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Date: January 11, 2006

Senator: Brownback

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 SPECTER: Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman.

Good morning, Judge Alito, Mrs. Alito, family members. Good to have you here.

I've got a number of areas I'd like to ask you questions about, and I'm hopeful we can get through them and maybe reduce the need of time in the second round, which would probably be pleasing to your ears.

I want to first go at this area, because it seems to keep coming up, that I think is really not applicable and not reflective of your record, that you always take the side of the big institution and against the little guys, as you just stated.

And then, I want to get into a number of areas of constitutional law, some of which that you have written on, religious freedom-type cases, takings cases. I'd like to get into some of these areas.

But I want to enter into the record, Mr. Chairman, a letter from a former law clerk of yours, David Walk, dated January 6, 2006. David worked with you in the New Jersey U.S. Attorney's Office. I don't know if you remember David or not.

ALITO: I do. He was a fine attorney.

SPECTER: Without objection, it will be made a part of the record.

BROWNBACK: As a lifelong Democrat, former member of the ACLU, and it talks about how fair you were to everybody's rights.

But then he cites the case of Franklin Igbonwa. This was a Nigerian set to be deported for drug dealing who had testified against other Nigerian drug dealers and was fearful of being deported; that he would be killed once back in Nigeria.

The other two judges said his case -- he shouldn't be believed on the face of it. You said he should and that the trial court should have given more deference to this Nigerian to be deported. This was somebody that David Walk represented.

Talk about a little guy and a case, and that's one that is cited in this particular record and letter that I would hope my colleague from Illinois could take a chance at, because it's a legitimate point of view saying, "Well, it looks like you always take one side or the other." Here's where another side was taken.

And then here's a letter from another individual, worked with you, Cathy Fleming, lifelong Democrat, president-elect National Women's Bar Association; gives an unqualified endorsement of you.

And she says, "But by providing my credentials as an outspoken woman's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court."

I think one can, kind of, look in the past and try to say, "Well, OK, there's this problem, there's that." But then, when people that know you well put their names to letters saying differently, I think that's also something we should consider.

And I'd ask that that letter be put into the record as well.

SPECTER: Without objection, it will be made a part of the record.

BROWNBACK: Thank you.

Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.

BROWNBACK: That would be correct. And the answer, when the court gets things wrong, is to overturn the case.

Is that -- that's the way it works, isn't that correct?

ALITO: Well, when the court gets something wrong, and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it...

BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?

ALITO: Plessy was certainly wrong.

BROWNBACK: OK. I mean, and you have gone through this.

Brown v. Board of Education, which is in my hometown of Topeka, Kansas -- I was there last year at the dedication of the school house, 50 years ago -- that overturned Plessy.

Plessy had stood on the books since 1896. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time.

You've got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You've got these number of cases that considered Plessy and upheld Plessy to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that's just not right.

Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?

ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it.

BROWNBACK: But obviously...

ALITO: Doctrine that would consider.

BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?

ALITO: Certainly.

BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.

BROWNBACK: Is that correct?

ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.

One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.

BROWNBACK: They don't.

ALITO: I think they should have recognized that.

But one of the things that was illustrated in those cases -- and Sweatt v. Painter, the last one on the list, brought that out -- was that, in fact, the facilities, the supposedly equal facilities, were never equal.

And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated -- if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.

And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.

BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases.

BROWNBACK: I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong.

The 1927 case of Buck v. Bell; I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.

Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state's interest to have her sterilized.

Majority opinion written by Justice Oliver Wendell Holmes said, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents."

Clearly, some precedents are undeserving of respect because they're repugnant to the Constitution. Isn't Plessy repugnant to the Constitution?

ALITO: It certainly was repugnant to the equal protection clause.

BROWNBACK: And the vision of human dignity.

Isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?

ALITO: I think they are repugnant to the traditions of our country. I don't think there's any question about that.

BROWNBACK: Give you another case, the Korematsu case versus the United States, 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese-Americans, both naturalized and those born in the United States, might not be loyal to the United States; should be removed from the West Coast.

BROWNBACK: So great was the fear that even the esteemed writer, Walter Lippmann stated that, quote, "Nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights."

President Roosevelt signed an executive order removing them. Korematsu contested the constitutionality -- Fred Korematsu did -- of his internment.

In Korematsu v. the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution.

Of course, that was later overturned. Excuse me: That was never overturned. In 1948, Congress enacted the Japanese American Evacuation Claims Act to provide some monetary compensation. In 1980, Congress again revisited the case.

In 1988, Congress passed legislation apologizing for the internment; awarded each survivor $20,000. In 1999, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor that anyone can receive.

Justice has not been done because Korematsu remains on the books. It's still on the books.

Roe v. Wade: you have had every question on that. But I want to point out its difficulty. My colleagues on the other side look at this as completely settled law, but let's see what the legal experts say about how settled it is.

Lawrence Tribe, who will be here to testify, I believe probably against you, in a little bit. Let's see what he says, professor of law at Harvard.

