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Samuel Alito Hearings; Cheney Update

Aired January 9, 2006 - 14:00   ET


WOLF BLITZER, CNN ANCHOR: All right. They've just gaveled it for this break.
The chairman, Arlen Specter, calling Russ Feingold a judge. Even though he went to Harvard Law School, I don't believe he ever served as a judge. But that's all right. He meant Senator Feingold.

Judge Jeff Greenfield and Judge Jeff Toobin, both of you went to law school. Neither of you ever served as a judge. But give us your sort of halfway assessment right now, what we've learned about these historic hearings that are going to be very important in determining Samuel Alito's confirmation or non-confirmation and what these next several days are going to take.

JEFF GREENFIELD, CNN SR. ANALYST: Oh, I think we've gotten a very good roadmap to what will happen tomorrow when the questions or, some might say, the speeches described as questions really begin. I think there's no secret about where anybody is going.

The Republicans are going to say exceptionally well qualified, as the ABA said, fully credentialed. We don't want you to tell us how you are going to vote, and you are an outstanding choice.

The Democrats are going not only toward what they will try to paint as outside the mainstream views on issues like abortion, they are going to hit very heavy on Alito's apparent willingness to grant executives almost unfettered power. And they are going to raise credibility questions about how he -- why he didn't step out of cases where he had, as Jeff Toobin points out, a minor financial interest.

So, I mean, I think -- I think we know where this is going.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: And this is just a much more politicized process than even the Roberts' hearings were. We've now heard from the three Democratic senators, Patrick Leahy of Vermont and the two senators from Wisconsin, Herb Kohl and Russ Feingold, all of whom voted for John Roberts.

BLITZER: Three votes in favor -- the three Democrats.

TOOBIN: Right. From their opening statements it seems extremely unlikely that they will vote for Alito.

So even before Judge Alito has said a word, he has lost the three Democratic votes that Roberts had, probably, and I think that's indicative of how polarizing this fight will be.

BLITZER: So you're both suspicious right now that this could be a 10 to eight vote in the committee?

TOOBIN: Overwhelmingly likely.

GREENFIELD: I think definitely -- right.

And then the question becomes, all right, how many Democrats on the floor are going to be peeled away? There are a couple of relatively conservative Democrats who probably would just as soon not want to be in a filibuster, Ben Nelson of Nebraska I think counts as one. There are a couple of red state Democrats up next year.

And then what about the two women from Maine, Snowe and Collins? Both pro-choice, both have in the past said they'd be very reluctant to vote for a candidate who was not committed to Roe versus Wade.

And what about perhaps a handful -- by handful, I mean one or two other Republicans -- who might be wary of Alito on granting executives that much power in the wake of current stories about the Bush administration and spying?

TOOBIN: But it's interesting. The executive power, I'm going to think the Democrats may be looking for trouble on this issue because, you know, it is an issue where a lot of Americans think, you know, we're spying on al Qaeda, good. And the more the better.

And I think defining the issue as civil liberties not protecting us from al Qaeda, that's a difficult challenge for the Democrats. It will be interesting to see how they try to do that.

BLITZER: All right. We're going to continue our coverage. They're on a break right now. And don't forget, for all of the hearing unfiltered, Go to Pipeline, our new service, is streaming that for you as well.

Once they emerge from their break, by the way, we are going to be hearing from Republican Senator Lindsey Graham, an important member of this committee, as well as Democratic Senator Chuck Schumer. We're going to be bringing you their statements live.

We're also going to be checking in to see what's going on, some other news we're following right now, including the health of the vice president, Dick Cheney. He was rushed to the hospital here in Washington earlier today. As well as the situation involving the prime minister of Israel, Ariel Sharon.

Much more of our coverage from THE SITUATION ROOM right after this.


BLITZER: The Senate Judiciary Committee has taken a brief break. The committee members are going to be returning momentarily.

Senator Chuck Schumer of New York, Senator Lindsey Graham of South Carolina, they'll be making their statements. We are going to go back there live as soon as it begins. But there's other important news we are following right now.

Let's go to CNN's Kyra Phillips at the CNN Center in Atlanta for a quick update -- Kyra.

KYRA PHILLIPS, CNN ANCHOR: Thanks again, Wolf.

Important signs of recovery today from Israeli Prime Minister Ariel Sharon. Doctors say that Sharon slightly moved his right hand and leg after pain stimuli tests. Sharon is now breathing on his own but remains connected to a respirator. He is in serious condition following a major stroke last Wednesday.

Two candidates have emerged in the race to replace Tom DeLay as majority leader in the House. Roy Blunt has been serving as acting majority leader since DeLay stepped aside to battle campaign finance charges. Now that DeLay says he wasn't -- he won't seek restatement, the Missouri Republican is seeking the post on a permanent basis.

He is going to face another candidate, John Boehner of Ohio. House Republicans are expected to vote around February 1 after Congress reconvenes.

