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The Alito Hearings Continue; One Suspect Held, Two Sought in Robbery in Virginia; Trapped Miners May Have Tried to Escape

Aired January 11, 2006 - 11:00   ET


WOLF BLITZER, CNN ANCHOR: And to our viewers, you're in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time.
Happening now, our special coverage of the Samuel Alito confirmation hearings.

It's 11:00 a.m. here in Washington, and Democrats are trying again to get more out of Judge Alito. Are they looking for answers or for the Supreme Court nominee to stumble?

Also this hour, the stage is set for President Bush to defend his Iraq strategy again. Is there anything more he can say to bolster support for the mission and Republicans in this year's congressional elections?

And thousands of acres ablaze right now in Colorado. It's 9:00 p.m. -- 9:00 a.m., that is, outside of Denver, where strong winds are pushing the wildfire into danger closer to the city.

I'm Wolf Blitzer, and you're in THE SITUATION ROOM.

We're going to take you right back to the Alito hearings here in Washington. But first, let's go to Daryn Kagan at the CNN Center in Atlanta for a closer look at some other stories "Now in the News."


And here at the top of the hour we're going to go ahead and start with international news. We just have received an update on the status of Israeli Prime Minister Ariel Sharon.

Doctors at a Jerusalem hospital say that neurological tests show a slight improvement in Mr. Sharon's condition. He still is on a very low dose of anesthesia. Doctors have planned to remove him from all remaining sedatives today. Doctors say the prime minister is no longer in immediate danger, but it's expected to be days until the full extent of the stroke's damage is known.

Residents on the outskirts of Denver are being allowed back home this hour as firefighters keep battling a wildfire. Authorities now say half the fire is contained and two roads that were closed are now reopening. The fire has burned more than 2,400 acres. That fire started, by the way, on 10 acres yesterday evening, but exploded overnight due to wind and gusts up to 60 miles an hour. Now to Virginia, where police in Manassas have one bank robbery suspect in custody, but they're still out there looking for another one or perhaps two. The holdup started about three and a half hours ago, when police say that one suspect remained in the bank with an employee, one or two other suspects left.

Police say they were able to talk the remaining suspect into surrendering. The employee who was being held was not harmed.

A suspected bank robber was shot dead, another is in custody this morning following a 10-hour standoff in Florida. Authorities say the pair held four people hostage at the Mercantile Bank in Disney World. They had let three people go when talks stalled, and police finally just blasted their way in.

The suspects tried to escape but police chased them down. Authorities say they shot one suspect. The other surrendered, and the final hostage was then rescued.

Now take a look at this, the store surveillance video. But watch it carefully.

A mother and her two daughters, they are expected to recover. They were hit by that car yesterday outside of a food market in Wasco, California. Sheriff's deputies say the 79-year-old driver lost control while turning into the parking lot, and then she fled on foot, but later surrendered. She is charged with felony hit and run.

A report out today says former D.C. Mayor Marion Barry tested positive for cocaine last fall. "The Washington Post" says that Barry took a court-ordered drug test after pleading guilty to misdemeanor tax charges. Barry spent six months in jail back in 1991 on drug charges. He's now a member of the D.C. Council.

"The Post" says he has started drug treatment.

Wolf, back to you.

BLITZER: All right, Daryn. Thank you very much.

And we're going to go back to the Senate confirmation hearings of Samuel Alito. The chairman, Arlen Specter, starting the second round of questioning, 20 minutes for each senator. He is now asking Alito questions about executive authority, presidential power versus that of Congress.

U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN: ... try to figure out what the Supreme Court is later going to say is congruent and proportionate?

JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE: Well, like many tests in the law, it is not a mathematical or a scientific formula that can produce a particular result with certainty as it is applied to particular situations.

SPECTER: Well, how about just fair notice? Never mind mathematical certainty.

ALITO: It addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress' authority under Section 5 of the 14th Amendment to pass legislation enforcing the provisions of the 14th Amendment.

One argument that has been made, which would represent a very narrow interpretation of congressional power -- and this is basically the position that Justice Scalia took in the dissent that you mentioned, is that Congress's authority doesn't extend any further than remedying actual violations of the 14th Amendment; that Congress doesn't have additional authority to enact prophylactic measures outside of the area of race, which Justice Scalia would treat differently and recognize broader authority because of the historical origin...

SPECTER: Judge Alito...

ALITO: ... of the 14th Amendment.

SPECTER: ... what's wrong with the test of Maryland v. Wirtz, and Gonzales v. Raich, as you take a look at power under the commerce clause and to be applicable to our legislation under the Americans With Disability Act?

That test is where the court has gone into some length to say what you have gone into repeatedly: that judges have no expertise. It's up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world.

And in Wirtz, in 1968, and reaffirmed recently in Gonzales v. Raich, after Morrison, after Lopez, quote, "Where we find the legislators have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce" -- could apply as well to disability -- "our investigation is at an end."

What's wrong with that test? Would you subscribe to that test over the proportionate and congruence test?

ALITO: There are a number of tests that have been used and proposed over the years in this area.

And this is the subject I think of continuing litigation in the Supreme Court.

There is the Maryland v. Wirtz approach and then the City of Boerne approach. And you mentioned that the City of Boerne is a relatively recent decision and it has been followed by a number of subsequent decisions.

SPECTER: Where did it come from? Where did the Boerne test on proportionate and congruence come from, if not thin air?

ALITO: I think it was an effort by the majority in that case to identify a standard that would not strictly limit congressional power to remedying established violations of the 14th Amendment without going -- while still in their view retaining the necessary remedial connection to Section 5 of the 14th Amendment.

It is an approach that they have used in a number of cases. And the cases have not come out -- sometimes the results have not been predictable.

You mentioned the contrast between the two decisions under the Americans with Disabilities Act. I think Nevada v. Hibbs was a decision that some people -- that surprised some people based on the court's prior precedents.

So there is, I think, still some ferment in this area. I am sure it is a question that is going to be -- that will come up in future cases.

SPECTER: We're speaking not only to you, Judge Alito, but to the court. The court watches these proceedings. And I think they ought to know what the Congress thinks about making us schoolchildren or challenging our method of reasoning.

We're considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.

Right now the solicitor general does that. He's in the executive branch. We don't want to derogate the solicitor general in your presence, Judge Alito, but the thinking that we've had was to speak about your decisions and the court's decisions on the floor of the Senate. Nobody pays attention to that. Maybe we would try to come in as amicus. Why do that?

We have the power to grant standing. We could grant standing to ourselves and come into court and fight to uphold constitutionality.

Let me move at this point to the recent legislation which takes away the jurisdiction of the federal bench to hear habeas corpus decisions. It's in the context of the detainees.

Justice O'Connor in Hamdi laid out the law in flat terms. "All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within United States" -- every individual, not just citizens. And then she spells out the way you suspend the writ, and you do it only by rebellion or invasion.

And then this recent legislation says, "The District of Columbia Court of Appeals shall have the exclusive jurisdiction to determine the validity of any final decision by the Combatant Status Review Tribunal."

If it means what it says, and judges like to look to the statute as opposed to going to congressional intent, if it means what it says that there was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.

This may come before the court. What factors would you consider to be relevant in making the analysis as to, again, maintaining equilibrium between the court and the Congress of our authority to take away federal court jurisdiction on this important item? ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.

The first is that the courts said in a case called INS v. St. Cyr that if there is an attempt to -- that habeas jurisdiction can't be taken away unless it's clear in the statute that that's what was intended. Habeas jurisdiction is not to be repealed by implication. That's one important principle.

And then in Felker v. Turpin, which involved the Anti-Terrorism and Effective Death Penalty Act of 1996, the Supreme Court considered arguments about whether provisions of that legislation, which restructured federal habeas review, violated the Constitution.

And they found that there wasn't a violation because the essentials of the writ were preserved. And so if other legislation is challenged, it would have to be reviewed under standards like that.

SPECTER: Judge Alito, I want to move now to a subject on efforts to have television in the Supreme Court of the United States, a subject very near and dear to my heart.

I've been pushing it for a long time. I'm personally convinced that it's going to come some day. I'm not sure whether it'll come during my tenure in the Senate. More likely it'd come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.

The Supreme Court said in the Richmond newspaper case v. Virginia, quote, "The rights of a public trial belong not just to the accused, but to the public and the press, as well. Such openness has long been recognized as an indispensable attribute in the Anglo-Saxon trial."

There are many other lines of authority, but only a few moments left to set the stage here. But the Supreme Court has the final word.

