The Supreme Court: Heard At The Hearings

This script contains a dynamic menu system with the following links Biography http://leahy.senate.gov/biography/index.html Vermont http://leahy.senate.gov/vermont/index.html Issues http://leahy.senate.gov/issues/index.html Services http://leahy.senate.gov/services/index.html Statements http://leahy.senate.gov/press/index.html Contact Us http://leahy.senate.gov/contact.html To Search Page http://leahy.senate.gov/map.html

Follow the confirmation hearings online:

Information in this section:

Heard at the Hearing
A service from the staff of Senator Leahy
For entries from the hearings on January 11, 2006, click here.
For entries from the hearings on January 10, 2006, click here.
For entries from the hearings on January 9, 2006, click here.
For entries from the Roberts confirmation hearings, click here.

2:30 p.m. The Committee Reconvenes To Hear From Witnesses.

The Committee will now here testimony from witnesses from the American Bar Association and other selected outside witnesses identified by the Republicans and Democrats. Members of the Committee will be afforded the opportunity to question the witnesses, who will appear in a serious of six panels.

A list of witnesses is available below. Testimonies are posted based on availability. Entries from the morning question and answer section continues below.

This concludes Sen. Leahy's "Heard at the Hearing" blog for the confirmation hearings for Judge Samuel A. Alito, Jr.

PANEL I

Stephen L. Tober, Esq.
Chairman
American Bar Association
Standing Committee on the
Federal Judiciary
Portsmouth, NH
Prepared Testimony

Marna Tucker
D.C. Circuit Representative
American Bar Association
Standing Committee on the
Federal Judiciary
Washington, DC

John Payton
Federal Circuit Representative
American Bar Association
Standing Committee on the
Federal Judiciary
Washington, DC

PANEL II

The Honorable Edward R. Becker Senior Judge U.S. Court of Appeals Philadelphia, PA Prepared Testimony	The Honorable Anthony J. Scirica Chief Judge U.S. Court of Appeals Third District Philadelphia, PA	The Honorable Maryanne Trump Barry Judge U.S. Court Of Appeals Judge Philadelphia, PA
The Honorable Ruggero J. Aldisert Senior Judge U.S. Court of Appeals Philadelphia, PA Prepared Testimony	The Honorable Leonard I. Garth Senior Judge U.S. Court of Appeals Chicago, IL Prepared Testimony	The Honorable John J. Gibbons Judge, Retired U.S. Court of Appeals Director Gibbons, Del Deo, Dolan, Griffinger &Vecchione Newark, NJ Prepared Testimony
The Honorable Timothy K. Lewis Judge, Retired U.S. Court of Appeals Counsel Schnader Harrison Segal & Lewis LLP Washington, DC

PANEL III

Edna Ball Axelrod Attorney at Law Law Offices of Edna Ball Axelrod South Orange, NJ Prepared Testimony	Michael J. Gerhardt The Samuel Ashe Distinguished Professor of Constitutional Law University of North Carolina School of Law Chapel Hill, NC Prepared Testimony	Peter Kirsanow Commissioner U.S. Commission on Civil Rights Partner Benesch, Friedlander, Coplan and Aronoff LLP Cleveland, OH Prepared Testimony
Samuel Issacharoff The Bonnie and Richard Reiss Professor of Constitutional Law New York University School of Law New York, NY Prepared Testimony	Carter Phillips Managing Partner Sidley Austin LLP Washington, DC Prepared Testimony	Goodwin Liu Assistant Professor of Law University of California Berkeley, CA Prepared Testimony

PANEL IV

Nora Demleitner Professor of Law Hofstra University School of Law Hempstead, NY Prepared Testimony	Erwin Chemerinsky The Alston & Bird Professor of Law Professor of Political Science Duke University Law School Durham, NC Prepared Testimony	Anthony Kronman The Sterling Professor of Law Former Dean Yale Law School New Haven, CT Prepared Testimony
Beth Nolan Partner Crowell & Moring LLP's Litigation Group Counsel to the President 1999-2001 Washington, DC Prepared Testimony	The Honorable Charles Fried Former Solicitor General of the United States Beneficial Professor of Law Harvard Law School Cambridge, MA Prepared Testimony	Laurence H. Tribe Professor of Constitutional Law Harvard Law School Cambridge, MA Prepared Testimony

