Date: January 12, 2006
Senator: Specter
Topic:
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SPECTER: Thank you very much, Judge Lewis.
This distinguished panel has been accorded much more time than we customarily allow because of the very large number of witnesses which we have.
SPECTER: But out of deference to your positions and your coming here and your unique knowledge, we have done that.
I would like to ask each of you a great many questions, but I'm going to limit myself to five minutes. And I would urge that the responses be sounds clips.
You haven't had as much experience with that as we have, but on the networks a sound clip goes for about eight seconds and locally about 18 seconds. You don't have to quite do that, but as close as you can.
You can start my clock now.
Judge Becker, the conference is a unique opportunity, as has been explained, to really find out about what your colleagues think. Do you think -- is your judgment that Judge Alito would allow his personal views on a matter to influence his decisions as a justice?
BECKER: I do not think that. I am confident that he would not.
SPECTER: Judge Garth, you spoke about stare decisis. You have been quoted about your views of Judge Alito as to his approach, if confirmed, where the bounds of a Supreme Court justice on stare decisis are not the same as a court of appeals judge.
As Judge Gibbons has noted, the issue of a women's right to choose has become a very central factor in our deliberations. Do you have any insights which you would care to offer as to how Judge Alito would weigh the issue of stare decisis on that particular subject?
GARTH: (OFF-MIKE) And it would be presumptuous of me to even think of how he would rule on that subject.
GARTH: But I can tell you that when it comes to applying the precedents in our court and in the Supreme Court, he has always been assiduous in the manner in which he has applied them. And he has always had good reason and principle.
I can't say more than repeat again that I believe that Judge Alito, when he described to the committee how he would rule on a case and what he would do in respect of stare decisis, I could not express it better than he did.
SPECTER: Judge Barry, you've sat with him in these private conferences, known him for a long time, back to days when you were in the -- and I hadn't noted that -- you were in the U.S. Attorney's Office when he was an assistant. How would you evaluate Judge Alito on his consideration of women's issues?
BARRY: If I had to add anything to my initial testimony, I would have stated more about what Sam and I did together on this wonderful court and how reasonable he was, and how he never indicated bias of any kind.
I told you at the outset I have known Judge Alito for almost 30 years. I have the utmost respect for him. I have never heard him say one thing that would give me any reason to believe that he would give other than the most careful consideration to what you described as women's issues.
SPECTER: Judge Lewis, I have a question for you. And then I'm going to propound a question for the other three judges before my red light goes on.
SPECTER: I would like you to be a little more specific in your evaluation on Judge Alito as to how he would handle the civil rights issue.
And I'm not going to wait for to you start to answer because my red light will go on in advance.
And then I'm going to ask Judge Scirica, Judge Aldisert and Judge Gibbons to address the subject which has concerned this committee in some detail, as to whether there is any tilt in Judge Alito's approach to the powerful, to the government, as opposed to the average citizen whom we characterize as "the little guy?"
Would you start, Judge Lewis, with your evaluation?
LEWIS: Yes, I will. Thank you, Senator.
Let me begin by saying that, if I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today.
That's the first thing that I want to make clear.
My experience in civil rights cases on the 3rd Circuit were primarily in the Title VII area, with Judge Alito. And there were cases in which we agreed and cases where we disagreed.
There was one in particular, the Piscataway case which was, for lack of a better term, a reverse discrimination case that became an en banc matter where I and a number of my colleagues wound up writing dissenting opinions.
But that was a very close and, I think, very closely contested case having to do with whether or not Title VII contemplated diversity as an interest that an employer could use.
And, to my disagreement and chagrin, the majority did not agree with Judge Sloviter, Judge McKee and myself in that case.
But I never felt that Judge Alito or any of my colleagues who were in the majority in that case were in any sense hostile to civil rights interests. It was a legal question and they came out the way that they did.
In other cases -- for example, the Aman v. Cort Furniture case which I authored.
LEWIS: Judge Alito was not on the panel, but as I think Judge Gibbons mentioned, all opinions are circulated on the 3rd Circuit.
And so really, any opinion that comes out as the opinion of the court. I don't believe in that case, which was another Title VII case that I think furthered the law in some very important respects, defining racial code words as actionable under Title VII -- I believe that Judge Alito went along with that. I was very happy that he did that. And there were others.
My sense of civil rights matters and how courts should approach them jurisprudentially might be a little different. I believe in being a little more aggressive in these areas.
But I cannot argue with a more restrained approach. As long as my argument is going to be heard and respected, I know that I have a chance. And I believe that Sam Alito will be the type of justice who will listen with an open mind and will not have any agenda-driven or result-oriented approach.
SPECTER: Judge Scirica, would you reply as briefly as you can as to the question I've posed?
SCIRICA: In my 15 years with Sam Alito, I have never seen any indication that he would favor that particular interest.
SPECTER: Judge Aldisert?
ALDISERT: Well, I'd approach it from a rather personal standpoint.
Judge Alito is an American of Italian origin and, until quite recently, Americans of Italian origin were subject to a lot of discrimination -- quotas as to whether they could get into professional schools.
A little example in my particular case. When you consider all the Americans of Italian origin from New England, Connecticut, New York, New Jersey, Pennsylvania and along the seaboard, there had never been an American of Italian origin -- where these millions of Americans of Italian origin lived -- there had never been an American of Italian origin ever appointed to the United States Court of Appeals until President Johnson appointed me in 1968.
ALDISERT: So I can speak from experience: Things are better now, but I have lived through that.
When you look at Judge Alito, his father came to the United States as an Italian immigrant at a very early age. And I'm certain that the idea of protecting the rights of the so-called little guy is in the genes of Samuel A. Alito Jr.
SPECTER: Judge Gibbons, as briefly as you can.
GIBBONS: Well, his attitude toward criminal defendants is of some significance for our law firm, because we have a very big white collar criminal defense practice. And my partner, Larry Lustberg, prepared a memo on the subject.
He says although given his prosecutorial background, Judge Alito has been seen by many of the defense bar as pro-government. A thorough review of his record shows that, in fact, he's a fair-minded jurist who pays careful attention to the record below and who takes great pains to apply precedent.
Now he then goes on in the memo to review the series of cases in which Judge Alito decided against the government on many significant issues.
And he concludes, "While, like most appellate judges, there are far more decisions affirming than reversing convictions" -- that is certainly true of every judge who's sat on the court of appeals -- "Judge Alito's jurisprudence is properly characterized as careful, based on precedent and particularly attentive to the record. If that record does not support affirmance, he reverses."
But he also included an admonition to the rest of the department that you better know the record, because he will.
SPECTER: Thank you, Judge Gibbons.
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