Contents    Prev    Next    Last

Date: January 11, 2006

Senator: Feingold

Topic:

 Contents

 SPECTER: The hearing will resume.

And we now turn to Senator Feingold for 20 minutes.

FEINGOLD: Thank you, Mr. Chairman.

Good afternoon, Judge.

I hope, if nothing else, you associate me with breaks in the proceedings, because it seems to happen every time my questions are up.

Judge, yesterday I asked you about your preparation for these hearings over the past few months with a variety of practice sessions. You confirmed that you had had these sessions and that a great variety of subjects came up in them, and that's fine. I know this is not an easy process, and I would certainly expect you to prepare in this way.

What I want to ask now, though, is simply if you can provide a list of all the people who participated in any of those practice sessions? And I would request that the folks here sitting behind you and back at the Department of Justice help you put that list together this evening and get it to us tomorrow morning so that we have time to ask about it during tomorrow's session, if necessary.

Can you do that for me judge?

ALITO: I certainly have no objection to that.

FEINGOLD: Thank you very much.

Now, I want to get into a subject that really requires some attention here and hasn't had much attention, given the important role it plays in the job of Supreme Court justice, and that is the issue of capital punishment or the death penalty.

Judge Alito, the idea that defendants are entitled to effective legal representation is a fundamental part of our criminal justice system. In fact, of course, it's enshrined in the Sixth Amendment's guarantee that the accused have, quote, "the assistance of counsel for his defense," unquote.

Nowhere is this guarantee obviously more important than in cases where the defendant's life is on the line. In a death penalty case you decided in 2004 called Rompilla v. Horn, you rejected the defendant's argument that his attorneys had failed to do an adequate investigation to prepared for his sentencing hearing. As a result, key mitigating evidence about his horrible childhood was never presented to the sentencing jury which ultimately sentenced him to death.

FEINGOLD: As you know, the Supreme Court reversed your decision, ruling that the defense attorney's failure to even review evidence they knew the prosecution was going to introduce at sentencing violated the Sixth Amendment.

This case was one of several Supreme Court cases in recent years to express particular concern -- particular concern about the adequacy of indigent representation and the fairness of the capital sentencing process.

In fact, in several recent decisions, including Rompilla, the court has overturned death sentences because defense attorneys did not do adequate investigations to turn up potential mitigating evidence and because jury instructions did not clearly allow jurors to consider any and all possible mitigating evidence.

And Justice O'Connor, who you have been nominated to replace, has of course often been the author or the deciding vote in these cases.

Judge, what are your views on these issues? Is the court's recent emphasis on the importance of fully developing and considering mitigating evidence in capital sentencing proceedings headed in the right direction?

ALITO: It is vitally important that all criminal defendants receive effective representation, and I could not agree with you more strongly that this is of the utmost importance in death penalty cases where so much is at stake.

In the Rompilla case that you mentioned, we had to apply the standard of review that is set out in the habeas corpus statute as revised by Congress. And where there has been a determination on the merits by the state courts on an issue like whether a defendant receives effective representation within the meaning of the Sixth Amendment and where the state courts have applied the correct legal standard, we are not allowed to disturb their decision unless what they did was unreasonable.

FEINGOLD: Well, let me ask you, then, because you're obviously pointing out the fact that you approached the Rompilla case as an appellate court judge bound by prior Supreme Court precedent, and yet you found that no constitutional violation had occurred.

And I believe when we discussed this case in my office, you indicated you still think your decision was correct.

So the question now is would your approach have been any different as a Supreme Court justice? What about your decision on the outcome of the case?

ALITO: Well, my decision -- and I spoke directly to the issue in the Rompilla case as I saw it when it came before me, and my evaluation of the performance of the attorneys in that case was fully set out in the opinion that I wrote.

ALITO: One of them was a very experienced criminal defense attorney. He was the head of a public defender's office. And there was no dispute whatsoever that this was an attorney of competence and experience and great dedication to the defendant in this case.

And that attorney was assisted by another attorney in the office and, together, they were extremely dedicated to this case.

Now, a number of judges took a look at this. All of the Pennsylvania judiciary, with the possible exception of one justice -- I can't remember clearly whether there was one justice who disagreed -- thought that there had been effective representation provided in this case.

