http://www.washingtonpost.com/wp-dyn/conte...0801938_pf.html

Democrats Query Nominee On Ethics
At Issue Is Alito's Failure to Recuse Himself Twice

By Charles Babington
Washington Post Staff Writer
Thursday, November 10, 2005; A09



Senate Democrats are pressing Supreme Court nominee Samuel A. Alito Jr. about his rulings on cases that involved financial companies in which he had investments, a sign that ethics questions may play a role in his confirmation hearing.

In letters and private meetings this week, several Democratic senators asked Alito for fuller explanations of why he ruled, as a federal appellate judge, on cases regarding Vanguard and Smith Barney Inc. after promising to recuse himself from those cases. Alito had at least $390,000 in Vanguard mutual funds when he ruled in a 2002 case that favored the company. He also ruled in a 1996 case involving Smith Barney, which was his brokerage firm.

Alito has said that a court computer system failed to remind him to step aside in the Vanguard case. And the White House has argued that the court rulings could not have affected his personal finances in any meaningful way. Democrats concede that point, but say they are troubled that the nominee failed to withdraw from the cases, as he had said he would, to avoid any possible conflict of interest.

The Senate Judiciary Committee's eight Democrats yesterday sent a letter to the chief judge of the Court of Appeals for the 3rd Circuit, where Alito sits, asking for details of the Vanguard case. The request includes "any communication from or to the White House, the Justice Department (including the FBI), or Judge Alito, or anyone else on their behalf, in respect to the reasons why Judge Alito failed to recuse himself, . . . including the recent White House statement regarding a computer failure."

On Tuesday, the committee's most senior member, Edward M. Kennedy (D-Mass.), wrote to Alito asking for an explanation. A background paper issued by Kennedy noted that "ethical issues" helped derail Abe Fortas's bid to become chief justice in 1968 and Clement Haynsworth's 1969 nomination to be an associate justice.

Two Senate Democrats who met with Alito yesterday said they were not fully satisfied with his explanation of the Vanguard matter. Addressing reporters, Sen. Kent Conrad (D-N.D.) said he told Alito he was troubled by the case, and Alito's "response was he just didn't focus on it, that it was a very minor amount [of money involved], that the issue with Vanguard would have no effect at all on his holdings, which is clearly true."

Conrad said he told Alito, "You are ultimately the check on whether or not you kept your pledge. You indicated you would recuse yourself, and then did not." On balance, Conrad said, he was very impressed with Alito. "He got off to a very good start with me," Conrad said.

Sen. Charles E. Schumer (D-N.Y.) said Alito told him about the court's computer glitch, "but there are a few things you have to check out. A part of it relates to how the 3rd Circuit works in terms of telling people when to recuse themselves."

Alito's backers say Democrats are focusing on the recusal question because they are having little success challenging his qualifications or judicial philosophy. Some law professors have written the Judiciary Committee defending his role in the Vanguard case. "In my opinion Judge Alito handled it quite properly, in correcting a situation in which he can be said to have made a mistake about recusal," wrote University of Pennsylvania law professor Geoffrey C. Hazard Jr.

When the Judiciary Committee confirmed Alito to the appellate court in 1990, he promised in writing to disqualify himself from any cases involving Vanguard or Smith Barney. But in 2002, he and two other judges ruled in Vanguard's favor by dismissing a complaint that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the money in them. When the woman complained, the court set aside the judgment and had another panel of judges hear the case.

http://www.washingtonpost.com/wp-dyn/conte...0902073_pf.html

http://americablog.blogspot.com/2005/11/al...eeping-his.html

http://www.washingtonpost.com/wp-dyn/conte...5111002188.html

http://www.boston.com/news/nation/washingt...ionment?mode=PF

http://www.nytimes.com/2005/11/17/politics.../17confirm.html

Debate in Senate on Alito Heats Up Over '85 Memo

WASHINGTON, Nov. 16 - The debate over the Supreme Court nomination of Judge Samuel A. Alito Jr. escalated into a full-fledged fight in the Senate Wednesday as top Democrats sounded new alarms about his approach to the law and Republicans warned that any effort to block a vote on him would be "outrageous."

Partisans on both sides of the nomination were reinvigorated by the disclosure this week of a 1985 memorandum from Judge Alito when he was a member of the Reagan administration and was seeking a promotion. In the memorandum, he professed his strong support for a conservative legal approach to abortion, affirmative action and limits on federal power over the states.

"A picture of Sam Alito is emerging that may explain why the right wing is popping champagne corks," said Senator Harry Reid of Nevada, the Democratic leader, taking a sharply critical tone in his first speech about the nomination on the Senate floor. "We don't have to guess whether Judge Alito's description of himself in that memo would predict what kind of judge he would be. For the past 15 years, Judge Alito has been one of the most conservative federal judges in the country."

Mr. Reid's criticism was quickly followed by floor statements from Senator Edward M. Kennedy of Massachusetts and Senator Charles E. Schumer of New York, both prominent Democrats on the Judiciary Committee. They spoke a day before a coalition of liberal groups is expected to announce plans for a national television advertising campaign opposing confirmation.

A conservative group, Committee for Justice, is expected to announce Thursday its own radio and television campaign attacking one of the leading liberal groups, People for the American Way, for its stands on issues like same-sex marriage, flag burning and the recitation of "under God" in the Pledge of Allegiance.

Mr. Reid also took aim at a vow by Senator Bill Frist of Tennessee, the Republican leader, that if Democrats stopped Judge Alito's nomination with a filibuster - blocking the 60 votes needed under Senate rules to end debate - he "will not hesitate" to deploy a procedural tactic to eliminate the 60-vote requirement, a move known as "the nuclear option."

"If members of the Democratic minority persist in blocking a vote on Alito's nomination, the Senate will have no choice," Mr. Frist wrote in an opinion column published on Nov. 9 in The Chicago Tribune.

Mr. Reid fired back Wednesday in his floor speech. "The majority leader should put his sword back in its sheath," Mr. Reid said, calling Mr. Frist's warnings "idle threats." It is "silly" to debate the idea two months before confirmation hearings, he said.

Still, Mr. Reid has refused to rule out a filibuster, and the coordinated floor speeches also laid the groundwork for the unified opposition that a filibuster would require.

"It sounds like the fight is on," said Senator John Cornyn, a Texas Republican on the Judiciary Committee.

Mr. Cornyn said Judge Alito's 1985 memorandum should be irrelevant to his confirmation. "That is the whole point," the senator said. "Judges aren't supposed to impose their personal views from the bench, and I believe he has got a demonstrated track record of not doing so."

Senator Kay Bailey Hutchison, Republican of Texas, said on the floor that the Democrats had implied a threat to filibuster and called it "outrageous." She defended Judge Alito's devotion to a neutral reading of the law, apparently referring to his 1985 memorandum to argue that "he has even gone against what are his stated personal beliefs to adhere to precedent."

In his floor speech, however, Mr. Schumer said that confirmation was far from "a foregone conclusion" and that he found a "troubling pattern" in Judge Alito's decisions.

"In case after case after case, Judge Alito gives the impression of applying meticulous legal reasoning, but each time he happens to reach the most conservative result," Mr. Schumer said.

He cited Judge Alito's rulings in cases involving the scope of federal regulatory power, police searches, sex and race discrimination claims, and abortion rights.

"Every Supreme Court nominee has a high burden," Mr. Schumer said, adding that "for Judge Alito, that burden is triply high" in part because he would succeed Justice Sandra Day O'Connor who has been the court's swing vote on social issues.

Mr. Kennedy expressed concern that in his 1985 memorandum Judge Alito had cited as a major influence Barry Goldwater's 1964 campaign, which Mr. Kennedy said "featured strong opposition to civil rights." For the 20 years before Judge Alito wrote that memorandum, the senator said, "he had been a dedicated right-wing advocate."

Steve Schmidt, a spokesman for the White House, dismissed the accusations as predictable, and said that they "distorted Judge Alito's written opinions to such a degree that they are no longer recognizable."

Judge Alito, meanwhile, continued to face questions about his 1985 memorandum in his meetings with senators, and on Wednesday he met some skepticism.

"He said he was 35 when he wrote that," said Senator Joseph R. Biden Jr., Democrat of Delaware, after meeting with the judge. "I pointed out I had been a senator for five years when I was 35. No one says to me, 'Well, what you said in 1974 as a senator we can just forget.' "

Senator Olympia J. Snowe of Maine, one of the handful of Republicans who support abortion rights, said Judge Alito "did not repudiate" the memorandum. She said he had sought to reassure her by acknowledging that the court had affirmed the essential holding of the landmark abortion rights case Roe v. Wade many times since then.

How much he would respect those precedents "is the major question," Ms. Snowe said, adding that she would vote against him if she thought he would overturn the Roe decision.

Let's see. We're not supposed to worry about his stand on abortion because, "... it was just a job application..." We're not supposed to worry about his views on affirmative action because, "... it was just a job application..." and now we're not supposed to worry about his views on apportionment because, "... it was just a job application..." At what point in this vetting process are we supposed to worry? Am I a little too moonbatty, or do I see an agenda pattern here?

Isn't lying on your job application enough to get a person fired in most places? And isn't he currently applying for another job? If we couldn't trust what he said to get hired 20 years ago, why should we trust it now? Especially when his hoped-for job will effect all of us for decades to come.

As far as I'm concerned he is a Corporatist. Thinks women need a note from hubby. Doesn't believe in Civil Rights, and is a liar!

Perfect Candidate for the Supreme Court of the Land!

Yeah, I'd rather he be the head of FEMA...

http://www.boston.com/news/nation/washingt...e_brief?mode=PF

It's not only Roe v Wade that America should be worried about when Alito ever gets to the Supreme Court. It's arguable as to whether he is able to judge, with fair conscience and for the good of America, and not for his self interest and his preferred groups' interest.

Don't forget that Judge Samuel A. Alito Jr. ruled in a 2002 case in favor of the Vanguard mutual fund company. At that time he actually owned more than $390,000 in Vanguard funds. He even dared complained later about an effort to remove him from the case - revealed in court records, despite an earlier promise to recuse himself from cases involving the company.

Questions Arise on Potential Alito Financial Conflicts
Totenberg reports on Supreme Court nominee Samuel Alito's failure to disqualify himself from a mutual fund case in which he had a possible conflict of interest.

http://www.npr.org/templates/story/story.php?storyId=4990865

Plaintiff alleges Alito conflict
Says judge should have recused self
By Sarah Schweitzer and Michael Kranish, Globe Staff | November 3, 2005

http://www.boston.com/news/nation/washingt...alito_conflict/

Note: As to the ad hitting CNN lately - with a whole lot of diverse 'judicial' faces in praise of Alito - won't work when those faces only belong to Fundamentalist Christian Right members who don't care about doing what's right for all Americans except for their rights at misinterpreting the Bible.

From Dkos. But I have also included the entire Daily Princetonian article he quotes.

http://www.dailykos.com/storyonly/2005/11/23/112524/20



And here is the entire article from the Daily Princetonian:

http://www.dailyprincetonian.com/archives/...ion/13901.shtml

More Alito and his participation in CAP, from The Nation:

http://www.thenation.com/doc/20051212/press

The NY Times has caught on to this story.

http://www.nytimes.com/2005/11/27/politics...l1/27alito.html

'86 Alito Memo Argues Against Foreigners' Rights
Work for Justice Dept. Points to Views That May Affect Anti-Terrorism Rulings on High Court

By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Tuesday, November 29, 2005; A04



As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI effort in the 1980s to collect from Canadian authorities fingerprint cards of Iranian and Afghan refugees living in that country.

The program to collect background information was constitutional, Alito wrote in a January 1986 memo to the FBI director. And because the refugees were nonresident immigrants of a third country, he reasoned, the FBI could disregard court decisions that prohibited it from spreading "stigmatizing" information about citizens.

With the Supreme Court scheduled to hear a major case this term involving the Bush administration's policy of trying "enemy combatants" in military tribunals, Alito's views of the FBI's old anti-terrorism fingerprint program have resonance today, reflecting what legal experts said is a broad and aggressive view of the law.

The memo on the rights of immigrants was among 120 documents from Alito's 16-month tenure as a deputy assistant attorney general in the Office of Legal Counsel that the Justice Department released yesterday in response to a Freedom of Information Act request by The Washington Post and other news organizations. The agency withheld 70 other documents, asserting that they were exempt from disclosure on grounds of privacy, attorney-client privilege or rules relating to classified information. Names and other details were blacked-out on some documents that were released.

Still, the memos, letters and other papers, most of them written by Alito himself, provide the most vivid picture available to date of the future nominee's role and views from December 1985 to March 1987, when he worked on legal matters as a high-ranking political appointee during President Ronald Reagan's second term. He would go on to become U.S. attorney for New Jersey and, later, an appeals court judge.

His writings show Alito in sync with the philosophy of the Republican administration of which he was a part, staking out strong stances on aggressive law enforcement and on states' rights. The views he expresses also could be construed as paralleling those of the Bush administration as it has pursued its campaign against terrorists, legal experts said.

The current administration has contended, for instance, that al Qaeda and Taliban detainees held at the U.S. naval base in Guantanamo Bay, Cuba, had no right to have their case heard by a U.S. judge. That is in part because, like the Afghan and Iranian refugees in Canada about whom Alito wrote, the recent detainees were not on U.S. soil. That view was rejected last year by a divided Supreme Court.

In his 1986 memo, Alito cites a 1950 Supreme Court case to support the contention that nonresident immigrants of other countries have "no due process rights" under the Constitution and a 1970 case that he said suggests illegal immigrants in the United States have limited constitutional rights.

Martin Redish, a constitutional law professor at Northwestern University Law School, said that view could also be used to justify a current administration policy under which the CIA is interrogating suspected terrorists in a covert prison system in Eastern Europe and elsewhere.

Conservative constitutional analyst Bruce Fein, who served in the Reagan administration with Alito, said that by the time Alito wrote the memo the Supreme Court had ruled that school-age illegal immigrants had a right to a public education.

