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Questioning Continues for Supreme Court Nominee Samuel Alito

Aired January 10, 2006 - 11:05   ET


WOLF BLITZER, CNN ANCHOR: We're here in THE SITUATION ROOM. We're watching the hearings unfold. We've heard some of the questions, some of the answers, but they're only starting right now.
I'm Wolf Blitzer in Washington, together with Jeff Greenfield and Jeff Toobin.

Jeff Greenfield, we did hear in response to the initial questioning from the chairman, Arlen Specter, Samuel Alito say that if confirmed, he would have an open mind on dealing with issues involving abortion rights for women.

JEFF GREENFIELD, CNN SR. ANALYST: Yes, it's probably a bad idea for a prospective Supreme Court nominee to say I'd have a closed mind. The most important part of that exchange was that he, like Roberts, and, in fact, like a lot of other judges, including Clarence Thomas, affirmed some kind of constitutional right to privacy, the specifics of which we'll get into later. But this was a Hippocratic Oath morning for Judge Alito.

The first element of the Hippocratic Oath that doctors take, first do no harm. He was trying to do himself no harm. And so far, I suspect that's what he's done.

BLITZER: On some of the more sensitive personal issues involving recusing himself from a case in which he had some mutual funds, on his apparent membership in a controversial club at Princeton University, an alumni club, it was Orrin Hatch, a supporter, a Republican, a senior member of the Judiciary Committee, Jeff, who came up with most of the questions in a very, very pleasant kind of way, giving him an opportunity to try to diffuse these issues before Senator Kennedy or Senator Schumer might have a little different agenda.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Right. He, particularly on this case regarding Vanguard, Judge Alito owns some stock in the Vanguard mutual funds. He decided a case -- or was involved in a case involving Vanguard, and that's become somewhat controversial. And Senator Hatch really gave him a chance to lay out his defense in a very convincing way. We'll see if Senator Kennedy raises it.

More interesting to me was the Senator Leahy dealing with this issue at Princeton, whether he was a member of this group that was against coeducation. And I thought it was one area where Judge Alito was not especially well prepared and he kind of bumbled around a little bit and didn't really seem to have a -- have a very good answer on that. I don't think it jeopardizes his confirmation, but it -- we heard a great deal about Princeton in the late '60s and early '70s, which is probably not what we expected during these hearings. But it was a chance to find out who he is. And it was not his best moment in a couple of hours that has been largely painless.

BLITZER: And I'm sure that these issues will be coming back over the course of the next several hours.

All right. We'll take a quick break. We'll continue our coverage.

We're standing by for the questioning by the senior Democratic senator from Massachusetts, Ted Kennedy. That's going to start off this next session.

They're on a break.

We're also going to take this opportunity to check some other news. There's new information on the condition of the Israeli prime minister, Ariel Sharon, as well as the sole survivor of that mining disaster in West Virginia, Randal McCloy.

We'll take a quick break. We'll be back in THE SITUATION ROOM right after this.


BLITZER: The Senate Judiciary Committee is in a break right now. They'll be resuming the hearings, confirmation hearings of Samuel Alito momentarily.

The questioner will be Senator Ted Kennedy of Massachusetts. It could get exciting during his 30 minutes of scheduled questioning.

We'll go right back to the hearing momentarily.

First, though, let's check some other important news happening right now.

Daryn Kagan standing by at the CNN Center.


Just a short time ago, the White House said that it might call in the watchdog of the United Nations to confront Iran about its nuclear program. Iran says it's resumed it's nuclear research activity but has not restarted its nuclear field programs.

Tehran says that complies with the International Atomic Energy Agency, but the IAEA disputes that. And much of the international community is voicing outrage. The White House says it may refer the matter to the U.N. Security Council for possible action.

This hour, President Bush confronts both the war on terror and the fight for Iraq. It's a speech to veterans of foreign wars. And Mr. Bush predicts another year of sacrifices and losses in Iraq but says the mission is pushing ahead.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: ... make some mistakes and face setbacks in their effort to build a government that unites the Iraqi people. Despite the obstacles they face, Iraqis have shown they can come together for the sake of national unity.


KAGAN: Mr. Bush's speech is a continuation of his campaign to pump up sagging public support of the war in Iraq.

Doctors in Israel say that Prime Minister Ariel Sharon is showing signs of recovery from last week's massive stroke. A short time ago they confirmed that Mr. Sharon has shown movement on both sides of his body, as they slowly awaken him from his coma. Doctors caution, however, that it will be several days before they can more accurately assess the damage to his brain.

Jill Carroll's loved ones and co-workers are waiting for any word about the journalist who has been kidnapped in Iraq. Carroll is a freelance writer on assignment for "The Christian Science Monitor" in what her driver says was a setup.

Carroll had planned to interview a Sunni politician on Saturday but that man never showed up. Gunmen then abducted Carroll and shot and killed her interpreter. The driver was able to escape.

Want to update you now on the sole survivor of last week's West Virginia mine explosion. A news conference took place just a short while ago. Doctors there say that they are encouraged by Randy McCloy's brain wave activity. He still is in critical but stable condition and remains in a coma.

Funerals for two more victims of last week's mine explosion in West Virginia are set for today. Senate hearings into the accident are now scheduled for next week. Federal and state mine safety officials also plan hearings.

A check of the numbers right now on Wall Street following a major milestone for the Dow. The Dow closed above 11000 yesterday for the first time since June 2001. And as you can see, well, not quite in 11000 territory. Down, it looks, about 48 points.

Nasdaq also negative territory. It is down 12 points.

The markets have started 2006 on the upswing. Stocks have posted five straight days of gains. Investors are generally optimistic about the outlook for the interest rates and corporate earnings.

On that note, let's send it back to Wolf in D.C.

BLITZER: Thank you very much.

That's one thing the markets do. They go up and then they go down. Then they go up and then they go down. We've been watching them do that for a long, long time.

We're going to take another quick break. When we come back, the hearings scheduled to resume, the Senate Judiciary Committee, the confirmation hearings of Judge Samuel Alito for the high court. Senator Ted Kennedy, he's standing by to start asking questions for 30 minutes.

We'll be right back.


BLITZER: Senator Ted Kennedy, he's getting ready to start asking questions of Samuel Alito, the Supreme Court nominee.

Jeff Toobin, let's preview a little bit. What should our viewers be specifically paying attention to when Senator Kennedy starts asking questions?

TOOBIN: Presidential power, executive power versus the legislative power. This is what -- this is new for these -- for these hearings. This was not really much dealt with in the Roberts hearings because of the disclosure of the warrant-less wiretapping which bothers a lot of people in Congress.

Senator Leahy tried to draw out Judge Alito on that I didn't think very effectively. These are complicated areas.

The senators aren't used to asking questions about it. There's not a rhetoric, a style of questions that they're used to. I think Senator Kennedy is going to go in the same direction. We'll see if he makes any more progress.

BLITZER: As we away wait the start -- the resumption of this hearing, Senator Schumer, a Democrat of New York, he's speaking to reporters outside the hearing room.

Let's listen in briefly.

SEN. CHARLES SCHUMER (D), NEW YORK: We're not asking him to say a specific thing one way or the other. Let me put that another way. We are not asking him to take a certain position. We are asking him to take a position.

It's that simple. And so far he has not.


QUESTION: Do you accept his statements about the Princeton organization, or do you still...

