Sen. Coburn is
referring to Judge Alito's involvement with
specific groups, and is reinforcing a
statement made by Sen. Graham earlier in the
day that Judge Alito can't have all of his
associations held against him. Sen.
Coburn quickly moves to the issue of
abortion, and is reciting health statistics
for women who have an abortion. Sen.
Coburn is asking Judge Alito how any court
should take into consideration developments
in science and technology when considering
the question of abortion. Judge Alito
says that you would have to look at the
factors that are relevant under the stare
decisis analysis, and would then have to
look at the baring that would have on the
issue discussed, be it abortion or another
topic. Judge Alito says there is no
such thing as "bad knowledge," and that
judges should be receptive to that
knowledge.
6:19 p.m.
Sen. Brownback Begins His Second Round Of
Questioning With Judge Alito.
Sen. Brownback thanks
Judge Alito for his time in answering the
Committee's questions, and yields back the
remainder of his time.
6:18 p.m.
Sen. Durbin
Questions Judge Alito About His Personal
Religious Beliefs.
Continuing their
discussion of the Establishment clause,
Sen. Durbin is now asking Judge Alito
about the concept of financial support
from a government agency to a school to
teach religion.
Judge Alito is
responding that the Courts have been
pretty clear that a government cannot
provide money to a school for the
purpose of conducting religious
education.
6:14 p.m.
Sen. Durbin
Questions Judge Alito About His Personal
Religious Beliefs.
Judge Alito is
stating that his personal religious
beliefs are important to him in his
private life. He is claiming that his
religious beliefs were an important part
in how he was raised and how he has
raised his children. Judge Alito is
saying that he has a specific role to
play as a judge and it does not involve
injecting his religious or moral beliefs
when reviewing cases and issuing
decisions. He mentions that Americans
have the right to worship or not worship
as they chose. Judge Alito is now
engaging in a lengthy discussion of the
Lee v. Weisman case.
6
:07 p.m.
Sen. Durbin Begins His Second Round Of
Questioning With Judge Alito.
Sen. Durbin
is now asking Judge Alito about “unitary
executive”. Sen. Durbin is saying
that some believe the unitary executive
theory, which gives a president
extraordinary power, can lead to a
violation of laws, particularly in
wartime situations.
In
responding, Judge Alito is saying that
when he talks about “unitary executive”
he is talking about the President’s
control over the Executive branch. The
scope of Executive power is an entirely
different matter in Judge Alito’s
opinion. Judge Alito believes that
there can be a debate over the scope of
executive power but that is different
than the unitary executive.
5:41 p.m.
Sen. Cornyn Continues To Question Judge
Alito.
Sen. Cornyn is saying to Judge Alito
that it is important that American
people see what a competent and
knowledgeable judge that Judge Alito has
been. Sen. Cornyn is telling Judge
Alito how important it is that he
retains his independence as a judge.
Sen. Cornyn is now asking Judge Alito if
he expects the issues that make up Brown
v. Board of Education to come before the
court. Judge Alito is saying that no,
he believes that this is settled law.
Sen. Cornyn is asking Judge Alito if he
agrees that he can expect cases related
to abortion to come before the court and
that it is a current ongoing issue.
Judge Alito agreed with this statement.
5:31 p.m.
Sen. Cornyn Begins His Second Round Of
Questioning With Judge Alito.
Sen. Cornyn is saying that Judge Alito’s
opponents are desperate to defeat him.
Sen. Cornyn is asking Judge Alito if he
knows anything about a witness,
Stephan R. Dujack,
that was removed from the witness list
for the hearing. Sen. Cornyn is reading
an article written by Mr. Dujack that
compares the mistreatment of animals to
the Holocaust. Sen. Cornyn is saying
that is read that statement to point out
the desperation of the Judge’s
opponents. He is saying that the
opponents have stumbled and this is
evidence of their desperation. Sen.
Cornyn is showing a chart that shows how
Judge Alito has answered more questions
that Justice Ginsberg did during her
hearing. Sen. Cornyn is saying to Judge
Alito that he has been very fair and
forthcoming and he believes that the
American people would agree with him.
But Sen. Cornyn is also saying that Judge
Alito has also shown that he understands the
importance of the Judiciary. Sen. Cornyn is
now asking Judge Alito if he thinks he is a
clone of Justices Scalia or Thomas or Judge
Bork and thinks that he is his own judge.
Judge Alito is responding by saying, “I am
who I am” and his record can be determined
by looking at his 15-year record as a Judge
on the Court of Appeals. He is saying that
anyone who reads his opinions that he has
written or joined will see that he is an
independent judge.
5:20 p.m.
Sen. Schumer Questions Judge Alito About
CAP.
