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Date: January 10, 2006

Senator: Grassley

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 SPECTER: Senator Grassley?

GRASSLEY: Well, I have a much more positive view of you than has just been expressed.

(LAUGHTER)

And I can't be cynical about your judging. In fact, maybe from what I have criticized the Supreme Court in a long period of time, I might feel you're too cautious, too willing to follow precedent.

But I think in regard to Vanguard, the point ought to be made that you did nothing wrong. You didn't violate any law or any ethics rule.

And the point's being made that maybe you did not remember a promise you had made to this committee -- well, let me assure you, don't lose any sleep over that. If senators kept every word they made to their constituents, there wouldn't be any senators left.

(LAUGHTER)

And so there's always shortness of memory, and without ill intent, whether it's on the part of a senator or whether it's on the part of Judge Alito.

I hope the viewing public is impressed by your intellect and your legal capabilities and your judicial record. Clearly, they're seeing that you have the kind of background and practical experience that it takes to be a Supreme Court justice.

In addition, I think you've demonstrated now, after five or six of us asking your questions, that you're very candid in answering questions so far and being honest with our committee.

These nomination hearings that we're holding are, of course, a unique opportunity for all of us, senators and the public, to explore more in-depth how Supreme Court nominees view the roles of justice, how a nominee approaches constitutional interpretation and precedent, as well as a nominee's appreciation of the separate branches of government.

GRASSLEY: And you've been involved in all of those discussions already this morning.

It's unfortunate that some extreme liberal groups have attacked your commitment to the law, as well as your honesty and integrity. But now you're doing your best, and I think doing a good job of setting the record straight.

So before I ask you some questions, I want to bring up some of these issues that have been brought up against you. And you do not necessarily have to respond in any way. I just think it's points that ought to be made as I see you. And I'm only one senator, but I think I've had a good opportunity to study you and particularly your cases.

I would like to address these ethics charges that we have seen generated by some of the left-wing liberal interest groups and even my colleagues on the other side of the aisle. These allegations are just plain absurd.

And you're going to see some charts that hopefully will be held up that I'm not going to point to, but bring up some of these charges. Because I think that we want to prove that these allegations are absurd.

It is puzzling to me that anyone would actually believe these claims, especially when people who know Judge Alito the best, people who have known him for a long period of time and who've worked closely with him, better than any of our senators would know you, they all say you're a man of honor, integrity and principle. They have no question about that.

The fact is that the ABA looks at issues such as integrity and ethics when it evaluates a judicial nominee. And it found you, Judge Alito, to be unanimously well qualified, a rating that Democrats have always claimed to be a gold standard. The ABA didn't find a problem with Judge Alito's record.

GRASSLEY: Moreover, several leading ethicists from across the political spectrum reviewed these allegations and they all agreed that you, Judge Alito, acted properly and that none of these charges have merit.

It says, in a letter from George Mason University president law professor Robert Rotunda, already referred to by members and in a letter to Chairman Specter, quote, "Neither federal statute nor federal rules nor model code of judicial conduct of the American Bar Association provide that a judge should disqualify himself in any case involving a mutual fund company" -- and they give as examples Vanguard, Fidelity, T. Rowe Price -- "simply because a judge owns mutual funds that the company manages and holds in trust for a judge," end of quote.

So, basically, according to law, Judge Alito was not required to recuse himself in the Vanguard case, but he did it anyway.

So let me repeat, five leading ethicists all say Judge Alito did nothing wrong. Professor Thomas Morgan, quote: "In my opinion, Judge Alito's participation in the Vanguard case was in no way improper nor does it give any reason to doubt that he would fully comply with his ethical responsibilities if confirmed."

And Professor Stephen Lubet and David McGowan wrote: "You do not need to be a fan of Alito's jurisprudence to recognize that he is a man of integrity. Other judges and justices would do well to follow this example," end of quote.

GRASSLEY: In addition, no complaint filed against Judge Alito has ever been validated. And to top it off, we've heard glowing statement after glowing statement from folks closest to the judge -- your law clerks, Republicans and Democrats alike, as well as lawyers and judges who practice before and worked with the judge on a daily basis.

These people know this nominee best, and they all say that he's a man of humility, a man of principle, and they don't have any question about the judge's integrity.

So it is patently unfair that some folks intent on torpedoing this nomination are trying to give these allegations weight that they don't deserve. It should be clear to everyone that this is a blatant tactic to tar Judge Alito's honorable and distinguished judicial record. And I hope this puts to rest these outrageous claims that Judge Alito doesn't have the integrity to be a Supreme Court justice. It's outlandish and should be rejected.

