Contents    Prev    Next    Last

Date: January 10, 2006

Senator: Feinstein

Topic:

 Contents

 FEINSTEIN: Thank you very much, Mr. Chairman.

Good afternoon, Judge.

Because Sandra Day O'Connor was the fifth vote on both Lopez and Morrison, I think I'd like to start with the commerce clause and your views of federalism.

Do you agree with the direction the Supreme Court took in Lopez?

ALITO: Well, Senator, that really relates to the next case in the Lopez-Morrison line of cases that might come before the Supreme Court.

ALITO: And so I don't know how I can address that question without knowing what that case is. And, of course, my resolution of it...

FEINSTEIN: I was just asking you about Lopez, but if you don't want to answer, that's OK.

ALITO: Well, Lopez is a precedent of the court and it's been followed in Morrison and then it has to be considered in connection with the Supreme Court's decision in Raich. And I think that all three of those have to be taken into account together.

I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place.

We do still have a federal system of government, and I think most people believe that is the system set up by our Constitution.

FEINSTEIN: Right.

Now, having said that, I pulled the Rybar case and read it over the noon break. And let me just see if we agree on the facts, and stop me if you think I'm misquoting or misstating anything.

The Rybar case essentially took place the year after Lopez. It involved Mr. Rybar, who was a federally licensed gun dealer, who went to a gun show in Pennsylvania and bought a Chinese-type 54/7.62 millimeter submachine gun one day, sold it to Mr. Baublitz, went back the next day and sold him a military M-3 .45 caliber submachine gun.

The grand jury indicted him on two counts of unlawful possession of a machine gun in violation of the law and two counts of unlawful transfer of an unregistered firearm.

He changed his plea, pled guilty to two counts, I think pled conditionally guilty to two counts.

And when the case came before you -- and I read with great interest your dissenting opinion -- and what you said was, and I quote, "If Lopez, which happened the year before, does not govern this case, then it may well be a precedent that's strictly limited to its own peculiar circumstances. But our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form."

FEINSTEIN: And then you went on to say that the present form, quote, "might be sustainable in its current form if Congress made findings that the purely intrastate possession of a machine guns has a substantial effect on interstate commerce or if Congress or the executive assembled empirical evidence documenting such a link.

"If, as the government and the majority boldly insist, the purely intrastate possession of machine guns have such an effect, these steps are not too much to demand to protect our system of constitutional federalism."

So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation.

If Congress did make findings, would you have agreed that that statute would been constitutional?

ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case.

FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law.

ALITO: And I reiterate that...

FEINSTEIN: And I'm just asking you would you have sustained the law...

ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me.

But I repeat what I said there: It would have been a very different matter if Congress had made findings.

I have the greatest respect for findings. This is an area where Congress has the expertise and where Congress has the opportunity to assemble facts and to assess the facts. We on the appellate judiciary don't have that opportunity.

So if Congress had made findings -- and I didn't insist on findings. If the executive branch, which was defending the statute, had pointed to testimony at hearings -- and that's been done in other commerce clause cases -- or statements by responsible government officials with expertise in the area of firearms control, or any other evidence that substantiated this, it would have been a very different case for me.

And, of course, if there had been a jurisdictional element, then I think it's perfectly clear, under the precedents, that it would have been constitutional.

FEINSTEIN: OK. Well, I accept that with one exception. I think most people know that particularly machine guns do affect interstate commerce.

FEINSTEIN: And there is generally no question about that. If one looks at a gun trace, even before Mr. Rybar had the gun, the likelihood was that it came across state lines, particularly the Chinese model.

So I think that's a difficult extrapolation for me to understand. But that's not necessarily dispositive.

Let me go on. At the conclusion of your dissent, you wrote that, quote, "Even today, the normative case for federalism remains strong," end quote.

Now, federalism is often used to describe the strengthening of state powers as the expense of the federal government. What exactly did you mean by that statement?

ALITO: I meant that there are activities that -- and I think there's general agreement on this, and it goes beyond what the Constitution requires into areas of policy that I think Congress respects -- that I think there's general agreement that there are some activities that have traditionally been handled by the states and by local governments. And those are the areas in which they have taken the lead because the view has been that they're in the best position to deal with that.

And that was the issue that was directly addressed by the Justice Kennedy's concurrence in Lopez. He relied in large part on the fact that -- he put heavy reliance on the fact that was what was involved in Lopez was a law relating to schools. And although the federal government certainly has a role in education, traditionally that has been regarded as something that is primarily to be handled at the state and local level.

