Date: January 11, 2006
Senator: Kyl
Topic:
Contents
SPECTER: Senator Kyl?
KYL: Thank you, Mr. Chairman. I do want to tie some loose ends up, and one of them makes reference to something Senator Kennedy read. Would it be OK if I proceed with that? I think it would be fine.
And this has to do with this last matter that Senator Biden was also discussing, and that's the Princeton alumni group, just to make sure that the key facts are understood here.
You believe you joined, Judge Alito, around 1985 because of a concerned threat to ROTC at Princeton university. Is that correct?
ALITO: Well, Senator, I don't recall joining, but I do remember that that was the issue relating to the administration that was bothering me for a period of time, including that period.
KYL: And just for the record, Mr. Chairman, I'd ask unanimous consent to insert a quotation from the Princeton packet.
KYL: And I'll just quote it here: "Prospect editor Denise DeSousa (ph), added that CAP is concerned about the formation of a Third World center, a campaign to eliminate the Army ROTC program, and what it perceives as the decline of Princeton athletics."
SPECTER: Without objection, it will be made a part of the record.
KYL: Second, on this matter -- and I refer to this as the very scurrilous material read by Senator Kennedy, that I suspect we would all agree was scurrilous material -- had you ever heard of any of that material that he read a while ago, before today?
ALITO: No, Senator.
KYL: I believe you said you vehemently disagreed with it; is that correct?
ALITO: I do. I deplore those statements.
KYL: And would disavow it?
ALITO: I disavow it. I would never associate myself with those statements.
KYL: Did you know that such things had been published by the CAP when you were a member of it or when you joined it?
ALITO: Absolutely not. I would never be a member of an organization that took those positions.
KYL: Also, Mr. Chairman, unanimous consent for the record to contain the disclaimer which the editors of the Prospect include in the magazine. It reads, "The appearance of an article in Prospect does not necessarily represent an endorsement of the author's beliefs by the Concerned Alumni of Princeton."
SPECTER: Without objection, it, too, will be a part of the record.
KYL: Now, let's return to your 15 years as a judge and how matters might come before you in United States Supreme Court.
I just wanted to also refer to something that I put in the record yesterday.
It is a very difficult thing to look at 4,000 cases and conclude, when you have ruled on both sides of issues, depending upon different fact situations, as we've talked about before, that you necessarily favor one side or the other.
KYL: One of the areas of concern was in the area of discrimination. I just want to read one sentence of what I inserted in the record yesterday regarding employment discrimination and see if you have any other comment on it.
"A 2003 study of employment discrimination claims in federal court fond that federal appeals court judges sided with employment discrimination plaintiffs in only 13 percent of the cases. Judge Alito's record of four out of 18, or 22 percent, is actually more favorable to plaintiffs."
Do you know that to be incorrect, or do you have any other comment on it?
ALITO: I don't know -- I'm not familiar with the statistics.
The way the appeals system is set up, I think that's what results in the statistics that you mentioned, the low rate of success for plaintiffs. Because these cases are generally cases in which summary judgment has been granted for the defendant.
If the district court denies summary judgment for the defendant, then the case will go to trial, and very often is settled, or there's a trial and there's no appeal after the trial.
So most of the cases that we get are cases that have been looked at by a conscientious district judge and found not to be cases that should go to trial, and I think that's what produces those statistics.
KYL: And that's an interesting lesson, I think, for all of us to be able to explain why certain cases come to courts and why they would be more on one side than the other. And it's an important lesson I think both for lawyers and non-lawyers to appreciate that kind of dynamic. Because otherwise, if you just look at raw statistics and don't know the background, you can come to different conclusions. So I appreciate that.
In another area, it is apparent to me that you're simply not going to be able to satisfy some of my colleagues because you will not absolutely commit to rule the way that they want to on a couple of key issues; for example, on the issue of abortion.
You've repeatedly confirmed the significance and the role of precedent, in this case Roe v. Wade. You also noted situations in which as a 3rd Circuit Court judge, you adhered to the Roe v. Wade precedent. But you have declined to announce your constitutional view of Roe today, despite repeated attempts by some of my colleagues to get you to do that in these hearings.
KYL: Implied in your answer is the point that to do that here would commit you to a particular result, something you cannot ethically do.
Are there cases regarding abortion that you believe may come before the United States Supreme Court?
ALITO: There certainly are cases that may come before the Supreme Court. There's a case involving abortion before the court this term, and they come up with some regularity. Many of them involve the application of Roe. Most of them involve the application of Roe or the application of other precedents that build on Roe. But it is entirely possible that a case involving Roe itself could come up at some point in the future.
KYL: I said in my opening statement that I would defend your right to decline to say in advance how you would rule on matters that could come before you.
But kind of along the same lines that you did a moment ago, perhaps you could tell us the reason for the rule. In other words, to elaborate on the damage that would be done if judges indicate in advance how they might rule on cases. What's the reason for that rule?
ALITO: To my mind, the most important reason is that to do that would undermine the entire judicial decision-making process. We have a process for deciding legal issues, and it is critically important that we stick to that process.
And that means that when an issue comes before us, the briefs are not a formality, the arguments of the attorneys are not a formality. We should read those very carefully, and we should study the issue, and we should study all of the authorities that are cited to us and carefully consider all of the arguments are presented to us, both in the briefs and in the attorneys' oral presentation, and then go into the conference and discuss the case among the members of the court.
