Date: January 12, 2006
Senator: Durbin
Topic:
Contents
SPECTER: Senator Durbin, you had originally asked for 10 minutes, but I understand you want more time. How much would you like?
DURBIN: Senator, I will do it as close to 10 minutes as I can. But I might need a few extra; I want to reach the end of that same tunnel.
SPECTER: Let's set the clock at 10 with flexibility to exceed that.
DURBIN: Thank you very much.
Thank you, Judge Alito. Thanks to your family for putting up with this endurance test. And I appreciate your patience throughout.
First, let me address the issue of court stripping that was mentioned by my friend from the state of Alabama. I really hope that Congress will never draw that sword. We heard about it during the Schiavo case.
If we're going to have a truly independent judiciary, the thought that Congress will take away from the courts issues which we disagree with would really jeopardize it. And just editorializing, I hope we don't reach that point.
After you leave today, there will be a panel come before us of your colleagues on the bench from the 3rd Circuit. Was this your idea that they come and testify?
ALITO: No, it was not.
DURBIN: Were you asked if it was a good idea?
ALITO: No, I was not.
DURBIN: OK.
I understand it's never happened before, and that's why I asked you that question. I don't know who came up with this notion, but it does raise some interesting questions, which we've shared on a bipartisan basis about that testimony. But since you weren't involved in that decision-making, I'll drop it at that.
DURBIN: Then there will come some public witnesses. And one of those witnesses will raise a contrast between two decisions you made. And I'm going to give you a chance now to respond to that charge or that observation that will be made.
Fourth Amendment cases: one we've talked about a lot, Doe v. Groody; another we've talked about I think tangentially, which involves Leveto. I hope I'm pronouncing that correctly.
ALITO: Leveto; I'm not sure what the pronunciation is there.
DURBIN: Do you know which case I'm concerned with?
ALITO: Yes, I do.
DURBIN: In the Leveto case, a veterinarian and his wife, subject to Internal Revenue Service agents coming at 6:30 in the morning, detaining him, patting him down in the Internal Revenue Service investigation, holding him for six hours in his office.
Then they went to his home, found his wife in her nightgown, patted her down, held her incommunicado for a period of time.
And they brought a civil suit and said, "The government went too far. They didn't have the authority to do those things, to pat us down and search."
And your conclusion, writing the majority opinion, was, "Yes, they did go too far." There was a question about immunity, which I won't touch on, but at least from the Fourth Amendment point of view, you said that the government went too far.
Now, of course, the notorious case that's come up time and again of Doe v. Groody. In that case, of course, it's about a year earlier. There's a search of the premises and a John Doe search warrant looking for someone who might have been involved in drug dealing.
An affidavit attached to the warrant says that it could also involve persons on the premises who may be hiding drugs, but the affidavit is not part of the search warrant; it's maybe incorporated in general terms.
The majority of the court says that it was not incorporated; Judge Chertoff writing for the majority. Particularly egregious is the fact that a mother and her 10-year-old daughter were strip- searched pursuant to that search warrant.
In that case, you concluded that that was warranted, that was acceptable search.
The witness who comes before us is going to say, "Judge, how can you do this? You have a veterinarian here and his wife, IRS search. In their case, you said, 'They went too far when they patted them down and searched them.' The next case, involving a 10-year-old girl in a strip-search, you say, 'They didn't go too far.' How would you compare the two and draw the distinction between them?"
ALITO: Well, the Leveto case involved the issue of how long they could detain people who were present on the premises while they executed a search of the premises. And they detained these people for a very long time. I don't remember...
DURBIN: Six hours or more.
ALITO: It maybe even have been longer. It was a very long period of time.
There was no warrant for their arrest. There was no claim that there was a justification to seize them, other than the fact that they were present on the premises at the time when the search was being executed.
The Doe v. Groody case involved the question of the interpretation of a warrant.
ALITO: And the standard that is to be applied there -- the Supreme Court has told us -- is a practical, common-sense instruction. A warrant is not to be interpreted like a sophisticated commercial instrument that's drafted by parties.
The facts were -- you mentioned many of them -- that the affidavit prepared by the police officer said, "We have probable cause to search anybody who's found on the premises because we have probable cause to believe that this drug dealer will hide drugs on the people on the premises."
And they presented that to the magistrate and the magistrate issued the warrant, attached the affidavit to the warrant, and said, "The warrant is incorporated for" -- and I guess I left out the important fact that the officers -- they said, "We have probable cause to search anybody on the premises and that's what we want. We want authorization to search anybody on the premises."
And the magistrate granted the warrant and attached the affidavit to the warrant and said, "The affidavit is incorporated for the purpose of probable cause," which meant that the magistrate found that there was probable cause to search anybody on the premises.
But in the portion of the warrant where it said "person to be searched," it only mentioned...
DURBIN: John Doe?
ALITO: ... the John Doe. Now, if this were a bond, I think you would conclude that the only person you can search is John Doe. But it's a warrant.
And my view was that, viewing this from a practical standpoint, when the magistrate said, "Yes, you're right, there's probable cause to search anybody on the premises," those are the people he's saying can be searched.
