Date: January 11, 2006
Senator: Grassley
Topic:
Contents
SPECTER: Now we'll move to Senator Grassley for 20 minutes.
GRASSLEY: Well, we have gone over the same ground many times. I suppose maybe to some extent both sides are guilty of that. But we have an old saying in the Midwest about if a horse is dead, quit beating it.
GRASSLEY: And I think several horses have been beaten to death, particularly on the other side. And you've been very consistent in your answers, and I thank you. And I think that that speaks to the intellectual honesty of your positions.
It's kind of like we're in the fourth quarter of a football game and you're the quarterback and your team is way ahead here in the fourth quarter and opponents are very desperate, trying to sack you and aren't doing a very good job of it. And they haven't hit you all day, now for two days.
And you're going to keep getting these last-minute Hail Marys thrown at you. So just bear with us.
I want to compliment you, first of all, before I ask some questions, and I just did, to some extent, about the consistency of your testimony, but I think it's been good. I think under very difficult circumstances you've handled yourself very well -- being responsive, forthright, thoughtful.
I sense in you a person that's very sincere. And, obviously, I don't know you except this appearance here and the small period of time we spent in the office. Seems like you have modesty, that's a breath of fresh air, demonstrating a command of and very much a respect for the law and the Constitution, of course.
GRASSLEY: And this is all stuff that we ought to be looking for in the tradition of Alexander Hamilton saying the role of the court -- or the Senate is to make sure that only competent people get on the court and that political hacks do not get on the court.
You are surely no political hack, and you are very competent. And that's been demonstrated with your fair and open-minded approach to your being a judicial person.
It is too bad that we are getting this misconstruing of your record or the answers, the claim that you have not written a single opinion on the merits in favor of a person of color alleging race discrimination on the job in your 15 years on the bench.
I have looked at a lot of opinions you have given, and it is just not true. Your record shows that you ruled in favor minorities making allegations of racial discrimination in employment not once, but in a number of cases.
The claim that you acted unethically in the Vanguard case is just not true. You did nothing improper and actually went beyond the rule to ensure compliance.
The claim that you would support an unchecked executive is just not true. Your record shows that you have repeatedly ruled against the government and that you have told us no one, including the president, is above the law.
The claim that you have ruled in a vast majority of time against the claims of individual citizens in favor of the government and large corporations is just not true. The reality, as I see it, that you have found in favor of the little guy in numerous cases but because of who was right and who was wrong, not just because you have a bias one way or the other.
GRASSLEY: Your critics are, I think, grasping at any straw to tarnish your record, and that's unfortunate.
Judge Alito, in your opening statement you said -- and I hope I quote you accurately -- "No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law."
You didn't go into detail about what you meant. I think it's quite clear above the law. But give us that diverse opinion, above the law versus beneath the law.
ALITO: Every person has equal rights under the law in this country, and that involves includes people have no money, that includes people who do not hold any higher or prestigious position, it includes people who are citizens and people who are not citizens.
Everybody is entitled to be treated equally under the law. And I think that's one of the greatest things about our country and about our legal system.
GRASSLEY: You've been criticized for being hostile to voting rights based upon a statement that you wrote 20 years ago when you were applying for a job with the Justice Department during the Reagan years.
In fact, yesterday some of my colleagues repeated that assertion, but it's apparent to me that it's off the mark.
Specifically, in your 1985 statement you wrote that he became interested in constitutional law and went to law school in part because you had some disagreements over Warren court decisions, including some regarding reapportionment. Of course, that's understandable because the Warren court had handed down very many decisions on reapportionment, and they had been criticized as unworkable, and that in fact the Supreme Court backed away from some.
So there was disagreement. There was debate over those issues at that time. Probably a lot less today, but still recently there's going to be a case going to the court.
Some have questioned your 1985 statement regarding the electoral reapportionment, that is how districts are drawn. They suggested that you're hostile to the principle of one person, one vote.
Clarify for me, nowhere in your '85 statement did I find that you wrote that you ever disagreed with the principle of one person, one vote. Did you?
ALITO: I never disagreed with that principle, Senator. What I disagreed with when I was in college was the application of the principle in some of -- the elaboration of the principle in some of the late Warren court decisions.
And this grew out of my father's work with the New Jersey legislature. He had been the secretary to the state constitutional convention of 1966, which redrew the provisions of the state constitution relating to the composition of the legislature in an effort to bring it into compliance with the one person, one vote standard.