PANEL V

Fred Gray
Senior Partner
Gray, Langford, Sapp, McGowan,
Gray & Nathanson
Tuskeegee, AL
Prepared Testimony

Kate Michelman
Former President
National Abortion and Reproductive Rights Action League (NARAL)
Pro-Choice America
Washington, DC
Prepared Testimony

Ronald S. Sullivan, Jr.
Associate Clinical Professor of Law and Supervising Attorney
New Haven, CT
Prepared Testimony

Amanda Frost
Assistant Professor of Law
American University Washington College of Law
American University
Washington, DC
Prepared Testimony

John G. S. Flym
Retired Professor of Law
Northeastern University School of Law
Boston, MA
Prepared Testimony

PANEL VI

Kate Pringle Partner Friedman, Kaplan, Seiler and Adelman LLP New York, NY Prepared Testimony	The Honorable Charles A. Gonzalez United States Representative D-TX, 20th District Prepared Testimony	The Honorable Debbie Wasserman Schultz United States Representative D-FL, 20th District Prepared Testimony
Jack White Associate Kirkland and Ellis LLP San Francisco, CA Prepared Testimony	Reginald M. Turner, Jr. President National Bar Association Washington, DC Prepared Testimony	Theodore Shaw President NAACP Legal Defense and Educational Fund Washington, DC Prepared Testimony

1:09 p.m. Sen. Specter Closes The Question And Answer Session.

Sen. Specter is thanking Judge Alito for his participation in the hearings. The Committee will now move to a closed session, under Senate Rule 26, at which time the Committee will consider the FBI report about the nominee. Under Sen. Biden's tenure, this session was made mandatory, regardless of the content of the investigative FBI report. The Committee will hear from the first panel of witnesses at the conclusion of the closed session, following a lunch break.

1:07 p.m. Sen. Leahy Addresses Judge Alito.

Sen. Leahy is discussing his concern about the independence of Judge Alito on the Supreme Court, particularly as it relates to executive power. He is making Judge Alito aware of these concerns

1:03 p.m. Sen. Cornyn Yields His Time.

1:03 p.m. Sen. Graham Yields His Time.

1:03 p.m. Sen. Durbin Questions Judge Alito.

Sen. Durbin says that he hopes that Congress never gets to the point where the Court is stripped of some of its jurisdiction. Sen. Durbin asks Judge Alito if it was his idea or if he thought it was a good idea for a large panel of his colleagues to testify before the Committee about Judge Alito. Judge Alito says it was not his idea or decision. Sen. Durbin is discussing a panel of witnesses that will come before the Committee to debate two cases in which Judge Alito issued rulings, included the much-questioned case in which a young girl was strip-searched. Judge Alito is explaining that one case involved the question of how long individuals could be detained when there was no warrant issued for their arrest, and the other case which Sen. Durbin is referring to involves the scope of the warrant. Sen. Durbin is asking Judge Alito to clarify more of the specifics of these two cases.

12:48 p.m. Sen. Sessions Questions Judge Alito.

Sen. Sessions is saying that Judge Alito has been given the highest rating by the American Bar Association. He asks Judge Alito who was a better debater, him or his sister. Judge Alito jokingly says that he would rather not answer the question.

Sen. Sessions continues to point out that Judge Alito has been asked about executive power, and that Congress has not formulated its position on the issue yet. He asks Judge Alito if he would like Congress to formulate its position before the Court were to consider them. Sen. Sessions says that he agrees with that. Sen. Sessions is asking Judge Alito if he thinks it would be wise for Congress and the Courts to restrain itself and not encounter a Constitutional battle over the Court's jurisdiction. Judge Alito says that he does agree with that.

12:38 p.m. Sen. Schumer Continues To Question Judge Alito.

Sen. Schumer is now questioning Judge Alito on the Commerce clause. Sen. Schumer is asking Judge Alito about the issue of whether there should be an increased federal role in crime. Sen. Schumer is saying that Judge Alito must have presided over cases that death with these law enforcement issues. Sen. Schumer is asking Judge Alito if his tenure as US Attorney changed his thinking on these issues. Judge Alito is saying his role is different. Sen. Schumer is thanking Judge Alito and is saying that he remains troubled by Judge Alito’s judicial record on issues of executive power, abortion, and curtailing the power of Congress to look out for the little guy. Sen. Schumer is saying that Judge Alito’s responses lead him to only assume he still holds these views and will find it difficult to vote for him.