SCHUMER: Well, you know, again, there will be further questions on that. But he's a very thoughtful, meticulous man. And to say he had no recollection of this organization when he wrote it down on his job application, I think, there are going to be further questions about that.

BLITZER: Senator Schumer speaking to reporters outside the hearing room.

Jeff Greenfield, on this sensitive issue of membership in this controversial club at Princeton -- actually, the hearing is resuming.

Let's go back to Senator Specter, who will introduce Senator Kennedy.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: And we now turn in sequence to Senator Kennedy.

Let's not forget to start the clock.

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Thank you very much, Mr. Chairman.

There was one interesting omission between the exchange of yourself and Senator Hatch on the whole Vanguard issue in question, and that was the promise and pledge that you gave to this committee when you were up for the circuit court. I have it right here.

It said, "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings Loan of Rochester, New York."

You remember that response. That was a pledge and promise to the committee that you would recuse yourself. Did you not?


And as I said in answering Senator Hatch's question, if I had it to do over again, I would have handled this case differently. There were some oversights.

KENNEDY: I'm sure you might have. We've had a number of different explanations for this.

I'd like to ask the clerk if they would take down and show the judge, if you'd like to be refreshed about the number of times the name "Vanguard" appears on the brief and the number of times "Vanguard" appears on the opinion, which I believe you authored.

Would you like to -- if I could get a clerk to show those two documents.

ALITO: Senator, I am familiar with that. I do not really need to see the document.


ALITO: Senator, the name "Vanguard" certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney's office. I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn't give me the opportunity to apply my personal policy of going beyond what the code requires.

KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself?

ALITO: I believe that they did. I believe that some of them at least addressed that specifically in...

KENNEDY: Do you know specifically whether they did or not?

ALITO: I believe they addressed it in their letters, so they must have been aware of it.

KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases?

ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire.

KENNEDY: And the final answer -- we'll move on -- is that you saw the name "Vanguard" on the briefs and you obviously saw them on the opinion. You're the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself?

ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.

And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don't present recusal problems.

ALITO: And so no light went off. That's all I can say. I didn't focus on the issue of recusal.

KENNEDY: Well, this is important, when the lights do go on, and when the lights do go off. Because actually the accumulation of value of Vanguard had increased dramatically during this period of time, had it not?

ALITO: It had, Senator, but I had nothing to gain financially by...


KENNEDY: No, I'm not asking to get on to the questions of gain or loss or whatever.

I'm just asking about the pledge to the committee which you had given and the fact that the Vanguard was so obvious both in the brief and in the opinion which you wrote, and the fact that during this period of time there had been a sizable increase in the total value of Vanguard. And as all of us know, if you're dealing with a case dealing with IBM, you can't have even a single share in that.

The point about all of this is, is that so that interested parties that come before the courts are going to believe, not only in reality, but in appearance, that they're going to get a fair shake.

And that, you have said, was certainly your desire. And I certainly commend you for at least that desire. But in this case, this was something we'd recognize is extremely important.

Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home. And they've seen an intense public debate over when the FBI can look at their library records.

And they've heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president's decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight.

So, Judge, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life.

We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far.

Congress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so.

But we need justices who can examine this issue objectively, independently and fairly. And that's what our founders intended and what the American people deserve.

So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far.

Chief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution.

Justice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills.

Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.

So I have serious doubts that you'd be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials.

And your record shows that, even over the strong objections of other federal judges -- other federal judges -- you bend over backward to find even the most aggressive exercise of executive power reasonable.

But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens.

And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president -- any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far.

Now, in 1985, in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words, am I right?

ALITO: They are and that's a very inapt phrase.

KENNEDY: Excuse me?

ALITO: It's an inapt phrase, and I certainly didn't mean that literally at the time, and I wouldn't say that today.

The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches.

KENNEDY: So you've changed your mind?

ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.

What I was getting at is the fact that our Constitution gives the judiciary a particular role and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country.

KENNEDY: All right. I want to move on.

Mr. Chairman, the clock is off. There are a number of points I want to cover and be timely, so I leave it up to the chair...

SPECTER: Senator Kennedy, you're correct. We have a timer over here. We're trying to get the timer fixed.

KENNEDY: If I would know when I have 10 minutes left...

SPECTER: Let us see if we can't get that clock in the view of Senator Kennedy so he can see it when he's questioning the witness.

KENNEDY: Thank you. Thank the chair.

SPECTER: And give Senator Kennedy two more minutes.

KENNEDY: There you go. There you go.


(UNKNOWN): Bravo.

KENNEDY: Be quiet over there.


Scurrilous dogs.


KENNEDY: Judge, quite frankly, your record shows you still believe in the supremacy of the executive branch, Judge Alito. I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people.

So let's discuss some of your opinions. These cases deal specifically with one form or another of executive power, the power of authorities to intrude in homes, search people who were not even suspected of committing a crime.

The Mellot v. Hemer (ph), where the U.S. Marshal Service forcibly evicted a family of dairy farmers from their home and their farm. These farmers had no criminal record and were suspected of no crime.

But after they fell on very hard times, the property was sold at a public auction. U.S. marshals were sent to evict them.

Remember, the marshals were sent to carry out a civil action, not a criminal action, a civil action. These farmers had committed no crime.

Now, I respect the U.S. marshals. They have a tough job and they do it with great professionalism. But in this case, the marshals entered the house with loaded guns. The family was unarmed, did not resist, but still the marshals pointed loaded guns at their heads, chests and backs.

One marshal chambered a cartridge in his gun. Twice, they pushed the wife into her chair.

The trial judge held there was enough evidence in this case to have a jury review the facts, hear the testimony and decide whether the marshals used too much force to evict these farmers.

But that did not sit well with you, Judge Alito. You grabbed the case away from the jury. You wouldn't let them hear the testimony or make up their own mind about whether the marshals had gone too far.

No, you simply substituted your judgment for the jury's and decided that the marshals' conduct was as a matter of all objectively reasonable. Judgment for the marshals, no jury of their peers for the farmers.

Why, Judge Alito? Your colleague on the 3rd Circuit, Judge Rendell, called the marshals' conduct Gestapo-like -- Gestapo-like. She said seven marshals detained, terrorized the family and friends, ransacked a home while carrying out an unresisted civil eviction. The trial judge thought the decision should be made by the jury. Why didn't you let the jury exercise an independent check on the marshals' actions?

ALITO: There was some additional information regarding these people that was important, and that was that they had threatened other people, as I recall. And there was evidence about the possession of weapons and evidence that they would be dangerous. That was the basis on which the marshals acted the way they did.

This was a case in which the marshals were sued for civil damages. And they asserted what's called the qualified immunity defense, and that means that if a reasonable person could have thought there was a basis for doing what they did, then they are entitled not to be tried. That is the law. I didn't make up that law.

KENNEDY: Wait...

SPECTER: Let him finish, Senator Kennedy.

ALITO: That's not a legal standard that I made up, and that was the way I saw the case, and that's the way the other judge who was in the majority saw the case.

Now, these cases involve difficult line-drawing arguments at times, and I respect Judge Rendell's view of this very much, but reasonable people will view these things differently.

KENNEDY: Well, the issue then was the actions of the marshals, whether it was reasonable -- whether it was reasonable. And here you have a judge, Judge Rendell, saying it was Gestapo-like to talk about terrorizing a family and ransacking a home while carrying out an unresisted civil eviction.