Two days after it happened, U.S. officials say they don't know the cause of that deadly Black Hawk helicopter crash in northern Iraq. The crash occurred late Saturday night not far from the rebel stronghold of Tal Afar. All 12 people on that chopper were killed. All were Americans. And the military now says four of the 12 were civilians.

After four straight days of American bloodshed, troop deaths in Iraq now stand at 2,206.

A tiny patient is in recovery. Doctors completed the first of several operations on Baby Noor today. The Iraqi infant with the severe form of Spina Bifida will need to undergo more surgeries before returning home to Iraq.

The 3-month-old was nicknamed "Baby Noor" by U.S. soldiers who found her in a very poor district just west of Baghdad. They arranged for her trip and medical treatment in the U.S.

Today doctors in Georgia plan to move her exposed spinal cord and place it down the center of her back, where it should be. They then cover it with muscle and other tissue. A fluid-filled sack on her back was also drained. Even with the surgery, Baby Noor will likely never have the use of her legs. But without it, she would have died.

Doctors say she'll be doing well after that operation.

Wolf, it is a story that we have been covering since the very beginning. Pretty heartwarming and pretty awesome to see all these people working for free to try to save this little girl.

BLITZER: I know. They're having a news conference also around 4:30 p.m. Eastern. We're going to try to bring that to our viewers as well on her condition. Kyra, thank you very much.

The vice president, Dick Cheney, was taken to the hospital this morning.

I want to go over to the White House. Our correspondent there, Elaine Quijano, standing by with an update.

What happened, Elaine?


Well, the vice president spent about four and a half hours at George Washington University Hospital, and in the end it was determined by his doctors that he was retaining fluid after taking some anti-inflammatory medication for a foot problem.

Now, there were some questions as to what specifically that foot problem was. Well, now we have some answers.

This coming to us from Jenny Mayfield, who is with the vice president's office. In a statement that she released just a short time ago, she said, "The vice president is feeling well and will resume his afternoon schedule at the White House. He has occasional bouts with inflammation in his left foot, sometimes in the heel, which has been diagnosed as tendonitis. Sometimes in the joint of his big toe, which has not been definitively diagnosed."

"Some doctors have suggested it might be gout, but he does not suffer from the acute pain usually associated with gout, nor does he have raised levels of uric acid in his blood which is also associated with gout. Other doctors have suggested that osteoarthritis is the cause."

So there some more details, Wolf, on exactly what this recurring foot problem was. You will recall on Friday that we saw the vice president walking with a cane. And we were told at that time it was because of a recurring injury or a recurring problem with his left foot, that he was on anti-inflammatory medication.

And then this morning we learned early this morning the vice president, around 3:00 a.m. Eastern Time, was taken not by ambulance but by car to George Washington University Hospital because he was experiencing shortness of breath. And again, at that time doctors determined that he was retaining fluid as a result of this medication. He has had a history of heart problems, but doctors saying that his EKG showed no changes -- Wolf.

BLITZER: So very briefly, Elaine, the shortness of breath -- of the breath was the result of the medication he was taking to deal with the foot problem?

QUIJANO: That's our understanding. And there had been some concern because the vice president has suffered from serious health problems before, primarily heart trouble. He had four heart attacks, and there was some concern perhaps this was connected. But the vice president president's office saying that his doctors have indicated that the shortness of breath caused by that anti-inflammatory medication that the vice president was taking for his foot -- Wolf.

BLITZER: All right, Elaine. Thanks very much.

Elaine Quijiano is our White House correspondent. We will get the latest on Dick Cheney's health throughout the day here on CNN.

We are standing by for the resumption of the confirmation hearings of Judge Samuel Alito to be the next associate justice of the U.S. Supreme Court. Once the chairman, Arlen Specter, reconvenes the session, we'll go back there live. We are expecting to hear from Senator Lindsey Graham and Senator Chuck Schumer.

Always remember this: you can watch all of the hearings, listen to it on Go there if you want to see it on your desktop.

We'll be right back.


BLITZER: We're back in THE SITUATION ROOM. I'm Wolf Blitzer reporting.

We're standing by. Momentarily, the resumption of the Senate confirmation hearings of Judge Samuel Alito to serve on the U.S. Supreme Court. Senator Lindsey Graham will be making his statement momentarily.

Our correspondent Ed Henry is on the Hill watching all of this.

Ed, it got pretty -- I don't know -- I don't want to use the word "tense," but clearly Senator Ted Kennedy specifically was very blunt in foreshadowing the line of questioning he will -- he will undertake.

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: That's right. And Senator Kennedy, on a range of issues, basically summed it all succinctly by saying, "Are you going to be a cheerleader for an imperial presidency?" And that hits the executive power issue that Jeff Greenfield was talking about, about whether or not in fact he will be a check and balance on this administration.

I think also the overarching issue of candor. Senator Specter started all this off by saying that he thinks this is oftentimes a minuet, where the nominee only answers questions to the point that he thinks it will take to get confirmed.

Senator Joe Biden, a Democrat, pleading with the nominee in very personal terms, "Please, you've got to be more candid than that. Don't make this a minuet. Make it a conversation."

