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Date: January 10, 2006

Senator: Kennedy

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 SPECTER: We will resume the hearing for Judge Alito on confirmation to the Supreme Court of the United States.

And we now turn in sequence to Senator Kennedy.

Let's not forget to start the clock.

KENNEDY: Thank you very much, Mr. Chairman.

There was one interesting omission between the exchange of yourself and Senator Hatch on the whole Vanguard issue in question, and that was the promise and pledge that you gave to this committee when you were up for the circuit court. I have it right here.

It said, "I do not believe that conflicts of interest relating to my financial interests are likely to arise. 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."

You remember that response. That was a pledge and promise to the committee that you would recuse yourself. Did you not?

ALITO: Yes, it was, Senator.

And as I said in answering Senator Hatch's question, if I had it to do over again, I would have handled this case differently. There were some oversights.

KENNEDY: I'm sure you might have. We've had a number of different explanations for this.

I'd like to ask the clerk if they would take down and show the judge, if you'd like to be refreshed about the number of times the name "Vanguard" appears on the brief and the number of times "Vanguard" appears on the opinion, which I believe you authored.

Would you like to -- if I could get a clerk to show those two documents.

ALITO: Senator, I am familiar with that. I do not really need to see the document.

KENNEDY: OK.

ALITO: Senator, the name "Vanguard" certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney's office.

I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn't give me the opportunity to apply my personal policy of going beyond what the code requires.

KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself?

ALITO: I believe that they did. I believe that some of them at least addressed that specifically in...

KENNEDY: Do you know specifically whether they did or not?

ALITO: I believe they addressed it in their letters, so they must have been aware of it.

KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases?

ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire.

KENNEDY: And the final answer -- we'll move on -- is that you saw the name "Vanguard" on the briefs and you obviously saw them on the opinion. You're the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself?

ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.

And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don't present recusal problems.

ALITO: And so no light went off. That's all I can say. I didn't focus on the issue of recusal.

KENNEDY: Well, this is important, when the lights do go on, and when the lights do go off. Because actually the accumulation of value of Vanguard had increased dramatically during this period of time, had it not?

ALITO: It had, Senator, but I had nothing to gain financially by...

(CROSSTALK)

KENNEDY: No, I'm not asking to get on to the questions of gain or loss or whatever.

I'm just asking about the pledge to the committee which you had given and the fact that the Vanguard was so obvious both in the brief and in the opinion which you wrote, and the fact that during this period of time there had been a sizable increase in the total value of Vanguard. And as all of us know, if you're dealing with a case dealing with IBM, you can't have even a single share in that.

The point about all of this is, is that so that interested parties that come before the courts are going to believe, not only in reality, but in appearance, that they're going to get a fair shake.

And that, you have said, was certainly your desire. And I certainly commend you for at least that desire. But in this case, this was something we'd recognize is extremely important.

Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home.

KENNEDY: And they've seen an intense public debate over when the FBI can look at their library records.

And they've heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president's decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight.

So, Judge, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life.

We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far.

Congress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so.

But we need justices who can examine this issue objectively, independently and fairly. And that's what our founders intended and what the American people deserve.

So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far.

Chief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution.

KENNEDY: Justice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills.

Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.

So I have serious doubts that you'd be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials.

And your record shows that, even over the strong objections of other federal judges -- other federal judges -- you bend over backward to find even the most aggressive exercise of executive power reasonable.

But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens.

And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president -- any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far.

Now, in 1985, in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words, am I right?

ALITO: They are and that's a very inapt phrase.

KENNEDY: Excuse me?

ALITO: It's an inapt phrase, and I certainly didn't mean that literally at the time, and I wouldn't say that today.

The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches.

KENNEDY: So you've changed your mind?

ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.

What I was getting at is the fact that our Constitution gives the judiciary a particular role and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country.

KENNEDY: All right. I want to move on.

Mr. Chairman, the clock is off. There are a number of points I want to cover and be timely, so I leave it up to the chair...

SPECTER: Senator Kennedy, you're correct. We have a timer over here. We're trying to get the timer fixed.

KENNEDY: If I would know when I have 10 minutes left...

SPECTER: Let us see if we can't get that clock in the view of Senator Kennedy so he can see it when he's questioning the witness.

KENNEDY: Thank you. Thank the chair.

SPECTER: And give Senator Kennedy two more minutes.

KENNEDY: There you go. There you go.

(LAUGHTER)

(UNKNOWN): Bravo.