"He seems to be saying that there is no constitutional constraints placed on U.S. officials in their treatment of nonresident aliens or illegal aliens. Could you shoot them? Could you torture them?" Fein asked. "It's a very aggressive reading of cases that addressed much narrower issues."

On other law enforcement issues, Alito also took a pro-government approach. In a January 1986 memo, Alito expressed several concerns about ethics guidelines for prosecutors that had been proposed by the D.C. Bar Association, saying they would impose "unworkable burdens" on lawyers responsible for bringing criminals to justice.

In another memo a few months later, Alito cited a loophole he said would allow IRS attorneys investigating taxpayers to get around an American Bar Association rule that prohibited lawyers from secretly recording conversations.

In late 1986, Alito also suggested that he favored allowing law enforcement agencies to use "message-switching" technology banned by Congress, in which they intercepted computer messages, stored them and relayed them to the unsuspecting intended recipient. He said that it was unconstitutional to allow legislative committees to approve of this technique but went on to say: "We would be happy to assist you in drafting proposed legislation that would authorize message switching."

Alito displayed his concern for states' rights in a memo the following year to John R. Bolton, at the time an assistant attorney general and now U.S. ambassador to the United Nations. In the 1987 memo, Alito cautioned about aspects of an agreement on universal children's rights that the State Department was negotiating with the U.N. Commission on Human Rights.

Alito said that provisions in the U.N. document "will undertake to provide broad protections for children," such as free care of disabled children and free primary education, that are not guaranteed by the federal government. "Unless the federal government actually intends to undertake these responsibilities on a national level (and we would vigorously oppose such an undertaking on federalism grounds) we believe that the Department of State should make clear in negotiations that it is unlikely" the United States would agree to such terms and "their fulfillment will be at the discretion of the states." And he said the U.N. document would conflict with laws in some states by forbidding death sentences for criminals younger than 18 -- a practice recently outlawed by the Supreme Court.

At other points, the writings show Alito protecting the political interests of the Reagan White House. In a March 1987 memo, he disagreed with an earlier opinion from the Office of Legal Counsel, which had concluded that it was improper for people who did work at the White House without a government salary to be paid by national political organizations. Because many White House workers already have an "acknowledged and accepted partisan political bent," he wrote, "it strikes us as counterintuitive to suggest that an objectionable conflict of interest" would arise if they were paid by a political group.

http://www.washingtonpost.com/wp-dyn/conte...2801849_pf.html

Boy, even Bruce Fein calls Alito's reading "aggressive". And I thought he was being chariitable when he said that.

Posted on Tue, Dec. 06, 2005

Administration objects to story describing Alito as conservative

By Ron Hutcheson

Knight Ridder Newspapers



WASHINGTON - The Bush administration is mounting an aggressive effort to counter a Knight Ridder story that described Supreme Court nominee Samuel Alito as a committed judicial conservative.


The administration's response - delivered separately Tuesday by the White House and the Justice Department - reflects its determination to defend Alito and its sensitivity to the "conservative" label for him.


The attack came after Senate Democrats circulated Knight Ridder's assessment of Alito's judicial record for possible use against him at his confirmation hearings next month.


The 2,500-word Knight Ridder analysis, based on 311 opinions by Alito during his service on the 3rd Circuit Court of Appeals, concluded that he "has worked quietly but resolutely" to advance his conservative philosophy on a host of legal issues.


"Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business," reporters Stephen Henderson and Howard Mintz wrote.


The reporters also concluded that Alito "rarely supports individual rights," shows "a strong deference to police authority" and is extremely skeptical about claims of racial discrimination. Henderson covers the Supreme Court for Knight Ridder. Mintz, a reporter for the San Jose Mercury News, a Knight Ridder paper, worked on the Alito project during a stint in Washington.


Administration officials said the story unfairly cast the Supreme Court nominee as a conservative ideologue.


"His 15-year record on the 3rd Circuit shows him to be a mainstream, fair, thorough judge," Assistant Attorney General Rachel Brand said in a C-SPAN interview devoted to her critique of the Knight Ridder analysis.


Brand, whose duties include shepherding judicial nominations through the Senate, rejected the conservative label for Alito.


"The term conservative means different things to different people. A judge is supposed to apply the law, not make it," she said.


John Nowacki, senior counsel in the Justice Department's Office of Public Affairs, also objected to the Knight Ridder analysis. In an e-mail to Henderson, Nowacki criticized attempts to discern a judicial philosophy by looking for trends in a judge's record.


"This outcome-based analysis is inapplicable and unfair to judges ... A judge's work cannot be divorced from the facts of particular cases," Nowacki wrote.


The White House offered an opinion article defending Alito against the Knight Ridder analysis by lawyer Jeffrey Wasserstein, a Democrat who says he supported John Kerry in the last presidential election. Wasserstein, a former Alito clerk, said he was unaware of Alito's political leanings when he worked for the judge in 1997-98.


"It was my experience that Judge Alito was (and is) capable of setting aside any personal biases he may have when he judges," Wasserstein wrote.


But some of Alito's allies say he should embrace the conservative label because it fits.


"The Department of Justice statement is fatuous. If you can't tell by looking at his opinions what kind of philosophy he would carry to the Supreme Court, how would you know to nominate him?" said Bruce Fein, a conservative legal scholar and an Alito supporter. "A judge has a personal view of what the Constitution means."






Separately, Sen. John Cornyn, R-Texas, challenged the Knight Ridder analysis in a letter to The Philadelphia Inquirer, a Knight Ridder paper that printed the article. Cornyn, a member of the Senate Judiciary Committee, complained that the article misrepresented Alito's record in siding with employment-discrimination plaintiffs in only four of 18 cases.


Cornyn said a 2003 study showed that overall, federal appellate judges side with plaintiffs in such cases only 13 percent of the time, so Alito's four in 18 record, or 22 percent, shows him "actually more favorable to such plaintiffs than his fellow jurists."




The response to the Knight Ridder analysis was the latest in a series of administration efforts to counter any suggestion that Alito would be a conservative activist on the Supreme Court.


Administration officials scrambled last week to counter speculation that Alito would seek to ban abortions after the release of a 1985 memo he wrote in which he outlined a long-term strategy to overturn Roe v. Wade, the 1973 ruling that made abortions legal nationwide.


At the suggestion of White House officials, Alito met with Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, to explain that the 1985 memo should not be taken to mean that he would vote to overturn Roe v. Wade as a member of the Supreme Court.


The White House and other Alito allies also downplayed the significance of a letter that Alito wrote later in 1985 expressing the opinion that "the Constitution does not protect the right to an abortion." At the time, Alito was seeking a promotion in the anti-abortion Reagan administration.

http://www.realcities.com/mld/krwashington/13343347.htm

http://www.bonnercountydailybee.com/articl...s/d8em2csg0.txt

WASHINGTON - Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court found.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

ah this guy,
he isn't very smart now is he?

Alito or "Scalito" is just like" Mr Bubbles"
The Constitution is "Just A G%$ Damn Piece of Paper to be read as they see it.
Or just something to wipe their Butts on

--------------------------------------------------------------------------------

December 23, 2005
Alito Defended Wiretap Protections in Memo
By THE ASSOCIATED PRESS
Filed at 4:58 p.m. ET

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.

Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse -- seen now through the prism of Bush's actions -- as well as clues to the judge's understanding of how the Supreme Court operates.

The National Archives released the memo and scores of other documents related to Alito on Friday; the Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. ''I do not question that the attorney general should have this immunity,'' Alito wrote. ''But for tactical reasons, I would not raise the issue here.''

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.

The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.

In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.

''The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.

''When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook,'' the brief said.

Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito.

Alito's analysis about the court and the need for an incremental legal strategy proved prescient. The case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

''The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity,'' the court held.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

''There are also strong reasons to believe that our chances of success will be greater in future cases,'' he wrote. He noted that then-Justice William H. Rehnquist would be a key vote and would recuse himself from the Nixon-era case.

The documents were among 45 released by the National Archives as the holiday weekend approached. A total of 744 pages were made public.

The White House and Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, dismissed any link between the 1984 memo to Bush's authorization of electronic surveillance without a warrant to thwart terrorism.

''Any connection between Judge Alito's 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch,'' Cornyn said in a statement.

But Democrats seized on the memo and vowed to press Alito on the matter at his confirmation hearings.

''At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability,'' said Sen. Edward Kennedy, D-Mass.

Bush picked Alito to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring.

Among the documents released Friday was a June 1985 memo in which Alito said abortion rights should be overturned but recommended a roadmap of dismantling them piece by piece instead of a ''frontal assault on Roe v. Wade.''

The June abortion memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November -- but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying it had to be kept quiet.

''I need hardly say how sensitive this material is, and ask that it have no wider circulation,'' Fried wrote.

Alito, a federal appellate court judge, has been seeking to assure senators that he would put his private views aside when it came time to rule on abortion as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.

------

On the Net:

Alito documents: http://www.archives.gov

Supreme Court: http://www.supremecourtus.gov



Copyright 2005 The Associated Press Home Privacy Policy Search Corrections XML Help Contact Us Work for Us Site Map Back to Top

"The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court".............


Seems to me his job was not to "question...the attorney general"...
and that his advice was solid: "I would not raise the issue here."

As a law enforcement officer I've learned to not indict
a defense attorney working for his clients. In this case the
role is reversed and it's a solicitor general working for Reagan.

Actually his advice was pretty unbiased while working for Reagan.
And by saying "I do not question that the attorney general should
have this immunity" he acknowledges the question.

When we look at practicing the art of war we must be realistic...
as a Southerner I understand having to make a stand on principal,
but I also understand reviewing reality:

ROBERT KRICK

Historian and author of ten books about the war.

The South lost because it had inferior resources in every aspect of military personnel and equipment. That's an old-fashioned answer. Lots of people will be scornful of it. But a ratio of twenty-one million to seven million in population comes out the same any way you look at it.

IMHO Alito is just not radical enough to make a "last stand" on.
He will be confirmed and neo-cons will use the objections to him
as an excuse to call the opposition "the radical left wing".

I believe a wiser investment in action is to drive toward investigating
the illegal wire tapping by Bush - thus driving the Supreme Court
further to the center because of the abuses of the Right Wing.

--------------------------------------------------------------------------------

December 24, 2005
Editorial
Alito's Zeal for Presidential Power
With the Bush administration claiming sweeping and often legally baseless authority to detain and spy on people, judges play a crucial role in underscoring the limits of presidential power. When the Senate begins hearings next month on Judge Samuel Alito, President Bush's Supreme Court nominee, it should explore whether he understands where the Constitution sets those limits. New documents released yesterday provide more evidence that Judge Alito has a skewed view of the allocation of power among the three branches - skewed in favor of presidential power.

One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans. Judge Alito argued for taking a step-by-step approach to establishing this principle, much as he argued for an incremental approach to reversing Roe v. Wade in another memo.

The Supreme Court flatly rejected Judge Alito's view of the law. In a 1985 ruling, the court rightly concluded that if the attorney general had the sort of immunity Judge Alito favored, it would be an invitation to deny people their constitutional rights.

In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a "signing statement" about what the law means. By doing so, Judge Alito hoped the president could shift courts' focus away from "legislative intent" - a well-established part of interpreting the meaning of a statute - toward what he called "the President's intent."

In the memo, Judge Alito noted that one problem was the effect these signing statements would have on Congressional relations. They would "not be warmly welcomed by Congress," he predicted, because of the "novelty of the procedure" and "the potential increase of presidential power."

These memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.

The Supreme Court and the lower federal courts have had to repeatedly pull the Bush administration back when it exceeded its constitutional powers. They have made clear that Americans cannot be held indefinitely without trial just because they are labeled "enemy combatants." They have vindicated the right of Guantánamo Bay detainees to challenge their confinement. And they will no doubt have to correct the Bush administration's latest assertions of power to spy domestically. The Senate should determine that Judge Alito is on the side of the Constitution in these battles, not on the side of the presidency - which the latest documents strongly question - before voting to confirm him.



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Alito advocated reversing Roe v. Wade aborition decision , memo shows
By DONNA CASSATA Associated Press Writer

(AP) - WASHINGTON-Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January's confirmation hearings.

In a recommendation to the U.S. government's top lawyer on filing a friend-of-court brief, Alito said that the government "should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."



The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages was made public.

Abortion has become a wedge issue in connection with Alito's confirmation to take the Supreme Court seat held by Justice Sandra Day O'Connor, who is retiring. She is often the swing vote on contentious social issues that reach the highest U.S. court.

The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's U.S. constitutional right to an abortion.

The documents released Friday are the latest involving Alito and abortion.

In paperwork released earlier from Alito's time in the Justice Department's solicitor general's office, he recommended a legal strategy of dismantling abortion rights piece by piece. And as part of an application for a job as deputy assistant attorney general, Alito said the Constitution does not guarantee abortion rights.

The latest memo is certain to stir controversy as the Senate prepares for confirmation hearings for Alito, slated to begin Jan. 9.

Charles Fried, a Reagan administration solicitor-general, two decades ago noted the implications of the memo in his introduction, "I need hardly say how sensitive this material is, and ask that it have no wider circulation."

In the memo, Alito focused on a woman making an informed choice and states rights.

"While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus," Alito wrote. "Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?"

Consistent with his previous writings, Alito said these arguments would be preferable to a "frontal assault on Roe v. Wade."

"It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open," Alito wrote.

2005-12-23T15:07:12Z

Alito, In and Out of the Mainstream
In Analysis, Nominee Defies Portrayals by Left and Right

By Amy Goldstein and Sarah Cohen
Washington Post Staff Writers
Sunday, January 1, 2006; A01



During 15 years as an appeals court judge, Supreme Court nominee Samuel A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of immigrants trying to avoid deportation, and supportive of a lower wall between church and state, according to an analysis of his record by The Washington Post.

Alito has taken a harder line on criminal and immigration cases than most federal appellate judges nationwide, including those who, like him, were selected by Republican presidents, the analysis found.

In civil rights cases, Alito has sided against three of every four people who claimed to have been victims of discrimination, based on the lawsuits in the analysis. Such a record is typical of Republican appointees on federal appeals courts in discrimination cases, the area of the law in which national studies show GOP-appointed judges differ most from their Democratic-appointed counterparts.

