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Date: January 12, 2006

Senator: Leahy

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SPECTER: Before turning to Senator Leahy for his allotted time, I yield to him if he has any opening comments he chooses to make.

LEAHY: I just think, Mr. Chairman, as we know this will be the last opportunity for the American people to learn what Judge Samuel Alito thinks about the fundamental constitutional rights, whether he's going to serve to protect their liberty, their privacy from government intrusion.

I think it's even more critical today because of the efforts to expand...

SPECTER: Excuse me, Senator. Do you want to start on your 25 minutes?

LEAHY: Oh, no. I thought you were asking me...

SPECTER: No, I do. Yes, opening comments, sure. We're not going to start your time clock until you tell us.

LEAHY: This is just a short opening comment.

SPECTER: Fine.

LEAHY: I just think it's critical. And I know the judge probably feel like he's here doing nothing but being on a hot seat, but he is talking about a lifetime appointment.

And it is the most powerful court in the land. It is at a time when we see this effort to expand presidential powers, such as illegal wiretaps of Americans, the president using a signing statement to create exemptions to laws prohibiting torture.

These are all important things. The Supreme Court's our ultimate guardian -- has to be our ultimate guardian.

LEAHY: And we need to know whether Samuel Alito is willing to be that kind of guardian.

I'm still troubled by some of the questions.

And, Mr. Chairman, I know you're going to be asking questions and I'll wait to ask mine after that, of course.

SPECTER: I'm going to reserve my time at this juncture and turn to Senator Leahy for time, up to 25 minutes.

LEAHY: Thank you.

In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.

I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.

But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."

Judge, do you agree with Chief Justice Roberts?

ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.

And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.

ALITO: And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.

LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.

A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.

We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.

What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?

ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...

LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.

ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.

I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.

If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.

The first procedural step in either instance would be to file a petition with the trial court.

ALITO: If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.

LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.

But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?

ALITO: The Constitution is designed to prevent that.

LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?

In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.

It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.

If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...

ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.

LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.

But I hope at least this idea stays in your mind.

About a decade ago in Washington v. Glucksberg, the Supreme Court declined to find a terminally ill patients had a generalized constitutional right to a physician's aid in dying, preferring the matter be left to the states.

The court noted: "Throughout the nation, Americans are engaged an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."

Chief Justice Rehnquist wrote: "The court's holding permits the debate to continue, as it should in a democratic society."

I remember reading that. I thought it very practical, aside from the legal, a very practical response.

Last spring, we witnessed a fierce legal battle over the medical treatment of Terri Schiavo. She was in a persistent vegetative state for more than a decade.

LEAHY: And ultimately, after she died, the autopsy showed that.

But we found politicians rushing to the cameras, engaging in extraordinary measures to override what the state courts determined to be her own wishes, state courts that heard countless cases on this.

Suddenly, this became the thing -- politicians all over the place, rushing forward.

The power of the federal government was wielded by some to determine, in my view, what were deeply personal choices. The president even came back to Washington in the middle of one of his vacations to sign special legislation on this.

Do you agree with the idea advanced in the Cruzan case that the wishes of an unconscious patient, to the degree they can be known, should govern decisions regarding life-sustaining therapies?

Let's assume that the wishes are clearly known. Should they be followed?

ALITO: Well, the Cruzan case proceeded -- assume, for the sake of argument, which is something that judges often do, that there is a constitutional right to say -- that each of us has a constitutional right to say: I don't want medical treatment.

And the Cruzan decision recognized that this was a right that everybody had at common law. At common law, if someone is subjected to a medical procedure that the person doesn't want, that's a battery and it's a tort. And the person can sue for it. It is illegal. The court did not...

LEAHY: One of those cases where we got something from that foreign law -- in this case, English common law. Is that correct?

ALITO: Well, that's correct. And I think that our whole legal system is an outgrowth of English common law, and I don't...

LEAHY: Just thinking of somebody -- why that popped in my mind. I was thinking of some of the people talk about paying attention to foreign law and most of our law is based on foreign law.

But go ahead.

ALITO: Most of our law...

LEAHY: Common law, common law.

ALITO: ... is an outgrowth of English common law. And I think it helps to understand that background often in analyzing issues that come up.

LEAHY: But you agree with Cruzan? I mean, I'm thinking if somebody has a "do not resuscitate" order, do you agree with that?

ALITO: That's a fundamental principle of common law. And Cruzan assumed for the sake of argument that that would be a fundamental constitutional right.

But that is a right that people have had under our legal system for a long time, to make that decision for themselves.

LEAHY: My wife was -- or is a nurse. And she was working on a medical surgical floor and she had mentioned about people with these DNR, do not resuscitate.

Would you agree that a patient would have a right -- for example, if you have a living will, you have a right to designate somebody who can speak for you in a case of terrible injury or unconscious, speak for you on a "do not resuscitate" or "do not use heroic measures," all the rest? Do you agree with that?

ALITO: Yes, Senator.

That's, I think, an extension of the traditional right that I was talking about that existed under common law. And it's been developed by state legislatures, and in some instances by state courts, to deal with the living will situation and with advances in -- which I think is, in large measure, a response to advances in medical technology, which create new issues in this area.

