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Date: January 11, 2006

Senator: Hatch

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 SPECTER: Senator Hatch?

HATCH: Judge Alito, I just want to clarify a few matters.

In his questioning this morning, Senator Durbin from Illinois, I think apparently misstated what Chief Justice Roberts said during his confirmation hearings.

HATCH: Senator Durbin claimed that the chief justice -- now the chief justice said that Roe was the settled law of the land.

In fact, that exchange that Senator Durbin referred to was made during the confirmation process for Judge Roberts to the Circuit Court of Appeals for the District of Columbia, where he would have to admit that that would be settled law for him in that court. It's beyond question that for a circuit court nominee the Supreme Court's pronouncements on specific questions are binding precedents and will be the settled law of the land.

Moreover, contrary to the distinguished senator from Illinois' suggestion, then-Judge Roberts' testimony, his recent confirmation hearing, and your testimony today and yesterday, you've both been entirely consistent in this particular matter.

I just wanted to clarify that, because there's a difference between a nominee for the circuit court of appeals saying that something is settled law that he or she has to be bound by than by somebody who is a nominee for the Supreme Court. And that's just a matter of clarification that I would like to make at this time.

Now, yesterday, you were asked some 340 questions by 15 senators, and you're getting a bunch today. And I'm told that you felt that you had to decline to answer only about 5 percent of them. That's even lower than previous Supreme Court nominees, by far, in most cases.

Now, this hearing has hopefully provided an opportunity for you to address our concerns and answer some of the criticisms from members of this committee. But, of course, there's always a battle waged outside of this committee room by the special interest groups who are also making charges and launching, really, unfair attacks on you.

Now, these attacks typically go directly across the airwaves or the Internet with hardly a chance to even catch them, let alone address them or rebut them or correct them. So I want to give you a chance to respond to some of these attacks by some of these left-wing groups, many of which are certainly less than responsible, in my view, pretty reprehensible in what they do in these matters.

HATCH: One group says in a press release that in the Chittister case, and at other times in your career on the bench, you go out of your way to rule against workers.

Now, this group claims that what it calls your views and biases are strong evidence that you would, in their words, quote, "rarely rule in favor of those seeking justice in the courts," unquote.

I think that's a good example of how misleading some of these groups can actually be, where they're looking only for results in certain cases rather than upholding of the law itself in those particular cases.

And, in that particular case, they're apparently willing to ignore two things about the cases they discuss. They ignore the facts, they ignore the law, and that's all, just the facts and the law. But they also ignore what you've written, and they ignore what you've said here today.

How about that criticism, Judge? In Chittister did you go out of your way to rule against workers? What were the facts and the law in the case? And why did you think that they required the result that you finally upheld in that case?

ALITO: I thought the result was dictated by Supreme Court precedent, and I wasn't the only one who thought that. That was a unanimous decision of our panel. Judge McKee and I believe Judge Fullum (ph) from the district court in Philadelphia were on that panel. They all agreed.

And it is my recollection that seven other courts of appeals had decided the case the same way. More than 20 court of appeals -- that issue the same way. More than 20 court of appeals judges, including judges appointed by all recent presidents, have reached that decision.

And I think when you look at the law and the facts of the case, it becomes clear why there is so much unanimity on the question.

ALITO: Whether one likes the test or not, the test that we on the lower courts have to apply in this area is the congruence and proportionality test from City of Boerne. And therefore what we had to do was to see whether there was a record of discrimination relating to the particular provision that was at issue in Chittister, which had to do with leave for personal illness.

So there would have to be some evidence that state employers had given more leave for personal illness to men than women, or more leave for personal illness to women than men. And there was no evidence whatsoever on this issue, and that's why all of these courts of appeals reached the conclusion that they did in Chittister.

HATCH: When somebody takes an unfair crack at me, I can come back at them as a member of the United States Senate. But because you're a judge and not a politician, you really don't have the opportunity, really, to address fully these misrepresentations of your views. And there have been plenty of them in this process that you've had to undergo.

So I wanted to give you some opportunity to here. For example, one liberal group sent an e-mail around just yesterday that claimed you were not responsive to a question about whether the president can immunize executive branch officials who directly violate the law.

Now, is it an accurate representation of your views to suggest that you argued that executive branch officials should be fully immunized for their violations of the law?

ALITO: No, it's not a correct expression of my views. The president, like everybody else, has to follow the Constitution and the law. He has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution. That's clear.

Now in the Mitchell v. Forsyth case which they may be referring to, I was simply saying that a certain argument relating to immunity from civil damages was an argument that had been made before and it was an argument that was being requested by our client in the case, who was being sued in his individual capacity.

