Sandra Day O’Connor is. His
chart says that both Justice O’Connor and Judge Alito
are “within the mainstream” because they both set limits
on
Congress’ commerce power and Judge Alito is agreeing by
saying that Congress has certain powers and everything
else is regulated by the states. Sen. Cornyn is saying
that his constituents in Texas and other Americans will
be glad to hear that all the power is not centered in
Washington DC. Sen. Cornyn’s second piece of the
argument showing the similarities between Justice
O’Connor with Judge Alito is that both of them have
struck down affirmative action policies. Sen. Cornyn is
finishing up his argument showing the similarities
between Judge Alito and Justice O’Connor by arguing that
both have criticized Roe v. Wade. Sen. Cornyn brought
up the
particular case of Casey v.
Planned Parenthood and argued that the
writing of the case has been widely criticized by many
legal scholars. Judge Alito agreed with him. Sen.
Cornyn argued that the basis on which abortion was
determined was changed to an undue burden standard,
changing it from the previous standard of the trimester
approach. Sen. Cornyn is concluding that on at least
these 3 counts, Judge Alito and Justice O’Connor bear a
lot of similarities. Sen. Cornyn is saying that if
Justice O’Connor is a model justice, then Judge Sam
Alito would fit that same description as well.
6:39 p.m. Sen. Cornyn Begins
Questioning Judge Alito.
Not
beating around the bush, Sen. Cornyn is starting his
questioning on abortion asking Judge Alito if abortion
is mentioned in the Constitution. Judge Alito is saying
no and then Sen. Cornyn is asking if the right to
privacy is. With the Judge’s affirmative response, Sen.
Cornyn is continuing by clarifying with Judge Alito that
the right to an abortion is an interpretation of what is
written in the Constitution. Sen. Cornyn is now quoting
some of the Senators who spoke before as saying that
Judge Alito is being forthcoming in his answers in the
hearing. Sen. Cornyn is now stating that if the courts
can’t go back and correct a mistake, that would have
terrible consequences such as if the decisions in Plesey
vs. Ferguson had not been corrected. Sen. Cornyn is
stating that correcting mistakes in the law is
incredibly important and that should not be
discouraged.
6:29 p.m. Sen. Schumer Begins
Questioning Judge Alito.
Sen. Schumer is questioning Judge Alito
about Judge Alito's comments in prior years about Judge
Bork's position on such key issues as stare decisis.
Judge Alito says that he was a supporter of Judge Bork's
nomination as an employee of the Justice Department.
Sen. Schumer is now furthering his
questioning about stare decisis. He is reading quotes
of Judge Alito's colleagues on the 3rd Circuit concerning
Judge Alito's decisions reflecting opinions against 3rd
Circuit precedents. Sen. Schumer says that he has
concerns that Judge Alito will defer from precedent on the
Supreme Court since he deferred from precedent so often on
the 3rd Circuit. Judge Alito says that in many of his
decisions he was following aspects of stare decisis in the
context of some of his opinions. Judge Alito says that
he frequently drew upon bodies of 3rd Circuit precedents to
formulate his opinions, and that while those opinions
differed from the majority on the 3rd Circuit, there was
still a body of stare decisis to draw upon. Sen.
Schumer says that Judge Alito's responses indicate that
there is elasticity when defining what is stare decisis.
Sen. Schumer says that Judge Alito has
said that he believes in stare decisis, but that that hardly
tells the Committee if Judge Alito would hold up stare
decisis on the Supreme Court. Sen. Schumer also says
that his history on the 3rd Circuit does not prove that
Judge Alito would hold up stare decisis. Sen. Schumer
says that he can only conclude that Judge Alito would not
recognize precedent and would vote to overturn Roe v. Wade.
Judge Alito says that his record shows that he would
consider all facets of a case, including stare decisis, when
considering such a case.
5:59 p.m. Sen. Graham
Questions Judge Alito Precedents In Authorizing The Use Of
Force.
Sen. Graham is now asking Judge Alito if
he is a strict constructionist. Judge Alito says that
he cannot answer the question because there is no consensus
on a definition of the term. Sen. Graham now poses the
question concerning the authorization of the use of force.
Sen. Graham asks if a use force resolution exempts a
president from the requirements set forth by the FISA court.
Judge Alito says that he believes one would have to look at
the precedents, issues at hand, and interpret the scope of
that authorization. Sen. Graham says that the idea that this
current Administration took the law into their own hands and
over stepped the use of force that was given the President
by Congress is not true. He says that it could be very
dangerous for Congress and the President to over interpret
this resolution to authorize the use of force. Sen.
Graham says that Judge Alito is likely to rule on these
issues, and he hopes that the three branches of government
will talk about the issues collectively before a ruling is
given.
Sen. Graham is now moving to executive
power. He asks Judge Alito what the vote requirement
is under the constitution to confirm a judge to the Supreme
Court. Sen. Graham has shifted gears and is asking
Judge Alito if he thinks it is fair for the Senate to hold
positions taken by nominees when defending the interests of
their clients. Judge Alito says that he believes that
lawyers should not be held to the positions they are forced
to take when defending their clients, particularly as they
are considered for judgeships. Sen. Graham asks Judge
Alito if he can offer any suggestions on how the Senate can
improve the confirmation process. Judge Alito says
that, as a nominee, he respects the role of the Senate and
believes that they are doing what is necessary for them to
confirm nominees to the bench.
5:46 p.m. Sen. Graham
Questions Judge Alito About Enemy Combatants.
Sen. Graham is continuing his questioning
of Judge Alito about the forum in which enemy combatants are
to be tried. Sen. Graham is referring to cases
involving German prisoners of war. Sen. Graham says
that in history, the country has not let the "people who are
trying to kill us, sue us." Judge Alito cites several
cases which support this assessment, which he calls broad.