LEAHY: We have three separate and coequal branches of government, as the Constitution says; have these checks and balances. Most of us feel that if the Congress is going to carry that out, they have to carry out real oversight and make sure the government's accountable to the American people. If you don't do that, corruption, incompetence sets in.

We've given a lot of powers to our government in the fight against terrorism and others. And the check and balance is to make sure there's oversight.

Do you believe in the general principle of the Congress having major oversight powers?

ALITO: I don't think there's any question about that.

LEAHY: Well, let me go -- and I was thinking of this as we were talking about the Schiavo case. And I don't want you to have to get involved in what many thought was, kind of, a sorry exercise when people are already suffering enough -- sorry exercise by the Congress. So I won't talk about the House committee's unbelievable subpoena to Terri Schiavo.

But let me ask you this: Could this committee, the Judiciary Committee, issue a subpoena for a defendant on death row in a state prison if we believed he was about to be executed and thought he was innocent?

ALITO: Could this committee issue a subpoena...

LEAHY: And enforce it?

ALITO: ... to have the defendant come and testify before the committee?

LEAHY: It's an hour before execution, for example, and make it even a tougher case.

ALITO: It's not a question that I ever thought of. Sitting here I can't think of an objection to it, but I would have to hear whatever arguments there were to be made.

LEAHY: You know, this may seem to be bouncing around here a little bit. I'm trying to pull together my own mind after looking at the transcript last night of some of the things you were saying. And you were in a discussion with a number of senators about views of the court, or how the courts -- how the American people view courts and how, basically, in a democracy, courts have to have the respect of people if they're going to be able to carry out their orders.

Brown is probably one of the key examples of that where the chief justice spent two and a half years until he got a unanimous court decision.

Justice O'Connor gave a speech decrying the present climate of antipathy between the judiciary and some members of Congress, and I've spoken with her and others and the late chief justice about this.

She expressed concern about efforts to limit federal court jurisdiction in areas that some members of Congress think the federal court should not be involved. We've seen a number of efforts to strip the federal courts of jurisdiction when some members of Congress felt they disagreed with it.

LEAHY: Now, I thought some of these issues were settled by Marbury and when Chief Justice Marshall said it is emphatically the province and duty of the judicial department to say what the law is.

Now the court-stripping bills are not without precedent. Recent efforts have failed. I recall one where three senators finally talked it down, until it ran out of time. I was one of the three. Senator Lowell Weicker of Connecticut was one of the other three.

On the way out, the third one put his arm around us and said, "I think we're the only true conservatives in this Senate." We both said, "Thank you, Barry Goldwater. We appreciate you joining us in this."

I took it as a great compliment.

Now, imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving segregation of public schools. Would such a law have been constitutional?

ALITO: There's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court. There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.

ALITO: And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.

And there's this debate. It's not something...

LEAHY: Have you taken part in that debate?

ALITO: Pardon me?

LEAHY: Have you taken a position in that debate?

ALITO: I have not taken part in that. And I've read...

LEAHY: Would you like to?

ALITO: Not at this time.

(LAUGHTER)

LEAHY: I don't know why that surprises me.

ALITO: And the case law is not definitive on this question, according to the scholars. Ex Parte McCardle is a case that can be interpreted in a number of different ways.

LEAHY: You know, we had many in the Congress at that time, had they thought that Brown v. Board of Education was about to come down the way it did, probably would have made efforts to strip the authority of the Supreme Court to hear it.

And I'm afraid that, as we find some of these efforts where the courts become a very convenient whipping boy to people looking for votes or whatever, that that might happen again. And I'd suggest that you think long and hard on it.

Let me ask you this. On more than one occasion, the House of Representatives has included a provision in an appropriations bill -- and we all agree that the Congress has the power of the purse -- but in an appropriations bill saying that none of the funds can be spent enforcing a particular court decision. Pick something that they feel is unpopular at the moment, so they say, "No money can be spent to enforce it."

LEAHY: And let us say the court has ruled, basically, on a constitutional issue, saying: "This shall be in force." The Congress says: "No, we won't allow money to be spent."

Does that violate the Constitution?

ALITO: Well, that's also a provocative constitutional question.

I can't recall an instance where that has been done with respect to a constitutional decision. Perhaps it has been.

I do recall, back during the 1980s, that it was done with respect to an issue of antitrust. And I would assume that if there wasn't -- well, obviously, if there isn't a constitutional question raised by that limitation on the expenditure of funds, and if you're talking about a nonconstitutional question, maybe there is no constitutional issue raised, there wouldn't be an obstacle to Congress's doing that.

With respect to a constitutional question, that's a provocative constitutional issue that -- I don't know the answer to it. And I cannot think of precedent on that point. I don't believe there is any.

LEAHY: Well, let's take a nonconstitutional. I want to make sure I understand your answer.

The Congress decision has come down of whatever nature. You mention antitrust -- whatever it is, it comes down from the court. And it is going to require some enforcement. And the Congress says: "No, we're not going to put the money in there."