FEINGOLD: But this really isn't about the difference between being on the Court of Appeals and the Supreme Court. You apparently would have, based on what you know here, would have ruled the same way had you been on the Supreme Court.

ALITO: Well, my evaluation of the facts of the case would be the same. Now, if...

FEINGOLD: In other words, if there was not a violation of Sixth Amendment?

ALITO: But I should add, however, that if a case came up in the future, the Supreme Court's decision in that case is a precedent that I would have to deal with. And they...

FEINGOLD: Fair enough.

ALITO: ... expressed the view as to how the standard applies to the facts of the case. It was a 5-4 decision. But it would be a precedent that I would follow.

FEINGOLD: Well then let's go back to my original question, which is: Do you think the Supreme Court has been heading in the right direction in these cases?

ALITO: I think that the Supreme Court is correct in viewing this as a very important part of the criminal justice system and in particular a very important part of the representation of clients in Eighth Amendment cases.

FEINGOLD: Isn't the court doing more than that? The court is moving in a direction of giving greater recognition and ruling on the inadequacy of counsel in these cases?

ALITO: And I think it's entirely appropriate that there be a searching review in every case as to whether a defendant in any criminal case but in particular, of course, in a capital case, has received the representation that the defendant is entitled to under the Sixth Amendment.

FEINGOLD: Do you think your replacing Justice O'Connor will change the direction of the court in this regard?

ALITO: I would approach these cases under the law that the Supreme Court has established in this area with the recognition that I've attempted to explain of how important I believe this right is in all cases and in death cases in particular.

When the Supreme Court reviews a case that's come up through the federal system in a habeas proceeding, then the Supreme Court, just like my court, should apply the standards that are set out in the habeas corpus statute.

FEINGOLD: Let's go to a different one. Wiggins v. Smith is a Supreme Court case decided in 2003 also addressing inadequate mitigation investigation. In that case Justice O'Connor, writing for the majority, found trial counsel ineffective for failing to conduct an adequate investigating into possible mitigating evidence that could be presented at sentencing.

Had the attorney done adequate investigation, he would have found abundant evidence of childhood physical and sexual abuse, as well as diminished mental capacity.

Do you think that case was rightly decided?

ALITO: I discussed Wiggins in Rompilla, and I thought that it was distinguishable. Wiggins, as I recall it, was a case where the attorney simply didn't conduct an investigation, without any sound strategic reason for not investigating a particular matter.

FEINGOLD: So you have no sense that that was wrongly decided?

ALITO: I have no sense that that was wrong. I thought it was different from the Rompilla case.

FEINGOLD: According to two independent studies, your record in death penalty case has been more anti-capital defendant even than most Republican-appointed judges. In fact, in every disputed capital case that you heard -- that is, cases in which a panel of three judges did not all agree -- you would have ruled against the defendant.

How do you explain this seeming tendency to favor the government in capital cases?

ALITO: I've only sat on a handful of capital cases, and in some of them I voted to uphold the death penalty and in a number of them I voted to strike down the death penalty. In Carpenter v. Vaughn, I voted to strike down the death penalty.

In the most recent death penalty case I sat on, the Braunstein case, I voted to strike down the death penalty because of the procedure that was followed at the penalty phase in that case.

In the Cruzan case, I was part of a panel that vacated a decision of the district court rejecting the claim of a habeas petitioner. There have been other cases where I voted to uphold the death penalty.

FEINGOLD: Justice Stevens recently gave a speech at the American Bar Association in which he raised a number of serious concerns about the administration of the death penalty.

FEINGOLD: He pointed to aspects of capital proceedings that he believes unfairly tilt the balance in favor of the prosecution, both at the trial and sentencing stages.

Specifically, he raised concerns about the jury selection process, arguing that jurors are questioned so extensively about the death penalty that they might assume their role is primarily to decide the sentence for a presumptively guilty defendant.

He also argued that representation of indigent defendants remains an issue that has not been adequately addressed. And he noted that elected state judges may have a, quote, "subtle bias," unquote, in favor of death because they have to face re-election.

Now, I know all of us on this committee have the greatest respect for state court judges, but we all can understand the pressures of a re-election campaign.

So, what are your views on the potential of these three issues -- the jury selection, the inadequate representation and an elected judiciary -- to skew a capital prosecution against the defendant?