FEINSTEIN: OK. Now, you cited a Law Review article by a professor named Steven Calabresi. In that article, he argues that Lopez was a revolution that shattered forever the notion that after 50 years of commerce clause precedent, we could never go back to the days of limited national power.

Do you agree with that?

ALITO: I agree that Lopez was a startling development for a lot of people.

ALITO: When I was in law school, I think the traditional wisdom was that the commerce power reached everything; that there was no limit to the power; that nothing could ever exceed the power.

And Lopez and the Lopez line of cases have not made huge inroads on that principle, but it was the first time in a long time that a statute had been held to exceed Congress's commerce power.

So to that extent, yes, it was a revolution. But how big of one...

FEINSTEIN: I would say not yet has it made that kind of a dent. And that's why your nomination is so important, because you can be a decisive vote in this area.

Do you believe that the Supreme Court's commerce clause decisions in the 50 years preceding Lopez are settled law?

ALITO: I think that I'd have to talk about individual cases. But I do think that most of those -- the ones that come to my mind, I think, are well-settled precedents.

FEINSTEIN: Now, unlike the machine gun law in Rybar, the Family and Medical Leave Act in Chittister did include congressional findings of fact as the Supreme Court confirmed. And yet you authored the majority opinion to invalidate the law.

ALITO: Well, in Chittister...

FEINSTEIN: Do you see a contradiction in that?

ALITO: I don't, Senator. I don't believe that there were congressional findings in Chittister that went to the issue in Chittister.

FEINSTEIN: OK, that's good.

Now, let me ask you some questions.

Is it enough for Congress to provide findings of fact in the statute? Or do the findings of fact need to be deemed sufficient by a court?

ALITO: Well, what the Supreme Court has said is that findings of fact are very helpful when they are provided. And the court will certainly treat them with respect. But they are not necessarily definitive and they also are not necessary.

Congress doesn't have to make findings. It's helpful when it does it. And, under the Supreme Court's cases, the findings are not necessarily definitive. That's what the Supreme Court has said about this.

FEINSTEIN: But you struck down Rybar, ostensibly (ph). You said it would have better chance with if it had findings of fact. And this was a case where prior laws had major findings of fact with respect to machine guns this. I mean, this wasn't a new thing.

ALITO: Senator, I looked very carefully at all of the materials that were cited by the other judges in Rybar and that were provided by the government. And the things that were cited from the legislative history of the prior statutes did not, in my view, go to the issue in Rybar. All of those prior statutes were statute that had jurisdictional elements in them.

All that I was looking for was some evidence that the possession of a machine gun -- not the transfer of a machine gun or the sale of a machine gun, but the mere possession -- had a substantial effect on interstate commerce.

That's what I understood the Supreme Court precedent to require. And it's not a very heavy burden to show that something has a substantial effect on interstate commerce. But that's what I understood the Supreme Court precedent to require. And that's what I was looking for.

FEINSTEIN: OK. Let's move to the issue of a woman's right to choose and Roe.

This morning, Senator Specter talked about how Casey reaffirmed the original soundness of Roe and then put emphasis on precedent. And he then asked, "How would you weigh that consideration were this issue to come before you if confirmed?"

And, in response, you said, and I'd like to quote, "Well, I agree that, in every case in which there is prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."

Can you give us a few examples of a special justification, not including Brown v. Board of Education, which you think would qualify?

ALITO: There are a number of factors that figure in the application of stare decisis in particular cases. There are factors that weigh in favor of stare decisis and there are factors that weigh against stare decisis.

Factors that weigh in favor of stare decisis are things like what the initial vote was on the case, the length of time that the case has been on the books, whether it has been reaffirmed, whether it has been reaffirmed on stare decisis grounds, whether there has been reliance, the nature and the extent of the reliance, whether the precedent has proven to be workable.

ALITO: Those are all factors that have to be considered on an individual basis.

FEINSTEIN: But I'm asking you: What would be the special justification that you mentioned this morning that would be needed to overcome precedence and reliance?

ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant.

This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not.

The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed.

But it is not the -- the rule of stare decisis is not an inexorable command. And I don't think anybody would want a rule in the area of constitutional law that pointed and said that a constitutional decision once handed down can never be overruled.

So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all of the...

FEINSTEIN: My question was a different one, respectfully.

ALITO: I'm sorry, Senator.

FEINSTEIN: It was: Can you give me a few examples of what you think would qualify as a special justification for overruling prior precedent?

And the reason I ask you this is, in our private conversation, you said to me that you didn't think there had been any case you could think of that had been more tested than Roe. So...