Sen. Graham is now asking if the courts have the capability
to have the expertise to make decisions governing enemy
combatants better than the military. Judge Alito says
that the courts may not have all the expertise present in
the military courts, however one could also argue that
courts are able to better protect individual rights and
liberties. Sen. Graham is now asking Judge Alito if he
is proud that the country has signed on to the Geneva
Conventions. Judge Alito says that he believes they
express some very strong American values. Sen. Graham
further asks if the Geneva Conventions would afford an
individual the right the bring a suit against the government
and/or the military.
5:38 p.m. Sen. Graham
Begins Questioning Judge Alito.
Sen. Graham begins by thanking Judge Alito for sitting
through the hearing today. Sen. Graham begins by
asking Judge Alito if he believes that the acts of terrorism
on September 11 were an act of war or a crime. Judge
Alito says that he does not believe that he can answer that
question. Sen. Graham says that we have laws on the
book that protect us from acts of war. Judge Alito
says that in a lay sense we have been in a conflict with
terrorists. Sen. Graham is discussing the Hamdi case,
saying that the case tells us that the Bill of Rights is
still protected for all Americans even in a time of war.
Sen. Graham is now asking Judge Alito about the Hamdi case
further. Sen. Graham is asking if Judge Alito believes
that the principle of the Hamdi case is that the government
is able to detain individuals who pose a terrorist threat to
the country. Judge Alito agrees with Sen. Graham that
the Hamdi case does in fact not require the government to
capture and release prisoners of war.
Sen. Graham is asking Judge Alito who determines the
status of enemy combatants. Judge Alito says that the
Hamdi case sets the precedent that prisoners of war are
entitled to due process, but does not outline what kind of
tribunal that individual should sit before. Judge
Alito says that he cannot think of a case where an enemy
prisoner has been tried by a court other than that within
the military. Sen. Grassley is questioning Judge Alito
if there is a precedent that allows an enemy combatant has
been able to sue the American Government over access to the
courts. Judge Alito says that he does not recall such
a case.
5:28 p.m. Sen. Hatch Questions Judge Alito About
Recusal.
Sen. Hatch is asking Judge Alito to clarify the issue of
recusal. Sen. Hatch is telling Judge Alito that the Vanguard
case came before Judge Alito twelve years after Judge Alito
made promises to the Judiciary Committee during his initial
confirmation hearing.
5:27 p.m. Sen. Feingold
Questions Judge Alito About The Issue Of Recusal.
Sen.
Feingold is now asking Judge Alito about the extent of
the role of the Attorney General. Judge Alito is
responding that he believes absolute immunity should be
used very sparingly and that the role of an Attorney
General has been established in a previous legal case.
Sen. Feingold is now asking how a Judiciary should treat
the facts that are presented by the Executive branches
in cases in which the Executive branch is being
investigated. Judge Alito is now telling Sen. Feingold
that he knows that there have been cases in which all
the
cases
have not been presented. Sen. Feingold is turning to
the subject of the Vanguard case. Sen. Feingold is
telling his colleagues that asking these questions is
part of the hearings process and he rejects the earlier
statements from his colleagues that declared this a
non-issue. Sen. Feingold is now investigating this
question further and asking the Judge why he didn’t just
admit he made a mistake when the situation came up.
Judge Alito is saying that he investigated the issue,
decided that what had occurred was legal, but still
wanted to recuse himself from the case so as to not
appear unethical.
5:11 p.m. Sen. Feingold
Questions Judge Alito About The Role Of The Judiciary.
Sen.
Feingold is now exploring Judge Alito’s opinion on the
extent of the role of the Judiciary. Judge Alito is
saying that the Judiciary does often play an important
role in the separation of powers. Sen. Feingold is now
asking if the FISA issue was covered in the Judge’s
practice sessions for the hearings. Judge Alito said
that he did not think they had covered the FISA issue in
these sessions and he was definitely not told what to
say in the hearings. He is saying that everything he is
saying is his own ideas. Sen. Feingold asked if has
gotten any feedback and Judge Alito responded that he
has gotten feedback about the style and form of his
answers. Sen. Feingold again is asking if anyone has
given Judge Alito advice on what to say and Judge Alito
is saying that he has established his own opinions and
he had not been briefed on the Administration’s case in
regards to the FISA issue. Judge Alito is saying that
it would be unethical for him to receive any such advice
on what to say during the hearings.
5:03 p.m. Sen. Feingold
Begins Questioning Judge Alito.
Sen.
Feingold is thanking for Judge Alito for his time and
patience today. Sen. Feingold quickly turning to the
question of presidential power and asking Judge Alito
what power a President has, regardless of what laws
Congress has passed. Judge Alito is responding that
beyond what is laid out in Article II of the
Constitution, it is specific to the situation. Sen.
Feingold is exploring this further by specifically
asking Judge Alito if the President has the power to
wire tap phones without permission. Judge Alito is
responding that he is certainly following this issue in
the news and knows this is an important question, but is
declining to answer the question because this specific
case could come before him either in the Federal Court
or Supreme Court. Sen. Feingold is agreeing that this an
important question and now is asking him again if the
President has the power to violate or direct others to
violate the laws of the Constitution. Reiterating his
earlier response, Judge Alito is responding that beyond
the stipulations of Article II, it depends on the
specifics of the case. Sen. Feingold is telling the
Judge that he takes his answer to mean that he is
placing the due importance on this issue.
4:37 p.m. The Committee Is In A Brief Recess.
4:37 p.m. Sen. Sessions Questions Judge Alito About
Abortion And Judicial Activism.
Sen.
Session begins to discuss Judge Alito’s position on Roe
v. Wade. He first refers to a statement Judge Alito
made when he was in the Reagan Administration’s
Solicitor General Office, which stated that the Justice
Department should not pursue a “frontal assault” on
Roe. This was not in line with the Reagan
Administration’s agenda and they pushed for overturning
Roe. The Supreme Court disagreed with the government’s
arguments.
The
next subject broached is the checks and balances of the
government. Sen. Sessions asks a number of questions of
when each branch can act without review and when their
actions are subject to review, and in cases rebuke.
Sen.
Sessions next asks about judicial activism. Judge Alito
states that activism is neither a liberal or conservative
issue, but rather it has to do with the role of the court.