12:28 p.m. Sen. Schumer Questions Judge Alito.

Sen. Schumer is beginning his questioning with the topic of presidential power. He is asking Judge Alito if in fact that the President wire-tapping is determined constitutional, if this would allow the President to search someone’s home when they are not home. Judge Alito is saying that he would need to know the basis on which the wire tapping would have been determined constitutional. Sen. Schumer is asking if there is a difference between wire-tapping and searching someone’s home and Judge Alito is saying that there is indeed a difference. Sen. Schumer is asking Judge Alito if he pledges to be fair to dependent and defender and employee and employer. Judge Alito is agreeing.

Sen. Schumer is asking Judge Alito if he believes he has been fair thus far in his legal career and Judge Alito is agreeing. Sen. Schumer is now asking Judge Alito about specific cases where Sen. Schumer is arguing Judge Alito applied the law differently. Judge Alito is saying he cannot remember details of these cases and Sen. Schumer is asking that Judge Alito respond to the differences in writing in the next several days. Judge Alito is agreeing with this request. Sen. Schumer is now asking Judge Alito about certain provisions of the Constitution. He is asking Judge Alito specifically if there would be any grounds to have a constitutional amendment that would not allow a person who is born in the United States to be a US citizen. Judge Alito is refusing to answer and Sen. Schumer is saying that without having his answer, he is finding it difficult to determine if he would be a good SC Justice. Judge Alito is saying that it would be inappropriate for him to answer a question about an issue that is currently being debated among lawmakers and may well come before the court.

12:08 p.m. Sen. DeWine Reserves His Time.

12:06 p.m. Sen. Feingold Questions Judge Alito.

Sen. Feingold begins with some of the lawyers who were involved in Judge Alito’s practice sessions. Many of these lawyers are currently involved in promoting the justification for the Bush Administration’s spying program. Judge Alito has repeatedly stated that the President is not above the law. However, Sen. Feingold would like to know Judge Alito’s views on whether there is any constitutional executive power that allows the President to ignore a statute. Judge Alito states that Marbury v. Madison established that the Constitution trumps statutes. The problem with this, as Sen. Feingold points out, is that such a position would tend to allow the President to ignore a constitutional criminal statute when using constitutionally granted executive power. Sen. Feingold also refers to Justice Jackson’s statement that the Executive acting without the support of the other branches of government, he is at his lowest ebb of power. Judge Alito replies that his responses to Sen. Feingold’s questions must be very careful because this issues is something that will likely come before the courts. Nevertheless, should such a controversy come before the court, Judge Alito says that he would consider the issue thoroughly.

Sen. Feingold next moves to the issue of torture. Is it constitutional to admit evidence obtained through torture? Judge Alito refers to the Fifth Amendment stating that a person has the right to not be forced into making self incriminating statements.

Sen. Feingold next asks Judge Alito about the death penalty and actual innocence. Judge Alito states that actual innocence should play a very important role. Sen. Feingold asks, should evidence arise showing that an individual is absolutely innocent, does that person have a constitutional right not to be executed. Judge Alito would no go so far as to say that a constitutional right exists, but rather the system is very complex, and that person has a right to file a petition to have his case reconsidered.

Next, Sen. Feingold turns to the issue of affirmative action. Judge Alito states that he recognizes the importance of having diversity in the classroom, and the Supreme Court has stated that diversity is a compelling state interest.

On gay and lesbian issues, Sen. Feingold asked about employment discrimination and harassment of students. Judge Alito replies of the former that he can think of no reason why Congress could not pass legislation barring discrimination based on sexual orientation. Regarding harassment of students based on religion, sexual orientation, etc., Judge Alito refers to standard set in the Supreme Court Tinker Case.

11:45 a.m. Sen. Grassley Questions Judge Alito.

Sen. Grassley is asking Judge Alito how he would rule on cases that would come before him concerning the unitary executive. Judge Alito says that he would look at the precedent, the constitutionality of the case, and he would rule accordingly. Sen. Grassley is moving to the false claims clause. He tells Judge Alito that he hopes Judge Alito will understand and remember the value of the false claims cause once he is confirmed to the Supreme Court.

Sen. Schumer and Sen. Grassley are now trading stories about being mistaken for each other during hearings.

11:37 a.m. Sen. Feinstein Continues To Question Judge Alito.