ALITO: Well, Roe...

FEINSTEIN: What special circumstance would there be which would overcome this kind -- whether you call it super-precedent or super- duper or anything -- but this kind of protracted testing over a 33- year period of time?

ALITO: All right, Senator, I'm sorry if I didn't understand your question previously.

One situation in which there is a special justification for overruling a precedent is if the rule is proven to be unworkable.

ALITO: An example where the Supreme Court thought that a rule had proven to be unworkable is provided by National League of Cities and San Antonio Transit Authority v. Garcia. National League of Cities asked whether something was traditionally a sovereign function.

And that resulted in a whole series of cases in the lower courts, a number of cases in the lower courts, and a number of cases in the Supreme Court in which the courts had to decide whether something was on one side of this line or not. And it proved, in the view of the Supreme Court, to be a very difficult standard to work with.

And finally in Garcia, they said: This is unworkable, and we're going overrule National League of Cities and we're going to leave it to Congress to deal with the federalism issue that's presented here this. This is an example of the Supreme Court saying there's a federalism concern here, but it's one that Congress rather than the court would have to deal with.

Sometimes changes in the situation in the real world can call for the overruling of a precedent. An example of that is provided by Katz v. United States, which I was talking about this morning in relation to wiretapping.

The old rule under Olmstead was that in order for there to be a search, you had to look to property law. You had to see whether there was an invasion of a property interest. And then with the development of electronic communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in Katz, the Supreme Court said that this is a sensible way to apply the Fourth Amendment principle under the conditions of the modern world. And they said infamously that the Fourth Amendment protects people, not places.

So they shifted. They found the doctrinal underpinnings of the old Olmstead rule to be undermined by developments in the society and they shifted the focus from property law to whether somebody had an expectation of privacy.

Those are examples.

FEINSTEIN: Well, and you did say that you believe the Constitution provides a right of privacy?

ALITO: I did say that. The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it's well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protection.

FEINSTEIN: Let me ask you about your dissent in Casey. You reasoned that most women seeking abortions are either unmarried or would tell their husbands and therefore few would be harmed if spousal notification was required.

Justice O'Connor, on the other hand, ruled, and I quote, "The proper focus of constitutional inquiry is the ground of whom the law is a restriction, not the group for whom the law is irrelevant," end quote.

FEINSTEIN: Why did you propose a different approach than Justice O'Connor?

ALITO: I mentioned the fact in my opinion that this provision applied to only married women. But I don't think that was really the focus of what I was getting at.

I think I agree with her that you look at the group that's affected, not the group that's unaffected. So that would be women who fell within this provision of the Pennsylvania law.

And the standard that she had articulated in the earlier cases, was, as I described it a couple of minutes ago, that an undue burden, in her view, had to be an absolute obstacle or an extreme obstacle, and it could not be simply something that inhibited some women; "the some women" phrase was her phrase, not my phrase.

FEINSTEIN: I'm going to ask you one other quote that some of my colleagues may disagree with what she said, but she said it. And that is, "A state may not give to a man the kind of dominion and control over his wife that parents exercise over their children."

Do you agree with that?

ALITO: I never equated the situation of an adult woman who fell within the notification provision of the Pennsylvania statute with the situation of a minor who was required to provide notice.

There's an analogy, and the earlier case that Justice O'Connor had decided, the Hodgkin case, was a minor notification statute. But I think I made it quite clear in my opinion that this was nothing more than an analogy and that there was no close -- these situations were very distinct. And I was aware of that. And I think I pointed that out.

FEINSTEIN: Let me move on, if I might.

One of the core principles of Roe is that a woman's health must be protected. In Casey, O'Connor specifically wrote that after viability the state, quote, "may, if it chooses, regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life of the mother."

This requirement to protect a woman's health was also reaffirmed in Stenberg v. Carhart, where it was said, "The court rejects Nebraska's contention that there is no need for a health exception."

Do you agree if a statute restricts access to abortion that it must protect the health of the mother in order for it to be constitutional?

ALITO: Well, I think that the case law is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that's very clear in the case law.

FEINSTEIN: Thank you. I appreciate that.

In 1985, at the time you wrote the strategy memo on Thornburg, the court had already held that Roe, Akron, and eventually 30 other cases, that a woman had a constitutional right to choose whether to continue a pregnancy.

In addition, in your memo, you specifically wrote that in the Akron case, the Supreme Court reaffirmed Roe. However, despite this, your memo outlined a strategy to eventually overturn Roe.

