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Date: January 11, 2006

Senator: Durbin

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 SPECTER: The Judiciary Committee will now proceed with the confirmation hearing for Judge Alito for the Supreme Court of the United States.

Welcome back, Judge Alito.

We have three members who have not had their first round of questioning, 30 minutes. We will proceed there. And then we will have a second round of questioning for 20 minutes each.

I expect we'll need to work a long day today. It's my hope that we might finish the questioning of Judge Alito. That might be overly optimistic. We will see how things go.

Senator Durbin, you're recognized for 30 minutes.

DURBIN: Thank you very much, Mr. Chairman.

LEAHY: Before we start the clock on Senator Durbin, if I might -- some questions.

One, I admire the stamina of both the nominee and his family. But a number of us have been troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth: on the issue of one person, one vote; Vanguard recusal; unitary theory of government; CAP; and so on.

I want to clear up in my own mind and the mind of many over here what we see as inconsistencies. I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more.

SPECTER: Well, thank you, Senator Leahy.

SPECTER: I appreciate the comment.

There are many issues. Judge Alito has responded for seven and a half hours so far, and we're going to have another hour and a half on opening statements and then with each senator having 20 minutes on a second round there are six more hours.

So we'll see if he has covered the waterfront. And this will be a full and fair hearing. We will give every opportunity to ask the questions.

LEAHY: Mr. Chairman, with you as chairman, I know it will be a full and fair hearing. And that's one thing that every single Democrat on this side is aware of.

SPECTER: Well, I think that's very important for the nominee, for the committee and for the country. And we will do that.

The adjunct to full, fair is dignified, and I think so far we're on track.

OK, Senator Durbin, keep us on track.

Senator Durbin's recognized for -- we'll restart the clock at 30 minutes.

DURBIN: Thank you, very much, Mr. Chairman.

Judge Alito, thank you for coming for the second day and not quite the end of the first round. I thank your family for their patience, listening to all of our questions. And I hope at the end of the day, we'll feel that we've really added something to the process of choosing a person to serve in a lifetime appointment to the highest court in our land.

I listened to you carefully yesterday address an issue which is very important to me, the Griswold case, because I think that it's a starting point for me when it comes to appointments to the Supreme Court.

DURBIN: If I had any doubt in my mind that a Supreme Court nominee recognized the basic right of privacy of American citizens, as articulated in Griswold, I couldn't support the nominee.

And I listened as you explained that you supported that right of privacy and that you found the Griswold decision grounded in the Fifth Amendment as well as the 11th Amendment. I'd ask you, at this point, you obviously support Brown v. Board of Education -- do you, and the finding of the court?

ALITO: Certainly, Senator.

DURBIN: And do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?

ALITO: Absolutely, Senator. That was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done.

DURBIN: And as you read that Supreme Court decision, that historic decision, they find the basis for that decision the equal protection clause of our Constitution.

ALITO: Yes, they did. That was I think -- of course, we fought a Civil War to get the 14th Amendment and to adopt the constitutional principle of equality for people of all races.

DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.

And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated.

I raise that because I listened carefully as Senator Schumer asked you yesterday about Roe v. Wade.

DURBIN: And I couldn't understand your conclusion.

You conceded the fact that we have free speech because it's explicit in our Constitution, protected constitutional right. And yet, when Senator Schumer asked you repeatedly, "Do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision?," you wouldn't answer. You wouldn't give a direct answer.

On two Supreme Court cases, Griswold and Brown now, you have said, just right as we started this hearing, that you believe there is a constitutional basis for this protection and for this right. And yet, when it came to Roe v. Wade, you would not.

Most of us are troubled by this 1985 memo. You said yesterday, you would have an open mind when it came to this issue.

I'm sorry to report that your memo seeking a job in the Reagan administration does not evidence an open mind. It evidences a mind that sadly is closed in some areas.

Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they're not my views now.

When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that's not my view now.

And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you've been unwilling to distance yourself and to say that you disagree with that.

DURBIN: I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you're for Griswold, you accept the constitutional basis for Griswold, but you can't bring yourself to say there's a constitutional basis for the right of a woman's privacy when she is deciding -- making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I'm troubled by that.

Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman's right to choose?

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They're not treated the same way -- an African-American is not treated the same way as a black (sic) person when they're treated that way, so they're denied equality.

And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was -- the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

ALITO: But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law.

And that's my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.

It's not likely to come before the 3rd Circuit; it's not likely to come before the Supreme Court. So, I feel an ability to comment -- a greater ability to comment on that than I do on an issue that is involved in litigation.

What I have said about Roe is that if it were -- if the issue were to come before me, if I'm confirmed and I'm on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.

The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General's office. But that was 20 years ago and a great deal has happened in the case law since then.

Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.

If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

DURBIN: Well, this is what troubles me: that you do not see Roe as a natural extension of Griswold; that you do not see the privacy rights of Griswold extended by the decision in Roe; that you decided to create categories of cases that have been decided by the court that you will concede have constitutional protection, but you have left in question the future of Roe v. Wade.

DURBIN: Yesterday, Senator Specter asked you, as he asked John Roberts before you, a series of questions about whether or not you accept the concept that this is somehow a precedent, that we can rely on; that is embedded in our experience; that if it were changed, it would call into question the legitimacy of the court.

And time and time again, he brought you to the edge, hoping that you would agree. And rarely, if ever, did you acknowledge that you would agree.

You made a most general statement that you believed reliance was part of stare decisis.

But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

ALITO: And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.

And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.

So it's an issue that is involved in a considerable amount of litigation that is going on.

DURBIN: I would say, Judge Alito, that is a painful issue for most of us. It is a difficult issue for most of us. The act of abortion itself is many times a hard decision, a sad decision, a tragic decision.

I believe that, for 30 years, we have tried to strike a balance in this country to say it is a legal procedure but it should be discouraged, it should be legal but rare, and try to find ways to reduce the incidence of abortion.

But as I listen to the way that you've answered this question this morning and yesterday, and the fact that you have refused to refute that statement in the 1985 job application, I'm concerned.

DURBIN: I'm concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them.

That is very troubling, particularly -- and because you have stated that you are committed to this right of privacy.

If I could move to another issue that came up yesterday, I didn't understand your answer to one question, and I want to clarify it: this so-called Concerned Alumni of Princeton. You noted in your application for a job with the Department of Justice you belonged to two organizations: the Federalist Society and the Concerned Alumni of Princeton.

I won't get into the Federalist Society because every time I say those words, they go into a rage that I'm somehow guilty of McCarthy- like tactics, asking, "Who are these people in the Federalist Society?" I won't touch it.

Let me just go to the Concerned Alumni of Princeton. I didn't understand your answer.

Your answer said something about ROTC being discontinued at Princeton University. I know you were involved in ROTC. I'm told that by the time you filled out this application ROTC had been restored.

I don't believe you were suggesting that bringing more women and minorities to Princeton would somehow jeopardize the future of ROTC. I don't know that that's the case. But there is a woman named Diane Weeks who was a colleague of yours in the New Jersey U.S. Attorney's Office. And she said that she was troubled by your membership in this group.

She said you had a first-rate legal mind, but here's what she went on to say: "When I saw Concerned Alumni of Princeton on that 1985 job application, I was flabbergasted," she said.

DURBIN: "I was totally stunned. I couldn't believe it. CAP made it clear to women like me we were not wanted on campus. And he is touting his membership in this group in 1985, 13 years after he graduated? He's not a young man at this point," she said. "And I don't buy for a second that he was doing it just to get a job.

"Membership in CAP gives a good sense of what someone's personal beliefs are. I'm very troubled by this and if I were in the Senate, I would want some answers. I don't think explaining discontinuing ROTC at Princeton is an answer."

What is your answer? Why did you include this controversial organization as one of your qualifications for being part of the Reagan administration?

As you said, with your background, with your immigrant background and the fact that Princeton had just started allowing people of your background as students, how could you identify with a group that would discriminate against women and minorities?

ALITO: Well, Diane Weeks was an assistant U.S. attorney in the U.S. Attorney's Office in New Jersey and somebody that I hired, and one of many women whom I hired when I was U.S. attorney. And I think that illustrates my attitude toward equality for women.

I've said what I can say about what I can recall about this group, Senator, which is virtually nothing.

I put it down on the '85 form as a group in which I was a member. I didn't say I was anything more than a member. And since I put it down, I'm sure that I was a member at the time.

But I'm also sure -- and I have wracked my memory on this, that if I had participated in the group in any active way, if I had attended meetings or done anything else substantial in connection with this group, I would remember it.

And if I had repeated -- if I had renewed my membership, for example, over a period of years, I'm sure I would remember that.

ALITO: So that's the best I can reconstruct as to what happened with this group.

I mentioned in wracking my memory about this, I said, "What would it have been, what could it have been about the administration of Princeton that would have caused me to sign up to be a member of this group around the time of this application?" And I don't have a specific recollection, but I do know that the issue of ROTC has bothered me for a long period of time. The expulsion during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.

DURBIN: Did women and minorities have anything to do with that?

ALITO: No. And I did not join this group, I'm quite confident, because of any attitude toward women or minorities.