Still, in a few areas of the law, Alito's record resembles that of the average U.S. appellate judge. His decisions on First Amendment cases have been mixed. And when workers have sued for pay or benefits, he has agreed with them about half the time.

The analysis, based on a database developed through a review of more than 200 cases Alito helped to decide on the U.S. Court of Appeals for the 3rd Circuit, provides a more nuanced glimpse of his ideology than the portrayal by his supporters and critics. Bush administration officials and conservative allies working to win Alito's confirmation say he fits within the judicial mainstream; some Democrats and liberal advocacy groups trying to defeat his nomination say he is an ideologue.

Neither characterization is completely accurate.

Instead, the analysis, along with interviews of scholars who study the courts, shows that Alito takes consistently restrictive stances on some social issues and criminals' rights but does not differ substantially from the typical judge in other areas.

Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases. Yet a closer look finds that he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.

"Here is where Alito really takes his stand," said Kenneth L. Manning, a political scientist at the University of Massachusetts at Dartmouth who has studied the voting behavior of other appellate judges.

Because Supreme Court justices are free to disregard precedent, Alito's decisions are an imperfect barometer of how he might rule if he succeeds Sandra Day O'Connor, a pivotal member of the high court. Still, scholars said that his opinions since joining the 3rd Circuit in 1990 yield important clues, such as which areas of law he is passionate about, whether he strives for consensus and how his views align with Supreme Court decisions.

To examine his record, The Post looked at how Alito voted on all 221 cases he has helped to decide in which the 3rd Circuit -- which handles appeals from Pennsylvania, New Jersey, Delaware and the Virgin Islands -- issued a divided ruling. Those cases provide a revealing window to a judge's ideology, judicial scholars say, because they involve legal issues that are unclear. In that way, they also are most like the cases the Supreme Court hears, said Donald R. Songer, a political scientist at the University of South Carolina who studies appellate courts.

The idea of trying to gauge a judge's ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case. But the method used by The Post is well accepted among political scientists -- many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.

The analysis included 34 majority opinions and 55 dissenting ones that Alito wrote, plus 132 in which he voted but did not put his views in writing.

Overall, the opinions Alito wrote are largely devoid of impassioned rhetoric or broad philosophical assertions. He grounds his views in close readings of legal precedents, statutes and government regulations. Of the cases The Post examined, Alito upheld the rulings of a lower court about half the time, which is typical of appeals judges nationally.

Routinely, he defers to government officials and others in positions of authority. He sometimes chastises his fellow judges for what he regards as overstepping their authority by imposing their own judgments, rather than merely assessing the legality of actions by prison guards, defense lawyers and immigration officials being challenged -- actions he often upholds.

His written opinions often are "very thoughtful, well constructed and well argued," said Martin H. Redish, a constitutional scholar at Northwestern University School of Law in Chicago who reviewed several cases in the Post analysis. At the same time, he said, Alito is "clearly tough-minded . . . having very little sympathy for those asserting rights against the government."

With Alito's Senate confirmation hearings scheduled to start Jan. 9, the debate over his nomination has escalated to a political brawl. At the core of the partisan fight is a pair of memos he wrote two decades ago, when he was a Justice Department lawyer in the Reagan administration. In them he made clear that he opposed Roe v. Wade , the 1973 Supreme Court ruling that legalized abortion nationwide.

There were two abortion cases in the analysis. Alito voted to restrict abortion rights in one -- the well-known Planned Parenthood of Southeastern Pennsylvania v. Casey , in which the Supreme Court later disagreed with him -- and voted to protect such rights in the other.

Alito's place in the nation's decades-old abortion wars, the analysis shows, is not what most defines him as a judge.

The Prosecutors' View

In the summer of 1991, Kourtney Kauffman was released against his doctors' advice after a five-day stay at a psychiatric center in Harrisburg, Pa. Two days before he was hospitalized, five guns were stolen from a nearby house. Five days after he got out, Kauffman was arrested while trying to sell four of the weapons to a firearms dealer.

On his lawyer's advice, he pleaded guilty to illegally possessing the guns and received a 15-year sentence. A few years later, Kauffman sought to have his conviction overturned, arguing that his lawyer had not discussed the possibility of an insanity defense, even though a psychiatrist who had examined him the day he was arrested concluded he was "undoubtedly psychotic at the time."

A U.S. district judge turned Kauffman down, and he appealed. The two 3rd Circuit judges with whom Alito heard the case -- like him, appointed by President George H.W. Bush -- ordered a new trial for Kauffman. Although a court must be "highly deferential" to the decisions of a lawyer representing a criminal defendant, the majority ruled, Kauffman's counsel was inadequate because he had not investigated his client's history of mental illness or considered an insanity defense.

Alito disagreed. Because the lawyer had represented Kauffman in the past, Alito wrote in his dissent, he knew his client well enough to make a "tactical decision" that a guilty plea was the best course. The court majority, he wrote, "fails to heed that important admonition" that judges should be reluctant to second-guess lawyers' conduct.

U.S. v. Kauffman is typical of Alito's perspective on criminal cases. Of 33 such cases in the analysis, he sided with criminal defendants only three times, aligning with prosecutors more often than the average GOP-appointed judge in divided cases. His high rate of favoring the prosecution is nearly identical to that of the Supreme Court's new chief justice, John G. Roberts Jr., according to the University of Massachusetts's Manning, who performed a similar analysis of Roberts's record from his two years on a different federal appeals court.

As in the Kauffman case, Alito voted in two-thirds of the criminal cases to uphold the rulings of a lower-court judge. His votes in one small group of those criminal cases -- four appeals from inmates facing death sentences -- were even more consistent. Every time, he voted against sparing the prisoner from execution. Nationally, federal appeals judges in disputed cases vote to give relief to prisoners sentenced to death about a third of the time.

Such a record, the University of South Carolina's Songer said, implies that Alito would behave differently from Justice O'Connor, who has been willing in recent years to restrict the use of the death penalty.

Cool on Immigrants

If Alito's treatment of criminal cases is unusual, his record is more ordinary in a few other areas. This is particularly true in lawsuits by employees who claim to have been denied wages, benefits or union rights. Of 19 such cases in the analysis, Alito voted in favor of workers nearly half the time -- about the same as judges nationwide and more often than the average Republican-appointed judge.

In 1991, his was the sole vote siding with 228 Philippine seamen working on Kuwaiti oil tankers in the Persian Gulf who alleged that they deserved to be paid minimum wage under the Fair Labor Standards Act. It was around the time of the Persian Gulf War, and their ships had temporarily been reflagged under the U.S. flag because it was dangerous in that region for vessels from neutral countries.

The court majority ruled the sailors did not deserve the pay because they were outside U.S. waters and their ships were only temporarily reflagged. Alito countered that the legislative history of the labor law "makes clear that Congress intended for the minimum wage requirement to apply to all seamen on all American vessels."

Alito has been less sympathetic to employees who claim to have been discriminated against on the basis of race, sex, age or disability, siding squarely with them in just three of 15 such cases in the analysis. In those and other discrimination cases, his voting pattern is comparable to the typical Republican-appointed judge.

He also is similar to other Republican appointees in overall deference to the government. For example, he agreed with the government position in all but one of seven cases in which prisoners alleged violations of their rights.

The only kind of case involving the government in which Alito ruled against its interest most of the time was when companies challenged federal regulations.

His treatment of immigration issues -- siding one time in eight squarely with immigrants who were trying to win asylum or block their deportation -- makes Alito less sympathetic to immigrants than most Republican appointees. At a time when other circuit judges nationwide have criticized as too harsh the reasoning and conduct of the Board of Immigration Appeals, Alito has displayed "almost total deference" to the board, said Owen M. Fiss, a Yale Law School professor who, with 21 Yale faculty and students, has analyzed the more than 400 published opinions Alito has written.

In the 1994 Tipu v. Immigration and Naturalization Service , two judges with whom he heard the case -- both GOP appointees -- threw out a deportation order against a Pakistani immigrant convicted on a drug conspiracy charge. The top administrative board that considers immigrants' appeals, they reasoned, had made mistakes, ignoring that Mohammed Zafar Tipu had played a minor role in the conspiracy, received a high school degree while serving a light prison sentence and cared for an ailing brother.

Alito wanted to uphold the deportation. "The majority has wandered well beyond the limited scope of appellate review that we are permitted," he wrote in his dissent. "Whatever else one may think about [the immigration board's] decision, it was not arbitrary, irrational or contrary to law."

Last year, the 3rd Circuit blocked the deportation of a Korean couple, longtime residents of the United States who were convicted of a tax violation, concluding that the crime was not an "aggravated felony" that required them to be removed. Alito, in a dissent, gave a lengthy interpretation of what he believed Congress had in mind when it wrote a section of federal immigration law -- and the majority chided him, writing that a judge should reach decisions "unaided by speculation."

Larger Role for Religion

Alito has agreed consistently with people who are trying to expand the role of religion in public life, the analysis shows.

Three cases in the analysis deal with the boundaries between church and state, and Alito's decisions parallel about a dozen other -- unanimous -- cases he has heard that were not examined by The Post, said Ira C. Lupu, a constitutional scholar at George Washington University Law School.

Alito's views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment's establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people's rights to worship as they want.

In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, who removed the boy's poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

Alito has greater sympathy for First Amendment rights when it comes to religion than other free-speech issues. Of six First Amendment cases in the analysis that did not involve religion, he voted to uphold such rights once.

Last February, for instance, he helped to decide a class-action lawsuit by inmates in a unit of a Pittsburgh prison set aside for especially violent prisoners. Inmates in the unit were not allowed to have newspapers, magazines or photographs -- and they sued, alleging the rule violated their free-speech rights.

The court's majority found the ban unconstitutional. Alito disagreed. Citing a precedent that "instructs courts to extend considerable deference to judgments of correctional officials," he wrote that the prison officials were reasonable in believing the restrictions might deter other inmates from misbehaving -- and that the segregated prisoners did not face absolute restrictions, because they could get around the ban by improving their behavior enough to get out of the unit. In November, the Supreme Court decided that it will hear the case.

Staff writers Jeffrey H. Birnbaum, Charles Lane and Christopher Lee; research editor Lucy Shackelford; researcher Madonna Lebling; and research database editor Derek Willis contributed to this report.

http://www.washingtonpost.com/wp-dyn/conte...3100328_pf.html

Alito Once Made Case For Presidential Power

By Christopher Lee
Washington Post Staff Writer
Monday, January 2, 2006; A11



As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs them into law.

Such "interpretive signing statements" would be a significant departure from run-of-the-mill bill signing pronouncements, which are "often little more than a press release," Alito wrote. The idea was to flag constitutional concerns and get courts to pay as much attention to the president's take on a law as to "legislative intent."

"Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress," Alito wrote. He later added that "by forcing some rethinking by courts, scholars, and litigants, it may help to curb some of the prevalent abuses of legislative history."

The Reagan administration popularized the use of such statements and subsequent administrations continued the practice. (The courts have yet to give them much weight, though.)

President Bush has been especially fond of them, issuing at least 108 in his first term, according to presidential scholar Phillip J. Cooper of Portland State University in Oregon. Many of Bush's statements rejected provisions in bills that the White House regarded as interfering with its powers in national security, intelligence policy and law enforcement, Cooper wrote recently in the academic journal Presidential Studies Quarterly.

The Bush administration "has very effectively expanded the scope and character of the signing statement not only to address specific provisions of legislation that the White House wishes to nullify, but also in an effort to significantly reposition and strengthen the powers of the presidency relative to the Congress," Cooper wrote in the September issue. "This tour d' force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all."

Bush may be acting without fanfare for a reason. As Alito noted in his memo, the statements "will not be warmly welcomed" on Capitol Hill.

"The novelty of the procedure and the potential increase of presidential power are two factors that may account for this anticipated reaction," he wrote. "In addition, and perhaps most important, Congress is likely to resent the fact that the president will get in the last word on questions of interpretation."

http://www.washingtonpost.com/wp-dyn/conte...0100788_pf.html

How Alito would shift high court on key issues
His confirmation could impact abortion, campaign-finance reform,
affirmative action, and the death penalty. By Warren Richey
http://www.csmonitor.com/2006/0106/p01s04-usju.html?s=hns

Sitting Judges to Speak on Alito's Behalf
No Conflict of Interest In Role, Specter Asserts

By Charles Babington
Washington Post Staff Writer
Saturday, January 7, 2006; A05



Seven current and former federal appellate court judges will testify on behalf of Supreme Court nominee Samuel A. Alito Jr. next week, an extraordinary role for the sitting judges who will be dealing with a colleague who could be positioned to uphold or overturn their rulings.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said yesterday that he agreed to allow the judges -- all current or retired colleagues of Alito's on the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit -- to address the panel because they can speak to some of the most contentious issues surrounding the nominee.

"They will testify about his approach to judging, as to whether he has an agenda, as to whether he is ideological, whether he pushes any specific point of view," Specter said in an interview.

Specter will chair the weeklong confirmation hearing, to start Monday, in which Democrats have vowed to press Alito aggressively about his antiabortion statements, support for a powerful executive branch and other matters. Senators from both parties predict the confirmation battle for Alito to be tougher than that for Chief Justice John G. Roberts Jr., who was approved 78 to 22 by the Republican-controlled Senate in September. The judges are tentatively scheduled to appear on Thursday. The Democratic and Republican sides have chosen 15 witnesses each.

Specter's office said some district court judges have testified on behalf of Supreme Court nominees, but there is no record of appellate judges doing so. The Senate historian's office said its research agreed with Specter's findings, but it noted that there was not enough time on short notice to extend the research to the Supreme Court's earliest days.

But there is no prohibition on such testimony, Specter said, and the seven judges are well-positioned to comment on Alito's "approach to judging" because they joined him in discussing and voting on hundreds of cases. "I think the judges' panel will liven things up," Specter said.

Specter said he sees no conflict of interest for either Alito -- who, if confirmed, would review the rulings of the judges expected to praise him next week -- or for the judges, who might want warm ties with a Supreme Court justice able to rule on their decisions that are appealed to the nation's highest court.

