would be a different case and perhaps the outcome might have been different in Rybar?
ALITO: Yes, that was the strong point that I made in the dissent, that if Congress had made findings, it would have been a very different case for me.
CORNYN: The interesting thing to me about Rybar, as well, you have been accused of always ruling for the big guy or the government, but Rybar, you decided for the person accused of illegally possessing the machine gun.
ALITO: Well, that's correct.
CORNYN: You didn't rule for the government?
ALITO: No, I did not. I thought the government had not come forward with evidence to support the position that they were arguing.
CORNYN: Well, you've also been -- there's another question about affirmative action cases. We've alluded a little bit to that. And Justice Sandra Day O'Connor, the model Supreme Court justice who is clearly in the mainstream, you and Justice O'Connor both agreed to strike down affirmative action policies which set numerical quotas which resulted in reverse discrimination. She did in Wygant v. Jackson Board of Education in 1986. You did in Taxman v. Board of Education in 1996.
Would you agree with that, sir?
ALITO: I would. Taxman was a case that our court considered en banc. It means all the judges were sitting. And I sit on a very moderate court that is certainly not unreceptive to the concept of affirmative action in general.
ALITO: But the vote in that case was 8-4. It wasn't a close vote. And I joined the opinion that was written by my late colleague, Judge Mansmann, holding that that particular affirmative action plan was in violation of Title VII.
CORNYN: Let's talk again about Roe v. Wade.
Now, this is going to be a shocker for some people based upon what has gone on before, because it's been suggested that but for Sandra Day O'Connor, Roe v. Wade may be overruled, that this is really what lies in the balance here during your confirmation proceeding.
But the fact is that Justice Sandra Day O'Connor, the model Supreme Court justice, wrote in the City of Akron v. Akron Center for Reproductive Health, the trimester three-stage approach adopted by the court in Roe cannot be supported as a legitimate or useful framework. "Roe," she said, "is clearly on a collision course with itself."
And you, in the memorandum for which you've been disparaged many times when you were in the Solicitor General's Office, you recommended: Don't mount a frontal attack on Roe v. Wade but instead use the opportunity to nudge the court toward the principles in Justice O'Connor's Akron dissent.
So when you had an opportunity to urge the reversal of Roe v. Wade, even as a lawyer for the administration, you urged a more cautious approach and one consistent with Justice O'Connor's opinion at the time. Isn't that correct, sir?
ALITO: Yes. Justice O'Connor's opinion in Akron, which was the last previous big Supreme Court decision at that time, was one of the things that influenced me in the memo that I wrote in Thornburg. She analyzed Roe and I was quite persuaded by the points that she made in the Akron decision.
And the general approach -- the arguments that I was recommending that the government make in the Thornburg case were along the lines of the undue burden standard, I think, that she later adopted. I was arguing that the particular provisions should be challenged on their own terms.
One of provisions was an informed consent provision that was virtually identical to the informed consent provision that later came up in Casey -- and in Casey it was upheld.
CORNYN: Well, let's talk about Casey. That was a 1992 decision by the United States Supreme Court -- is that correct, sir?
ALITO: Yes.
CORNYN: And essentially what happened in that, Justice Kennedy, Justice Souter and Justice O'Connor -- the model Supreme Court justice -- essentially scuttled the essential argument in favor of the right to abortion based on this trimester approach which Justice O'Connor criticized and which has also been criticized by people like Justice Ginsburg, former counsel to the American Civil Liberties Union who now serves on the court, Lawrence Tribe I believe, a well-known liberal legal scholar at Harvard.
The fact is, Roe v. Wade, the writing itself, the justification for the decision has been widely criticized by legal scholars all across the spectrum, has it not, sir?
ALITO: It certainly had been at the time of the 1985 memo. And although I wasn't recommending that the government get into that issue, I mentioned in the memo some of the authors who had criticized Roe's reasoning.
CORNYN: Well, and in 1992, the only thing that really survived in Roe v. Wade, which was written 33 years ago, was the essential holding -- I guess you could call it that. And there's been some quotes about the importance of reliance interests in terms of giving it the benefits of a stare decisis or precedent.
But essentially the whole legal scheme or basis upon which abortion was protected was changed to an undue burden standard, isn't that right, sir?
ALITO: In Casey, the Supreme Court moved away from the trimester approach and they adopted the undue burden standard, which had been set out in some earlier opinions by Justice O'Connor. And the joint opinion in Casey made it clear that that was now the governing standard under Supreme Court law.
CORNYN: But the plurality opinion -- Justice O'Connor, Justice Kennedy, Justice Souter -- did not say you can have abortion without limitation. It did recognize the right of the states to pass laws which regulate abortion as long as it did not create an undue burden on a woman's right to have an abortion according to that decision.
CORNYN: Isn't that roughly what...
ALITO: Yes, that's what they held.
CORNYN: Well, I guess my point is that, if, on at least three counts on the basis of the Congress's commerce power and limitations on congressional authority in the affirmative action area and in terms of criticizing the basis upon which Roe v. Wade was decided 33 years ago, you and Justice O'Connor bear a lot of similarities.
And I would just ask that if Justice O'Connor is a model Supreme Court and therefore, by definition, is not outside the mainstream, then it strikes me that Sam Alito is not outside the mainstream either.
Let me ask you now -- we can leave this sitting up here for a minute -- but I have a few more minutes left. Another thing you've been criticized for is your unlimited view of presidential power -- is the way it's been phrased.