Sen. Schumer is asking Judge Alito if he has
thought about particular difficult
situations that may happen to women in
relation to the Thornburg case. He is
asking Judge Alito to think about all the
consequences of his 1985 job application
that the Constitution does not protect a
woman’s right to an abortion. Sen. Schumer
is saying that a strong statement such as
this deserves explanation. Sen. Schumer is
now asking Judge Alito about his membership
in CAP and asking Judge Alito if he
remembers writing a membership check,
receiving the organization’s journal, or
anything to do with it. Judge Alito is
responding that he doesn’t. Sen. Schumer is
saying that he doesn’t understand how he is
a member of several groups, doesn’t remember
being a member of this particular group, and
then put this organization on this job
application. He is wondering why he somehow
plucked this group from others to put on
this application and wonders why this group
was used.
Judge Alito is saying that he deplores
the statements that are associated with
this group and is saying he can’t answer
this particular question because he
can’t remember being a member of the
group and that perhaps it was because of
the particular characteristics of the
job that he is applying for. Sen.
Schumer is saying that there are
unanswered questions here and hopes that
the documents the Committee will receive
will answer these questions. Judge
Alito is responding that the views
associated with this group are not ideas
that he would associate himself with and
deplores these viewpoints.
5:09 p.m.
Sen. Schumer Begins His Second Round Of
Questioning With Judge Alito.
Sen. Schumer is clarifying Judge
Alito’s earlier statement that he
would “keep an open mind”. Sen.
Schumer is saying that this isn’t
news because he doesn’t know of any
nominee that would say they wouldn’t
keep an open mind. Sen. Schumer
said that while Judge Alito has
responded to many questions, he has
not answered nearly enough. Sen.
Schumer is reading a quote of
Justice Thomas pledging he would
keep an open mind and is saying that
many people were surprised by later
rulings by Justice Thomas regarding
a right not choose. Sen. Schumer is
asking Judge Alito about settled law
and is saying that Judge Alito has
said that many issues are settled
law, but has not said that on the
issue of abortion. Sen. Schumer is
not quoting Judge Alito on many
occasions when he said that an issue
was settled law.
Sen. Schumer is now asking Judge Alito if
Roe v. Wade is settled law and is asking why
this is the only issue that Judge Alito will
not tell the Committee members if this issue
is settled law or not. Judge Alito is
saying that is has tried to be as
forthcoming as possible and is saying that
the line that he has tried to draw is
between issues that will come before the
court and will not. Sen. Schumer is asking
about commerce and how he can say that this
issue is settled law when these cases will
come before the court. Judge Alito is
responding that maybe he has been too
forthcoming on some issues, but is saying
that nominees are usually not as forthcoming
on issues that will definitely come before
the court.
4:57 p.m.
Sen. Graham Continues His Questioning Of
Judge Alito.
Sen. Graham is drawing parallels between
Justice Ginsberg's record and Judge Alito's.
He is mentioning writings of Justice
Ginsberg's from before her confirmation to
the Supreme Court concerning abortion.
Sen. Graham is saying that Justice Ginsberg
openly expressed in a paper her position on
abortion . Sen. Graham asks Judge Alito if
Justices should be required to recuse
themselves from cases based on opinions
expressed in articles written before they
joined the judiciary. Sen. Graham is
saying that he does not question Justice
Ginsberg's religion, position, or
patriotism. He is saying that pro-life
members of the Senate never considered
disqualifying Justice Ginsberg based on
these opinions, and he does not believe that
Judge Alito should be disqualified based on
his opinions on the issue. Sen. Graham
is concluding by reading a letter of support
from a former colleague of Judge Alito.
4:48 p.m.
Sen. Graham Begins His Second Round Of
Questioning With Judge Alito.
Sen. Graham is
continuing to question Judge Alito about the
Vanguard case. Sen. Graham says that
the American Bar Association does not
believe Judge Alito's involvement in the
Vanguard case does not reflect poorly on
Judge Alito. Sen. Graham is asking
Judge Alito why he would make the conscious
decision to not recuse himself. Judge
Alito says that he did not make a decision
to not recuse himself, and that he had
nothing to to gain by participating in the
Vanguard case.
Sen. Graham is now
jokingly asking Judge Alito about eating
society's at Princeton. Judge Alito is
explaining what selective eating societies
at Princeton actually are. He is using
this discussion to determine what kind of
diverse company Judge Alito keeps.
Sen. Graham is denoucning the use of "guilt
by association" in the questioning of Judge
Alito.
4:39 p.m.
Sen. Feingold Continues His Questioning Of
Judge Alito.
Sen. Feingold is turning now to the Vanguard
issue. Sen. Feingold is hoping that people
will not get the impression that they can
recluse themselves from an obligation just
because time has passed on an issue. Sen.
Feingold asked if he plans to recluse
himself from future Vanguard cases and Judge
Alito is saying that the code of judicial
ethical conduct does not require him to do
that. Judge Alito is responding that
because there are only 9 Justices, Justices
should not recluse themselves from cases
that they are not required to do so. In his
current position, there is a 3 Judge panel
so if he isn’t on the panel, than another
Judge would be instead.
4:35
p.m. Sen. Feingold Begins His Second Round
Of Questioning With Judge Alito.
After a brief break, Sen. Feingold is
asking Judge Alito to elaborate on the
briefings and practice sessions he had
prior to the hearings and asked the
Judge to prefer some materials and
present to the Committee tomorrow
morning. Judge Alito said he had no
objection to that request. Sen.
