Date: January 11, 2006
Senator: Specter
Topic:
Contents
SPECTER: We'll now proceed to the second round of questioning, with each senator having 20 minutes. And we'll take 20 minutes more, and then we'll take a break.
SPECTER: Is it appropriate for the court to declare acts of Congress unconstitutional because of our, quote, "method of reasoning"? Does the court have some superior insights on a method of reasoning?
Is it appropriate for the court to declare acts of Congress unconstitutional, functioning as a taskmaster to make sure that Congress does its homework?
There have been a series of decisions which have seriously undercut congressional power, where, in my opinion, the court has usurped the authority of Congress. And this moves into the often- criticized range of congressional legislation and judicial legislation in derogation of the congressional power.
We are seeking, Judge Alito, to have an appropriate equilibrium in our system. And the beauty of the American system is that no one has too much power. We call it separation of power, although not specifically mentioned in the Constitution. We call it checks and balances.
We have looked into the issue of tremendous importance -- regrettably, we haven't plumbed it, and only scratched the surface, but our time is limited -- on authority of the president under war powers, Article II, contrasted with Congress' authority to legislate for privacy under the Foreign Intelligence Surveillance Act.
SPECTER: And I want to move into two other analogous areas, Congress versus the court and the court versus Congress, as Congress has taken away the jurisdiction of the court, notably, very recently, by stripping habeas corpus jurisdiction on detainees.
When the Congress legislated to protect women against violence, the Congress did so with a very expansive record. It wasn't like Lopez, which was a revolution, where the court upset 60 years of congressional power under the Commerce Act.
But in the case of U.S. v. Morrison, involving the legislation to protect women against violence, there was a record which included gender bias from task forces in 21 states, five separate reports. And notwithstanding a, quote, "mountain of evidence," as noted by four dissenters, the court declared the act unconstitutional because of our method of reasoning.
Now, you're a judge; you may be a Supreme Court justice. Is there something we're missing? Do you judges have some method of reasoning which is superior to the method of reasoning of the Congress?
ALITO: I think the branches of government are equal and all the officers in all the branches of government take an oath to the same constitution.
SPECTER: Equality on method of reasoning?
ALITO: I would never suggest that judges have superior reasoning power than does Congress.
I think what the court was getting at when it made that statement in Morrison -- and yesterday, I looked at something that I had written and said, "That was not well phrased."
ALITO: I think that what the court was getting at there in Morrison was that it was applying a certain standard, certain legal standard, as to whether something substantially affected commerce. And I think that's what they were getting at.
SPECTER: Hard to figure out what they were getting at. We do know what they said. They said our method of reasoning was defective.
But I take it, from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning?
ALITO: I think that Congress's ability to reason is fully equal to that of the judiciary, and I think that...
SPECTER: And you think that even after appearing here for a day and a half?
(LAUGHTER)
ALITO: I have always thought that. And nothing has changed by mind about it.
HATCH: We're starting to worry about you.
SPECTER: Let me...
(LAUGHTER)
That's on Senator Hatch's time.
(LAUGHTER)
Let me take up the Americans with Disability Act. On two decisions within a couple of years of each other, one where the Supreme Court declared unconstitutional the Americans with Disabilities Act as it applied to employment, upholding the act as it applied to access to facilities.
And Justice Scalia had a ringing dissent when the court imposed a standard of congruence and proportionality -- a very difficult standard which you wrestled with in the family leave case.
SPECTER: The congruent and proportionate standard came to the court in the Boerne case in 1997, so it is very recent origin, and it has all the earmarks of having been pulled out of the thin air. And Justice Scalia said that it was a thinly veiled invitation to judicial arbitrariness and policy-driven decision making. And Justice Scalia criticized the majority opinion for functioning as a taskmaster to see to it that Congress had done its homework.
And here again there was a voluminous record -- 13 congressional hearings, 30,000 people were surveyed.