I'm now getting to a question that I want to ask you about executive power.

Some of your critics have questioned your ability -- and we've just heard it recently -- to be independent from the executive branch. They pointed principally to your work as a lawyer for the Department of Justice 20 years ago, suggesting that you would just rubber-stamp administration policy. I'd like to give you an opportunity to address.

So, Judge Alito, do you believe that the executive branch should have unchecked authority?

ALITO: Absolutely not, Senator.

GRASSLEY: Judge Alito, you do understand that under the doctrine of separation of powers, the Supreme Court has an obligation to make sure that each branch of government does not co-opt authority reserved to the coordinate branch?

GRASSLEY: And do you understand that when constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights?

ALITO: I certainly do, Senator. Each branch has very important individual responsibilities, and they should all perform their responsibilities.

GRASSLEY: And so clarify for me: Do you believe that the president of the United States is above the law and the Constitution?

ALITO: Nobody in this country is above the law, and that includes the president.

GRASSLEY: Judge Alito, would you have any difficulty ruling against the executive branch or the federal government if it were to overstep its authority in the Constitution?

ALITO: I would not, Senator. I would judge the cases as they come up. And I believe very strongly in the independence of the judiciary. I've been a member of the judiciary now for the past 15.5 years and I understand the role that the judiciary has to play.

And one of its most important roles is to stand up and defend the rights of people when they are violated.

GRASSLEY: This first question is very general. It's a new area. I'd like to explore in detail what you understand to be the proper role of a judge in democratic society. So could you generally give me what your views are on this approach?

ALITO: Yes. Our Constitution sets up a system of government that is democratic. So the basic policy decisions are made by people who are elected by the people, so that the people can control their own destiny.

ALITO: But the Constitution establishes certain principles that can't be violated by the executive branch or by the legislative branch. It sets up a structure of government that everybody has to follow and it protects fundamental rights.

And it is the job of the judiciary to enforce the provisions of the Constitution and to enforce the laws that are enacted by Congress in accordance with the meaning that Congress attached to those laws; not to try to change the Constitution, not to try to change the laws, but to be vigilant in enforcing the Constitution and in enforcing the laws.

GRASSLEY: What do you think about judges allowing their own political and philosophical views to impact on any jurisprudence?

And, secondly, do you believe that there is any room for a judge's own value or personal beliefs when he or she interprets the Constitution?

ALITO: Judges have to be careful not to inject their own views into the interpretation of the Constitution and, for that matter, into the interpretation of statutes. That's not the job that we are given. That's not authority that we are given.

Congress has the lawmaking authority. You have the authority to make the policy decisions. And it's the job of the judiciary to carry out the policy decisions that are made by Congress when it's enacting statutes.

GRASSLEY: Further explanation on that point, three subparts.

Do you believe that justices should consider political dimensions of controversial cases?

Do you believe that when faced with hard cases the Supreme Court should look at pleasing the home crowd or splitting the baby?

And what is the proper role of the Supreme Court in deciding highly charged cases, meaning most -- I suppose in most cases we'd be talking about politically charged cases?

ALITO: The framers of the Constitution made a basic decision when they set up the federal judiciary the way they set it up.

And there's a reason why they gave federal judges life tenure, and that is so that they will be insulated from all of the things that you mentioned; they will not decide cases based on the way the wind is blowing at a particular time; that in a time of crisis, for example, when people may lose sight of fundamental rights, the judiciary stands up for fundamental rights; that it is not reluctant to stand up for the unpopular and for what the court termed insular minorities; that the judiciary and enforces the Constitution and laws in a steadfast way, and not in accordance with the way the wind is blowing.

GRASSLEY: Let us look at the Bill of Rights and many other amendments that are often phrased in broad, spacious terms.

If a judge was so inclined, he or she could expand on the interpretation, use and effect of many provisions of the Constitution.

Do you agree with the school of thought that takes the position that when Congress and the executive branch are slow or do not act in a particular manner -- act at all, let's say -- then the Supreme Court would have a license to create solutions based on some of the broad wording contained in the Constitution?

Do you think that this is a proper role for the Supreme Court or do you take the position that judges have a duty to respect constitutional restraints?

ALITO: Judges have to respect constitutional restraints. They have to exercise what's called judicial self-restraint, because there aren't very many external checks on the judiciary on a day-to-day basis.

So the judiciary has to restrain itself and engage in a constant process of asking itself, "Is this something that we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?" for example.

The judiciary has to engage in that on a constant basis.

GRASSLEY: Well, just suppose that Congress had not even acted in a certain area, and there are people that are bringing cases before the court that would give an opportunity to fill in on something that Congress didn't do. What about it?

