Date: January 11, 2006
Senator: Cornyn
Topic:
Contents
SPECTER: Senator Cornyn?
CORNYN: Judge Alito, let me tell you how desperate your opponents are to defeat your nomination. Late last Wednesday or excuse me, last Thursday, a name of a witness was listed relative to this whole issue of Concerned Alumni at Princeton that included the name of a man named Steven Dujack. Does that name familiar to you?
ALITO: Not other than from seeing a witness list.
CORNYN: Well, by the end of the day on Friday, his name was gone from the witness list of those witnesses intended to be called by the other party.
As it turned out, it was revealed that in April of 2003 that he had authored an op-ed piece for the Los Angeles Times entitled "Animals Suffer A Perpetual Holocaust." And in that article he wrote this, he said, "like the victims of the Holocaust, animals are rounded up, trucked hundreds of miles to the kill floor and slaughtered.
"Comparisons to the Holocaust are not only appropriate, but inescapable because whether we wish to admit it or not, cows, chickens, pigs and turkeys are capable of feeling loneliness, fear, pain, joy, and affection as we are. To those who defend the modern day Holocaust on animals by saying animals are slaughtered for food to give us sustenance, I ask: If the victims of the Holocaust had been eaten would that justify the abuse and murder?
"Did the fact that lamp shades, soaps and other useful products were made from their bodies excuse the Holocaust? No. Pain is pain."
Judge Alito, I read that to point out to you the desperation of your opponents. This was to be a principal witness who was going to come in and say why your membership in Concerned Alumni of Princeton was a terrible thing. But the fact is, that I think they have stumbled by their overreaching, by demonstrating the desperation that they feel and how few ways they have to criticize your testimony, your career, your integrity and who you are as a person based upon the facts. And I think it speaks volumes.
It's clear to me, at least, that part of the reasons or the rationale given for a no vote against you by some on this committee and perhaps on the floor of the Senate will be that you have not been responsive to questions.
We have a chart here that I think is instructive. This is as of 3 p.m. on day two -- we couldn't get any more current than that. But as this indicates, so far in this hearing, you have answered -- or 441 questions have been asked and 431 have been answered, or 98 percent.
Justice Ginsburg -- and we've heard a lot about her and what she would answer and would not answer, and what her philosophy was, her beliefs, before she was confirmed by the Senate with only three votes. She had 384 questions asked and she answered 307 of those, for an 80 percent answer rate.
You know, listening to the back and forth about whether you've been responsive to questions reminds me of a saying that I heard recently. I can answer the question, but I can't understand it for you.
In other words, I think you've done to the best of your ability and to the limits of your ethical responsibility, tried to be responsive to the questions here.
Obviously, no one can make that decision but the senators who will ultimately vote on that. But certainly the public and the world, people all across this great country, who may be listening to this hearing and will be judging for themselves both the fairness of the proceeding and your responsiveness to the questions, I believe, that they will conclude that not only have you been responsive, but that you have been very forthcoming in answering the questions that have been asked of you, but that like Justice Ginsburg and others before her, you believe that it's important to maintain the independence of the judiciary, that you're not willing to make the judiciary subservient to the Senate or the Congress in order to get a vote for confirmation.
CORNYN: And I applaud you for that.
You know, yesterday I made a mistake. I know Senator Sessions confessed a mistake, and as it turned out I went over and talked to Senator Biden, because I quoted him, and it turned out I didn't quite quote him accurately. But I told him we've corrected the record to make sure it reflected his words, because it's important to me to make sure that we're accurate and we're clear.
But yesterday I made a mistake and referred to you as Judge Scalito, and I was embarrassed by that, and I beg your pardon for that.
And for those who may not be in on the joke, I mean, the idea is the argument by some is somehow you're a clone of Judge Scalia.
Well, I've found for myself everything we've heard, everything I've come to learn about you is that you're a clone of no one, that you're an individual who is particularly gifted and talented and experienced and someone who is, notwithstanding the abuse that you suffer during the confirmation process, willing to offer yourself for public service in a very important role. And that is as a member of the United States Supreme Court.
But yesterday I heard my colleague from New York put up some quotes. Now, it was late in the day. And I think most of the press had gone, and maybe that's a good thing. People had gotten tired, but you had to still sit here and listen to the questions and respond to those.
