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Date: January 11, 2006

Senator: Coburn

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 SPECTER: Senator Coburn?

COBURN: Thank you, Mr. Chairman.

Good morning. Long day.

I'd like to put a few things into the record, if I may. One is just a list of cases where Judge Alito ruled for the little guy. There's been a lot made, and here's a list of nine cases with specifics where he, in fact -- one of these I think he mentioned, but the others, and I would like unanimous consent.

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

COBURN: Actually, there's 13 cases.

And I also want to go back and quote from somebody who was a member of CAP, and this is Judge Napolitano. He's a commentator on one of the news shows.

And I'd like his statements put into the record from yesterday, where he clarified what CAP was about and clarified the interest of ROTC at Princeton, and the fact that that was one of the leading reasons that that organization was formed. So I'd like for those to be admitted as well.

As you know, I am not an attorney.

COBURN: Sometimes it's very disadvantageous on this panel, but at times it's advantageous.

So I have this little thing that I have to depend on, and I, kind of, read it for what it says. And as you talk about stare decisis, is that mentioned anywhere in here?

ALITO: It is not expressly mentioned in the Constitution.

COBURN: It's actually a procedure of common English law, correct?

ALITO: That's its origin, yes.

COBURN: That's its origin, and we use that as a tool for working with the Constitution.

Can you recall the number of times that precedents have been reversed by the Supreme Court?

ALITO: I don't know the exact figure, Senator.

COBURN: I think it's around 170-some times, affecting some 225 cases, I believe. That's close. That may not be exactly accurate.

So, in fact, it's a tool used to help us with the law, but our founders didn't say, "You have to use stare decisis in this," did they?

ALITO: No, they didn't.

They conferred the judicial power on the judiciary, and I think that contemplated that the federal judiciary would be permitted to proceed in accordance with fundamental judicial procedures as they had been known...

COBURN: At the time.

ALITO: ... at the time.

COBURN: And Article III, Section 2 really delineates the scope for the courts in this country.

And what it says is "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority." So that really gives us the scope under Article III, Section 2.

And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.

COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says.

And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, "Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law."

So the question I have for you, and I couldn't get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don't think it is proper for the Supreme Court to use foreign law.

And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice.

And I just wondered if you had any comments on that comment.

ALITO: Well, I don't think that we should look to foreign law to interpret our own Constitution.

I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution.

I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.

ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time.

They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law.

I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues.

When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you'd have to understand the jurisdiction and the authority of the foreign courts.

And then sometimes it's misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it's located. If you focus too narrowly on that, you may distort the big picture.

So for all those reasons, I just don't think that's a useful thing to do.

COBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don't get to pick and choose that law. People from a different country. So it actually is a violation of the Constitution. And, to me, I very strongly and adamantly feel that it violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position.

I'm sorry Senator Durbin left. I wanted to razz him a little bit. You've taken quite a bit of criticism on things that you've written and said in 1985.

COBURN: But I want to put forward, for 45 years, Senator Durbin was adamantly pro-life and he wrote multiple, multiple letters expressing that up until 1989. He is a very strong advocate for the abortion stance and a free right to choose. But I think it's important that the American people -- that if he has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put.

And so this is just Senator Durbin. I'm teasing him a little bit. But I think it's important that people recognize people can change their mind.

I continue to believe the Supreme Court's decision in Roe v. Wade should be reversed. There are other members on the other that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position.

So it's hard to be critical of you on something in 1985, have written something, when many of us have backtracked on things that we've said through the years.

And so I think it puts a little bit of perspective into where we're going.

I want to spend just a minute, if I can. Yesterday, during Senator Feinstein's questioning, there was some discussion about the health exception to any regulations pertaining to abortion.

On January 22nd, when Roe was decided, court also decided Doe v. Bolton. In that case, the court ruled that a woman's right to abortion could not be limited by the state if abortion was sought for reasons of maternal health.

COBURN: And, as a practicing physician, I agree with that. I've actually performed abortions on women who were going to die if they did not have an abortion. So the choice was somebody alive versus losing both.

The court defined health as all factors physical, emotion, psychological, familial and the woman's age, relevant to the well- being of the patient. This exception effectively expanded the right to abortion for any reason through all the entire pregnancy.

Since that time, states have been trying to find ways to effectively regulate abortion without intruding on this health exception, but it has proven nearly impossible.

The absence of knowledge is something that Roe v. Wade, which I believe was wrongly decided, has hurt us immensely in this country. And the absence of informed consent on abortion has hurt us immensely.

And Mr. Chairman, I would like to enter into the record a study published -- a 35-year longitudinal study which was just released this January from New Zealand. It followed women, 600 women for 35 years, from the time of abortion, that studied ill health effects.

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

COBURN: I would also like to enter into the record a Breast Cancer Institute study, an analysis of a Lancet 3/25/04 article, and also the testimony of Dr. Elizabeth Shadigian, University of Michigan clinical associate professor, Department of Obstetrics and Gynecology as to complications.