Sen. Sessions asks whether the court striking down a
congressionally-passed statute that is unconstitutional is
judicial activism. Judge Alito replies that no, that act is
not activism. This issue has been settled ever since
Marbury v. Madison. Judicial activism becomes an issue when
the court steps outside its role and begins to make policy.
Regarding
turning to foreign law in Supreme Court decisions, Judge
Alito states that there are occasions when foreign law can
provide valuable insights in certain situation. However, it
should not be the basis for deciding American constitutional
questions.
Sen.
Session addresses the Greeley case, in which a 10 year old
girl is stripped-searched for drugs. He asks for
clarification on the details of the case. Judge Alito
states that the case was on whether the officers, who were
later sued for their actions, were liable for civil
damages. Judge Alito, in his decision, thought that the
officers had reason to believe they had acted in accordance
with the warrant they received from the state magistrate’s
office. With that answer, Sen. Sessions concludes his first
round of questions.
4:23 p.m. Sen. Sessions Begins Questioning Judge Alito.
Sen.
Sessions begins his first round of questions by asking
about judicial temperament and philosophy. Judge Alito
responds we have an adversarial system. On how a judge
makes his decision, Judge Alito discusses that he reads
all the briefs and listens to the oral arguments. He
states that he comes to the case with an open mind and
pushes the lawyers to see how far their argument will
go. After the case is heard, the judges meet together
to discuss the case and arguments. Finally, they come
to writing a decision. Occasionally, when Judge Alito
writes the opinion, after writing it out he will reach a
different conclusion than the one he set out to write.
In those cases, he returns to the other two judges to
tell them he has changed his mind. They either agree
with him or not, but a judge cannot come to a decision
until he has gone through this whole process.
Sen.
Sessions next turns to the Rybar case about machine guns
that has come up in earlier discussions. He asks Judge
Alito to explain the interstate element of a crime that
requires it to be heard in a federal court. Judge Alito
replies that interstate commerce clause in the Constitution
qualifies interstate crimes to qualify for federal
jurisdiction. In the Rybar case, Judge Allito proved that
the gun had traveled at some point across state lines,
thereby making it a federal crime.
Turning to
the issue of precedent, Sen. Sessions that he would like to
go on the record as agreeing with the analysis that Sen.
DeWine gave on precedents and super-precedents.
4:07 p.m. Sen. Feinstein Is
Questioning Judge Alito About Privacy.
Sen.
Feinstein notes that Alito did say that the Constitution
protects a right to privacy. Alito concurs, and
reiterates examples by which this is true.
Sen.
Feinstein differentiates between Alito and O’Connor’s
respective approaches to the legal question of abortions
and if the focus should be on the group which is
affected. Alito discusses his approach, and responds to
Sen. Feinstein’s quote comparing a male’s “dominion”
over his wife to his control over his children. Sen.
Feinstein discusses a requirement that the health of the
mother must be protected. Alito says that this is a
“compelling interest” and precedent supports that. Sen.
Feinstein discusses the
Akron case,
and relates this to Alito’s memo which outlines a
strategy to overturn Roe. Alito discusses the concept
of stare decisis.
Alito notes
that legal analysis is often based on analogy, while still
recognizing that situations are different.
Sen.
Feinstein discusses FISA saying that it set up parameters
for “all” electronic surveillance. She notes that Alito
said “generally there has to be a warrant” earlier in the
day, and contends that others say that FISA covers “all
surveillance within the United States.” She asks if Alito
is providing for an exception when he says “generally.”
Alito responds by citing the 4th Amendment and
says that case law shows that there are situations where a
warrant is not required. Sen. Feinstein asks about Justice
Jackson’s decision in the Steel case and Alito responds by
saying this is a “useful framework.”
3:56 p.m. Sen.
Feinstein Is Questioning Judge Alito About
Roe v. Wade.
Sen. Feinstein is questioning Judge Alito
about Roe v. Wade. She is asking Judge Alito to give a
couple of examples that factor into the use of stare decisis.
Judge Alito says that a consideration of all the factors that
are in consideration should be used when determining if stare
decisis should be used in deciding a case. Judge Alito
says that there must be evidence to overturn the precedent.
Sen. Feinstein is again asking for examples that could be used
for overruling prior precedent. Judge Alito had told Sen.
Feinstein that he could not think of any case which could
overturn Roe. Judge Alito says that one situation in which
there is a justification for overruling a precedent is if the
rule is proven to be unworkable. Judge Alito cites the
case of Garcia vs. San Antonin Metro. He also says that
sometimes cases of real life can be used when looking to
overturn precedent. Judge Alito says that the fourth and
fifth amendments both cover the right to privacy.
3:45 p.m. Sen.
Feinstein Begins Questioning Judge Alito.
Says she
wants to start with the commerce clause and views on
federalism because O’Connor was the key vote on two
particular cases, and begins by asking about the
Lopez case.
Alito responds by saying
Lopez is a
precedent of the court, and discusses other applications of
the case. Alito says he doesn’t contest that congress’
power is quite broad under the commerce clause. Sen.
Feinstein the moves to the
Reibar case, and
asks Alito to see if he agrees with her on the facts of the
case, and proceeds to read a synopsis of the case, saying
that she read “with great interest” Alito’s dissent in the
case. Sen. Feinstien asks whether Alito would have decided
case different if Congress had presented it’s own findings.
Alito responds by saying he cannot comment on a hypothetical
– Feinstein interrupts and contends that it is not a
hypothetical, but instead is a real case with one minor
abstraction. Sen. Feinstein moves on to discuss the
conclusion of Alito’s dissent and asks what, exactly, Alito
meant. Alito responds and explains himself.
Sen.
Feinstein discusses the Family and Medical Leave Act, which
she points out, did include congressional findings. She
asks whether it is enough to have congress provide findings,
or if they have to be deemed “sufficient” by the court.”
3:37 p.m. Sen. DeWine
Questions Judge Alito About Protecting Children From Pornography
Proliferation.