ALITO: These provisions, however, because they tried to respect county and municipal lines, as I recall, resulted in population deviations of under 10 percent, but those deviations were much higher than the ones that the Supreme Court said in the late decisions that I'm talking about would be tolerated regarding congressional districts.
There was a belief that that principle would be applied across the board, both to congressional districts and to legislative districts, and that would have wiped out the plan that had been adopted.
And I was quite familiar with all of this. And it seemed to me an instance of taking a good principle, which is one person, one vote, and taking it to extremes, requiring that districts be exactly equal in population, which did not seem to me to be a sensible idea.
GRASSLEY: Isn't it true that the words "one person, one vote" weren't even in your statement?
ALITO: Those words are not in my statement.
(CROSSTALK)
ALITO: ... Senator, that this issue of how nearly exact the districts had to be a was an issue that was working its way to the Supreme Court -- maybe it had actually been there; I've forgotten the exact chronology -- at the time of the 1985 statement in Karcher v. Daggett, which involved the New Jersey congressional districting plan.
GRASSLEY: Well, just to make sure that there's no lingering confusion, then, let me ask you straight out: Do you believe in the principle of one person, one vote?
ALITO: I do. I think it's a fundamental part of our constitutional law.
GRASSLEY: I find it curious that the same people who are questioning your integrity are either asserting or implying that you took a position against the principle of one person, one vote, when it is demonstrably false that you ever did.
GRASSLEY: Further, on another point, some have suggested that you're hostile to women and minorities. Obviously, I don't think that's the case. I think you've demonstrated that sincerity in just very recent statements today.
Now, in the Washington Post article, Alberto Rivas, a criminal defense lawyer and a Democrat, said you, quote, "took steps to diversify an office" -- this was when you were U.S. attorney -- "You took steps to diversify an office that had a reputation as something of a white boys' club."
Rivas said that when you hired him at the U.S. Attorney's Office in New Jersey, he was the only Latino lawyer in the office, and by the time you left that office, Rivas said there was four Latino lawyers, as well as African-American lawyers.
Your commitment also included advancing women attorneys and promoting them into senior positions during your tenure as U.S. attorney.
And I understand that when you started in that office, only two of the 15 divisional leadership attorneys, chiefs or deputy chiefs or attorneys or in charge, were women. And two years later you had more than doubled that number. And five of the 17 divisional leadership attorneys were women.
Now, on the federal bench, you've hired many women and minorities to serve as law clerks.
GRASSLEY: And you had a discussion with Senator Brownback earlier, mentioning some very complimentary things that Cathy Fleming, your former deputy chief and acting chief of special prosecution units, in New Jersey office, and David Walker, a former lawyer in that office, had to say about you and your treatment of women and minorities.
They both, being lifelong Democrats, vouched in those statements for your qualities as a judge and your respect for individual rights.
And, Mr. Chairman, if these letters -- and they may have already been put in the record, but if they aren't in the record, I'd like to have those put in the record.
SPECTER: Without objection, they will be made a part of the record.
GRASSLEY: Several of your dissents have been referred to today -- or not -- in the last two days. And so I wanted to comment on the suggestion that you're way out of the mainstream because you've written a lot of dissenting opinions.
I don't find that you've written so many as a percentage of your total thing. But whatever reason you did it, you did it with good reason.
But judges disagree all the time, and that's to be expected. And, obviously, there's nothing wrong with that. And, in fact, the Supreme Court has agreed with your dissents on several occasions, I recall, from reading a synopsis of your opinions.
And the reality is, as I see it, you don't disagree with majority opinions more frequently than most federal appeals judges do in similar cases. And of more than 4,800 cases -- and that we got from the Washington Post -- but of more than 4,800 cases that you decided during your tenure on the 3rd Circuit, you dissented only in 79 cases, which would only be one in six-tenths percent of all those cases.
So, you know, I don't think that there's anything very extraordinary about the number of dissents or the dissents, particularly when the Supreme Court has agreed with your opinion in reversing the 3rd Circuit.
I'd like to go to the issue of some historical basis for our constitutional law.
GRASSLEY: The role of historical precedent in constitutional laws I find very interesting.
For example, qui tam lawsuits have been a feature of Anglo- American law since the Middle Ages and have been a common feature of federal statutory law even since the first Congress, yet their constitutionality has never been clearly adjudicated by the Supreme Court.
What role does long-standing historical practice play in assessing the constitutionality of a government act or practice?
ALITO: Well, it can be very relevant in many instances.