Aren't juries there to make a judgment and determination whether it was reasonable or not reasonable? And didn't your action take that away because you ruled as a matter of law that their conduct was reasonable? ALITO: The Supreme Court has told us how we have to handle this issue, and it is for the judiciary to decide in the first place whether a reasonable officer could have thought that what the officer was doing was consistent with the Fourth Amendment. We have to make that decision.

Now, if we decide that there's an issue of fact, if there's a dispute in the testimony about the evidence that the marshals had or about what these individuals were doing at the time when the search was taking place or what the marshals did, then certainly those factual issues have to be resolved by the jury.

KENNEDY: That's, I think, certainly the view of Judge Rendell.

Let me move on, if I could, to the Doe v. Groody. And I know that you have -- Senator Leahy has talked about this and gone over the factual situation about the strip-searching of a 10-year-old girl.

KENNEDY: This case, the police got a warrant to search the house. They found the suspect outside, marched him inside, where they encountered the wife and 10-year-old.

The police took the wife and daughter upstairs, told them to remove their clothing, physically searched them, not as a protective frisk or search for weapons but in the hopes of finding contraband.

And that is when Judge Chertoff, the formal chief federal prosecutor for New Jersey, the former head of the Criminal Division in the Justice Department, President Bush's current secretary of homeland security, held that the police went too far.

As Judge Chertoff said, a search warrant for a premise does not constitute a license to search everyone inside. You differed. You differed.

And you've reviewed with us your reasoning for it: the fact that you felt that the affidavit which had been filed by the police should be included in the search warrant.

Judge Chertoff takes strong exception to that, as does the Fourth Amendment -- as does the Fourth Amendment.

As you mentioned yourself, the affidavit represents the police's view about the situation. But the search warrant is what is approved by the judge. Those are two different items that come up every time, in many, many instances.

Why did you feel that, under these circumstances -- under these circumstances -- that that affidavit should be included, the result of which we have the strip-searching of a 10-year-old -- a 10-year-old that will bear the scars of that kind of activity probably for the rest of her life?

The Fourth Amendment is clear. We want to protect the innocents. We want to have a search warrant that is precise, so that the police understand it and the person that it's being served to understands it. That was all spelled out in the judgment.

But you went further than that. You said, "Well, in this case, we're going to include the affidavit." And as a result of your judgment in this case and the inclusion of the Affidavit, we have the kind of conduct against this 10-year-old which she will never forget.

Why, Judge Alito?

ALITO: Senator, I wasn't happy that a 10-year-old was searched.

Now, there wasn't any claim in this case that the search was carried out in any sort of an abusive fashion. It was carried out by a female officer. And that wasn't the issue in the case.

And I don't think there should be a Fourth Amendment rule -- but, of course, it's not up to me to decide -- that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors.

The technical issue in the case was really not whether a warrant can incorporate an affidavit. There's no dispute that a judge or a magistrate issuing a warrant can say that the affidavit is incorporated. And that was done here.

The issue was whether -- and it was a very technical issue -- was it incorporated only on the issue of probable cause, or was it also incorporated on the issue of who would be searched?

If the magistrate had said in the warrant, "This warrant is incorporated as to the people who may be searched" and then in the affidavit it said -- and it did say this very clearly -- "We want authorization to search anybody who's on the premises," then there'd be no problem whatsoever.

The warrant said it was incorporated on the issue of probable cause. And I thought that reading it in a common-sense fashion, which is what we're supposed to do, that necessarily meant that the magistrate said, "There was probable cause to search anybody who's found on the premises, and that's what I'm authorizing you to do."

KENNEDY: And that is what Judge Chertoff took strong exception in a very eloquent statement in talking about the protections and the reasons for the strict interpretation for the warrant.

Let me move on.

Judge Alito, your 3rd Circuit decisions don't exist in a vacuum.

Mr. Chairman, at this point, since there has been some questions about whether we are flyspecking these cases, I'd like to include in the appropriate place in the record the Knight Ridder studies that concluded that Judge Alito never found a government search unconstitutional; the Yale Law School professors -- the rule for government is almost -- every case reviewed, this was their conclusion; The Washington Post stories with regard to the cases; and also Professor Cass Sunstein's conclusions that -- the studies that Judge Alito rules against individuals in 84 percent of the time.

SPECTER: In accordance with our practices, if you want them in the record they will be there, without objection.


So just looking at your writings and speeches, Judge Alito, you have endorsed the supremacy of the elected branch of government. You've clarified that today.

KENNEDY: You argued that the attorney general should have the absolute immunity, even for actions that he knows to be unlawful or unconstitutional; suggested that the court should give a president's signing statement great deference in determining the meaning and the intent of the law; and argued, as a matter of your own political and judicial philosophy, for an almost all-powerful presidency.

Time and again, even in routine matters involving average Americans, you give enormous, almost total, deference to the exercise of governmental powers.

So I want to ask you about some of the possible abuses of the executive power and infringement on individual rights that we're facing in the country today.

Judge Alito, just a few weeks ago, by a vote of 90-9, the Senate passed a resolution sponsored by Senator John McCain to ban the torture, whether it be here at home or abroad. As a former POW in Vietnam, John McCain knows a thing or two about torture.

For a long time, the White House threatened to veto the legislation, and finally Senator McCain met with the president and convinced him to approve the anti-torture law.

Two weeks after that, the president issued a signing statement -- no publicity, no press release, no photo-op -- where he quietly gutted his commitment to enforce the law banning torture. The president stated, in essence, that whenever the law of the land might be, whatever Congress might have written, the executive branch has the right to authorize torture without fear of judicial review.

Now, I raise this issue with you, Judge -- I raise this with you because you were among the early advocates of the so-called presidential signing statements when you were a Justice Department official.

You urged President Reagan to use the signing statements to limit the scope of laws passed by Congress, even though Article I of the Constitution vests all legislative powers in the Congress.

You urged the president to adopt what you described as a "novel proposal" to issue statements aimed at undermining the courts use of legislative history as a guide to the meaning of the law.

You wrote these words: "The president's understanding of the bill should be just as important as that of Congress." With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote "the president's understanding of the bill should be just as important as that of Congress"?

ALITO: When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute. And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements.

So I think that's the first point that I would make.

Now, I don't say I'm never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that's been unexplored by the Supreme Court. And it certainly is not something that I have dealt with as a judge.

This memo was a memo that resulted from a working group meeting that I attended. The attorney general had already decided that, as a matter of policy, the Reagan administration would issue signing statements for interpretive purposes and had made an arrangement with the West Publishing Company to have those published.

And my task from this meeting was to summarize where the working group was going and where it had been. And I said at the beginning of the memo that this was a rough first effort to outline what the administration was planning to do. And I was a lawyer for the administration at the time.

And then I had a big section of that memo saying "and these are the theoretical problems." And some of them are the ones that you mentioned.

And that's why I left it. And all of that would need to be explored to go any further.

KENNEDY: Judge Alito, in the same signing statement undermining the McCain anti-torture law, the president referred to his authority to supervise the unitary executive branch.

That is an unfamiliar term to most Americans, but the Wall Street Journal describes it as the foundation of the Bush administration's assertion of power to determine the fate of enemy prisoners, jailing U.S. citizens as enemy combatants without charging them.