But he put up a quote, which was relatively innocuous on its face, and it asked about things like: Do you believe that continuity in the law is important? And you said yes. And it seems unarguable to me. But then he said: Well, that was a quote from Clarence Thomas.
CORNYN: And I suppose that was going to attribute to you all of the baggage that those on the left feel that Justice Thomas carries and all of the views that he has espoused and all of his performance on the bench.
Later he asked whether you agreed with another quote -- and here again it was a sort of black letter law, good government quote. And you agreed that, yes, you agreed with that quote. And he said, "Aha! Judge Bork said that" -- meaning somehow that you are carrying whatever baggage people on the left feel that Judge Bork carries and you somehow embrace or subscribe to everything he believes.
I want to give you an opportunity, Judge Alito, to tell us whether you feel like you're a clone of Judge Scalia, Judge Thomas, Judge Bork, or whether you believe that you are your own man, you come to your own conclusions based on careful study and your experience in the law.
Would you comment on that for me, please?
ALITO: Yes, Senator. I am who I am. And I'm my own person. And I'm not like any other justice on the Supreme Court now or anybody else who served on the Supreme Court in the past.
I don't think any jurist is a duplicate of any other jurist.
I think that the committee and anybody who's interested in the sort of judge I am can get a very clear picture of that by looking at my record on the court of appeals. And I've been on the Court of Appeals for 15 years and have sat on over 4,000 cases.
And most of the cases that come to the court of appeals never go any further. We're the last stop in 99 percent of the cases -- probably higher than that. And we know that when we're deciding those cases.
ALITO: And I think, if anybody reads the opinions that I've written and the opinions that I've joined, they can see exactly the sort of jurist that I am.
They will find some opinions, I'm sure, that they will disagree with but, if they look at the whole set of opinions that I've written or joined, they can get a very clear picture of me.
And I'm not like anybody else. I don't claim to have the abilities of some of these distinguished members of the Supreme Court now or in the past. I have whatever abilities that I have. But they are my own.
CORNYN: Let me tell you what Cass Sunstein has said about you. You may be familiar with an op-ed piece that was written in the Akron Beacon Journal on November the 3rd, 2005.
This is -- of course, you know Professor Sunstein from the University of Chicago, a brilliant and liberal legal scholar. But he concludes in this op-ed -- and this is how he describes you based upon his review of your life's work as a judge.
He said, "Alito sits on a liberal court" -- and this is an analysis of your dissents -- "Alito sits on a liberal court, so his dissents can be from relatively liberal rulings. None of Alito's opinions is reckless or irresponsible, or especially far-reaching.
"His disagreement is unfailingly respectful. His dissents are lawyerly, rather than bombastic. He does not berate his colleagues. Alito does not place political ideology at the forefront.
"He doesn't claim an ambitious or controversial theory of interpretation. He avoids abstraction. He has not endorsed the view associated with Justices Antonin Scalia and Clarence Thomas that the Constitution should be interpreted to fit with the original understanding of those who ratified it.
"Several of his opinions insist on careful attention to governing legal texts, but that approach is perfectly legitimate, to say the least."
Judge Alito, I think it's important for people who are listening to understand that you are, indeed, your own man, and that you do the very best job that you can with the skills and the talents God has given you -- and that you're willing to serve.
And we ought to respect and applaud you for that.
And it is really, to me, demeaning to suggest some sort of guilt by association or that you must be a clone of some other judge or someone who outside groups hold up to disrespect and ridicule.
So I hope that, as I say, those listening -- both in the Senate and outside -- will make up their mind about you based upon the evidence that we've heard, and it's available, and not based on those sort of specious comparisons.
CORNYN: Now let me ask, you know, believing as I do that you have been responsive and expecting as I do that those who vote against you will claim that you've been nonresponsive -- notwithstanding the chart I showed you and your willingness to respond to the questions.
You know, Senator Schumer, who's an enormously talented and very bright lawyer in his own right, was pressing you on whether Roe v. Wade is settled.
And, you know, I've really tried to analyze for myself when is it that judges and nominees are willing to go out on a limb, so to speak, and say yes, that's settled law, or to talk more expansively about an issue? And when is it that they feel less comfortable, less free, more constrained by their ethical obligations or their desire to preserve the independence of the judiciary?
And what I've concluded -- and I'd like to get your reaction to this -- is the more settled, to use the word Senator Schumer has, the more accepted in the society and our culture, the more free nominees feel to talk about it.
