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Date: January 12, 2006

Senator: Kennedy

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SPECTER: Senator Kennedy, you're recognized for up to 25 minutes.

KENNEDY: Thank you. Thank you.

Good morning.

ALITO: Good morning, Senator.

KENNEDY: Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech you gave at the Federalist Society.

Well, I'll mention just the one part of it that is of concern: "If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches -- legislative, executive judicial -- and the logical candidate is the executive branch.

And the president, it continues, the president has the power and the duty to supervise the way to which the board and the executive branch officials exercise the president's power, carrying federal law into execution."

KENNEDY: So we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.

ALITO: Yes. It was the leading case. It was followed up by Morrison cases.

KENNEDY: Followed up by the Morrison case as the controlling case on the administrative agencies.

What you haven't mentioned to date is that the theory -- what you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.

We want to know about -- you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority.

But then in your comments about the Morrison, you then proceed to outline a legal strategy for getting around Morrison.

This is what you said: "Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive." That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.

Our questions in this hearing is: What is your view of the unitary presidency?

KENNEDY: You've responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.

And it includes these words: that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.

Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?

ALITO: I don't think that it would, Senator. The administrative agencies -- the term administrative agencies is a broad term, and it includes...

KENNEDY: The Federal Reserve?

ALITO: It includes agencies that are not regarded as so-called independent agencies. It includes agencies that is are within -- that are squarely within the executive branch under anybody's understanding of the term, agencies that are headed by a presidential appointee whose term of office is at the pleasure of the president.

And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies -- the term administrative agencies is not synonymous with agencies like the FTC which was involved in the Humphrey's Executor case where the agency is headed by a commission and commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency -- of the commissioners.

KENNEDY: Well, the point, Judge -- the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, "The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate.

KENNEDY: You're admitting now that it has to do with the administrative agencies. And this would have a dramatic and important reconsideration of the balance between the executive and the Congress.

I haven't got the time to go through.

But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.

ALITO: Senator, as to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed.

KENNEDY: But the point here is you take exception to Morrison. You're very clear about -- we're interested in your views. We understand Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents.

But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do as well with the balance between the executive and the Congress in a very important way in terms of the use of administrative agencies.

I haven't got the time to go over through. But we did have some discussion about those agencies and how it would alter the balance of authority and power between the Congress and the executive.

KENNEDY: That's very important. It's enormously interesting. We've has Professor Calabrese from Harvard University spell this out in great detail now, and I know you've separated yourself a bit from his thinking to the extent that he would go in terms of administrative agencies.

The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that's really the point.

ALITO: Senator Kennedy, what I've tried to say is that I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.

And that is an expression of the Supreme Court's view on an issue where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.

KENNEDY: Well, the point is that you've differed with the Morrison and outlined a different kind of a strategy.

I want to move on. I want to come back just briefly again to the Vanguard issue, which continues to trouble and puzzle me by your answers to me and others.

Now, just to get back to the starting point, in your sworn statement to the committee when you were nominated to the circuit court in 1990, on page 15 of that statement you wrote this about your recusal practices: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard Companies."

KENNEDY: So according to your sworn promise, you were going to recuse yourself from cases involving the Vanguard Companies, is that correct?

ALITO: I said I would disqualify myself from any cases involving the Vanguard Companies.

KENNEDY: Recuse. All right.

You also said you'd recuse yourself from any case involving your sister's firm...

ALITO: That's correct.

KENNEDY: ... in cases in which you were involved in the U.S. Attorney's Office. Is that correct?

ALITO: Yes, that's correct.

KENNEDY: And there's been some discussion as to whether that commitment covered only the initial period of your judgeship. And I'm not going to go on into that. I'm not going into that.

I just want to know about the steps you took to meet your commitment to the committee even in the initial years. On Tuesday, you told Senator Feingold that you had no recollection of whether you put Vanguard on your recusal list when you were first appointed to the bench in 1990.

Is that still right?

ALITO: That's correct. I don't have the initial list that was submitted to the clerk's office. And I think I clarified, in response to Senator Feingold's question, that that is a list that is used by the clerk's office to make the first cut on recusal issues. But it is not by any means the last word.

KENNEDY: OK.

And in 1990, you owned $80,000 of Vanguard funds. Is that right? And over the year it grew to hundreds of thousands. Is that correct?

ALITO: It grew, yes.

KENNEDY: So you were getting reports from Vanguard now either monthly or quarterly or annually, were you not -- reporting?

ALITO: Yes, I was.

KENNEDY: All during this period of time?

ALITO: Yes.

KENNEDY: Do you know whether Vanguard was on your recusal list in 1991?

ALITO: I don't know what was on the list that was with the clerk's office prior to the time when the system was computerized.

ALITO: And I have seen recently -- and I believe you have -- copies of the list that were on the computer. And those lists do not include Vanguard. There's no question about that.