Quote, "One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."

BROWNBACK: Settled law? Super-duper precedents? Lawrence Tribe asked some questions about it.

Justice Ruth Bader Ginsburg: "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."

"Provoked, not resolved, conflict" one of your potential colleagues says.

Edward Lazarus, former clerk to Chief Justice Harry Blackmun, who wrote Roe: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather."

Settled law? Edward Lazarus has some questions about it being settled.

Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country -- one of the top law schools in the country.

Roe v. Wade, quote, "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this superprotected right is not inferred from the language of the Constitution framers' thinking respecting the specific problem at issue, any general value derivable from the provisions they included or the nation's governmental structure."

John Hart Ely -- think he thinks Roe is settled law? Not constitutional and gives no sense of an obligation to try to be.

Alan Dershowitz, professor of law, Harvard Law School, one of the top law schools in the country. It's not Princeton, but -- Roe v. Wade and Bush v. Gore, quote, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political process.

"Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case."

BROWNBACK: Settled law, super-duper precedents? I think there's places where the court gets it wrong, and hopefully they will continue to be willing to revisit it.

Now I want to look at a couple of areas of law in addition to this. Your view of the Constitution -- and we had -- yesterday, you hit at this, I thought, on some of the edges, but I just want to get your thoughts on how you view the Constitution, how you would review it.

There are these different schools of thought on this: strict constructionists, living document, originalists, and there are several others that float around out there. How do you generally look at the Constitution?

And I'm aware yesterday you were saying that some provisions are very clear and some are not, and you seemed to apply a different set of viewpoints on those of the Constitution.

Could you articulate your view of how you look and interpret the Constitution?

ALITO: First of all, Senator, I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean.

It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution.

In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.

But I think we have to recognize that the Constitution is very different from statutes in some important respects.

Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.

The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.

And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.

ALITO: They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts -- and, of course, the legislative body can supplement this -- to apply that principle to the new situations that come up.

Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.

BROWNBACK: Let me go to a specific area you have written quite a bit about, and that's on religious liberties and free exercise.

And I've looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years.

You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, "OK, if that's not good enough, we'll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we'll add more into that."

And they were again challenged by the ACLU. District court found no constitutional violation.

Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display.

BROWNBACK: On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display.

In your decision, you specifically cited Justice O'Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion.

Because Justice O'Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that Case. That's a correct interpretation; is that correct?

ALITO: Yes, it is, Senator.

BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel -- generally -- constitutionally permissible?

ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the court has addressed under the establishment clause, it has drawn some fairly fine lines.

The first case involving a display of this nature was the Pawtucket, Rhode Island, display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation.

BROWNBACK: I want to jump in here, because I've several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square.

ALITO: Well, that was exactly what Jersey City had decided in that case. And Jersey City said: We are one of the most religiously diverse, ethnically diverse, racially diverse communities you will find anywhere in the country. This is right across the New York harbor from the Statue of Liberty and from Ellis Island and it's still an entry point for a lot of people coming into the country.

And so they have -- over the course of the year at the appropriate time they had a Christmas display, they had a display of a Menorah. On that particular year, Hanukkah was early in the month of December, so the Menorah was up at a different point. They had celebrations for Muslim festivals, for Hindu festivals, for Buddhist festivals, for Latino festivals, for festivals concerning the many ethnic groups in the community.

And their view was that this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them. And this display, they said, reflected that philosophy and, applying the precedents that the Supreme Court had provided in this area, the Pawtucket case.

And in a later case involving a display in Pittsburgh, Judge Rendell and I, who were the judges in the majority on that case, said this is constitutional; this is consistent with the establishment clause.

BROWNBACK: And that's what -- as we've had this 40 years of cases, I really hope we can have a public square that celebrates and not that's got to be completely naked to those views (ph). And I appreciate that.

You wrote in a free exercise case, C.H. v. Olivia. You heard a case in which a child sued through his parents for violation of his free speech and free exercise rights when his school removed and repositioned a poster he had made of a religious figure that was important to him. It was a picture of Jesus. The poster was part of an assignment where students were instructed to show something for which they were thankful.

The district court granted judgment in the pleadings in favor of the defendant, the school district. The 3rd Circuit affirmed.

You dissented in that opinion. Can you elaborate on your reasoning in that particular opinion? Do you remember the case?

ALITO: Yes, Senator, I do.

Justice O'Connor pointed out something that's very critical in this area. She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can't be discriminated against. It has to be treated equally with secular speech.

And in this case, this involved a student who -- and there were two incidents. One involved reading. The students in the class were told that if they could read at a certain level, their reward would be to be able to read their favorite story to the class.

And this student satisfied those requirements. And the student wanted to read a very simplified version of the story of Jacob and Esau to the class. And the teacher said, "No, you can't read that to the class. You can read that privately to me off in a corner."

And then Thanksgiving was coming along and the students were told, "Draw a picture of something that you are thankful for."

