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Date: January 10, 2006

Senator: Feingold

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 SPECTER: We now turn to Senator Feingold for 30 minutes.

FEINGOLD: Judge, thank you for all your patience today and throughout this process.

ALITO: Thank you, Senator.

FEINGOLD: There's already been a lot of discussion of this topic today, but I'd like to be sure I understand your opinion about whether the president, as commander in chief, can ignore or disobey an express prohibition that Congress has passed.

The torture statute is one example, but obviously I could imagine a variety of others as well, as I'm sure you could.

Here is the question: What are the limits, if any, on the president's power to do what he thinks is necessary to protect national security, regardless of what laws Congress passes?

ALITO: Well, when you say regardless of what laws Congress passes, I think that puts us in that third category that Justice Jackson outlined, the twilight zone, where, according to Justice Jackson, the president has whatever constitutional powers he possesses under Article II, minus what is taken away by whatever Congress has done by an implicit expression of opposition or the enactment of a statute.

To go beyond that point, I think we need to know the specifics of the case. We need to know the constitutional power that the president -- the type of executive power the president is asserting and the situation in which it's being asserted and exactly what Congress has done.

FEINGOLD: Then, let's take a more concrete example. Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations, in violation of the criminal and foreign intelligence surveillance statutes of this country?

ALITO: That's the issue that's been framed by the developments that have been in the news over the past few weeks.

And, as I understand the situation, it can involve statutory questions, the interpretation of FISA and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise authorized by law and the meaning of the authorization for the use of military force and then constitutional questions.

And those are issues, as I said this morning, that may well result in litigation. They could come before me on the Court of Appeals for the 3rd Circuit. They certainly could come before the Supreme Court.

And those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights.

And I would have to know the specifics in the arguments that were made.

FEINGOLD: Well, they are indeed important questions. And that's why it's so important for me to figure out where you would be heading on this kind of an issue.

And, in fact, the question I just asked you was not something I formulated right now. It's the question that I asked word for word of the attorney general of the United States at his confirmation hearing in January 2005.

And he answered as follows: "Senator, the August 30 memo" -- that's the memo that we sometimes refer to as the torture memo -- "has been withdrawn. It has been rejected, including that section regarding the commander in chief authority to ignore the criminal statutes. So, it's been rejected by the executive branch. I categorically reject it.

And, in addition to that, as I've said repeatedly today, this administration does not engage in torture and will not condone torture. "And so what you're really discussing is a hypothetical situation," was the end of his quotation.

FEINGOLD: Well, we now know of course that it wasn't a hypothetical situation at all. When the attorney general said he categorically rejected the torture memo, including the section regarding the commander in chief's authority to ignore criminal statutes, he was also not being straight with this committee.

So I'd like you to try to answer this question: Can the president violate or direct or authorize others to violate the criminal laws of the United States?

ALITO: The president has the obligation under Article II of the Constitution to take care that the laws are faithfully executed.

And the laws mean, first and foremost, the Constitution of the United States. That applies to everybody. It applies to the president. And the president, no less than anybody else, has to abide by the Constitution.

And it also means that the president must take care that the statutes of the United States that are consistent with the Constitution are complied with.

And the president has an obligation to follow those statutes as well.

Those are the important general principles. And the application of them in a particular case depends on the facts of the case and the arguments. And a judge needs to know the arguments that are being made on both sides before addressing -- before reaching a conclusion about the result.

Those are the overriding considerations.

FEINGOLD: Well, I take that answer -- and obviously you may not be able to comment on it because of the possibility of it coming before you.

I take that to be a pretty serious answer in terms of the president's responsibilities to uphold and make sure that the laws are followed, and including the criminal laws of the United States.

So given the fact that this interpretation of the FISA law may well come before you at some point, I take it, as you've indicated, that would not only be an initial part of your analysis but an awfully important analysis of whether the president has the power to override these criminal statutes.

