Date: January 10, 2006
Senator: Specter
Topic:
Contents
SPECTER: The Judiciary Committee will now proceed with the confirmation hearing of Judge Alito for the Supreme Court.
Before beginning the first round of questioning, just a little review as to our procedure. As announced, there will be a 30-minute allocation for each senator, but we intend to work rather late this afternoon, perhaps into the early evening. I don't know that it's possible to complete the first round of questioning today. That would be a good objective. We'll see how it goes.
Judge Alito, you are free to let us know whenever you want a break. We will take a couple of breaks at the midpoint of the morning and the afternoon. But there are 18 of us and only one of you, so when you would like a break, your schedule takes precedence over ours.
Before beginning the opening round, let me yield to my colleague, Senator Leahy, to see if he has some initial comments.
LEAHY: I thank you, Mr. Chairman. I also appreciate the fact we have kept to the clock. I think it has been helpful, and I would hope that Judge Alito would bear with us on that. We will have a lot of questions. I think to take the time to get them all -- you've always been accommodating to that. And I think that it requires cooperation on both sides of the -- both sides of the dais.
We do have the advantage, Mr. Chairman, that we didn't have with Judge Roberts hearings that we're not in session. We're not going to be interrupted by votes. And we have the time to do it. I would hope that we don't go into a marathon for both his sake and us older guys' sake.
But I do appreciate you. You've run this with fairness and equal- handedness. I appreciate that.
SPECTER: Well, since there are no older guys involved or gals, we can consider the marathon. But we'll keep it within bounds.
OK. You can start the clock. I will maintain the clock meticulously as we have maintained timing in our Judiciary Committee practice.
Judge Alito, you'll be faced with many, many questions on many topics. I'm going to start today with a woman's right to choose and move to executive power and, hopefully, within the 30 minutes pick up congressional power.
Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?
ALITO: I do agree also with the result in Eisenstat.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language.
And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."
Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.
SPECTER: How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.
And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail -- on that specific concept of reliance?
ALITO: Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.
And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.
ALITO: In my view...
SPECTER: Let me move on to another important quotation out of Casey.
Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.
That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.
SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.
SPECTER: Let me move to just a final quotation that I intend to raise from Casey.
SPECTER: And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding."
That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.
How would you weigh that consideration were this issue to come before you, if confirmed?
ALITO: Well, I agree that, in every case in which there is a 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.
Let me turn to an analogous situation. And that is Chief Justice Rehnquist's change of heart on the Miranda ruling.
In 1974, in the case of Michigan v. Tucker, he was then Justice Rehnquist, who wrote an opinion severely limiting Miranda. He, in effect, said he didn't like it.
Then, in the year 2000, in the case of the United States v. Dickerson, Chief Justice Rehnquist wrote an opinion upholding Miranda. And he did that because, quote, "Miranda was embedded in the routine police practices to a point where the warnings have become a part of our national culture," close quote.
SPECTER: Now, there has been an analogy made from what Chief Justice Rehnquist said on the Miranda issue to the Roe issue.
How would you evaluate the consideration of Roe's being embedded in the culture of our society?
ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.
SPECTER: Do you think he was right?
ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.
I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing."
SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?
ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.
SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?
ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.
The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
SPECTER: Judge Alito, the commentators have characterized Casey as a super-precedent.
SPECTER: Judge Luttig, in the case of Richmond Medical Center, called the Casey decision "super stare decisis."
And, in quoting from Casey, Judge Luttig pointed out the essential holding of Roe v. Wade should be retained and, once again, reaffirmed.
And then, in support of Judge Luttig's conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart and quotes the Supreme Court, saying, "We shall not revisit these legal principles."
Now, that's a pretty strong statement for the court to make that we shall not revisit the principles upon which Roe was founded.
And the concept of super stare decisis or super-precedent arises, as the commentators have characterized it, by a number of different justices appointed by a number of different judges over a considerable period of time.
Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said?
ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any...
SPECTER: Did you say super-duper?
ALITO: Right.
(LAUGHTER)
SPECTER: Good. I like that.
(LAUGHTER)
ALITO: Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket.
(LAUGHTER)
ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going...
SPECTER: How about being reaffirmed 38 times?
ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis.
And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.
Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases.
SPECTER: Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I don't ordinarily like charts but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe where the Supreme Court of the United States had the opportunity to -- Senator Hatch is in the picture now.
(LAUGHTER)
It's a good photo op for Senator Hatch. Senator Leahy's complaining...
(LAUGHTER)
LEAHY: We can just balance it on Orrin's head.
(LAUGHTER)
SPECTER: Well, I think the point of it is that there have been so many cases, so many cases: 15 after your statement in 1985 that I'm about to come to, and eight after Casey v. Planned Parenthood, which is why it has a special significance.
SPECTER: And I'm not going to press the point about super- precedent. I'm glad I didn't have to mention super-duper; that you did.
(LAUGHTER)
Thank you very much.
Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?
ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.
Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis.
And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.
SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?
ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role.
And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.
SPECTER: Well, Judge Alito, coming to the role you had in the solicitor general's office where you wrote the memorandum in the Thornburg case urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge.
But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a promotion, within the federal government. So there's a little difference between the 1985 statement and your advocacy role in the Thornburg memorandum, isn't there?
ALITO: Well, there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice.
I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration.
SPECTER: And would you state your views, the difference, as you see it, between what you did as an advocate in the Solicitor General's Office to what your responsibilities are on the 3rd Circuit or what they would be on court if confirmed in a judicial capacity?
ALITO: Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility.
ALITO: That's what an advocate is supposed to do. And that's what I attempted to do during my years as an advocate for the federal government.
Now, a judge doesn't have a client, as I said yesterday. And a judge doesn't have an agenda. And a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.
SPECTER: Judge Alito, you have written some 361 opinions, and I'd like to have the time to discuss quite a few of them with you, but I'm only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll.
And that was the case where there was a challenge between a Pennsylvania statute which required as a prerequisite to a woman getting Medicaid that she would have had to have reported a rape or an incest to the police; and secondly, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions, conflicted with a regulation by the Department of Health and Human Services.
And you were on the 3rd Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygard entered a very forceful dissent, saying that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by a department countervail a statute.
SPECTER: What was your thinking in that case? Had you been predisposed to take a tough line on a woman's right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute? What was your thinking on that case?
ALITO: What you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute. And I did it because that's what I thought the law required. I thought the law required that we defer to the interpretation of the federal statute that had been made by the Department of Health and Human Services.
If I had had an agenda to strike down any -- I'm sorry to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygard in that case, and that would have turned the decision the other way.
I've sat on three abortion cases on 3rd Circuit. In one of them, that was the Casey case, I voted to uphold regulations of abortion. And in the other two, the Elizabeth Blackwell case and Planned Parenthood v. Farmer, I voted to strike them down. And, in each instance, I did it because that's what I thought the law required.
SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do.
I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn't answer every question that comes up in this area, but it provides a very useful way of looking at them.
SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that?
ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.
SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."
Do you stand by that statement?
ALITO: I certainly do, Senator.
The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.
SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.
Let me take just a moment to lay out the factual and legal considerations.
The Foreign Intelligence Surveillance Act of 1978 provides, quote, "It shall be the exclusive means by which electronic surveillance shall be conducted in the interpretation of domestic, wire, oral and electronic communications may be conducted."
The government contends that the Foreign Intelligence Surveillance Act clause, quote, "Except as authorized by statute, opens the door to interpreting that resolution to authorize the surveillance."
Let me give you a series of questions. I don't like to put more than one on the table at a time, but I think they're necessary in this situation to give the structure as to where I'm going.
First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?
Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?
SPECTER: Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?
How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?
And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?
ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance.
ALITO: And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it.
And depending on how one works through the statutory issue, then the case might fall into one of those three areas.
But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.
SPECTER: Before pursuing that further -- and we'll have a second round -- I want to broach one other issue with you; my time is almost up.
And that is, in the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."
SPECTER: Is that really true when you say the president's views are as important as Congress?
The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute.
And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress.
Well, I have got 10 seconds left. I guess when my red light goes on, it doesn't affect you. You can respond.
Care to comment?
(LAUGHTER)
ALITO: I do, Senator.
I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."
That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
SPECTER: My red light went on.
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