Their favorable testimony would be in character, given their long-standing relationship with Alito, Specter said. "If confirmed, he would be one of nine people reviewing their cases," and their testimony to the Judiciary Committee would be unlikely to sway him at all, Specter said. Alito and the judges have "a confluence of interests," not a conflict, he said.

One of the seven sitting and retired judges may be drawn into Democrats' questions about Alito's truthfulness. Anthony J. Scirica, chief judge of the 3rd Circuit, has defended Alito's role in a ruling on a 2002 case involving the Vanguard Group investment firm after Alito had told the Senate in 1990 that he would avoid such cases. Alito and his supporters say he acted properly, but Democrats have said they will press him about the various explanations he has given in the matter.

The Democrats' witnesses, announced Thursday, include a lawyer involved in the Vanguard case.

The other judges scheduled to testify next week are Edward R. Becker, Maryanne Trump Barry (sister of developer Donald Trump), Ruggero J. Aldisert and Leonard I. Garth. They will be joined by retired judges John J. Gibbons and Timothy K. Lewis. All were appointed by Republican presidents, except Aldisert, who was named by Democrat Lyndon B. Johnson.

Becker is a longtime friend of Specter and Alito, and was key to assembling the group, Specter said. He said he asked Becker last year whether he "would feel comfortable testifying" for Alito. Becker eventually agreed, Specter said, and then recruited the others.

Specter said the seven might not limit their remarks to Alito, but use the televised forum to explain judicial issues that get blurred in partisan fights over nominees. A judge takes an oath "to decide cases on the law and the facts," not on political beliefs, Specter said. "They can explain that."

The Democrats' 15 witnesses do not include sitting judges. Specter said it did not occur to him to tell Democrats of his plan to invite the appellate judges. Sen. Patrick J. Leahy (Vt.), the Judiciary Committee's ranking Democrat, declined comment yesterday.

http://www.washingtonpost.com/wp-dyn/conte...0601727_pf.html

--------------------------------------------------------------------------------

January 9, 2006
The Hearings
Issues and (Possible) Answers: A Primer on the Alito Hearings
By ADAM LIPTAK
WASHINGTON, Jan. 8 - When Judge John G. Roberts Jr. appeared before the Senate Judiciary Committee in September for hearings on his nomination to the Supreme Court, all of the participants were largely improvising. It had been 11 years since the last nomination, and the legal landscape, political climate and very state of the world had changed so radically that the old templates were of little use.

Judge Samuel A. Alito Jr., on the other hand, will have a fresh road map from the Roberts hearings when he sits to face the committee Monday for his own confirmation hearings. The topics to be covered, the nature and tenor of the senators' questions, and the limits on what Judge Alito will be willing to answer will almost certainly follow the path cut in September.

But there will be distinct differences, too. Judge Roberts replaced Chief Justice William H. Rehnquist, meaning that his nomination was a one-for-one, conservative-for-conservative swap. If Judge Alito is confirmed, he will replace Justice Sandra Day O'Connor, whose vote was often the fulcrum on which the Rehnquist court's decisions turned.

Judge Roberts's judicial record was, moreover, comparatively thin, a product of less than two years as a judge on the United States Court of Appeals for the District of Columbia Circuit. Judge Alito, by contrast, has produced hundreds of opinions in his 15 years on the United States Court of Appeals for the Third Circuit, in Philadelphia. Unlike Judge Roberts, he has written at length on some of the most contentious issues of the day.

Judge Roberts was asked only a few questions about what has since become a burning issue: the scope of executive power. Several senators say they will question Judge Alito closely on the legal implications of the recently disclosed domestic surveillance program.

With the lessons of the Roberts hearings as a guide, then, here is a primer on the questions Judge Alito is likely to face and how he may be expected to answer.

Abortion

Supreme Court confirmation hearings employ a sort of code when it comes to abortion. Since nominees typically refuse to divulge their views about what the Constitution has to say on the subject, on the grounds that the issue may come before them, senators tend to ask instead about privacy and about precedent.

Roe v. Wade, the 1973 case that found a constitutional right to abortion, was largely based on the right to privacy described in a 1965 case, Griswold v. Connecticut. Senators eager to tease out some information about the fate of Roe ask instead about the validity of Griswold.

The Griswold case, which struck down a law making the use of contraceptives illegal, found a constitutional right to privacy in the "penumbras" and "emanations" of various provisions of the Bill of Rights.

Judge Robert H. Bork's harsh criticism of Griswold in his academic writings and his skepticism about the nature and scope of a constitutional right to privacy at his confirmation hearings helped doom his nomination in 1987.

A second proxy for abortion is precedent. Senator Arlen Specter, the Republican chairman of the Judiciary Committee and a supporter of abortion rights, pressed Judge Roberts, for instance, on whether the Supreme Court's reaffirmation of the core abortion right in a 1992 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, made Roe a "super-duper precedent."

Judge Roberts did not adopt Mr. Specter's language and listed several factors on each side of the general question of when precedents should be overruled, many drawn from Casey itself.

Judge Alito may find it harder to take refuge in Casey's discussion of precedent, as the case presents something of a minefield for him. He participated in it as an appeals court judge, dissenting in 1991 from a ruling striking down a Pennsylvania law that required married women to notify their husbands before having an abortion. The Supreme Court disagreed with him in a 5-to-4 ruling the next year.

Though Judge Alito's decision in Casey was careful, technical and reflected an effort to interpret the Supreme Court's confusing abortion jurisprudence at the time, the fact that he found himself on the losing side of the most important abortion case since Roe will doubtless prompt many questions.

So, too, will a statement Mr. Alito made in a 1985 job application for a position in the Justice Department. He said he was proud to have helped advance "legal positions in which I personally believe very strongly." One of those positions, he said, was that "the Constitution does not protect a right to an abortion."

While Judge Roberts was one of nine government lawyers who signed a brief urging the Supreme Court to overturn Roe, he said that positions he took as an advocate were not necessarily his own. Judge Alito may find it harder to distance himself, should he wish to, from his Casey dissent and his personal statement in 1985.

Presidential Power

Mr. Specter, in prepared remarks to be presented Monday, said, "This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority," a reference to the domestic surveillance program. There is, he said, an apparent conflict between "the president's constitutional war powers as commander in chief to conduct electronic surveillance" and "Congressional legislation in the Foreign Intelligence Surveillance Act."

In September, Senator Patrick J. Leahy, the ranking Democrat on the Judiciary Committee, asked Judge Roberts about the scope of presidential power in the context of a 2002 Justice Department legal memorandum concerning harsh interrogations that were arguably forbidden by federal law. The Bush administration had by then disavowed aspects of the memorandum, but Mr. Leahy wanted to know about one of its more abstract assertions.

"Congress can no more interfere," the memorandum said, "with the president's conduct of interrogations of enemy combatants than it can dictate strategic or tactical decisions on the battlefield." The Bush administration has made similar arguments in connection with the surveillance program.

Judge Roberts said the framework for analyzing the question of whether the president had exceeded his authority was in a concurring opinion by Justice Robert H. Jackson in a 1952 decision rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize private steel mills as a matter of national security during the Korean War.

"Where the president is acting contrary to Congressional authority," Judge Roberts said, "what Justice Jackson said is, the president's authority is at its lowest ebb."

It is not clear whether Judge Alito will also endorse Justice Jackson's approach. In a 2001 speech to the Federalist Society, a conservative legal group, Judge Alito spoke in favor of vigorous and expansive executive power. As a government lawyer, too, he frequently argued for a broad interpretation of executive authority.

Congressional Authority

Perhaps no issue engaged the senators questioning Judge Roberts more than a series of recent Supreme Court decisions limiting the ability of Congress to make federal law binding on the states or, sometimes, to legislate on a subject at all.

Judge Alito may expect questions about two of his decisions in this area. In one, a 1996 dissent, he voted to strike down a federal law regulating machine guns, saying Congress had not provided adequate evidence that those weapons facilitated crimes with an effect on interstate commerce.

In a similar vein, Judge Alito took a constrained view of Congressional power in a 2000 case involving the Family and Medical Leave Act. He said the states were immune from lawsuits under the act. The Supreme Court came to the opposite conclusion in a different case in 2003. Voting Rights

In his 1985 job application, Mr. Alito said that his interest in constitutional law was motivated by disagreement with some decisions of the Warren Court, among them those concerning reapportionment. The decisions, from the 1960's, required states to draw voting districts with equal populations. Some legal scholars at the time contended that the decisions did not have a basis in the Constitution.

Judge Bork, too, was critical of the decisions at his confirmation hearings. "There is nothing in our history that suggests 'one man one vote' is the only proper way of apportioning," he said.

In November, after the disclosure of the 1985 job application, the White House said that Judge Alito now believes that one person one vote is "bedrock principle."



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January 9, 2006
The Reagan Legacy
Two Legal Careers That Diverged May Intertwine Again
By DAVID D. KIRKPATRICK
WASHINGTON, Jan. 8 - Not long after the inauguration of President Ronald Reagan in 1981, two young lawyers moved into cramped offices along the same hallway on the fifth floor of the Justice Department's headquarters.

One, Samuel A. Alito Jr., 30, was hired as a nonpolitical career lawyer. Promoted from the office of a New Jersey prosecutor, he quietly drafted Supreme Court briefs in the solicitor general's office. Former colleagues describe him as shy and serious, prone to spending long hours buried in case files. Charles Fried, the Reagan administration solicitor general, remembers Mr. Alito as "a very cultured man" who was more likely to spend their lunches together talking about books and ballet than politics.

The other, John G. Roberts Jr., 25, arrived fresh from a clerkship for Justice William H. Rehnquist of the Supreme Court, and entered the department a rung higher than Mr. Alito, as a presidential appointee assisting the attorney general on a variety of matters. Mr. Roberts was handsome and funny, former colleagues say, and hard not to like.

A quarter-century later, their contrasting styles will be on display again this week in the Senate hearings on the Supreme Court nomination of Judge Alito, now on the Court of Appeals for the Third Circuit. But if Chief Justice Roberts had the more political job then, it is now Judge Alito who faces more political opposition, in part because of statements he made in 1985 to persuade the administration's leaders that he, too, was a conservative at heart.

To many of their former colleagues, the ascent of both men to the Supreme Court within months of each other would be the high point of a conservative revolution in the legal establishment: an effort over several decades to seed the federal courts with jurists holding a narrower interpretation of the Constitution's application to abortion rights, civil rights, the rights of criminal defendants and the scope of federal power.

"It is the culmination," said Edwin Meese III, who was attorney general in the Reagan administration and a leading architect of the movement. "Judge Alito and Chief Justice Roberts represent the best among the group of excellent young lawyers that came into government at the same time in the Reagan administration."

They worked together only occasionally at first, colleagues said. Mr. Roberts's job entailed tracking prominent or politically sensitive cases for the attorney general, which sometimes meant checking with Mr. Alito on his work, their colleagues said. But they came together much more often in 1985, when Mr. Alito was elevated to a political job in the Office of Legal Counsel. Mr. Roberts was an associate White House counsel. The Office of Legal Counsel acted as a kind of in-house law firm evaluating pending legislation and interpreting statutes for the White House counsel, so Mr. Roberts was in effect one of Mr. Alito's clients.

"We might walk into each other's offices and say, 'Did you get John Roberts's call about such and such?' " recalled Douglas W. Kmiec, a law professor at Pepperdine University who worked in an office adjoining Mr. Alito's and knew both men.

Former colleagues say their shared intellectual framework could make for an unusually close collaboration on the court. "The way that with a good friend you don't start each sentence anew, you start it in midsentence, that would be the relationship between John and Sam," said Professor Kmiec (pronounced kih-MECK).

Some Democratic lawyers argue, however, that the similarity of the men's backgrounds may be a liability, too. "Some senators might well conclude that the fact that one nominee is so similar to the immediate previous nominee is an argument against confirmation," said Walter E. Dellinger III, who was acting solicitor general in the Clinton administration. "Some might say, send us someone a little different."

But friends and colleagues of Chief Justice Roberts and Judge Alito say the two jurists' careers before and after the Reagan administration have followed very different paths, reflecting their personalities. Although both graduated from law school with sterling credentials - Mr. Alito was an editor of the law review at Yale and Mr. Roberts at Harvard - the chief justice followed an appeals court clerkship with his clerkship for Justice Rehnquist.

Mr. Alito moved back to New Jersey after law school to clerk for Judge Leonard I. Garth of the Court of Appeals for the Third Circuit, who had also worked closely with his father, a researcher for the New Jersey Legislature, and he stayed in the state to become a federal prosecutor.

In the Reagan White House, Mr. Roberts's conservative bona fides as a former Rehnquist clerk were already well-established. But Mr. Alito's were not.

"Sam was not like me, and most of the other political appointees, who were known-quantity Reagan conservatives," said Charles J. Cooper, the administration lawyer who in 1985 recruited Mr. Alito to a political job in the Office of Legal Counsel.

Mr. Cooper said he had begun to see that Mr. Alito was "simpatico" with the administration's goals from some of his work, including a recently disclosed memorandum proposing legal tactics to curb or end abortion rights. But for his promotion, "His political views, his thoughts concerning the administration's legal direction, had to be made known to the president's personnel office," Mr. Cooper said.

Thus as part of his application, Judge Alito was obliged to write a short essay spelling out his convictions about the conservative movement's legal approach to the Constitution, abortion rights, affirmative action and other matters. Democrats contend that, unlike any of the briefs or memorandums Chief Justice Roberts wrote for Republican administrations or clients, Judge Alito's essay provides a window into his personal view of the Constitution, and they now plan to make it the centerpiece of their questions for him in the hearings.

After the two left the administration, their careers diverged sharply. In 1986, Mr. Roberts left the administration to work in Washington as a private lawyer among the elite ranks of the Supreme Court bar. Mr. Alito, in contrast, surprised some of his colleagues by leaving the capital.

"Sam's main interest when he left was to raise his kids in his home state and the area where he grew up," Mr. Cooper said. "He wanted to go back to New Jersey first." It was only later that Mr. Alito settled on a position as United States attorney, Mr. Cooper said.