That conversation expected to end by the end of the week. Chairman Specter making it clear he wants to get the hearings wrapped up and a vote next Tuesday -- Wolf.

BLITZER: All right. Ed Henry on the Hill.

Lindsey Graham is speaking right now, Republican senator from South Carolina.

SEN. LINDSEY GRAHAM (R-SC), JUDICIARY COMMITTEE: ... comfortable with you being on the Supreme Court based on what I know. And the hearings will be helpful to all of us to find out some issues that are important to us.

We had a talk recently about executive power. That's very important to me. In a time of war, I want the executive branch to have the tools to protect me, my family and my country.

But also I believe even during a time of war, the rule of law applies. And I've got some problems with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly.. And we've talked about those things and we'll talk more about it.

But I'm going to talk a little bit about some of the points my colleagues have been making.

Everybody knows you're a conservative. The question is: Are you a mainstream conservative?

Well, the question I have for my colleagues is: Who would you ask to find out? Would you ask Senator Kennedy? Probably not.

If you asked me who a mainstream liberal is, I would be the worst person to pick, because I do not hang out over there.


I expect that most all of us, if not all of us, will vote for you. And I would argue that we represent from the center line to the right ditch in our party and, if all of us vote for you, you've got to be pretty mainstream.

So the answer to the question, "Are you a mainstream conservative?" will soon be known. If every Republican member of the Judiciary Committee votes for you, and you're not mainstream, that means we are not mainstream. It is a word that means what you want it to mean.

Advise and consent means what? Whatever you want it to be. Advise and consent means the process has got to work to the advantage of people I like and with people I don't want on the court, it is a different process. That is politics.

Every senator will have to live within themselves as to what they would like to see happen for the judiciary.

My main concern here is not about you; it's about us. What are we going to be doing as a body to the judiciary when it is all said and done?

Roe v. Wade and abortion: If I wanted to work for Ronald Reagan, one of the things I would tell the Reagan administration is I think Roe v. Wade was wrongly decided. They are likely to hire me because they were trying to prove to the court that the court took away from elected officials a very important right, protecting the unborn.

I was on the news program with Senator Feinstein this weekend, who is a terrific person. She made very emotional, compelling argument that she can remember back alley abortions and women committing suicide when abortion was illegal. I understand that is very seared in her memory banks and that is important to her.

Let me tell you, there's another side to that story. There are millions of Americans -- a bunch of them in South Carolina -- who are heartsick that millions of the unborn children have been sent to a certain death because of what judges have done.

It's a two-sided argument. It's an emotional event in our society.

They're talking about filibustering maybe if you don't give the right answer. Well, what could possibly be the right answer about Roe v. Wade? If you acknowledge it's a precedent the court, well, then you would be right. If you refused to listen to someone who's trying to change the way it's applied or to overturn it and you will say, "Here, I will never listen to them," you might talk me out of voting for you.

I don't think any American should lose the right to challenge any precedent that the Supreme Court has issued because the judge wanted to get on the court.

And you may be a great fan of Roe v. Wade and you think it should be there forever. There may be a case where someone disagrees with that line of reasoning.

What I want from the judge is an understanding that precedent matters but the facts, the brief and the law is what you're going to base your decision on as to whether or not that precedent stands, not some bargain to get on the court.

Because I can tell you, if that ever becomes a reason to filibuster, there are plenty of people that I personally know, if it became fashionable to stand on the floor of the Senate to stop a nominee on the issue of abortion, feel so deeply, so honestly held belief that an abortion is certain death for an unborn child that they would stand on their feet forever.

And is that what we want? Is that where we're going as a nation? Are we going to take one case and one issue, and if we don't get the answer we like that represents our political view on that issue, are we going to bring the judiciary to their knees? Are we going to say as a body, "It doesn't how matter how smart you are, how many cases you decided, how many things you've done in your life as a lawyer, forget about it; it all comes down to this one issue"? If we do, if we go down that road, there will be no going back. And good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels.

What we're saying and what we're doing here is far more important than just whether or not Judge Alito gets through the process.

What is the proper role of a senator when it come to advise and consent?

I would argue that, if we start taking the one or two cases we cherish the most and make that a litmus test, that we've let our country down and we've changed a historical standard.

Elections matter. Values debates occur all owe this country. They occur in presidential elections. It is no mystery as to what President Bush would do if he won. He would pick people like John Roberts and Sam Alito.

That's what he said he would do. That's exactly what he's done. He's picked solid, strict constructionist conservatives who have long, distinguished legal careers.

What did President Clinton do? He picked people left of the center who worked for Democrats. It cannot surprise anybody on the other side that two people we picked worked for Ronald Reagan. We like Ronald Reagan.

President Clinton picked Ginsburg and Breyer. Justice Ginsburg was the general counsel for the ACLU. If I'm going to base my decision based on who you represented as a lawyer, how in the world could I ever vote for somebody that represented the ACLU?

If I'm going to make my decision based on whether or not I agree with the Princeton faculty and administration policies on ROTC students and quotas and I am bound by that, I'll get killed at home.

