Date: January 13, 2006
Senator: Witness - Demleitner
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SPECTER: Thank you very much, Senator Leahy.
We now turn to our first witness on the panel, on our next panel. Professor Nora Demleitner, from the Hofstra School of Law teaches, teaches and has written widely on criminal, comparative and immigration law, managing editor of the "Federal Sentencing Reporter" and serves on the executive editorial board of the "American Journal of Comparative Law."
Bates graduate, summa cum laude, graduate from the Yale Law School, 1992 -- we have a heavy representation of Yale law graduates here; that's a very healthy thing -- and was symposium editor of the "Yale Law Journal." I didn't know there was a symposium editor. There wasn't one there in my time.
Thank you for joining us, professor, and the floor is yours.
DEMLEITNER: Thank you, Mr. Chairman, Senator Leahy and members of the committee. Good morning, and thank you for the opportunity to testify today. The one thing that I should...
SPECTER: I should have added, professor, that you clerked for Judge Alito after graduating from law school. I think that ought to be on the record.
Start the clock back at five minutes.
DEMLEITNER: I was about to ask that. Thank you very much.
Since the very early days of my clerkship, I must admit that Judge Alito has really become my role model. I do think that he is one of the most brilliant legal minds of our generation -- or of his generation -- and he's a man of great decency, integrity and character.
I say all of this as what I would consider to be a left-leaning Democrat, a woman, obviously, a member of the ACLU and an immigrant. And my view is not one that is unique with regard to people who have worked with him, or with regard to people who have worked for Judge Alito.
All of his clerks, many of whom are politically liberal, have signed on to a letter strongly urging the Senate to confirm Judge Alito as Associate Justice. A number of non-Republican legal academics who have worked with or for Judge Alito have also issued an equally forceful statement on his behalf.
Let me explain to you why I believe that Samuel Alito deserves to sit on the highest court and why his confirmation will, in fact, not pose a threat to the rights of women, to the rights of minorities, immigrants or other vulnerable groups.
Judge Alito does not have a political agenda. He gives very careful consideration to the lower court record and to prior judicial decisions.
Let me point you to two cases that may explain the judge's philosophy. While I clerked for him, he had to decide the case of Parastoo Fatin. Ms. Fatin had left Iran in order, in part, to be escaping the regime of Ayatollah Khomeini. She applied for asylum in the United States, but was denied by the immigration court and by the Board of Immigration Appeals.
Without revealing any confidences, I can tell you that Judge Alito was very much moved by the personal tragedy of the situation and the moral dilemma Ms. Fatin would face. If returned to Iran, she would either be unable to speak her deep feminist convictions, or the Iranian regime would penalize her. The problem with her case was that there was really an absence of favorable case law and, even worse, a very thin record, that indicated only very limited opposition on her part to the Iranian regime.
The judge did not see himself in a position to help Ms. Fatin, who was, however, ultimately permitted to stay in the United States. He, however, did take this opportunity to write one of the most progressive opinions on gender-based asylum law.
His decision was the first to recognize that gender alone could constitute a basis for asylum. This revolution in asylum law has not been widely recognized outside a very small group of asylum practitioners. And neither has Judge Alito gotten a whole lot of credit for garnering the votes of both of his fellow panelists for this decision, one of whom was a Nixon appointee.
The Fatin case hasn't gotten a lot of attention, but you have spent part of the day yesterday on the Rybar case, where Judge Alito dissented. I think you should read the case a little differently than the way in which it has been portrayed. Let me just set the context.
In 1995, the Supreme Court decided Lopez, Justice O'Connor joining the majority, striking down the possession of machine guns on school grounds as unconstitutional. I think a lot of commentators expected this to create a major shift in lower court jurisprudence. This did not happen, I think, in part, because the lower courts read the decision extremely narrowly and, arguably, incorrectly.
Judge Alito, who has been, I think, generally labeled as an anti- criminal defendant judge, was very much willing to follow Supreme Court precedent to the point where it would necessitate the dismissal of a host of criminal indictments. At the same time, he took pains to note that Congress could very easily remedy the problem with the statute by indicating in the record that there was a connection between the possession of machine guns and interstate commerce. Let me also point you to the fact that a blue ribbon ABA task force has increasingly critiqued the increasing federalization of criminal law.
Judge Alito's record, I think, indicates, and Rybar confirms, that he will follow Supreme Court cases very carefully, and that he will read congressional legislation very carefully. He has also used, I think, his prior background experience very effectively in working, for example, on sentencing reform with the Constitution Project and, at one point, as an advisory board member of the "Federal Sentencing Reporter."
I believe, overall, that his criminal background experience will inform the judge's decision, but it will surely not bias him in one way or the other. He'll be able to strike a practical balance that is informed but not predetermined by his background.
And for all those reasons, I believe very strongly that he deserves to be confirmed as the court's next Associate Justice.
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