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Date: January 11, 2006

Senator: Schumer

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 SPECTER: Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

Thank you, Judge Alito.

First I want to go over some of the things you said yesterday. Judge Alito, you testified yesterday that you'd keep an open mind. Isn't that right?

ALITO: I did and I do.

SCHUMER: Now are you aware of any nominee in the history of the republic who has come before the Senate and testified he'd keep a closed mind?

ALITO: I'm not aware of that. But I can only speak for myself.

SCHUMER: Of course.

ALITO: I will keep an open mind on all issues.

SCHUMER: You also testified yesterday that no one, not even the president, is above the law. Right?

ALITO: That's certainly true.

SCHUMER: Yes.

And are you aware of any nominee in the history of this republic, of whatever political philosophy, judicial philosophy or denomination, who has come before the Senate -- party denomination -- and testified that, actually, there are a few people who are above the law?

ALITO: I'm not aware of a nominee like that, Senator.

SCHUMER: Me either.

And you also testified that the court should have respect for the Congress. Isn't that right?

ALITO: Yes.

SCHUMER: Know of any nominees who came before the Senate and said, "The heck with you guys; I don't have any respect for the Congress"?

ALITO: Senator, I can only speak for myself and those are true expressions of what I think.

SCHUMER: I know that. But all I want to say is -- and I don't doubt your sincerity in saying them -- but this morning's newspapers were filled with headlines to the effect you would keep an open mind.

I don't find that really to be news, nor do I find it very helpful in figuring out what kind of justice you would be.

My friends on the other side of the aisle have repeatedly said you've answered over 200 questions. Now it's probably 300. But a response is not an answer. And you've responded to more than 300 questions but, in all due respect, you haven't answered enough of them.

And so, again, I think we ought to make clear that, at least to many of us here, we haven't gotten the answers to questions, yes or no, on some important issues.

SCHUMER: And with that, I'd like to return to Roe, a question, something we discussed yesterday at some length.

You did say yesterday that you'd keep an open mind. You said first you'd look at stare decisis and then you'd keep an open mind after going through stare decisis.

But when I asked you questions about your prior statements to see if you would keep an open mind, so I could make a determination, so the American people could make a determination, you really didn't answer the question.

Now, we've heard pledges about having an open mind before. I want to read you one. It's another hearing; someone who sat in your chair.

"I have no agenda, Senator. I have tried here, as well as in my other endeavors as a judge, to remain impartial, remain open-minded, and I am open minded on this particular issue."

I'll bet you can guess who that nominee was. It's Clarence Thomas on the issue of the Constitution and the right to choose, very issue I've asked you about, when he sat in that chair 15 years ago.

So someone pledging an open mind doesn't tell us very much because I think there are a lot of people on this committee who were surprised -- I wasn't there -- were surprised by how Judge Thomas ruled based on his testimony. Didn't tell them enough.

Now, yesterday, as you know, I asked you whether you believe today that the Constitution protects the right to an abortion, given that in 1985 you flatly said that it doesn't and you didn't answer that question.

Then I asked you whether the Constitution protects the right to free speech and you said yes.

Then I asked how could you answer one and not the other. And your answer as to why you could discuss one and not the other was essentially that the words "free speech" appear in the Constitution but that -- and this is your words -- the issue of abortion has to do with the interpretation of certain provisions in the Constitution, the 14th Amendment.

Now, yesterday, as you know, I asked you whether you believe today that the Constitution protects the right to an abortion, given that in 1985 you flatly said that it doesn't and you didn't answer that question.

Then I asked you whether the Constitution protects the right to free speech and you said yes.

Then I asked how could you answer one and not the other. And your answer as to why you could discuss one and not the other was essentially that the words "free speech" appear in the Constitution but that -- and this is your words -- the issue of abortion has to do with the interpretation of certain provisions in the Constitution, the 14th Amendment.

SCHUMER: Now, Judge Alito, the words "one person, one vote" are not in the Constitution. You know that.

And yet you said yesterday and I think you repeated today to Senator Kohl and maybe Senator Feinstein as well, but what you said yesterday was, quote, "I think that one person, one vote is very well settled now in the constitutional law of our country."