Senator
DeWine is now asking Judge Alito about Congress’ role to
protect children against the proliferation of pornography on
the Internet. Senator DeWine is noting that Congress has
passed several laws in recent years to protect children from
online pornography, which were subsequently struck down by
the Supreme Court. This is very troubling to Senator
DeWine. He is asking Judge Alito what his thinking is on
this subject. Should there be different levels of speech
under the 1st Amendment?
In
responding, Judge Alito is saying that this is certainly a
difficult area. The job of applying constitutional
principles in a world with the Internet is quite problematic
and should be examined more closely. Judge Alito is saying
that with respect to minors, the Court has ruled in the past
that it is permissible for a state to regulate the sale of
pornography to minors. In the pre-Internet world, the job of
protecting minors from pornography was a lot easier since
they actually had to go to a store to buy it.
Sen. DeWine is now turning to the
case of Roe v. Wade. Unlike other members of the Judiciary panel,
Sen. DeWine does not think Roe constitutes either a
“super-precedent” or “super-duper precedent”. Engaging in a lengthy
speech on what is meant by a “super-precedent”, Sen. DeWine is
saying that to meet this definition, something must be so firmly
entrenched in our legal system that people simply do not question
it. He does not think Roe meets that standard and therefore sees
Roe as only being “precedent”. Sen. DeWine does not pose a question
to Judge Alito on this topic before moving on to his next area of
inquiry.
3:24 p.m. Sen. DeWine
Questions Judge Alito About The Congressional Spending Clause.
In responding, Judge Alito is saying
that Congress has broad power under this clause and that when
Congress provides money to the states, Congress can attach
conditions to the receipt of this money. In Judge Alito’s opinion,
there has to be a clear statement that conditions are in fact
attached. The states have to know what they’re agreeing to when
accepting these federal funds. Judge Alito adds that the conditions
have to be germane to the purpose of the expenditures of the funds.
And these are the standards that should be applied in the future.
3:16 p.m. Sen. DeWine
Begins Questioning Of Judge Alito.
Sen. DeWine is
saying he wants to respond to some of the things that have come
forth during the course of the hearing which he feels have been
attempts to distort Judge Alito’s record. He feels many of the
members are attempting to alter the record, which he says is
unfair, inaccurate and just plain wrong.
Citing specific
cases, Sen. DeWine is instructing his colleagues that in one
racial discrimination case, Judge Alito ruled that an
African-American woman was entitled to damages after being
harassed. In another case, Judge Alito found evidence that an
employer was treating white, male employees differently than
other employees.
3:05 p.m. Sen. Kohl
Questions Judge Alito About Reapportionment.
Sen. Kohl is discussing Judge Alito's 1985 job
application memo. He is asking what Judge Alito's
disagreements in 1985 with the Warren Court's ruling on one person,
one vote. Judge Alito says his concern with this ruling was
how far the law stretched when it came to the issue of drawing
judicial districts. Judge Alito says that as of the time that
he was writing the memo, he thought that the rule would be the same
for Congressional districts as they were for legislative districts
based on the census. Judge Alito says that this didn't make
sense since census figures change so regularly.
Sen. Kohl is now asking about the 2000
presidential decision in the Supreme Court. Sen. Kohl says
that many people view the decision as a judicial activism.
Sen. Kohl says that so many aspects of the decision seem to depict
parts of Judge Alito's background. Sen. Kohl has asked Judge
Alito if he believes that the Court was right in taking the case.
Judge Alito says that he is not sure if the Court should have taken
the case. Sen. Kohl says that the Bush v. Gore case was a huge
case, and he has asked Judge Alito to give an opinion based on his
opinion. Judge Alito says there is an issue of if the
Court should have taken the case, and how it should have been
decided. Judge Alito says that he is not fully prepared to
offer an opinion on the question of if the Court should have taken
the case.
2:54 p.m. Sen. Kohl Questions Judge Alito About Judicial
Restraint.
Sen. Kohl is now asking Judge Alito about which
Warren Court cases he found that he disagreed with. Judge
Alito says that the decisions of the Warren Court stimulated his
interest in Constitutional Law, and that it brought about a belief
in judicial restraint on the federal judiciary. Judge Alito is
discussing the one person, one vote law, including redistricting.
Sen. Kohl is now questioning Judge Alito about traditional values,
and how much influence Judge Alito believes they should impact the
court. Judge Alito says that a traditional value he thinks is
important is the ability of a person to live in peace and safety
within their community. Judge Alito also mentions the ability
of parents to raise their children in a manner which they see fit
and the ability to practice one's own conscience.
Sen. Kohl is now questioning a writing from Judge Alito that
supported the idea that a woman must inform her husband before
attaining and abortion. He is asking Judge Alito if he
believes that a constitutional right is violated only if one person
believes their rights are violated. Judge Alito says that he
took this issue very seriously, and the law was not clear at the
time. Judge Alito says that spousal notification did not meet
the standards of undue burden based on what Justice O'Connor
outlined as an undue burden.
2:43 p.m. Sen. Kohl Begins Questioning Judge Alito.
Sen. Kohl is opening his questioning of Judge Alito by asking him
about the role of judges in the federal judiciary. Sen. Kohl
is saying that while some judges have a more liberal judicial
philosophy, others have a more conservative, and the point of these
hearings are to find out what Judge Alito's judicial philosophy is.
Sen. Kohl is mentioning several issues that are affected by these
ideologies, including the idea of one person, one vote. Sen.
Kohl is asking Judge Alito if he believes that judges should use a
more imaginative and expansive view of the Constitution. Judge
Alito says that while the Constitution outlines some very specific
rules and laws, there are others that are more open. Judge
Alito says that he believes judges need to interpret these things in
a more open and broader fashion. Sen. Kohl says that he
believes that Judge Alito is a unique judge in his approach to the
handling of these cases. Judge Alito says that ultimately,
judges must abide by the principle in the underlying law of the
Constitution.