KENNEDY: Be quiet over there.

(LAUGHTER)

Scurrilous dogs.

(LAUGHTER)

Judge, quite frankly, your record shows you still believe in the supremacy of the executive branch, Judge Alito. I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people.

So let's discuss some of your opinions. These cases deal specifically with one form or another of executive power, the power of authorities to intrude in homes, search people who were not even suspected of committing a crime.

KENNEDY: The Mellot v. Hemer (ph), where the U.S. Marshal Service forcibly evicted a family of dairy farmers from their home and their farm. These farmers had no criminal record and were suspected of no crime.

But after they fell on very hard times, the property was sold at a public auction. U.S. marshals were sent to evict them.

Remember, the marshals were sent to carry out a civil action, not a criminal action, a civil action. These farmers had committed no crime.

Now, I respect the U.S. marshals. They have a tough job and they do it with great professionalism. But in this case, the marshals entered the house with loaded guns. The family was unarmed, did not resist, but still the marshals pointed loaded guns at their heads, chests and backs.

One marshal chambered a cartridge in his gun. Twice, they pushed the wife into her chair.

The trial judge held there was enough evidence in this case to have a jury review the facts, hear the testimony and decide whether the marshals used too much force to evict these farmers.

But that did not sit well with you, Judge Alito. You grabbed the case away from the jury. You wouldn't let them hear the testimony or make up their own mind about whether the marshals had gone too far.

No, you simply substituted your judgment for the jury's and decided that the marshals' conduct was as a matter of all objectively reasonable. Judgment for the marshals, no jury of their peers for the farmers.

Why, Judge Alito? Your colleague on the 3rd Circuit, Judge Rendell, called the marshals' conduct Gestapo-like -- Gestapo-like. She said seven marshals detained, terrorized the family and friends, ransacked a home while carrying out an unresisted civil eviction. The trial judge thought the decision should be made by the jury. Why didn't you let the jury exercise an independent check on the marshals' actions?

ALITO: There was some additional information regarding these people that was important, and that was that they had threatened other people, as I recall. And there was evidence about the possession of weapons and evidence that they would be dangerous. That was the basis on which the marshals acted the way they did.

This was a case in which the marshals were sued for civil damages. And they asserted what's called the qualified immunity defense, and that means that if a reasonable person could have thought there was a basis for doing what they did, then they are entitled not to be tried. That is the law. I didn't make up that law.

KENNEDY: Wait...

SPECTER: Let him finish, Senator Kennedy.

ALITO: That's not a legal standard that I made up, and that was the way I saw the case, and that's the way the other judge who was in the majority saw the case.

Now, these cases involve difficult line-drawing arguments at times, and I respect Judge Rendell's view of this very much, but reasonable people will view these things differently.

KENNEDY: Well, the issue then was the actions of the marshals, whether it was reasonable -- whether it was reasonable. And here you have a judge, Judge Rendell, saying it was Gestapo-like to talk about terrorizing a family and ransacking a home while carrying out an unresisted civil eviction.

Aren't juries there to make a judgment and determination whether it was reasonable or not reasonable? And didn't your action take that away because you ruled as a matter of law that their conduct was reasonable?

ALITO: The Supreme Court has told us how we have to handle this issue, and it is for the judiciary to decide in the first place whether a reasonable officer could have thought that what the officer was doing was consistent with the Fourth Amendment. We have to make that decision.

Now, if we decide that there's an issue of fact, if there's a dispute in the testimony about the evidence that the marshals had or about what these individuals were doing at the time when the search was taking place or what the marshals did, then certainly those factual issues have to be resolved by the jury.

KENNEDY: That's, I think, certainly the view of Judge Rendell.

Let me move on, if I could, to the Doe v. Groody. And I know that you have -- Senator Leahy has talked about this and gone over the factual situation about the strip-searching of a 10-year-old girl.

KENNEDY: This case, the police got a warrant to search the house. They found the suspect outside, marched him inside, where they encountered the wife and 10-year-old.

The police took the wife and daughter upstairs, told them to remove their clothing, physically searched them, not as a protective frisk or search for weapons but in the hopes of finding contraband.

And that is when Judge Chertoff, the formal chief federal prosecutor for New Jersey, the former head of the Criminal Division in the Justice Department, President Bush's current secretary of homeland security, held that the police went too far.

As Judge Chertoff said, a search warrant for a premise does not constitute a license to search everyone inside. You differed. You differed.

