Date: January 13, 2006
Senator: Witness - Tribe
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SPECTER: Thank you very much, Professor Fried.
Our next witness is Professor Laurence Tribe, Loeb University Professor at the Harvard University, and Professor of Constitutional Law at the Harvard Law School.
Professor Tribe has argued before the United States Supreme Court over 33 times, served as a law clerk to Justice Potter Stewart, received his bachelor's degree from Harvard College summa cum laude in 1962, and a law degree, also from Harvard, magna cum laude, in 1966.
Professor Tribe, the floor is yours.
TRIBE: Thank you very much, Mr. Chairman, Senator Leahy and members of the committee. It's a great honor to be here on this very important occasion.
I'm not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this committee on a Supreme Court nomination with Justice Kennedy.
I'm not here to oppose his nomination, as I did several months before that time with Robert Bork. And I'm not here to lecture the committee on its responsibilities or its role. I don't think that's my role.
I think the only useful function that I can perform is to ensure, to the limited extent I can, that senators not cast their votes with, to borrow an image from a Kubrick movie, their eyes wide shut.
It is quite clear that there are two, central concerns in the country and in the Senate with respect to this nomination, and they do not relate, honestly, to what a truly admirable, collegial, modest, thoughtful and brilliant fellow Sam Alito is. I don't mean to call him Sam. I don't really know him the way that my colleague Charles does.
They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, especially for women, and broaden the scope of presidential power at a time when we see dramatically the dangers of an unfettered executive by weakening the ability of both Congress and the courts to restrict presidential assertions of authority.
A word first about liberty. It is certainly true that, in the Solicitor General's Office, the memorandum that Judge Alito wrote for the Solicitor General did not urge that the court be confronted frontally -- overrule Roe. But he made it clear even then that the strategy he thought wise to pursue was a step by step process toward the ultimate goal of overruling Roe. That is the only prospect on the table.
I assure you that, if the Supreme Court actually overrules Roe, I will have thousands of students to tell that I predicted the wrong thing. That's not the danger.
They won't say Roe v. Wade is hereby overruled. What they will do -- and I'm saying "will," because I am assuming that confirmation will occur, maybe it won't -- but with the vote of Judge Alito as Justice Alito, the court will cut back on Roe v. Wade step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental, underlying right to liberty becomes a hollow shell.
It is the liberty interest, which occurs not only in Roe, but in the right to die and in many cases that we can't predict over the next century, and certainly over the 30 years that Justice Alito would serve. It is that underlying liberty which is at stake.
And it is crucial to know that Judge Alito dramatically misstated the current state of the law. And I say that with deference and respect, but it was clear.
When pushed on whether he still believed, as he said, not in his role as a government lawyer, but in his personal capacity, that he believed the Constitution does not protect the right to abortion, when he was asked, do you still believe that he said, well, I would approach it by starting with Casey. Casey, in 1992, he said, began and ended with precedence, stare decisis; Casey simply followed Roe, and he thereby avoided the issue.
That's not true. Casey split the baby in half. That is, Casey said there are two fundamental questions here. One, does the woman have a fundamental liberty at stake when she's pregnant and she wants to make a decision? And number two, assuming she does, at what point does the state's interest in the fetus trump the woman's liberty?
On the liberty issue, the court did not rely on stare decisis and Roe. The moderate justices who wrote the joint opinion -- Justices O'Connor and Kennedy and Souter -- said that on the underlying issue of liberty we agree, clearly, the woman's liberty is important, special, not just like the right to fix prices.
Because, if we didn't do that that, and if we had a case where a teenage girl is being forced to have an abortion, her liberty wouldn't be special either. And therefore, we must conclude, without relying on Roe, this is a liberty deserving of special protection.
Never, in the descriptions that you heard from Judge Alito with respect to the issues in Roe, did he confront the question, does he, too, believe that that liberty is special? Or does he, as did Robert Bork and as do many, believe that there is no special liberty simply because the woman happens to have a fetus inside, her interest is no greater than my interest in learning how to play tennis.
So, it seems to me clear that the indications we have of Judge Alito's belief are that he does not have a conviction that that liberty is special. And he is unwilling not only to commit to treating this as a so-called "super precedent," he's not even willing to indicate to this committee that he believes that the court has a special role in protecting intimate personal liberties.
With respect to consolidating the powers of the president, I want to associate myself completely with the remarks of Beth Nolan. It is very clear that, with respect to the unitary executive theory that is being espoused, that what you saw in the instance of Judge Alito's testimony was not a forthright description of what he said he believed.
SPECTER: Professor Tribe, you're a minute and a half over. If you could summarize, we'd appreciate it.
TRIBE: I'm sorry. I will certainly summarize.
When he spoke in November of 2000, after Morrison was decided, he outlined a strategy for consolidating the power of the president, notwithstanding Morrison. And I think it is easy to explain, but I won't try to do it over time, why the distinction he tried to draw between a president's control of functions within his power and the scope of executive power is a completely phony distinction.
SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?
TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.
SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?
TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation.
SPECTER: The clock needs to start at five minutes, even for the chairman, for everybody.
We'll now -- I'd already started the five minute round, but we'll proceed. And as we all know, after the panel testifies, each senator has five minutes for questioning.
Professor Fried, you testified in the confirmation hearing of Chief Justice Roberts that you thought Roe was wrongly decided, but you also thought that Roe should not be overruled. And that's based on the reliance and upon the precedence and upon stare decisis.
You've worked closely with Judge Alito. I know you've followed his career.
To be continued.
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