And do you share these concerns that Justice Stevens outlined?

ALITO: I certainly share a concern that there should be a fair procedure for the selection of jurors. That certainly is a concern.

The issue of the election of judges at the state level or the appointment of judges at the state level is a matter for state legislatures to decide.

And, within my circuit, we have three states. In New Jersey and in Delaware, the state judiciary is appointed. In Pennsylvania, the state judiciary is elected.

And I've had the opportunity to view the work of all three of the supreme courts in those states and I think they all are of a very high quality.

I think the elected judges in Pennsylvania do a conscientious effort to carry out their responsibilities. And I have a high regard for the judiciary in all of those states.

So, based on my experience, I think you can have highly competent and, certainly, conscientious state judges who are appointed and the same sort of judges who are elected.

And, of course, we do have habeas corpus. And it is important to make sure that constitutional rights are respected.

ALITO: And the scope of the review that we conduct under habeas is up to Congress.

Congress reformulated the standards in AEDPA, in the Antiterrorism and Effective Death Penalty Act of 1996, limiting our review, and it is our obligation to conduct the kind of review that Congress has indicated we should be conducting.

FEINGOLD: Judge, it sounds like you perhaps have a lesser level of concern about some of these matters than Justice Stevens. The only thing I would note is one of the most striking things about the history of justices that have gone to the court sometimes who are pro death penalty, an amazing number have come to the conclusion that this is the one area where once they get there, they realize that these problems are much more severe than they might have thought before they became Supreme Court justices.

Should you be confirmed, I look forward to how you react to these issues after you have become a Supreme Court justice, should you do so.

In the past few years, the Supreme Court has limited the application of the death penalty based on the Eighth Amendment's ban on cruel and unusual punishment. In Atkins v. Virginia, the court ruled that mentally retarded inmates cannot be executed. And in Roper v. Simmons, it held that individuals who were minors when they committed capital crimes cannot be executed as punishment for their actions.

Do you agree with these decisions?

ALITO: Those decisions applied the standard that the Supreme Court formulated sometime earlier in determining whether the imposition of the death penalty on particular categories of defendants would violate the Eighth Amendment and they looked to evolving standards of decency. And that is a line of precedent in the Supreme Court, and those are precedents of the Supreme Court, and they're entitled to the respect of stare decisis.

FEINGOLD: Can you just tell me what your general approach to the Eighth Amendment would be in the context of the death penalty?

ALITO: My approach would be to work within the body of precedent that we have. As I mentioned earlier, the Supreme Court has devoted a lot of attention to this issue since 1976 when it held that the death penalty is permissible provided that adequate procedures are implemented by the states so that the decision about who receives the death penalty and who does not is not arbitrary and capricious, so that there is a rationality to the selection process. And the rules in this area are quite complex. But I would work within the body of precedent that is available.

FEINGOLD: Let me go to a topic we've talked about before. We had a good discussion of the recusal issue in the Vanguard case yesterday, and I hadn't intended to ask more about it, but your discussions with Senator Kennedy and Senator Hatch today make further questioning a little bit necessary.

Senator Hatch noted that the committee's questionnaire asked about financial conflicts of interest during the period of your initial service as a judge. Now, the reason for wording the question like that, of course, is that nominees have no way of knowing when they are up for confirmation whether they will have the same investments five, 10, 25 years later.

The committee obviously can't ask for a comprehensive list of possible future financial conflicts. So, for example, if you have stock in Microsoft and you list that as a financial conflict on your questionnaire, you still have to recuse yourself from a Microsoft case 15 years later if you still have the stock. Isn't that right?

ALITO: If you're required to recuse yourself, if you have stock in Microsoft, even one share...

FEINGOLD: You still have to recuse yourself even if it's 15 years later, right?

ALITO: Certainly that's true.

FEINGOLD: So the Senate questionnaire about financial investments is not time limited based on the question being about initial service on the court, is it?

ALITO: Well, I want to be clear on my answer respecting this as it bears on the Monga case, the Vanguard case, because that's what we're discussing.

The wording of the Senate questionnaire was not the reason for the way I handled the case.

FEINGOLD: No, I accept that.

I just want to know if there's any -- you have any question in your mind why the question is phrased that way in the questionnaire?

ALITO: Reading the question, it does seem to me that an initial period of service is a temporal limitation.