President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush combined used the term only seven times. President Clinton never used it.

Judge Alito, The Wall Street Journal reports that officials of the Bush administration are concerned that current judges are not buying into its unitary executive theory. So they're appointing new judges more sympathetic to their executive power claims. We need to know whether you're one of those judges. In the year 2000, in a speech soon after the election, you referred to the unitary executive theory as the gospel and affirmed your belief in it.

So, Judge Alito, the president is saying he can ignore the ban on torture passed by Congress, that the courts cannot review his conduct.

In light of your lengthy record on the issues of executive power, deferring to the conduct of law enforcement officials even when they are engaged in conduct that your judicial colleagues condemn -- Judge Chertoff, Judge Rendell -- subscribing to the theory of unitary executive which gives the president complete power over the independent agencies, the independent agencies that protect our health and safety, believing that the true independent special prosecutors investigate wrongdoing are unconstitutional, referring to the supremacy of the elected branches over the judicial branch, and arguing that the court should give equal weight to a president's view about the meaning of the laws that Congress has passed, why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?

Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean.

I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.

The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?

Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.

Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.

KENNEDY: Would that have any affect or impact on independent agencies?

ALITO: The status of independent agencies I think is now settled in the case law.

This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958. KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time?

ALITO: I think that Humphrey's Executor is a well-settled precedent.

What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach.

KENNEDY: I want to just mention this signing of the executive understanding of the legislation that we passed banning torture, what the president signed on to.

"The executive branch shall construe the Title X and Division A relating to detainees in a matter with the constitutional authority of the president to supervise the unitary executive branch as the commander in chief and consistent with the constitutional limitations on judicial power."

Therefore, it's the warning that the courts are not going to be able to override the judgments and decisions. That's certainly my understanding of those words, which will assist in achieving the shared objective of the Congress and the president.

That statement there, in terms of what was agreed to by Congress, 19-0, by John McCain, by President Bush, and then we have this signing document which effectively just undermines all of that -- it is something that we have to ask ourselves, whether this is the way that we understand the way that laws are to be made.

It was very clear in the Constitution who makes the laws. The executive -- Congress and the Senate makes it. The president signs it. And that's the law. That's the law.

These signing statements, and recognizing the signing statements and giving these value in order to basically undermine that whole process is a matter of enormous concern.

Thank you.

SPECTER: Judge Alito, Senator Kennedy had noted that there were substantial gains, as he put it, in the Vanguard stock, or the Vanguard the asset, during the period of time that you held them. But he did not give you an opportunity to answer that. I don't like to interrupt in the midst of a series of questions, but you can respond to that if you care to do so at this time.

ALITO: Well, Mr. Chairman, I had additional holdings in Vanguard during my period of service. But I think the important point as far as that is concerned is that nobody has claimed that I had anything to gain financially from participating in this case. And I certainly did not. SPECTER: Senator Grassley?

SEN. CHARLES GRASSLEY (R), IOWA: Well, I have a much more positive view of you than has just been expressed.

BLITZER: All right, we are going to briefly break away from the hearing to do a little assessment of what we just heard, the 30 minutes of questioning from Senator Kennedy of Samuel Alito, the nominee. Jeff Greenfield and Jeff Toobin, who are both in "THE SITUATION ROOM" with us, pointedly, like Senator Leahy, no questions on abortion rights from Senator Kennedy.

GREENFIELD: No, they're going to save that, I think, for Feinstein, Senator Schumer, maybe Biden. But their attempt here is to go on broader grounds, that he's a slavish follower of too much executive power, and he has credibility problems about what he did on the bench, and my hunch is that's so that the more conservative Democrats, who they would need for a successful filibuster don't have to base their opposition simply on the red state hot issue of abortion, where their view may not be the view of people in the states those Democrats are from.

BLITZER: You were tipped off, Jeff Toobin, that there is this strategy, the Democrats amongst themselves got together and decided how to lay out their questions.

GREENFIELD: And to do go with this executive power line of questioning first. What's up for grabs, and not clear, is whether that issue will resonate either with fellow senators or the public. It's difficult stuff. It is not as easy to understand as whether the Supreme Court will overturn Roe v. Wade and return the issue of abortion to the states. You don't have to be a lawyer to understand that. What is more difficult to understand are phrases like the unitary executive and the supremacy of elected branches. What was interesting, is he backed away from that phrase, the supremacy of the elected branches, but whether that matters to people who are watching and fellow senators, I don't know.

BLITZER: All right, let's take a quick break. We're going to continue our coverage of these historic hearings, the Senate confirmation hearings of Samuel Alito. Much more coming up.

We'll use going to be using an opportunity to get you updated on all the days other news happening right now. We'll take a quick break. We'll be right back.


BLITZER: We're taking a break from the Senate confirmation hearings of Samuel Alito for the U.S. Supreme Court. We'll go back there shortly.


BLITZER: We're watching the hearings unfold on Capitol Hill, the Senate confirmation hearings of the Supreme Court nominee, Samuel Alito. We'll go back there momentarily, but Jeff Greenfield are our analysts, they're here in THE SITUATION ROOM with us.

I guess if this were a boxing match, how would you score it so far, Jeff?

GREENFIELD: This would be the kind of match where you'd say, well, they're feeling each other out. You know, the opening rounds. But the one -- the one I think clear side we've gotten from the strategy that Jeffrey learned about...

BLITZER: The Democratic strategy.

GREENFIELD: Sorry, the Democratic strategy, what Leahy and Kennedy I think are both laying out, is an attempt to make the argument that you don't have to be a partisan on the abortion wars, on that hot-button issue, to be worried about Alito, that what we're telling you is, in this time, when even a lot of conservatives have felt that the Bush administration is overreaching in its sense of executive power, here you have a Supreme Court justice, the last bastion between an over-leaning executive, if that's what you're thinking is in the public, who seems in his record to be way too willing to give the executive whatever power it asserts. I think that's the point of this strategy.

TOOBIN: That's the point of this strategy. The question is how the Democrats can make that stick, because you are dealing with very abstract concepts here.

It is difficult to illustrate for a national audience separation of powers and the problems with separation of powers. The one rather startling moment to me in the hearing is when in this now famous 1985 job application Alito used the phrase "supremacy of the elected branches" to refer to the executive branch.

He immediately said in the hearing to Senator Kennedy, that was an inapt phrase. He backed away completely. But where it goes from there and whether that leads anyone to vote against him is much harder to say.

GREENFIELD: Let me just suggest...

BLITZER: Let me just read specifically what he wrote in 1985. This is 20 years ago in which he now says was not necessarily the best way to phrase it.

He says, "It is obviously very difficult to summarize a set of political views in a sentence, but in capsule form, I believe very strong strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense, and effective law enforcement." Then he goes on and says that.

He didn't necessarily say he no longer believes any of that stuff. He just said it was an inept way to phrase it.

GREENFIELD: What he meant was he was -- I think what he's saying is, look, I'm saying what most justices say, which is that courts ought to defer to the judgment of the Congress and the president in those cases. But what we saw here, particularly on the part of Senator Kennedy, was an attempt to do what Jeffrey Toobin is expressing skepticism about.

He's saying, look, you let the government run amok and what do you wind up with? Strip searches of 10-year-old girls and heartless marshals evicting a family of miners from their homes.