And I certainly want to say for the record I don't believe the president has the ability to do that in this case. And, in fact, I think it would be almost impossible to interpret the FISA law in any other way than it clearly states; that it is the exclusive authority with regard to wiretapping outside of the criminal law.

FEINGOLD: And you said earlier today, Judge, in response to Senator Leahy that these types of gravely important constitutional questions very often do not end up being resolved by the judiciary but, rather, by the other two branches.

So what is the proper role of the judiciary in resolving a dispute over the president's power to disobey an express statutory prohibition?

ALITO: Well, the judiciary has the responsibility to decide cases and controversies that are presented to the judiciary. And that means that there has to be a concrete dispute between parties and the parties have to have standing under the Constitution.

And there's a whole doctrine that's called the political question doctrine, but it's a very misleading term for people who are not lawyers.

It doesn't mean that the dispute has something to do with politics or anything like that. It means that the dispute, in the sense in which people usually use the term "politics." It means that it's a kind of dispute that the Supreme Court has outlined as being not a proper dispute to be resolved by the judiciary, involving a constitutional issue that should be resolved often between the branches of governments.

And I was talking earlier about some things that the president does that are not reviewable -- vetoes, pardons, et cetera. There are things that Congress does that are not reviewable -- impeachment, et cetera.

In Baker v. Carr, Justice Brennan's opinion outlined a whole list of factors that inform the analysis of whether something is a justiciable dispute. And sometimes these disputes between the branches of government are held by the Supreme Court to fall into that category of being disputes that can't properly be resolved by the courts.

FEINGOLD: Do you expect that this matter of the warrantless searches is likely to be resolved with regard to the initial political question doctrine? Or do you think it would be likely to be resolved on the merits with regard to the statute and the Constitution?

ALITO: I don't think could answer that without providing sort of an advisory opinion about something that could well come up. If this does come up in litigation, then the courts have an obligation to decide whether it's a justiciable dispute.

The political question doctrine -- this doctrine of issues that are not justiciable -- often involves conflicts between the branches of the government. And when a person is asserting a person's individual rights are violated, that is the type of case that is often resolved -- I mean, typically resolved by the judiciary.

FEINGOLD: Well, Judge, aren't we going to be in kind of a tough spot if we find out the Supreme Court can't help us figure out whether the FISA law is an exclusive authority or not? Isn't that going to be hard to resolve between the executive and the Congress?

ALITO: Well, Senator, when I said in reference to Senator Leahy's question that often disputes between the two branches are resolved without resorting to the courts, I don't think I was referring specifically to this issue.

ALITO: And if I gave that impression, that was a false impression. I think what I meant to say and what I hope that I did say was that separation of powers disputes in general sometimes fall within this doctrine.

FEINGOLD: Noted a few times today that the questions of the president's power in the wiretapping area and other areas will likely come before the courts, including the Supreme Court. You just did that.

As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions. Some have called them moot courts or murder boards. Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?

ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been. But what I can tell you...

FEINGOLD: You don't recall whether this issue...

ALITO: No, the issue of FISA certainly has been something that I have studied, and this is not -- FISA is not something that has come before me as a judge.

FEINGOLD: But you don't recall whether or not this was covered in the practice sessions?

ALITO: No, no, the specific question that you raised about the conflicts between the president's authority to say that a statute enacted by Congress should not be followed. But the general area of wiretapping and foreign intelligence surveillance, wiretapping...

(CROSSTALK)

FEINGOLD: ... the recent events that have led to this dispute...

ALITO: And the recent events.

FEINGOLD: ... and the possibility that it may come before you. Right, Judge?

ALITO: That's correct.

FEINGOLD: OK. Who was present at these practice sessions where these questions were discussed? And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?

ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.

FEINGOLD: I just asked -- were there no comments...

ALITO: The comments that I've received...

FEINGOLD: ... or no advice?

SPECTER: Let him answer the question, Senator Feingold.

ALITO: The advice that I've received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I've participated either as a judge or previously when I was arguing a legal issue as a lawyer.