One place where this has come up is when a statute was passed by the first Congress, and this has happened in a number of occasions. The first Congress, which was responsible for the Bill of Rights, passed a number of statutes relating to provisions of the Bill of Rights, and the Supreme Court has often looked to those and said, "This is the same Congress that proposed the Bill of Rights and they did this in enacting a statute so that gives us a good indication of what they had in mind."
And when there has been a legal practice that predated the Constitution, then that certainly is relevant in considering its constitutionality.
GRASSLEY: I'd like to have you think about legislative history and how you might use it or how often you might use it, or maybe if you got a rough quantifiable answer, how often you might use it.
The Supreme Court, I think, has quite often stated legislative history of a particular bill would be critical in their interpretation of it. What's your position with respect to legislative history? How important is it to you? And how have you utilized history in interpreting statutes?
ALITO: I have often looked to legislative history in the cases that I have written concerning statutory interpretation. I think if anybody looks at those opinions they will see that.
When I interpret a statute, I do begin with the text of the statute. I think that certainly is the clearest indication of what Congress, as a whole, had in mind in passing the statute.
And sometimes, the language of the statute is dispositive, and is really -- the decision can be made based on the language of the statute itself.
But when there's an ambiguity in the statute, I think it's entirely legitimate to look to legislative history. As I said, I have often done that. I think it needs to be done with caution: Just because one member of Congress said something on the floor, obviously that does not necessarily reflect the view of the majority who voted for the legislation.
It has to be done carefully, and I think with a realistic evaluation of the legislative process. But I'm not one of the judges who thinks that you should never look to legislative history. I think it has its place.
GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its qui tam provisions are unconstitutional under Articles II and III? And if you do, do you have any opinion on those arguments that are used, without prejudicing any review of it you might give?
ALITO: Well, the issue has not come up before me. I have a little bit of familiarity with the arguments.
And I think that all I can say on the question is that the qui tam statute is of historical origin, as you pointed out. We have seen what it has produced in terms of tangible results in the cases that have been brought under the statute in recent years.
ALITO: And should an issue relating to its constitutionality come before me, either on the 3rd Circuit or the Supreme Court, then I would have to follow that whole judicial process that I've described and evaluate the arguments and certainly study the question much more thoroughly than I have done up to this point.
GRASSLEY: You may have just answered this question, but I'd like to get it expressly on the record: Have you ever written or spoken publicly about the issue of the constitutionality of qui tam or any other provision of False Claims Act? And if so, the circumstances and the context?
ALITO: I'm quite sure I've never written or spoken about its constitutionality.
GRASSLEY: Do you feel that you have any bias against False Claims Act or Whistleblower Protection Act that would impact the ability of you to fairly decide cases involving those issues?
ALITO: I certainly don't, Senator.
GRASSLEY: I'd like to ask you about the opinion you authored in Mistic (ph).
As author of the legislation that we call the False Claims Act, it's returned billions of dollars to the federal government and has become a very effective tool in combating fraud against the American taxpayers. So I follow court cases on this as much as I can.
The False Claims Act contains a provision that jurisdictionally bars lawsuits based on public disclosure, including such things as administrative reports and investigations.
The purpose of this provision is to prevent an individual who has read about a description of a fraud in a newspaper report, public document, government report, from simply taking that material and using it as a basis for a case.
In Mistic (ph), the qui tam relator had made a FOIA request and utilized some of the documents he received in response to FOIA in filing that qui tam case.
GRASSLEY: Your opinion, you determined that the qui tam relator had based his False Claims Act lawsuit on public disclosure made in an administrative report or investigation.
To come to that conclusion, you had to equate that the qui tam relator, who was acting on behalf of the government, as the public. But I think it's clear that Congress did not equate such qui tam relators with the public when it wrote the public disclosure bar provision. That's because, if Congress had done so, then everything qui tam relators know is known to the public, which doesn't make any sense.
So because my time's run out, I don't want to go on with a question, but, so you see what I'm getting at? Could you react to that?
ALITO: I do. And I understand that's a very strong argument.
I remember that I found that a very difficult issue to deal with and I spent a lot of time on it. And my view of the matter elicited a strong and a very persuasive, I think, dissent by one of my colleagues.
So it's a tough issue. And if that were to come up again, I would have to really reconsider.
GRASSLEY: Just in your last sense, you gave pretty much the same answer that Judge Roberts did. He had dissented in a case too. And it kind of worries when we get two of you on the court that may have unfamiliarity with congressional intent on false claims.
Thank you very much.
SPECTER: Thank you, Senator Grassley.
That will be all. We'll recess until 2:00.
Contents
Prev
Next
Last