Feingold moved onto the topic of capital
punishment and death sentences and is
speaking about several past cases
related this issue. Sen. Feingold is
asking Judge Alito if the law related to
ensuring that criminals have proper
legal representation is headed in the
right direction. Judge Alito is
responding that he agrees with Sen.
Feingold on the importance of ensuring
proper legal representation and is
defending a case in which he ruled that
a defendant had proper representation
and touted the qualifications of the
defense lawyers in this particular case.
Judge Alito added that if a case
relating to this issue would come up
before the SC in the future, that he
would rule on it based on the precedent
that has been set in previous SC cases.
Judge Alito is saying that it is
appropriate that there be a searching
review to ensure that a defendant has
received proper representation.
Sen. Feingold is asking Judge Alito if he
thinks that his presence on the court
instead of Justice O’Connor would change the
court’s direction on this issue. Judge
Alito defended his philosophy and his
intention to follow precedent. Sen.
Feingold is telling Judge Alito that a study
has found his rulings to be more
anti-capital defendant even more than other
Republican appointed nominees and he asked
the Judge to explain his anti-capital
defendant record. Judge Alito is talking
about cases in which he has ruled on both
the side of the government and the defendant
and is arguing that he looks at each case
carefully and has a record that does not
lean toward one direction or another. Sen.
Feingold is asking Judge Alito if he thinks
the selection of jurors is fair and he is
responding that he thinks it is fair and
should be fair. Judge Alito is also saying
that he thinks that elected judges are very
competent and he says that both appointed
and elected judges are, in his opinion, very
capable and skilled. Sen. Feingold is
saying that it appears that Judge Alito has
less of a concern on these issues than
Justice Stevens and Sen. Feingold looks
forward to watching how Judge Alito will
respond to these issues if he is on the
Court. Sen. Feingold is now asking Judge
Alito what is general approach would be to
cases involving the Eight Amendment and
Judge Alito is responding that he would use
set precedent.
3:56 p.m.
Sen. Sessions Begins His Second Round Of
Questioning With Judge Alito.
Sen. Sessions is beginning by thanking
Judge Alito for his patience and work with
the Committee. Sen. Sessions is
discussing the background investigations of
the FBI and Department of Justice, as well
as the assessments of the American Bar
Association and other interest groups.
Sen. Sessions says that these assessments
show that Sen. Sessions is an independent
judge. Sen. Sessions is reviewing cases in
which Judge Alito made rulings on
immigration, civil rights, and the
environment, listing statistics about how
Judge Alito and his panel ruled. Sen.
Sessions is now discussing an article from
the National Journal that he believes
refutes arguments that have been made
against Judge Alito.
Sen. Sessions is now discussing Judge
Alito's role in the deciding the Vanguard
case. Sen. Sessions is reading from a
letter stating that colleagues of Judge
Alito do not believe that Judge Alito, based
on his explanation acted in a deliberate
manner. Sen. Sessions is asking if
Judge Alito has a sense of how Americans
feel about key issues including property
rights, privacy, morality and religion.
Judge Alito says that while he can't comment
on recent cases or cases before the Court,
he says that he can understand how many
Americans feel about these issues as they
affect them personally, daily, and in the
most important ways.
3:44 p.m.
Sen. Feinstein Begins Her Second Round Of
Questioning With Judge Alito.
Sen. Feinstein begins her second round
of questions with the issue Roe v.
Wade. She quotes a statement of Judge
Alito’s that called for the overturning
of Roe. Judge Alito states that Roe has
been upheld a number of times and that
the court may pay due deference to
precedent. Given that, a judge must
approach each case with an open mind.
Does he disagree with anything in a
dialogue she quotes that took place
between Sen. Specter and now-Chief
Justice Roberts during his confirmation
hearing? The quote addresses the how
one would look at Roe and subsequent
cases on the issue of abortion. Judge
Alito agrees that a justice must look at
precedent and respect previous decisions
by the Supreme Court. Furthermore, when
a decision is upheld it is strengthened
as stare decisis. Nevertheless, on the
issue of whether Roe is settled law,
Judge Alito states that a judge must not
come to a case with his mind already
made up on an issue. When Sen.
Feinstein compares the judge’s
conservative answers regarding Roe to
his more open responses to voting
rights, Judge Alito responds that there
is pending litigation that involves some
of the tenets of Roe.
Sen. Feinstein next turns to a case
involving the Clean Water Act, in which a
decision put forward by Judge Alito, as
commentators stated would have gutted the
central premise of the Clear Water Act. The
Supreme Court later heard another case
involving a similar question and came to a
very different conclusion that the 3rd
Circuit decision. Judge Alito stated that
in deference to the Supreme Court decision,
he may decide differently on the case the 3rd
Circuit heard. Sen. Feinstein presses
forward by stressing the need to also pay
deference to Congress’s legislative actions
regarding the environment.
