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Date: January 11, 2006

Senator: Kohl

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 SPECTER: Senator Kohl?

KOHL: Thank you very much, Mr. Chairman.

Judge Alito, after the first day of questions, it seems very clear that you believe there are certain bedrock principles in American constitutional law, principles like the right of one man, one vote in redistricting, the right of children not to have to go to schools unless they are integrated schools, the right for people to have privacy in making decisions about contraception and other rights.

KOHL: Even though these are cases where the principles are raised and their application is debated on the margins, or even more fundamentally, I believe you have said and you're willing to say that you will not question the underlying principle involved on these issues.

And I commend you for that. We are assured, and I believe that you clearly do stand by those principles.

And yet when you are asked about Roe v. Wade and the following case of Casey, cases that say the government should not place an undue burden on a woman's right to choose, when we asked about principles of that sort, you are unwilling to make the same statement of support.

Now, I understand that there will be cases where plaintiffs argue on the margins about Roe and Casey, where there are efforts to narrow or broaden these principles, just as there are cases that narrow or broaden the principles of one man, one vote, or the issue enunciated in Brown v. Board of Education, or Griswold.

But you are willing to stand by those other legal principles, and yet you're not taking the same position with regard to the principles embodied in Roe and Casey. Could you explain that, please?

ALITO: Senator, I think it's important to draw a distinction between issues that could realistically come up before the courts and issues that are still very much in play, which is to say is subject of litigation in the courts.

And I felt comfortable about commenting on one person, one vote and, of course, Brown v. Board of Education, because those are not issues that are any longer the subject of litigation in our country, not the fundamental principles that are embodied in those decisions.

And the Griswold case, likewise, concerns an issue that is not realistically likely to come before the courts.

Roe, on the other hand, involves an issue that is involved in a considerable amount of litigation before the courts, and so that's where I feel that I must draw the line.

ALITO: Because on issues that could realistically come up, it would be improper for me to express a view and I would not reach a conclusion regarding any issue like that before going through the whole judicial process that I described.

KOHL: I think there's strength to what you say. But I also believe it's not inaccurate to say that these other issues on the margins, just as Roe on the margins, are still coming up and may yet come up before the court.

And I still feel that while you are prepared to take a position on these other issues, which is almost, bottom line, clearly bottom line, you're not prepared to take that same position, which you could if you wished. You could take that position if you wished.

And I think what that does suggest is that what you are saying is that it is possible, if a case comes before you, that you would take a look at the principles underlying Roe and Casey and see them in a way that would overturn Roe and Casey.

Now, you may say, "Well, obviously, the answer is yes," but I just want to get that clarified for the record.

ALITO: Well, what I would do if a case like that were to come before me, if I'm confirmed, is to follow the two-step process that I've talked about; which is first to consider the issue of stare decisis.

And there's been a considerable body of case law now on this issue going back to Roe and, in particular, over the last 20 years. And in the Casey opinion, that was where the joint opinion began and where the joint opinion ended.

ALITO: And then only if I got beyond that issue would I consider the underlying issue.

And that's what I would do if the issue were to come up. And I don't believe that it would be appropriate, and it wouldn't even be realistic for me to go further than that.

KOHL: That is correct.

And in your mind, you're not prepared to say that the principle embodied in Roe and Wade or the principle embodied in Casey is clearly established law that is not subject, in your mind, to review.

ALITO: Well, in light...

KOHL: I mean, that is not your position, which I think you have said. But I think, at least for me, a clarification of that would be of some importance.

ALITO: Well, in light of the current state of litigation relating to the issue of abortion -- and as I said, there's an abortion case before the Supreme Court this term and there are undoubtedly abortion cases before the lower federal courts; I know there are -- I don't believe that it's appropriate for me to go further than that in relation to that issue.

KOHL: All right.

Judge Alito, the president nominated you for the Supreme Court because of your record as a person and as a judge.

Groups and individuals, particularly on the right, quickly endorsed you soon after your nomination because they feel comfortable with your record as you have established it over several decades now, where you've come from and where you are on the issues that are important to them.

We also assume that you yourself are very proud of your record, as you should be.

As a man of principle in conviction, which we believe you are, you worked on issues throughout your career as a Justice Department attorney that you believed in, that you cared about, that mattered to you. And I'm certain you would say that if you didn't believe in these things, you would not have gone to work for that particular Justice Department under that particular administration.

