Date: January 12, 2006
SPECTER: Senator Grassley has stated his interest in claiming some of his reserve time.
GRASSLEY: A small part of it.
Number one, to make a point that I hope would put a lot of my colleagues who have raised questions about some theory you have about this or that; that whatever political science theories you might have about the executive branch of government, I do not worry about that and I would hope my colleagues would not worry about that because you could have a hundred theories and they could be all crazy. But is it not right that you are a person that is bound by the Constitution to only hear cases and controversies that come before the Supreme Court?
And so, you know, whatever comes before you, you are responsible for deciding it within the constitutional case and controversy.
Secondly, it seems to me that you are a person who has the judicial temperament, as you said so many times, that you are going to keep your own personal views out of it.
It seems to me that you are a person that has indicated to us that you are going to look at a case within the four corners of the law and the facts that apply to that case and nothing more.
GRASSLEY: So any theories you might have about -- what was it called, unitary executive or something -- what's that got to do with your deciding a case?
ALITO: Senator, you are exactly right. If cases involving this area of constitutional law come before me, I will look to the precedents of the Supreme Court. And that's what I think I've been trying to emphasize.
And there are governing precedents in this area. There is Humphrey's Executor and Wiener and, most recently, Morrison, which was an 8-1 decision.
GRASSLEY: Then the other thing -- I'd take an opportunity to just tell you something and not want any response. But that is on the False Claims Act.
This act was originally passed in 1862 because Lincoln didn't have enough people to prosecute fraud by military people against the government. So he empowered individuals to do that under qui tam.
And then in 1942, I think it was, the law was gutted by taking out the qui tam provisions, probably because of World War II and the necessity of getting the job of military construction done.
And then in the 1980s we found a heck of a lot of military -- fraudulent use of taxpayers' money.
GRASSLEY: We held a lot of hearings on that. It came that there wasn't enough being done by the Justice Department to take care of it. We saw the Justice Department making a lot of global settlements.
You know, some company that had done a massive amount of wrong in many areas, and maybe having the Justice Department settle one little dispute, but give a global settlement so that they'd never be prosecuted for anything after that, it led us to beefing up the False Claims Act by putting the qui tam provisions in it.
And it was a terrible thing to get through Congress. I think six months after we voted out of committee, we had every senator putting a hold on it, some bequest of somebody in the defense industry. And you take care of that little problem, and another put a hold on it, and another one put a hold on it.
And finally, the last person was a friend of mine that had a hold on it. I said, "Why did you have a hold on it?"
"Well, some of my friends said that's bad for the defense industry."
And I talked to him about it, and he says, "You know, you're absolutely right."
And we got the last hold off and we got it passed and we got it signed by the president of the United States.
And then over the last several years, we have had the defense industry going, trying to gut it again. Then we had the hospital association trying to gut it because we were using it in medical care.
And it's brought in $12 billion into the federal treasury. And I think it's even had the benefit of discouraging a lot of activity that would go on normally that saved the taxpayers' money without prosecution.
But there are people in the Justice Department, the professional people in the Justice Department, doesn't want some citizen looking over their head and doing their job for them when they aren't doing it.
GRASSLEY: And a district judge in the mid-'80s, or maybe it was the late '80s, in, I think, a General Electric case someplace in Ohio -- when the Justice Department was trying to cut back the award that the relator was going to get, said to this Justice Department guy, "Don't you get it? You wouldn't even have a case if it wasn't for this whistleblower coming forward to make their statement and to make their case."
And, you know, it's grown into quite a thing now.
The only thing I regret about it -- there's a lot of lawyers that are tort attorneys out there getting rich off of it, but there's also a lot of coming in to the federal treasury. And about 15 percent is what it would cost the federal government anyway to bring in the same amount of money if they prosecute it, but they won't prosecute it. And they don't know about all of it. And you've got to rely on the whistleblowers to get the information out there.
So when you're in your very private meetings that you have after you get on the Supreme Court and you're talking about these things, I hope you'll remember that this was meant to serve a worthy purpose, is serving a worthy purpose. And I'd like to have you look at it in a very unbiased way.
I reserve the rest of my time.
SPECTER: Judge Alito, Senator Grassley's going to follow that up with a strong letter.
GRASSLEY: The chairman remembers we even had to subpoena William French Smith one time in this whole process.
LEAHY: Chuck, I think we know where you stand on this.
SPECTER: To use a little bit more of my time, Senator Grassley did more than subpoena Attorney General William French Smith; he started proceedings to hold him in contempt.
And that was at about a time when Attorney General Smith was inviting some members of the Judiciary Committee to have lunch. And he was very dour during the entire lunch as far as his attitude toward me and I found out why at the end of the lunch: He wanted to know why I wanted to hold him in contempt. He'd insulted Senator Grassley to the nth degree by confusing me with him.
Tell your Anita Hill story, Chuck.
GRASSLEY: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.
And I went back to my constituency and everybody said to me, "You were awful to Anita Hill. You just treated her awful," because they got me mixed up with him.
SPECTER: Wait. I didn't know you're going to tell that part of the story.
GRASSLEY: I thought that's the only part we talked about.
SPECTER: We're just trying to use a little time over here to give you just a little respite from the...
LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.