SPECTER: All of those documents, without objection, will be made a part of the record.

COBURN: It's amazing what we don't know. And, as I explained in my opening statement, once we go down a path, the complications associated -- the rulings that you make have major impact.

I understand the questions that you cannot answer on things that are going to come before us. And I can't pretend to know what is in your heart about those issues.

But what I do know is you were pretty aggressively approached on positions in terms of Justice O'Connor and executive power.

And there seemed to be a blinding contradiction during some of your questions that were presented by my colleagues yesterday; they raised concerns that you're too close to the executive and too supportive of the executive power. They wanted to be sure that you respect the role of the judiciary and are free from the influences of the political branches.

However, they then argued that you should have the same ideology as Justice O'Connor to maintain the balance on the court.

I have trouble figuring out how they can have it both ways. That's an inherently political desire.

Is there anything in the Constitution, this little document, that says what the ideology ought to be of one Supreme Court justice replacing another one?

ALITO: The Supreme Court simply gives the president the authority to nominate justices of the Supreme Court and other federal judges and gives Congress the advice and consent responsibility and doesn't go further than that.

COBURN: And the president, by being elected -- the only person in this country that's elected by the whole country -- is given that honor and privilege as well as that responsibility. And then we have the responsibility to advise and consent to that. Is that correct?

ALITO: That's correct.

COBURN: But nowhere in the Constitution, nor by precedent -- as a matter of fact, the precedent's just exactly the opposite of that -- is it stated that somebody has to have the same philosophy as somebody that's coming off the court.

ALITO: I think that every Supreme Court justice is an individual, and I think every nominee is an individual, and no nominee can ever be a duplicate of someone who retires, and particularly when someone retires after such a distinguished career and such a historic career as Justice O'Connor. Nobody can be expected, as a nominee, to fit that mold.

COBURN: So the fact that you have to fit Sandra Day O'Connor mold is really a misapplication. There is no precedent that would say that?

ALITO: If I'm confirmed I'll be myself. I'll be the same person that I was on the Court of Appeals. That's the only thing that I can say in answer to that.

COBURN: Let me repeat some facts that one of my colleagues mentioned yesterday.

Of the 109 justices to sit on the Supreme Court, nearly half had replaced justices appointed by another political party.

President Clinton replaced Justice White, who dissented on Roe v. Wade, with Justice Ginsburg, who argued for a right to abortion. Justice Ginsburg was -- I think, three votes against her in the Senate when she was approached, and she took it completely opposite. But she was well qualified. She had integrity. And she was voted on to the court, even though many people knew that her philosophy was very different than theirs. Isn't that true?

ALITO: The vote was 90-something to a small number; I know that, yes.

COBURN: A lot of times in these hearings you don't get a chance to say why would you want to be a justice of the Supreme Court of the United States?

COBURN: Why would you want that responsibility? Why do you want to go through this process to be able to achieve that position? Can you tell the American people why?

ALITO: I think it's a chance to make a contribution. I think it's a chance to use whatever talent I have in the most productive way that I can think of.

There are a lot of things that I can't do and there are a lot of things that I couldn't do very well if I was given the assignment of doing them.

But I've spent most of my career as an appellate attorney. Well, I spent most of my career before becoming a judge as an appellate attorney. And now I've spent 15 years as an appellate judge. And I think this is what I do best.

And I think this gives me an opportunity to make a contribution to the country and to the society. Because the Supreme Court has a very important role to play, and it's important that it do the things that it's supposed to do well. And I would do my very best to further that.

And it is also important for the Supreme Court, and, for that matter, all of the federal courts, to exercise restraint. And as you were referring to earlier, that has turned out to be the principal check on the way the judiciary does its work on a day-to-day basis. The judiciary is not checked in its day-to-day work in the same way as the Congress and president.

ALITO: The Congress can pass a law -- can pass a bill -- and the president can veto it. One house can pass a bill; the other house may not go along. The president has to propose legislation to Congress if the president wants legislation. Congress can pass laws that the president doesn't like.

There are checks and balances that are worked out in the ordinary processes of government. But when it comes to the judiciary, in deciding constitutional cases, the judiciary is checked on a daily basis primarily by its own discipline, its own self-restraint.

And so it's important for -- the judiciary has these twin responsibilities that are in tension at times, doing what it is supposed to do and doing those things well and vigorously and courageously, if it comes to that, but at the same time, constantly monitoring its own activities and asking, "Are we doing what we are supposed to be doing as judges? Are we functioning as judges? Or are we stepping over the line? Are we turning ourselves into legislators? Are we turning ourselves into members of the executive branch or administrators?"

And the judiciary has to maintain its independence. That's of critical importance. That's an important part of the role. And that also has to be informed by this sense of self-restraint.

COBURN: Thank you.

During Judge Roberts' hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart.

This booklet's designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law.

You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.

Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.

ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.

And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.

But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.

And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.

But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.

So those are some of the experiences that have shaped me as a person.

COBURN: Thank you.

Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.

SPECTER: Thank you very much, Senator Coburn.

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