Do you think, Judge Alito, that a test like congruence and proportionality is fair notice to the Congress on what we can do by way of legislation? Here we're dealing -- and it maybe worthy just a little explanation.
When Congress legislates on constitutional issues under Article V of the 14th Amendment, the court then makes a comparison to state immunity under the 11th Amendment.
But do you think that's a fair test as to what we're to try to figure out what the Supreme Court is later going to say is congruent and proportionate?
ALITO: Well, like many tests in the law, it is not a mathematical or a scientific formula that can produce a particular result with certainty as it is applied to particular situations.
SPECTER: Well, how about just fair notice? Never mind mathematical certainty.
ALITO: It addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress' authority under Section 5 of the 14th Amendment to pass legislation enforcing the provisions of the 14th Amendment.
One argument that has been made, which would represent a very narrow interpretation of congressional power -- and this is basically the position that Justice Scalia took in the dissent that you mentioned, is that Congress's authority doesn't extend any further than remedying actual violations of the 14th Amendment; that Congress doesn't have additional authority to enact prophylactic measures outside of the area of race, which Justice Scalia would treat differently and recognize broader authority because of the historical origin...
SPECTER: Judge Alito...
ALITO: ... of the 14th Amendment.
SPECTER: ... what's wrong with the test of Maryland v. Wirtz, and Gonzales v. Raich, as you take a look at power under the commerce clause and to be applicable to our legislation under the Americans With Disability Act?
SPECTER: That test is where the court has gone into some length to say what you have gone into repeatedly: that judges have no expertise. It's up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world.
And in Wirtz, in 1968, and reaffirmed recently in Gonzales v. Raich, after Morrison, after Lopez, quote, "Where we find the legislators have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce" -- could apply as well to disability -- "our investigation is at an end."
What's wrong with that test? Would you subscribe to that test over the proportionate and congruence test?
ALITO: There are a number of tests that have been used and proposed over the years in this area.
ALITO: And this is the subject I think of continuing litigation in the Supreme Court.
There is the Maryland v. Wirtz approach and then the City of Boerne approach. And you mentioned that the City of Boerne is a relatively recent decision and it has been followed by a number of subsequent decisions.
SPECTER: Where did it come from? Where did the Boerne test on proportionate and congruence come from, if not thin air?
ALITO: I think it was an effort by the majority in that case to identify a standard that would not strictly limit congressional power to remedying established violations of the 14th Amendment without going -- while still in their view retaining the necessary remedial connection to Section 5 of the 14th Amendment.
It is an approach that they have used in a number of cases. And the cases have not come out -- sometimes the results have not been predictable.
You mentioned the contrast between the two decisions under the Americans with Disabilities Act. I think Nevada v. Hibbs was a decision that some people -- that surprised some people based on the court's prior precedents.
So there is, I think, still some ferment in this area. I am sure it is a question that is going to be -- that will come up in future cases.
SPECTER: We're speaking not only to you, Judge Alito, but to the court. The court watches these proceedings. And I think they ought to know what the Congress thinks about making us schoolchildren or challenging our method of reasoning.
SPECTER: We're considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.
Right now the solicitor general does that. He's in the executive branch. We don't want to derogate the solicitor general in your presence, Judge Alito, but the thinking that we've had was to speak about your decisions and the court's decisions on the floor of the Senate. Nobody pays attention to that. Maybe we would try to come in as amicus. Why do that?
We have the power to grant standing. We could grant standing to ourselves and come into court and fight to uphold constitutionality.
Let me move at this point to the recent legislation which takes away the jurisdiction of the federal bench to hear habeas corpus decisions. It's in the context of the detainees.
Justice O'Connor in Hamdi laid out the law in flat terms. "All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within United States" -- every individual, not just citizens. And then she spells out the way you suspend the writ, and you do it only by rebellion or invasion.
And then this recent legislation says, "The District of Columbia Court of Appeals shall have the exclusive jurisdiction to determine the validity of any final decision by the Combatant Status Review Tribunal."