"John's progression was one that people would expect from the script - he is in the Beltway, he stays in the Beltway, and he takes his skills to a very profitable firm," Professor Kmiec said, but Judge Alito's return to New Jersey was not. "I would look at him with a bit of an arched eyebrow and I'd say, 'I don't get it.' "

His former colleagues said Judge Alito passed up an opportunity to make much more money by spending his whole career as a federal employee. And his 15-year tenure on the bench has left his opponents with far more judicial opinions to attack. Some liberal legal scholars contend that Judge Alito's record reveals a much more committed, less flexible conservative than do any of the opinions Chief Justice Roberts wrote during his two years as an appeals court judge. "In Roberts's opinions there were no signs of partisanship," said Cass R. Sunstein, a law professor at the University of Chicago who publicly supported Chief Justice Roberts's confirmation. "That gave liberals a lot of comfort."

Studying Judge Alito's opinions led him to a different conclusion, Professor Sunstein said: "Judge Alito's opinions have a different flavor. He is very predictably critical of individual rights claims, and predictably to the right of the court's majority."

Still, Mr. Fried, the former solicitor general, said he had no doubt that Chief Justice Roberts also shared the same conservative views that Judge Alito laid out in 1985 memorandum.

"John is more cagey," he said, adding, "but intellectually and dispositionally there is not a dime's worth of difference between them."



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Conservatives, Santorum rally for court reform
Monday, January 09, 2006

By Maeve Reston, Post-Gazette National Bureau
http://www.post-gazette.com/pg/06009/634986.stm

PHILADELPHIA -- Sen. Rick Santorum joined conservative Christian leaders at a historically black church here yesterday arguing that religious freedom is at risk because of "liberal activist judges" on the Supreme Court and calling for the confirmation of Supreme Court nominee Samuel A. Alito Jr.

During Justice Sunday III -- a program that organizers said was broadcast to 80 million viewers through Christian broadcast stations and church telecasts -- Mr. Santorum said "extreme liberal judges" are "destroying traditional morality and creating a new moral code."

"The Supreme Court has become the supreme branch of the government imposing its unrestrained will on all of the people," Mr. Santorum said. "The only way to restore this Republic our founders envisioned is to elevate honorable jurists like Samuel Alito who will help replace the hubris of this court with humility and respect for the common sense of the American people."

On the eve of the Judge Alito's confirmation hearings in Washington, Mr. Santorum was also critical of judiciary committee Democrats who he said are poised "to drag these hearings in the gutter."

In a night of prayer, speeches and songs that sometimes shook the rafters at the Greater Exodus Baptist Church in North Philadelphia, speakers decried jurists who have ruled against prayer in schools, the definition of marriage as a union between a man and a woman, or questioned the utterance of the words "under God" in the Pledge of Allegiance.

The Rev. Jerry Falwell, a founder of the Moral Majority, said the confirmation of Judge Alito would be the culmination of nearly three decades of work to "mobilize people of faith and values."

"We're looking at what we really started working on 30 years ago -- a reconstruction of a court system gone awry," said Mr. Falwell, who praised President Bush for nominating Chief Justice John Roberts and Judge Alito.

The Rev. Herbert H. Lusk, who leads Greater Exodus, railed against gay marriage, abortion and what he termed as Christian-bashing, and warned that those who trifle with "people of god" will face consequences.

"Don't fool with the church," said Rev. Lusk, "because the church has buried many a critic, and all the critics we have not buried we're making funeral arrangements for."

Rev. Lusk has been a figure of controversy since he spoke in support of Mr. Bush from his church in 2000 and was subsequently accused by the leader of Americans United for Separation of Church and State of breaking tax regulations that forbid churches from endorsing candidates. Rev. Lusk has denied any wrongdoing.

The leaders of the two major conservative Christian groups organizing the event, Tony Perkins of the Family Research Council and Dr. James Dobson of Focus on the Family, gave the evening's strongest defenses of Judge Alito, who currently serves on the 3rd U.S. Circuit Court of Appeals.

Dr. Dobson, who at one point described partial birth abortion as a Nazi-esque procedure, said Judge Alito has made it clear "he will be an originalist... who will not legislate from the bench but who will interpret the constitution."

More than 50 protesters gathered outside the North Philadelphia church, many of them young people, holding signs with messages such as "Want a theocracy -- move to Iran" and "Bigotry is not a family value." Throughout the evening, some shouted: "Bush step down -- take Santorum with you."

Thomas J. Glorioso of Chadds Ford, Chester County, said he came specifically to protest Mr. Santorum because of what he interprets as Mr. Santorum's anti-gay agenda.

"He wants religious freedom," said Mr. Glorioso, who described himself as gay, "as long as it's not for me."

Alan Sandals, a Philadelphia lawyer who is one of Mr. Santorum's Democratic challengers, parked a truck outside the church with an enormous television screen that played political ads critical of Santorum during the program.

A campaign spokesman for State Treasurer Robert P. Casey Jr., a Democrat challenging Mr. Santorum, criticized the Pennsylvania senator for "fiery, divisive rhetoric" at the event.
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(Maeve Reston can be reached 202-488-3479 or mreston@nationalpress.com.)

Alito's grilling begins today
Supreme Court nominee makes his case at confirmation hearings

Monday, January 09, 2006
By Michael McGough, Post-Gazette National Bureau
http://www.post-gazette.com/pg/06009/634880.stm

WASHINGTON -- In the 10 weeks since he was nominated to replace Justice Sandra Day O'Connor on the U.S. Supreme Court, Judge Samuel A. Alito Jr. has been praised by his supporters as a "lawyer's lawyer" who takes each case as it comes and denounced by critics as an ideologue who would move the court dramatically to the right.

Today, after private rehearsals known as "murder boards," Judge Alito finally will speak for himself at confirmation hearings before the Senate Judiciary Committee, where he has been warned to expect even more intensive questioning than Chief Justice John G. Roberts Jr. received.

It isn't just that Judge Alito has a longer record on the bench than Chief Justice Roberts and that he would replace a perennial swing vote who was also a supporter of a constitutional right to abortion, a concept Judge Alito criticized as a lawyer in the Reagan administration. Senators also want to press Judge Alito about his views of presidential power in light of the revelation that President Bush ordered the National Security Agency to eavesdrop on American citizens without a court order.

But no matter how much Washington may be hanging on Judge Alito's words, those words probably will be less important in the end than two numbers -- 55, the size of the Republican majority in the Senate, and 14, the number of senators from both parties who have ruled out a filibuster of Supreme Court nominations except in "extraordinary circumstances."

Democrats may succeed in delaying a committee vote on Judge Alito past Jan. 17, the date contemplated by committee Chairman Arlen Specter, R-Pa. But defeating the nomination -- or derailing it with a filibuster -- is a problematic proposition regardless of what Judge Alito says in his testimony.

All 10 Republicans on the Judiciary Committee -- including Sen. Specter, an abortion-rights supporter who plans to question Judge Alito closely on that issue -- are expected to vote for the nominee. Even if the committee's eight Democrats all voted no, the nomination would be recommended to the full Senate.

Under current Senate rules, which some Republicans want to change, it takes 60 votes to cut off debate on a judicial nomination. Democrats have 44 seats and often can rely on the vote of Independent Sen. Jim Jeffords of Vermont. Alito opponents also hope that Judge Alito's past pronouncements on abortion -- especially a 1985 application for a promotion in the Reagan Justice Department in which he said "I personally believe" that the Constitution does not protect abortion -- might induce a handful of "pro-choice" Republican senators to desert his cause.

But that assumes Democrats would vote as a bloc to maintain a filibuster, which is unlikely. Yesterday, two Democratic members of the Judiciary Committee -- Sens. Dianne Feinstein, D-Cal., and Charles Schumer, R-N.Y. -- raised the possibility of a filibuster if Judge Alito gave unsatisfactory answers. But Sen. Robert Byrd, D-W.Va., who was conservative enough to be considered for a Supreme Court appointment by President Richard Nixon, has discouraged speculation about a filibuster. Mr. Byrd is one of seven Democrats in the so-called Gang of 14 who agreed last May that judicial nominations would be filibustered only in "extraordinary circumstances."

That suggests an uphill battle for Alito opponents even if the nominee made a bad impression in the hearings, said Michael Comiskey, a political scientist at Penn State University's Fayette campus and the author of "Seeking Justices: The Judging of Supreme Court Nominees."

"If the Democrats had even 47 or 49 seats, they could sustain a filibuster against Alito because I can imagine them getting three or four Republican votes if it were perfectly clear [after the hearings] that Alito opposed abortion rights," Mr. Comiskey said. "But with 44 it will be difficult."

As for "extraordinary circumstances," a term that is not defined in the Gang of 14 agreement, Mr. Comiskey was skeptical that enough senators would put the Alito nomination in that category.

Mr. Comiskey said Judge Alito's confirmation wasn't a foregone conclusion because the nominee, a 15-year veteran of the Philadelphia-based 3rd U.S. Circuit Court of Appeals, has a longer paper trail than Chief Justice Roberts. He served only two years as a federal appeals court judge before being named to the high court.

The Alito paper trail includes several hundred opinions the judge has written or joined on the 3rd Circuit and 93 documents from his days as lawyer in the Reagan administration.

Alito critics, including the liberal groups People for the American Way and the Alliance for Justice, say that the paper trail leads inescapably to the conclusion that Judge Alito is hostile to individual rights. They cite studies like one by professor Cass R. Sunstein of the University of Chicago Law School that concluded that "when there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84 percent of the time."

The Bush administration and Judge Alito's supporters counter that critics have "cherry-picked" decisions that support their caricature of the judge as a conservative activist while overlooking rulings in which he favored plaintiffs, racial minorities and even abortion rights. Several of Judge Alito's colleagues and former law-clerks, including self-described liberal Democrats, have chimed in, saying he is not an automatic vote for one side or the other.

Former New Jersey Attorney General Robert J. Del Tufo, who as the U.S. attorney in that state was Judge Alito's superior in the late 1970s, compared Judge Alito to Justice David H. Souter, usually considered one of the high court's liberals.

"We don't want ideologues," Mr. Del Tufo said. "That's not Souter and that's not Alito."

But Alito opponents insist that, more so than Chief Justice Roberts, Judge Alito is a predictable conservative in both the political and the legal senses -- and that Democrats and Republican moderates shouldn't be afraid of opposing him on those grounds.

"As far as I can tell, Alito is an honest and honorable man.," said Villanova University law professor Gregory P. Magarian. "But I get the sense of someone who came to Washington and said, 'I want to build a conservative America, incrementally if necessary but quickly if possible.'

"Given the stakes here, what do you have to lose in opposing this nomination? The worst that can happen is that we get outflanked. But we will have crystallized a message about the stakes involved."

That both supporters and opponents of Judge Alito have made their minds up before this week's hearings conflicts with the popular notion that Supreme Court nomination is made or broken by how well the nominee performs in that setting. For example, it is widely believed that Judge Robert H. Bork, President Reagan's nominee for the court in 1987, was rejected because of his confrontational style when he testified before the Judiciary Committee.

Mr. Comiskey, who studied Supreme Court confirmations for his book, disputes that notion.

"Personality usually doesn't matter much," Mr. Comiskey said. "Bork was drowning even before he testified. He would have been defeated even if he had a more pleasant demeanor."
--------------------------------------------------------------------------------
(Michael McGough can be reached at mmcgough@nationalpress.com or 202-662-7025.)

Abortion, individual rights on agenda for Alito hearings
Monday, January 09, 2006

By Michael McGough, Post-Gazette National Bureau
http://www.post-gazette.com/pg/06009/634881.stm

Senators on the Judiciary Committee are likely to ask Judge Samuel A. Alito Jr. about matters ranging from his initial refusal to recuse himself from a case involving a mutual funds company that handled his investments to his membership in a conservative Princeton University alumni group that some say was anti-black and anti-women.

As in the John Roberts hearings, committee members also will take advantage of television cameras and use Judge Alito as a sounding board for issues of special concern to them or their constituents.

But the hearings are expected to be dominated by the following issues:


Abortion and precedent
In 1991, Judge Alito dissented from a 3rd U.S. Circuit Court of Appeals decision striking down a provision in Pennsylvania's Abortion Control Act requiring married women seeking an abortion to notify their husbands. The Supreme Court rejected his view when it reviewed the 3rd Circuit ruling in its 1992 decision in Planned Parenthood v. Casey.

In a November 1985 application for a promotion in the Reagan Justice Department, Judge Alito wrote that he was honored as a lawyer in the solicitor general's office to "help to advance legal positions in which I believe very strongly [including the argument] that the Constitution does not protect a right to abortion."

Earlier that year, Judge Alito wrote in a memo to the solicitor general that the administration should pursue a legal strategy that would "promote the goals of bringing about the eventual overruling of Roe v. Wade."


Presidential power
In light of the controversy over warrantless electronic surveillance by the National Security Agency, several senators plan to probe Judge Alito's view -- reflected in a speech and in Justice department documents -- about the inherent constitutional authority of the president.

Judge Alito is also likely to be questioned about a 1984 memo he wrote as an assistant to the solicitor general in which he expressed the view that former Attorney General John Mitchell could not be sued for money damages for authorizing a wiretap of anti-war activists. Judge Alito added, however, that the government shouldn't press that view in the Supreme Court because "absolute immunity arguments are difficult to advance successfully."


Individual rights
Critics who say Judge Alito reflexively sides with police and prosecutors repeatedly have cited three cases that are likely to figure in senators' questions.

In Doe v. Groody (2004) involving damage suits against police who searched a 10-year-old girl during a drug raid, Judge Alito dissented from the majority's holding that the police did not enjoy qualified immunity to lawsuit.

In Rompilla v. Horn (2004), Judge Alito wrote the majority opinion in this case denying the appeal of Ronald Rompilla, who was sentenced to death for the 1988 murder of an Allentown, Pa., tavern owner. Judge Alito rejected Mr. Rompilla's claim that his defense had been inadequate because his lawyer didn't look at prosecution files that could have pointed to various mitigating factors. The Supreme Court reversed and set aside the death sentence.