We can talk about the president's war power under Article II and the congressional authority under the Foreign Intelligence Surveillance Act, but the court makes the decision.

We can talk about taking away habeas corpus jurisdiction, but the court decides whether we can do it or not.

We can talk about the insult of declaring acts of Congress unconstitutional because of our method of reasoning, but the court can do that.

And the court has made these decisions on all of the important subjects. The court decided who would be president of the United States in Bush v. Gore. The court decides who lives on a woman's right to choose, who dies on the right to die, on the death penalty, on every critical decision.

The Congress has the authority to do many things on the administrative level, such as we set the starting date for the court, the first Monday in October. We set what is a quorum of the court, six members. Congress sets the size of the court, effort made by President Roosevelt to increase the number from nine to 15. We put provisions in on speedy trial, time limits on habeas corpus matters.

In recent times, some of those who have objected to televising the court has been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it's a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.

But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I'm tired of picking up the front page everywhere and seeing your picture on it.

Brit Hume was on Fox News talking about going to a Redskins game in 1991 when Justice Thomas was being confirmed and how he had his ear sets on to listen to the proceedings.

I think Senator Leahy was questioning Professor Hill at that particular time.

But how about it? Why shouldn't the Supreme Court be open to the public with television?

ALITO: Well, I had the opportunity to deal with this issue, actually, in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted.

And we had a debate within our court about whether we should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful...

SPECTER: Really? You have taken a position on this issue?

ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.


The majority was fearful that our Nielsen numbers would be in the negative.


SPECTER: Could you promise the same result?


Could you promise the same result, if confirmed, to be a dissenter? Will the court allow TV?

UNIDENTIFIED MALE: Be careful how you answer.

SPECTER: Be careful how you answer everything, as you have been. (LAUGHTER)

ALITO: The issue is a little bit different on the Supreme Court. And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body.

So I wouldn't want to comment on it...

SPECTER: Justice Souter. But quite a few of his colleagues have been on television. Let me ask you this, Judge Alito -- I know what the answer will be -- with seven seconds left, will you keep an open mind?

ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.


SPECTER: Thank you, Judge Alito. We'll now take a 15-minute break and we'll reconvene at 11:35.

BLITZER: And as the committee recesses for 15 minutes to let everyone take a little break, we're going to continue our special coverage of the Samuel Alito hearings.

Jeff Greenfield and Jeff Toobin, a quick assessment midterm through this morning -- Jeff.

JEFF GREENFIELD, CNN SR. ANALYST: Well, you've only heard from Republicans because they outnumber the Democrats 10 to eight.

BLITZER: We did hear from Senator Durbin.

GREENFIELD: I'm sorry. At the end of -- in the second round we've only -- that's right, we've heard from three straight Republicans. And basically, the -- if you want to call them the only rough waters he encountered was -- was Senator Durbin trying to say to him, I don't get this distinction you're making between the birth control and school segregation cases where you're fine with that even though the court might have been a little activist there, or a lot, and abortion.

The other thing is Ed Gillespie did make clear that when Senator Durbin said John Roberts said abortion was set in law, he didn't say it as a prospective Supreme Court chief. He said it as a candidate for a lower federal court, all of whose numbers are bound by the Supreme Court. So, in that sense, the spread between Roberts and Alito is a lot less than it might have looked like.

Other than that, I -- well, I'll stop there.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Moments ago we actually learned something new. I mean -- which was sort of startling to me, that Judge Alito supported cameras in the courtroom on the 3rd Circuit, which is actually somewhat unusual for federal judges. As he indicated, he lost his battle in the 3rd Circuit, but the Supreme Court, cameras in the courtroom, I think Chairman Specter is right, it will probably come in somebody whose lives now -- lifetime -- perhaps not his. But it would be -- it suggests that there may be a force for cameras in the courtroom.

He may be confirmed, and that would -- that's just -- that's a startling fact.

BLITZER: And we learned -- also learned another startling fact. He likes Bruce Springsteen. A son of New Jersey, and he likes Bruce Springsteen. Almost endorsed "Born to Run" as the state's song.

GREENFIELD: As the state's song, yes. I think an attack on Bruce Springsteen might well have put him outside the mainstream, even among a lot of Republicans. So on that one he was willing to commit himself.


BLITZER: We'll take a quick break. We're going to continue our coverage here in Washington in THE SITUATION ROOM. They're in a break, the Senate Judiciary Committee.

We'll check all the day's other important news unfolding right now.

We'll be right back.


KAGAN: ... in Manassas, Virginia.

Brian, what do you know?

BRIAN TODD, CNN CORRESPONDENT: Daryn, police tell us they are looking for at least one suspect and very possibly two who fled the bank this morning on foot after the hostage situation was basically heightening at that time. The suspects are on foot. They are still at large. There are five local schools that are on lockdown.

We asked police if they could give a description to the community or tell the community what to look out for. And they really could not, other than to say that the suspects appeared to be dressed in black and had something covering their faces.

But the hostage herself was brought out unharmed a little bit before 10:00 a.m. after S.W.A.T. teams surrounded the bank, ordered the one suspect inside to come out. He did so and surrendered to police. He is now being interviewed, and they are trying to get information on the additional two suspects.

KAGAN: Brian Todd live on the phone from Manassas, Virginia.

Thank you. An ambitious plan to rebuild New Orleans will be unveiled today. A commission appointed by Mayor Ray Nagin is expected to recommend that all parts of the city be given a chance to rebuild. And that would include areas like the Lower Ninth Ward, which was devastated by floodwaters from Hurricane Katrina.

Commission members were told to dream big. Among some of the ideas that they are expected to propose, revamping the city's public school system and building a network of bike paths and commuter rail lines.

And you might remember this videotape, a police beating in New Orleans weeks after Hurricane Katrina hit. Well, the three officer were charged with simple battery on a 64-year-old man. The Associated Press is now reporting their trial will likely be postponed.

Prosecutors are launching a new investigation to determine whether the charges should be upgraded. Two of the officers have been fired. The third was suspended from duty.

A police chase in Los Angeles, it came to a dramatic end early today. The officer driving this LAPD cruiser lost control of his vehicle. He crashed into a wall and a tree.

That crash happened while the police cruiser was in pursuit of a stolen vehicle. The suspect was eventually caught.

California Governor Arnold Schwarzenegger could be facing an infraction after a motorcycle accident. You see the cut on his lift there.

Well, the LAPD, a spokesman there says that Schwarzenegger was actually riding his Harley illegally when he collided with a car Saturday in his L.A. neighborhood. He suffered that cut lip that required more than a dozen stitches. The police spokesman says Schwarzenegger did not have the proper endorsement on his driver's license to be operating a motorcycle.

He says officers did not ticket the governor at the time. After they arrived at the accident, instead, they turned the matter over to the city's attorney's office. The governor could face a fine of up to $250 or possibly more.

And keeping in Hollywood, tongues are wagging over news involving a star couple. "People" magazine report that actress Angelina Jolie is expecting a baby with her new man, actor Brad Pitt.

The repot says the baby is due this summer. The magazine says the pregnancy was confirmed by representatives of both stars.

Pitt has already filed papers to adopt Jolie's two adopted children. Word of the pregnancy comes after Pitt's four-year marriage to actress Jennifer Aniston ended in divorce last October.

So we go from the labor and delivery room back to THE SITUATION ROOM with Wolf Blitzer -- Wolf. BLITZER: Daryn, I should know this, but are they may married?

KAGAN: No. Wolf, you're a much more informed news person than that.

BLITZER: I should know that but I did not know that. OK.

KAGAN: Reports say they're living together. And he's going to adopt her children and now apparently have a baby biologically.



BLITZER: Good for them.

Thanks very much, Daryn.

KAGAN: I'm here for you, Wolf.

BLITZER: We're going to check back. Daryn knows a lot about all of this kind of very important in information.

We're going to take another quick break. Much more of the confirmation hearings of Samuel Alito. They're in a break right now, but they're about to resume the questioning. We're going to go there live right after this.


BLITZER: Welcome back. We're waiting for the resumption of the confirmation hearings of Samuel Alito before the Senate judiciary Committee. We're going to go back there live as soon as that happens. In the meantime, we're joined by one of the more outspoken Democrats on the committee, Senator Chuck Schumer of New York. He's joining us. Jeff Toobin and Jeff Greenfield are here with me as well.