What has bothered me about -- what bothered me about the Princeton administration over a period of time was the treatment of ROTC. And after the unit was brought back, I know there's been a continuing controversy over a period of years about whether it would be kept on campus, whether in any way this was demeaning to the university to have an ROTC unit on campus, whether students who were enrolled in ROTC could receive credit for the courses, whether the ROTC instructors could be considered in any way a part of the faculty.

All of this bothered me, and it is my recollection that it continued over a period of time.

DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?

ALITO: I am to some degree, yes.

DURBIN: I guess most people in New Jersey would be. They should be.

ALITO: There was a movement some time ago -- we don't have an official state song and there was a movement to make "Born to Run" our official state song. But it didn't quite make it.

DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.

They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.

I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.

And the question was raised as to whether he had a fair trial. The people who were arguing in his defense said: When we take a look at the various people who were involved in these jury pools in the murder cases here, we find that the local prosecutors had eliminated all the African-Americans in four murder trials that had taken place during the year that led up to his trial.

And they raised the question, in his case, whether there had been a conscious effort to eliminate African-American jurors in this case involving an African-American defendant.

And you dismissed the statistical evidence of these all-white juries. And you made a statement that said: The significance of an all-white jury was as relevant as the fact that, quote, "five of the past six presidents of the United States have been left-handed," end of quote.

That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.

Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed."

DURBIN: "To suggest any comparability to striking a juror based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."

Why did you use that analogy that apparently is so inappropriate?

ALITO: Well, the analogy went to the issue of statistics and the use and misuse of statistics and the fact that statistics can be quite misleading. Statistics are very powerful, but statistics can also be very misleading. And that's what that was referring to. There's a whole -- I mean, statistics is a branch of mathematics, and there are ways to analyze statistics so that you draw sound conclusions from them and avoid erroneous conclusions from them.

Sometimes when you see a pattern it's the result of a cause, and sometimes when you see something that looks like it might be a pattern it's the result of chance.

Riley was a very, very difficult case. And I can tell you I struggled over that case because the issue of racial discrimination in the criminal justice system is an issue of enormous importance.

Obviously, it's very important for the defendant. It's important for the society so that everybody knows that everyone in this country is treated equally regardless of race. And it's important for law enforcement, because I know, from years as a prosecutor, that nothing is a greater poison for law enforcement than even the slightest hint of unfairness.

The issue of racial discrimination in the jury had to be viewed by our court and by me under the habeas corpus statute that Congress passed. And that gave us an important role to play, but a very limited role.

The Pennsylvania -- and what the habeas corpus statute says is that if the state courts have decided a question on the merits and they've applied the correct legal standard, the correct constitutional standard, we can't authorize granting of a writ of habeas corpus unless they were unreasonable.

It's not enough for us to say we don't agree with it. We have to say: You were unreasonable.

Now I think seven members of the Pennsylvania judiciary -- well, I think there were more.

ALITO: There was the judge who heard the state habeas case and the Pennsylvania Supreme Court. And the Pennsylvania Supreme Court, as I recall, was unanimous on the issue that there hadn't been racial discrimination in the selection of the jury in the case.

Then the case came up to us, and the issue was whether the state courts were unreasonable in finding that the particular peremptory challenges at issue in this case were not based on race. And it was a tough question, but I didn't see how we could overturn what they had done under the habeas standard.

DURBIN: I'd like to say, Judge, in many of these tough questions, as I read through cases, you end up ruling in favor of established institutions and against individuals.

Let me tell you another one: Pirolli v. World Flavors. Remember this case?

A mentally retarded individual, Kenneth Pirolli, physically harassed at his workplace; subjected to a hostile, abusive work environment; sexually assaulted by his co-workers. And according to his deposition testimony, he said they attempted to rape him.

I could read to you what's in that record here, but it is so graphic and it tells in such detail the sexual assault that he was subjected to that I'm not going to read it into the record, but I bet you remember it.

And when it came to this case as to whether or not he should have a trial, as to whether he was entitled to bring his case before a jury, you said no. "Stand by the summary judgment. Don't take this to a jury." You dissented from the majority position here.

And the reason you dissented was, I think, significant.

DURBIN: It wasn't about Kenneth Pirolli or the merits of his case; it was about the conduct and efforts of his lawyer.

You noted the fact that his lawyer had not adequately provided citations in his brief to places in the record describing the harassment. So you held Kenneth Pirolli responsible for the fact that his lawyer didn't do a good job and denied him -- at least in your view -- denied him his day in court.

How do you explain that crushing hand of fate on this man who was a victim of sexual harassment?

ALITO: Well, Senator, the district court thought that the defendant in that case was entitled to summary judgment. And so I think that says something about the facts of the case and whether it was a particularly strong case.

There's a very important principle involved in the appellate practice, and I think it goes with the idea of judicial self- restraint. It is that certain things are to be decided at certain levels in the court system.