KENNEDY: We received your standing recusal list from the 3rd Circuit earlier this week. It's dated January 28th, 1993. Vanguard is not on it. You have your sister's law firm on it, you have your cases from the U.S. Attorney's Office on it, but not Vanguard, your largest investment.

Here are the recusal lists for 1994, 1995, 1996 and Vanguard is not on it any of them either.

Do you have any reason to disagree with the report from the clerk of the court?

ALITO: I don't, Senator. I don't know whether -- I have no comment on the list. That's the list that they had. I don't know exactly how that list came about, but that's the list they have.

KENNEDY: What does it say at the top of 1/28/93 list under the date? As I understand it, it says no changes.

ALITO: As of 1/28/93, no changes. That's correct.

KENNEDY: This was '93. So there were no changes in that from '92. And you've listed probably eight or nine different items on there, have you not?

ALITO: There are eight items listed.

KENNEDY: OK. So you have eight items on there. Vanguard isn't on. And it says no changes from the previous year. So I assume that means '92 list was the same. So you did not have Vanguard on the '92 list either.

Do you remember whether you ever placed Vanguard on your recusal list at anytime between the time you were sworn in and January 1993?

ALITO: As I said, I don't have a copy of lists that predate this. In fact, I didn't have a copy of these lists. And I don't know -- obviously, I can't recall what was on their earlier list.

KENNEDY: Well, in 1994, you removed the U.S. Attorney's Office from your recusal list. Is that right?

ALITO: Yes.

KENNEDY: So you did revisit the recusal list at that time?

ALITO: I notified the clerk's office to take the U.S. Attorney's Office off the list. I actually think I have a copy of the letter that I sent there. I don't believe that I looked at the list and crossed it off the list.

I sent them a letter and I outlined -- I say, it's now been four years. This was another instance of my going beyond what I had to do. I recused myself in everything from the office, not just things that were there while I was in office.

And after the passage of four years, I thought that the cases that I had had any possible connection has washed out.

And so, I sent a letter, and have a copy of the letter, saying, take it off this list but notify the U.S. Attorney's Office and the public defender's offices that they should notify the clerk's office if any case comes up in which they have any reason to believe that any aspect of the case was in the U.S. Attorney's Office while I was there.

KENNEDY: Well, I just mentioned that one of the things you had to do was put Vanguard on the list, was it not, because you gave assurances to the committee, sworn testimony, that you were going to recuse yourself? That was one of the things.

ALITO: Senator, if it was not on the initial list, then that would be an oversight on my part. I said, in answering the question to the Senate, I don't believe conflicts of interest are likely to arise. They rarely do arise with respect to mutual funds.

That's one of the main reasons judges and other people who have to worry about conflicts, invest in mutual funds. And no Vanguard case -- no case involving Vanguard -- came before me for 12 years.

KENNEDY: Well, the point is judges, as I understand and as their responsibility, take the whole issue on recusal extremely seriously and review those lists very, very carefully. And given the assurances and the pledge and the promise under oath to the committee and not to find out that it's on your list.

And over the periods of these last weeks, we've heard so many explanations, Judge. This is what confuses us.

We heard, first of all, that it's a computer glitch. And then we hear, "Well, it doesn't really apply because it's an initial service list. So Vanguard didn't -- I wasn't in it because I didn't make the decisions on it until after I'd been in 12 years. I made the pledge to the committee. I don't know how good that pledge was, or how many years it was good, but that initial pledge -- initial service meant I didn't have to do it."

And then we heard the excuse, "Well, it was a pro se case, and we had different computers." That was what was mentioned in my office, "It's a pro se case, and we have different computers. They're different computers in the clerk's office than exist in the law firms here in Washington from all over the country."

I could never quite understand it, because pro se, obviously talking about individuals, you'd think that might even have a higher kind of a requirement.

But the facts are that you never put that Vanguard on your recusal list and all of these papers were in your control. And that, I think, is a matter of concern -- should be to all of us for the reasons.

ALITO: Senator, can I just say a brief comment on that?

I've tried to be as forthcoming in explaining what happened here as I possibly could be. And I am one of those judges that you described who take recusals very, very seriously. And I served for 15 and a half years. I sat on the merits on well over 4,000 cases.

ALITO: In addition to that, let me just mention the statistics for a recent year. And I think these are typical of my entire period of service.

During the last calendar year, I received over 500 petitions for rehearing -- most of those are in cases I didn't sit on initially; over 400 motions -- most of those are in cases that I didn't hear on the merits.

And many of those are just as important as appeals on the merits because they involve things like whether someone is going to be removed to a country where the person claims that they will be subjected to persecution or there are applications by habeas petitioners for permission to take an appeal in a habeas case. And if we don't issue the certificate of appealability, that's the end of the matter for that petitioner, who may be serving a very length sentence or a life sentence.

So we're talking about well over a thousand cases a year. And this is over a course of 15 years. This Monga case is one case -- and I've said there was an oversight on my part in not focusing on my personal practice when the issue came before me. And when the recusal issue was brought to my attention, I did everything that I could to make sure that nobody could come away from this with the impression that this Ms. Maharaj got anything other than an absolutely fair appeal.