Senator, it looks, based on everything we've seen and heard so far, given the 55 Republicans who are the majority in the U.S. Senate, barring some major gaffe over the next few hours or days, it looks like this is pretty much a done deal, would you agree?

SEN. CHARLES SCHUMER (D), NEW YORK: Well, I wouldn't say that. I would say this, the Republicans march in lock step. And that was true before the hearings. Do you know of the votes we have had on over 40 Court of Appeals judges -- and there are 50 Republican or so, so it was over 2,000 votes -- only three have ever voted no on any of them? So they march in lockstep.

And that means that it's impossible to block a nominee, whether it's Supreme Court or Court of Appeals, no matter how right wing. The real question remains with the Democrats, and that is, do we try to block a nominee by filibuster? We've done it in a rare number, a small number, of people who are extreme, and that's a question we'll have to ask after Judge Alito's hearings. Now, as for Judge Alito himself, it's amazing how everyone in the media just sort of goes along with all this. He says, I will keep an open mind on Roe. Well, has anyone ever said they won't? He said, no president is above the law. Those were the two headlines in all the papers this morning.

Has anyone said, oh, yes, the president's above the law? So I think the -- it's -- we each have to make a determination, particularly on the Democratic side, about how extreme he was. As you know I questioned him pretty hard on Roe v. Wade. I came to a conclusion that in all likelihood he would vote to overturn. That was increased this morning by Senator Durbin's questioning. Made it, you know, it seemed even more so. And that's something that'll have to be weighed along with other issues.

Jeff Greenfield wants to ask a question. Go ahead, Jeff.

JEFF GREENFIELD, CNN SR. ANALYST: Hi, senator. Let me offer you a hypothesis you probably won't like, that you and some of your colleagues simply miscalculated where the mainstream now is, as opposed to 15 and 20 years ago. You mentioned, 55 Republican senators, a conservative president who said he want to overturn Roe. Isn't it possible that it's your side that is now outside the mainstream, not Judge Alito?

SCHUMER: Well, let's say, you know, 70 percent of all Americans for instance, Jeff, say they do not want a Supreme Court Justice who will vote to overturn Roe. I think the mainstream has moved a little bit to the right, but the president's nominees are quite far to the right.

And the bottom-line question is we at least certainly understand that Judge Alito will be conservative, and we certainly understand that he is not going to have the same views as the average Democrat on the Judiciary Committee. The question is, how far over is he? Most Americans do not believe in some of the things that, say -- Justice Thomas, I would say, would be out of the mainstream. And is Judge Alito going to be like a Justice Thomas? And that's the question we have to try to get to the bottom of.

And at these hearings where it's, you know -- the nominee is under no compulsion to answer, but still the hearings are important for you to get a view of that. You have to get a feel for it. With Judge Roberts, when he came before us, most people's view, just about everyone's view, is that he wasn't out of the mainstream. Some of us voted for him, some of us voted against him, depending on how well we thought he answered questions, depending on the fact that some people say, look, I'm going to vote against someone who is going to move the court to the right. But no one talked about blocking him. The fundamental question is, do you block somebody? And the answer to that is, is he out of the mainstream? So it's not is he conservative, does he think like I do; it's rather, is he so far over that he'll take his own views and impose them on the American people, and those views are far over.

TOOBIN: Senator, Jeff Toobin here. You and other Democrats were talking a lot about the issue of national security, executive power, warrant-less wiretaps, and there's been some questioning about that during these hearings. What has Judge Alito said or not said on that subject that you think might get people to vote against him?

SCHUMER: Yes. Well, I think he hasn't said enough. On most issues he stated some broad platitudes that don't really tell you anything, that just about every nominee from Justice Ginsburg to Justice Thomas would say. And so you have to probe further. I tried to do that on the issue of choice yesterday, and I think I made some progress. And you also have to make a judgment, and that's often a judgment that is not a science, but really an art.

BLITZER: Senator, on this whole notion of a filibuster, you know that you're very familiar with your colleagues, so-called "Gang of 14," seven Democrats, seven Republicans, the threat that the Senate Republican leader, the majority leader, Bill Frist, has made of triggering a so-called nuclear option. At this point, would you be inclined to push for the filibuster which would basically need 60 votes to overturn that filibuster?

SCHUMER: It's a good question, Wolf, but it's premature to answer it. I think I have to wait until the end of the hearings and then go back, read the transcripts, look at Judge Alito's history, talk to my colleagues and come to a conclusion. I would say it is certainly not off the table at this point. But I would also say that I don't think anyone on the committee, certainly myself and anyone i've talked to, has said we definitely should. It's a question of, first, hearing completely from Judge Alito and coming to a determination, and that is, he so far out of the mainstream that he doesn't belong on the court?

BLITZER: All right, we'll leave it right there. Senator Schumer, thanks very much for joining us. We'll forward to your questioning. That's coming up later today.

We'll take another quick break. When we come back, we'll go right back to the hearing. The questioning starting now from the ranking Democrat on the panel, Patrick Leahy of Vermont.


BLITZER: Welcome back. We're in THE SITUATION ROOM. I'm Wolf Blitzer in Washington. We're going to go right back to the confirmation hearings of Samuel Alito before the Senate Judiciary Committee. The ranking Democrat, Patrick Leahy of Vermont, asking questions about enemy combatants.

U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER ... people who are taken into custody during the war on terrorism.

And that's one of the issues that's working its way through the court system.

No, I'm not talking about those things that are working, but just on Hamdi -- that has been decided -- would you say that Justice O'Connor basically applied the Jackson test, not the twilight zone test but the test of where the president's power is at its lowest ebb?

ALITO: In addressing the statutory question, I don't think she had any need to get into Justice Jackson's framework as well.

LEAHY: So would you say it would be consistent with what Justice Jackson said?

ALITO: I think it's certainly consistent with what Justice Jackson said...

LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas?

ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area.

The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs.

LEAHY: But you're not going to say which of the two decisions you...

ALITO: Well, I'm trying to explain my understanding of the division of authority in this area. And I think that it's divided between the executive and the Congress.

I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.

LEAHY: We all understand that and appreciate that. My understanding, listening to Chief Justice Roberts when he was here same way you are, that he felt that Justice O'Connor's decision most clearly tracked the Jackson standard in Youngstown.

But let's go -- I want to get more into this unitary executive theory, because I really had questions listening to you yesterday. You've said as recently as five years ago that you believe the unitary executive theory best captures the constitutional role of presidential power. You were a sitting judge when you said that.

And do you still adhere to that legal and constitutional view that you were expressing five years ago?

ALITO: I think that the considerations that inform the theory of the unitary executive are still important in determining and deciding separation of powers issues that arise in this area.

Of course, when questions come up involving the power of removal, which was the particular power that I was talking about in the talk that you are referring to, those are now governed by a line of precedent from Myers, going through Humphrey's Executor and Wiener and Morrison, where the court held 8-1 that the removal restrictions that were placed on an independent counsel under the Independent Counsel Act did not violate separation of powers principles.

So those would be applied. Those would be the governing precedents on the question of removal.

But my point in the talk was that the considerations that underlie this theory are relevant; should inform decision-making in the area, going beyond the narrow question of removal.

LEAHY: But in the past, you criticized Morrison. Are you saying now that you're comfortable with Morrison? Do you accept it?

ALITO: Morrison is a settled precedent -- is a precedent of the court. It was an 8-1 decision. It's entitled to respect under stare decisis. It concerns the Independent Counsel Act, which no longer is in force.

LEAHY: So do you hold today that the independent counsel statute was beyond the congressional authority to authorize?

ALITO: No, I don't think that was ever my view.


Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?

I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to.

Under a unitary theory of government, one could argue that he has an absolute right to ignore a law that the Congress has written. What kind of weight do you think should be given to signing statements?

ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.

The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.

The scope of executive power gets into the question of inherent executive power. Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre.

The president orders certain things to be done. The attorney general says, "No, I won't do it." He fires him.

The deputy attorney general -- he said, "OK, you do it." And the deputy attorney general wouldn't, saying it would violate the law. Fires him.

They keep on going down. Finally, they find one person, a person you have praised -- Robert Bork -- who says, "Fine, I'll fire him. I'll do what the president says."

You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress.

So let's take one for example.

The Federal Election Commission...

BLITZER: All right, we're going to break away briefly from this very important but technical question on executive authority, presidential power versus that of the Congress. We're going to go back to the hearings soon. We're standing by. Orrin Hatch, Republican senator from Utah, is about to ask some questions, then he'll be followed by Senator Ted Kennedy, Democrat of Massachusetts.