ALITO: And I recommended that we not make the argument, but said, "I don't dispute this argument." And that's all that was involved there.

HATCH: Let me say just this: I want to allow you to respond to a tactic that has been used by several of our colleagues here in these hearings.

They observed results in some past cases and then they expressed concerns that entire groups or categories of litigants might not be able to get a fair shake by you in the court.

One of them, yesterday, wondered whether the average citizen, quote, "can get a fair shake from you when the government is a party," end quote.

Another did the same thing this morning. It's one thing to express disagreement with your decisions. And, of course, as I said before, to look only at results and ignore the facts and the law is fundamentally misguided. And it's a misleading way of evaluating judicial decisions.

But let's be clear what is being floating around here with this type of tactic.

Those who say, "Because you ruled this way in the past, litigants cannot get a fair shake in the future," are saying, Judge, that you are biased, that you prejudge these cases, that you are less than fair and impartial -- something that virtually everybody who knows you, including all of the people who testified before the American Bar Association, say is false -- that you prejudge these cases, you're less than fair and impartial.

You know, that's a very serious charge even if it is cloaked in suggestions and innuendo.

Judge, you previously mentioned your oath of office, an oath before God to do equal justice to everyone without regard to who the parties are.

How do you react to this suggestion that the way you've ruled in the past shows or even suggests that you're biased and that entire categories of litigants may not get a fair shake before you?

ALITO: Well, I reject that.

ALITO: I believe very strongly in treating everybody who comes before me absolutely equal.

I take that oath very seriously. And I have tried my very best to abide by that during my 15 years on the bench.

And I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We're supposed to do justice on an individual basis in the cases that come before us.

But I think that if anybody looks at the cases that I voted on in any of the categories of cases that have been cited, they will see that there are decisions on both sides. In every type of employment discrimination case, for example, there are decisions on both sides.

HATCH: But most employment discrimination cases really are decided at the lower level.

ALITO: Most of them are.

HATCH: And when they get up to your level it's generally decided on technical or a procedural basis. Am I wrong in that?

ALITO: No, that's correct, Senator.

HATCH: And sometimes you have to uphold the law even though you may be uncomfortable with the law yourself.

ALITO: We have to decide the cases on the facts that are in the record and the law that applies.

HATCH: Well, that's right.

Well, let me just ask you about a few of your cases. Because, you know, it's easy to cherry-pick these cases and find a sentence here you don't like and a sentence there you don't like and criticize you, in the process, as though you're not being fair, when, in fact, everybody who knows you knows your impeccable reputation for fairness, dignity, decency and honor, and capacity.

And that's why you got the highest rating from the American Bar Association. And deserve it. And you've twice got that. And I know how tough they can be.

But let me just give you a couple illustrations.

HATCH: Zubi v. AT&T. You were the lone dissenter in that case. What did you dissent from?

ALITO: I dissented from a majority decision that held that Mr. Zubi, who was claiming racial discrimination, would not have his day in court because of the statute.

HATCH: You would have given in his day in court, right?

ALITO: I would have.

HATCH: If it had been up to you?

ALITO: Yes.

HATCH: All right, how about U.S. v. Kithcart? I don't expect you to remember all these cases -- and if you don't, just raise your hand and I'll try and recite them.

But this was a Fourth Amendment case. You held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right?

ALITO: That's right. That was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment.

HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies. And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case.

ALITO: That's correct, Senator.

HATCH: OK. And Thomas v. Commissioner of Social Security -- just to mention a few of these cases that show that you're going to do what's right, regardless. And sometimes in these employment cases and even other cases, when they get up on appeal, they're fairly technical in nature and you have to do what is right under the law.

But in Thomas v. Commissioner of Social Security -- do you recall that case?

ALITO: I do.

HATCH: What'd you do there?

ALITO: That was a case where I think the Supreme Court thought that my opinion had gone too far in favor of the little guy who was involved there.

HATCH: This was a woman with disabilities, right?

ALITO: That's right. A woman who was trying to get...

HATCH: And she sought Social Security benefits.

ALITO: ... Social Security disability benefits. And in order to be eligible for those, she had to be unable to perform any job that existed in substantial numbers in the national economy.

HATCH: She had a job as an elevator operator if I recall correctly.

ALITO: That's right.

As the case was presented to us, the only job that she could perform was her past job, which was as an elevator operator.

And what I said was that you can't deny somebody Social Security benefits because the person is able to do a job that no longer exists in any substantial numbers in the national economy. You can't deny benefits based on a hypothetical job. It has to be based on a real job.

