Date: January 12, 2006
Senator: Graham
Topic:
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Senator Graham?
GRAHAM: Thank you, Mr. Chairman.
I'd just like to echo what my colleagues have said about the service you're providing, not only to the committee, but I think the country, because most people in the country are not lawyers. That's probably a good thing.
The idea of who you're getting as a person is important, and the homework you've done gives us a good picture of this particular man.
But his judicial experience compared to other people that you have reviewed, seems to me that being on the court for 15 years, you had a lot to look at.
TOBER: Well, we don't compare one nominee to another, Senator, as I'm sure you can appreciate. But I will take the direct question, and, indeed, I believe we said in our letter of evaluation that he's created an enormous record of public service, and his writings speak to that. And that's, indeed, what we've reviewed.
GRAHAM: Thank you.
And about your rating, we're all very pleased to the outcome here. But democracy is about a process, not an outcome. The rule of law is about a process, not an outcome. There may be occasion where you'll render a rating I won't agree with, and that's just the way it goes.
But I think the process where you're involved really helps us a lot. I think it helps the country. And I appreciate the time you've taken from your families and your business to do it.
Now, what may take normal people 30 seconds to figure out may take the Senate three days. But we're going to ask one simple question about Vanguard. I've listened, and with this much material to have dealt with and as many cases as he's heard, the first question for me about Judge Alito is: Who am I getting here? And is an innocent mistake OK? I hope so, because I make them all the time.
GRAHAM: What would I not want? I would not want someone who's into self dealing. I would not want someone who skirts the ethical rules and plays as close to the line as they could.
Would it be a fair statement that Judge Alito never plays close to the line, he tries to do it the best he can, to take the highest approach to ethics?
PAYTON: I think that from what his colleagues who know him very well would say is that they hold him in the highest regard with respect to his integrity. And I think that encompasses what you just said.
GRAHAM: Thank you very much.
And one last thought, about Vanguard. What is in it for him to intentionally hear the case, knowing that he shouldn't? I have never found anybody that could give me a reason why this judge would make an intentional decision to avoid recusal when he should. Have you found a reason?
PAYTON: I actually am unaware of anyone who has claimed that he intentionally did this. It was a mistake.
GRAHAM: And there's no benefit one could find for him intentionally doing it, based on the nature of the case?
TOBER: I'm not aware of one.
GRAHAM: Thank you all.
TOBER: Senator, if I could just add, I believe it was Professor Rotunda who submitted a report to this committee. And I think there was a line in there that caught my attention. He said, "Reasonable people can make reasonable mistakes." And I think that captures what we thought we found. And when we spoke to Judge Alito about it, we were convinced that it happened.
GRAHAM: Thank you for your services.
SPECTER: Thank you, Senator Graham.
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