Jeff Greenfield, Jeff Toobin, it's a very technical issue, but very important, the line of questioning that Senator Leahy is pursuing.

GREENFIELD: At root what they're talking about is how much, as a Supreme Court justice, are you prepared to pull the executive, the president, back from what a lot of Democrats see as over-reaching power.

And just -- I'm going to try to do this very quickly. This whole notion that the president, when he signs a law, issues a statement about what he thinks the law means. Traditionally, judges look to what they call legislative intent. What did the Congress mean? Not -- and the president either signs or vetoes.

The idea of some people is well, if the president says what it means, that should be given a lot of weight when the court decides what the law means. The Democrats here, not being in power in the White House, will say wait a minute, no, no, care about what we, the Congress, says not, but not what this executive says. And you as a justice need to, in a lot of areas, this is one of them, pull the executive back from his assertion that he has this enormous power.

TOOBIN: And this was an initiative of the Reagan administration to try to create this institution of presidential signing statements. And when Samuel Alito was in the Justice Department, he worked on that. He was one of the young lawyers who was involved in putting forward that idea. So he is somewhat associated with it. He has not really embraced it as -- in the course of this questioning. He has said, well, it's one thing to be -- to consider.

Like a lot of these issues, especially in the area of presidential power, he's been very cautious. He has not said anything much more than, the president is not above the law, which is an uncontroversial statement which you won't get much disagreement on.

BLITZER: It would have been controversial if he would have said the opposite.

GREENFIELD: Yes, it's like saying I have a closed mind. You just -- you kind of know when you go to these committee hearings, don't say you have a closed mind and don't say here are the people that I think are above the law. It's just bad tactics.

BLITZER: Not a good idea. All right, we'll take another quick break. We'll come back to our coverage of the confirmation hearings. Also, the day's other news. We're not leaving that by any means. If you want to see all of the hearings, by the way, unfiltered, you can go to Watch it on your computer at any time. We'll take a quick break, we'll be right back.


BLITZER: Welcome back to THE SITUATION ROOM. We're watching the confirmation hearings of Samuel Alito before the Senate Judiciary Committee.

Earlier, just a little while ago, there was this exchange between Republican Senator Tom Coburn of Oklahoma and Judge Alito.

Listen to this.


SEN. TOM COBURN (R), JUDICIARY CMTE.: A lot of times in these hearings, you don't get a chance to say, what, why would you want to be a justice of the supreme court of the United States. Well, why would you want that responsibility? Why do you want to go through this process to be able to achieve that position? Can you tell the American people why?

ALITO: I think it's a chance to make a contribution. I think it's a chance to use whatever talent I have in the most productive way that I can think of. There are a lot of things that I can't do, and there are a lot of things that I couldn't do very well if I was given the assignment of doing them.

But I've spent most of my career as an appellate attorney. Well, I spent most of my career before becoming a judge as an appellate attorney, and now i've spent 15 years as an appellate judge, and I think this is what I do best. And I think this gives me an opportunity to make a contribution to the country and to the society. (END VIDEO CLIP)

BLITZER: An exchange just a little while ago, Jeff Greenfield. You know that question is going to come up. And others have fumbled when that question was asked in earlier confirmation hearings.

GREENFIELD: Most specifically Judge Bork, who said it would be an intellectual feast, which suggested a kind of self-centered view, or a kind of cold and distant view of it. And he was much smarter than I would be, which is to say, well, you know, you get your summers off, you can work from home, you get a car and driver, it's a lifetime job, nobody can fire you, and if you get for the people, you can tell the whole country what the law is. I wouldn't recommend that answer either.

TOOBIN: Speaking of our qualifications, I would just like to raise some. Yesterday I said that Judge Alito was part of the majority in the decision about searching the 10-year-old girl. And he was, in fact, a dissenter in that case, and the blogs and the e- mailers were after me, and they were right and I was wrong. And that was just yet another nail in my coffin for being a Supreme Court justice.

BLITZER: We're only human. We all make mistakes from time to time.

TOOBIN: I know, but I just wanted to correct it.

BLITZER: Nice of you do admit that.

TOOBIN: I just thought we should do that.

BLITZER: All right.

GREENFIELD: And unlike me, he actually took the bar. He's a lot further along the road to the court than some of us, Wolf.

BLITZER: You know, it's also interesting, we constantly get these e-mails from all sorts of people.

Steve Schmidt, who's one of the vice president's counselors sent me an e-mail pointing out that what now-Chief Justice John Roberts said during the confirmation hearings for the Supreme Court was that Roe versus Wade, he said, is settled as a precedent of the court, entitled to respect under principles of stare decisis, Durbin had said earlier. He said it was a settled law, but there is a slight difference there.

TOOBIN: I don't know. It's -- yes, it did appear that Alito did not embrace Roe as quite as much as a settled precedent as, say, Griswold, the birth control case, or Brown v. Board of Education, the segregation in schools. He didn't put it in that category, but he did say it was a precedent, and you know, from the looks of him, from his history, from what he has said over the last 15 years he does not look like someone burning to overturn Roe v. Wade. GREENFIELD: I have a different view of this than my distinguished colleague from the populist law school at Harvard. I think that both Roberts and Alito were very careful simply to say the obvious, it's a precedent; of course it's a precedent. You know, it's hasn't yet been overruled, it's been there for 33 years, but unlike the birth control cases or the school segregation case, where's the court took a step toward what some might call activism, neither of them came close to saying, in my view, that -- and we have no particular interest in overruling it. I don't think we know what they would do yet.

TOOBIN: There are federal judges out there who when confronted with abortion cases, have acted differently than Alito has, who have said, look for any excuse to try to restrict abortion through the law and approve those restrictions. Alito does not appear to be one of those judges. Now, whether that's a true predictor of what he does on the Supreme Court, I don't know.

BLITZER: What do you think of our little interview with Senator Schumer when he's saying, well, they're going to make up their mind about a filibuster after the Q and A with Alito is done.

GREENFIELD: Yes, one level that's what you have to say, because if -- senators are supposed to keep an open mind. They're supposed to listen to the whole record. But I think the body language and the tone was pretty clear that he doesn't think -- he doesn't seem to suggest that any effort to block Alito has met with any success.

TOOBIN: I've covered Chuck Schumer a lot over the years, and I was struck by the same thing. I mean, Chuck is one of the most enthusiastic, one of the most energetic members of any legislative body in the world, and he didn't seem that way today. He seemed a little deflated by what's gone on here, and that's probably revealing.

BLITZER: All right. Well, we see what he asks when he comes up for his questioning. We're standing by. Senator Orrin Hatch, Republican of Utah, is going to be asking questions. He'll followed by Senator Ted Kennedy. We're going to bring all of that to you live.

We'll take another quick break. Standing by for all the day's other news as well. You're in the SITUATION ROOM.


BLITZER: You're in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time.

Happening now, our special coverage of Samuel Alito's confirmation hearings.

It's noon here in Washington, where Judge Alito has been facing a second day of questions about abortion rights and other hot topics. Have we learned anything new about how he might rule as a Supreme Court justice?

Also this hour, Colorado burning. It's 10:00 a.m. outside Denver, where firefighters still are battling flames and choking smoke. Are they making headway?

And a casino cast away. It's 9:00 a.m. in Las Vegas, where a decades-old gambling spot is reduced to a heap of rubble.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

Welcome back.

We're going to take you back to the hearings here in Washington, the confirmation hearings of Samuel Alito in just a few moments.

First though, let's go to CNN's Daryn Kagan at the CNN Center for a closer look at some other stories "Now in the News."

KAGAN: Thank you, Wolf.

We begin with President Bush. He takes his message about the war on terror and his Iraq strategy to Kentucky today.

He's scheduled to deliver a lunchtime address in Louisville. The Iraq war is a hot political issue in Louisville. An incumbent Republican congresswoman faces a challenge from a Democrat who served in Iraq and calls the war a mistake.

A pre-trial hearing this morning at Guantanamo Bay, Cuba. A Yemeni man is before a U.S. military commission. He's demanding to act as his own attorney. The Bush administration says the suspect worked as a bodyguard for Osama bin Laden.

A murder case against a Canadian teenager is also expected to open today. The Pentagon is moving ahead with the two cases even though U.S. courts have halted other trials. They were suspended until a Supreme Court ruling on the legality of military tribunals. The Supreme Court does not hear those arguments until March.

Firefighters say they are making progress against a wildfire near Denver, Colorado. And the winds are still causing concern there.