And yet yesterday, during the hearing, you seemed to walk away from a lot of your record.

For example, when asked about an interview where you supported Judge Bork, calling him, quote, "one of the most outstanding nominees of this century," you answered that you were just supporting the administration's position; that that wasn't your position.

KOHL: And even then, you distanced yourself from a number of his views, after having said that he was one of the most outstanding nominees of this century.

You are a man of conviction, I am sure you are, and you are not just a mouthpiece for people. You never have been and you never will be, which is to your credit.

When asked about the strong position you took opposing a woman's right to choose in your job application, you said that only reflected how you felt then and did not suggest anything of what you believe now. What you felt then, you felt as a full-grown man, and you're saying that is not how you necessarily feel now.

When asked about your membership in a radical organization at Princeton, a group that you cited with pride on your job application, you said that you could not remember anything about the group at all.

When asked about the citation in your job application where you refer to the importance of traditional values and what you meant by traditional values, and then you answered, somewhat incomprehensibly, when you said that you were protecting children from, quote, "psychological threats that come from elements in the atmosphere is a traditional value," unquote.

I also ask you about your statement on your job application that you disagreed with the Warren court's rulings on reapportionment, rulings that stand for the basic principle of one person, one vote. Indeed, you said your disagreement was so strong that it contributed to your decision to pursue a legal career.

Yesterday, you stated that you, in fact, did not disagree with the principle of one person, one vote; not then, not now.

So, Judge, this is the only time that the people of this country are going to have an opportunity to get a sense of who you are, what you believe in, what you stand for, who you are as a person.

KOHL: I think you would say that the American people have the absolute right to know that without condition, without any political considerations; that the most important part of this hearing is that the American people get a chance, through our questions and your answers, to know who you really are.

I would like to hope that you would say the job isn't worth it if we can't do that and do that well. And I believe you believe that.

So I would like to ask how you bring into a sense of harmony some of these things that you have done and said throughout your career which have brought you to this situation in which you are now a person being nominated to serve on the Supreme Court, and some of the positions that you've taken in the last two days, which, in effect, distance you from some of the very things that you have done and stood for over a career that bring you to where you are today.

ALITO: Senator, you mentioned a number of things, and I've tried to jot them down so that I could cover at least the major things that you mentioned. And I guess I'll take them in reverse order of chronology.

You mentioned the statement in the 1985 statement relating to reapportionment. And I've tried to explain what I had in mind.

The statement in the '85 statement talked about what I thought about reapportionment when I was in college. And the reason why I mentioned that -- why would I mention what I thought about constitutional law in college, before I had even been to law school?

ALITO: What I was attempting to do was to explain the development of my thinking about the role of the judiciary and about constitutional law and, in particular, the development of my strong belief in judicial self-restraint.

And the first place in which I saw a theoretical explanation of that doctrine, which I found persuasive at the time, was Alexander Bickel's book, "The Supreme Court and the Idea of Progress," which came out during the time when I was in college. I think it was the first book about constitutional theory, so to speak, that I had read.

And he addressed the issue of one person, one vote. And that linked up in my mind with the experiences of my father and working of the reapportionment of the New Jersey legislature.

And at the time when I was in college, there was an issue that was very much a live issue at the time as to what one person, one vote meant.

Did it mean that you took this principle of one person, one vote and applied it with blinding literalness so that every district was exactly equal in population or very close to that, with a population deviation of under 1 percent, or could other factors that people thought were legitimate factors to be considered in drawing districts, such as respecting county lines and municipal lines -- was it permissible to take those into account?

And that's what I know I was thinking about in reapportionment back in my college days.

I referred, in the statement to traditional values, and I said yesterday, at this point in 2006, I can't say for sure exactly what was on my mind in 1985 when I made reference to traditional values. But I tried to describe some of the things that I probably thought of as traditional values. And I listed a number of them.

And a lot of them had to do with the ability of people to live and raise a family in the sort of neighborhood where I grew up.

ALITO: And I gave a little description of that earlier.

So it would include things like being able to live in peace and safety. I think that's a traditional value, and that was very much at stake when I was in college in the late '60s and early '70s, and in 1985, because these were areas of high crime. And a lot of the work that I had done up to 1985, as an assistant U.S. attorney and working on criminal cases in the Solicitor General's Office, seemed to me to be involved with this issue of protecting people from the threat of crime.

