Date: January 11, 2006
Senator: Sessions
Topic:
Contents
SPECTER: Senator Sessions?
SESSIONS: Thank you, Chairman Specter.
Judge Alito, I want to thank you for your patience and good spirit and your thoroughness in answering questions, and you've been very forthcoming. I think very few people could disagree that, on case after case that you've been asked about, you've gone as far as you legitimately should go to express your understanding of the law and what's important there.
I know your entire record has been examined extensively. You think about it -- the FBI does a background check, they found out every place you've lived and talked to your neighbors and checked your criminal histories and the Department of Justice has a big inquiry that they do before they submit your nomination to the president or the president submits your nomination to the Senate.
American Bar Association has interviewed 300 of your colleagues before they made their recommendation that you were a well-qualified in a unanimous vote.
The Senate has its questionnaire. Outside groups look at it and create studies and data. They read everything you have written to find things that they might be unhappy with.
And so I think all in all, you're coming through this with very little mud upon you, for which I congratulate you. I think it's something that you can be proud of. Most of us on this side of the aisle would not like to have our record scrutinized in the way yours has been.
I know some us have made mistakes in our statements already in the hearing that we have to admit. And I'll admit that I was one of them. I first said that you were ranked number four in being the most independent judge out of 900 judges in the country. As I see the numbers more clearly, you were number 4 out of 98 appellate judges examined in that system.
But that still shows that you're an independent, nonideological judge. One of the factors you used was whether or not you always agree with nominees of your party.
SESSIONS: I think that speaks well for your record, and that's why you've gained such a broad respect of your colleagues.
You know, just want to briefly mention some of these studies that go into your background. People have looked at it incredibly to the most minutest detail.
And you asked earlier about -- saying that you rule only one out of eight times for immigrants seeking asylum, but in looking at the asylum cases nationwide, most of those are -- the government's position is affirmed. It's already been decided by a lower court or administrative body. You're simply reviewing their decision.
But in immigrant asylum cases nationwide, the court of appeals generally rule for the asylum seeker 11 percent of the time. During your record on the bench, you ruled for asylum seekers 18 percent of the time. And in and your published opinions -- the average court of appeals judge in America ruled for immigrants 8 percent of the time; in your published opinions you rule for them 19 percent of the time.
So I think this not only shows the charges against you there are not well placed, it shows just how carefully your record is being examined by people as you move through the system.
Another example, civil rights. I think your critics have cherry- picked from some of your 4,800 cases that you've ruled on. In your opinions on civil rights, your panel was unanimous 90 percent of the time. And when you sat on a panel where both the other judges were Democratic appointees your decision was unanimous 100 percent of the time.
So I think that speaks well for your overall record on civil rights. Certainly it would indicate that you're not hostile to a legitimate civil rights complaint.
SESSIONS: You were asked about one environmental case by Senator Feinstein. And you ruled on that case based on standing. That's an important issue in the legal system. Don't you agree?
ALITO: It is.
SESSIONS: Well-recognized principle.
ALITO: It's a constitutional principle.
SESSIONS: It does not have to do with whether you were for or against the environmental issue in question but simply whether the person bringing the suit was a legitimate person to bring that suit.
ALITO: That's right. And it doesn't have anything to do with Congress' power to regulate the environment under the commerce clause. That's a separate question.
Congress -- it's totally separate. One has to do with the scope of congressional power; the other has to do with who can bring the suit.
SESSIONS: And with regard to environmental cases, you have rendered, according to one of these studies -- you've authored six environmental opinions; you sided with the environmental regulatory body in five of those six opinions.
Indeed, Professor Cass Sunstein, who had served as an adviser to the Democratic members of this committee on changing the ground rules of confirmation -- which was really a precursor to the commencement of a filibuster -- Professor Cass Sunstein said this about you, quote, "This is a judge who, if the text is pro-environment, he's very likely to follow it. This is not someone who, like some judges, has a kind of pro-business orientation in his approach to the law."