What the president does with their admission policies and whether or not an ROTC unit should be on a campus is an OK thing to debate. At least I hope it is OK.

And I think most American are going to be with the group that you're associated with, not the policies of Princeton.

The bottom line is you come here as an individual with a life well-lived. Everybody who seems to work with you as a private lawyer, public lawyer, as a judge, admires you, even though they may disagree with you.

My biggest concern, members of this committee, is if we don't watch the way we treat people like Judge Alito, we're going to drive good men and women away from wanting to be served.

There'll be a Democratic president one day. I do not know when, but that's likely to happen. There'll be another Justice Ginsburg come over. If she came over in this atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't get 98 votes. And that's sad to me.

I hope we'll use this opportunity to not only treat you fairly but not use a double standard. I hope we'll understand that this is bigger than you, this is bigger than us. And the way we conduct ourselves and what we expect of you, we better be willing to expect when we're not in power.

Thank you.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SEN. CHARLES SCHUMER (D), NEW YORK: Thank you, Mr. Chairman.

And, Judge Alito, welcome to you, Mrs. Alito, your two children, the rest of your family. I join my colleagues in congratulating you on your nomination.

If confirmed, you'll be one of nine people who collectively hold power over everyone who lives in this country. You'll define our freedom, you'll affect our security and you'll shape our law. You will determine on some days where we pray and how we vote. You'll define on other days when life begins and what our schools may teach. And you will decide from time to time who shall live and who shall die. These decisions are final and appeals impossible.

That's the awesome responsibility and power of a Supreme Court justice. And it's, therefore, only appropriate that everyone who aspires to that office bear a heavy burden when they come before the Senate and the American people to prove that they're worthy.

But while every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high.

First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.

So, first, as this committee takes up your nomination, we can't forget recent history, because that history increases your burden and explains why the American people want us to examine every portion of your record with great care.

Harriet Miers' nomination was blocked by a cadre of conservative critics who undermined her at every turn. She didn't get to explain her judicial philosophy, she didn't get to testify at the hearing, and she did not get the up-or-down vote on the Senate floor that her critics are now demanding that you receive.

Why? For the simple reason that those critics couldn't be sure that her judicial philosophy squared with their extreme political agenda. They seem to be very sure of you.

The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you, Judge Alito. We'd be remiss if we didn't explore why.

And there's an additional significance to the Miers precedent, which is this: Everyone now seems to agree that nominees should explain their judicial philosophy and ideology.

After so many of my friends across the aisle spoke so loudly about the obligation of nominees to testify candidly about their legal views and their judicial philosophy when the nominee was Harriet Miers, I hope we will not see a flip-flop now that the nominee is Sam Alito.

The second reason your burden is higher, of course, is that you're filling the shoes of Sandra Day O'Connor. Those are big shoes, to be sure, but hers are also special shoes. She was the first woman in the history of the Supreme Court, is the only sitting justice with experience as a legislator, and has been the most frequent swing vote in a quarter century of service.

While Sandra Day O'Connor has been at the fulcrum of the Court, you appear poised to add weight to one side. That alone is not necessarily cause for alarm or surprise, but it's certainly a reason for pause.

Are you in Justice O'Connor's mold or, as the president has vowed, are you in the mold of Justices Scalia and Thomas?

Most importantly, though, you burden is high because of your record. Although I haven't made up my mind, I have serious concerns about that record. There are reasons to be troubled. You're the most prolific dissenter in the 3rd Circuit.

This morning, President Bush said, Judge Alito has the intellect and judicial temperament to be on the court. But the president left out the most important qualification, a nominee's judicial philosophy.

Judge Alito, in case after case, you give the impression of applying careful legal reasoning, but, too many times, you happen to reach the most conservative result.

Judge Alito, you give the impression of being a meticulous legal navigator but, in the end, you always seem to chart a rightward course.

Some wrongly suggest that we're being results-oriented when we question the results you have reached. But the opposite is true. We're trying to make sure you're capable of being fair, no matter the identity of the party before you.

Sometimes you give the government a free pass but refuse to give plaintiffs a fair shake. We need to know that presidents and paupers will receive equal justice in your courtroom. If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair.

In many areas, we'll expect clear and straightforward answers because you have a record on these issues -- for example, executive power, congressional power and personal autonomy, just to name a few.

The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions.

Will your judicial philosophy preserve these principles? Or will it erode them?

In each of these areas, there is cause for concern. In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the "unitary executive."

Your deferential and absolutist view of separation of powers raises questions. Under this view in times of war, the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.

We need to know: When a President goes too far, will you be a check on his power, or will you issue him a blank check to exercise whatever power alone he thinks appropriate? Right now, that is an open question, given your stated views.

Similarly, on the issue of federalism, you seem to have taken an extreme view, substituting your own judgment for that of the legislature. Certainly, in one important case, you wrote in Rybar v. U.S. that Congress exceeded its power by prohibiting the possession of fully automatic machine guns.