The next issue Sen. Feinstein address is
Terri Schiavo. What is the courts role in
end-of-life issues? Judge Alito replies
that there are a number of levels that would
need to be considered. However, when it
comes to constitutional issues that surround
end-of-life issues, the federal courts are a
proper venue for considering these issues.
For example, the right to decline treatment,
the Supreme Court has rules that that is a
constitutionally protected right.
After asking whether there will be further
rounds, to which Sen. Specter states that
this is a possibility, Sen. Feinstein
concludes her second round of questions.
3:24 p.m.
Sen. DeWine Continues To Question Judge
Alito About Free Speech.
Sen. DeWine is now
bringing up the issue of free speech in
the public arena and his concern that we
are witnessing a shrinking public forum
where citizens can engage in free
speech. Sen. DeWine said that in one
recent case, a Wisconsin woman was
kicked off a bus when she tried to
distribute Bibles on a city bus.
Another example is that in many public
places, individuals who want to hold up
signs have been restricted to specific
zones. These types of restrictions
concern Sen. DeWine. He is now asking
Judge Alito what his view is of
government restrictions on speech. He
wants to know what Judge Alito thinks is
proper under the First Amendment.
Judge Alito is responding that freedom of
speech is vital to the preservation of our
form of government. The Judge is discussing
the different types of forums. There are
private forums, such as someone’s office.
There are also limited public forums, where
people can speak freely but only at
particular times on particular subjects.
Judge Alito said that even in a limited
public forum, the government cannot engage
in viewpoint discrimination.
3:09 p.m.
Sen. DeWine Begins His Second Round Of
Questioning With Judge Alito.
Sen. DeWine is
beginning his remarks by brining up a matter
he discussed yesterday with Judge Alito,
namely, the issue of appropriate deference
by the Supreme Court to Congress. Sen.
DeWine is saying that he is very concerned
about protecting people with disabilities
from discrimination. Congress has passed a
number of laws to protect this segment of
our population. Sen. DeWine is stating
firmly that the American with Disabilities
Act was a landmark piece of legislation
passed by Congress. Sen. DeWine is now
moving to a discussion of the 1999 Olmstead
case.
3:02 p.m. Sen.
Specter Is Reading Letters From The Concerned
Alumni Of Princeton.
Sen. Specter is reading information that was
forwarded to him about the concerns raised about
Judge Alito affiliation with the Concerned
Alumni of Princeton (CAP). Sen. Specter
says that CAP's records do not reflect active
participation in the organization by Judge Alito.
Sen. Specter says that he is surprised that Sen.
Kennedy did not speak with him before he made
requests for the rest of the documents from CAP.
Sen. Specter says that he shares Sen. Kennedy's
concern that the Committee has all the facts
when considering this nomination. Sen.
Kennedy is now saying that he had thought that
as a matter of routine, the Committee would have
had access to the information he is requesting,
and he is glad that the Committee will now have
all the information to consider.
2:51 p.m. Sen.
Kohl Begins His Second Round Of Questioning With
Judge Alito.
Sen. Kohl begins by asking Judge Alito if he
can explain his willingness to answer questions
about certain issues that he believes to be
settled law and his unwillingness to answer
other questions that are more debatable.
Judge Alito says that he finds that he must draw
the line where issues that will realistically
come before the Court are offered as questions.
Judge Alito says that he does not think that he
should offer a position on cases that he will
have to rule upon, either in the Supreme Court
or on the 3rd Circuit Court. Judge Alito
says that if a case that would overturn Roe v.
Wade, he would approach the case in a two part
process. He would first consider the stare
decisis that has amassed over past years
concerning the issue, and would then consider
the merits of the specific case.
Sen. Kohl now moves to the issue of Judge
Alito's record. Sen. Kohl says that he
does not believe that Judge Alito would have
worked on issues under the Reagan Administration
had he not supported the issues and positions of
that Administration. Sen. Kohl now says
that he is concerned that Judge Alito is moving
away from his record. Sen. Kohl is now
asking how Judge Alito reconciles some of the
things that he has said in his past record, and
some of the positions he has taken during the
hearings. Judge Alito says that his
positions have evolved through the years based
on his experiences with the law both in the
courtroom, and also through his work with the
Reagan Justice Department.
2:33 p.m. Sen.
Kyl Begins His Second Round Of Questioning With
Judge Alito.
Sen. Kyl is starting off his questioning by
diving into the CAP issue that a number of
Senators have touched on today during
questioning. Sen. Kyl is clarifying that
Judge Alito may have been a member of CAP
because of concerns regarding ROTC’s future
at Princeton. Sen. Kyl is now asking Judge
Alito if he would take any of the positions
that are included in CAP journal and Judge
Alito said that he would not. Sen. Kyl is
moving his questioning to his tenure as a
Judge. Sen. Kyl is investigating if Judge
Alito rules both for the plaintiff and
defendant in a fair manner, not favoring one
over the other. Sen. Kyl is asking Judge
Alito if he believes that cases having to do
with abortion will come before the court.
Judge Alito is saying that that is likely
and in fact there is a case before the Court
this term.