And we shouldn't decide legal questions without -- questions that are not going to -- not just abstract questions without -- questions that are going to -- not just abstract questions as if we were in a constitutional law seminar, but cases that are going to have an impact in the real world.
ALITO: We shouldn't decide those questions, even in our own minds, without going through that whole process. If a judge or a judicial nominee announced before even reading the briefs or getting the case or hearing the argument what he or she thought about the ultimate legal issue, all of that would be rendered meaningless, and people would lose all of their respect for the judicial system and with justification, because that is not the way in which members of the judiciary are supposed to go about the work of deciding cases.
KYL: I have talked about this image that we have of Lady Justice, the blind figure with the scales of justice in her hand, and tried to describe why she has the blindfold across her eyes.
I just marvel at our judicial system and, having represented clients in court for 20 years myself, how we in America are willing to literally put our lives, sometimes, certainly our freedom and our fortune, in the hands of a person, one judge frequently -- sometimes a jury, sometimes not, sometimes more than one judge -- but frequently, a judge.
How would people possibly have the trust to put everything they own or their own freedom in the hands of a person, if we as a country had not established over 200 years of adhering to this rule of law, this notion that justice is blind, that the facts of your case and the law will decide whether you win or lose and nothing else?
It is a remarkable phenomenon, if you stop to think about it, and not all countries do that. Even the countries that have judicial systems, I don't think one can have near the confidence in it that we do here in the United States.
So it is a critical, critical principle that plays itself out in courtrooms around this country every day. And it's something that I think we have to fight to preserve, as much as we possibly can.
And I appreciate your explanation of that.
Just a couple of final things, and I'm going to be able to yield back some of my time.
KYL: I just can't resist pointing out one little irony here, and it has to do with the precedent that I spoke of before, Roe v. Wade, that is so important to several members of this committee.
Was written by a justice who himself, at least in some cases, willing to throw off precedent. Do you remember who wrote the opinion in Roe v. Wade?
ALITO: That's Justice Blackmun.
KYL: Justice Blackmun.
And in, one might say, an infamous 1994 dissent from a denial of cert in the case of Collins v. Collins, Justice Blackmun wrote that he would refuse to follow all Supreme Court precedent on the death penalty, which has been ruled constitutional by the court, of course, by saying that he would, and I'm quoting, "no longer tinker with the machinery of death," end of quote.
I suspect that's not the way to deal with precedent. If you have a comment on it, fine. But, again, I think it ironical that -- or ironic that the decision perhaps most in focus here was authored by a judge who himself was quite willing to throw off precedent, I would argue in a rather cavalier way in a situation in which he didn't like it.
Let me just close by putting something in the record and making a comment. Mr. Chairman, I ask unanimous consent to insert the following statement into the record, but I'd like to read it because it's a statement of the majority leader of the Senate, Bill Frist.
SPECTER: Without objection, it will be made a part of the record.
KYL: And let me briefly read it: "As a Princeton alumnus, I had concerns about CAP, but I have no concerns about Judge Alito's credibility, integrity and is commitment to protecting the equal rights of all Americans. Judge Alito has condemned discrimination and his record of more than 15 years demonstrates his commitment to equal rights for women and minorities.
"Old documents of a now-defunct organization will not tell us more than Alito's statements and record already have.
"Further, the views that the Democrats attribute to Alito through CAP were the views expressed by an individual member in a magazine who was not speaking for the organization and certainly not for Judge Alito.
"This is another transparent attempt by Democrats to wage an unfair smear campaign against an exceptionally qualified nominee."
KYL: And, Mr. President (sic), I read that not to attribute the views to any member of this committee. But I think it's important that the reputation of this fine jurist be based upon his actions as a jurist for over 15 years -- as I said in my opening statement, longer than any other justice of the United States Supreme Court, except for one, 70 years ago, on the Circuit Court of Appeals, with a record of over 4,000 decisions and an ample opportunity to know what kind of a person he is, what kind of a judge he has been and, I would argue, what kind of a judge that he would make.
I do not believe that his answers to questions have been inconsistent or unforthcoming.
I believe that, as a matter of fact, Judge, you have been very forthcoming in your answers to questions, including getting right up to the edge on a lot of matters that arguably could come before the court. But you did not try to dodge or duck those questions at all.
In fact, let me just read for the record two or three statements relating to your performance here at this hearing, if I could, please.
Well, Senator Biden isn't here, so I won't read what he has said but it's on the chart. And I appreciate what he said, by the way.
KYL: Joe Zuckman (ph), who writes in the Chicago Tribune, "'Judge Alito has gone farther. And I think that's given a lot more substance to these hearings,' said Specter," meaning our distinguished chairman, Arlen Specter.
And then, Dana Milbank, writing in The Washington Post, "Unlike John G. Roberts Jr., who made frequent attempts to soften his views and dodge many of the questions, Alito took almost every question."
Now, I'm not going to subscribe to the first part of that last quotation with respect to Judge Roberts.
But I think it is true that you have taken the questions, you have answered them to the best of your ability, and you have only stopped short when not to do so would be to commit to a decision in a case that you are not ethically permitted to do so and that would do injustice to the rules of law and the parties that might come before the court.
So I want to commend you for being so forthcoming, for answering our questions, and for testifying in a very thoughtful and, has been apparent to everybody, without any notes or materials or referring to any other people here, with great knowledge about both the matters on which you have worked in the law, generally.
Thank you, Judge.
ALITO: Thank you, Senator.
KYL: I'll yield back.
SPECTER: Thank you very much, Senator Kyl.
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