Date: January 12, 2006
Senator: Sessions
Topic:
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SPECTER: Senator Sessions, do you have any questions?
SESSIONS: Just a few. I would just respond to Senator Schumer and Senator Kennedy, and would note that that's not what the ABA has concluded. They've interviewed 300 of your colleagues, judges and lawyers who practice before you and against you, and they rate you the highest possible rating. They don't see you as an extremist, out of the mainstream or otherwise.
And I also want to thank your family for their patience in going through all of this and listening to those of us on this side as we expostulate on all sorts of things.
And I see your sister back there, in your own right a nationally known attorney.
Rosemary, it's good to see you here.
I understand you were debate partners in high school. It must have been an interesting household to have two prominent lawyers growing up.
So I'll ask you how that was and who was the best debater.
(LAUGHTER)
ALITO: Well, I'll take the Fifth Amendment on the second part of the question.
(LAUGHTER)
But it structured our arguments. So instead of arguing about things at home, we would argue about the issues that we were debating.
My wife insists that we actually argued a debate in front of her class. We didn't know each other at all at the time and didn't meet actually for many, many years later. But we did have a debate at her high school, which was about 20 miles away, and she insists she remembers seeing us debating in front of her French class.
SESSIONS: Well, it must have been an interesting thing. Apparently, your colleagues in school there were impressed.
SESSIONS: They predicted you would serve on the Supreme Court one day. And I think that's going to turn out to be a good prediction.
I would point out, Judge Alito, that you've been asked a lot about separation of powers, FISA act and those kind of things. This Congress has not clarified its position yet. As a judge, if some of these issues were to come before you involving congressional power or something, you would expect the Congress to have formulated its position first, would you not?
ALITO: That would certainly be very helpful.
These are very momentous issues and they're difficult issues and they have just come to the surface in the last few weeks. I couldn't begin to say how I would decide any of these issues without going through the whole judicial decision-making process. I think it would be the height of irresponsibility for me to try to do that.
SESSIONS: I would agree.
The chairman is going to be having hearings within a few weeks here to discuss many of these issues. And it's something that every senator will be engaged in, whether they desire to or not. And we'll have to think these important issues through. And I don't think they're ripe yet for a decision, that's for sure.
I would also note that, with regard to Justice Jackson's position on the president and his war-making powers and the question of when he is a high position and a lower ebb position, Chief Justice Rehnquist discussed that idea in Dames & Moore v. Reagan and, in fact, pointed out that that doesn't completely answer the question, those answers are not black and white, and that there's a spectrum running from explicit congressional authorization to explicit congressional prohibition.
SESSIONS: So there are many factors that must be considered, would you not agree, as you analyze those matters?
ALITO: Yes. You have to know the specifics of the situation.
SESSIONS: On the question of jurisdiction of the Supreme Court and whether Congress has the power to contain it in some way, it does appear there's language in the Constitution that indicates that, as you said yesterday. It's there.
My question to you is: Do you believe that the three branches of government owe it to our country and to our constituents to stay within our bounds and to avoid a constitutional confrontation, a constitutional crisis?
Isn't it better that if the courts to restrain themselves, that Congress would restrain itself and not go forward to an ultimate confrontation of those issues?
ALITO: It certainly is.
The issue of the ability of Congress to take away the Supreme Court's jurisdiction over a particular subject of cases is not something that I have previously addressed in writings, unlike a lot of previous nominees who had addressed that, and therefore, I think, felt that they were freer to discuss that when they came before the committee.
That's not something I've ever addressed in any writing, nor is it something that I've studied, other than to read some of the authorities who have addressed the question.
I did mention that I had given a speech expressing the idea that I thought that it was not a good policy idea. I can understand the motivation, but I don't think that it's good, as a matter of policy, to proceed in that fashion.
And I don't know what the argument would be, as I sit here, in favor of taking away jurisdiction over an entire class of cases. That would raise some serious constitutional questions.
SESSIONS: I would just say to you: I think we ought not to confront that question if we can avoid it. And that's why I have not joined in legislation, some of which has been filed in this Congress, to take jurisdiction away.
SESSIONS: But I do believe that is some power that's been given to the Congress; hopefully will not have to be used, hopefully that sword will never be drawn because the court will show restraint and remain within the constitutional powers that they have.
With regard to the unitary executive, there are just three branches of government in our Constitution. That's correct, is it not?
ALITO: That's all I see in it.
(LAUGHTER)
SESSIONS: Well, does every agency and department have to be within one or the other?
ALITO: I think they do.
That doesn't say that they can't be structured in ways that differ from each other depending on their function. And that doesn't address the issue of the separate issues of appointment or removal or whether -- well, let me just leave it there with appointment and removal.
But I think that the Constitution sets up three branches and everything has to be within one of those branches.
SESSIONS: One of the things that I learned as United States attorney is these agencies think they're independent entities. They think they're almost like nations. When they get together -- you probably had this experience -- they sign memorandums of understanding. Wouldn't you agree they sometimes look awfully like treaties?
ALITO: Yes, they do look like treaties between federal law- enforcement agencies and state law-enforcement agencies.
SESSIONS: But, of course, the federal government is one. They can't take two positions in a lawsuit, that's for certain.
With regard to interstate commerce, there is a limit to that, to the power of the government, I believe. In the Hobbs Act, in the racketeering act that Senator Schumer mentioned, doesn't it say within those acts that the extortion or the pattern of racketeering has to affect interstate commerce and that is an element the prosecutor must prove before a conviction can be obtained?
ALITO: Yes, that's right.
And the federal criminal statutes that I'm familiar with, almost without exception, have jurisdictional elements in them. That's the traditional way of casting them.
ALITO: There are a few areas where that's not feasible, such as drugs, but most of the statutes have jurisdictional elements right in them.
SESSIONS: And that's basically the Lopez holding, was it not? And in your opinion in Rybar, you specifically said all the Congress needed to do was to put in an interstate commerce nexus that would be proved to the jury, which -- I agree with you, having prosecuted hundreds of drug cases -- it's not ever been a problem in those cases to prove.
That would have solved the problem, isn't that correct?
ALITO: That's right. In firearms cases, that's just not a problem.
SESSIONS: Well, I think you've testified extremely well here. You have been most forthcoming. I disagree with the recent comment that you haven't been forthcoming.
I would say, and I think Senator Biden indicated, that we have not had a witness more forthcoming, more willing to discuss the issues than you have.
Thank you.
SPECTER: Thank you, Senator Sessions.
I thought we were going to get to that light at the end of the tunnel before 1:00. It looks like we're going to be a little later than that. But we don't want to take a break now, so to the extent we could move ahead rapidly, it would be appreciated.
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