Judge Alito is explaining his views in this area. He is saying that both the federal government and the states have responsibilities to protect the health, safety and welfare of its citizens. With the expansion of federal regulatory programs, the federal government now has very serious responsibilities in these areas, in Judge Alito’s opinion. He adds that, as a judge, he wouldn’t try to implement any policy views with respect to federalism when issuing decisions.

11:27 a.m. Sen. Feinstein Questions Judge Alito.

Sen. Feinstein is beginning her remarks by discussing presidential authority in times of crises. Specifically she is asking Judge Alito about the president’s plenary, or unrestrained and “unrestrainable” power, to defend the United State s. Sen. Feinstein is explaining some of Congress’ explicit powers with respect to defense. It seems to her that Congress does have the power to pass the rules that govern the procedures of the National Security Administration (NSA). She is now asking whether the president is bound by the laws passed by Congress or does a president’s plenary authority supersede some of these laws?

In responding, Judge Alito is stating that a president is bound by statutes just like everyone else, unless the statue is found to be unconstitutional. He is adding that, as written in Article II of the Constitution, the president is bound to ensure that the laws are “faithfully executed”. In response to a question about the wiretapping issue, Judge Alito is saying that it is a question of statutory interpretation. What is the scope of the authorization of the use of military force, he asks. What does the law say? He adds that legislative history could also be consulted.

11:10 a.m. Sen. Kyle Reserves His Time.

10:55 a.m. Sen. Kohl Continues To Question Judge Alito.

Sen. Kohl is asking Judge Alito how he feels about the precedent set by the Kelo decision of the Supreme Court, which involves the right of the government to seize property. Judge Alito says that he fully and completely understands the personal impact of the Kelo decision, and he has indicated his position on stare decisis, and he would consider the precedent when examining new cases that come before the Supreme Court. Judge Alito says that he will not offer his opinion on the Kelo case, as it is an issue that will most likely come before the Court.

Sen. Kohl now asks Judge Alito would be different from Justice O'Connor, and how she will be remembered. Judge Alito says that he thinks that Justice O'Connor will be held with great admiration, and that she was a pioneering figure and an inspiration for many people. He says that she has been a very dedicated justice, and has been known for her dedication. Judge Alito says that he would try to emulate her approach and dedication to examining cases individually, as he believes all Justices should do. Sen. Kohl asks Judge Alito if he sees himself as a Justice who will fill the role the same way that Justice O'Connor has. Judge Alito responds saying that he thinks that each Justice must be him or her own self on the Court, and that he would need to proceed with his own outlooks. He thinks that he should emulate his predecessor, while maintaining his own independence on the Court. Sen. Kohl asks Judge Alito if he thinks that he would find himself at the center of the Court as Justice O'Connor has. Judge Alito says that he would be the kind of Justice on the Supreme Court that he has been as a judge on the 3rd Circuit.

10:46 a.m. Sen. Kohl Questions Judge Alito.

Sen. Kohl is discussing the lifetime tenure of justices. He is asking Judge Alito if he thinks that public opinion should be considered when deciding cases. Judge Alito says that he believes the court system is established in such a way that enables the courts to decide cases independent of public opinion. He says that if courts were to consider public opinion, they, too, would have been comprised on public officials rather than appointed judges. The courts are not a democratic institution, Judge Alito says. Sen. Kohl says that the courts, particularly the Rehnquist Court, has stuck down more laws than any other court in recent history. Sen. Kohl asks how we are to deal with the courts increasingly issuing rulings on acts of Congress. Judge Alito says that the court should make decisions based on the constitutionality of those acts, and with an appreciation for the role of Congress as elected officials and representatives of the public opinion.

Sen. Kohl is now asking Judge Alito how he views the issue of term limits for judges. Judge Alito says that there is merit to looking to the advantages and disadvantages to term limits on the court. Sen. Kohl presses Judge Alito for his personal opinion on term limits. Sen. Alito says that he would narrow the options to life tenure or a long term of years to establish some form of consistency on the federal judiciary.

10:38 a.m. Sen. Grassley Reserves His Time.

10:37 a.m. Sen. Biden Questions Judge Alito.