Sen. Kyl would like Judge Alito to explain the
reason for the rule that judges do not say a
particular view on an issue for issues that
might come before the court. Judge Alito is
saying that this allows Judges to carefully
study the arguments without bias and Judges
shouldn’t decided their opinion on cases before
going through the judicial process. This, Judge
Alito, gives the judicial process the respect
that it has and giving an opinion before the
case is heard and studied would undermine that
process. Sen. Kyl is talking about how critical
it is that “justice is blind” and thinks that it
is something that should be fought for and
preserved. Sen. Kyl is saying that Justice
Blackman, who wrote Roe v. Wade, was quite
willing to throw off precedent and Sen. Kyl
quoted Justice Blackman as saying that he wanted
no part of deciding cases that relate to death,
referring to death penalty cases. Sen. Kyl is
now submitting a letter written by Sen. Bill
Frist who denounced CAP and said that Judge
Alito has his complete confidence and should be
considered on the basis of his actions. Sen.
Kyl congratulated Judge Alito for being “quite
forthcoming” and for testifying with great
though and knowledge on his work and the law in
general.
2:22 p.m. Sen.
Biden Durbin Tries To Clarify Earlier Statements
Made By Sen. Coburn.
Sen. Durbin is taking two minutes to make a
point. He is saying that if Judge Alito did
change his mind on the issue of abortion
for, as Abraham Lincoln said, “it is better
to be right some of the time than wrong all
the time.”
2:17 p.m. Sen.
Biden Begins His Second Round Of Questioning
With Judge Alito.
Sen. Biden begins his second round of
questions with the Casey case. Yesterday,
Judge Alito said that he agreed with Justice
O’Connor in that a judge should look at the
group affected, not the group not affected.
Yet in Judge Alito’s dissent in this case,
he said that too small a percentage of women
were affected by this law to make a
difference. How does Judge Alito reconcile
those two
positions? Judge Alito replied that he
looked at the group that would be affected
and then at the group that would be barred
from abortions – that was his understanding
of O’Connor’s standard. Turning to Alito’s
reference to the Thornburg case in his
opinion, Sen. Biden discusses the undue
burden standard and how that applies to
those who were affected. There is the issue
that the absence of health exemption was an
undue burden, or the question of what a
doctor or clinic must tell a woman seeking
an abortion. Would not then requiring a
woman to inform her husband, especially when
she fear retribution, abuse, or other ill
outcome be an undue burden? Even though the
small percentage of women would be affected
by such a law, it is still an undue burden,
and this was the position taken by his
colleagues and the Supreme Court.
Next Sen. Biden turns to the Hibbs case, which
involved employers giving leave for taking care
of a family member. The issue of concern was
that women were given more leave, thereby
reinforcing the stereotype that women are the
caretakers and felt more pressure to take time
off from work. The other case that Sen. Biden
discusses involved giving equal sick leave to
men and women. When Congress enacted the Family
Leave Act, it expressly stated that leave
policies should not penalize a woman for
pregnancy-related disabilities.
Sen. Biden moves to the issues surrounding Judge
Alito’s involvement with CAP. Donning a
Princeton baseball cap, Sen. Biden says is now
proud to wear this hat because Princeton
currently has a high percentage of minorities,
and almost half of the ’05 graduating class is
female. Given Judge Alito’s intelligence and
background, Sen. Biden is perplexed by the
judge’s decision to include CAP on his resume
and why he would belong to the group.
1:05 p.m.
The Committee Recesses For Lunch And Will
Reconvene At 2:00.
1:02 p.m. Sen.
Grassley Questions Judge Alito About His
Judicial Philosophy.
Sen. Grassley is now
addressing the claim, made by some, that Judge
Alito is “way out of the mainstream”. Senator
Grassley is stating that in the more than 4,800
cases Judge Alito heard while serving on the
Third Circuit, he only dissented in 79 cases.
Sen. Grassley does not think there is anything
extraordinary about the number of Judge Alito’s
dissents.
Senator Grassley is now
taking up the issue of legislative history. He
is asking Judge Alito what his opinion of
legislative history is and how important it is
to him as a judge.
In responding, Judge Alito
is saying that he has often looked to
legislative history when examining federal
statutes. Judge Alito is explaining that he
begins with the text of the statute, but
acknowledges that sometimes there are
ambiguities. And in that case, Judge Alito
believes it is appropriate to look at the
history, although it should be done with
caution. He is affirming that examining
legislative history does have its place.
12:53 p.m. Sen.
Grassley Questions Judge Alito About One Person, One
Vote.
Sen. Grassley is asking Judge Alito to clarify
his views on many principles. He is asking him to
expand on what Judge Alito meant by saying no one
was above or beneath the law. In responding Judge
Alito is stating that every person has equal rights
under the law in this country. That includes people
who are poor, those who hold no prestigious
position, and so forth. Sen. Grassley then went on
to ask Judge Alito whether or not he believes in the
principle of one person, one vote. In responding,
Judge Alito confirmed that he does. He believes it
is a fundamental part of our constitutional law.