I think that's also a statement that you can take pride in. I would offer for the record, Mr. Chairman, another article by Stuart Taylor of the National Journal, Monday December 12, in which he, in a very effective way, dismisses much of the complaints that have been made against Judge Alito.
SPECTER: Without objection, that will be made part of the record.
SESSIONS: This is his quote: "A systemic slanting, conscious or unconscious, of this and many other news reports have helped fuel a disingenuous campaign by liberal groups and senators to caricature Alito as a conservative ideologue. In fact, this is a judge who, while surely too conservative for the taste of liberal ideologues, is widely admired by liberals, moderates and conservatives who know him well as a fair-minded, committed to apolitical judging and wedded to no ideological agenda other than restraint in the exercise of judicial power," close quote.
SESSIONS: And I would offer that for the record.
Also, with regard to your challenges on Vanguard, on matters that have impacted your integrity, I would like to quote from the American Bar Association's interview questionnaires that they did on you among those who know you well.
This is what they put in their conclusion. "Conclusion: We accept his explanation and do not believe these matters reflect adversely on him." Talking about those conflicts allegations.
They go on to say: "To the contrary, consistent and virtually unanimous comments from those interviewed include, 'He has utmost integrity,' 'He's a straight shooter,' 'Very honest and calls them as he sees them.'" These are quote from different lawyers and judges.
"His reputation is impeccable." "You could find no one with better integrity." "His integrity and character are of the highest caliber." "He is completely forthright and honest." "His integrity is absolutely unquestionable." "He is a man of great integrity."
And then they conclude: "On the basis of our interviews with Judge Alito and with well over 300 judges and lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the Standing Committee concluded that Judge Alito is an individual of excellent integrity."
So congratulations on that finding.
Judge Alito, many important decisions of the Supreme Court in recent years touch on the deepest values of the American people. They deal with things like Kelo and the property that they own, matters of faith and morality, decency and pornography.
SESSIONS: Do you have a sense of where the American people are with regard to these issues? Can you indicate to us that you have any appreciation for legitimacy of some of those concerns?
ALITO: Well, I do, Senator.
SESSIONS: Regardless of the technical laws it involves, but just that fundamental policy.
ALITO: I think I have an appreciation of people's concerns -- certainly with respect to Kelo, which is a recent decision and I can't comment on how I would rule on any matter concerning that; and it involves the power to take property for public use through eminent domain.
I certainly understand that what occurred in that case which, as I understand it, was the taking of the homes of people of modest means for the purpose of building a large commercial facility that was thought by the city to be beneficial to the economic welfare of the city, that this is an enormous blow to the people whose homes are being taken.
People live in homes and they have a sentimental attachment to them. They have memories that are attached to the homes. They can remember what happened in particular rooms. The neighborhood means something to them. The neighbors mean something to them. The things in the home mean something to them.
And taking their home away and giving them money in return, even if they get fair market value for the home, is still an enormous loss for people.
So I certainly can appreciate what they feel in that respect.
SESSIONS: Well, let's talk about that a little bit, because this is a matter of real power and it's a matter that the Congress gets drawn into sometimes whether we want to be drawn into it or not.
We've discussed Roe v. Wade. People remain concerned about that. The polling numbers continue to drift against that decision.
We talk about the district court opinion. I believe Senator Brownback raised federal court on marriage, on redefining the traditional statutory definition of marriage contained in states and in state constitutions around the country.
In Kelo, it's pretty clear to me that the court just changed the meaning of the words.
SESSIONS: The Constitution said you could take property for public use. The court felt that was too restrictive, basically, and a majority just changed it to say you could take property for a public purpose, which includes some private redevelopment of the area in their minds.
See, that's not founded in the Constitution. That's an overreach, in my opinion.
On the Pledge of Allegiance case, the Neubauer (ph) case, the 9th Circuit, which includes 40 percent of the people in the United States, ruled that the Pledge of Allegiance was unconstitutional.