And you've reviewed with us your reasoning for it: the fact that you felt that the affidavit which had been filed by the police should be included in the search warrant.

Judge Chertoff takes strong exception to that, as does the Fourth Amendment -- as does the Fourth Amendment.

As you mentioned yourself, the affidavit represents the police's view about the situation. But the search warrant is what is approved by the judge. Those are two different items that come up every time, in many, many instances.

Why did you feel that, under these circumstances -- under these circumstances -- that that affidavit should be included, the result of which we have the strip-searching of a 10-year-old -- a 10-year-old that will bear the scars of that kind of activity probably for the rest of her life?

The Fourth Amendment is clear. We want to protect the innocents. We want to have a search warrant that is precise, so that the police understand it and the person that it's being served to understands it.

KENNEDY: That was all spelled out in the judgment.

But you went further than that. You said, "Well, in this case, we're going to include the affidavit." And as a result of your judgment in this case and the inclusion of the Affidavit, we have the kind of conduct against this 10-year-old which she will never forget.

Why, Judge Alito?

ALITO: Senator, I wasn't happy that a 10-year-old was searched.

Now, there wasn't any claim in this case that the search was carried out in any sort of an abusive fashion. It was carried out by a female officer. And that wasn't the issue in the case.

And I don't think there should be a Fourth Amendment rule -- but, of course, it's not up to me to decide -- that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors.

The technical issue in the case was really not whether a warrant can incorporate an affidavit. There's no dispute that a judge or a magistrate issuing a warrant can say that the affidavit is incorporated. And that was done here.

The issue was whether -- and it was a very technical issue -- was it incorporated only on the issue of probable cause, or was it also incorporated on the issue of who would be searched?

If the magistrate had said in the warrant, "This warrant is incorporated as to the people who may be searched" and then in the affidavit it said -- and it did say this very clearly -- "We want authorization to search anybody who's on the premises," then there'd be no problem whatsoever.

ALITO: The warrant said it was incorporated on the issue of probable cause. And I thought that reading it in a common-sense fashion, which is what we're supposed to do, that necessarily meant that the magistrate said, "There was probable cause to search anybody who's found on the premises, and that's what I'm authorizing you to do."

KENNEDY: And that is what Judge Chertoff took strong exception in a very eloquent statement in talking about the protections and the reasons for the strict interpretation for the warrant.

Let me move on.

Judge Alito, your 3rd Circuit decisions don't exist in a vacuum.

Mr. Chairman, at this point, since there has been some questions about whether we are flyspecking these cases, I'd like to include in the appropriate place in the record the Knight Ridder studies that concluded that Judge Alito never found a government search unconstitutional; the Yale Law School professors -- the rule for government is almost -- every case reviewed, this was their conclusion; The Washington Post stories with regard to the cases; and also Professor Cass Sunstein's conclusions that -- the studies that Judge Alito rules against individuals in 84 percent of the time.

SPECTER: In accordance with our practices, if you want them in the record they will be there, without objection.

KENNEDY: OK.

So just looking at your writings and speeches, Judge Alito, you have endorsed the supremacy of the elected branch of government. You've clarified that today.

KENNEDY: You argued that the attorney general should have the absolute immunity, even for actions that he knows to be unlawful or unconstitutional; suggested that the court should give a president's signing statement great deference in determining the meaning and the intent of the law; and argued, as a matter of your own political and judicial philosophy, for an almost all-powerful presidency.

Time and again, even in routine matters involving average Americans, you give enormous, almost total, deference to the exercise of governmental powers.

So I want to ask you about some of the possible abuses of the executive power and infringement on individual rights that we're facing in the country today.

Judge Alito, just a few weeks ago, by a vote of 90-9, the Senate passed a resolution sponsored by Senator John McCain to ban the torture, whether it be here at home or abroad. As a former POW in Vietnam, John McCain knows a thing or two about torture.

For a long time, the White House threatened to veto the legislation, and finally Senator McCain met with the president and convinced him to approve the anti-torture law.

Two weeks after that, the president issued a signing statement -- no publicity, no press release, no photo-op -- where he quietly gutted his commitment to enforce the law banning torture. The president stated, in essence, that whenever the law of the land might be, whatever Congress might have written, the executive branch has the right to authorize torture without fear of judicial review.

Now, I raise this issue with you, Judge -- I raise this with you because you were among the early advocates of the so-called presidential signing statements when you were a Justice Department official.