Do you still hold these cramped views of congressional power? Will you engage in judicial activism to find ways to strike down laws that the American people want their elected representatives to pass and that the Constitution authorizes?

And, of course, you have made statements expressing your view that the, quote, "Constitution does not protect a right to an abortion," unquote. In fact, you said in 1985, that you "personally believe very strongly" this is true.

You also spoke, while in the Justice Department, of, quote, "the opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade."

It should not be surprising that these statements will bring a searching inquiry, as many of my colleagues have already suggested.

So we'll ask you: Do you still personally believe very strongly that the Constitution does not protect a right to an abortion?

We will ask: Do you view elevation to the Supreme Court, where you'll no longer be bound by high court precedent, as the long-sought opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade, as you stated in 1985?

Judge Alito, I sincerely hope you'll answer our questions. Most of the familiar arguments for ducking direct questions no longer apply and certainly don't apply in your case.

For example, the logic of the mantra repeated by John Roberts at his hearing, that one could not speak on a subject because the issue was likely to come before him, quickly vanishes when the nominee has a written record, as you do, on so many subjects.

Even under the so-called Ginsburg precedent, which was endorsed by Judge Roberts, Republican senators, the White House, you have an obligation to answer questions on topics that you have written about.

On the issue of choice, for example, because you've already made blanket statements about your view of the Constitution, and your support for overruling Roe, you've already given the suggestion of prejudgment on a question that will likely come before the court.

So I respectfully submit you cannot use that as a basis for not answering.

So I hope, Judge Alito, that when we ask you about prior statements you've made about the law, some strong, some even strident, you will simply not answer, in effect, "No comment." That will not dismiss prior expressions of decidedly legal opinions as merely personal beliefs and that will enhance neither your credibility nor your reputation for careful legal reasoning.

I look forward, Judge, to a full and fair hearing.

SPECTER: Thank you, Senator Schumer.

Senator Cornyn?

SEN. JOHN CORNYN (R), TEXAS: Thank you, Mr. Chairman.

Judge Alito, welcome to the committee, and to your family as well.

I'm a little surprised to learn that you have a triply high burden for confirmation here. I guess we'll get a chance to explore that, and the fairness of that, or whether all nominees ought to have the same burden before the committee.

What I want to also make sure of is that we don't hold you to a double standard, that we don't expect of you answers to questions that Justice Ginsburg and others declined to answer in the interest of the independence of the judiciary and in the interests of observing the canons of judicial ethics.

Nevertheless, we have already heard a great deal about you and your credentials for the Supreme Court. As has been noted, you serve with distinction on the court of appeals. You served as United States attorney. And, indeed, you served your entire adult life in public service.

We've also heard a bit today, and you'll hear more as these proceedings unfold, about the testimonials from people who have worked with you, people who know you best. Whether liberal, moderate or conservative the judges on your court have praised you as a thoughtful and open-minded jurist, and we'll hear more from them later in the week.

The same can be said of the law clerks who've worked with you over the last 15 years. As you know, law clerks are those who advise appellate judges on the cases they hear. And you've had law clerks from all political persuasions, from members of the Green Party to Democrat clerks, even a clerk that went on to serve as counsel of record for John Kerry's campaign for president.

And every single one of them says that you will make a terrific Supreme Court justice, that you apply the law in a fair and even- handed manner, and that you bring no agenda to your job as a judge.

If fairness, integrity, qualifications and an open mind were all that mattered in this process, you would be confirmed unanimously, but we know that's not how the process works or at least how it works today.

We know that 22 senators, including five on this committee, voted against Chief Justice Roberts' confirmation just a few short months ago. And my suspicion is that you do not come here with a total level playing field.

I'm reluctantly inclined to the view that you and other nominees of this president to the Supreme Court start with no more than 13 votes on this committee and only 78 votes in the full Senate, with a solid, immovable, unpersuadable block of at least 22 votes against you no matter what you say and no matter what you do.

Now, that's unfortunate for you, but it is even worse for the Senate and its reputation as the world's greatest deliberative body.

The question is: Why, with so many people from both sides of the aisle and across the ideological spectrum supporting your nomination are liberal special interest groups and their allies devoting so much time and so much money to defeat your nomination?

The answer, I'm afraid, is that there are a number of groups who really don't want a fair-minded judge who has an openness to both sides of the argument. Rather, they want judges who will impose their liberal agenda on the American people; views so liberal that they cannot prevail at the ballot box.

So they want judges who will find traditional marriage limited to one man and one woman unconstitutional. They want judges who will ban any religious expression from the public square. They even want judges who will prohibit school children from reciting the Pledge of Allegiance.

As I say, none of these are mainstream positions embraced by the American people, so the strategy is to try to impose their agenda through unelected judges.

Judge Alito, the reason why these groups are trying to defeat your nomination because you won't support their liberal agenda is precisely why I support it.

I want judges on the Supreme Court who will not use that position to impose their personal policy preferences or political agenda on the American people.

I want judges on the Supreme Court who will respect the words and the meaning of the Constitution, the laws enacted by Congress and the laws enacted by state legislatures.