ALITO: The judiciary is not a lawmaking body. Congress is the lawmaking body.

Congress has the legislative power. And the judiciary has to perform its own role and not try to perform the role of Congress or the executive.

GRASSLEY: I don't know whether you've ever had a case where you're dealing with problems that the framers, maybe in broad ways in the Constitution, couldn't have provided for. But how would you apply the words of the Constitution, then, to problems that the framers could not have foreseen?

ALITO: There are very important provisions of the Constitution that are not cast in specific terms, and I think for a good reason. They set out a principle. And then it is up to the judiciary to apply that principle to the facts that rise during different periods in the history of our country.

ALITO: And the example that I like to cite here is the prohibition against unreasonable searches and seizures in the Fourth Amendment.

Now this goes all went back to the adoption of the Fourth Amendment at the end of the 18th century, and most of the types of searches that come up today are things that the framers never could have anticipated. They couldn't foresee automobiles or telephones or cell phones or the Internet or any of the other means of communication that have presented new search and seizure issues.

But they set out a good principle. And the principle is that searches can't be carried out unless they're reasonable. And generally there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.

And so as these new types of searches have arisen, new means of communication have come into practice, the judiciary has applied this principle and the legislative branch has applied the principle -- in statues like the wiretapping statute -- to the new situations that have come up.

GRASSLEY: What factors, if any -- and there may not be any -- but what factors, if any, are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving personal bias of judges?

ALITO: I think they can. There would be no, I think, basis for judges to exercise the power of judicial review if they were doing nothing different from what the legislature does in passing statutes.

ALITO: So judges have to look to objective things.

And if it is a question of absolutely first impression -- and they're aren't that many constitutional issues that arise at this point in our history that are completely issues of first impression -- you would look to the text of the Constitution and you would look to anything that would shed light on the way in which the provision would have been understood by people reading it at the time.

You certainly would look to precedent, which is an objective factor. And most of the issues that come up in constitutional law now fall within an area in which there is a rich and often very complex body of doctrine that's worked out.

Search and seizure is an example. Most of the issues that arise concerning freedom of speech is another example. There is a whole body of doctrine dealing with that. And that's objective. And you would look to that and you would reason by analogy from the precedents that are in existence.

GRASSLEY: Let me bring up the tension between majority rule and individual freedoms.

This involves the tensions between the American ideal of democratic rule and the concept of individual liberties, where neither the majority nor the minority can be fully trusted to define the proper spheres of our democratic authority and liberty.

I assume that you agree that there is tension that has to be resolved.

ALITO: There is tension because our system of government is fundamentally a democratic system. As I said, the authority to make the basic policy decisions that affect people's lives, most of those decisions are to be made by the legislature and by the executive in carrying out the law.

But the judiciary has the responsibility to exercise the power of judicial review. And so if something comes up that violates the Constitution that has been established now going all the way back to Marbury v. Madison, if that comes up in a case, it is the duty of the judiciary to say what the law is and to enforce the law in that decision.

And if that means saying that something that another branch of government has done is unconstitutional, then that's what the judiciary has to do.

GRASSLEY: How would you go about your duties as a justice in determining where the right of the silent majority ends and where the right of the individual begins? What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right?

ALITO: I would look to the text of the provision. I would look to anything that sheds light on what that would have been understood to mean. I would look to precedent.

And as I mentioned a minute ago, I think that in most of the areas now where constitutional issues come up with some frequency, there is a body of precedent. And that shapes the decision. That's generally what is going to dictate the outcome in the case.

And if it's a new question, then usually the judiciary will see where it fits into the body of precedent and reason by analogy from prior precedents.

GRASSLEY: Some judges and scholars believe that in resolving this dilemma, the court's obligation to the intent of the Constitution are so generalized and remote that judges are free to create a Constitution that they think best fits today's changing society.

What do you think of such an approach?

ALITO: Judges don't have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn't change.

It does contain some important general principles that have to be applied to new factual situations that come up. But, in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary.

GRASSLEY: I think you heard in opening comments of some of the members of this committee that they view the courts as a place taking the lead in creating a more just society. Is that a role for the courts? And -- I don't know whether you want to call this judicial activism, but I would -- is it ever justified?

ALITO: Well, I think that if the courts do the job that they're supposed to do, they will, we will produce a more just society. I think if you take the position as a federal judge, you have to have faith that if you do your job then you will be helping to create a more just society. The Constitution and the constitutional system that we have is designed to produce a just society.

ALITO: It gives different responsibilities to different people. You could think of a football team or you could think of an orchestra where everybody has a different part to play, and the whole system won't work if people start playing performing the role of someone else.