12:49 p.m. Sen.
Grassley Begins His Second Round Of Questioning With
Judge Alito.
Sen. Grassley is saying that
“many horses have been beaten to death” in this
hearing, especially by members on the other side. He
thinks Judge Alito is getting hit hard by his
opponents and that they are trying to “sack” him and
not doing a very good job of it. Sen. Grassley is
saying that in his opinion, Judge Alito has been
responsive, forthright and thoughtful. He believes
Senator Alito seems like someone who is very sincere
and modest. Sen. Grassley is saying that it is
unfortunate that some are misrepresenting his record
on the federal bench. Sen. Grassley is claiming that
Judge Alito has ruled in favor of minorities and has
ruled against the government in favor of “the small
guy” despite what other members of the Judiciary
Committee have alleged.
12:41 p.m. Sen. Kennedy Continues His Second Round
Of Questioning With Judge Alito.
Sen. Kennedy is now questioning Judge Alito about
his membership of the Concerned Alumni of Princeton
(CAP). Sen. Kennedy is clarifying why Judge Alito
thought he may have joined the organization and
Judge Alito is saying that he has racked his brain
and can only come to the conclusion that he would
have joined the organization because of his interest
in ROTC on the Princeton campus. Sen. Kennedy is
now reading from several articles from a journal
that is put out by the CAP organization. The
articles editorialize on women, minorities, and
homosexuals. Sen. Kennedy is asking Judge Alito if
he had read these articles or would align himself
with these opinions. Judge Alito is responding that
he has not read these articles and certainly does
not agree with the statements in the articles.
Sen. Kennedy is now questioning Judge Alito on an
article in the Wall Street journal that
congratulates the President of Princeton University
for denouncing CAP. This article appeared around
the time that Judge Alito is said to have joined the
organization. Judge Alito is saying that he did not
read the article and did not identify with anything
that has to do with this organization. Judge Alito
is saying that he does not consider these views
conservative and his only issue with the
Administration was his desire to keep ROTC on the
Princeton Campus.
Sen. Kennedy telling Judge Alito that it appears
that from 1983-1985 that the ROTC issue was an dead
issue because it was secure on campus and popular
among students. This is just about the time Judge
Alito was submitting this information on a job
application Sen. Kennedy is saying. Judge Alito is
saying that he remembers that the status of the ROTC
program on the Princeton campus was a continuing
controversy. Sen. Kennedy is concluding that Judge
Alito’s testimony and explanation of his membership
in CAP is troubling to him. Sen. Kennedy is asking
Sen. Specter to have a vote to issue a subpoena to
retain some documents that relate to Judge Alito’s
membership in CAP. Sen. Specter is responding that
he has not received a letter. Sen. Kennedy is
asking that the Committee go into Executive Session
to issue this subpoena. Sen. Specter is saying that
he has heard this request and will consider it and
would like to continue to questioning.
12:24 p.m. Sen. Kennedy Begins His Second Round Of
Questioning With Judge Alito.
Sen. Kennedy began his questioning this morning with
the Vanguard topic. Sen. Kennedy is telling Judge
Alito that the pledge he made in front of the
Committee to recuse himself of any cases in relation
to Vanguard is something that should be taken
seriously, and not something that has a time limit.
Sen. Kennedy is angered that some of his colleagues
on the committee have suggested that the pledge is
like a political pledge that one is not bound by
during one’s service. Sen. Kennedy is asking the
Judge how long he thinks that he was bound by the
pledge and when he thought he was no longer bound.
Judge Alito is responding that he did not think that
the pledge expired and was committed as he is now to
not do anything unethical. He said that the pledge
refers to the initial period of service and he does
not believe that 12 years after the pledge was made
would still be considered the initial period of
service.
12:18 p.m. Sen. Hatch Continues Speaking To Judge
Alito About The Vanguard Case.
Sen. Hatch next moves onto the issue of recusal and
the cases heard by Judge Alito involving Vanguard.
He further states that in his view, Judge Alito
simply made a mistake and that, according to ethics
panels, it was not even that grave a mistake. Sen.
Hatch continues criticizing the opponents of Judge
Alito's nomination and their criticism as
contradictory. He asks Judge Alito to further
explain his dissents in cases. Judge Alito responds
that the first principle he follows is working to
ensure there is a majority opinion and therefore a
decision in the case. The second principle he
thinks is important is respecting the arguments made
by fellow judges.
12:14 p.m. Sen. Hatch Begins His Second Round Of
Questioning With Judge Alito.
Sen. Hatch begins his second round of questions by
following up on Sen. Durbin’s line of questions
about stare decisis. He states that he believes
that Judge Alito has been very consistent on the
issue of stare decisis, contrary to Sen. Durbin’s
point. Moving on to “attacks by left wing groups,”
Sen. Hatch wants to provide Judge Alito to counter
the statements and arguments made by these groups.
Sen. Hatch further claims that these groups only
pick out those fact that’s make their point rather
than looking at the full context of the issues.