They say the fire is now 75 to 80 percent contained. About 135 people were told to evacuate. They now have been allowed to return home. There are no reports of any injuries.

Officials, though, are saying one building has been destroyed. Two roads that have been closed because of the fire have been reopened.

To Kentucky now. Federal and state teams are opening an investigation today into a coal mine accident there. One miner was killed after a rock fell through the roof of a mineshaft, causing the roof to collapse. Kentucky's governor plans to visit the accident site outside of Pikeville today. He is pledging more inspections and, if necessary, mine closures to keep workers safe.

And now to the latest on the tragedy of the Sago Mine in West Virginia. A new report says that the trapped miners may have tried to escape. CNN's Christopher King joins us by phone. He is in Upshur County, West Virginia, with details -- Christopher.

CHRISTOPHER KING, CNN CORRESPONDENT: That's right, Daryn. New reports indicate the trapped miners tried to get out of the Sago Mine. According to the reports, footprints inside the mine indicate the men tried to use a mechanized car to ram their way out after the explosion that eventually left them trapped.

Now, the reports say that the brother-in-law of Randal McCloy, the lone survivor, the brother-in-law says that International Coal Group told McCloy's family that footprints had been found and that the miners tried to get out of the back of the mine. The reports say that Rick Magee (ph), the brother-in-law, says that International Coal Group CEO Ben Hatfield told him the footprints had been found in the mine -- the footprints that were found in the mine indicate the men had tried to get out.

Now, also, CNN has learned that sources say that fresh air -- that a fresh air tank was nearby the trapped miners and that they could possibly have taken that tank into the area where they had constructed a barricade. It's not clear how much air was in that tank at the time of the accident. Sources say miners could possibly have turned on the tank and released breathable air into their immediate surroundings, possibly for hours -- Daryn.

KAGAN: Christopher King, live from West Virginia.

Thank you.

Now to here in Georgia. Searchers here looking for a Navy jet. It disappeared overnight, and it was during a training flight yesterday.

It was heading from Tennessee to the Pensacola Naval Air Station in Florida. A Navy instructor, two students and a civilian contractor were all on board there.

OK, question for you. When is a smack merely a smack? Not when it's done by the prime minister of Britain.

Tony Blair causing quite a bit of a stir. He acknowledged on television that he has smacked his older children to discipline them. He says there's a difference between a smack and child abuse and that he has not yet hit his youngest child, Leo. Well, after those comments, some advocates renewed their calls for tougher child protection laws.

And then there's this controversy. The author of the best- selling memoir "A Million Little Pieces" is defending his book. It's happening tonight on CNN's "LARRY KING LIVE."

James Frey and his publisher, Doubleday, are standing by his work. This is all while TheSmokingGun Web site says its investigation shows Frey fabricated or embellished some of the details of his gritty account of crime and drug addiction. Frey shot to prominence after Oprah Winfrey picked his memoir for her book club last fall.


WILLIAM BASTONE, THESMOKINGGUN.COM: If you publish it as nonfiction and you promote it nonstop for two and a half years as straight nonfiction, and it's a true story, and you go on Oprah and all those people who bought that book because of Oprah's say so think it's a real story, yes, I'd say it would matter.


KAGAN: James Frey will have a chance to have his say. He'll talk with Larry tonight 9:00 Eastern right here on CNN.

Frey, by the way, has denied the allegations against him in the few remarks he has had since the matter went public on Sunday. But he will have a say.

Full hour with Larry, tonight, 9:00 p.m. Eastern.

And now back to THE SITUATION ROOM, special coverage of the Alito hearings.

Wolf, back to you.

BLITZER: I may be an old-fashioned guy. It's either fiction or nonfiction. Somewhere in between doesn't necessarily work for me, Daryn. But we'll see what he has to say tonight on "LARRY KING LIVE."

KAGAN: He'll have his say, yes.

BLITZER: Thanks very much, Daryn. We're going to get back to you soon.

Republican Senator Orrin Hatch of Utah is asking questions now of Samuel Alito before the committee. He's giving Alito a chance to respond to what Hatch says are his liberal critics, including some members of the committee.

ALITO: I believe very strongly in treating everybody who comes before me absolutely equal.

I take that oath very seriously. And I have tried my very best to abide by that during my 15 years on the bench.

And I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We're supposed to do justice on an individual basis in the cases that come before us.

But I think that if anybody looks at the cases that I voted on in any of the categories of cases that have been cited, they will see that there are decisions on both sides. In every type of employment discrimination case, for example, there are decisions on both sides.

U.S. SENATOR ORRIN G. HATCH (R-UT): But most employment discrimination cases really are decided at the lower level.

ALITO: Most of them are.

HATCH: And when they get up to your level it's generally decided on technical or a procedural basis. Am I wrong in that?

ALITO: No, that's correct, Senator.

HATCH: And sometimes you have to uphold the law even though you may be uncomfortable with the law yourself.

ALITO: We have to decide the cases on the facts that are in the record and the law that applies.

HATCH: Well, that's right.

Well, let me just ask you about a few of your cases. Because, you know, it's easy to cherry-pick these cases and find a sentence here you don't like and a sentence there you don't like and criticize you, in the process, as though you're not being fair, when, in fact, everybody who knows you knows your impeccable reputation for fairness, dignity, decency and honor, and capacity.

And that's why you got the highest rating from the American Bar Association. And deserve it. And you've twice got that. And I know how tough they can be.

But let me just give you a couple illustrations.

Zubi v. AT&T. You were the lone dissenter in that case. What did you dissent from?

ALITO: I dissented from a majority decision that held that Mr. Zubi, who was claiming racial discrimination, would not have his day in court because of the statute.

HATCH: You would have given in his day in court, right?

ALITO: I would have.

HATCH: If it had been up to you?


HATCH: All right, how about U.S. v. Kithcart? I don't expect you to remember all these cases -- and if you don't, just raise your hand and I'll try and recite them.

But this was a Fourth Amendment case. You held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right?

ALITO: That's right. That was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment. HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies. And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case.

ALITO: That's correct, Senator.

HATCH: OK. And Thomas v. Commissioner of Social Security -- just to mention a few of these cases that show that you're going to do what's right, regardless. And sometimes in these employment cases and even other cases, when they get up on appeal, they're fairly technical in nature and you have to do what is right under the law.

But in Thomas v. Commissioner of Social Security -- do you recall that case?

ALITO: I do.

HATCH: What'd you do there?

ALITO: That was a case where I think the Supreme Court thought that my opinion had gone too far in favor of the little guy who was involved there.

HATCH: This was a woman with disabilities, right?

ALITO: That's right. A woman who was trying to get...

HATCH: And she sought Social Security benefits.

ALITO: ... Social Security disability benefits. And in order to be eligible for those, she had to be unable to perform any job that existed in substantial numbers in the national economy.

HATCH: She had a job as an elevator operator if I recall correctly.

ALITO: That's right.

As the case was presented to us, the only job that she could perform was her past job, which was as an elevator operator.

And what I said was that you can't deny somebody Social Security benefits because the person is able to do a job that no longer exists in any substantial numbers in the national economy. You can't deny benefits based on a hypothetical job. It has to be based on a real job.

And the Supreme Court didn't see it that way, but it seemed to me that the way that we ruled was consistent with what I thought about it.

HATCH: So in other words, although you stood up for the person seeking rights here, the Supreme Court overruled you.

ALITO: That's right.

HATCH: Oh, my goodness.

In the landmark case Fatin v. INS, this involved Iranian women who refused to conform to their government's gender-specific laws and social norms; whether or not they should be granted asylum in America.

How did you rule in that case?

ALITO: I think that was one of the first cases in the federal courts to hold that requiring a woman to be returned to a country where she would have to wear a veil and conform to other practices like that would amount to persecution if that was deeply offensive to her, and that subjecting a woman to persecution in Iran or any other country to which she would be returned based on feminism would be persecution on the basis of political opinion.

HATCH: Well, I've got another nine or 10 cases and perhaps even more that I could go through. But the point is that whenever they deserve to win, they win, regardless of whether they are rich or poor, whether they're powerful or not. You have basically upheld the law in these cases, is that correct?

ALITO: That's what I have tried to do.

HATCH: And where you've been in dissent, you've tried to do it to the best of your abilities.

ALITO: That's right, Senator.