I think I mentioned the ability to raise children the way you want, to instill your values, not to have them subject to certain external threats.

I've tried to think of why would these have been at issue in the mid-'80s, and they were at issue because of things like some of the things I was referring to earlier today about children being able to -- and students being able to express their religious views at school in a nondiscriminatory way, so that religious speech was not discriminated against. And that was very much at issue in the '80s. Congress passed the Equal Access Act at about that time to embody that principle.

So those were some of the things that came to my mind as traditional values.

The 1985 statement in reference to abortion, I have not distanced myself from it. I have said that that was a correct expression of what I thought in 1985 when I wrote it. It was written in 1985, and that was 20 years ago, and there's been a lot of case law in the intervening years. There was Thornburg and there was Webster and Casey, all of which involved direct challenges to Roe, and there were other cases applying Roe.

So that's what I had in mind with respect to the matters that you've covered.

KOHL: Last question: When we met privately, I asked you what sort of Supreme Court justice you would make, and your answer was fair when you said, "If you want to know what sort of justice I would make, look at the sort of a judge that I have been."

Last week, The Washington Post did exactly that in an analysis of your record as a 3rd Circuit judge for the past 15 years. They analyzed 221 cases that you sat on in which the court's decision was divided. I recognize that in every case there is a difference and they must be decided on the facts. Nonetheless, this data reveals patterns and tendencies in your decisions, among other things, as you may have recollected from the Post article.

It was found that in civil rights cases you sided against three out of every four people who claimed to have been victims of discrimination. This was a significantly greater rate than other judges in a national sample of cases.

Of 33 criminal cases the newspaper analyzed, you sided with the criminal defendant only three times. This was a very much lower rate than the national sample.

In immigration cases, The Post also found that you sided with immigrants who were trying to win asylum or block deportation only in one out of eight cases analyzed. This was much less than most judges in a national sample.

Now, The Washington Post was not the only one to perform an analysis of your record. Noted constitutional law professor Cass Sunstein, for example, found that, quote, "When there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84 percent of the time."

So what can we glean from these analyses of Judge Alito, and what might they indicate with respect to your posture on cases should you become a justice of the Supreme Court?

ALITO: On the discrimination cases, Senator, I think that the statistic that Senator Kyl just cited speaks directly to that: a comparison of the number of times in which people claiming discrimination prevailed in the cases won my vote, compared to the average for circuit judges in general.

ALITO: And I think that that my statistics and the statistics for circuit judges in general have to be viewed against the background of -- have to be viewed with a recognition of the way in which these discrimination cases come up through the court system.

Most of them are cases in which the person claiming the violation lost in the district court. And that means that a district court judge -- and they're not always right, but most of the time they're right and they're conscientious people and they apply the same law that we do -- they found that these were not meritorious cases.

And so if you start out with a group of cases that have already been found to be not meritorious, it stands to reason that probably not a very high percentage of them will ultimately be found to be meritorious.

On the immigration cases, I take very seriously -- and I don't know what the statistics are in this area, but I can tell you this: that I take very seriously the scope of review that I'm supposed to perform as an appellate judge.

And that is usually dictated by Congress. In the area of immigration, Congress has spoken clearly.

And as to factual decisions that are made by an immigration judge, what Congress has told us is, "You are not to disturb those unless no reasonable fact finder could have reached the conclusion that the immigration judge did."

And I very often see a record where I think it's doubtful, I say to myself, "I might have decided this differently, if I were the immigration judge." But I wasn't there. I didn't see the witnesses testify personally.

And Congress has told me what my role is there. My role is not to substitute my judgment for that of the immigration judge. My job is to say, "Could a reasonable person have reached the conclusion that the immigration judge did?" And if I find that a reasonable person could have reached that conclusion, then it's my job to deny the petition for review. And that's what I do in those instances.

KOHL: I appreciate that. I would just comment, again, that your siding with immigrants who are trying to win asylum or block deportation -- you sided only in one out of eight cases that they analyzed.

KOHL: And this was much less than most judges in the national sample who were about evenly divided in their decisions on these issues. This was what their analysis indicated.

So, for whatever it's worth, you were one out of eight, and a national sample of judges was about 50 percent. I only bring that up for your comment.

I thank you very much, Judge Alito.

And, Mr. Chairman, I thank you.

SPECTER: Thank you, Senator Kohl.

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