Judge Alito responds by discussing a particular case
in which the other appellate judges agreed with
him. In this case, the judges had to look at
whether there was any discrimination in the family
leave policy of a company. They determined that
there was not enough evidence of discrimination.
Sen. Hatch next turns to the interchange between
Sen. Leahy about whether the President can immunize
individuals from prosecution and a statement that
was circulated saying Judge Alito was unresponsive.
Judge Alito states again that his position on this
issue is the President must follow the Constitution
and all laws.
In
response to criticisms that litigants will not
receive fair hearings, Judge Alito states that he
believes that that is an unfair characterization and
that he approaches cases with an open mind.
Sen. Hatch moves on to an number of other cases in
which he believes that Judge Alito has been unfairly
criticized, as well as those in which Judge Alito
wrote opinions in favor the individual.
11:57 a.m. Sen.
Leahy Is Questioning Judge Alito About Presidential
Signing Statements.
Sen. Leahy is asking Judge Alito what weight he
believes the Supreme Court should give to a
Presidential signing statement. Judge Alito
says that he does not see a connection between a
unitary executive and the weight that should be
given to a signing statement. Sen. Leahy is
now asking if Judge Alito if he believes that the
President has the authority to force independent
agencies to cease investigations. Judge Alito
says that he does not believe that he has ever
challenged the authority of independent agencies.
Judge Alito says that Congress can place
restrictions on the removal of federal officers
provided it does not impede the executive authority
of the President. Sen. Leahy is asking if
Judge Alito believes the President has the authority
to curtail investigations headed by the Department
of Justice. Judge Alito says that he does not
believe the President is above the law, and that one
would have to look at the specific facts of the
case. Sen. Leahy is now asking Judge Alito if
the President could authorize intelligence agencies
to do something that is not allowed by statute.
Judge Alito says that statutes are binding on the
President as well as everyone else, and that judges
would need to act in an independent and objective
fashion when ruling on such a case.
11:41 a.m. Sen.
Leahy Begins His Second Round Of Questioning With
Judge Alito.
Sen. Leahy begins by expressing his concern that
Judge Alito is retreating from parts of his record.
Sen. Leahy returns to the issue of presidential
power. Sen. Leahy says that when Congress acts
to restrain the president's power, it is, in fact,
at it's lowest. He turns to the Hamdi case,
and asks Judge Alito his perspective on which of the
Court's opinions were correct. Justice
O'Connor wrote the opinion of the majority, and the
first question she asked was whether it was legal to
hold Hamdi in the case. Judge Alito says that
Justice O'Connor concluded that the authorization of
the use of force did not authorize detainment.
Sen. Leahy asks Judge Alito whether he believes in
the ruling of the Court, or the dissent in the Hamdi
case. Judge Alito says that he believes the
power in this case is divided between the President
and the Congress, and that he does not believe that
the President, when given the authorization to use
force, is not given a blank check.
11:18 a.m. Sen.
Specter Questions Judge Alito About Habeas Corpus.
Sen. Specter is now moving to the issue of the
ability of the Supreme Court to hear cases
concerning habeas corpus. Sen. Specter asks
Judge Alito where he stands on the issue of the
Congress being about to take away the jurisdiction
of the Supreme Court in cases of habeas corpus.
Judge Alito responds by saying that there are court
cases that speak to that issue.
Sen. Specter is now asking Judge Alito about the
issues of cameras in the Supreme Court. Sen.
Specter says that Congress is able to talk about key
issues, but the Court makes the final decisions in
these key issues. Sen. Specter says that the
Congress has the ability to oversee administrative
aspects of the Court, including quorums, start
dates, and number of members. However, Sen.
Specter asks, why shouldn't the Supreme Court be
open to the public through television. Judge
Alito says that he participated in the debate as to
whether the 3rd Circuit should allow cameras in
their courtroom, and he was supportive of the
measure in the 3rd Circuit. Judge Alito also
says that as this will likely come before the Court,
and he will not take a position on the issue at this
time.
11:10 a.m. Sen.
Specter Begins His Second Round Of Questioning With
Judge Alito.
Sen. Specter is asking Judge Alito if he believes
it is appropriate for the Supreme Court to declare
acts of Congress unconstitutional based on
Congresses method of thinking. Sen. Specter
says there has been rulings that undercuts the
authority of Congress, and Sen. Specter says that we
are seeking to attaining equilibrium among the three
branches of government. Judge Alito says that
he believes that all the branches of government are
equal, and that he would never suggest that judges
have superior reasoning than Congress.
Sen. Specter is moving to the Americans With
Disabilities Act and two rulings that govern
congruence and proportionality. Sen. Specter
asks Judge Alito if he can explain how Congress is
to know what laws will be overturned by the Supreme
Court because they exceed what the Supreme Court
believes is appropriate under congruence and
proportionality.
10:58 a.m. Sen.
Coburn Questions Judge Alito About Protecting The
Constitution.
Sen. Coburn continues his questions by turning to
the Constitution and stating that it is a document
meant to protect the weak. Does Judge Altio agree
on the importance of this role of the document?