Sen. Kohl is now asking Judge Alito about an interview he gave in
1988 about Judge Bork's nomination to the Supreme Court. Judge
Alito stated that he though Judge Bork was one of the most
outstanding nominees of the century. Sen. Kohl is outlining
some of Judge Bork's more controversial positions and views about
issues such as abortion and equal protection under law and executive
power. Sen. Kohl is asking if Judge Alito supports the beliefs
that Judge Bork outlined. Judge Alito says that at the time of
Judge Bork's nomination, he was an appointee of the Reagan
Administration, and that his support at the time was a reflection of
his position with the Administration. Judge Alito goes on to
say that he believes that the principle of one person, one vote is a
fundamental aspect of our society and sees it as a settled law.
2:35 p.m. Sen. Kyl Continues Questioning Of Judge Alito.
Sen. Kyl is
continuing in his discussion with Judge Alito about cases that
were ruled in favor of minorities and those who claimed
discrimination. Judge Alito is telling Sen. Kyl that it is
correct that there have been many of these cases. Sen. Kyl is
now turning to a case that ruled on if weapons should be allowed
near schools. Judge Alito is explaining that he has a very
modest opinion in this case and pointed out that in his opinion
he explained how the current statute does not allow this
regulation and pointed out to Congress what action they would
need to take if they would like this regulation to be law.
2:28 p.m. The Committee Reconvenes; Sen. Kyl Continues
Questioning Of Judge Alito.
Sen. Kyl is
continuing his questioning by putting several documents in the
record, including two letters by Democratic Attorneys and a
Washington Post article. These items provide evidence about
Judge Alito’s character and treatment of women and minorities.
Sen. Kyl also is asking for clarification about what year Judge
Alito joined the CAP (Concerned Alumni of Princeton) and Judge
Alito responded that he wasn’t sure but gave a general timeframe
that he thought was likely. Sen. Kyl is resuming his
questioning of Judge Alito by asking the Judge about a case in
the Ninth Circuit that outlawed the words “under God” in the
Pledge of Allegiance. Sen. Kyl is saying that the majority of
the American people agree that these words should be in the
Pledge and is asking the Judge if he thinks one freedom should
be pursued over another. Judge Alito is saying that no, and
that sums of the difficulty of the case. Sen. Kyl is adding
that the case that Judge Alito should not be replacing Judge
Sandra Day O’Connor
because he may
be more conservative is not an adequate argument and should not
be reason for opposing his nomination.
Sen. Kyl asked
Judge Alito how many decisions he has participated in where it was
determined that the case had previously been ruled unfairly. Sen.
Alito is responding that there are well over 4000 of these cases and
Sen. Kyl is adding commentary that these are cases that were decided
in favor of the non-government party. Judge Alito is continuing on
to speak about several other cases in which discrimination was
found.
1:03 p.m. The Committee Will Recess
Until 2:15 p.m.
Sen. Specter is
announcing that the hearing would recess for lunch until 2:15, at
which point Sen. Kyl will continue his questioning.
1:03 p.m. Sen. Kyl Begins Questioning Judge Alito.
Sen. Kyl is
beginning by asking Judge Alito about his understanding of the
unitary executive. Judge Alito responded that he thinks this issue
has to do more with how much control a president should have, and
not the scope of his role. Sen. Kyl has now moved on to ask Judge
Alito why he accepted President Bush’s nomination to the court.
Judge Alito is responding by saying he believes it is a good way to
continue his service to the courts and to his mission as a judge.
Sen. Kyl then is asking what the proper role should be for foreign
laws in the Supreme Court. Judge Alito is responding that he
doesn’t think foreign law is helpful in deciding to Supreme Court
cases and believes that our own country’s laws and traditions should
be used to interrupt the law in these cases. He is adding that
there are
situations that come up in federal court where foreign law is
applicable, but he doesn’t think it is necessary in interrupting the
Constitution.
Sen. Kyl is
completing his questioning before the lunch break by asking Judge
Alito what impact he thinks that public opinion should have on the
decisions about the Supreme Court. Sen. Kyl is saying that it is
necessary for the Court to make an unpopular decision and buck
public opinion and Judge Alito is agreeing with this stating that it
is imperative that the judiciary hold fast to their responsibilities
in interrupting the Constitution.
12:52 p.m. Sen. Biden Questions Judge Alito About
Discrimination.
Moving on to
another discrimination case, Sen. Biden questions Judge Alito’s
opinion that it was okay for an employer to not hire someone
based on “sheer personal antipathy”, even if that “sheer
personal antipathy” is veiled by a false pretext. Judge Alito
responds that another judge backed up his line of reasoning, but
Sen. Biden states that he doubts that judge who followed up on
Judge Alito’s opinion would have reached the same substantive
conclusion.
Moving on to a
third case, Sen. Biden turns to the Judge Alito’s opinion the
Casey v. Planned Parenthood case. He begins by stating that he
does not care about Judge Alito’s position on abortion. Rather
he is more interested in the trend that Judge Alito seems to
decide in favor of the side against whom the charge of
discrimination has been raised. With his time up, Sen. Biden
concludes that this trend is of concern to him.
12:44 p.m. Sen. Biden Begins Questioning Judge Alito.
Sen. Biden
begins his first round of questions by outlining the questions
that people have about Judge Alito’s nomination. These include
the Vanguard case and the ROTC/Concerned Alumni of Princeton
(CAP). He mentions that the issue was a big deal and received a
lot of press, specifically regarding former Sen, Bill Bradley
condemning it. Furthermore, when Judge Alito listed membership
to CAP on a job application, Princeton had brought ROTC back on
campus. Sen. Biden then turns to the Justice that Judge Alito
will replace should be confirmed. Justice Sandra Day O’Conner
is a woman, had legislative experience, and has been a swing
vote in many 5-4 decisions. Should Judge Alito be confirmed, he
will significantly change the make-up of the Supreme Court.
Given that context, Sen. Biden turns to the issue of
discrimination and the cases that Judge Alito participated in on
the 3rd Circuit.