But nobody has told me what to say. Everything that I've said is an expression of my own ideas.

FEINGOLD: And I don't question that, Judge. I asked you, though, whether anybody gave you any feedback or suggestions or made any comment whatsoever on the answers you gave in the practice sessions.

ALITO: In general? Yes, they've given me feedback, mostly about the form of the question, the form of the answers.

FEINGOLD: Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions?

ALITO: Not as to the substance of the question. No, Senator.

FEINGOLD: Only as to the style?

ALITO: That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time.

FEINGOLD: Again, I'm not suggesting that.

ALITO: I just want to make that clear

FEINGOLD: I asking whether or not somebody talked about the possible legal bases that the president might assert with regard to the ability to do this wiretapping outside of the FISA statute. Was that kind of a discussion held?

ALITO: Nobody actually told me the bases that the president was asserting. I found the letter that was released last week or the week before by an assistant attorney general setting out arguments relating to this on the Internet myself and printed it out.

And I studied it to get some idea of some of the issues that might be involved here. And I looked at some other materials that legal scholars have put out on this issue. But nobody in the administration actually has briefed me on what the administration's position is with respect to this issue.

FEINGOLD: Does it strike you as being inappropriate for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing?

ALITO: It would be very inappropriate for them to tell me what I should say. And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice.

FEINGOLD: Thank you, Judge.

I want to come back to Mitchell v. Forsythe which you participated in the Solicitor General's Office. As we've already heard, that case considered the government's argument that President Nixon's attorney general, John Mitchell, should be granted absolute immunity for authorizing warrantless wiretaps.

FEINGOLD: And you signed the government's brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the attorney general acting in the inherently secretive national security context has few built-in restraints.

Justice White, writing for the court in Mitchell said, quote, "The danger that high federal officials will disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity," unquote.

Now, that statement still has a lot of relevance today. Doesn't it?

ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system.

But there are some high-ranking officials in all three branches of the government who do have absolute immunity just from civil damages, not from criminal liability or from impeachment or removal from office or for injunctive relief.

They can be ordered to comply with the Constitution. But as far as civil damages are concerned...

FEINGOLD: But when you were you at the Solicitor General's Office, you wrote this memo about the case, saying, quote, "I do not question that the attorney general should have this immunity, quote, "for authorizing warrant-less wiretap."

Why did you not question the attorney general's absolute immunity?

ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity -- and it was his money that was at stake here -- wanted to make.

So, we had an obligation that was somewhat akin to the obligation of a private attorney representing a client.

Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halpren (ph) in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration.

In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote, but something like -- but the situation could well be different for people who were involved in sensitive national security matters or foreign matters.

FEINGOLD: OK, but you said in your memo, quote, "I do not question the attorney general's absolute immunity." You did not quote it as the position of our office or, as you were just saying, this administration has argued this in the past.

You, in effect, injected yourself into the statement. Clearly, you were expressing your personal opinion on this legal issue, were you not?

ALITO: Senator, I actually don't think I was expressing a personal opinion.

I was saying that in my capacity as the writer of this memo who was recommending that the argument not be made even though it was one that our client wanted to have made, I wasn't disputing the general argument to which the department was committed.

But I thought that we should take a different approach, that we should just argue the issue of appealability. But that was not the approach that was taken.

FEINGOLD: Let's go on to the solicitor general's brief in the Mitchell case, which you signed.

That brief argues strongly for the need for absolute immunity, arguing that it is far more important to give the attorney general as much latitude as possible in the national security context than to, as the brief puts it, quote, "defer the occasional malevolent official," unquote, from violating the law.

Now, I find this statement particularly troubling today in light of the current administration's warrant-less wiretapping in the name of national security. Do you agree with that statement in the brief, that broad deference is warranted even if some attorneys general may abuse their power?

ALITO: I think the issue of the scope of the immunity that the attorney general has is now settled by Mitchell v. Forsythe. And that's the law. It was considered -- the argument was considered by the Supreme Court and they decided the question.