In Riley v. Taylor (2001), Judge Alito dissented from a ruling that a prosecutor improperly used his peremptory challenge to exclude African-American jurors from the murder trial of an African-American defendant. Disputing the majority's "simplistic analysis" that race was the reason for the exclusion, Judge Alito compared it to the assumption that because five out of six recent presidential elections were won by left-handed candidates voters were biased against right-handed people.


Job discrimination
Critics say Judge Alito has shown a pattern of resistance to claims of discrimination on the job, and have cited two cases involved hotel employees who complained of bias.

In Sheridan v. E.I. DuPont de Nemours and Co. (1996) involving a hotel employee who alleged that she was denied a promotion because of her sex, Judge Alito was the lone dissenter in a 10-1 ruling making it easier for a plaintiff to have her allegations brought to trial.

In Bray v. Marriott Hotels (1997), an African-American employee of a different hotel claimed she was passed over for a promotion in favor of a white employee and wanted to cite violations of internal hiring procedures and conflicting explanations by supervisors as evidence of bias. Judge Alito dissented in the 2-1 decision and warned that the majority's approach would lead to "an unwarranted extension of the anti-discrimination laws" because employers often fail to follow their internal procedures "to the letter."


States' rights
Democratic and Republican senators have criticized the Supreme Court for overturning federal laws on the grounds that they infringe on states' rights. In his 1985 Justice Department job application, Judge Alito described himself as a believer in "federalism." Senators are likely to ask him about two decisions in this area of the law.

In United States v. Rybar (1996), Judge Alito dissented from a 2-1 ruling upholding the constitutionality of a federal law making it a crime to possess or transfer a machine gun. Judge Alito wrote that the machine-gun ban was "the closest extant relative" of a law voided by the Supreme Court in 1995 that banned the possession of firearms near schools.

In Chittister v. Pennsylvania Department of Community and Economic Development (2000), Judge Alito wrote that a state employee could not sue the state for denying him sick leave guaranteed by the federal Family and Medical Leave Act.

http://www.c-span.org/homepage.asp?Cat=Cur...ArchiveDays=365

Hearing, Debate, and
Vote Schedules:
Mon., Jan. 9 - 11:30am ET
Tues., Jan. 10 - 9:30am ET
Weds., Jan. 11 - 9:30am ET
Thurs., Jan. 12 - 9:30am ET
Fri., Jan. 13 (If necessary)
Sat., Jan. 14 (If necessary)

Following Dates Tentative:
Committee Debate & Vote:
Tues., Jan. 17
Senate Floor Debate:
Weds. - Fri., Jan. 18 - 20
Senate Floor Vote:
Fri., Jan. 20

My Note: C-span reported today that the democrats may postpone the floor vote untill 1/24

C-SPAN will air LIVE coverage of the entire Senate Judiciary Committee hearings on C-SPAN, C-SPAN Radio, and C-SPAN.org.

http://www.c-span.org
---------------------

http://judiciary.senate.gov/

Alito is scheduled to speak at 4PM today; no questions until Tuesday.

Biden (D) is speaking now.

Kyl up next.
Kohl (D) up after him
Dewine after him.

It appears that Republicans are saying in so many words that it's not fair to question Alito's past. So if that is the case, what is the purpose of confirmation?

Bill, we should confirm him in the present so we can question his past in the future...

This article can be found on the web at
http://www.thenation.com/doc/20060123/questions_for_alito


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The Limits of Power: Questions for Alito
by JEREMY BRECHER & BRENDAN SMITH

[posted online on January 6, 2006]

The Supreme Court confirmation hearings for Samuel Alito represent the first major battle in an emerging constitutional war over the authority of the President. Revelations that President Bush authorized the National Security Agency to spy on US citizens without court approval have shifted the focus of the hearings from domestic social issues to what distinguished University of Texas law professor Sanford Levinson describes as "the major issue before the Court, and the nation, both now and in the foreseeable future.... [Namely] the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary."

Both Senate Judiciary Committee chair Arlen Specter and ranking Democrat Patrick Leahy warned Alito they will question him about executive powers. Leahy recently told the Baltimore Sun that many votes in the Senate will be influenced by how directly Alito answers questions about the NSA program and presidential powers.

Alito will certainly be asked about a memo he drafted in 1984 as a Justice Department lawyer in which he wrote that an Attorney General who countenanced wiretapping without a warrant should have "absolute immunity" against suits from the victims. His position is even more disturbing because it involved surveillance not of foreign terrorists but of American peace activists.

Time magazine reported that in 2001 Alito acknowledged that he is a strong proponent of the theory of the "unitary executive" under which all executive branch power is vested in the President--and any incursion on it by Congress should be resisted. This theory has been used by the Bush Administration to justify various extralegal activities, including the infamous torture memos. In Hamdi v. Rumsfeld, Justice Clarence Thomas used the "unitary executive" theory to argue that the Supreme Court's restrictions on the President's unilateral power to lock up US citizens constituted "judicial interference"--a view rejected by the Court's majority.

If we are in a war to preserve the Constitution from executive usurpation, the opening salvos will be the questions the Judiciary Committee puts to Alito. Here are questions in eight key subject areas Samuel Alito should be asked as the hearings unfold:

Domestic Spying

President Bush recently admitted to authorizing the National Security Agency to eavesdrop on Americans' phone calls and e-mails without a court order, despite the 1978 FISA law forbidding domestic wiretapping without a warrant. University of Chicago constitutional law professor Geoffrey Stone observes, "Some legal questions are hard. This one is not. The President's authorizing of NSA to spy on Americans is blatantly unlawful and unconstitutional."

But in his 1984 Justice Department memo, Alito argued that the Attorney General was entitled to absolute immunity from claims concerning illegal domestic wiretapping.

Judge Alito, do you still believe that the Attorney General and other executive branch officials retain absolute immunity and therefore are not subject to the rule of law? Do you believe that the President can defy an express statutory mandate by Congress?

Usurping Congressional Power

Article 1 of the Constitution states: "All legislative powers herein granted shall be vested in a Congress of the United States." According to the Washington Post, Alito, ignoring the plain meaning of "all legislative powers," argued in a 1986 memo written for the Reagan Administration that the President should "routinely issue statements about the meaning of statutes when he signs them into law" to grant the President "the last word" in order to "increase the power of the Executive to shape the law." President Bush issued at least 108 of these "interpretive signing statements" in his first term alone, many of which "rejected provisions in bills that the White House regarded as interfering with its powers in national security [and] intelligence policy."

Judge Alito, do you still believe that the President can usurp the legislative authority of Congress? Do you deny that the Constitution entrusts Congress, and not the executive branch, with lawmaking power?

Torture and Accountability

President Bush recently signed into law the "McCain amendment" to a military spending bill outlawing the "cruel, inhuman and degrading treatment" of detainees. But in the process he reserved the right under another one of Alito's "signing statements" to bypass the torture ban under his powers as Commander in Chief. David Golove, a New York University law professor who specializes in executive power issues, told the Boston Globe that the signing statement means that Bush believes he can still authorize harsh interrogation tactics when he sees fit.

Judge Alito, do you believe that the President's powers as Commander in Chief allow him to authorize torture in certain circumstances? Do you believe the Constitution grants the executive the power to defy an express Congressional ban on torture?

Enemy Combatants

In Hamdi v. Rumsfeld, the Supreme Court rejected the President's claim that he has the unchecked authority to lock up anyone he deems an "enemy combatant." Justice Sandra Day O'Connor wrote that the Administration's position "cannot be mandated by any reasonable view of the separation of powers, as this approach only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." At the same time, the Administration held José Padilla, another US citizen declared an enemy combatant, without charges or a hearing for more than three years.

Judge Alito, what do you believe are the limits on the President's power to interfere with the rights of the nation's citizens in wartime? Are there executive powers that should remain unchecked by the courts?

Habeas Corpus

In Rasul v. Bush, the Supreme Court rejected the President's assertion that US courts lack the jurisdiction to hear the claims of Guantánamo prisoners that they are being held illegally. These claims are brought by means of a writ of habeas corpus--a legal procedure that has limited the powers of kings and Presidents alike for hundreds of years and was the first act passed by the first US Congress in 1789. The Supreme Court has described the writ as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Judge Alito, does the executive have the power to annul habeas corpus? Does the President have the right to lock people up without having to defend the action before a court of law?

War Powers

Despite the war powers granted Congress under Article I Section 8 of the Constitution, the Bush Administration has repeatedly asserted the right to initiate further attacks beyond Iraq without Congressional approval. Secretary of State Condoleezza Rice recently testified that the President could attack Syria or Iran without any authorization from Congress. According to James Madison, "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department."

Judge Alito, do you agree with Madison's assessment? Do you believe that executive powers allow the launching of another war without authorization from either the United Nations or Congress? Which branch of government do you believe has the right to send the country to war?

War Crimes

The War Crimes Act of 1996 makes it a federal crime for any American to commit grave violations of the Geneva Conventions, including the "willful killing, torture or inhumane treatment" of detainees. In a January 25, 2002, memo to President Bush, then-White House Counsel Alberto Gonzales declared provisions of the Geneva Conventions "obsolete" and urged the President to opt out of the Conventions in order to reduce "the likelihood of prosecution under the War Crimes Act." Soon after, President Bush declared that the Geneva Conventions did not apply to "unlawful combatants" captured in Afghanistan.

Judge Alito, if executive branch officials violated the Geneva Conventions, would you agree that they could be prosecuted under the War Crimes Act?

The US Anti-Torture Act makes torture and conspiracy to commit torture a crime. According to a recent report by the House Judiciary Committee Democratic Staff, there is a "prima facie case that the President, Vice President and other members of the Bush Administration violate a number of federal laws, including...international treaties prohibiting torture and cruel, inhuman and degrading treatment." FBI e-mails released under the Freedom of Information Act disclose torture techniques authorized by executive order signed by President Bush and approved by Defense Secretary Donald Rumsfeld.

Judge Alito, if executive branch officials were found guilty of conspiring to commit torture, do you believe the Supreme Court should hold them subject to the Anti-Torture Act?

Presidential Powers and the Rule of Law

Senator Russ Feingold recently asserted that President Bush "believes that he has the power to override the laws that Congress has passed." But Feingold noted that this is not how our democratic system of government works. "The President does not get to pick and choose which laws he wants to follow. He is a President, not a king."

Judge Alito, explain your view of the differences between the Constitutional powers of an American President and those enjoyed by an absolute monarch.

The Alito hearings represent more than just the confirmation of a judge. Like the hearings that led to the rejection of Robert Bork's nomination to the Supreme Court, they embody a struggle over the very definition of constitutional government and the rights of the people. Democrats and Republicans, liberals and conservatives--indeed, all who wish the United States to be a constitutional democracy and not an autocracy, should see it as the opening battle in a larger constitutional war that will escalate with the renewal of the Patriot Act, NSA hearings, prewar intelligence and torture investigations, and calls for censure and impeachment.

This first battle provides believers in the rule of law an opportunity to frame the issues, strengthen their alliances and educate the public for the war to come. To do so, they should insist that any Supreme Court nominee must take an unambiguous stand on what Senator Leahy calls "the Court's role as a check on overreaching by the executive."

Attacking Alito
Paul Waldman
January 09, 2006


Paul Waldman is a senior fellow at Media Matters for America . His next book, Being Right is Not Enough: What Progressives Can Learn From Conservative Success, will be released in the spring by John Wiley & Sons.

They’ve been preparing for this moment for years. Just as liberals had predicted, when Sandra Day O’Connor retired, President Bush nominated a hard right ideologue to succeed her, threatening to swing the Supreme Court’s balance for decades to come. After all the preparation and research and fundraising, the liberal groups are ready to make their attack, to show the American people why this nominee is so dangerous and what his confirmation would mean for America. And that powerful, emotionally charged, stunningly persuasive assault is…Samuel Alito ruled on a case in which he should have recused himself involving a mutual fund company in which he held investments!

Well, knock me over with a feather. If that doesn’t ignite the American people with a fire of righteous indignation, what will?

Here we go again. It looks as though the left is determined not only to lose the battle over Alito’s nomination, but to make sure that at the end of the day that battle does nothing to aid the progressive movement over the long term.

To be fair, this case, involving the Vanguard company, isn’t the sum total of the anti-Alito campaign. But it is playing a lead role. The Democrats on the Judiciary Committee plan to call at least one witness to discuss the case, in which Alito voted with a unanimous court in the mutual fund’s favor despite his previous promise to recuse himself from cases involving the company. IndependentCourt.org , the coalition of liberal groups fighting the Alito nomination, recently unveiled its first television ad, attacking Alito on the Vanguard case.

(The progressive coalition also has an ad which says, “The right wing has already taken over the West Wing. Don’t let them take over your Supreme Court.” The ad features the visages of Pat Buchanan, Rush Limbaugh and Gary Bauer, who will be recognizable to at least one out of every 30 or 40 voters. Perhaps they only had stock photos from the 1990s sitting around the office.)

It seems pretty clear that Alito should have recused himself from any cases involving Vanguard. So what’s wrong with making this such a key part of the campaign against him? The problem is twofold. First of all, liberals are going to have an exceedingly hard time convincing large numbers of people that Alito is some kind of crook. He may have cut some ethical corners, but to reject a Supreme Court nominee, the sin involved is going to have to be pretty serious, and like it or not, to most Americans the recusal issue will seem too technical and nit-picky.

Secondly, this issue says nothing about the fundamental debate progressives should want Americans to be having about this nomination. The Alito nomination isn’t about whether the Supreme Court will follow legal ethics on recusal, it’s about whether abortion will be legal, about whether civil rights and liberties will be maintained, about whether the head of our government is a president or a king. (And it now appears that if there’s one thing Alito has in common with Harriet Miers, it’s the belief that George W. Bush is above the law. This seems to be the real reason both of them got the nod.)