Everyone in the system has to perform their role, and I think you have to have faith, and I think it's a well-grounded faith that if you do that, if the judiciary does what it is supposed to do, the whole system will work toward producing a more just society.

GRASSLEY: I want to go back and expand on a point I referred to as maybe Congress not acting sometime and what the court should do about that. This is a line of questioning that I also asked Chief Justice Roberts when he was before us. At that time, I referred to the confirmation of Justice Souter, and Justice Souter responded to my questions regarding the interpretation of statutory law by speaking about the courts filling vacuums in law left by Congress.

Do you believe that the Supreme Court should fill in vacuums in the law left by Congress or is this a way for justices to take an activist role in that they get to decide how to fill in generalities and resolve contradictions in law?

If you are confirmed to the Senate, do you believe that your job is to fill in vacuums?

ALITO: Well, I don't know exactly what Justice Souter was referring to when he said that. But just speaking for myself, I think that it is our job to interpret and to enforce the statutes that Congress passes and not to add to those statutes and not to take away from those statutes.

GRASSLEY: Further, on judicial restraint, are there any situations where you believe it is appropriate for the Supreme Court justice to depart from the issue at hand and announce broad, sweeping constitutional doctrine?

GRASSLEY: And if you do, could you please describe in detail what those circumstances might be?

ALITO: I think judges should decide the case that is before them. I think it's hard enough to do that and get it right.

And if judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong.

When you have an actual, concrete case or controversy before you, you focus on that, it improves your ability to think through the issue and it focuses your thinking on the issue. And it makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.

If you speak more broadly, I think there's a real chance of saying something that you don't mean to say or suggesting something that you don't mean to say and deciding questions before they've been fully presented to you, before you've heard all the arguments about this other question that isn't really central to the case that is before you.

GRASSLEY: You might sometime be faced with what people might call a bad law or some unpopular law, which, nonetheless, might be constitutional. Do you believe that -- I guess the question should be what do you believe the court's role in that instance?

GRASSLEY: Is the court ever justified in correcting what might be a problem out there, presumably created by a law Congress passed?

ALITO: The courts do not have the authority to repeal statutes or to amend statutes. And so once a court has determined what a statute means, then it's the obligation of the courts to enforce that statute.

Now, sometimes when a case of statutory interpretation comes before a court and your first look at the statute seems to produce an absurd result, let's say, or a very unjust result, then I think the judiciary has the obligation to go back and say, "Well, is this really what the statute means? Because the legislature generally is not going to want to produce a result like that, so maybe our first look at this statute has produced an interpretation that it's an incorrect statute."

So I think we have to do that.

And occasionally, a statute will come along or an administrative regulation will come along, and the way it's applied in a particular case shows that there's a problem with the statute or the regulation that maybe Congress didn't anticipate or the administrative agency didn't anticipate.

And in those instances, while I think it is the obligation of the judiciary to apply the statute that is before the judiciary, I think it's proper for us to say, "Look, this shows how this statute or this regulation plays out in the real world in this situation. And maybe you didn't think about that. And maybe that's something that you want to take into account if you're going to revise the statute or issue a new regulation."

I think those are proper roles for us.

GRASSLEY: What is your position regarding results-oriented jurisprudence, where the rationale is made secondary to the actual result reached? When, if ever, is results-oriented jurisprudence justified?

ALITO: Results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy-makers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.

GRASSLEY: In the past few decades, certain interest groups and legal scholars and even some members of Congress have tried to convert the Supreme Court from a legal institution into political, social and cultural ones.

Because of this, the court has morphed in that direction, I believe, becoming a battlefield for warring interests groups who are raising and spending millions of dollars on disinformation campaigns and Web site blogs. There are even blogs going on all the time about this hearing.

Do you think it's because the Supreme Court has injected itself into policy issues better left to the elected branches of government? Or has the Supreme Court tried to act as, kind of, a roving commission attempting to solve perceived societal problems? Or maybe it's none of the above.

What do you think can be done to restore the sense of constitutional balance between the Supreme Court and the executive and legislative branches of government, understanding all are coequal?

ALITO: Well, I think the branches are coequal. And I think that the judiciary as a whole, including the Supreme Court, must always be mindful of the role that it is supposed to play in our system of government.

It has an important role to play, but it's a limited role. And it has to do what it is supposed to do vigilantly, but it also has to be equally vigilant about not stepping over the bounds and invading the authority of Congress or invading the authority of the executive or other government officials whose actions may be challenged.

I think the challenge for the judiciary.

GRASSLEY: Thank you, Judge Alito.

SPECTER: Thank you, Senator Grassley.

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