To begin his third round of questions, Sen. Biden states the issue central to this hearing is what the public is allowed to know about the nominee’s views. The first subject of discussion is executive power, specifically new theories surrounding the president’s authority to conduct a war against terrorism. The claim is that Congress’s power to declare war refers to declaring war when the president does not want to conduct war, and that is the only role for Congress to interfere with the president’s authority as Commander in Chief. Does the President have the authority to engage in war without congressional approval, even though he has not shown emergency need. Judge Alito replies that this area of law is still unsettled and continues to be debated.

Does Judge Alito agree with the conclusion in Professor Yu’s (sp?) book? Judge Alito states that he has never read the Professor’s book, and therefore does not want to say that he agrees with it. Sen. Biden asks does the President have the authority to break international agreements and treaties during the conduct of war. Furthermore, is the role of Congress in engaging in war limited to withholding appropriations? Can the President engage in war in the absence of Congressional approval and imminent threat? Judge Alito responds that this is a question that may come before the courts, and it has been his practice to refrain from giving opinions on constitutional issues without giving them in depth consideration.

Sen. Biden next moves to the issue of stare decisis. The Supreme Court, as the highest court has much more leniency in following prior precedence. Judge Alito states that there are various forms of stare decisis. One is vertical – in which a lower court must adhere to decision made by the higher court. The other is horizontal. These are decisions made by equivalent courts. In these situations, the courts do well to follow their past decisions, but they are not absolute. For example, Judge Alito states that no one would want a system that would have made it impossible to overturn Plessy v. Ferguson.

Lastly, Sen. Biden addresses the issue of balance of powers. How does the judge view the system of balance of power? For example, the FDA makes judicial decisions regarding whether a company has followed pharmaceutical laws; does this violate the separation of powers clause? Judge Alito replies that this is something that may come before the court, and he does not know enough about the statutes surrounding that particular example.

10:17 a.m. Sen. Leahy In His Own Words.

Today is the last opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he will serve to protect their liberty and their privacy from Government intrusion.

This is even more critical since efforts to expand presidential power by this President, such as authorizing warrantless wiretaps on Americans, and using a signing statement to try to create exemptions to laws prohibiting torture.

So far we have had insufficient and troubling responses from his nominee for this vitally important job.

The Supreme Court, after all, is our ultimate constitutional safeguard, and this is a nomination to a lifetime seat on the nation’s highest court that has often represented the decisive vote on constitutional issues.

The American people deserve and the Senate needs to make an informed decision about this nomination.

That means knowing more about Samuel Alito’s work in the Government and knowing more about the views he would bring to this lifetime appointment.

10:15 a.m. Sen. Hatch Questions Judge Alito.

Sen. Hatch says that he believes that bringing up the Vanguard and Princeton matters "go beyond the pale" at this point. He is stating that no law required Judge Alito to recuse himself from the Vanguard case, and is reading from a paper written by an expert on judicial ethics. Judge Alito says that he recused himself in the only Vanguard case that came before his court. Sen. Hatch is discussing the American Bar Association's rating of the Judge Alito's ethic and qualifications. He is also citing several letters of support of Judge Alito's integrity from several law professors. Sen. Hatch says that the Vanguard case is being made a significant issue when in reality it is really nothing. Sen. Hatch says that Judge Alito has been straightforward and forthcoming with his answers. He says he doesn't think that Judge Alito has been fairly treated.

10:08 a.m. Sen. Kennedy Continues To Question Judge Alito.

Sen. Kennedy is returning to the Vanguard case. Sen. Kennedy is discussing Judge Alito's recusal lists, and the absence of Vanguard on Judge Alito's lists through several years in the 1990s. Judge Alito is confirming the names and organizations on his recusal lists. Judge Alito is saying that while Vanguard was not on his recusal list, he found no reason to not participate in the vanguard case as he felt he had nothing to gain or lose in the case. Judge Alito says that he has tried to be as forthcoming as he can be in explaining the Vanguard case. Judge Alito says that when the recusal issue came before him, he took the steps necessary to ensure that individuals involved in the case received nothing but a fair and unbiased appeal. Sen. Kennedy says that he thinks the issue could have been cleared had Judge Alito simply said that he had made a mistake and that Vanguard should have been on his recusal list.

Sen. Kennedy concludes by thanking Sen. Specter, Sen. Leahy, Judge Alito and his family for the dignified hearings that have been conducted. He is expressing some final concerns about the what is at stake in these hearings. He is citing executive power, the concept of one person, one vote, and the concept of a unitary executive. He is expressing concern about Judge Alito distancing himself from his prior record.

