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Date: January 12, 2006

Senator: Hatch

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SPECTER: Senator Hatch?

HATCH: Well, I want to express my gratitude to all of you judges -- you too out there in the West, Judge Garth -- for coming here today and helping this committee.

It was pretty apparent that I got quite emotional when my old friend Judge Aldisert testified -- I really did. I got emotional because I care for you and I watched you for years there and just have a tremendous amount of respect. Read your books -- and you've always sent them to me. And that's meant a lot to me.

But you all mean a lot to me. It's no secret that, with very few exceptions, I love the federal courts. I love the judges. And there are very few exceptions.

There are a few that I think you could name yourselves.

(LAUGHTER)

But by and large -- you know, we pass unconstitutional legislation up here all the time and the president sometimes, too.

(LAUGHTER)

If it hadn't been for the courts, we would probably not have preserved the Constitution.

(LAUGHTER)

So I want to give you all credit for that.

But let me just say this -- by the way, just to correct the record, what Judge, now Chief Justice Roberts -- he and Judge Alito basically said the same thing. They said, well, it's settled as a precedent of the court -- with regard to Roe v. Wade. And that's exactly what he said. Entitled to respect under principles of stare decisis. That's basically what Alito said.

HATCH: And Roberts said, "And it is settled as a precedent of the court, yes."

So Senator Specter asked him some more, and then he said, I think the initial question for the judge confronting an issue in this area -- you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.

So these are maybe touchy words, but it's important to get it right.

Now, one of the most prominent issues in this hearing has been how Judge Alito views the role of precedent in deciding cases. Too often, I think, the objective seems not so much to get insight into Judge Alito's general views about precedent, but about clues about how he will treat particular precedents.

First, let me make this point about Judge Alito's record regarding circuit precedent. As I understand it, the appeals court can reconsider its own precedents only when all 3rd Circuit judges sit together en banc.

Is that correct?

(UNKNOWN): That is correct.

HATCH: OK. It is my understanding that in his 15 years on the 3rd Circuit, Judge Alito has participated in 38 en banc decisions.

Now, Judge Alito voted to overturn circuit precedent in just four of those cases. Two of those decisions were unanimous, all judges agreed.

Now, that does not look to me like someone who plays fast and loose with precedent.

Let me just ask you, Judge Becker -- and if anybody disagrees with what Judge Becker says I'll be happy to have you respond -- let me ask you a question about Judge Alito's handling of -- and the reason I ask Judge Becker is Judge Becker, as Senator Specter said, is the 101st senator. He came down here and gave (inaudible) time trying to help this asbestos problem, and we all respect him for that.

Let me just say, I know you have participated in more than 1,000 cases -- or decisions rather -- with Judge Alito. All of you, of course, can offer your thoughts as well.

Yesterday during the hearing, one of my Democratic colleagues held up some charts listing quotes from a few case in which Judge Alito's colleagues criticized how he applied circuit precedent. The picture that was painted was that Judge Alito misapplies precedent when it suits him -- suggesting, I suppose, that he might be an activist or careless in this regard on the Supreme Court.

HATCH: Now I certainly agree that the views of his fellow judges are particularly relevant on this point, and having you here is very valuable to all of us for that reason.

Now, asking you all about this here seems more useful than a few selective sentence fragments on a chart.

Realizing, Judge Becker, that judges do not always agree on every single point every single time, how would you characterize Judge Alito's overall view or approach to precedent?

BECKER: Respectful of it. I've never seen what was portrayed where...

(CROSSTALK)

BECKER: Judge Alito might have disagreed with prior precedent, but he followed it unless he felt that it was dicta -- in which case it wouldn't be precedent...

HATCH: Right.

BECKER: ... or the case was distinguishable. But I have never seen him ignore or disregard precedent.

HATCH: Has any of the rest of you seen that?

(UNKNOWN): No.

HATCH: Judge Aldisert?

ALDISERT: Judge Hatch...

HATCH: Senator Hatch, please.

(LAUGHTER)

ALDISERT: I wanted to answer Judge Feinstein (sic) the same way.

In my book "The Judicial Process: Text, Materials and Cases," second edition, 1996, I have an entire chapter on precedent.

And one of those sections is called viability of precedent or when do you depart? And there's a sophisticated body of law -- and I cite cases with Justice Sandra Day O'Connor, Thurgood Marshall and a few others.

And there are also some very important scholarly academic articles on it. And I think that Judge Alito's expression that it depends is a statement that you have to consider all the factors on all the Supreme Court cases that discuss when do we depart from precedent?

ALDISERT: And there's a body of law. And it's in my case book.

HATCH: Thank you so much.

Mr. Chairman, I want to thank all of these great judges for being here. And I want to thank you, Judge Lewis, for taking time to be here, in particular. We just really respect you. I love and respect the 3rd Circuit Court of Appeals.

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