That's where they're attempting -- I'm not saying they're going to succeed necessarily -- they're attempting to say there's a human interest visceral problem with letting the government go unchecked.

TOOBIN: And the problem with that is you're questioning a witness who knows the fact of those cases better than the questioners do. And as he pointed out on the case about the 10-year-old girl, he was in the majority. There was another judge who was with him. There was a judge who dissented, it was actually Michael Chertoff, now the secretary of Homeland Security.

But it's tough to be outraged about something when other judges agreed with Judge Alito. And, you know, to get -- to get people to vote against him, much less filibuster based on what are close- judgment calls.

BLITZER: All right. Stand by, guys, because I want to check in with our Internet reporter, Abbi Tatton. She's getting reaction online.

Abbi, what are you picking up?

ABBI TATTON, CNN INTERNET REPORTER: Yes, this is being watched very closely online with some of the big political bloggers, Wolf. Live blogging what is going on. That is, watching question by question, answer by answer, and recording what is being said.

Actually, the Republican National Committee has assembled a group of conservative bloggers here in Washington. They're all assembled in a room recording what is going on.

One of them, Morrissey, a conservative blogger at, noting that Senator Bill Frist dropped by to address that group. Frist saying that -- Senator Frist saying that he's hoping for a confirmation vote by the 20th of this month.

On the left being watched very carefully as well, Planned Parenthood has a blog going on, They're noting with interest Senator Arlen Specter's chart that reappears this morning establishing or noting the 38 times that Roe versus Wade has been referred to by the Supreme Court as super (ph) precedent, in their words.

At Daily Kos -- this is the biggest liberal blog with a very high readership -- they're referring to the concerned alumni of Princeton membership. Judge Samuel Alito was questioned about that membership of a conservative alumni group, a Princeton alumni group from the 1970s. Samuel Alito saying today that he had no recollection of being a member of that group. At Daily Kos they're saying that that doesn't seem to hold true.

Looking forward to more questions on that one -- Wolf.

BLITZER: All right. Thanks very much, Abbi. We'll be checking back with you.

We're going to go back to the hearings of Samuel Alito, the confirmation hearings very soon.

Let's take another quick break.



BLITZER: Let's get back to the hearings.

Senator Charles Grassley of Iowa is pressing questions on Samuel Alito on the issue of separation of powers between the branches of the U.S. government.

ALITO: ... provisions of the Constitution that are not cast in specific terms, and I think for a good reason. They set out a principle. And then it is up to the judiciary to apply that principle to the facts that rise during different periods in the history of our country.

And the example that I like to cite here is the prohibition against unreasonable searches and seizures in the Fourth Amendment.

Now this goes all went back to the adoption of the Fourth Amendment at the end of the 18th century, and most of the types of searches that come up today are things that the framers never could have anticipated. They couldn't foresee automobiles or telephones or cell phones or the Internet or any of the other means of communication that have presented new search and seizure issues.

But they set out a good principle. And the principle is that searches can't be carried out unless they're reasonable. And generally there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.

And so as these new types of searches have arisen, new means of communication have come into practice, the judiciary has applied this principle and the legislative branch has applied the principle -- in statues like the wiretapping statute -- to the new situations that have come up.

GRASSLEY: What factors, if any -- and there may not be any -- but what factors, if any, are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving personal bias of judges?

ALITO: I think they can. There would be no, I think, basis for judges to exercise the power of judicial review if they were doing nothing different from what the legislature does in passing statutes. So judges have to look to objective things. And if it is a question of absolutely first impression -- and they're aren't that many constitutional issues that arise at this point in our history that are completely issues of first impression -- you would look to the text of the Constitution and you would look to anything that would shed light on the way in which the provision would have been understood by people reading it at the time.

You certainly would look to precedent, which is an objective factor. And most of the issues that come up in constitutional law now fall within an area in which there is a rich and often very complex body of doctrine that's worked out.

Search and seizure is an example. Most of the issues that arise concerning freedom of speech is another example. There is a whole body of doctrine dealing with that. And that's objective. And you would look to that and you would reason by analogy from the precedents that are in existence.

GRASSLEY: Let me bring up the tension between majority rule and individual freedoms.

This involves the tensions between the American ideal of democratic rule and the concept of individual liberties, where neither the majority nor the minority can be fully trusted to define the proper spheres of our democratic authority and liberty.

I assume that you agree that there is tension that has to be resolved.

ALITO: There is tension because our system of government is fundamentally a democratic system. As I said, the authority to make the basic policy decisions that affect people's lives, most of those decisions are to be made by the legislature and by the executive in carrying out the law.

But the judiciary has the responsibility to exercise the power of judicial review. And so if something comes up that violates the Constitution that has been established now going all the way back to Marbury v. Madison, if that comes up in a case, it is the duty of the judiciary to say what the law is and to enforce the law in that decision.

And if that means saying that something that another branch of government has done is unconstitutional, then that's what the judiciary has to do.

GRASSLEY: How would you go about your duties as a justice in determining where the right of the silent majority ends and where the right of the individual begins? What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right?

ALITO: I would look to the text of the provision. I would look to anything that sheds light on what that would have been understood to mean. I would look to precedent. And as I mentioned a minute ago, I think that in most of the areas now where constitutional issues come up with some frequency, there is a body of precedent. And that shapes the decision. That's generally what is going to dictate the outcome in the case.

And if it's a new question, then usually the judiciary will see where it fits into the body of precedent and reason by analogy from prior precedents.

GRASSLEY: Some judges and scholars believe that in resolving this dilemma, the court's obligation to the intent of the Constitution are so generalized and remote that judges are free to create a Constitution that they think best fits today's changing society.

What do you think of such an approach?

ALITO: Judges don't have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn't change.

It does contain some important general principles that have to be applied to new factual situations that come up. But, in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary.

GRASSLEY: I think you heard in opening comments of some of the members of this committee that they view the courts as a place taking the lead in creating a more just society. Is that a role for the courts? And -- I don't know whether you want to call this judicial activism, but I would -- is it ever justified?

ALITO: Well, I think that if the courts do the job that they're supposed to do, they will, we will produce a more just society. I think if you take the position as a federal judge, you have to have faith that if you do your job then you will be helping to create a more just society. The Constitution and the constitutional system that we have is designed to produce a just society.

It gives different responsibilities to different people. You could think of a football team or you could think of an orchestra where everybody has a different part to play, and the whole system won't work if people start playing performing the role of someone else.

Everyone in the system has to perform their role, and I think you have to have faith, and I think it's a well-grounded faith that if you do that, if the judiciary does what it is supposed to do, the whole system will work toward producing a more just society.

GRASSLEY: I want to go back and expand on a point I referred to as maybe Congress not acting sometime and what the court should do about that. This is a line of questioning that I also asked Chief Justice Roberts when he was before us. At that time, I referred to the confirmation of Justice Souter, and Justice Souter responded to my questions regarding the interpretation of statutory law by speaking about the courts filling vacuums in law left by Congress.

Do you believe that the Supreme Court should fill in vacuums in the law left by Congress or is this a way for justices to take an activist role in that they get to decide how to fill in generalities and resolve contradictions in law?

If you are confirmed to the Senate, do you believe that your job is to fill in vacuums?

ALITO: Well, I don't know exactly what Justice Souter was referring to when he said that. But just speaking for myself, I think that it is our job to interpret and to enforce the statutes that Congress passes and not to add to those statutes and not to take away from those statutes.