There are -- judges have absolute immunity for their judicial decisions. Members of Congress and their staff have absolute immunity for things that they do that are integral to the legislative process. The president has absolute immunity from civil damages for the president's official acts.

But absolute immunity is used very sparingly because of just the considerations that you're referring to.

But the consideration on the other side is that people who are involved in lots of things that make other people angry, judges deciding cases, members of Congress passing legislation, presidents doing all sorts of things, would otherwise be subjected to the threat of so many political reprisals that they would be driven from office.

And it's a policy judgment that our law has made that some people should have absolute immunity, but it's used very sparingly.

FEINGOLD: And I find your comments interesting because, of course, the argument is often fairly made that after 9/11 we have to recognize the important role that our executive plays in protecting the American people.

FEINGOLD: But I would also argue that it is a particularly compelling time to make sure there isn't undue deference given the types of powers that the executive may seek to use in trying to fight this threat.

In your class notes from a seminar you gave at Pepperdine Law School on civil liberties in times of emergency, you repeatedly raise the question of whether the judiciary has the capability to review certain types of determinations made by the executive branch in national security cases and particularly factual issues.

And We've recently seen an example of a court evidently expressing its frustration in a national security case when the facts presented to it by the executive, which it had accepted, apparently did not hold up.

And of course I'm talking about the 4th Circuit's serious concern it hadn't been told that Jose Padilla needed to be held militarily as an enemy combatant because he had plotted to use a dirty bomb in the United States and then finding out that three and a half years later the Justice Department wanted to transfer him to law enforcement authorities to stand trial for entirely different and much less serious crimes.

In Padilla, the 4th Circuit was originally willing to defer to the executive's assertion that it needed to hold Padilla militarily, but was quite upset -- and justifiably, I think -- to find out that it might not have deserved such deference. And I'm not going it ask you about that case because I know that case is coming before the Supreme Court.

But I do want you to say something about the role of the judiciary in evaluating the facts presented to it in national security cases by the executive branch.

How does a court decide whether to rely on the facts presented to it by the executive in a national security case?

ALITO: What I was doing in that talk at Pepperdine was framing that question. And it's a lot easier to frame the question and to ask students to think about it and give me their reactions than it is to answer it.

We've had examples of instance in which the judiciary in the past has had to confront this issue of reviewing factual presentations of the executive in times of national crisis. And there have been instances in which the judiciary has accepted -- and I'm thinking of the Japanese internment cases -- has accepted, which were one of the great constitutional tragedies that our country has experienced -- has accepted factual presentations by the political -- by the executive branch that turned out not to be true and from my reading of what went on were not believed to be true by some high-ranking executive officials at the time.

But there is the problem of judicial fact-finding, which I was talking about earlier, and the context of things that may be taking place on the battlefield, for example, or things that are taking place in wartime probably are more difficult for the judiciary to evaluate than other factual questions.

ALITO: So that's the dilemma. And I can't say that I can provide a clear answer to it.

FEINGOLD: I do appreciate your reference in the Koramatsu to a case and the problem there and how this is going to become an even more serious issue.

I'm going to switch to something else, the matter of the Vanguard case and the recusal. That has been characterized today as a nonissue. One senator said it's a joke. It's ridiculous. Another one said it's absurd, just plain absurd. And another -- same senator said it was a blatant tactic to torpedo your nomination.

Well, Judge, I was the senator that asked Judge Roberts very searching questions about whether or not he should have recused himself in the Hamdan case. And I'm sure he didn't enjoy it. I didn't particularly enjoy asking the questions. But in the end, I voted for him.

So let me just say to my colleagues, I reject this idea that when we come here to do our job of examining a nominee, that asking questions about an ethical issue is somehow a political game or an attempt to torpedo a nomination.

This idea of insulating yourselves and insulating the nominee before we've even asked questions about a subject really is not conducive to the kind of process that this chairman and this ranking member have made possible on the first nomination and this one as well.