Let me just mention one other thing. This business of the Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- not by anybody who has any ethical, professorial, or other knowledge, not by the American Bar Association, not by the vast majority of lawyers to look at these matters -- that particular statement said will you, during your, quote, "initial service," unquote. It seems to me those are important words.

Now, you haven't tried to hide behind that. You've just honestly explained that basically you made a mistake, which really wasn't a mistake according to all the ethics people and according to the American Bar Association.

And now, instead of the original accusation or the original implication, you're being accused of not being forthcoming because of that our original statement and your application to the committee questionnaire.

But the fact of the matter is that, quote, "initial service," doesn't mean 12 years away, does it, when there's no chance in the world that you could ever receive any monetary benefit from Vanguard?

ALITO: Well, I don't think initial service means 12 years away. HATCH: Neither do I and neither does anybody who cares about justice and what's right in this matter.

So to blow that out of proportion like your adversaries have done is really pretty offensive. I could go on and on, and maybe be stronger on that, but the fact of the matter is I just wanted to make that, "initial service," unquote, pretty clear.

Now, let me just say that sometimes I just can't make sense of what some of your critics are saying. On the one hand, they want to portray you as some sort of a robotic patsy for big government who does not think for himself.

Yesterday, one of my Democratic colleagues even suggested that the Bush administration was trying to manipulate you to give responses favorable to them in this hearing.

Now, you quite rightly said, and I think you were fairly restrained about saying it, that you have been a judge for 15 years and are quite capable of thinking for yourself.

On the other hand, your critics then turn it around and attack you for supposedly dissenting too much, as if you should actually stop doing all that thinking for yourself and just fall in line with the majority in all of your cases.

Now, Judge, I know that appeals court judges, that the appeals court themselves are collegial bodies, but how do you view dissenting from your colleagues?

How you decide when to do it? How did you know how often you dissent from your court, or do you know often you dissent in your court and whether it's out of step with your colleagues?

Could you give us some answers there?


I think that it's important for a multi-member court to issue a judgment and to speak clearly to the lower courts and the parties.

And so when I've been in a position where taking an independent position would result in the absence of a judgment, I have gone out of my way to make sure that there was a judgment, that there was a majority opinion.

And an example of that is the Rappa case, where we were really divided three ways and my position was close to Judge Becker's opinion. And Judge Becker had the opinion writing assignment and I issued an opinion saying, "I don't completely agree with the way Judge Becker analyzed this issue, I would analyze it differently, but I'm joining his opinion so that there is a majority opinion, so that there is a clear statement of the law for the guidance of the parties."

I think that's the first principle. The second is that judges should be respectful of each other's views, and I have tried never to write a dissenting opinion or respond in a majority opinion to a dissenting opinion in a way that was not completely respectful of the views of the other members of the court.

It's useful to dissent if there's a chance that the case may go en banc, and that's happened in a number of cases where I've dissented. It's useful to dissent if there is a chance that the case may go to the Supreme Court and so that the Supreme Court will have the benefit of a different expression of views. And there have been cases...

HATCH: Would it surprise you to know that you've dissented only 79 times in nearly 5,000 cases in which you've participated?

BLITZER: All right. We're going to take a quick break.

We're standing by. Senator Ted Kennedy is about to start asking his questions. We'll come right back to the confirmation hearings of Judge Samuel Alito right after this.

If you don't want to miss anything at all, you can always go to Take that service on your computer.

We'll be right back.


ALITO: ... now, where it says initial period of service, I would say that 12 years later is not the initial period of service. But that was...

U.S. SENATOR EDWARD M. KENNEDY (D-MA): When did it stop then? When did you think that your pledge to the committee halted, after how many years? Six months? What did you intend at the time that you made the pledge? What was in your mind at that time? I'm interested in what's in your mind at this time, but what was in your mind at that time?

ALITO: I can't specifically recall what was in my mind at that time, but I'll tell you what I'm pretty sure I had in mind. I was not a judge, and I was being considered for a judicial position.

And what I was trying to express was basically the policy that I followed during all my years on the bench, which is to bend over backwards to make sure that I didn't do anything that came close to violating the code of conduct or give anybody the impression that I was doing anything that was improper.

KENNEDY: The last question on this is how long then -- when you made the promise under oath to the committee that you were going to recuse yourself -- and you understand that now to be in your own interpretation to be just the initial time -- how long did you think that that pledge and promise lasted?

ALITO: Senator, as I said, I can't tell you 15 years later exactly what I thought when I read that question.

It refers to the initial period of service. And looking at it now, it doesn't seem to me that 12 years later is the initial period of service.

KENNEDY: My question to you, which I guess I'm not going to get an answer to, is when did it? Is 10 years? How about three years? Is that?

ALITO: I do not know exactly what the time limitation would be, but 12 years does seem to me to be not the initial period.

KENNEDY: We'll come back.

I just want to mention in fairness to my friend and colleague -- both of my friends, Senator Hatch and Senator Durbin, and to Senator Hatch's quoting of Senator Durbin that you responded on the question of the Roe v. Wade when you were in the circuit court, I have here the record that said of the hearings of Roberts.

And the question was asked by Senator Specter to Judge Roberts during the time of his consideration for the Supreme Court. Senator Durbin can clarify the record, but I wanted that to be clarified so that there wasn't the confusion about it.

In the time that I have, Judge Alito, I listened carefully to responses you gave to Senator Leahy about the CAP organization at Princeton. And I listened to other responses you gave to our colleagues and again to Senator Durbin earlier today.

But I have just some questions on this to, at least, try to finalize, at least in my mind. And it might be useful in the committee's mind, as well.

You had indicated in your '85 job application that you were a member of the Federalist Society for Law and Public Policy and a regular participant in its luncheon and a member of the Concerned Alumni at Princeton University, a conservative alumni group.

And you said yesterday that you wracked your memory about the issue and really had no specific recollection of the organization; is that correct?

ALITO: I have no specific recollection of joining the organization.

KENNEDY: And you also said yesterday and today to Senator Durbin that you very likely joined CAP because of your concern over the ROTC program being kicked off campus; is that correct?

ALITO: Well, what I said specifically was that I wracked my memory as to why I might have joined. And the issue that had bothered me for a period of time as an undergraduate and in the '80s, around the time when I made the statement, was the issue of ROTC. This was the issue about the administration of Princeton that bothered me. And I had a high regard for Princeton in many respects, in general, and have participated in a lot of their activities. But this issue bothered me a great deal at various times. And that's what I said.

KENNEDY: And, finally, you said yesterday that you very likely joined CAP around 1985, just before you were applying to the high- level job in the Justice Department under President Ronald Reagan. I think that's correct.

ALITO: Senator, what I specifically said, as I recall, was, if I had done anything substantial in relation to this group, including renewing my membership, I would remember that. And I do not remember that.

KENNEDY: So, I want to ask a few things that I hope can clear this up.

You have no memory of being a member. You graduated from Princeton in 1972, the same year CAP was founded.

You called CAP a "conservative alumni group."

It also published a publication called Prospect, which includes articles by CAP members about the policies that the organization promoted. You're familiar with that?

ALITO: I don't recall seeing the magazine. I might have seen...

KENNEDY: Did you know that they had a magazine?

ALITO: I've learned of that in recent weeks.

KENNEDY: So a 1983 Prospect essay titled "In Defense of Elitism," stated, quote, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."

Did you read that article?

U.S. SENATOR DIANNE FEINSTEIN (D-CA): Finish the last line.

KENNEDY: Finish the last line -- is, "and homosexuals are...

FEINSTEIN: No, "And now here come women."

KENNEDY: If the senator will let me just...

FEINSTEIN: Yes, I will...


KENNEDY: Can I get two more minutes from my friend from... (LAUGHTER)

Just to continue along.

I apologize, Judge.

Did you read this article?

ALITO: I feel confident that I didn't. I'm not familiar with the article, and I don't know the context in which those things were said. But they are antithetical...

KENNEDY: Well, could you think of any context that they could be...

ALITO: Hard to imagine.

If that's what anybody was endorsing, I disagree with all of that. I would never endorse it. I never have endorsed it.

Had I thought that that's what this organization stood for I would never associate myself with it in any way.

KENNEDY: The June '84 edition of Prospect magazine contains a short article on AIDS. I know that we've come a long way since then in our understanding of the disease, but even for that time the insensitivity of statements in this article are breathtaking.

It announces that a team of doctors has found the AIDS virus in the rhesus monkeys was similar to the virus occurring in human beings.