GRASSLEY: Further, on judicial restraint, are there any situations where you believe it is appropriate for the Supreme Court justice to depart from the issue at hand and announce broad, sweeping constitutional doctrine?

And if you do, could you please describe in detail what those circumstances might be?

ALITO: I think judges should decide the case that is before them. I think it's hard enough to do that and get it right.

And if judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong.

When you have an actual, concrete case or controversy before you, you focus on that, it improves your ability to think through the issue and it focuses your thinking on the issue. And it makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.

If you speak more broadly, I think there's a real chance of saying something that you don't mean to say, or suggesting something that you don't mean to say, and deciding questions before they've been fully presented to you, before you've heard all the arguments about this other question that isn't really central to the case that is before you.

BLITZER: A serious discussion on important matters involving the separation of powers between the executive legislative judicial branches of government.

I want to bring back Jeff Greenfield and Jeff Toobin for a moment.

Jeff Greenfield, as you look at the Republican strategy -- we spoke briefly of the Democratic strategy -- what goes through your mind? GREENFIELD: The degree to which they are determined first to protect Judge Alito against any charge of inappropriate conduct on the bench. We've had two key Republicans -- we had Orrin Hatch, and I think Grassley did this a little bit -- go out of their way to make their point that he -- that in the Vanguard case that he did -- he did nothing remotely wrong, because I think they see that, even if it's a distant threat, as the biggest potential threat to Alito, is if people come to believe that he did something wrong on the bench.

That would be my assessment of them.

TOOBIN: These hearings are a lot like trials in the sense that you have direct examination and cross-examination. You have the Republicans doing the direct examination, building the witness up, making him seem believable, putting him in the best possible light. And then you have the cross-examination from the Democrats both challenging his credibility on some of these issues like Vanguard and the Princeton group he was involved in, and also just his ideological fitness on issues like, as we've heard so much about today, executive power and potential -- and abortion and the right to choose.

All right. We're going to continue our coverage.

Senator Joe Biden, the senior Democrat on the committee, he's about to start to asking his questions. We're going to go back there live momentarily.

We'll take a quick break.



BLITZER: You're back in THE SITUATION ROOM. Welcome back to our special coverage, the confirmation hearings of Samuel Alito to serve on the United States Supreme Court.

We're standing by. Senator Joe Biden, Democrat of Delaware, about to start asking questions.

And let's go to the Senate chamber right now, and we'll see Senator Biden start those questions.

SEN. JOSEPH BIDEN (D), DELAWARE: ... so I'll try to make this painless.

Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent.

I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches. They wonder, when you -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as absolute immunity but, for tactical reasons," et cetera.

So people are puzzled -- at least some are puzzled. And so I don't want you to read any of this as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy.

I mean, what people are puzzled about with the recusal issue was, under oath you said, "I will recuse myself on anything relating to...," and then a case comes up. So they're looking for an explanation.

So it's not about whether you are profiting or whether you are, you know, all of this malarkey about whether you broke judicial ethics. It's, you know, a simple kind of thing. You under oath said: I promise if this ever comes up, I'll recuse myself. And then you gave an explanation. It slipped, you forgot, it had been years earlier, et cetera.

So don't read it as this is one of these things where we know where you are. The people I've spoken to on your court -- and it's my circuit -- have a very high regard for you. And I think you're a man of integrity. The question is, sometimes some of the things you have said and done puzzle -- at least, puzzle me.

And one of the things -- this is not part of a line of questioning I wanted to ask -- but I did ask you when you were kind enough to come to my office about the Concerned Alumni of Princeton. Were you aware of some of the other things they were saying that had nothing to do with ROTC? Because there was a great deal of controversy.

I mean, I can remember -- I can remember this. My son was -- well, anyway, he ended up going to that other university, University of Pennsylvania.

But I remember at Princeton, I had spoken on campus in the early '70s. This was a big thing up at Princeton at the Woodrow Wilson School. And I remember -- I didn't remember Bill Frist, but I remember that there was this disavowing, that Bill Bradley, this great basketball star, and now United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine.

And all I want to ask you is: Were you aware of the other things that this outfit was talking about? Were you aware of this controversy going on in...

ALITO: Senator, I don't believe that I was.

And when it was mentioned that Senator Bradley had withdrawn from the magazine, that didn't ring any bells for me. I did not recall anything like that.

BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well.

And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.

But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...


BIDEN: I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.

I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.

But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.

The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here.

The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy.

But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court.

Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen?


BIDEN: No, I'm not being facetious. What's the best or worst?

If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist.

So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense.

Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual. So her focus on the impact on individuals was sometimes criticized and praised.

It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another.

And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling.

Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it.

Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary.

And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago.

And employees don't say any more, you know, "We don't like blacks in this company," or, "We don't want women here."

They say things like, "Well, they wouldn't fit in," or, "You know, they tend to be too emotional" or "a little high-strung."

I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world.

What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.

And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, "I was denied that job because I'm a black woman."

And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray.

Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here.

And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said "No, I don't think she should," and you set out a standard, as best I can understand it. I want to talk to you about it.

And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus.

They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job.

But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury.

Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, "This comes down to subjective business judgment" -- and discrimination? You said, "Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate."

What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination.

ALITO: Well, this case was one of quite a few that we get that are on the line. And when you think about the nature of the appellate system, it stands to reason that it's going to work out that way. The really strong cases tend to settle; the really weak cases are either dismissed and not appealed or they settle for a modest amount. So the ones that are hotly contested on appeal tend to be the ones that are close to the line, whatever the legal standard is.

Now, four federal judges looked at the facts in this case. One was Judge Maryanne Trump Barry, who was then the district court judge and is now one of my colleagues on the 3rd Circuit. I was one. And we thought the evidence was not quite sufficient.

And then my colleague Theodore McKee and Judge Greene, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient.

And I think that division illustrates this was a factual case on which reasonable people would disagree. This was a case in which there was no direct evidence of discrimination. And I could not agree with you more that we can't stop there. There are subtle forms of discrimination and the judicial process has to be attentive to the fact that discrimination exists and, today, a lot of it's driven underground.

But all there was in this case were -- all that the plaintiff could point to, to show that there were facts from which you could infer discrimination, were a very -- what looked like a really minor violation of the company's internal practices.

They had a policy under which if somebody was being considered for a promotion, they would interview that person and they would decide, "We're going to promote or we're not going to promote." And if they decided we're not going to promote, then they were supposed to tell that person, "We've decide we're not going to promote you," before they go on to interviewing the next person.

And in this instance, it appeared that they interviewed Ms. Bray and they decided they weren't going to promote her, and then they interviewed the other candidate, Ms. Reel (ph), before they told Ms. Bray that they weren't going to promote her. They had nothing to gain by doing that. So it's a fact to be considered.

BIDEN: Judge, could I -- I don't mean to interrupt; I'm not sure I understand.

I think the reason for that policy is that that's the way people do discriminate. For example, you get somebody in -- a woman, a black, Hispanic, whomever -- who's qualified, but you do not want to hire them.

And if you say, in your mind, "OK, I'm going to keep looking until I find somebody's who more qualified so that I don't have to hire" -- I mean, just so we both understand, that's why that rule is there. It is not just a little deal, it's the real world. That's how people work.