Now, this doesn't mean, as you know, that a judge will always reach what might be called a conservative result. It means that judges will reach whatever result is directed by the Constitution, by the law, and by the facts of the case.

Sometimes, it might be called conservative; sometimes it might be called liberal. But the point is that the meaning of the Constitution and other laws should not change unless we the people change them.

A Supreme Court nomination and appointment is not a roving commission to rewrite our laws however you and your colleagues see fit.

BLITZER: Senator Jon Cornyn of Texas, making his opening statement, strongly supporting Samuel Alito's nomination to be the next Supreme Court associate justice.

Jeff Greenfield and Jeff Toobin are here in THE SITUATION ROOM with us.

Where does it say, Jeff Greenfield, that a president is bound to nominate someone to fill a vacancy on the Supreme Court that would -- that the person nominated has to have the same judicial philosophy as the person who's leaving the Supreme Court? Because the commotion right now is over Sandra Day O'Connor, who's been the swing vote, if you will, over these past many years.

GREENFIELD: Actually, Wolf, that's an incoherent position. Because if you think about it, if people literally meant that no president should appoint a justice who would change the balance of the court, they'd never have overruled Plessy vs. Ferguson, FDR wouldn't have nominated judges who validated the New Deal.

What it does -- I think what the argument is about is that unlike the nomination of Roberts to replace Rehnquist, which couldn't really change the court -- because Sandra Day O'Connor has been so uniquely a fifth justice who defines the middle, changing her with a justice who is on one of the other wings makes a dramatic difference.

And I think what the argument is, if you peel it away, is not that a president can't do it, but that the public doesn't want a new justice who will dramatically shift the court, particularly away from things like abortion rights.

So you're absolutely right, though. It doesn't make any sense. Elections elect the president. A president nominates justices. It's no more logical that George W. Bush appoint the kind of precedents that Bill Clinton did than that Bill Clinton would appoint the kind of justices that Ronald Reagan did.

TOOBIN: It's not like abortion rights. It is abortion rights. That is the issue here. The -- as the poll that Bill Schneider talked about that just came out today, you know, 56 percent of the country would oppose a nominee who wanted to overturn Roe v. Wade.

The Republicans know that as well as the Democrats. They don't want to be associated with an unpopular position that way. So it is more in their political interest to leave Alito's views murky on that subject, whereas the Democratic -- the last two Democratic nominees, Ruth Bader Ginsburg and Stephen Breyer, were only too happy to associate themselves with Roe v. Wade as a precedent.

BLITZER: It's an interesting poll. You can see it up on the screen right now. Should the Senate confirm Samuel Alito if he would overturn Roe versus Wade, which authorized abortion rights for women? Fifty-six percent said no.

GREENFIELD: I just need to point at something very quickly. This is exactly why the Supreme Court is literally an anti-democratic institution to preserve liberty. You don't want court decisions interpreting the Constitution based on public opinion polls.

For instance, if you asked the public should a justice be confirmed who thinks flag burning is constitutionally protected, I bet you the country would overwhelmingly say no. Justice Scalia was a deciding volt in that case because he said it was a First Amendment issue. So there is a real danger here, I mean in the long run, of not having justices who are immune to the temporary public opinion polls.

BLITZER: All right, let's take a quick break. Remember, you want to watch all of the hearings unfiltered, you can go to That's where Pipeline, CNN's new service, is streaming the video, the hearings. You can watch it right there,

We'll continue our coverage from THE SITUATION ROOM right after this. (COMMERCIAL BREAK)

BLITZER: The second-ranking Democrat in the U.S. Senate, Dick Durbin, the minority whip, is now making his opening statement before the Senate Judiciary Committee on the nomination of Samuel Alito for the U.S. Supreme Court.

Let's listen in. SEN. RICHARD DURBIN (D), JUDICIARY COMMITTEE: ... about family planning. And we certainly see it now with an effort by this government to tap our phones, invade our medical records, credit information, library records and the most sensitive personal information in the name of national security.

Now, Justice O'Connor was the critical fifth vote to protect our right of privacy. We want to know whether you will be that vote as well. You were the only judge in your court to authorize a very intrusive search of a 10-year-old girl.

You were the only judge on your court who voted to diminish the right of privacy in the case the Planned Parenthood v. Casey, a position that was specifically rejected by the Supreme Court.

And as a government lawyer, you wrote that you personally believe very strongly the Constitution does not protect the right to an abortion.

Like many, I have thought about this issue of abortion time and again. It is not an easy issue for most people. I thought about the law, the impact of my personal religious beliefs and feelings, I thought about the real lives of people and the tragic experiences of the women I have met.

And I came to believe over the years that a woman should be able to make this agonizing decision with her doctor and her family and her conscience, and that we should be very careful that we don't make that decision a crime except in the most extreme circumstances.

There is also the issue of personal privacy when it comes the executive power. Throughout our nation's history, whether it was habeas corpus during the Civil War, Alien and Sedition Acts in World War I, or Japanese internment camps in World War II, presidents have gone too far. And, in going too far, they have taken away the individual rights of American citizens.