And the article then goes on with this terrible statement: "Now that the scientists must find humans, or rather homosexuals, to submit themselves to experimental treatment. Perhaps Princeton's Gay Alliance may want to hold an election."

You didn't read that article?

ALITO: I feel confident that I didn't, Senator, because I would not have anything to do with statements of that nature.

KENNEDY: In 1973, a year after you graduated, and during your first year at Yale Law School, former Senator Bill Bradley very publicly disassociated himself with CAP because of its right-wing views and unsupported allegations about the university. His letter of resignation was published in The Prospect; garnered much attention on campus and among the alumni.

Were you aware of that at the time that you listed the organization in your application?

ALITO: I don't think I was aware of that until recent weeks when I was informed of it.

KENNEDY: And in 1974, an alumni panel including now-Senator Frist unanimously concluded that CAP had presented a distorted, narrow, hostile view of the university.

Were you aware of that at the time of the job application?

ALITO: I was not aware of that until very recently.

KENNEDY: In 1980, the New York Times article about the coeducation of Princeton, CAP is described as an organization against the admittance of women. In 1980, you were working as an assistant U.S. attorney in Trenton, New Jersey.

KENNEDY: Did you read the New York Times? Did you see this article?

ALITO: I don't believe that I saw the article.

KENNEDY: And did you read a letter from CAP mailed in 1984 -- this is the year before you put CAP on your application -- to every living alumni -- to every living alumni, so I assume you received it -- which declared: "Princeton is no longer the university you knew it to be."

As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing and Princeton's president at a time urged that the then all-male eating clubs to admit females.

And in December 1984, President William Bowen responded by sending his own letter. This is the president of Princeton responded by sending his own letter to all of the alumni in which he called CAP's letter "callous and outrageous."

This letter was the subject of a January 1985 Wall Street Journal editorial congratulating President Bowen for engaging his critics in a free and open debate.

This would be right about the time that you told Senator Kyl you probably joined the organization.

Did you receive the Bowen letter or did you read the Wall Street Journal, which was pretty familiar reading for certainly a lot of people that were in the Reagan administration?

ALITO: Senator, I've testified to everything that I can recall relating to this, and I do not recall knowing any of these things about the organization. And many of the things that you've mentioned are things that I have always stood against.

In your description of the letter that prompted President Bowen's letter, there's talk about returning the Princeton that used to be. There's talk about eating clubs, about all-male eating clubs. There's talk about the admission of alumni children. There's opposition to opening up the admissions process. None of that is something that I would identify with.

I was not the son of an alumnus. I was not a member of an eating club. I was not a member of an eating facility that was selective. I was not a member of an all-male eating facility. And I would not have identified with any of that.

If I had received any information at any point regarding any of the matters that you have referred to in relation to this organization, I would never have had anything to do with it.

KENNEDY: You think these are conservative views?

ALITO: Senator, whatever I knew about this organization in 1985, I identified as conservative. I don't identify those views as conservative.

What I do recall as an issue that bothered me in relation to the Princeton administration as an undergraduate and continuing into the 1980s was their treatment of the ROTC unit and their general attitude toward the military, which they did not treat with the respect that I thought was deserving. The idea of that it was beneath Princeton to have an ROTC unit on campus was an offensive idea to me.

KENNEDY: Just moving on, you mentioned -- and I only have a few minutes left -- you joined CAP because of your concern about keeping ROTC on campus.

ROTC was a fairly contentious issue on Princeton campus in the early 1970s. The program was slated to be terminated in 1970, when you were an undergraduate. By 1973, one year after you graduated, ROTC had returned to campus and was no longer a source of debate.

And from what I can tell, by 1985, it was basically a dead issue. In fact, my staff reviewed the editions of Prospects from 1983 to 1985 and can only find one mention of ROTC. And it appears in a 1985 issue released for homecoming that year that says: ROTC is popular once again. Here's the Prospect, 1985: ROTC is popular again. This is just about the time that you were submitting this organization in your job application.

ALITO: Senator, if I...


ALITO: I'm sorry.

KENNEDY: But the -- briefly, please.

ALITO: It's my recollection that this was a continuing source of controversy.

BLITZER: We are going to briefly break away from this hearing. The Supreme Court nominee Samuel Alito being grilled by Senator Ted Kennedy on his membership, apparent membership, in this organization Concerned Alumni of Princeton University.

These are the words that Samuel Alito wrote in that 1985 personal statement when he wanted to get a job in the Reagan Justice Department: "I am a member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings and a member of the Concerned Alumni of Princeton University." A conservative alumni group. Jeff Greenfield, those words coming back to haunt him during this hearing.

GREENFIELD: Well, I think I suggested earlier, you know, this is a job application for a job in a conservative administration. And I think what you do if you're doing that is you find all of the conservative hooks you can to and prove that you're one of the people in that movement.

I must say, I mean, Senator Kennedy is now going over grounds that we've heard several times before. And he seems to be at pains to say no, I don't really believe that you were a member of this organization because of your concern about ROTC.

I'm just going to tell you, Wolf, in all candor, it just does not strike me as a smoking gun or even a gun with a little wisp of smoke in it. But I could be wrong.

TOOBIN: Colossal waste of time, it seems to me. I mean, this is a guy who's going on the Supreme Court. I mean, ask him what he thinks about some issue. The vanguard is even worse. I mean, this is a very trivial case he was involved in where every ethics person who's looked at it has passed on it. He admitted that he could have handled it better.

But I just can't believe that either the public or any senator is going to get exercised about that. The Princeton thing, I think Alito's answers aren't that great. But he's given them repeatedly already. And it just seems like if the Democrats try to building -- build some momentum against him, they need to talk about some issue that's going to resonate with people a little more. But, you know, maybe this will resonate, I don't know.

GREENFIELD: Could I draw you a quick contrast?

BLITZER: Please.

GREENFIELD: When Harold Carswell was nominated by Nixon in 1970, they dug up a quote that he did when he was a politician where he endorsed white supremacy. That's a smoking gun. This is ain't -- this is sort of very different level of...

BLITZER: Hold on one second. There's an exchange going on between Senator Specter, the chairman, and Senator Kennedy. Kennedy apparently wants a subpoena of the records of this CAP group.

SPECTER: You're in a position...

KENNEDY: So I renew my request, Senator. And if I'm going to be denied, then I'd appeal the decision of the chair.

I think we are entitled to this information. It deals with the fundamental issues of equality and discrimination.

This nominee has indicated he has no objection to seeing us these issues. We've gone over the questions and we are entitled to get that kind of information. And if you're going to rule it out of order, I want to have a vote on that here on our committee. SPECTER: Well, don't be premature, Senator Kennedy. I'm not about to make a ruling on this state of the record.

I hope you won't mind if I consider it, and I hope you won't mind if I give you the specifics that there was no letter which I received.

I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that.

We're going to move on now.

Senator Grassley...

KENNEDY: Mr. Chairman, I'd appeal the ruling of the chair on this.

SPECTER: There has been no ruling of the chair, Senator Kennedy.

KENNEDY: Well what is the -- my request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress -- that purpose and that purpose only.

And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution.

I think it's...

SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again. And I'm the chairman of this committee and I have heard your request and I will consider it.

And I'm not going to have you run this committee and decide when we're going to go into executive session.

We are in the middle of a round of hearings. This is the first time you have personally called it to my attention, and this is the first time that I have focused on it. And I will consider in due course.

And now we'll move to Senator Grassley for 20 minutes.

BLITZER: There it is, a little fireworks going on at the committee. A testy exchange between the chairman, Arlen Specter, one of the senior Democrats, Ted Kennedy. It's all boiling down to this issue, which both of you seem to suggest is not necessarily all that significant, his membership in this very controversial alumni group at Princeton University, that opposed allowing women to be students at Princeton, that opposed minorities coming to Princeton, wanted to go back to the good old days where there were a lot of white guys who went to Princeton from elite families in the United States. And I'm still a little perplexed why both of you seem to think this may not necessarily be an important issue that Kennedy is raising. GREENFIELD: It would be if Judge Alito was in some way tied to a movement and had expressed anything like those sentiments. But everything I know about this is that the distance between Judge Alito and those obnoxious statements is a pretty wide one.

TOOBIN: Can I just explain? I think what was actually going on there is that Senator Kennedy wanted a subpoena, a congressional subpoena to the Library of Congress, where the records of this Princeton alumni group are stored. The people who control those records have refused to give them to the committee, the committee Democrats who want them. Kennedy now wants a subpoena.