You urged President Reagan to use the signing statements to limit the scope of laws passed by Congress, even though Article I of the Constitution vests all legislative powers in the Congress.

You urged the president to adopt what you described as a "novel proposal" to issue statements aimed at undermining the courts use of legislative history as a guide to the meaning of the law.

KENNEDY: You wrote these words: "The president's understanding of the bill should be just as important as that of Congress."

With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote "the president's understanding of the bill should be just as important as that of Congress"?

ALITO: When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute. And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements.

So I think that's the first point that I would make.

Now, I don't say I'm never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that's been unexplored by the Supreme Court. And it certainly is not something that I have dealt with as a judge.

This memo was a memo that resulted from a working group meeting that I attended. The attorney general had already decided that, as a matter of policy, the Reagan administration would issue signing statements for interpretive purposes and had made an arrangement with the West Publishing Company to have those published.

And my task from this meeting was to summarize where the working group was going and where it had been. And I said at the beginning of the memo that this was a rough first effort to outline what the administration was planning to do. And I was a lawyer for the administration at the time.

And then I had a big section of that memo saying "and these are the theoretical problems." And some of them are the ones that you mentioned.

ALITO: And that's why I left it. And all of that would need to be explored to go any further.

KENNEDY: Judge Alito, in the same signing statement undermining the McCain anti-torture law, the president referred to his authority to supervise the unitary executive branch.

That is an unfamiliar term to most Americans, but the Wall Street Journal describes it as the foundation of the Bush administration's assertion of power to determine the fate of enemy prisoners, jailing U.S. citizens as enemy combatants without charging them.

President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush combined used the term only seven times. President Clinton never used it.

Judge Alito, The Wall Street Journal reports that officials of the Bush administration are concerned that current judges are not buying into its unitary executive theory. So they're appointing new judges more sympathetic to their executive power claims. We need to know whether you're one of those judges.

In the year 2000, in a speech soon after the election, you referred to the unitary executive theory as the gospel and affirmed your belief in it.

So, Judge Alito, the president is saying he can ignore the ban on torture passed by Congress, that the courts cannot review his conduct.

In light of your lengthy record on the issues of executive power, deferring to the conduct of law enforcement officials even when they are engaged in conduct that your judicial colleagues condemn -- Judge Chertoff, Judge Rendell -- subscribing to the theory of unitary executive which gives the president complete power over the independent agencies, the independent agencies that protect our health and safety, believing that the true independent special prosecutors investigate wrongdoing are unconstitutional, referring to the supremacy of the elected branches over the judicial branch, and arguing that the court should give equal weight to a president's view about the meaning of the laws that Congress has passed, why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?

ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean.

I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.

The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?

Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.

ALITO: Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.

KENNEDY: Would that have any affect or impact on independent agencies?

ALITO: The status of independent agencies I think is now settled in the case law.

This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958.

KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time?

ALITO: I think that Humphrey's Executor is a well-settled precedent.

What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach.

KENNEDY: I want to just mention this signing of the executive understanding of the legislation that we passed banning torture, what the president signed on to.

"The executive branch shall construe the Title X and Division A relating to detainees in a matter with the constitutional authority of the president to supervise the unitary executive branch as the commander in chief and consistent with the constitutional limitations on judicial power."

KENNEDY: Therefore, it's the warning that the courts are not going to be able to override the judgments and decisions. That's certainly my understanding of those words, which will assist in achieving the shared objective of the Congress and the president.

That statement there, in terms of what was agreed to by Congress, 19-0, by John McCain, by President Bush, and then we have this signing document which effectively just undermines all of that -- it is something that we have to ask ourselves, whether this is the way that we understand the way that laws are to be made.

It was very clear in the Constitution who makes the laws. The executive -- Congress and the Senate makes it. The president signs it. And that's the law. That's the law.

These signing statements, and recognizing the signing statements and giving these value in order to basically undermine that whole process is a matter of enormous concern.

Thank you.

SPECTER: Judge Alito, Senator Kennedy had noted that there were substantial gains, as he put it, in the Vanguard stock, or the Vanguard the asset, during the period of time that you held them. But he did not give you an opportunity to answer that. I don't like to interrupt in the midst of a series of questions, but you can respond to that if you care to do so at this time.

ALITO: Well, Mr. Chairman, I had additional holdings in Vanguard during my period of service. But I think the important point as far as that is concerned is that nobody has claimed that I had anything to gain financially from participating in this case. And I certainly did not.

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