So you were able to answer on the basis of something as to whether it's settled, not being in the -- the words are not in the Constitution. But you were queried by a few of my colleagues and you had a different explanation.

Now, you said you can answer on the other issues because it's settled law; it's not going to come before the court.

So let's go over settled law a little bit.

In case after case, you have been telling us -- you have been comfortable telling us that certain cases are settled and yet you won't use that word with respect to Roe. You've done it in a host of other cases and issues. I'll read a few.

So, "I think that one person, one vote is very well settled now in the constitutional law of our history" in response to Senator Kohl.

"The status of independent agencies I think is settled in the case law." That was in response to Senator Leahy.

"But I do think that most of those commerce clause cases in the years preceding Lopez, the ones that come to mind I think are well settled precedents," reference to Senator Feinstein.

"I think the scope of immunity that the attorney has is now settled by Mitchell v. Forsyth, and that's the law."

So can you answer the question? Is Roe settled or not?

It's less of a concern which way you answer. I just would like you to answer the question.

You can say: Roe is not settled; Roe can absolutely be re- examined. I think a lot of people think that's the answer you want to give but it's controversial. And you may not want to give it because it's controversial, even though some of these other issues will come before the court.

Commerce clause cases will come before the court. Certain types of one man, one vote cases will come before the court. Certain types of administrative agencies will come before the court.

SCHUMER: So, why is it only when it comes to Roe, you can't tell us whether it's settled, whether it's not settled or how it is settled. And you can pick any formulation you want.

Other judges have commented on Roe being settled and Lindsey Graham pointed out -- he's not here -- but Ruth Bader Ginsburg talked about her view and she still got a lot of votes on the other side of the aisle. Same might happen to you.

So, the question, Judge Alito...

(LAUGHTER)

The question, Judge Alito, is: Why won't you talk to us about Roe in terms of whether it's settled or not when you will about so many other issues, even issues that would come before the court?

ALITO: The line that I've tried to draw -- and I've tried to be as forthcoming as I can with the committee. I've tried to provide as many answers as I could. And, obviously, I'm speaking here extemporaneously in response to questions. The line that I have tried to draw is between issues that I don't think realistically will come before the court and on those I feel more freedom to respond. And one person, one vote is an example.

SCHUMER: Sorry to interrupt, but we have limited time. What about commerce clause? Raich came to the court a couple years ago. Raich has roots all the way back in Wickert v. Fillburn.

You talked about commerce clause cases being settled.

ALITO: Well, it depends on which commerce clause cases you are talking about. Certainly, the initial commerce clause cases that moved away from the pre-New Deal understanding of the commerce clause have been on the books for a long time.

Maybe I have been more forthcoming than I should have been in some areas. And, if that's the case in providing these extemporaneous answers, I can be faulted for that.

But the line that I have to draw, and I think every nominee, including Justice Ginsburg, has drawn, is to say that, when it comes to something that realistically could come before the court, they can't answer about how they would decide that question.

ALITO: That would be a disservice to the judicial process.

SCHUMER: I understand your view. I just think there are inconsistencies there, and I would argue you ought to err on the side being more forthcoming. This is the last chance we and the American people will have to make a decision before a lifetime appointment.

I want to move on to another issue, also related to Roe. Now, you did say that in 1985 you believed that the Constitution did not protect the right to an abortion. And at that time you were a mature legal mind. You were 35. You were already a federal prosecutor. You were serving in the Solicitor General's Office. You had a pretty good understanding of the Constitution. You had argued cases related to Roe before the Supreme Court, I think 12 times by 1985. So you were a well-seasoned, mature, established legal mind at that time. Is that fair to say?

ALITO: Well, Senator, most of what you said is certainly correct, but I had not argued any case involving Roe v. Wade before the Supreme Court.

SCHUMER: You argued 12 cases before the Supreme Court. Sorry.

ALITO: Yes, that's correct.