The Supreme Court sort of sidestepped the fundamental issue and said that there was not standing on behalf of Mr. Neubauer (ph) and sent that back to a lower court. He now got him some plaintiffs that apparently have standing. He's taken it to the District Court in California, and he's won that case.
They've concluded, and the 9th Circuit law remains in effect, so that 40 percent of the population of the United States really are not able, if you follow that opinion, to render the Pledge of Allegiance.
Yet, we have chaplains and "In God we trust" in the Senate chamber and those kind of issues.
So I don't believe that that is founded in the Constitution. I think the American people do not. And they are asking some real questions of us.
So I guess I won't try to get you drawn into those.
But I want to do this. The doctrine of judicial review, Marbury v. Madison -- you already indicated Hamilton didn't favor that. But the court found that it's not expressly stated in the Constitution, is it?
ALITO: No, it's not.
SESSIONS: And it definitely shifts the balance of power between the branches, because the court now has the power to, by a stroke of its pen, five of its nine members to strike down any law they say violates the Constitution.
That's true, is it not?
ALITO: They decide constitutional questions, and the doctrine has been established since Marbury v. Madison. That's right.
SESSIONS: But they're in explicit powers given to the Congress. And Senator Coburn raised some of those, Article III, Section 2 has these words: "In all of the other cases before mentioned" -- this is a constitutional grant of power to the courts -- "the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as the Congress shall make." Now those words are in the Constitution, are they not?
ALITO: Yes, they are.
SESSIONS: And as you said, if the words are expected to have some meaning, you would give them some meaning, at least, would you not?
ALITO: I think that's undisputed, that they have a meaning.
SESSIONS: And so Congress has some power here. We've not exercised that power and certainly in recent years. In Ex Parte McCardle, the Supreme Court in 1869 agreed that though the judicial powers conferred by the Constitution is conferred under such exceptions as Congress shall make.
Then there is the impeachment power. The good senator mentioned that. And then the establishment of lower courts -- Article III, Section 1 says the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. That indicates that Congress can establish or disestablish courts, does it not?
ALITO: I think it's undisputed that the so-called inferior courts -- and I don't particularly like the term as a judge of court of appeals -- but the so-called inferior courts are totally the creation of Congress.
SESSIONS: I'll just ask you to comment on this thought. Chief Justice Roberts in his hearings, and I asked him some questions similar to this, indicated that he was concerned about activism by the court, overreaching by the court, and he felt that this overreaching created a danger that it could undermine respect for law in our country.
SESSIONS: Do you share that view?
ALITO: I agree that overreaching by the courts can undermine respect for law. Our authority is based on the belief that what we are doing is different from what Congress is doing, because otherwise why would people tolerate our functioning? Nobody elects us. And we have a system of government that is fundamentally democratic. It's based on the sovereignty of the people. So how do you explain an unelected branch of government making decisions?
So all of our authority is based on the idea which was expressed in Marbury v. Madison that the Constitution is law. It's not conceptually different from statutory law. And our job is to interpret the Constitution, it has a meaning, and you apply it to the situations that come up.
SESSIONS: Well, right now there is a strong feeling, that I share, that the court on some very important issues that people care deeply about is exceeding its authority. They're calling on me and those of us in Congress to do something about it. I got a lot of letters saying, "Withdraw jurisdiction? Why aren't you supporting legislation to do that?"
And Congress, I think, has shown restraint. But I hope that when you become a member of this august body, the Supreme Court, and I believe you will, that you will take those concerns with you and share with the members of the court that their views on policy issues are of no greater value than mine, frankly, at least in my opinion they're not, and that the Congress has been showing some restraint here. But we really want the court to be more modest and to draw back from some of its intervention and policy issues that are causing much angst around the country.
You want to comment on that?
Otherwise, Mr. Chairman, I would yield my time.
ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law.
SESSIONS: Thank you very much.
SPECTER: Thank you, Senator Sessions.
We will now stand in recess until 4:20.
(RECESS)
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