Sen. Biden asks
Judge Alito to further explain his decision that set a very high
standard for what constituted as discrimination on the job. Judge
Alito replies that cases that come to the appellate court have more
gray area and are difficult to decide. In the particular case that
Sen. Biden uses as an example, Judge Alito states that the plaintiff
in that case had very little evidence of discrimination. Sen. Biden
responds that he has concerns about whether Judge Alito fully
understands how discrimination works in todays world. Most of the
time, it is no longer blatant obvious acts, but rather much more
subtle and veiled acts of discrimination. Furthermore Sen. Biden
has concerns that Judge Alito’s colleagues in the 3rd
Circuit criticized the standard that Judge Alito set in his opinion
in this case.
12:22 p.m. Sen. Grassley Questions Judge Alito About The Role
Of Judges.
Senator
Grassley is continuing to discuss the role of a judge with Judge
Alito. He wants to know if Judge Alito thinks there is a role
for the Courts in making a more “just” society as some of the
other members of the Judiciary Committee have made reference
to. In responding, Judge Alito said that if the Courts are
doing the job they’re supposed to being doing, the result will
be a more just society. He is claiming that the constitutional
system we have is designed to produce a more just society.
Judge Alito is
also saying that judges need to decide the case in front of them
and not speak more broadly. If judges start to go further and
issue opinions on questions that aren’t in front of them, they
may magnify the chances of getting something wrong. Judge Alito
is also mentioning that judges don’t have the authority to
change the Constitution. The Judiciary cannot inject its own
views into their rulings.
12:11 p.m. Sen. Grassley Questions Judge Alito About Executive
Power.
Sen. Grassley
is now turning to the issue of executive power, asking Alito’s
his views on this important issue.
In responding,
Judge Alito is saying that no one is above the law, including
the President.
Judge Alito is
also stating that he believes very strongly in the independence
of the Judiciary. He’s been a member of the Judiciary for the
last 15 years.
Sen. Grassley
is now asking Alito whether a judge should take into
consideration their own values and personal beliefs when
reviewing a case.
In his response,
Judge Alito is saying that judges have to be careful to not inject
their own personal beliefs when issuing decisions. It’s the role of
Congress to make policy. Judge Alito is also remarking that the
Judiciary has to restrain itself and
engage in constant self-reflection on whether they’re stepping over
a line and taking on something that should be addressed by the
legislative branch. Judge Alito is stating firmly that Congress is
the lawmaking body. The Judiciary has its own unique role to play.
Sen. Grassley is continuing to discuss the
issue of ethics and integrity with respect to Judge Alito’s record. He
is stating that the American Bar Association unanimously found Alito to
be well-qualified. Bringing his comments back again to the Vanguard
situation, Sen. Grassley is saying that five leading ethicists have
determined that Judge Alito did nothing wrong by participating in the
Vanguard case. Sen. Grassley thinks it is very unfair to give
these allegations more weight than they deserve. It is an attempt to
smear his impressive record in his opinion.
11:57 a.m. Sen. Grassley Begins Questioning Judge Alito.
Senator Grassley is
beginning his remarks by saying that Judge Alito did nothing wrong
in respect to the Vanguard case. Senator Grassley said that he
should not “lose any sleep over that”. He believes the public is
seeing that he has the intellect and background to serve as a
Supreme Court Justice.
Senator Grassley is
noting that these nomination hearings are a unique opportunity to
explore more in depth how a nominee to the Supreme Court approaches
constitutional interpretation as well as a nominee’s understanding
of the separation of powers in our government.
11:52 a.m. Sen. Kennedy Is Questioning Judge Alito About
Executing Warrants.
Sen. Kennedy
returns to the strip searching of a young girl that Sen. Leahy
referred to previously. Judge Certoff held that the police went too
far, saying that a police warrant does not constitute the search of
everyone on the premise. He confirms that Judge Alito disagreed
with that ruling. Kennedy asks why Judge Alito included an
affidavit that approved the search of a young girl. Judge Alito
responds by saying that he does not agree that minors should never
be searched. The affidavit authorized the search of everyone on the
premise based on probable cause, which is what he authorized.
Sen. Kennedy is
now questioning Judge Alito on his endorsement an all powerful
presidency. He questions Judge Alito on the abuses of presidential
power. He recalls Sen. McCain's amendment to ban torture, in which
the Pres. Stated that the executive branch has the right to
authorize torture. He states that Judge Alito has several times
undermined the use of courts in the legislative process and that
President Bush has criticized the courts for undermining his unitary
executive power, which gives the Pres. power over the independent
agencies. Kennedy asks whether Judge Alito will act as a check on
executive power. Judge Alito responds by saying that the status of
independent agencies can not get in the way of the president
exercising his executive power.
11:32 a.m.
Sen. Kennedy Begins Questioning Judge Alito.
Sen, Kennedy begins
by returning to the Vanguard issue. He recalls that Judge Alito said
that conflicts of issues would not arise. He asks Judge Alito about his
promise not to recluse himself. Sen. Kennedy questions the number of
times Vanguard appears on the briefs and draft opinion. Judge Alito
responds by saying that he did not focus on the issue of recusal. Sen.
Kennedy asks whether he was asked about his recusal – whether they knew
he had promised the committee to recluse himself from the Van Guard
case. Judge Alito responds affirmatively. Sen. Kennedy explains that
he is asking so that Interested parties that come before the courts can
believe that they will receive fair treatment.
Sen. Kennedy is now
asking Judge Alito about the McCain amendment to ban torture, saying
that the President concluded that he can authorize torture under certain
circumstances. Sen. Kennedy is saying that justices need to enforce
boundaries on presidential power, and is asking Judge Alito to confirm
that he will be that kind of justice. He is referring to his record of
disregarding the impact of presidential power. He asks whether Judge
Alito will ever conclude that the President has gone too far. Judge
Alito confirms that the braches of government are equal.
11:07 a.m.
Sen. Hatch Continues With Commending Judge Alito For His
Integrity And Ethics.
Sen. Hatch then
turns to the fact that Judge Alito has not had any legislative
experience. He points out that critics of Judge Alito say that his
many years working in the Executive Branch makes him partial to that
branch. Sen. Hatch turns to examples in which Judge Alito heard
cases involving the executive powers and decided against the
executive. Judge Alito responds by listing these cases. Sen. Hatch
comments that Judge Alito has over his 15 years experience on the
bench had made every effort for fair and careful decisions.