Judge Alito replies by referring to his parents’
background as immigrants and what he learned from
them. He states that he also considers what he
children might face and how the judicial decisions
may affect them. With that response, Sen. Coburn
concludes his first round of questions.
10:55 a.m. Sen.
Coburn Begins Questioning Judge Alito.
Sen. Coburn begins his first round of questions
by submitting a number of documents and
statements to the record, including a quote from
someone explaining the role and stance of the
Concerned Alumni of Princeton (CAP). He then
turns to a discussion of stare decisis, and its
role in the American judicial tradition. Our
constitution does not make a reference that the
courts must follow stare decisis, but rather we
follow it because it is deeply ingrained in our
legal traditions. On the issue of using foreign
law in court decisions, Sen. Coburn asks if this
is proper. Judge Alito states that it would not
be proper to look to foreign laws in
interpreting the U.S. Constitution.
Furthermore, to do so invites a number of
different technical questions such as deciding
which foreign laws to look at, considering how
these countries set up their judiciary, and
considering the context of that foreign law.
Regarding Judge Alito’s statements in his 1985 job
application, Sen. Coburn states that he believes a
person can change their mind.
Moving on to the issue of abortion, Sen. Coburn
talks about the health exception that states much
abide by and that this has proved difficult to
follow. Sen. Coburn believes that Roe v. Wade was
decided incorrectly and submits for the record a
number of statements by doctors on this issue.
Sen. Coburn next moves to Executive Power and
responds to critics who use the argument that Judge
Alito will be replacing a swing vote. Sen. Coburn
asks whether there is any rule or requirement that
the nominee must fit the philosophical mold of the
justice he is replacing. Judge Alito replies that
there is no such requirement, that the Constitution
gives the President the authority to choose his
nominee, and that if he is confirmed, he will be
himself.
Sen. Coburn next asks why Judge Alito would want to
be a Supreme Court nominee. Judge Alito lists his
various public service positions, including his
current position as an appellate judge. He feels
that his work as a judge is what he does best and he
looks forward to working on the Supreme Court as a
way of furthering his service and participation in
the US Judiciary Branch. He also strongly believes
in the importance of judicial restraint.
10:35 a.m. Sen.
Brownback Questions Judge Alito About Religious
Displays.
Sen. Brownback is asking Judge Alito if he
believes religious displays in public places are
acceptable. Judge Alito is discussing the
several cases that on which the Supreme Court has
ruled concerning religious symbols. Sen.
Brownback asks Judge Alito if he would prefer a
robust town square rather than a bare town square.
Judge Alito says that he believes such displays are
consistent with the establishment clause, and has
been backed by other rulings by the court.
Sen. Brownback is now questioning Judge Alito
about a case in which a student was prevented from
expressing his beliefs through his school work.
Judge Alito says that it is important to protect not
just free speech in the context of public speech,
but also in the context of religious speech.
Sen. Brownback is now moving to the issue of
checks and balances. Sen. Brownback is now
asking Judge Alito what he believes the power of the
Congress is in defining the jurisdiction of the
Supreme Court. Judge Alito says that the
Congress has the power to define the appellate
jurisdiction of the Supreme Court, but the scope of
the Supreme Court has been debated heavily over the
years. Sen. Brownback says that he believes
the Court has been pushed into consider more
political issues in recent years, including the
issues of abortion and marriage. Sen.
Brownback is now asking about the issue of defining
marriage, and expresses concern about state-to-state
marriage laws, and the recognition of marriage
across state lines. Judge Alito says that a
challenge to the Defense of Marriage Act would call
into question the scope of the doctrine, and he
believes that there are differing arguments
supporting both sides. Judge Alito also says
that as an issue that may likely come before the
Court, these would be arguments that would need to
be considered.
10:20 a.m. Sen. Brownback Begins Questioning Judge
Alito.
Sen. Brownback opens but
submitting several letters in support of Judge Alito
to the Committee's record. Sen. Brownback has
asked Judge Alito if he believes that Plessy v.
Ferguson was an incorrect ruling by the Supreme
Court. Judge Alito states that he does believe
that it was wrong. Sen. Brownback now has
moved to the topic of stare decisis. He says
that Brown v. Board of Education overturned Plessy
v. Ferguson, and had the Justices relied on stare
decisis, Plessy would never have been overturned.
Judge Alito says it was important that the Court
recognized the problems with Plessy.
Sen. Brownback is now moving to
the issue of Roe v. Wade. He is exploring
whether Roe is settled law, and is offering several
quotes suggesting that Roe is not settled law, but
rather that the abortion controversy is better left
to the political process. Sen. Brownback is
asking Judge Alito how he generally views the
Constitution in light of this issue. Judge
Alito says that he believes the Constitution has
it's own meaning, and that it is the job of a judge
to interpret the Constitution, not add or subtract
from it. He says that he thinks it is
important to recognize that the Constitution is
different from statues in several situations.
He says that the Constitution is meant to endure
through time, and therefore it requires examination
and interpretation with some elasticity.
10:05