And that requires that parties raise issues in the trial court. And that if they do not raise the issue in the trial court, then, absent some extraordinary circumstances, they shouldn't be able to raise the issue on appeal. And that was the principle there.

Now, this was not a criminal case. In a criminal case, there's a constitutional right to counsel and so a person can claim ineffective assistance of counsel. And we treat that issue differently in criminal cases than we do in civil cases.

DURBIN; I would just say that you're arguing on the merits of the district court decision. Your statement in dissent criticized his lawyer for the brief that they presented to your court.

DURBIN: That seems to me to be an unfair treatment of a man who I think deserved a day in court.

Let me ask you about another group looking for a day in court: the RNS Services v. the Secretary of Labor case that I referred to in my opening statement. It's a timely case. It's about mine safety. We know what happened in West Virginia a few days ago and yesterday in the state of the Kentucky, where there are serious questions being raised about whether there's adequate mine safety.

And in this case, there was a question as to whether or not the federal and state mine safety provisions applied to a company in a certain activity.

And you concluded they did not apply. You concluded that you would narrowly construe the statute passed by Congress, and in construing it that way, that the requirements of inspecting this mine location, this treatment of coal, would not be subject to federal and state inspection.

Again, when you dissented, and when given the chance, you ruled on the side of the company, on the side of the established institution, against the coal miners and against the workers in this circumstance.

It's a recurring pattern. The crushing hand of fate here seems to always come down against the workers and the consumers and in favor of these established institutions and corporations.

How would you explain the fact that you would so narrowly construe a statute when you knew that the lives and safety of coal miners were at stake?

ALITO: And the facility that was involved in that case was not a mine as a layperson would think of a mine.

ALITO: It wasn't an underground facility. It wasn't like the facility in West Virginia, where the terrible accident occurred a few days ago. It was basically a pile of coal that was being loaded onto trucks to be transported to another place.

The definition of a mine under the federal law is very broad, and it's not limited to what ordinary people would think of as a mine. And there was an argument that this facility -- which, as I said, as I recall, was basically a big pile of coal on top of the ground, and the coal was being hauled away to a cogeneration facility -- is that a mine? An ordinary person would look at that and say: That's not a mine; that's a pile of coal.

But the issue in the case was the kind of technical issue of interpretation that we get all the time, and the question was: Is this a mine in the sense of the law? And I thought it was not a mine in the sense of the law.

Now, that conclusion, I don't believe, would mean that this facility would be spared safety regulation at either the federal or local level.

It's been a long time since I worked on that case, but I would imagine that if the facility is not governed by the federal mining laws, it would be covered by OSHA, by the Occupational Safety and Health Administration and perhaps by state law.

So the issue would not be whether this facility would be allowed -- which was not a mine in the ordinary sense -- would be allowed to operate in an unsafe fashion. It was: Which body of laws and regulations would govern the facility?

DURBIN: Judge, I would say that your opinion did not prevail.

Two other judges, both Reagan appointees, who saw this case on the side of the workers, understood that the wording of the law is as follows: Congress declares the first priority and concern of all in the coal or other mining industry must be the safety and health of its most precious resource, the miner.

And instead of taking the obvious interpretation that these were people working in the mining industry, even if they were outside of the underground mine and the danger that it presents, you drew this statute as narrowly as you could, construed it as narrowly as you could, to take the company position here that these federal and state. In this case, the Federal Mine Safety Administration did not have jurisdiction.

I find this as a recurring pattern, and it raises the question in my mind whether the average person, the dispossessed person, the poor person who finally has their day in court, and may make it all the way through the process to the Supreme Court, are going to be subject to the crushing hand of fate when it comes to your decisions.

They have been many times at the 3rd Circuit, and that is a concern which I will continue when we have further questions in the next round.

Thank you, Mr. Chairman.

SPECTER: Do you care to respond, Judge Alito?

ALITO: Yes. Could I just say a couple of words? That case was a case of statutory interpretation and applying the statute. And that's how I thought it came out.

There have been many other cases that I have worked on on the court of appeals where I have come out in favor of the small person, who was challenging a big institution.

ALITO: And I could mention a number of them. Let me just mention Shore Regional High School, because I think because I think it has some relation to the Pirolli case, which you mentioned.

This was a case in which a high school student had been bullied unmercifully by other students in his school because of their perception of his sexual orientation; been bullied to the point of attempting to commit suicide. And his parents wanted to enroll him at an adjacent public high school. And the school board said, "No, you can't do that."

And I wrote an opinion upholding their right to have him placed in a safe school in an adjacent municipality.

And that's just one example. But all of these cases involve what judges are supposed to do, which is to take the law and apply it to the particular facts of the case that is before them.

SPECTER: Thank you very much, Judge Alito.

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