On the issue of
judicial temperance and philosophy, Sen. Hatch asks how Judge Alitos
experience on the bench has shaped his view of the role of a judge.
Judge Alito responds that a judge should not impart his views into a
decision, but should decide based on the facts on the case and how
the law should be applied. Furthermore, the judiciary has a limited
role and should not make policy decisions. Sen. Hatch
asks whether this judicial restraint applies to the Supreme Court
since there is no higher court. Judge Alito states that the Supreme
Court is limited by the Constitution, statute, and
stare decisis. He
further states that constitutional issues are of greater
significance than decisions on statutes because the Congress could
amend that statute rendering the decision moot. Yet a judge should
also stay with the limitations that Congress lays out.
10:54 a.m.
Sen. Hatch Begins Questioning Judge Alito.
Sen. Hatch picks
up on the issue Sen. Leahy concluded with, the Concerned Alumni of
Princeton (CAP), a group that raised concerns over women and
minorities attending Princeton in rising numbers. He directly asks
Judge Alito whether he is against women and minorities attending
universities. Judge Alito responds that he is not against it. Sen.
Hatch continues by turning to the issue of ROTC, of which Judge
Alito was a member. During the judge’s junior year at Princeton, the
ROTC had been thrown off campus. This was a reason that Alito had
previously given for joining CAP.
The next issue
that Sen. Hatch addresses is the cases on the Vanguard Company that
came before Judge Alito on the Third Circuit Court. Judge Alito, an
investor in this company, had stated in his confirmation hearing for
this court that he would recuse himself should any cases involving
Vanguard. However, when a case came before the judge, he did not
recuse himself the first time the case was heard. Sen. Hatch reads
a statement about Judge Alito commending
his ethics and how
seriously he takes the issue of recusal. Judge Alito responds with
a discussion of the recusal process in cases involving lawyers as
opposed to pro se. In pro se cases, which included the Vanguard
cases, the judges were not given the cases to review whether there
was any need to recuse themselves. Judge Alito, in the Vanguard
case, had only seen the briefs regarding the case and not the
information on lawyers and litigants. Once he realized that there
could be reason to recuse himself he did so and called for new panel
to hear the case. He has also since changed the process by which
his office handles pro se cases.
10:34 a.m.
Sen. Leahy Questions Judge Alito about search warrants.
Sen. Leahy is now questioning Judge Alito about
search warrants. Sen. Leahy is discussion a government
search warrant which was executed on a family not specified in
the warrant, and in which a family, including a young girl was
strip searched. Sen. Leahy is saying that Judge Alito
ruled that the strip search of the family, including the young
girl, was within the jurisdiction of the search warrant.
Sen. Leahy asks Judge Alito if he maintains that decision.
Judge Alito says that the question was whether the warrant
authorized the search of individuals on the premises.
Judge Alito said that he believed that he was not pleased that a
young girl was strip searched as the warrant was executed, but
that within the context of executing the warrant it was
appropriate. Sen. Leahy says that he worries about this
ruling, because the courts are established to protect people
from government overreach.
Sen. Leahy is now telling Judge Alito about his
own family history as immigrants. He is talking about his
concerns over ethnic and religious prejudice. Sen. Leahy
is now talking about his concern over the Concerned Alumni of
Princeton (CAP). Sen. Leahy is questioning the practice of
CAP in criticizing the inclusion of women and minorities in
admission to Princeton. Judge Alito included his admission
to this organization on his background. Sen. Leahy is
questioning Judge Alito about his pride in his membership to
CAP. Judge Alito says that he does not recall his
admission to that organization.
10:20 a.m.
Sen. Leahy Questions Judge Alito about government spying.
Sen. Leahy questions Judge Alito about the FISA
Court. Sen. Leahy says that the President has chosen to
ignore the laws of the FISA Court, and asks Judge Alito if he
thinks that the President can circumvent the law and spy on
Americans without attaining a warrant. Judge Alito says
that he would need to know what the arguments are on either side
of the issue before he would be able to make such a ruling.
Sen. Leahy is asking Judge Alito where an American who was being
spied upon by the government unaware would have the standing to
sue the government. Judge Alito says that any American has
the right to access the court. Sen. Leahy asks whether
Judge Alito believes that an American who has been spied on
should have a day in court. Judge Alito says that he
believes that anyone who has had their civil liberties violated
deserves their day in court.
10:12 a.m.
Sen. Leahy Begins Questioning Judge Alito.
Sen. Leahy follows up on Sen. Specter's question
about Presidential signing statements. Sen. Leahy has now
turned to protecting the privacy of all Americans. Sen.
Leahy is referencing a position of the Department of Justice
that stated that the President could override the laws governing
torture. Sen. Leahy is asking what his legal view is of
the idea that the President can override the laws governing war.
Judge Alito says that, as he mentioned in his opening statement,
no American, including the President, is above the law.
Judge Alito says that he believes that specific cases should be
considered in their specific contexts. Sen. Leahy now is
asking whether the President should be allowed to exempt
violators of laws passed by Congress from prosecution.
Judge Alito says that often such cases do not come before the
judiciary, and are frequently resolved by the other branches of
the government.
Sen. Leahy is now asking Judge Alito if he
believes whether the President, while not above the law, when he
immunizes individuals from following the law, put those
individuals above the law. Judge Alito says that the
President is responsible for ensuring that the law is faithfully
executed, and that some cases come up that can skew that.
Judge Alito says that cases of Presidential power should be
examined individually.
10:04 a.m.
Sen. Specter Questions Judge Alito About
Presidential Power.
Sen. Specter is questioning Judge Alito if he
believes with a statement made by retiring Justice O'Connor that
the president is not entitled to a blank check to go to war.
Judge Alito says that he does agree with that statement.
Judge Alito also says that the Bill of Rights applies at all
times - including times of war and times of crisis.
