Date: January 12, 2006
Senator: Feinstein
Topic:
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Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
And I'd like to thank you very much for being here. I think the testimony was very interesting. I listened acutely.
And, you know, I think we'd all be very lucky if any one of us had colleagues like you that would come forward and say the things that you all have said.
Let me ask this question. How do you look at the evaluations that have been done, those evaluations that say, "Well, in the cases looked that he has judged," whatever percent it was but let's say it's 70 percent, I'm just making it, in favor of corporations or business, or against the little man? How do you look at that sample and how do you regard that? It's been written about rather extensively.
Anyone that would like to try to answer it.
Judge Becker?
ALDISERT: I would try that.
FEINSTEIN: Oh, all right. Give Judge Becker, because I've known him longer.
BECKER: Senator Feinstein, first of all, you have to keep in mind that -- and I think this is a national -- this statistic applies nationwide. I think somewhere between 80 and 85 percent of cases are affirmed. So a lot of this is going to determine who won in the district court or who won in the agency. So those numbers are skewed by that very fact.
The only other thing I would say is, I haven't analyzed these statistics, but that's nothing I've ever seen. He's voted with me. There was a case not long ago, it was a very thin employment discrimination case which a woman, while she never got to a jury in district court, one of my colleagues wanted to affirm. I was on the fence. And Sam wanted to reverse. I said, "OK, write it up." And we went along.
I've just never seen any evidence that he's for the big guy against the little guy. But I think if you analyze these, I think you'd find most of the statistics come from the fact that the big guy won in the district court and 80 to 85 percent of those case are affirmed, and most of those would have been unanimous.
ALDISERT: I was about to say the same thing, but my good friend Judge Becker, your figure was a little skewed there.
ALDISERT: The percentage of reversals is not 15 percent; it's 8.7 percent...
(LAUGHTER)
... in the statistics of last year of all cases. In criminal cases, through in the figures of 2004, the reversal rate in criminal cases was 5.1 percent.
BECKER: I always defer to the master...
BARRY: And of course it should be added that when we are considering cases on appeal, we are operating on a standard of review. So we are not typically looking at the issues underlying that review.
We're looking at an abusive discretion standard. We're looking at: Were the facts clearly erroneous? So we're not starting from scratch, typically.
FEINSTEIN: Let me ask you this question: The subject of abortion and Roe was raised. And, obviously, if you've listened to the hearings, you've heard the questioning going on, back and forth.
I was very puzzled when I read Chief Justice Roberts' statement before us on Roe and how he answered Senator Specter's questions. And the chief ended up by saying that he felt that Roe was well-settled law. I think he even added to that very well-settled law.
SPECTER: He said settled beyond that.
FEINSTEIN: All right, settled beyond that.
And I asked Judge Alito, and I thought at the very least he was going to agree with Justice Roberts.
FEINSTEIN: And he said, "Well, it all depends upon what settled means."
What do you make of that?
BARRY: I respectfully cannot characterize what Judge Alito meant by that, and I much prefer not to have to try.
FEINSTEIN: That's fine.
Anybody?
(UNKNOWN): I think we're here as fact witnesses more than opinion witnesses, Senator Feinstein, and I really would not answer that question.
FEINSTEIN: Very good, very good.
(UNKNOWN): I couldn't make a judgment on it.
FEINSTEIN: Thank you. Thank you very much.
Thanks, Mr. Chairman.
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