The suggestion is, somehow, you're always going to defer to the president and the executive branch when the legislative branch and the executive branch vie for authority -- whether it's in the intelligence-gathering area, the National Security Agency and this electronic eavesdropping, really an early warning system to try to identify terrorists so we can protect ourselves against another 9/11, or other acts of presidential power.
Now, you and, I think, Senator Graham talked a little bit about the Hamdi decision where the United States Supreme Court said that the use-of-force authorization that was issued by Congress after the 9/11 attack, authorizing the president to use necessary force to defeat the Taliban and Al Qaida, the supposed perpetrators of the 9/11 attacks -- the question came up whether that included an authorization by Congress to detain terrorists without charging them with a crime.
CORNYN: And my understanding is, in that case, that the Supreme Court, it was fractured, but the plurality opinion that Justice O'Connor joined said that that authorization of use of force was a congressional act which trumped the statutory limitation that Congress had previously passed about detaining American citizens without charging them with a crime.
Did I get that roughly correct?
ALITO: Yes. That's exactly correct. 18 USC 4001, which is called the anti-detention statute, says that nobody may be detained without authorization. And in Hamdi, Justice O'Connor's opinion concluded that the authorization for the use of military force constituted statutory authorization to detain a person who had been taken prisoner as an unlawful combatant in Afghanistan.
CORNYN: Well, I appreciate your pointing out that one of the other important statements in Hamdi was that people who are detained have certain due process rights and that the president cannot exercise his powers as commander in chief without judicial review or without anyone else looking at it, including a court or a military tribunal under appropriate circumstances.
But the fact is Justice O'Connor took a view of presidential power there that some might consider to be rather broad, the power to detain an American citizen who's a suspected terrorist without actually charging them with a crime for the reasons that Senator Graham stated; that if that person who was actually captured in Afghanistan and brought to Guantanamo Bay, if they were released, then they likely would return to the battlefield and plot and plan and execute lethal attacks on American citizens.
Interestingly, people like to characterize judges as conservative, liberal.
CORNYN: One interesting thing to me about that is Justice Scalia, who you have been likened to, actually dissented and held that it was unconstitutional for the president to detain these individuals without charging them with some crime, like treason or something else. Isn't that correct, sir?
ALITO: Yes, that's correct. This was a case where Justice O'Connor's view of the scope of executive power was broader, considerably broader, than Justice Scalia's.
Justice Scalia's position was that, unless habeas corpus is suspended -- and there are only limited circumstances in which that can take place -- then there would have to be a criminal trial.
CORNYN: But Judge Scalito might -- Alito, excuse me...
(LAUGHTER)
After talking about Judge Scalia -- you know what I was thinking, in the back of my mind, a nickname that you've acquired sometimes. And I apologize.
But the fact is that people try to characterize judges as being somewhere on the political spectrum, or making results-oriented decisions based on some ideology. But the fact is -- and I'll just ask you if you agree with this -- whether good judges who try to apply the law to cases and facts that come before them on an individual basis without regard to who wins and who loses, their decisions could be characterized as liberal, conservative and anywhere in between. Has that been your experience?
ALITO: I think that's correct, Senator.
I think that all of these labels, When you're trying to describe how judges behave, how they do their work, have their limitations and different people use them in different ways.
CORNYN: Thank you very much.
SPECTER: Well, thank you very much, Senator Cornyn, for that round of questions.
When Senator Cornyn misstates even one word with his competency, you know it's getting late.
(LAUGHTER)
And thank you, Judge Alito, for your -- we can all agree there may be some areas of controversy among the 18 of us, but I think that we can all agree about your stamina and your poise and your good humor, and even some subtle humor.
(LAUGHTER)
Your family has shown the same kind of stamina. The crowd has pretty well emptied out, but the Alitos are all still here. And they have provided not only support but occasion for a comment or two.
I noticed a big smile on your wife's face when you were asked if you stopped beating your wife.
(LAUGHTER)
ALITO: I wasn't asked whether she had stopped beating me.
(LAUGHTER)
SPECTER: Now, that's some of the subtle humor that your profile has talked about. We'd like to see a little more of it, Judge.
(LAUGHTER)
Perhaps if we went 11 hours instead of 10 hours, we'd get to that.
LEAHY: Oh, please don't.
(LAUGHTER)
I'll certify that he's very, very funny. Just don't do the other two hours.
(LAUGHTER)
SPECTER: Well, that raises the question as to what else you'll certify to, Senator Leahy.
(LAUGHTER)
LEAHY: That's enough for today.
SPECTER: I want to make one comment, which I have been pondering as to whether or not to make it, that there's a story, which is inapplicable to you, Judge Alito, so I think I can make it.
And the question is always raised: Who is behind a successful man? And the answer is a surprised mother-in-law.
(LAUGHTER)
But you have negated that infrequently told story.
So I want to thank you for your testimony today, and I want to thank my colleagues for what we are proceeding to do here, in accordance with our commitment, is to have a full, fair and dignified hearing.
And I think we're on the way.
And these proceedings are being very broadly covered. Can't pick up the front page of any newspaper in America without seeing your smiling face, Judge.
And in an era where the media is filled with criticism about the Congress, I think it's a good day for the United States Congress to have these proceedings, because people have been watching them and they see long hours and they see seriousness and they see important issues and they see the kind of dignity which we have had here today.
And I thank my colleagues and I thank you, Judge Alito. And we will resume this hearing tomorrow morning at 9:30.
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