But I've tried to explain the whole thing. I have not given conflicting answers. But I've been asked a number of different questions and there are a number of steps that were involved in what took place.

The fact that it was a pro se case -- I mention that not because the pro se cases are any less important than any other category of cases; they're very important. But it is the fact that our court uses a different system.

ALITO: For pro se cases, we don't have these clearance sheets. And that's when I have typically focused on the issue of recusal.

KENNEDY: Well, I thank you, Judge.

I think if we had in the beginning -- we all make mistakes and all of us, and I've certainly made more than my share. But when we have a statement on this, I think we could have cleared this all up in the very beginning if you just said, "It was a mistake, it wasn't on the list, it should have been on the list," as we're saying now, we would never have had to get all this -- go through this.

But we've had a series of explanations: "The light not going off when I looked over the Vanguard case," the computer glitches, the changes of the computers, "I wasn't told by my clerks." We had all of those statements. And so this was what troubles many of us on the committee about getting the straight answers on an issue which is of great importance.

Mr. Chairman, I want to just, and will use the remainder of my time with a brief comment.

I want to thank our chairman for the fair and dignified way that he's conducted the hearing.

I thank our ranking, Senator Leahy, for his usual courtesies as well.

And I thank Judge Alito for your willingness to serve. And thanks to your family for being here and for the support they've given throughout these hearings.

These stakes are very high and that was reflected in the variety of questions posed over the past three days.

We started these hearings seeking answers. We've come with even more questions about Judge Alito's commitment to the fairness and equality for all.

Unitary executive: We discussed Judge Alito's expansive views on presidential authority. He distanced himself from the theory of the so-called unitary executive, one that promotes extremely expanded executive power.

He gave the committee the platitudes about Supreme Court precedent on the Constitution, but his comments before this committee run away from his statements of the past, some as recently as five years ago, that embrace this fairly radical, and I believe bizarre, theory.

KENNEDY: Professor Steven Calabresi, one of the originator of the unitary executive theory, says that, "The impact on this nation is vast and dramatic. It obliterates the independence of agencies that protect the public, such as the Consumer Product Safety Commission, the Election Commission, Security Exchange Commission and much more."

It makes no sense to describe the effects of this bizarre theory in any other terms. That's how its founders brazenly described it.

Somehow Judge Alito expects us to buy his unique and lonely portrayal of this radical theory as something less than it is.

On the Concerned Alumni of Princeton, much has been made of the wide interest in Judge Alito's interest in this organization, and its, frankly, bigoted views. I was pleased that Judge Alito distanced himself from its repulsive anti-woman, anti-black, anti-disability, anti-gay pronouncements; views that we especially pronounced at the time that Judge Alito believes he joined.

But we still do not have a clear answer to why Judge Alito joined this reprehensible group in the first place. We still do not know why he believed that membership in the group would enhance his job application in the Reagan Justice Department. We still don't know why he chose this organization among so many other organizations that he likely belonged to, but somehow can't remember why.

In the Vanguard, some of our Republican colleagues find it shocking that we would even question Judge Alito about his failure to recuse himself from Vanguard cases. But the real shock is that Judge Alito failed to meet his sworn promise to this committee more seriously.

He says it was an oversight that he corrected 12 years after he made that promise. But now we know, from his own testimony and records, that he apparently never put Vanguard on the recusal list, even immediately after his promise to this committee.

KENNEDY: He has failed to give us any plausible explanation. The bottom line is that he just didn't think his commitment to the committee and to the United States Senate was important enough to honor.

In the 1985 job application in my office, Judge Alito tried to distance himself from the ideological views and legal opinions expressed in the '85 job application to the Reagan Justice Department. He brushed it off as just a job application.

Now he has tried, before the committee, to distance himself from the stunning statement that the White House and Congress somehow are superior to the Supreme Court, the keeper of our liberties.

He didn't back away one inch from his view that a woman's right to make her own reproductive decision is not protected under the Constitution. He didn't back away from his criticism of the principle of one person, one vote.

And on the cases he decided, in case after case, we see legal contortions and inconsistent reasoning to bend over backward to help the powerful. He may cite instances to think that he helped the little guy, but the records clear that the average person has a hard time getting a fair shake in Judge Alito's courtroom.

We're not expecting judges to produce particular results in their decisions, but we do expect fairness, for understanding the real-world impact of their decisions.

Frankly, it would be more comforting if Judge Alito gave individuals the same benefit of the doubt in his courtroom that he's asking from this committee on Vanguard, CAP, the unitary executive and women's privacy.

Now the debate over the nomination continues. In the end, this debate really is about the path of progress and the kind of America we hope to become.

America is noblest when it is just to all of its citizens in equal measure. America is freest when the rights and liberties of all are respected. America is strongest when all can share fairly in its prosperity. And we need a court that will hold us true to these guiding principles today and into the future.

Thank you very much, Mr. Chairman.

SPECTER: Thank you, Senator Kennedy.

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