Sen. Specter is now asking Judge Alito about how
he would weigh the President's powers to use electronic
surveillance in a time of war. Judge Alito says that the
first question would be to evaluate the statutory question, and
the factors that would arise in interpreting the statute.
Sen. Specter is now asking Judge Alito about the President
attaching a signing statement to a piece of legislation for use
in interpreting the bill. Judge Alito ruled that the
President's views were just as important as that of the
Congress, and the President's interpretation of the bill should
also be considered. Sen. Specter says that the President
can express his views through a veto. Judge Alito says
that he believes that the memo which Sen. Specter refers to was
a first attempt at examining the theoretical implications of
attaching signing statements to bill signings.
9:51 a.m. Sen. Specter Questions Judge
Alito About The 'Superprecedent.'
Sen. Specter is questioning Judge Alito about
whether he agrees that Casey vs. Planned Parenthood is a 'superprecedent.'
Judge Alito says that he agrees with the underlying thought that
when a precedent is reaffirmed, it reinforces the precedent.
Judge Alito says that every case before the Supreme Court should
be looked at in full, considering both the precedents at hand,
as well as the new facts and merits of the case.
Sen. Specter is moving to a statement that Judge
Alito made stating that he did not believe that the Constitution
contained a woman's right to an abortion. Judge Alito says
that the first question he would consider today would be the
question of stare decisis. Judge Alito is reinforcing his
belief that when someone becomes a Justice, they must put aside
their prior role as an attorney, and consider cases in an
unbiased and non-personal perspective. Sen. Specter is
pressing Judge Alito about the 1985 memo regarding abortion, and
Judge Alito says that he was stating his position at the time,
and the position of the Administration which he was
representing. Sen. Specter is now questioning Judge Alito
about a ruling he made to strike a Pennsylvania statute, which
required a woman who had been raped to attain a second opinion
to state that an abortion was necessary to save her life.
Sen. Specter is asking what Judge Alito's line of thinking was
on this case. Judge Alito says that had he had an agenda
to uphold any regulation on abortion, he would have voted to
uphold the statute.
9:44 a.m. Sen. Specter Begins
Questioning Judge Alito.
Sen. Specter begins by questioning Judge Alito
on the issue of a women's right to choose. Sen. Specter is
questioning Judge Alito about Casey vs. Planned Parenthood.
Sen. Specter is asking Judge Alito about the the Court's
reliability on established precedent, and Judge Alito has
responded saying that there must be a compelling reason for the
Court to overturn precedent, but that precedent does not govern
future Court rulings.
Sen. Specter has moved to the issue of Miranda rights. He
is questioning Judge Alito about the constitutional concept of
liberty. He asks whether Judge Alito believes that the
Constitution is a "living thing." Judge Alito responds by
saying that the Constitution is a living thing in that it has
governed the country for over 200 years, and that it is both
specific and unspecific about certain issues. Judge Alito
says that the traditions and rights outlined in the Constitution
govern the changing times in which the country exists.
9:30 a.m.
Sen. Leahy In His Own Words.
DIGNIFIED
HEARINGS. On Monday morning, before the
hearings began, the President came out on his porch with Judge Alito and
called on the Senate to hold “dignified” hearings.
Just as we did in
the hearings for now Chief Justice Roberts, Chairman Specter and I will
do all we can to make sure these hearings are fair, substantive -- and,
yes, “dignified.” The Roberts hearings in fact were widely praised for
living up to that standard.
Of course the
President’s admonition to others is a tad ironic considering his track
record with this very nomination – especially his handling of Harriet
Miers’s nomination and withdrawal. Judge Alito was nominated only after
the President caved to pressure from right-wing critics who demanded
assurances about how she would vote on their litmus-test issues. When
her nomination was withdrawn, she was denied even having hearings so she
could answer these critics, let alone a vote. The White House’s
handling of Harriet Miers’s nomination was anything but dignified.
EXECUTIVE
POWER, CHECKS AND BALANCES, AND GOVERNMENT INTRUSION INTO AMERICANS’
LIVES. My first questions to Judge Roberts
were about presidential power and the checks and balances among the
three branches of our government. So will my first questions to Judge
Alito be about presidential power and checks and balances. Checks and
balances and government intrusion into Americans’ lives are always
important issues in considering nominees to the Supreme Court. But
today the front page stories that we see day after day make clear to the
American people what is at stake.
The Supreme Court is
the ultimate check and balance in our system, and that role is all the
more important when Congress is lax in its oversight responsibilities.
Absolute power
corrupts absolutely. We’re seeing the results right now, with these
revelations about illegal spying on Americans and in these scandals that
are erupting in Washington.
The erosion of
checks and balances has practical implications for every American – in
the effectiveness and accountability of our law enforcement and
intelligence agencies in protecting us from attacks, in the role that
the unchecked concentration of power has played in the culture of
corruption that threatens to poison the public’s trust in their
government, and even in the ability of agencies like FEMA and Labor
Department to adequately do their jobs to help Americans in dire need or
to protect workers in dangerous professions like underground mining.
Checks and balances
also come into play when it comes to things like government data mining
of personal information about Americans, the proliferation of data bases
to store that information, and the erosion of our longstanding
principles on things like torture. We’ve even seen instances of the
Pentagon spying on peaceful, elderly Quakers in Vermont. Some of us are
old enough to cringe even more when we contemplate what J. Edgar Hoover
or Richard Nixon would have done with the vast new technologies we have
today that make spying on Americans so easy and so tempting.
Checks and balances
and government intrusion into Americans’ lives are all the more
important when tools like these are in the hands of an administration
that basically opposes and sometimes even ignores longstanding checks
and balances and that believes that the President in some cases is even
above the law. In America no one, not even the President, is above the
law.
That is why these
issues and these hearings matter so much. Confirmation hearings like
these are where we decide whether to underscore those checks and
balances to prevent abuses.
These hearings
aren’t a surrogate for looking at issues like illegal spying on
Americans. This is the real thing. This is where we decide if our
courts will continue to be the ultimate check and balance on abuses by
big government and big corporations and against the abuse and corruption
that happens when too much power is concentrated in a few hands.
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