So I think this is our job. And I ask you these questions in the spirit.

And I might add that although my time is limited that, when you hear the actual facts of it, whatever conclusion we draw, it's certainly not a trivial matter. It's something that I think we ought to cover.

So let me begin by following up on Senator Kennedy's question regarding the promise you made to the committee. In 1990, in your Senate questionnaire at the time of your nomination to the 3rd Circuit, you were asked how would you handle potential conflicts of interest.

You told the committee that you did not believe conflicts of interest relating to your financial interests were likely to arise. Nevertheless, you wrote, quote, "I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney or the First Federal Savings & Loan of Rochester, New York," unquote.

You also wrote that you would disqualify yourself from any case involving your sister's law firm and from any case in which you participated or that was under your supervision in the United States attorney's office.

Now, whether or not such recusals are required under the federal recusal law, your statement to the commitment was clear, unambiguous and not time limited. And I think for that reason alone, it is more than legitimate to ask some questions in front of this committee about this.

This morning, Senator Hatch read from a letter from the ABA, apparently received yesterday, although we did not see it until today. That letter talked about what you told the ABA when asked about Vanguard and the other ethics issues.

You also answered a number of questions from Senator Hatch about the case.

But your responses to both the ABA, as far as we can tell from the letter, and Senator Hatch did not say anything at all about your promise to this committee.

Instead, you responded by saying that you didn't notice the recusal issue because you did not get so-called clearance sheets in this case, because it was a pro se case and that you didn't, quote, "focus on the issue of recusal."

You also didn't mention something that the clerk of your court told us in a letter, that all judges have standing recusal lists that all cases, all cases, both pro se cases and cases where the parties are represented by counsel, are checked against before they are sent to judges.

FEINGOLD: So my first question is this: After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings & Loan be included on your standing list of priorities whose involvement in a case would require your recusal?

ALITO: Senator, I don't have a copy of the initial computer list, so I can't answer that question.

At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so.

FEINGOLD: So you don't recall whether you notified them or not?

ALITO: I do not. No.

FEINGOLD: OK.

Judge, we know you notified the clerk in 1990 that the U.S. attorney's office and your sister's law firm should be on your standing recusal list because you recused yourself from a number of such cases in the first several years you were on the bench.

And we also finally received additional documents just yesterday from the court. These documents show that the Vanguard companies and the other financial entities you listed in 1990 were not on your standing recusal list, which you approved in 1993, 1994, 1995 or 1996.

Do you remember removing them from your standing recusal list or is it fair to assume -- or is it your belief that they were never put on your recusal list?

ALITO: Senator, I don't know.

I don't know whether they were removed. I don't think I ever told the clerk's office: Take them off. It may be that at some point I submitted a new list and they were not on the list.

I do think it's important to keep in mind that this list is just an aid for the judge. This is not a comprehensive list of everything that will cause a judge to recuse.

FEINGOLD: I understand. I just want to get the facts down.

So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standing recusal list before 2003 when you informed the clerk that Vanguard and apparently also Smith Barney should be added, and you don't have any independent recollection of adding them to the list before then either. That's correct, isn't it?

ALITO: That's correct.

FEINGOLD: You explained to the ABA that the problem in these cases was that the conflict screen system was not working in these cases. And you told Senator Kennedy and Senator Hatch this morning that there were some oversights in this case.

And you wrote in a November 10th letter to Senator Specter: Due to an oversight it did not occur to you that Vanguard's status might call for your recusal. But it seems that the problem was not that the screening program was not working or that there was a computer glitch, as you and the White House originally suggested, but either that Vanguard was not on your recusal list and you didn't remember your promise or that you did not recognize that Vanguard was a party in the case. Now, isn't that a fair characterization?

ALITO: Well, there was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case.

FEINGOLD: So there wasn't -- so the problem really -- you can admit now, can't you, that this was not a computer glitch or a failure of the screening system? You're really saying something very different at this point.

