Date: January 12, 2006
Senator: Leahy
Topic:
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SPECTER: Red light went on during your answer.
LEAHY: I think he was referring to myself, professor, good to see you again.
If I could, I just want to follow up on Professor Issacharoff -- and it was nice to meet your sun Lucas (ph) here earlier. That way his name is in the transcript.
ISSACHAROFF: Thank you, Senator.
LEAHY: You know, we've talked about the '85 job application of then Sam Alito for a job in Ed Meese's Justice Department. He stated he developed an interest in constitutional law, motivated in large part -- in large part by a disagreement with the Warren court decision's, particularly in the areas of reapportionment. Now, in the questions he was asked here, he retreated from that unqualified disagreement and said it was based on certain details of later Warren court decisions, like the 1969 case of Kirkpatrick v. Priesler. Does that seem credible that he was telling Mr. Meese in 1985 that in 1969 as a young college student so incensed by the Kirkpatrick case, it motivated him to study constitutional law?
ISSACHAROFF: I think the Kirkpatrick case may have had some impact in the Alito household because of the particular role that his father played, but his statement refers to an intellectual excitement based on the writings of Professor Bickel of Yale. Professor Bickel was not concerned about the implementation of one person, one vote. Professor Bickel was concerned, as was Justice Harlan at the time, that the court should have no business in this area whatsoever, that whatever the political process did, whatever the malfunctions of politics might be, the courts simply were not to be engaged in that process. That's the idea that was animating Professor Bickel and one has to assume was animating the young Sam Alito.
LEAHY: And, of course, Justice Harlan was one of his heroes. If we follow that idea of Harlan's dissent and others, we wouldn't have had reapportionment around this country, would we? Unless reapportionment done politically by those who would reapportion themselves out of office.
ISSACHAROFF: The history of the United States was that for the 20th Century until we got these cases in the 1960s, incumbent officials simply did not reapportion. They had a constitutional duty, including this body in the 1920s, the Congress, the Senate of the United States decided not to reapportion. The Congress simply said, why should we reapportion ourselves out of business? We'll just refuse. Even though we had a constitutional obligation. The lesson was that when power decides to close in on itself and pull the ladders up behind it, the courts have to be there.
Professor Bickel was deeply disturbed by this, and when I read in 1985 that somebody is saying that that's what brought me to constitutional law, it opens questions. I don't have an answer, but it certainly, I do find it puzzling.
LEAHY: Thank you.
And Professor Liu, listening to the two cases you described, the 10-year-old boy shot in the back while -- by an officer who didn't believe he was armed and in any event he wasn't coming at the officer, he was leaving. TV and the (inaudible), these things really bother me. And you now have the merging story that the president may have violated -- actually Congressional Research Service believes he has and ordered others to violate the criminal provisions of the Foreign Intelligence Surveillance Act by spying on Americans. Do you think, from what you've seen here today we should take great comfort that a potential Justice Alito would stand up to the president on those kind of issues?
I look at how deferential he's been to law enforcement and I served in law enforcement as did I chairman. I have a very soft, warm part in my heart for law enforcement. The only thing in my office that has my name on it is my shield from when I was in law enforcement, but doesn't this bother you?
LIU: Well, Senator Leahy, it does. And I won't venture any predictions as to how he would perform as a justice, but I would say that what he urged the committee to do was to believe that he would behave as a justice as he's behaved as a 3rd Circuit judge.
Let me say one thing about the memo. This memo that he wrote in 1984 is about 13, 14 pages long. The first 10 pages of the memorandum contain his own personal individual analysis of this case. I urge all members of the committee to read it, if only to discover that he uses the first-person throughout the first 10 pages of the memo. Only in the last three pages does he discuss whether or not the United States government should file an amicus brief on the side of the state of Tennessee. And what is ironic about the last three pages is that he observes that all federal agencies prohibit precisely this kind of use of deadly force. And that is one of the reasons why he urged against participation amicus participation in this case, because the United States government would be put to a difficult position to show that it really meant the rule that he would have urged.
LEAHY: Thank you.
Professor Gerhardt, I'm going to send you a letter. I had another question for you. I found very instructive your quick history lesson, as I have when you've given longer ones. Thank you, sir.
Thank you, Mr. Chairman. I apologize. I'm going to have to leave at this point for a while, but I know you've got everything under control.
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