But even if one didn't agree with that, you would go on to the qualified immunity question and say, "Could a reasonable police officer who says, 'I've got probable cause to search anybody who's on the premises and that's what I want,' and you go to the magistrate and the magistrate says, 'I agree with you on probable cause and here's your warrant,' could they reasonably think that the magistrate is saying, 'Yes, search anybody on the premises?'"
DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?
ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate.
But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.
DURBIN: Or the issuing authority may be more specific in the warrant, which, as I understand it, is what the Fourth Amendment's all about.
ALITO: Well, the warrant here certainly could have been drafted better.
DURBIN: I think that's what the majority said.
ALITO: It is, but we have to take into account that these are police officers operating under time pressure. And the Supreme Court has told us that we are not to read these warrants like they're complicated commercial documents. We're trying to get at the practicalities of the situation.
DURBIN: I only have a few minutes, and I will try my best to end it, but I don't think I can do it in two.
In our circuit in Chicago, Judge Richard Posner is a very prolific writer about many things. He recently made an observation which I think really is a challenge to all us on the Senate Judiciary Committee.
We currently have a situation involving immigration cases, particularly those involving asylum and deportation, that we have to look at very seriously. There was an effort to clear the backlog when Attorney General Ashcroft was in charge and some procedures were changed to streamline the process, and a lot of these cases were just churned out very quickly with very little evidence as to why decisions were being made.
DURBIN: Judge Posner made that point recently, publicly stating, if I might quote him, "The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice," he said.
Now, you've been involved in some of these cases: about eight of them as we calculate here. There's been a dramatic increase in the number of these cases coming to the federal appeals courts.
In one particular case here, the Saidou Dia case, which involved the deportation of a man back to Guinea, was a case where he refused to serve in the military. His wife was then confronted in his home country at his home. When they couldn't find him, they beat her, raped her and burned down his home. And this was a man who said, "I don't want to go back because I think it could be a dangerous circumstance for me."
In this case, you dissented and said, "Return him to Guinea," that you didn't feel that there was a strong enough case to grant him asylum in the United States and to stay.
And the reason I raise it is we looked at your record in these cases where there was a split decision. And we discovered that you ruled for the government in eight out of nine cases where there was a split decision on these questions. And in seven of those eight cases that you ruled in this, yours was the minority position.
So my question to you is: Do you appreciate the observation made by Judge Posner about the terrible state of affairs when it comes to the immigration judges and the decisions they're sending for you to review?
And why did you, more or less consistently, in those contested cases, consistently rule on the government side?
ALITO: Well, Senator, I think I have ruled in favor of asylum- seekers in a number of cases.
DURBIN: Those are usually no dissents in those cases.
ALITO: Well, I know that I've ruled in favor of asylum-seekers in quite a number of cases. I don't have the list on the tip of my tongue.
In the Dia case that you mentioned, the facts that you recited were not the facts that were found by the immigration judge. Those were the facts that the asylum-seeker alleged. And the whole issue in the case was whether there was sufficient evidence to support the contrary finding of the immigration judge.
I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I have been troubled by this. My court has been troubled by this.
But my situation as a court of appeals judge before whom these cases come is created by the legal framework that Congress has created. And Congress has given us a very limited role in reviewing factual findings by immigration judges.
ALITO: What Congress has said is that we have to accept factual findings by the immigration judge unless no reasonable fact finder could come to a contrary conclusion. And that's a tough standard. And I have tried to adhere faithfully to that standard in all the cases that come before, even if I felt that I might have reached a different conclusion on the record.
DURBIN: Judge, wouldn't you concede there are basically two standards that are being debated here? One is you just referred to, no reasonable adjudicator would have come to a different conclusion. The other talks about substantial evidence. And you have followed that second standard, the substantial evidence case, in Lu v. Ashcroft and Zhang v. Gonzales. So you've leaned toward it.
My point I want to get to, and this will be the last thing I ask you, is if we know the system's broken, if we know that it doesn't give basic fairness and justice, do you not feel at your level that you have to be more sensitive to the fact that there are people's lives at stake here and that you have to take care when they're asking for asylum and protection in the United States not to let this broken system work to their detriment?
ALITO: We do have to keep in mind just what's at stake, and I do that. I know that a lot is at stake in these cases. And I read the record to see if there is support for the arguments that are made by these petitioners.
But I have no way of supplementing the record. And there are serious problems. One of the most serious problems, I think, is that the witnesses, the asylum seekers generally testify in another language. Sometimes it's a language that is not well represented in the population in the United States, so it may be difficult to get a translator. And the quality of the transcripts is often very poor, which makes it very difficult to understand what was going on before the immigration judge.
Now, there have been cases where we've said the transcript here is so bad that we can't make a decision on this, and we will send it back.
There's the additional problem that the immigration judges are forced to forced to make credibility determinations based on viewing someone who comes from a different culture, where mannerisms, gestures, facial expressions may mean something different than they do in our culture.
ALITO: And I'm aware of that. But these are bigger problems. These are problems for Congress to address. They're not problems that I can address in the context of deciding these particular cases.
DURBIN: Thank you. I agree. And I thank you very much.
And I finished under 15 minutes, Mr. Chairman.
SPECTER: Thank you very much, Senator Durbin. That's appreciated.
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