The last stop to protect those rights and liberties is the Supreme Court. That's why we want to make certain that, when it come to the checks and balances of the Constitution, that you will stand with our founding fathers in protecting us from a government or a president determined to seize too much power in the name of national security.

As a government lawyer, you pushed a policy of legislative construction designed to make congressional intents secondary to presidential intent.

You wrote, and I quote, "The president will get in the last words on questions of interpretation," close quote.

In speeches to the Federalist Society, you've identified yourself as a strong proponent of the so-called unitary executive theory. That's a marginal theory at best, and yet it's one that you've said you believe. This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism.

Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without a charge. They've claimed this right to engage in torture even though American law makes torture are a crime.

Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment that passed the Senate 90-9.

What was the rationale? The unitary executive theory, which you've spoken of.

In the Hamdi case, Justice O'Connor wrote for the plurality, and it's been quoted many times, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

If you're confirmed, Judge Alito, who will inspire your thinking if this president or any president threatens our fundamental constitutional rights? Will it be the Federalist Society or will it be Sandra Day O'Connor?

Two months ago, Rosa Parks was laid to rest. Her body lie in state in the Capitol Rotunda, a fitting tribute to the mother of our modern civil rights movement. Her courage is well-known.

The courage of federal Judge Frank Johnson, whom we talked about, is well-known as well. He was the one that gave the legal authority for the right to march from Selma to Montgomery, and he suffered dearly for it. He was ostracized and rejected. His life was threatened as a result of it.

When we met in our office, Judge Alito, you told me about how your father as a college student was almost expelled for standing up to the college president who decided that the school basketball team should not use its African-American players against an all-white opponent. That university president didn't want to offend their all- white opponent. But your dad stood up and you were so proud of that moment in your family history.

I admire your father's courage as well. But just as we do not hold the son responsible for the sins of the father, neither can we credit the sun for the courage of the father.

As Supreme Court justice, would you have the courage to stand up for civil rights even if it's unpopular?

We want to understand what you meant in 1985 when you said from the heart that you disagreed with the Warren court on reapportionment, the one-man, one-vote decision. That was a civil rights decision.

We want you to explain your membership in an organization that you highlighted at Princeton University that tried to challenge the admission of women and minorities. And I think we want to make certain of one thing: We want to make certain that every American who stood in silent tribute to Rosa Parks hopes that you will break your silence and speak out clearly for the civil rights that define our unity as a nation.

There have been many controversial cases alluded here. Some people have questioned: What's the difference? What difference in my life does it make if Sam Alito is on the bench or if he isn't Why would I care if it's a narrow interpretation or a broad interpretation of the law? How does it affect my life?

We know it affects everyone's life. We were reminded just very recently with a tragedy that was in the headlines. In one of your dissents, you would have allowed a Pennsylvania coal mine to escape worker safety and health requirements required by federal law. Last week's tragedy at the Sago Mine reminds us that such a decision could have life-and-death consequences.

Judge Alito, millions of Americans are concerned about your nomination. They're worried that you would be a judicial activist who would restrict our rights and freedoms. During your hearing, you'll have a chance to respond, and I hope you do.

More than any recent nominee, your speeches, your writings, your judicial opinions make it clear that you have the burden to prove to the American people that you would not come to the Supreme Court with any political agenda. Clear and candid answers are all that we ask.

I sincerely hope you can convince the United States Senate and the American people that you will be a fifth vote on the Supreme Court that the American people can trust to protect our most basic important freedoms and preserve our time-honored values.

Thank you very much.

SPECTER: Thank you, Senator Durbin.

Senator Brownback?

BLITZER: Senator Dick Durbin of Illinois wrapping up his opening statement, another tough statement from a Democratic member of the Senate Judiciary Committee. We're going to continue to monitor this hearing. We'll go back there momentarily.

Remember, CNN Pipeline, bringing the hearings to you on your desktop. Just go to Go to the Pipeline, you'll see all of the hearings unfiltered if that's what you want. We'll take a quick break. We're also standing by, we're going to be speaking live, coming up. Very soon, Senator Ted Kennedy will be joining us live, as well as the Senate Majority Leader Bill Frist. Much more of our coverage from THE SITUATION ROOM, right after this.


BLITZER: Welcome back to THE SITUATION ROOM. I'm Wolf Blitzer in Washington. We're covering the hearings, the Senate confirmation hearings of Samuel Alito for the U.S. Supreme Court. We're going to go back there in a moment.

Just want to update you, we're going to be speaking live momentarily also with Democratic Senator Ted Kennedy of Massachusetts, a member of the Judiciary Committee, as well as the Republican leader in the U.S. Senate, the Majority Leader Bill Frist.

We'll bring you that -- those interviews, that's coming up very, very soon. In the meantime, Senator Sam Brownback, Republican of Kansas, is making his opening statement.