SPECTER: If it means what it says, and judges like to look to the statute as opposed to going to congressional intent, if it means what it says that there was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.
This may come before the court. What factors would you consider to be relevant in making the analysis as to, again, maintaining equilibrium between the court and the Congress of our authority to take away federal court jurisdiction on this important item?
ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.
The first is that the courts said in a case called INS v. St. Cyr that if there is an attempt to -- that habeas jurisdiction can't be taken away unless it's clear in the statute that that's what was intended. Habeas jurisdiction is not to be repealed by implication. That's one important principle.
And then in Felker v. Turpin, which involved the Anti-Terrorism and Effective Death Penalty Act of 1996, the Supreme Court considered arguments about whether provisions of that legislation, which restructured federal habeas review, violated the Constitution.
And they found that there wasn't a violation because the essentials of the writ were preserved. And so if other legislation is challenged, it would have to be reviewed under standards like that.
SPECTER: Judge Alito, I want to move now to a subject on efforts to have television in the Supreme Court of the United States, a subject very near and dear to my heart.
SPECTER: I've been pushing it for a long time. I'm personally convinced that it's going to come some day. I'm not sure whether it'll come during my tenure in the Senate. More likely it'd come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.
The Supreme Court said in the Richmond newspaper case v. Virginia, quote, "The rights of a public trial belong not just to the accused, but to the public and the press, as well. Such openness has long been recognized as an indispensable attribute in the Anglo-Saxon trial."
There are many other lines of authority, but only a few moments left to set the stage here. But the Supreme Court has the final word.
We can talk about the president's war power under Article II and the congressional authority under the Foreign Intelligence Surveillance Act, but the court makes the decision.
We can talk about taking away habeas corpus jurisdiction, but the court decides whether we can do it or not.
We can talk about the insult of declaring acts of Congress unconstitutional because of our method of reasoning, but the court can do that.
And the court has made these decisions on all of the important subjects. The court decided who would be president of the United States in Bush v. Gore. The court decides who lives on a woman's right to choose, who dies on the right to die, on the death penalty, on every critical decision.
The Congress has the authority to do many things on the administrative level, such as we set the starting date for the court, the first Monday in October. We set what is a quorum of the court, six members. Congress sets the size of the court, effort made by President Roosevelt to increase the number from nine to 15. We put provisions in on speedy trial, time limits on habeas corpus matters.
In recent times, some of those who have objected to televising the court has been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it's a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.
But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I'm tired of picking up the front page everywhere and seeing your picture on it.
Brit Hume was on Fox News talking about going to a Redskins game in 1991 when Justice Thomas was being confirmed and how he had his ear sets on to listen to the proceedings.
SPECTER: I think Senator Leahy was questioning Professor Hill at that particular time.
But how about it? Why shouldn't the Supreme Court be open to the public with television?
ALITO: Well, I had the opportunity to deal with this issue, actually, in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted.
And we had a debate within our court about whether we should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful...
SPECTER: Really? You have taken a position on this issue?
ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.
(LAUGHTER)
The majority was fearful that our Nielsen numbers would be in the negative.
(LAUGHTER)
SPECTER: Could you promise the same result?
(LAUGHTER)
Could you promise the same result, if confirmed, to be a dissenter? Will the court allow TV?
GRASSLEY (?): Be careful how you answer.
SPECTER: Be careful how you answer everything, as you have been.
(LAUGHTER)
ALITO: The issue is a little bit different on the Supreme Court. And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body.
So I wouldn't want to comment on it...
SPECTER: Justice Souter. But quite a few of his colleagues have been on television. Let me ask you this, Judge Alito -- I know what the answer will be -- with seven seconds left, will you keep an open mind?
ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.
(LAUGHTER)
SPECTER: Thank you, Judge Alito. We'll now take a 15-minute break and we'll reconvene at 11:35.
(RECESS)
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