Nonetheless, the anti-Alito campaign seems to be shooting off in multiple directions. There are ads on the Vanguard case, ads on the issue of privacy, and ads on civil rights—though so far there haven’t been any ads on abortion, despite the fact that a recent Harris poll showed that 69 percent of Americans say they would oppose the nomination if they thought Alito would vote to overturn Roe v. Wade , something no one seriously doubts. This diffuse message is exactly what coalitions like IndependentCourt.org are designed to forestall—though perhaps because 53 different groups participate in the coalition, it’s hard to get everyone to agree to a single message.

All of these issues are critical. But right now, it would be hard to sum up in a single sentence just what the left sees as the problem with Samuel Alito sitting on the Supreme Court. Let’s make an analogy to the last presidential race. The central strategic superiority of the Bush campaign over the Kerry campaign can be summed up this way: Do you know the one thing the Bush campaign wanted you to believe about George W. Bush and the one thing they wanted you to believe about John Kerry? Of course you do—it’s that Bush was strong and Kerry was weak. They repeated it every day, and every argument they made related back to that central theme. And what was the one thing the Kerry campaign wanted you to believe about the two men? Damned if I know.

So what is the one thing Democrats and liberals want you to believe about Samuel Alito, the one reason he should not be on the Supreme Court? Is it that Alito is unethical, or that he’ll overturn Roe, or that he’ll let the government intrude on your privacy, or that he’ll give the executive branch unfettered authority? To return to the Kerry analogy, the story has it that at one point during the campaign Paul Begala went to Kerry headquarters, and in a meeting with some of the senior staff, he wrote out a number of central themes the campaign could employ. Pick one, he begged them—I don’t care which one you pick, but pick one.

Can The Left Win By Losing?

There are three possible outcomes to the Alito nomination. The first is that the nomination will fail, either because Alito is rejected in a Senate vote, filibustered successfully or withdraws his nomination. This outcome is theoretically possible, but extremely unlikely. Granted, many people (including myself) initially said the same thing about the Harriet Miers nomination, but the situation here is far different: Alito has 15 years on the bench and the full support of just about every wing of the conservative coalition (though the libertarians ought to be nervous). With the exception of Rhode Island’s Lincoln Chaffee, no Republican in the Senate has uttered a discouraging word about the nomination.

The second outcome is that Alito is confirmed, and the debate passes by the American public without any serious discussion about just what the implications are for the future of Supreme Court jurisprudence and American society. The right gets the replacement for O’Connor it wanted and pays no political price despite the unpopularity of its agenda. We take one giant step toward the eventual overturning of Roe , and on any number of other issues Alito provides the swing vote turning reasonable decisions into radical ones.

The third outcome may be the best progressives can hope for—and the one they should be working toward. In this scenario, Alito ultimately gets confirmed, but not before a debate that makes it crystal clear to the public just what the conservative vision of the Supreme Court entails: overturning Roe , a dramatic narrowing of civil liberties and the president invested with the power to ignore the laws he finds inconvenient.

Make Them Own It

One of the remarkable developments in recent months has been the way conservatives have run from the things they’ve been advocating for years. They finally get a president who pushes to privatize Social Security, and they deny that his plan will do any such thing. They get Supreme Court nominees who believe, as Alito said, that “the Constitution does not protect the right to an abortion,” and they protest that he didn’t really mean it and won’t act on it once he’s on the court. Even Sam Brownback of Kansas, as fervent an opponent of abortion as there is in the Senate, acted during his appearance yesterday on ABC’s “This Week” as though he had no idea whether Alito would vote to overturn Roe and wasn’t too concerned either way. Obviously, the Republicans know that if they were forthright about their agenda and their nominee, the American people would recoil in disgust.

So progressives need to make Alito and his patrons own their true beliefs. Alito’s nomination isn’t merely—to use the words of IndependentCourt.org’s press releases—“troubling” or “flawed.” It represents a radical vision for America. Those who oppose Alito already have the bill of particulars. What they need to do now is focus their criticism on a single theme, not because they think it might be the magic bullet that sinks the nomination, but because it articulates what the true stakes are for the court and the country.

If they do that, at the end of the day they will have advanced the interests of progressivism even if Alito takes a seat on the court. This is precisely what didn’t happen in the case of John Roberts; progressives were so flummoxed by his smooth performance that they couldn’t settle on one good reason to oppose him. As a consequence, Americans never understood the stakes, and no senator will be forced on the defensive by his or her vote for Roberts. But there’s still time to make the Alito vote one of the defining events of Bush’s second term.

Christian right sees judge as saviour of religious America
Email Print Normal font Large font By Thomas Edsall, Philadelphia
January 10, 2006


Taking sides: a man protests against Supreme Court nominee Samuel Alito as members of the Christian right rally in support of the judge in Philadelphia.
Photo: Rusty Kennedy

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AdvertisementLEADERS of the Christian right gathered in a Philadelphia church on Sunday night to build support for Supreme Court nominee Samuel Alito on the eve of his confirmation hearings before the Senate Judiciary Committee.

Conservative religious leaders want to follow their success in the elections of 2002 and 2004 by winning a fight over a Supreme Court nominee and defeating their Democratic and liberal adversaries.

The Alito nomination, which polls show a majority of voters support, is opposed by many organisations on the left.

Republicans and Democrats agree that if Judge Alito succeeds Justice Sandra Day O'Connor, the court is likely to shift to the right, especially on abortion issues and in disputes over the separation of church and state.

The "Justice Sunday III" speeches by Focus on the Family's James Dobson, former Moral Majority chairman Jerry Falwell and the Family Research Council's Tony Perkins were broadcast on several Christian television networks and directly into churches across the country.

"The threat to our religious liberties has not diminished," Mr Perkins told journalists. He cited rulings against the Pledge of Allegiance, restrictions on the public display of the Ten Commandments and a decision barring the Indiana House of Representatives from beginning sessions with prayers that refer to Jesus Christ.

"These are not theoretical threats. They present a clear and present danger to religious freedom in our country," Mr Perkins said. "We are not interested in creating a theocracy in America, we have no interest in a church state. What we want is a church that is free to speak the truth."

President George Bush's selection of Judge Alito has brought the issue of the president's executive power — along with abortion rights — to the forefront in the battle over the judge's confirmation.

Democrats are questioning whether the newest judge could be trusted to enforce the rule of law when the president says he is not bound by it.

Mr Bush's lawyers assert he has an "inherent authority" to act in defiance of the law when defending the nation's security during war.

"Does he believe in any checks on presidential power?" asked Democrat senator Charles Schumer "Does he believe that warrantless wire-tapping of Americans is constitutional?"

Last month Mr Bush acknowledged he had authorised the National Security Agency, without court permission, to intercept phone calls or computer messages of people in the US who had "known links" to terrorists.

In 2002 Mr Bush also said he stood above Congress and the courts. His lawyers then said the president, as commander-in-chief, was free to order harsh treatment, even torture, to obtain crucial information from prisoners — despite federal laws and US treaties prohibiting the use of torture in all circumstances.

The other big issue facing Judge Alito is his stance on abortion. He stated in a 1985 job application to the Reagan White House "that the constitution does not protect a right to abortion". This forthright statement will make it hard for him to avoid discussing his views on the issue.

WASHINGTON POST

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January 9, 2006
Alito Tells Senators That 'Rule of Law' Is Paramount
By DAVID STOUT
WASHINGTON, Jan. 9 - Judge Samuel A. Alito Jr. described himself today as the proud son of humble, hard-working parents and pledged that, as a Supreme Court justice, he would adhere to the rule of law regardless of any personal feelings.

"There is nothing that is more important for the republic than the rule of law," Judge Alito told the Senate Judiciary Committee on the first day of hearings on his nomination to the high court. "No one is above it, no one is beneath it."

Some 15 years ago, he recalled, he put his hand on the Bible and took an oath to uphold the law as a member of the United States Court of Appeals for the Third Circuit, in Philadelphia. "And that's what I have tried to do," he said. "That is what I would do on the Supreme Court."

In his 12-minute statement, Judge Alito was not only expressing his core beliefs and values but, perhaps, seeking to reassure those who fear that his conservative views would make him too beholden to President Bush and tilt the Supreme Court too far to the right.

"A judge can't have an agenda, a judge can't have a preferred outcome," the nominee said. "A judge can't have a client."

Nor, he suggested, has he been a rigid ideologue on the bench. "Good judges are always open to the possibility of changing their minds" when they read the next brief or hear the next argument, he said.

The judge paid tribute to his late father, Samuel A. Alito, and his mother, Rose, who is 91. "I am who I am in the first place because of my parents," he said. From them, he said, he learned the value of learning and hard work, home and hearth. And because a generous neighbor in Trenton enabled his brilliant but impoverished father to attend college, the judge said, he learned "the power of a small good deed."

Judge Alito seemed to hint at his own conservative values when he recalled that, as a Princeton student more than three decades ago, he saw some intelligent people with privileged backgrounds "behaving irresponsibly," an apparent allusion to the campus unrest of that era.

The 18 members of the committee will begin their questioning of the nominee on Tuesday. The hearings began today with senators of both parties vowing to question him closely on abortion, the tension between civil rights and national security and the powers of the presidency.

Senators Arlen Specter of Pennsylvania and Patrick J. Leahy of Vermont, the Republican chairman and leading Democrat, respectively, on the Senate Judiciary Committee, promised the nominee they would give him a fair hearing before deciding how they would vote.

But the senators told Judge Alito he needed to convince them - and by extension the American people - that he deserved to sit on the highest court in the land. The hearings come at a crucial moment, for President Bush politically and for the evolution of the law. Mr. Bush has been hampered by declining public support for some of his policies, and his last nominee to the high court, the White House counsel Harriet Miers, had to withdraw amid criticism of her credentials and questions on whether she could be independent.

Moreover, abortion is far from the only legal issue of paramount importance that is likely to come before the justices. They may also be called upon to weigh the balance between personal liberty and national security, in particular how much authority a president should have in the age of terrorism to order the detention of people without formal charges.

"There is, I think, a heavy sense of drama as these hearings begin," Mr. Specter said.

The chairman said experience had taught him that Supreme Court nomination hearings are "really in effect a subtle minuet," with the prospective justice typically saying only what he or she thinks is necessary to win the votes of enough senators. And, while some Republicans on the panel all but promised to vote in favor of the nominee, several Democratic committee members signaled that the "subtle minuet" may not be enough this time.

No senator, Republican or Democrat, questioned Judge Alito's credentials or intellectual acumen. But Mr. Leahy said it was all-important that Judge Alito convince the committee that he would be nothing like a "rubber stamp" for a conservative Republican administration of President Bush, whose overall philosophy the nominee clearly shares.

"I will ask Judge Alito to demonstrate his independence from the interests of the president," Mr. Leahy said.

Mr. Specter, one of only a few Republican senators who support a woman's right to abortion, said he would press Judge Alito on a memorandum he wrote in 1985, as a young lawyer in the administration of President Ronald Reagan, opposing the 1973 Roe v. Wade decision, in which the Supreme Court upheld a woman's right to choose.

Other abortion-rights supporters on the committee, Senators Dianne Feinstein of California and Charles E. Schumer of New York, indicated that they will closely question Judge Alito regarding that issue. "We will ask you, 'Do you still personally believe very strongly that the Constitution does not protect a right to an abortion?' " Mr. Schumer said.

Senator Specter said he will ask Judge Alito if he would still be guided by the views he expressed more than two decades ago - or would he, as a justice, put aside his personal feelings and rely on established law and precedent and, by implication, be very hesitant about tampering with Roe v. Wade?

At least one member of the committee, Senator Tom Coburn, made it clear he would not mind hearing Judge Alito speak against abortion. Mr. Coburn, an Oklahoma Republican who is a doctor, is a fervent opponent of abortion, which he scathingly termed "this wonderful right to choose" and "a right of convenience" to kill unborn babies.

Senator Leahy, like Mr. Specter a former prosecutor, said the nomination of Judge Alito was particularly important because it comes against a disturbing backdrop, "that the president has, outside the law, been conducting secret and warrantless spying on Americans for more than four years."

"It comes as members of the Bush administration and Republican Congressional leadership face criminal investigations and indictments in corruption probes," Mr. Leahy went on. "This is a time when the protections of Americans' liberties are directly at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years."

Senator Edward M. Kennedy, Democrat of Massachusetts, voiced similar concerns. "In an era when the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling," he said.

But those Republicans leaning toward the nominee were warm in their praise. Senator Jeff Sessions of Alabama, for instance, called the nominee "a brilliant but modest jurist," and one that would not try to legislate from the bench.

If confirmed, Judge Alito will fill the seat vacated by the retirement of Justice Sandra Day O'Connor, whom Judge Alito called "a pioneer" whose service to the country and the high court "will never be forgotten." She has been widely regarded as a "swing" justice, or ideological bridge between the tribunal's conservative and liberal wings. Thus, the elevation of Judge Alito would, in the opinion of many lawmakers and legal analysts, tip the balance of the court to the right, perhaps for many years to come.

No doubt aware of all that conjecture, the nominee sat in the hearing room with a serious demeanor, nodding and smiling occasionally. Inevitably, he is being compared to John G. Roberts Jr., whose nomination to be chief justice sailed through the committee on a 13-to-5 vote, with three of the panel's eight Democrats joining the 10 Republicans in endorsing him. The full Senate confirmed Judge Roberts, 78 to 22.

Judge Alito has been on the Third Circuit for 15 years, far longer than Chief Justice Roberts sat on the United States Court of Appeals for the District of Columbia Circuit before his nomination to the Supreme Court, and so has a much longer paper trail to stir admiration or suspicion, depending on one's perspective.

Mr. Leahy voted for Judge Roberts and, while he emphasized that he has not made up his mind about Judge Alito, he expressed disappointment with one aspect of the nomination.

"The court that served America should reflect America, but with this nomination the court has lost a measure of diversity," Mr. Leahy said. "There was no dearth of highly qualified women, Hispanics, African-Americans and other individuals who could well have served as unifying nominees while adding to the diversity of the Supreme Court."

Another Democrat who supported Judge Roberts, Senator Russell D. Feingold of Wisconsin, offered Judge Alito a warm personal welcome. "Judge, I do greatly admire your legal qualifications," he said. "I wish you well here." But he added pointedly, "I expect complete answers, and I think my colleagues do, too."