But the more a nominee feels like this is an issue that not only is going to come back, it's going to come back soon -- as a matter of fact, it may be on the court's docket now -- the less free, the more bound by your ethical obligations you feel, the more you feel it's important to preserve your independence as a judge.
And we've mentioned a couple of them. Brown v. Board of Education, which expresses a commitment to equal justice under the law that all Americans embrace -- virtually speaking. You felt free to express a view on that case, have you not, sir?
ALITO: I have. The line I've tried to draw is whether something realistically could come up in litigation before the Court of Appeals or before the Supreme Court.
CORNYN: Does that mean that you don't expect Brown v. Board of Education to be attacked or someone to come before the court and ask that it be overruled?
ALITO: I don't. There's no realistic possibility of that, so I felt freer to talk about something like that.
CORNYN: But you do believe, and I think with good cause, that there will be continuous attempts to address the abortion issue because of its divisive nature and because Americans are so divided on that issue, or at least some aspect of the issue.
To what extent, for example, can the Congress pass laws which ban the barbaric practice of partial-birth abortion? To what extent can Congress or the states pass laws that provide for minors to seek -- requiring them to provide their parents notice, with an appropriate judicial bypass for those who are abused or neglected or abandoned by their parents?
That is an issue that is at the forefront of America's consciousness, and really, I think, sort of the subtext under which a lot of the wars over judicial nominations are fought.
Would you agree with that more or less?
ALITO: It's an issue that is in litigation now, and I think you can look at the course of litigation over the past 20 years and you can see a number of cases -- and, of course, this has been highlighted -- in which the Supreme Court has been asked to overrule Roe and it has repeatedly refused to do that.
But there's nothing, there's no comparable pattern, for example, with respect to Brown v. Board of Education or one person, one vote.
CORNYN: Well, in the closing two and a half minutes that I have, I mentioned the Cass Sunstein op-ed which, from my reading, even though I'm sure you and Professor Sunstein don't see eye-to-eye on all legal issues, he seems to be highly complimentary of you, is the way interpreted those two paragraphs I read out of the op-ed piece.
Now, a national newspaper, The Washington Post, on January the 1st -- that's The Washington Post, not National Review -- did an analysis of your voting record on the 3rd Circuit. They found that in virtually every type of case, whether labor, employment, you name it, that your record was no different than the average Republican- appointed judge.
And to me that is -- said another way, that means that you're within the conservative mainstream in terms of your judicial philosophy.
Now, I know that you and other legal scholars have some trouble with this approach by political scientists to try to survey your opinions and categorize them and say, well, this is who you are -- because you don't decide cases that way, do you? You decide individual cases based upon the legal arguments, the merits and the facts.
CORNYN: Isn't that correct, sir?
ALITO: That's right.
And it would be a bad thing if judges started keeping these score cards and said, "Oh, I've ruled a certain number of times in favor of one side; when the next case comes up, I better rule on the other side."
That's exactly what we don't want judges to do.
CORNYN: You anticipated my next question and that would be, if somehow it disqualifies you because of how political scientists have somehow ranked your sympathy with certain types of cases, how often you ruled in favor of one type of litigant and another as opposed to an individual case-by-case decision-making process contemplated by the Constitution, I doubt it will be long before prospective nominees to the federal judiciary will be keeping that kind of chart.
And when litigants come into court they're going to be tempted to look at that and say, "Well, I've ruled for too many plaintiffs; I better rule for a defendant this time," or, "I've shown too much sympathy for civil rights plaintiffs; I better rule for the government this time," which would totally skew your responsibility as a federal judge, in my view.
Judge Alito, my time has run out. Thank you for your response to my questions.
ALITO: Thank you, Senator.
SPECTER: Thank you, Senator Cornyn.
We'll take now another break for 15 minutes.
I've had requests from two senators on the Democratic side for a third round. We have three more senators to question on the 20-minute round.
LEAHY: We have several more than the...
SPECTER: Well, Senator Leahy, that's what I'd like to ascertain so that we can figure out the schedule for the balance of the evening. We have one hour more for three senators at 20 minutes.
I want to figure out what we're going to do the rest of the evening. But I want to figure out when we're going to bring on the outside witnesses who...
KENNEDY: Mr. Chairman?
SPECTER: ... are available tomorrow.
So if there are other requests, I'd like to have them.
But now we'll stand in recess until 5:55.
(RECESS)
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