ALITO: I'm not saying something different as to the screening system. The screening system was exactly what I described this morning.

ALITO: And I described that to the ABA.

FEINGOLD: But you don't think it was a computer glitch anymore, do you?

ALITO: It was not a computer glitch. And if I could just explain, the origin of that was that, when I was down here shortly after the president announced his intention to nominate me, I started to receive questions about this Vanguard issue.

And I was receiving information from our clerk's office. And, based on the information that I received, it was my impression that there had been a computer glitch. And that was the origin of that statement. And that information that I...

FEINGOLD: Let me ask you this in my last few seconds. When you wrote to Judge Greca (ph) indicating that would you recuse yourself from the Monga v. Ottenberg case, why did you feel the need to argue that you weren't in fact, required to do so?

Why not just admit you made a mistake, agree to recuse and move on? Why didn't you just do that when the issue was raised here, instead of coming up with these different explanations that, in some cases, I think, have become unconvincing?

ALITO: Well, Senator, when the recusal motion came in, I was disturbed by it and I wanted to see what the code of conduct exactly required in this context.

Twelve years had gone by. And no Vanguard case had come up and I hadn't had an occasion to look at this issue. And when I looked at it -- and the recusal motion was very harsh and it accused me of unethical conduct. And I took it seriously. And I wanted to see what the code required.

And I researched it and it was my conclusion that I was not required by the code to recuse.

But then I went on and said: But I still don't want to participate in this case. And I would like to have the initial decision vacated and make sure that Ms. Maharaj had an entirely new appeal. And that's what I asked for and that's what was done.

FEINGOLD: Thank you, Judge.

HATCH: Mr. Chairman?

SPECTER: Senator Hatch?

HATCH: On this particular issue, could I just take two minutes out of my next round?

SPECTER: If you want to comment, you may. And Senator Feingold should have an opportunity to respond.

HATCH: Sure.

On the form that you filled out, the question was: "Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts of interest during your initial service in the position to which you have been nominated."

HATCH: Now, this case arose 12 years later, didn't it?

ALITO: Yes, it did, Senator.

HATCH: That's hardly your initial service. To be held to that type of a standard, especially in a case that every ethics professor I know of says you didn't do anything wrong in, seems to me is going a little bit beyond the pale here. And it is overblown. And, frankly, I think you got to read the whole thing. You're a good lawyer and you agreed to do it, but it was during your initial service.

Now, I guess you could interpret initial service to be a year or two or three years. But 12 years? I don't think so.

SPECTER: Senator Feingold...

(CROSSTALK)

FEINGOLD: Yes. I mean, the fact is the nominee continues to have the holdings in Vanguard. They've appreciated in value. Time hasn't changed that. I think the judge here was at least trying to suggest there might have been some mistake made here, and instead we're getting sort of after-the-fact justifications that put some kind of a time limit on the promise he made to this committee. And there was no time limit on the promise that was made to the committee.

HATCH: I still have 30 seconds left.

Judge, number one, you've researched it and you didn't have to recuse yourself. You concluded that.

ALITO: Yes, I did.

HATCH: Number two, these ethics professors have concluded that. right?

ALITO: That's right.

HATCH: Number three, you have tried to comport with the highest standards of ethics during your whole 15 years on the bench. Right?

ALITO: I have tried to do that...

HATCH: Number four, I believe we'll have judges from that court who will say that you have.

SPECTER: Senator Feingold?

FEINGOLD: Mr. Chairman, I'm curious if this isn't a situation where he felt the need to recuse himself, why he would have put Vanguard on the list as something he should recuse himself from after the fact.

HATCH: Because he was mistaken. That's why.

SPECTER: All right, we're going move on now. I think that this slight exchange is permissible as an exception to our general rules. It livens up the afternoon.

(LAUGHTER)

HATCH: I want my two minutes back.

SPECTER: Anything at about 5:30 in the afternoon is welcome.

LEAHY: The chairman was disturbed by my snoring over here.

(LAUGHTER)

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