And I guess the teacher expected they were going to draw pictures of football games and turkeys and things like that, but this student drew a picture of Jesus and said, "That's what I am thankful for."

And the teacher put all the other pictures up in the hall, but would not put this student's picture up in the hall because of its religious content.

ALITO: And that, we found, was a violation of this principle that you have to treat religious speech equally with secular speech.

If you ask a student to say something about a topic -- "What are you thankful for?" -- and the student and the student says something that fits within the topic that the student was asked to talk about, then you can't discriminate against one kind of speech or another.

BROWNBACK: I thought it was a very interesting stance, and I think appropriate that you took, and in one of the obviously very active areas of the law that we have.

I want to look at the issue of checks and balances on the federal court. It's a very active area here in Congress, as a lot of people across the country and certainly members of Congress have grown to feeling that we can do whatever we want to here, but wait until the court decides -- the court has moved beyond judicial restraint.

I asked this of John Roberts, and I asked -- the checks and balances on Congress are obvious. The president can veto a bill. A court can declare something unconstitutional. Checks and balances executive branch are clear. They can be challenged, their actions in the court. Court can say the president can't do that; we cannot appropriate money from here. We've got checks and balances in government. Any high school government student would know that.

Checks and balances on the court: When I talked to John Roberts about this, he said basically the only check and balance is judicial restraint. It's what the court restrains itself in. And yet you have within the constitution a provision that is there that I asked him about, that I want to ask you about.

Article III, Section 2 goes, "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact" -- then it goes on with this interesting exceptions clause -- "with such exceptions and under such regulations as the Congress shall make." The last phrase known as the exceptions clause.

BROWNBACK: What do you believe is Congress' power to define the jurisdiction of the Supreme Court under the exceptions clause?

ALITO: Well, the exceptions clause, obviously, gives Congress the authority to define the appellate jurisdiction of the Supreme Court, and it can provide for various avenues by which cases get to the Supreme Court. And that has changed over the years.

There's been a controversy never resolved about the exact scope of the authority. It came up in Ex Parte McCardle, in the post-Civil War era. And it has been discussed by scholars in subsequent years, and there are several schools of thought on the question about whether it would be consistent with the Constitution for Congress to eliminate jurisdiction in the Supreme Court over a particular type of case.

That's an unresolved issue that the scholars have addressed. And some argue that that falls within the exceptions clause and some argue that it would be inconsistent with other provisions of the Constitution.

BROWNBACK: What I see taking place in this country is the court gets more and more involved in tough political issues, as you're going to be pressing other bodies, then, to say: Look we believe these decisions should be here. We believe the issues on the competing interests in abortion, the mother and the child, should be decided by legislative bodies.

BROWNBACK: But the court said no.

The issue of marriage is coming through the court system right now. As the court keeps getting involved in these areas, I think you're going to see these sorts of constitutional issues being explored more and more.

The marriage case I want to take you to, because that's making its way through the federal court -- 45 of our 50 states have deemed marriage being between the union of a man and a woman.

The state of Nebraska passes a state constitutional amendment, 70 percent of the people voting for it, saying that marriage is a union of a man and a woman. Yet a federal judge, in that case, threw out the state constitutional amendment on novel constitutional grounds, and it's now making its way up through the system.

The Congress has passed the Defense of Marriage Act, DOMA, passed overwhelmingly, signed into law by President Clinton. It basically did two things. First, it establishes for purposes of federal law, marriage would be defined as a union of a man and woman. And second it provided that no state would be forced to recognize a marriage entered into in another state.

A number of legal scholars believe this second part violates the full faith and credit clause of the Constitution.

Judge Alito, this case is coming forward and will probably be resolved in the federal courts, if it isn't resolved by the Congress through a constitutional amendment. What is your understanding of the meaning of the full faith and credit clause, and does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states?

ALITO: Well, several constitutional doctrines seem to be implicated by the matters that you have discussed.

ALITO: The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state, and it's an important part of the process. It is an important part of the federal system, so that we don't have warring decisions in different states.

I have not had cases involving this, but there are -- the doctrine has certain boundaries to it. There are exceptions and it covers certain areas and doesn't cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine. And I believe that scholars have expressed differing views about how it would apply in that situation. And that's an issue that may well come up within the federal courts, almost certain to do so.

BROWNBACK: And I know you can't express on it.

One last thing I'd like to get into just very briefly is the takings clause in the Kelo case -- it was in a neighboring circuit to yours, Kelo v. City of New London, where private property was taken by another private group -- private property was taken by a public group and given to another private group.

BROWNBACK: Judge O'Connor wrote eloquently in her dissent: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton or any home with a shopping mall or any farm with a factory now."

I just conclude by putting that in front of you, saying that this is one that people have relied upon for a long time: You couldn't take private property to another private individual; it's for public use. And I hope that's one that the court will end up reviewing at some point in time.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Brownback.

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