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Date: January 12, 2006

Senator: Feingold

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SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.

FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.

SPECTER: So granted.

Set the clock at 25 minutes.

And you're recognized, Senator Feingold.

FEINGOLD: Thank you, Mr. Chairman.

Good morning, Judge. It's nice to talk to you in the morning for once.

And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.

(LAUGHTER)

First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.

I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.

Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.

I note, for example, that one of the people who participated in these sessions was Benjamin Powell.

FEINGOLD: He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.

I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.

So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.

Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.

You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.

After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.

And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.

So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...

FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?

ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.

Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?

I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.

ALITO: So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.

But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.

And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.

ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.

But I think it would be irresponsible for me to say anything on the substance of the question here.

ALITO: And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.

Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, "This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly." And that's all I can say.

FEINGOLD: And I respect your constraints in this regard.

And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.

At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.

ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.

And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.

FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle.

FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.

ALITO: In all the contexts that I'm familiar with, that would be the answer.

FEINGOLD: Thank you for that answer.

I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.

You said that the Constitution, of course, is designed to prevent that. We all agree on that.

But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?

ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final.

If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute.

And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks.

For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law.

ALITO: And if the state prisoner doesn't do that...

FEINGOLD: My question assumes that all that's been done and the process went through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent.

The question is: Does that person in that posture have a constitutional right not to be executed?

ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.

FEINGOLD: You can't say that the person has a constitutional right not to be executed?

ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.

And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.

FEINGOLD: I'll stop on that topic.

But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed.

But I'm glad we could talk about that a bit.

We talk about affirmative action. In her opinion in Grutter v. Bollinger, Justice O'Connor recognized the, quote, "real-world significance and impact of affirmative action programs and policies." And she noted that American businesses need skills obtained through exposure to widely diverse people and cultures. A racially diverse officer corps is essential to the military's ability to fulfill its mission to provide national security. And diversity in colleges and university leads to diversity in civil society, which is, quote, "essential if the dream of one nation indivisible is to be realized," unquote.

Justice O'Connor expressly gave great weight to the views of military leaders who said a highly qualified, racially diverse military is essential.

How much weight would you give to that view?

ALITO: Well, I can speak to the issue of diversity in education from a little bit of my own experience.

A couple of years ago, as an adjunct law professor at Seton Hall Law School, I taught a seminar on civil liberties and terrorism. Because in the wake of the terrorist attacks on 9/11, it became apparent to me that there were going to be a lot of civil liberties issues raised, it seemed to me that these were issues of the utmost importance, so I put together a seminar on the question.

And the first time I conducted the class, we had a class with people of extremely diverse backgrounds relating to this issue. There was a student who had been in the special forces in Bosnia. There was a student who was a Muslim from the Middle East.

ALITO: There were a number of students who had been personally affected, in one way or another, by the terrorist attacks on the World Trade Center. There were students who felt very strongly about civil liberties.

And having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.

So in that setting I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.

And the Supreme Court has expressed the view that diversity is a compelling interest, having a diverse student body is a compelling interest. Justice Powell voiced that back in the Bacci case, and it's been reiterated in a number of cases, and, most prominently, most recently in the Grutter case.

FEINGOLD: Yes, in fact, in Gratz and Grutter, seven of the nine justices -- all but Justices Scalia and Thomas -- reaffirmed Justice Powell's determination of the Bacci case that the state has a compelling interest in promoting diversity in the classroom.

Do you think that increasing diversity in the classroom is a compelling state interest?

ALITO: Well, I've spoken to my own personal experience about its importance in education. And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education. And it's the Supreme Court's recent word on this issue.

FEINGOLD: I hope you'll think it fair that nothing about what you just said would suggest to me that you think it's anything less than a compelling state interest.

ALITO: It's a precedent. And the Supreme Court has dealt with this over a time, and that's the conclusion that they've drawn.

FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?

ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.

FEINGOLD: Thank you, Judge.

2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, "sinful," unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.

ALITO: And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.

FEINGOLD: Thank you, Judge.

Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?

ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.

FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?

ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.

FEINGOLD: Judge, let me switch to an ethics issue that is not Vanguard. As you know, after your testimony concludes today, a number of outside witnesses are coming to testify about your nomination, including seven current and former judges from your court.

As far as I know, this is the first time that sitting federal judges have testified on behalf of the Supreme Court nominee. And I'm a little troubled by it. I hope to have some opportunity to question the judges about this, but I think it may raise something of an ethical issue for you.

If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?

ALITO: That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.

FEINGOLD: Perhaps you could give me an answer after you've had a chance to think about it?

ALITO: I would certainly be happy to do that.

FEINGOLD: I appreciate that.

Well, Mr. Chairman, I think that is sufficient. Thank you very much.

SPECTER: Thank you very much, Senator Feingold.

We are on course to finish you before lunch time, Judge Alito. We have more potential questions from the Republican side, and we have two more Democratic side.

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