People don't say anymore, "I'm not going to hire that man over there because he is black or he is Jewish or she is a woman." They don't do that anymore.

What they do is, they look around and they keep looking until they find someone -- "Ah-ha, I've got one here who's a Rhodes Scholar, I've got one here who's a white male who happened to have experience doing it." That's why they had that rule.

So again, I'm not questioning your commitment to civil rights. What I do wonder about is, whether or not -- it's presumptuous of me to say this -- whether you fully appreciate how discrimination does work today.

That's why the corporation set that rule up: "Interview the one inside the company, that was our practice to hire inside; tell them they had the job or not," so that the supervisor, who may not want to work with a black woman, doesn't get a chance to go, "I'm going to keep looking. Fine me somebody who has some experience somewhere else."

That's why they had the rule, right?

ALITO: I think you make a good point, Senator.

But in this instance, my recollection is -- in fact, I'm quite sure of this -- these were both people who were from the inside.

They were both Marriott employees. And I think they were both being considered for the position at the time. So, it wasn't an instance in which they interviewed Ms. Bray and then they said, well, she's qualified but we really don't want to hire her; let's keep looking.

If there had been evidence to that effect, then I would certainly think, for the reasons that you have outlined, that you could draw a pretty substantial inference of an intent to discriminate from that.

But nothing like that was presented to us in that case as I remember it.

BIDEN: Weren't the facts in that case also that there was a Mr. Joston (ph) who had held the very job -- he was leaving the job -- that's the job being filled -- he said, in my opinion, which I let be known. I beg your pardon, it wasn't Mr. Joston (ph).

The person who was giving up the job said, in my opinion, I let it be known to the Mr. Joston (ph), the guy doing the hiring and which Mr. Joston (ph) was aware that (INAUDIBLE) was more than qualified to take over my positions as director of services of Park Ridge. To this day -- this is a quote -- "I cannot understand why she was not offered the position."

That was in the record. It was in the record that Joston (ph) had said in the deposition under oath, "She's not qualified," when she clearly was qualified.

I mean, I guess what I'm curious about is why, in a close case like this, wouldn't you let the jury decide it? Why did you become essentially the trier of fact? I mean, what was your thinking?

ALITO: Well, my thinking was that the standard we were to apply was, could a reasonable jury find that discrimination was proven here. And it was my view and it was the view of the district judge that a reasonable jury couldn't find that.

When the district actually looked at the qualifications of the two candidates and said, this isn't even close. Ms. Reel (ph) is much better qualified than Ms. Bray.

Now I didn't say that and I didn't think that. And I thought that they had somewhat different qualifications, and a reasonable person could view it either way. But it just wasn't anything that I saw that a reasonable person could point to as a basis for a reasonable inference of an intent to discriminate.

BIDEN: Well, again, I'm puzzled by this, just trying to understand your reasoning, because as you accurately point out, you didn't say the one was more qualified, you said they were equally qualified. And that's what puzzled me.

And what really got my attention in the case was you have a pretty collegial court, the 3rd Circuit. I mean, that's my observation. I don't follow it quite as closely as the man who's appointed about everybody on that court, our chairman, but I follow it very closely.

And I thought it's pretty strong language that a majority of your panel said that your standard would eviscerate the Ninth Amendment. That, in 3rd Circuit language, is a pretty strong statement.

But let me move on to another case, if I may: the Sheridan case, another discrimination case. Again, a little puzzling to me. This is a case where you were the only judge in this circumstance, out of the 11 judges on your circuit who heard the appeal, who ruled that a jury trial should have been overruled -- a jury verdict would have been overruled.

In this case, the woman alleged that she was constructively discharged; for the nonlawyers listening to this, it means she basically was demoted to the point where she was, as a practical matter, forced to quit.

And this woman alleged that she was constructively discharged. And she argued that it occurred after she had brought a discrimination claim, and where the records show that her employer said, "I'm going to hound you like a dog."

It was in the record -- "I'm going to hound you like a dog" for bringing this discrimination claim.

And there were more than one issue. One was whether this was an vindictive -- I forget the proper phrase -- or whether or not she should have been promoted. The third was whether she was constructively discharged.

And the jury heard the case and said we conclude she was constructively discharged -- i.e., she was basically forced out -- and she was forced out because she was being discriminated against. And 10 out of your colleagues reached that same conclusion.

But you said -- and this is what I want you to explain to me -- you said an employer may not wish to disclose his real reasons for taking punitive action against someone or not hiring someone or for his animosity toward someone. And you went on to say the reason for the animosity on the part of the employer might be based on sheer personal antipathy, which is OK.

Now, again, this is a matter of real world versus theoretically. Can you tell me how you can tell the difference when an employer is saying, "Ms. Feinstein, I am not going to hire you because the person seeking the job has a Rhodes scholarship and I like him better," and it turns out they weren't a Rhodes scholar? The real reason is, "I just don't like your glasses. I do not like the way you look." And I'm not being facetious...



BIDEN: For the record, I'm a fan of the woman from California.

But all kidding aside, I mean, that's how it read to me; that sheer personal antipathy is OK, even when the employer's reason for not hiring the person toward whom they showed sheer personal antipathy weren't true.

How do you distinguish that from discrimination, subtle discrimination? That's tough for me.

ALITO: Well, this case concerned an issue that had really divided the Courts of Appeals at the time when our court addressed it.

And the courts of appeals -- this gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case.

But to put it in simple terms, the courts of appeals had divided into three camps on this. There was the pretext plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext only camp, which was the camp that was most favorable to employees. And there was the middle camp.

And my position was in the middle camp. And when the issue went to the Supreme Court -- and it did a couple of years later -- in Reeves v. Sanderson Plumbing, Justice O'Connor wrote the opinion for the Supreme Court and she agreed with my analysis of this legal issue; that, in most instances, pretext is sufficient.

In fact, in the vast majority of instances, if the plaintiff can show or create -- point to enough evidence to show that the reason given by the employer is a pretext is incorrect, then that's enough to go to the jury.

In the vast majority of cases, that's sufficient, but not in every case. And that's what I said in Sheridan, and that's what Justice O'Connor said when she wrote the opinion for the Supreme Court in Reeves v. Sanderson Plumbing.

BIDEN: Well, I went back and read Reeves, and I looked at O'Connor's statements. And with all due respect, you could argue she used the same standard, but it's clear to me she would reached a different conclusion. She would have been with your 10 colleagues.

Here's what she said. She said in the Reeves case that she would not send a case to the jury if, and I'm quoting, "one, the record conclusively revealed some other nondiscriminatory reason for the employer's decision." I fail to see how the record conclusively showed that, and I doubt whether she would have seen that.

"Or, two" -- continuing to quote -- "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and" -- and -- "there was abundant uncontroverted evidence that no discrimination had occurred."

It seems to me she's much more prepared to give the benefit of the doubt to the employee in that situation and you're much more prepared to give the benefit of the doubt to the employer.

I mean, by her own language, I find it hard to figure how she would have reached the same substantive conclusion that you did, that a jury trial wasn't appropriate, notwithstanding the fact, I think you make a good point, that the test, she said, was more like the test, you said, but the real world outcome, I think, she would have been -- presumptuous of me to say it -- I think it would have been 11-1 and not 10-2 had she been on the court. But who knows?