9:50 a.m. Sen. Kennedy Questions Judge Alito.

Judge Alito is responding the Sen. Kennedy's question about the unitary executive. Sen. Kennedy is expressing concerns about the balance of power between the Congress and the Executive that would change based upon Judge Alito's perception of the unitary executive. Judge Alito says that precedents support presidential removal of a officer of a government agency provided there are justifiable reasons for that removal. Further, Judge Alito says that Congress can place restrictions on government agencies provided those restrictions do not restrict the power of the executive.

9:42 a.m. Sen. Hatch Reserves His Time.

9:42 a.m. Sen. Specter Responds To Sen. Leahy's Questions.

Sen. Specter is responding to statements Sen. Leahy made about former Chief Justice Rehnquist. Sen. Specter is citing an article written by Chief Justice Rehnquist, and his questions to the Justice during his confirmation hearings. Sen. Specter says that it seems clear that the Congress cannot take away the jurisdiction of the Supreme Court on Constitutional issues. Sen. Specter is talking about Chief Justice Rehnquist's refusal to answer many questions during his hearings, and that he believes that nominees answer only as many questions as they need to be confirmed.

9:38 a.m. Sen. Leahy Continues To Question Judge Alito.

Sen. Leahy is now turning to now turning to the topic of physician assisted suicide. He is asking if he agrees that a person can designate someone to speak for them in the case of a “do not resuscitate” preference from the patient. Judge Alito is saying that is does agree and agrees with the living will idea. Sen. Leahy is saying that we have given a lot of power to our government and that it is important that there are checks and balances. He is asking Judge Alito if he thinks that Congress should have major oversight of this power and Judge Alito is agreeing and is saying that he doesn’t think there is any question to that statement.

Sen. Leahy is asking Judge Alito about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court. Judge Alito is saying that that there is this debate and is saying that he has not taken a position in this debate and would not like to at this time. Sen. Leahy is saying that many believe that if people knew how Brown v. Board of Education was going to result, than the Congress at the time would have taken action to strip the SC of their power before they would have been able to issue their ruling. Sen. Leahy is asking about a situation where if a Court issues a decision that would result in Congress needing to provide funds to carry out this decision, could the Congress decide to not appropriate the funds and thereby halt the decision from being implemented. Judge Alito is saying that the right to appropriate funds is one of the most important responsibilities of Congress and so that they could certainly do that. Repeating a question that Sen. Specter asked of then Justice Rehnquist during his confirmation hearings, Sen. Leahy asked Judge Alito if Congress has the authority to say that the Supreme Court does not have jurisdiction over issues dealing with the First Amendment and the right to free speech.

Sen. Leahy is saying that then Justice Rehnquist replied that Congress did not have that power and is asking Judge Alito if he would go so far as to do this. Judge Alito is explaining the complications of a change such as this and is saying that there are many undesirable consequences of making changes this way for cases involving free speech. Concluding his questioning, Sen. Leahy is asking Judge Alito about executive power and Judge Alito is saying that it is important to maintain the President as the head of the executive branch is saying that is strong precedent on this issue. Sen. Leahy thanked the Judge for answering his questions.

9:14 a.m. Sen. Leahy Questions Judge Alito.

Sen. Leahy is asking Judge Alito if the Constitution protects against the conviction of an innocent person and agrees with Chief Justice Roberts in this regard. Judge Alito is saying that he agrees with the Chief Justice and that the whole framework of the Constitution is designed to prevent a penalty imposed against an innocent person. Sen. Leahy is asking Judge Alito if a case should happen where a person goes through the legal process and is convicted and then right before their execution additional evidence is discovered that proves their innocence. Sen. Leahy is asking that if this person was executed anyway, if this would be unconstitutional. Judge Alito is talking about the process that would happen in this situation by the lawyer filing a petition with the judge or the state court or a petition in the federal court.

Sen. Leahy is saying that he understands the legal process, but is asking Judge Alito if the constitution does not allow for the execution of an innocent person. Judge Alito is saying that the Constitution is designed to prevent this type of situation from occurring. Judge Alito is saying that we all want to avoid an innocent person executed. Sen. Leahy is saying that he is trying to raise this issue in the hopes that at lease this idea stays in his mind.

9:00 a.m. The Committee Reconvenes.