FEINGOLD: I want to be sure we don't leave the impression from these hearings that people don't have an obligation to recuse themselves from a financial conflict just because of the passage of time. You've already indicated if that financial conflict continues, that's an indefinite and permanent restriction until that financial holding is gone. Isn't that correct?

ALITO: Absolutely.

And that's under the Code of Judicial Conduct, Canon 3C(3) I think it is. If you have a financial interest, you must recuse yourself, and that's of course a continuing obligation.

FEINGOLD: It's not temporal?

ALITO: The obligation to comply with the code of conduct for federal judges applies to every federal judge for as long as they serve.

FEINGOLD: OK. And that's why I have to say that I'm a bit frustrated that people are trying to obscure what I think was pretty clear testimony by you yesterday by bringing up this period of initial service issue.

In response to Senator Kennedy, you made it clear again that your failure to recuse in the Vanguard case had nothing to do with the suggestion that your promise was time limited.

But I want to get this on the record again. And hopefully, this will lay any confusion to rest.

This idea that your promise to the committee was somehow limited to your initial service on the court, that was not the reason you failed to recuse yourself from the case in 2002, was it?

ALITO: It was not the reason in 2002.

I do think reading the question, it has a temporal limitation. If that wasn't the intent, I think people could read it -- certainly, when you say initial period of service, people will read that to mean...

(CROSSTALK)

FEINGOLD: This has nothing to do with why you didn't recuse yourself?

ALITO: It did not have to do with what I did in the Monga case.

FEINGOLD: And it's not as if you noticed that Vanguard was a party, remembered your promise to the committee, and then made a specific decision not to recuse because the promise had expired?

ALITO: No. It was not that at all.

FEINGOLD: And you finally added Vanguard to your standing recusal list in December 2003 and it's on your list today -- isn't that right?

ALITO: It is on my list today.

FEINGOLD: Do you plan to recuse yourself from Vanguard cases that come before the Supreme Court as long as you keep your Vanguard mutual funds?

ALITO: Well, if I'm confirmed, I will very strictly comply with the ethical obligations that apply to Supreme Court justices. Supreme Court recusals are a bit different from recusals in the court of appeals. And so the obligation to sit when you're not recused is one that has to be considered very seriously by somebody on the Supreme Court or, I would think, on a state supreme court, for example.

FEINGOLD: Is there any question, if still have holdings in Vanguard and a case comes before the Supreme Court, that you should recuse yourself?

ALITO: Well, under the Code of Judicial Conduct, I don't believe that I am required to recuse myself in Vanguard cases. And I would strictly comply with the ethical obligations that apply to a Supreme Court justice.

FEINGOLD: But you're not going to make a promise here that you're not going to rule on Vanguard cases while you have holdings in Vanguard when you're on the Supreme Court?

ALITO: Well, what I want to say about recusals on the Supreme Court is that the decision-making process on the Supreme Court or any court with a fixed membership, a fixed number of jurists who sit on each case, recusal in that situation affects the decision-making process, because instead of having nine justices, you have eight; you have the potential for a tie.

On the court of appeals, that is a much less significant consideration because we always sit in panels of three, we have many judges on our court and many cases. So if I don't sit on a case involving Vanguard, it just means somebody else will sit on the case involving Vanguard. It will still be decided by a three-judge panel.

FEINGOLD: I would add on that point that that may be true, but it's also true that the Supreme Court is the last stop, and if somebody doesn't recuse himself, there's really no remedy. And that is why it's so important that somebody would recuse themself.

ALITO: It is very important for somebody on the Supreme Court to fulfill, strictly, the obligation not to sit when the person should not sit. But it's also important for -- given the matters that I just discussed -- for a justice to sit if the justice is not required to recuse.

FEINGOLD: Judge, my time is up.

Mr. Chairman, we don't yet have the communication from Judge Alito to the clerk on December 10, 2003, that caused Vanguard to be added to his standing recusal list.

And whether that was an e-mail or a form that Judge Alito filled out or something else, we've requested it. So, I'm just asking for the assistance of the chairman in getting that document so we can complete the record.

SPECTER: Senator Feingold, we'll take a look at it and see what the facts are.

FEINGOLD: Thank you.

	Contents    Prev    Next    Last