ALITO: Well, Senator, I think the vote on my court was a reflection of the standard that they applied, and they did not apply the Reeves v. Sanderson Plumbing standard. Of course, Reeves hadn't been decided at that point.

But they applied the standard that said if the plaintiff can create a fact issue as to whether it was pretextual, then that alone is sufficient. So they didn't get into an evaluation of the sort of evidentiary points that you were mentioning.

BIDEN: Well, they kind of did talk -- you'd know better than I, Judge. I don't mean to suggest I'm correcting you. But as I read the case, they did get into the minutiae...

ALITO: They did.

BIDEN: ... the factual minutiae. And in the Reeves case, O'Connor, not that it's -- because there were two different cases we're talking about here. We're talking about a similar rule, two different cases. O'Connor reversed the 5th Circuit decision.

And here's what she said when she reversed it. She said reverse the lower court because, quote, "it proceeded from the assumption that a prima facie case of discrimination combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate nondiscriminatory reason for its decision is insufficient as a matter of law to sustain the jury finding of intentional discrimination."

It seems to me that's what you did. In my view, that's what you did. That's the conclusion you reached in the Sheridan case. She overruled in Reeves, as I read it. But at any rate, as someone once said, it's your day job, and we do this part time. We have other things like wars and foreign policy to deal with, so I'm not presuming to be as knowledgeable about this as you do.

Let me move on to a third case, very quickly. I only have two and a half minutes left. And it's the Casey case, Planned Parenthood. And I don't care what your position is on abortion. This is not about your abortion position. It's about your reasoning here.

As a matter of fact, with two minutes and 30 seconds, I probably can't get into the case. Maybe I should do it in a second round.

But I should tell you now, I want to talk to you about, again, the real world here and, kind of, the effects test.

And so for me, Judge, where I still remaining somewhat puzzled is on whether or not you, whether it's applying the unitary executive standard and what you mean by that or whether it is the assertions made relative to how to look at discrimination cases, which are difficult, you seem to come down -- I'm not associating myself with the studies done -- I don't know enough to know whether they're correct or not -- by Cass Sunstein and others; I don't disagree with them.

But as I've tried diligently to look at your record, you seem to come down more often and give the benefit of the doubt to the outfit against whom discrimination is being alleged. You seem to lean -- in close cases, you lean to the state versus the individual.

Now, again, a lot of constitutional scholars would argue that's perfectly correct. All I'm suggesting is if I'm right -- and we'll get a chance to do this again -- if I'm right, that would be a change that will occur, more than subtle, on the bench, on this court, on a closely divided court, which would take it in a direction that I am not as comfortable with as others may be.

But at any rate, you've been very gracious. I appreciate you being responsive.

And I thank the chair. And I want to note for maybe the first time in history, Biden's 40 seconds under his time.


SPECTER: Thank you very much, Senator Biden. We greatly appreciate it.

We're going to stay in session for just 10 more minutes.

And I call now on Senator Kyl.

SEN. JON KYL (R), ARIZONA: Thank you, Mr. Chairman.

Mr. Chairman, let me begin by just asking the witness if you'd like to comment again on the unitary executive. I have this specifically in mind because, while I think I understood your explanation of it, Senator Biden just referred to it. And I thought maybe it would be useful to draw the distinction that I heard you draw with respect to your discussion of the unitary executive power, if you could do that please.

ALITO: Yes, certainly, Senator. As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.

And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.

It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.

So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope.

KYL: Of who, eventually, has the last say about executive power, which would be the president.

ALITO: Right.

KYL: Thank you.

Now, I want to also ask you a question which was asked of Judge Bork in his confirmation hearing. And his answer, as I understand it, was not well accepted by some members of the Senate; was expressed as one of the reasons for their opposition to him. So it's more than just a mundane question, although it's a simple question.

By accepting the president's nomination, you've obviously expressed a willingness to serve on the United States Supreme Court. My question is, why would you want to serve on the United States Supreme Court?

ALITO: I think it's an opportunity for me to serve the country using whatever talent I have. I think that the courts have a very important role to play, but it's a limited role. So it's important for them to do a good job of doing what they're supposed to do, but also not to try to do somebody else's job.

And I think that this is a way in which I can make a contribution to the country and to society. I've tried to do that on the court of appeals, and I would continue to do that if I'm confirmed for the Supreme Court.

KYL: Thank you.

Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it's obvious from my question that I do not support the use of foreign law as authority in United States court opinions. I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer's 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer's repeated appeals -- appeals brought by the convict -- should be considered cruel and unusual punishment.

I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self- government and it's utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it's needlessly disrespectful of the American people as seen through the widespread public criticism of the trend.

Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?

ALITO: I don't think that foreign law is helpful in interpreting the Constitution.

Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights.

The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.

As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.

Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did.

We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.

There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn't say that that's controlling, but it's something that is useful to look to.

In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is.

So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution.

KYL: Thank you.

Now, let me close with this question.

In the Judiciary Committee's questionnaire to you, you were asked about your views of judicial activism. And as part of your answer, you said something intriguing to me. You said, "Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations."

How does one determine that a constitutional violation is deeply rooted? And can you elaborate on what you meant by that and when federal courts should be especially aggressive in their use of equitable powers?

ALITO: What I was referring to were the efforts of lower federal court judges in the South during the days after the decision in Brown v. Board of Education to try to implement that historic decision despite enormous public resistance at times.

But this was an example of the federal judiciary not swaying in the wind of public opinion. There was a lot of opposition. And I'm sure that it didn't make them popular.

I've read a number of books concerning the situation in which they found themselves. But, on the whole, they did what a federal judge is supposed to do, which is that they enforced the decision of the Supreme Court of the United States that, after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races.

KYL: Are there other examples that come to your mind of that same application of power? It seems counterintuitive, but when you think about it, it's absolutely essential for the courts sometimes to buck public opinion and enforce what may be considered unpopular laws.

ALITO: Well, there were some examples cited earlier today when the courts said that the executive had overstepped the bounds of its authority. The Youngstown Steel case was cited. And that is certainly an example where President Truman thought that it was necessary to seize the steel mills so as not to interfere with the war effort in Korea, but the Supreme Court said that this was an overstepping of the bounds of executive authority.

There was a reference to United States v. Nixon, where the Supreme Court said that the president of the United States had to comply with a subpoena, with a grand jury subpoena, for documents. And they stood up for what they understood the law to mean, despite the fact that there must have been great pressure against them in another direction.

So when situations like that come up, it is the responsibility of the judiciary to hold fast.

KYL: Mr. Chairman, since there are just about 30 seconds left here, rather than ask another question, let me just close with quoting three sentences from the letter sent by the American Bar Association to you dated January 9th. I thought that was especially interesting in view of the subjects that they dealt with, the integrity of the nominee, as well as his abilities and character.

They said, "Fifty years ago, a Supreme Court justice wrote of the traits of character necessary to serve well on the Supreme Court. He referred to the ability to put one's passion behind one's judgment instead of in front of it and to demonstrate what he called dominating humility. It is the belief of the Standing Committee Judge Samuel Alito possesses those same qualities."

I think that's quite a testament to your character and your integrity, and I'm sure you appreciate the Bar Association reaching that conclusion.

Thank you very much, Senator.

SPECTER: We will now recess until 2:15, at which time Senator Kyl will be recognized for 20 minutes, which is the balance of his 30- minute first round.

Recess until 2:15.


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