SEN. SAM BROWNBACK (R-KS), JUDICIARY COMMITTEE: ... reservation of certain seats on the bench for certain philosophies, which it seems as if we've heard a great deal about today, that you need to be like Sandra Day O'Connor in judicial philosophy to be able to go on her seat on the bench.

Some interest groups have put forward that philosophy and argued that you deserve closer scrutiny because you do not appear to have the same philosophy or are even in opposition if it is not determined that you do not have that same judicial philosophy.

If this testimony suggests that that would change the ideological balance, if you would change the ideological balance, therefore you should not be approved, I would say that that notion is not anywhere in the understanding of the role of the judges.

It creates a double standard for your approval and looks conveniently -- it looks suspiciously convenient for the opposition to put forward.

Seats on the bench are not reserved for causes or interests. They're given to those who will uphold the rule of law so long as the nominee is well-qualified to interpret and apply the law.

This has long been the case of the Supreme Court. And I want to note here that, historically, the make-up of the court has changed just as elected branches have change.

In fact, nearly half of the justices, 46 of 109, who have served on the Supreme Court replaced justices appointed by a different political party.

In recent years, even as the court has become an increasingly political body, the Senate is not focused on preserving any perceived ideological balance when Democrat presidents have appointed people to the court.

The best example of that is the Senate rejecting that notion when Ruth Bader Ginsburg came in front of the Senate and was approved 96-3 to be on the Supreme Court to replace conservative justice Byron White. This is in 1993.

Now, Justice Ginsburg, it was noted earlier, was a general counsel for the ACLU, certainly a liberal group. It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the court to the left. But because President Clinton won the election and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the court, she was confirmed.

During her hearing, hardly any mention was made about balance with Justice White. The only discussion occurred about Justice White was when Senator Kohl, our colleague, asked her what she thought of Justice White's career, and she started off by saying that she was not an athlete.

History has shown that she did, in fact, dramatically change the balance of the court in many critical areas, such as abortion, the privacy debate expansion and child pornography. And I have behind me three of the key cases where Justice White ruled one way, even wrote the majority opinion, and Justice Ginsburg ruled the other way, with the majority.

You talk about a swing of balance, and yet the issue wasn't even raised at Justice Ginsburg's confirmation hearing. And yet now it seems as if that's the paramount issue -- not only the paramount issue, it actually makes you have to go to a higher standard to be approved.

And that's just simply not the way we've operated in the past, nor is it the way we should operate now.

As I stated at Justice Roberts' hearing, the court's injected itself into many of the political debates of our day. And as my colleague Senator Cornyn has mentioned, the court's injected itself in the definition of marriage, deciding whether or not human life is worth protecting, permitting government to transfer private property from one person to another, even interpreting the Constitution on the basis of foreign and international laws.

The Supreme Court has also issued and never reversed a number of decisions that are repugnant to the Constitution's vision of human dignity and equality.

Although cases like Brown v. Board of Education in my state are famous for correcting constitutional and court errors, there remain several other instances in which the court strayed and stayed beyond the Constitution and the laws of the United States.

Among the most famous of these Supreme Court cases of exercise of political power I believe are the cases of Roe V. Wade and Doe v. Bolton, two 1973 cases based on false statements which created a constitutional right to abortion.

And you can claim whatever you want to of being pro-life or pro- choice, but the right to a abortion is not in the Constitution. The court created it. It created a constitutional right. And these decisions removed a fully appropriate political judgment from the people of the several states and has led to many adverse consequences.

For instance, it's led to the almost complete killing of a whole class of people in America. As I noted to my colleagues in the Roberts' hearings, this year -- this year -- between 80 percent to 90 percent of the children in America diagnosed with Down's Syndrome will be killed in the womb simply because they have a positive genetic test which can be wrong, and is often wrong, but they would have a positive genetic test for Down's Syndrome and they will be killed.

America is poorer because of such a policy. We are at our best when we help the weakest. The weak make us strong. To kill them makes us all the poorer, insensitive, calloused and jaded.

Roe has made it not only possible, but has found it constitutional to kill a whole class of people, simply because of their genetic make-up.

This is the effect of Roe.

I think this is a proper issue for us to consider and the judge you're replacing noted one time, quote, "that the court's unworkable scheme for constitutionalizing abortion has had the institutional, debilitating effect should not be surprising -- has had this institutionally debilitating effect and should be surprising since the court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe."

You will have many issues in front of you, many that we won't discuss here in front of this committee.

I think it unfortunate that we only narrow in on so few of the cases that you're likely to hear in front of you, and yet that's the nature of the day because they're the hot, political, heat-seeking cases.

You're undoubtedly qualified. You were cited by the ABA to be unanimously well-qualified.

I look forward to a thorough discussion and a hopeful approval of you to be able to join the Supreme Court of the United States.

Mr. Chairman..

SEN. ARLEN SPECTER (R,PA.), CHAIRMAN, JUDICIARY COMMITTEE: Thank you very much, Senator Brownback.

We now move...


We are going to leave the hearing momentarily, but you can always watch it on Pipeline is streaming the -- the hearing in its entirety. You can go there, if you want.


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