SCHUMER: OK. Now, let me ask you this. When you wrote that statement, you did not -- as we discussed yesterday -- when you wrote that the Constitution does not protect the right to an abortion, you had no exceptions. So that would mean, at least in 1985, your view then, there would be no constitutional protection for a woman to terminate her pregnancy even if the termination was needed to preserve her future ability to have children, right?

ALITO: Senator, it was a general statement that didn't go into -- it didn't...

SCHUMER: But it had no exceptions. You didn't make that...

ALITO: It was one sentence, and it certainly didn't represent...

SCHUMER: There was no -- you didn't write any exception for that situation. Correct? It just said the Constitution does not protect. It was without exception. And, yesterday, you didn't argue me when I mentioned that without exception.

ALITO: I don't recall your using the words without exception.

SCHUMER: I think I did.

(CROSSTALK)

SCHUMER: If you believe...

ALITO: Could I just answer that question? It's one sentence and it certainly is not an attempt to set out a comprehensive view of the subject.

SCHUMER: No, I understand that. But it was a very strong statement. It didn't talk about any exceptions at all. And the way I read that statement, even if a woman was raped by her father, she'd have no constitutional protection to have an abortion and terminate that pregnancy. If you believe the Constitution protects no right to an abortion that would follow, wouldn't it?

ALITO: I think the statement speaks for itself, and it's one sentence and it's not an effort to set out a comprehensive view of...

SCHUMER: Knowing these examples, do you still refuse to distance yourself in any way from a broad, unqualified statement, without exception, that the Constitution does not protect the right to an abortion? No ands, ifs or buts, is my words.

ALITO: What I actually said was that I was proud of my participation in the Thornburg case in which the government made the argument that it made in the Thornburg case...

SCHUMER: But you said in the previous sentence to that statement that you personally held those views.

ALITO: That's correct. But what I was talking about there was the Thornburg case and nothing more than the Thornburg case.

SCHUMER: I understand. But you haven't rethought the position at all, even knowing these extreme cases and the hardship that it might cause?

ALITO: Well, what you have pointed out is exactly why, if the issue were to come up, and one were to get beyond stare decisis, the whole judicial decision-making process would have to be gone through.

SCHUMER: You didn't think that through in 1985?

ALITO: I was not involved in...

SCHUMER: When you wrote the statement. When you wrote that statement.

ALITO: And when I wrote the statement what I was saying was that I was proud of what I had done in relation to the Thornburg case, which was to write the memo that the committee is aware of, which did not argue that Roe should be overruled, did not argue that the government should argue that Roe should be overruled, but that the decision should be challenged on other grounds that were quite similar.

SCHUMER: I understand what you wrote, but you also -- we can bring the statement up here, but I don't want to go over the thing of yesterday. I would just ask you to think of all the consequences of a broad statement, even from 1985, that the Constitution does not protect the right to abortions. Not an exception of health of the mother, not an exception of rape or incest, not an exception of any of these others.

SCHUMER: I didn't see any of those in your job application. But I want to conclude on...

ALITO: Senator...

SCHUMER: Go ahead, please.

ALITO: It was one sentence. And I think what you're saying highlights the importance of not addressing this until the judicial process takes place where all of this complexity would be taken into account.

SCHUMER: In all due respect, sir, I think it highlights the importance of an obligation to discuss it, particularly in light of a strong statement before.

But we'll have to differ on that.

I want to go back to the CAP issue in conclusion, because some of the statements just don't add up and I just want to try to figure this out a little better.

You graduated from Princeton in 1972. I'm just going to state -- to save us a little time -- a time a series of facts here. You filled out the application to apply for the job in the Reagan administration in 1985 where you mentioned membership in that group.

Now, is it fair to say you joined some time around 1972?

ALITO: I think that's very unlikely.

SCHUMER: Unlikely.

ALITO: Very unlikely.

SCHUMER: When do you -- you have no idea when you joined?

ALITO: I don't. But if I had done anything substantial in relation to this, including renewing membership or being a member over a lengthy period of time, I feel confident that I would remember that.

SCHUMER: OK. So you don't remember renewing membership, writing out a check at a certain time, getting a magazine -- this Prospect magazine --once a month, once a quarter, once a year? You have no recollection of any of that?

