Date: January 12, 2006
Senator: Witness - Liu
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SPECTER: Thank you very much, Mr. Phillips.
Professor Goodwin Liu is an expert in constitutional law, civil rights and the Supreme Court at the University of California Boalt Hall. He is a graduate of Stanford with a bachelor's degree, and masters from Oxford, and a law degree from Yale law school in 1998. He served as a law clerk for Supreme Court Justice Ruth Bader Ginsburg during the October 2000 term.
Thank you for coming in today, Professor Liu, and we look forward to your testimony.
LIU: Thank you, Mr. Chairman. I'm very honored to be here today.
I agree with all of my fellow panelists that Samuel Alito has a very talented legal mind. I have read over 50 of his opinions. They are very sharp, analytical, intellectually honest. But if intellect alone were enough, then these hearings would be unnecessary.
We care about the judicial philosophy of the nominee, and so to prepare for these hearings, I studied Judge Alito's opinions on individual rights versus government power. His record is enormous, and, Mr. Chairman, as you've said, cherry-picking cases is not very informative. Neither is it very informative to look at the entire run of all cases. What is informative, I think, is a look at the closest, most contested cases, cases where judges on a panel disagreed.
These are the cases most like the ones at the Supreme Court, the law is less clear, and judges have to show their stripes.
LIU: I don't think Judge Alito is an ideologue, but I think it's important to see what the record says. So I looked at several areas where government wields great power -- Immigration, the Fourth Amendment, criminal prosecution. In these areas Judge Alito sat on 52 panels that divided between the individual and the government. He voted for the individual only four times; three times joining an embanked majority, one time writing in dissent. In the other 48 cases he sided with the government. This includes all 13 cases on the Fourth Amendment, all eight cases involving erroneous jury instructions, all four cases involving the death penalty. On 13 occasions his vote for the government was a dissent from an opinion written or joined by a Republican colleague.
Most of the counter-examples cited in these hearings are not terribly illuminating. The constitutional violations were clear, the holdings were unanimous.
In the contested cases Judge Alito agreed with the government over 90 percent of the time, far more often than other appellate judges in similar cases, even those appointed by Republican presidents.
Now these figures are not dispositive. Every case is different and I'm sure Judge Alito got it right many times. But let me give three examples that show his instinct, I think, to defer to government power.
The first is a memo he wrote in 1984 as assistant to the solicitor general, analyzing a case where police saw a burglary suspect running across a backyard. The suspect reached a fence and an officer called out, police, halt! When the suspect tried to climb the fence, the officer shot him in the back of the head, killing him. The suspect, Edward Garner, was an eighth grader with a stolen purse and $10 on his body. He was not armed, and the officer did not think he was. The sole reason for his killing was to prevent his escape. Judge Alito's memo, speaking for no one but himself said, I think the shooting can be justified as reasonable within the meaning of the Fourth Amendment. In a remarkable passage he argued that using deadly force to stop a fleeing suspect rests on, and I quote, "the general principle that the state is justified in using whatever force is necessary to enforce its laws." In 1985 the Supreme Court rejected this view.
Second, in a 2004 case, the FBI installed a secret video camera in a suspect's hotel room. This was done without a warrant on the ground that the FBI turned on the camera only when the target allowed an undercover informant into the room. Judge Alito accepted this logic, even though the camera remained in the room day and night. The dissent called the surveillance Orwellian, limited only by the government's self-imposed restraint. Judge Alito seemed not to grasp that the concept of a warrant puts a judge between the citizen and the police precisely because our privacy is too precious to entrust to law enforcement alone. The NSA program of warrant-less eavesdropping is also being defended by assurances of executive self-restraint.
Finally, in 1997, there was a capital case where two Reagan appointees, both former prosecutors, found a misleading jury instruction unconstitutional. Judge Alito said the instruction was ambiguous and inadvisable, but adequate to convict the defendant of first-degree murder. He also said the court should not have heard the claim at all because defense lawyers did not argue it in prior appeals. But the state never raised this argument to the inmate's claim. Judge Alito raised it himself. The court chided him for nearly crossing the line between a judge and an advocate.
Civil liberties are sometimes seen as obstacles to law enforcement, but as Justice Frankfurter once said, the safeguards of liberty are often forced in cases involving not very nice people.
Mr. Chairman, liberty is not safe in an America where police can shoot and kill an unarmed boy to stop him from escaping with a stolen purse, where judges occasionally aid prosecutions by raising arguments that the state itself did not raise, and where the FBI can install a camera where you sleep on the promise that they won't turn it on unless they have to.
Mr. Chairman, this isn't the America we know and it isn't the America we aspire to be. Thank you, Mr. Chairman.
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