LEAHY: Can the Congress do that?

ALITO: Well, I'd have to know the facts of the case and hear the arguments on both sides of it.

Unless there was a constitutional objection, then that falls within one of the most important powers of the Congress, the expenditure of funds that Congress exercises.

The framers wanted Congress to have the control of the purse because Congress is the branch that's closest to the people. And I would think that -- and Congress obviously has great latitude in this area.

I don't know what constitutional objections would be raised to doing that with respect to a nonconstitutional question. But I'd have to understand what exactly was going on.

LEAHY: Well, it's something to keep in mind because it may happen.

You know, we can grandstand -- Congress can grandstand the way it did on the Schiavo case, you have to wonder what else may come down.

One of the advantages or disadvantages of being here for a long time -- I've actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion.

And I think the chairman remembers this. He can be a rather tenacious questioner, as I know from some of my weekend phone calls from him.

(LAUGHTER)

LEAHY: But he kept pushing then Justice Rehnquist until he finally got an answer. In the end, then Justice Rehnquist gave his view. He said that Congress could not remove the court's jurisdiction over First Amendment cases.

So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.

My understanding of the writing on the question is that there's a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.

ALITO: And as a matter of constitutional law, I don't feel I can go further than that.

LEAHY: But, Judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the court's jurisdiction over First Amendment cases.

Are you telling me that -- and I just want to make sure I fully understand your answer -- you're not willing to go to the extent then- Justice Rehnquist did at his hearing?

ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.

If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you'd have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.

And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.

So there are undesirable practical consequences of proceeding in that way.

LEAHY: Your answer would be the same if I was asking, I assume, asking the question of the Fourth or the Fifth or Sixth Amendment?

ALITO: It would be, Senator. I have just not studied this issue in enough depth to be able to give an answer. I would have to study it in depth and probably hear it in the context of the case.

What I do know is that there's a division of authority among leading constitutional scholars. And I would not want to hazard an answer to the question here without going into the question, studying the question in considerably greater depth than I have.

LEAHY: This will be my last. And I appreciate the courtesy of the chairman who, I might say, has run this hearing with total fairness, as he always does. I may have some follow-up questions. This will be my last chance to ask you anything.

Under your theory of unitary executive are citizen suit provisions, such as those in our environmental laws, allowing citizens to act basically as a private attorneys general and sue polluters, are they constitutional?

ALITO: I don't see a connection between the unitary executive theory and that issue.

And I think Congress has the authority to create a private cause of action for anyone that Congress chooses to create such a cause of action for, subject only to whatever limitations are imposed by the Constitution.

ALITO: But we often grapple with the issue of whether Congress intended to create a private cause of action for a particular class of plaintiffs. That's a difficult issue that comes up with some frequency in federal litigation.

But where Congress speaks directly to the question and defines the category of plaintiffs who can bring a suit, a citizen suit or whatever it is, then that's definitive; of course, subject only to whatever limitations the Constitution imposes.

LEAHY: Judge, that's an answer -- substance of what you said is something, obviously, I would like. But I'm still troubled by it, because in November of 2000, right after the presidential election, you came and spoke to a meeting of the Annual Federalist Society Lawyers Convention about the powers of the president.

And when you discussed your theory of a unitary executive, you criticized the Supreme Court's upholding the independent counsel statute, among other things.

Is your answer today different than what you were saying then?

ALITO: What I said in that speech was that the Constitution confers the executive power on the president. And when we are dealing with something that is within the president's executive power -- without getting into the scope of executive power; and there, I was focusing on the president's duty to take care that the laws are faithfully executed; that's explicitly set out in the Constitution, so there can't be any debate about whether or not the president has that power -- when we're dealing with something that is within the scope of the president's executive power, the president should have the authority to control the executive branch.

ALITO: And the latest expression of the Supreme Court on that issue at the time was the Morrison decision. And the Morrison decision formulated the governing standard in what I would call functional terms.

And it said that Congress has the authority to place restrictions on the president's ability to remove inferior executive officers provided that, in doing so, Congress does not take away the president's authority to control the executive branch.

And I was talking about the importance of maintaining the principle that the president is the head of the executive branch and should control the executive branch.

LEAHY: But you did, at that time, criticize the Supreme Court upholding independent counsel statute, did you not?

ALITO: I said that it was inconsistent with what you could call the pure theory of the unitary executive.

But at the time, of course, Morrison had been decided. It was a resounding 8-1 decision and it is a very important precedent of the court.

LEAHY: If you were there it might be 7-2; is that what you're suggesting?

ALITO: Well, if it comes up before me, if I'm confirmed, then Morrison is a strong expression of the view of the Supreme Court on the question and an 8-1 precedent on an issue that was important and controversial at the time when it came up before the court.

ALITO: And it was very clear and, as I said, a resounding decision by the Supreme Court on the question.

LEAHY: Well, I'm now intruding on other senators' time. And I may do a follow-up question with you.

Thank you for your answers. We've obviously agreed on some things, disagreed on others. And I appreciate you taking the time to answer.

Mr. Chairman, I appreciate your time.

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