Specter, it seemed rather artfully, was not denying his request. He was simply not considering it, because if he were to deny it. That would mean there could be a vote. This way he's basically just putting it off, and we'll see Kennedy renewing it later, it seems, he promises regularly for the remainder of these hearings.

BLITZER: The question is, is this simply a fishing expedition for Kennedy and the Democrats hoping to find something in there that directly links Samuel Alito to this CAP, this Concerned Alumni at Princeton University that could be embarrassing?

TOOBIN: Is there a letter he wrote. Is there an unpublished article. I mean, the magazines in this group are public. But is there some manuscript that Alito submitted that wasn't accomplished. That's the kind of thing that would be in the files. But there's certainly no evidence that I'm aware of that there is anything even mentioning Alito's name in those files.

GREENFIELD: I dare say you're going to hear from conservatives the charge that this is a liberal version of guilt by association, you know, which back in the '50s, was the tool that other people from the other side of the aisle used to attack people on the left or liberals.

BLITZER: You guys are referring to the McCarthy hearings.

GREENFIELD: Yes, McCarthy on the left. This is a predictive notion. You're going to be hearing that probably some time in the next couple of hours. But it seems to me that's right, if there was something on the record where Judge Alito was -- as a student as an alumnus particularly, was in league saying, you know, the complexion of Princeton has changed, you'd have an issue. That's a serious matter. If the judge contains views on race or gender. But there's just no evidence of that right now, as far as I know, Jeffrey.

TOOBIN: None that I'm aware of.

BLITZER: Well, we'll soon see what happens with this issue. Senator Ted Kennedy saying he wants to subpoena the records of the Concerned Alumni of Princeton University, records of the Library of Congress. Apparently has right now. And Senator Specter, the chairman says he'll consider that request. A little testy exchange in the normal collegial members of this committee getting a little angry at each other. We're going to continue our coverage right here in THE SITUATION ROOM. Don't forget, you can always go to if you want to see all of these hearings, unfiltered on your home computer your office computer, your laptop, your desktop, whatever kind of computer you have. We'll be right back.


BLITZER: Welcome back. We're in THE SITUATION ROOM. We're watching the hearings, the confirmation hearings of Samuel Alito before the Senate Judiciary Committee. We're going to go back there momentarily. But first, let's go to the CNN Center in Atlanta.

Daryn Kagan is standing by with some important other news developing right now -- Daryn.

KAGAN: Wolf, while you're watching what's happening in Washington D.C., we are watching a nasty chemical spill and explosion that took place in Daytona Beach, Florida earlier today. One city worker in Daytona Beach was killed. This is according to "The Daytona News Beach Journal Online." Two others were also seriously injured. One with third-degree burns over 100 percent of his body. The other has second-degree burns over 80 percent to 90 percent of his body.

Apparently these men were working on a metal roof that was damaged by last year's hurricane when this accident occurred. One of the men was using a blow torch near tanks of methanol and sodium sulfate when one or more of the tanks exploded. So you know, those live pictures coming into us from our affiliate WKMG as we watch what's happening in Daytona Beach, Florida.

But once again, one person killed two other men seriously injured in Daytona Beach. A chemical spill and explosion taking place earlier today. We'll watch that while you watch the hearings -- Wolf.

BLITZER: Thanks very much, Daryn. We're going to go back to those hearings. But we're going to take another quick break. Remember,, you want to watch all of these hearings without interruptions, certainly no commercial interruptions,

We'll take a commercial break. We'll be right back.


BLITZER: Welcome back. We're continuing our special coverage of the confirmation hearings of Samuel Alito before the Senate Judiciary Committee.

Republican Senator Chuck Grassley of Iowa is asking Alito some questions. Let's listen in briefly.

SEN. CHARLES GRASSLEY (R), IOWA: ... attorneys in charge were women and two years later, you had more than doubled that number and five of the 17 divisional leadership attorneys were women. Now on the federal bench, you've hired many women and minorities to serve as law clerks. And you had a discussion with Senator Brownback earlier, mentioning some very complimentary things that Cathy Fleming, your former deputy chief and acting chief of special prosecution units, in New Jersey office, and David Walker, a former lawyer in that office, had to say about you and your treatment of women and minorities.

They both, being lifelong Democrats, vouched in those statements for your qualities as a judge and your respect for individual rights.

And, Mr. Chairman, if these letters -- and they may have already been put in the record, but if they aren't in the record, I'd like to have those put in the record.

SPECTER: Without objection, they will be made a part of the record.

GRASSLEY: Several of your dissents have been referred to today -- or not -- in the last two days. And so I wanted to comment on the suggestion that you're way out of the mainstream because you've written a lot of dissenting opinions.

I don't find that you've written so many as a percentage of your total thing. But whatever reason you did it, you did it with good reason.

But judges disagree all the time, and that's to be expected. And, obviously, there's nothing wrong with that. And, in fact, the Supreme Court has agreed with your dissents on several occasions, I recall, from reading a synopsis of your opinions.

And the reality is, as I see it, you don't disagree with majority opinions more frequently than most federal appeals judges do in similar cases. And of more than 4,800 cases -- and that we got from the Washington Post -- but of more than 4,800 cases that you decided during your tenure on the 3rd Circuit, you dissented only in 79 cases, which would only be one in six-tenths percent of all those cases.

So, you know, I don't think that there's anything very extraordinary about the number of dissents or the dissents, particularly when the Supreme Court has agreed with your opinion in reversing the 3rd Circuit.

I'd like to go to the issue of some historical basis for our constitutional law. The role of historical precedent in constitutional laws I find very interesting.

For example, qui tam lawsuits have been a feature of Anglo- American law since the Middle Ages and have been a common feature of federal statutory law even since the first Congress, yet their constitutionality has never been clearly adjudicated by the Supreme Court.

What role does long-standing historical practice play in assessing the constitutionality of a government act or practice? ALITO: Well, it can be very relevant in many instances. One place where this has come up is when a statute was passed by the first Congress. And this is...

BLITZER: All right, we're going to break away briefly from this confirmation hearing. Remember, if you want to get all of the hearings unfiltered.

Senator Chuck Grassley asking questions right now. Up next in the line-ups, Senator Joe Biden, Democrat of Delaware. We'll bring you his questioning, as well.

Jeff Greenfield, Jeff Toobin, are here in THE SITUATION ROOM with us. Let's get back to this issue of subpoenaing the records of Concerned Alumni of Princeton University from the Library of Congress. A testy exchange between Senator Kennedy and the Chairman Arlen Specter.

GREENFIELD: Well, part of that is there's nothing -- this is just in the DNA of senators. When you begin to challenge a senator's authority or his status in the world, which many senators regard and hold in great high regard, you can actually get feathers ruffled.

And I think that's part of what happened here when Senator Specter basically said to Ted Kennedy, don't you tell me how to do this, you're not the chairman anymore. I'm the chairman. But the substance of it -- I'm going to let Mr. Toobin weigh in on. Because I think he knows more than I do.

TOOBIN: Well, the issue is what relevant information might be there. And I think what may be difficult for the Democrats who are pressing to get this information is to say, we have a reasonable expectation we will find something of relevance to the Supreme Court nomination of Sam Alito in those records.

As far as I understand it, the records are totally closed up. They're in the Library of Congress under the control of William Rusher, who is the former publisher of "The National Review."

BLITZER: A conservative publication.

TOOBIN: A conservative publication, who is just refusing to give anyone access to it. But often you have to make some showing of relevance first. And just the fact that he acknowledged membership, Alito acknowledged membership. But no participation seems maybe difficult for the Democrats to prove that there's anything relevant there.

BLITZER: I suspect we're going to be hearing a lot more about the subpoena, the records and the whole organization Concerned Alumni of Princeton University.

We'll take another quick break. We'll come back. Senator Joe Biden getting ready to start his questioning of Samuel Alito. We'll be right back.


BLITZER: You're in THE SITUATION ROOM right now, where new pictures and information from around the world are arriving all the time.

Happening now, our special coverage of Samuel Alito's confirmation hearings. It's almost 1:00 p.m. here in Washington, where Judge Alito is proving his endurance on this, the second day. Some grueling questioning by senators. But is he proving himself as a Supreme Court nominee who can get confirmed?

Also this hour, President Bush preparing to take questions of his own about the war on terror. His backdrop, a political battleground over the U.S. mission in Iraq.

And flames, winds and fear in Colorado. It's 11:00 a.m. outside Denver, where evacuees who have been given the go-ahead to return still are afraid of being burned.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.


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