ALITO: I don't.

SCHUMER: OK.

Well here's what the -- and let me just ask you one other question. I take it, in 1985, you were a member of a whole lot of different groups. I mean, you were a member of the Bar Association. You might have been neighborhoods -- you're a neighborhood guy. I respect that. Maybe the neighborhood association in New Jersey where you lived. Maybe other Princeton alumni organizations.

In your 1990 application, there are a bunch of other organizations you list as being members of. So you were members of a whole lot of groups?

ALITO: I was a member of some other groups, not a whole lot of them.

SCHUMER: OK. A bunch. More than two?

ALITO: Some other groups.

SCHUMER: Yes. OK.

Here's what I don't understand. I think here's what a lot of people don't understand. You're a member of other groups, you hardly have any recollection of this organization. And yet, somehow, in 1985, you put it on your application.

Why did you? Why did you list that particular organization on your application when you have such vague recollection of it? Why didn't you put the American Bar Association or one of the other groups that you were a member of?

It wasn't a long list where you were trying to list -- you somehow plucked this group, which you now say you have almost no recollection about, and put it on the application. And this group, as we've heard, is controversial.

Just try to give us some understanding of your state of mind in 1985. Why that group, with its tawdry history, even public then -- although you said in all fairness you didn't know about it -- but why that group? Why was it plucked out and put on the application?

ALITO: Well, I deplore all of those statements that were shown on the chart.

SCHUMER: Understood.

ALITO: I would never associate myself with those...

SCHUMER: What made you pick that group?

ALITO: ... statements?

SCHUMER: I understand. I'm not trying to do that.

ALITO: I think you have to look at the question that I was responding to and the form that I was filling out. I was applying for a position in the Reagan administration. And my answers were truthful statements, but what I was trying to outline were the things that were relevant to obtaining a political position.

ALITO: I mentioned some very minor political contributions.

I didn't mention contributions to charitable organizations. And that's not because the contributions to charitable organizations were unimportant. It's just that...

SCHUMER: Well, can you reach back, because it is an important an important issue now -- it's become one -- and try to figure out your state of mind then and what made you pick this organization?

I mean, I see why you picked the Federalist Society. That's obvious. Why did you pick this one?

ALITO: Well, Senator, since I don't remember this organization, I can't answer your question specifically.

But I think that the answer to the question lies in the nature of the form that I was filling out and the things that I put, I think the illustration of the political contributions goes right to the point.

Why did I mention small political contributions and not charitable contributions? It wasn't that the charitable contributions were less important. It was that they were not as relevant to obtaining a political position.

SCHUMER: Why didn't you put it on your application in 1990?

ALITO: I didn't remember it.

SCHUMER: But you remembered it from 1972 to -- or whenever you joined to 1985, formed in '72 -- why I think you probably joined earlier is because of what you said about ROTC which is a much bigger issue in its early history than its later history.

And you remember that. You remember it up until '85 and then by 1990, you had forgotten it.

Let me just say, I'm glad -- this is by way of explanation. That's why Senator Kennedy made his request. I'm glad, Senator Specter, that you have acceded to it.

I think there are unanswered questions here that we really have an obligation to answer. And maybe -- maybe -- the documents we get will give us some of those answers.

Thank you, Mr. Chairman.

ALITO: Well, Senator, I have told the committee everything that I can about this organization. And the most important thing I want to tell the committee is that I have no association with those comments that were made, even if they were made in letters to the editor or in articles that simply represented the views of the authors of those articles.

ALITO: They're not my views now; they never were my views. They represent things that I deplored. I have always deplored any form of racial discrimination or bigotry. I was never opposed to the admission of women to Princeton. After I had been there for a few months I realized the difference between the non-coeducational atmosphere that was there and the coeducational atmosphere that I had had throughout my prior schooling. When it came time for me to join an eating facility, I choose one that was one of the most coeducational facilities on the campus.

SCHUMER: I just can't figure out why you put this group on.

SPECTER: Senator Schumer your time is up, Senator Schumer.

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