My question is a little different from what you discussed somewhat yesterday: What was your view of precedent at the time you wrote that memo?

ALITO: Well, I think there are two things that I should say in response to that.

The first is that I did not advocate in the memo that an argument be made that Roe be overruled. And therefore, the whole issue -- had the government proceeded with the argument that I recommended, the issue of stare decisis wouldn't have been presented.

And so there wasn't any occasion for me to talk about stare decisis in the memo, and I did not talk about it. I think there's a mention of it in a footnote.

So I didn't address it and there wasn't an occasion to address it.

The second thing I would say is that stare decisis is a concern for the judiciary much more than it is for an advocate. An advocate is trying to achieve a result. And so for an advocate, stare decisis can be either a great benefit if it is in your favor, or an obstacle to get over. But it isn't the kind of issue that needs to be grappled with in the way in which a court has to grapple with stare decisis.

FEINSTEIN: OK. In Casey, you wrote about the harms caused by spousal notification to the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors.

Just to go back to that, is this what you meant?

ALITO: Well, Senator, I don't -- I did not equate the situation of a married woman with the situation of a minor.

FEINSTEIN: I mean, you keep saying that, but I keep going back to the words and it seems they seem to say that.

ALITO: Well, I think if you look at the words, I actually said that I don't equate these two situations. I was mindful of the fact that they are very different situations.

But often the law proceeds on the basis -- legal reasoning is based on analogy. And so if you take a situation that's quite different and yet has some relationship to a situation that comes up later, you can draw some analogies while still recognizing that the two situations are very different.

If you're talking about the potential for abuse, that certainly is something that can come up in either of these two contexts, and it's a tragedy in either context.

If a single minor is abused as a result of notification, that's a tragedy. If a single adult woman is abused as a result of notification, it's a tragedy.

But what I think I'm getting at there is that this was what we had and this is what I had, this was the information that I had to work with to try to understand what this provision meant.

And so you work with what you've got and that's what I had, and I was trying to see to what degree the prior situation was relevant and to what degree it wasn't relevant to the issue that was before me.

FEINSTEIN: I'd like to quickly just switch subjects for a moment just to clarify something you said this morning, and this has to do with electronic surveillance of Americans.

As you know, in 1978, the Congress, after a lot of introspection, passed a bill called the Foreign Intelligence Surveillance Act, which we call FISA, which essentially set up the parameters for all electronic surveillance within the United States. And it's very specific, if you read it.

There is a great concern right now because of what's been happening with respect to electronic surveillance, quite possibly involving Americans, as well as foreigners. You said something interesting this morning. You said, generally, there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.

FEINSTEIN: Now, with respect to the FISA law, the committee report -- Birch Bayh was the chairman of the Intelligence Committee at the time -- he spells out: This covers all surveillance in the United States.

And then, President Carter, when he signed the law, said, this covers all surveillance within the United States. So there is a burgeoning question as to whether the president now has the authority to wiretap Americans without going through the FISA court.

When you said, generally, there has to be a warrant, what that said to me is you were providing for an exception. Is that correct? Are you providing for an exception?

ALITO: I think that what I was addressing when I said that was what the Fourth Amendment means, the general principle that is set out in the Fourth Amendment.

And the case law under the Fourth Amendment says a warrant is generally required. But there are well-recognized situations in which a search can be carried out without a warrant. Exigent circumstances is a situation that comes immediately to mind. If...

FEINSTEIN: Well, let me stop you here. Do you recognize Justice Jackson's comment in the 1952 Steel case where he set up that tripartite framework for presidential authority?

ALITO: I do, yes.

FEINSTEIN: And when it is at its weakest is when Congress has legislated? And, in 1978, Congress did legislate and covered the horizon, so to speak?

ALITO: Yes, Senator, I recognize that and I think that's a very useful framework for addressing issues of executive power.

Now, there's a question about what the meaning of what Congress did and that would be a statutory question: What is the meaning of the provision of FISA in question?

And maybe there's no substantial argument about what is meant there, but maybe there would be an issue about what was meant there and certainly there could be an issue about the meaning of the authorization of the use of military force. How far was that intended to go?

And so this statutory question I think would -- that certainly would be an issue that could come up in this situation. And probably, you would need to -- I think you would have to resolve the statutory question before you could figure out which of the three categories that Justice Jackson set out that the case fell into.

FEINSTEIN: Thank you. I've run out of time. I'll continue this next session. Thank you.

ALITO: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

	Contents    Prev    Next    Last