And the Supreme Court didn't see it that way, but it seemed to me that the way that we ruled was consistent with what I thought about it.

HATCH: So in other words, although you stood up for the person seeking rights here, the Supreme Court overruled you.

ALITO: That's right.

HATCH: Oh, my goodness.

In the landmark case Fatin v. INS, this involved Iranian women who refused to conform to their government's gender-specific laws and social norms; whether or not they should be granted asylum in America.

How did you rule in that case?

ALITO: I think that was one of the first cases in the federal courts to hold that requiring a woman to be returned to a country where she would have to wear a veil and conform to other practices like that would amount to persecution if that was deeply offensive to her, and that subjecting a woman to persecution in Iran or any other country to which she would be returned based on feminism would be persecution on the basis of political opinion.

HATCH: Well, I've got another nine or 10 cases and perhaps even more that I could go through. But the point is that whenever they deserve to win, they win, regardless of whether they are rich or poor, whether they're powerful or not. You have basically upheld the law in these cases, is that correct?

ALITO: That's what I have tried to do.

HATCH: And where you've been in dissent, you've tried to do it to the best of your abilities.

ALITO: That's right, Senator.

HATCH: OK.

Let me just mention one other thing. This business of the Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- not by anybody who has any ethical, professorial, or other knowledge, not by the American Bar Association, not by the vast majority of lawyers to look at these matters -- that particular statement said will you, during your, quote, "initial service," unquote. It seems to me those are important words.

Now, you haven't tried to hide behind that. You've just honestly explained that basically you made a mistake, which really wasn't a mistake according to all the ethics people and according to the American Bar Association.

And now, instead of the original accusation or the original implication, you're being accused of not being forthcoming because of that our original statement and your application to the committee questionnaire.

HATCH: But the fact of the matter is that, quote, "initial service," doesn't mean 12 years away, does it, when there's no chance in the world that you could ever receive any monetary benefit from Vanguard?

ALITO: Well, I don't think initial service means 12 years away.

HATCH: Neither do I and neither does anybody who cares about justice and what's right in this matter.

So to blow that out of proportion like your adversaries have done is really pretty offensive. I could go on and on, and maybe be stronger on that, but the fact of the matter is I just wanted to make that, "initial service," unquote, pretty clear.

Now, let me just say that sometimes I just can't make sense of what some of your critics are saying. On the one hand, they want to portray you as some sort of a robotic patsy for big government who does not think for himself.

Yesterday, one of my Democratic colleagues even suggested that the Bush administration was trying to manipulate you to give responses favorable to them in this hearing.

Now, you quite rightly said, and I think you were fairly restrained about saying it, that you have been a judge for 15 years and are quite capable of thinking for yourself.

On the other hand, your critics then turn it around and attack you for supposedly dissenting too much, as if you should actually stop doing all that thinking for yourself and just fall in line with the majority in all of your cases.

Now, Judge, I know that appeals court judges, that the appeals court themselves are collegial bodies, but how do you view dissenting from your colleagues?

How you decide when to do it? How did you know how often you dissent from your court, or do you know often you dissent in your court and whether it's out of step with your colleagues?

HATCH: Could you give us some answers there?

ALITO: Yes.

I think that it's important for a multi-member court to issue a judgment and to speak clearly to the lower courts and the parties.

And so when I've been in a position where taking an independent position would result in the absence of a judgment, I have gone out of my way to make sure that there was a judgment, that there was a majority opinion.

And an example of that is the Rappa case, where we were really divided three ways and my position was close to Judge Becker's opinion. And Judge Becker had the opinion writing assignment and I issued an opinion saying, "I don't completely agree with the way Judge Becker analyzed this issue, I would analyze it differently, but I'm joining his opinion so that there is a majority opinion, so that there is a clear statement of the law for the guidance of the parties."

I think that's the first principle.

The second is that judges should be respectful of each other's views, and I have tried never to write a dissenting opinion or respond in a majority opinion to a dissenting opinion in a way that was not completely respectful of the views of the other members of the court.

It's useful to dissent if there's a chance that the case may go en banc, and that's happened in a number of cases where I've dissented. It's useful to dissent if there is a chance that the case may go to the Supreme Court and so that the Supreme Court will have the benefit of a different expression of views. And there have been cases...

HATCH: Would it surprise you to know that you've dissented only 79 times in nearly 5,000 cases in which you've participated?

That comes out to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts.

And I would observe that the Washington Post concluded in an editorial that your dissenting opinions, quote, "are the work of a serious and scholarly judge whose arguments deserve respect," unquote.

I certainly agree wholeheartedly with that assessment.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Hatch.

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