Republicans have 55 seats in the Senate, to 44 for the Democrats and 1 independent, James Jeffords of Vermont. So Judge Alito would seem to have a good chance at confirmation - unless the Democrats stall the proceedings with a debate-prolonging filibuster that requires 61 votes to defeat.



Copyright 2006The New York Times Company

Reporter's Notebook: The Alito Hearings
By DAVID D. KIRKPATRICK
JAN. 9 | 3:34 PM
LIKE A ROCK ...

The first day of the confirmation hearings has already proven at least one thing about Judge Alito: he has a heck of a poker face. Chief Justice John G. Roberts Jr. appeared to listen intently, sometimes nodding, as though he was truly engrossed by each senator’s comments. Not Judge Alito. He has sat stone-faced and impassive through statement after statement -- Senator Charles E. Schumer lecturing him that a "a President is not a king"; Senator Richard Durbin recounting stories about Judge Alito's father and a stand he once took against racial discrimination; Senator Tom Coburn hectoring him about the gruesome fate of aborted fetuses "ripped from the wombs of women" Judge Alito has not flinched ­-- not a nod, not a frown.

Reporter's Notebook
David D. Kirkpatrick at the Senate hearings.


JAN. 9 | 3:23 PM
DURBIN INVOKES SAGO ACCIDENT

Some Democrats are working hard to set the debate over Judge Alito's Supreme Court confirmation against the backdrop of the debate over the Bush administration's domestic wiretapping and its fight against terrorism. Senator Richard J. Durbin took a different tact. He invoked the recent deaths of several miners at the Sago mine in West Virginia. Judge Alito, Senator Durbin said, had once ruled in favor of a mining company against the claim of its employees. Post a Comment


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JAN. 9 | 2:45 PM
WADING INTO ROE

Who's talking about abortion? So far, mostly Republicans. All the Democrats on the Judiciary Committee support abortion rights. Disclosures from his work in the Reagan administration indicate that, at least at that time, Judge Alito vigorously disputed the idea that the Constitution protects such a right. But with the notable exception of Senator Dianne Feinstein-­Democrat of California and the only woman on the committee -- most Democrats on the committee have largely downplayed the issue or subordinated it to broader concerns about privacy. Meanwhile, Senator Arlen Specter, a Republican who supports abortion rights, called abortion the dominant issue of the hearings. And both Senator Jeff Sessions and Senator Lindsey Graham discussed the issue at length, each indicating they hoped Judge Alito would rule against abortion rights from the bench. ( Transcript of Hearing ) Post a Comment


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JAN. 9 | 2:17 PM
PRESSURE FROM THE LEFT - AND RIGHT

Democrats may be prodding Judge Alito, but he's not getting a total free ride from Republicans either. The oath a Supreme Court justice takes is "not an oath to uphold precedent, whether that precedent is super-duper or not," Senator Jeff Sessions, Republican of Alabama, told Judge Alito, alluding to Senator Arlen Specter's term "super-duper precedent" for the status of landmark cases upholding abortion rights. If Judge Alito is confirmed, Senator Sessions made clear, he hopes Justice Alito will vote to overturn those precedents. Earlier, Senator John Cornyn, Republican of Texas, made his own case for "one area where I believe our Supreme Court has been rewriting the Constitution for a very long time" -- separation of church and state. "This is where you come in, Judge Alito," he said. "It is my sincere hope, Judge Alito, that you will be confirmed to the Supreme Court and that you will persuade your colleagues to reconsider their attitude toward religious expression." Post a Comment


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JAN. 9 | 1:27 PM
THE O'CONNOR HEARINGS?

The specter of Justice Sandra Day O'Connor continues to hover over the Alito hearings. Four Democrats on the Judiciary Committee -- Patrick Leahy, Edward M. Kennedy, Joseph Biden and Dianne Feinstein -- have already mentioned Justice O'Connor by name. The purpose: contrasting Judge Alito's views with those of Justice O'Connor, the jurist he would replace and the person long labeled as the swing vote on the court on such issues as abortion, states' rights and affirmative action. The further apart Judge Alito's views can be made to appear from those of Justice O'Connor, the more leeway Democrats will have to argue that Judge Alito is "out of the mainstream" and that his confirmation could push the court far to the right.

Judge Alito's nomination to replace the first woman named to the court has also been raised. "Through no fault of your own, we are cutting the number of women in half on the court," Senator Biden told Judge Alito, arguing that the committee should therefore take hard look at his stances on women's issues. One could almost forget that Justice O'Connor is a Republican, nominated by President Ronald Reagan in 1981. It is a safe bet that Judge Alito will join the senators in signing her praises. Which aspect of her career he elects to emphasis remains to be seen. Post a Comment


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JAN. 9 | 1:27 PM
PRESIDENTIAL POWER

Democrats quickly laid out their strategy for the ensuing debate. In their biggest departure from the hearings on the nomination of Chief Justice Roberts, Democrats in statement after statement are invoking the debate over Bush administration's push for broader executive powers in the name of fighting terrorism. Pounding on this theme: Senator Patrick Leahy of Vermont, the ranking Democrat on the committee, and Senator Edward M. Kennedy of Massachussets. Senator Kennedy cited a study by the liberal legal scholar Cass Sunstein that concluded that Judge Alito tended to rule against individual rights and in favor of government or law enforcement authorities.

Judge Alito has never publicly addressed the question of presidential power in a time of war. And his public statements on the subject on his own behalf have dealt mainly with the distribution of power within the executive branch rather than the scope of that power or the balance of power within the executive branch. Post a Comment


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JAN. 9 | 1:16 PM
IN BRIEF

SCOTUSblog's Fred Smith is writing a concise capsule of each senator's opening statement. For the complete text of the statements, go to the Times'sWeb navigator.

Blogs for Bush post: "I talk about déjà vu... The Democrats sound like they are recycling their scripts from the Roberts hearings... Such as a lot of praise for Sandra Day O'Connor, repeated the "divided nation" theme, and longwinded justifications for the stupid questions they will eventually ask." Post a Comment


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JAN. 9 | 11:57 AM
OPENING STATEMENTS

At 11 a.m. on Monday, the hearing room was still almost entirely empty, but senators of both parties had already begun laying the groundwork for a contentious debate over Judge Alito’s nomination. In an advance copy of his opening statement released Sunday night, Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, signaled his intention to question Judge Roberts about President Bush’s authorization of warrantless domestic wiretapping without specific Congressional approval. “This hearing comes at a time of great national concern about the balance between civil rights and the Presidents national security authority,” Mr. Specter wrote.

Monday morning, Senator Charles E. Schumer also released his opening statement. Mr. Schumer said he hadn't made up his mind about how he would vote on Judge Alito's confirmation, but signaled that he had "serious concerns" about Judge Alito's record. Post a Comment


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JAN. 9 | 11:45 AM
ALITO. I JUST MET A JUDGE NAMED ALITO...

On the morning of the first day of Senate hearings on his nomination to the Supreme Court, Judge Samuel A. Alito Jr. stepped out of the passenger seat of a dark SUV at the corner of Constitution Avenue and 1st Street at 11 a.m. to chants of "Alito, Alito." The conservative Christian group TeenPact, tipped off by the Bush administration about the location of his drop off, had assembled a gang of about 50 high school students with red A+ stickers on their lapels to cheer the nominee’s arrival. Judge Alito seemed almost to blush at the attention, smiling with tight lips, nodding his head, and murmuring thanks as he headed for the door of a Senate office building.

Senate Judiciary Committee staff distributing public tickets for admission to the hearing said that by 10 a.m. they had passed out about 120 "not as much as anticipated" but "slightly more than for Roberts," referring to Chief Justice John G. Roberts Jr., whose hearings took place in the same chamber just a few months ago. Post a Comment


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Transcript
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Part I of II

Monday, January 9, 2006; 12:59 PM

Read below the opening statements of the first thirteen senators' opening statements. The final statements, and Judge Alito's opening statement, can be found in Part II.

SPEAKERS:
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)

WITNESSES:
JUDGE SAMUEL A. ALITO,
NOMINATED TO BE AN ASSOCIATE JUSTICE OF
THE U.S. SUPREME COURT

U.S. SENATOR FRANK LAUTENBERG (D-NJ)
CHRISTINE TODD WHITMAN ®,
FORMER GOVERNOR OF NEW JERSEY

SPECTER: Good afternoon, ladies and gentlemen. The Senate Judiciary Committee will now proceed to the confirmation hearings of Judge Samuel Alito Jr., for the Supreme Court of the United States.

A few matters of administration or housekeeping, and then we will proceed to the opening statements.

Today we will hear first from Judge Alito's introduction of his family.

Judge, the floor is yours to introduce your family.

ALITO: Thank you very much, Mr. Chairman.

Let me introduce my wife Martha, who's here today. And my sister Rosemary, who's a lawyer in New Jersey and a tough trial lawyer. I'm glad that she took time from her schedule to come to the hearing today.

My daughter Laura, who is a senior at James Caldwell High School in West Caldwell, New Jersey, and if a father can be permitted to brag for a second, a really great swimmer who led her high school team to win the county championship last week.

My son Philip who's a second-year student at the University of Virginia.

And when I had my confirmation hearing for the Court of Appeals, Philip was 3 years old. And when I was called up to the chair he took it upon himself to run up and sit next to me in case any hard questions came up.

(LAUGHTER)

I don't know whether he's going to try the same thing tomorrow, but probably I could use the help.

I'm glad that my in-laws are able to be here today. My father- in-law, Gene Bomgardner, who is a retired Air Force NCO. And my mother-in-law, Barbara Bomgardner, who is a retired Air Force librarian.

And my cousins, Andrew and Alda Mercurio (ph) from Lynn Valley (ph), Pennsylvania, are also here.

My mother, who turned 91 a couple of weeks ago, unfortunately is not able to be here today, but I'm sure she's watching at home.

ALITO: Thank you very much, Mr. Chairman.

SPECTER: Well, thank you, Judge Alito. You have a beautiful family, and we're delighted to have them with us on the confirmation proceedings.

We will have 10-minute rounds of opening statements: each senator, 10 minutes. We will then turn to the presenters of those who will be presenting Judge Alito formally to the committee. And then we will administer the oath to Judge Alito and we will hear his testimony.

We will begin tomorrow morning at 9:30 for the opening round of questions. Each senator will have 30 minutes on the opening round and we have a second round scheduled of 20 minutes for each senator. And then we will see how we will proceed.

Our practice is to adhere to the time limits. And we do that for a number of reasons. One of them is that senators come and go and if we maintain the schedule which is known to everybody, they know when to return for their next round of questions.

We will take 15-minute breaks at a convenient time. And again, we will hold the breaks to 15 minutes.

I've worked closely with Senator Leahy on scheduling matters and all other matters. And this is the model that we used for the confirmation of Chief Justice Roberts.

It is our intention to conclude the hearings this week. And as Senator Leahy and I worked out the arrangements to have a markup on Tuesday of January 17th, subject to something extraordinary happening.

SPECTER: Now let me yield to the distinguished ranking member, Senator Leahy.

LEAHY: Well, Mr. Chairman, I don't want to hold up your opening statement or the others.

I do appreciate people being here. As the Roberts hearings showed -- for Chief Justice John Roberts -- there will be real questions asked, I would hope. I would hope senators on both sides of the aisle would do that. I think it's important, when we are talking about a position representing 295 million Americans.

On the schedule, I will work with the senior senator from Pennsylvania, the chairman. I understand, as one of our leaders once said, getting senators to all move in order is like having bullfrogs in a wheelbarrow.

But we will continue to work with that. I think the most important thing is we have a good solid hearing this week.

And, Mr. Chairman, you have been totally fair in your procedures for this, as always.

SPECTER: Thank you very much, Senator Leahy.

And now we begin the opening statements.

No senator's vote, except for the declaration of war or the authorization for the use of force, is more important than the confirmation of a nominee for the Supreme Court for a lifetime appointment.

Judge Alito comes to this proceeding with extensive experience as a government lawyer, as a prosecutor and as a judge. He has written some 361 opinions. He has voted in more than 4,800 cases. And it is possible to select a few of his cases to place him at any and every position on the judicial spectrum. By selecting the right cases, he can look like a flaming liberal or he can look like an arch- conservative.

This hearing will give Judge Alito the full opportunity to address the concerns of 280 million Americans on probing questions which will be put to him by 18 senators representing their diverse constituencies.

SPECTER: I have reserved my own nomination on this -- my own vote on this nomination until the hearing is concluded. I'm committed, as chairman, to a full, fair and dignified hearing. Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should be in substance and in perception for all Americans.

There is no firmly established rule as to how much an a nominee must say to be confirmed. While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the court, senators may ask whatever they choose and the nominee is similarly free to respond as he chooses.

It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed.

Last year, when President Bush had two vacancies to fill, there was concern expressed that there might be an ideological change in the court. The preliminary indications are from Chief Justice Roberts' performance on the court and his Judiciary Committee testimony on modesty, stability and not jolting the system, all suggest that he will not move the court in a different direction.

If that holds true, Judge Alito, if confirmed, may not be the swing vote regardless of what position Judge Alito takes on the political spectrum.

Perhaps the dominant issue in these hearings is the widespread concern about Judge Alito's position on a woman's right to choose. This has risen, in part, because of a 1985 statement made by Judge Alito that the Constitution does not provide for the right to an abortion. It has risen, in part, because of his advocacy in the Solicitor General's Office seeking to limit or overrule Roe and from the dissenting portion of his opinion in Casey v. Planned Parenthood in the 3rd Circuit.

This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead, he will weigh factors such as stare decisis -- that is, what are the precedents -- that he will weigh women's and men's, too, reliance on Roe, and he will consider, too, whether Roe is, quote, "embedded," in the culture of our nation.

SPECTER: The history of the court is full of surprises on the issue. The major case upholding Roe was Casey v. Planned Parenthood, where the landmark opinion was written jointly by three justices: Justice O'Connor, Justice Kennedy and Justice Souter.

Before coming to the court, Justice Souter, Justice Kennedy and Justice O'Connor had all expressed views against a woman's right to choose. David Souter, as attorney general of New Hampshire, even opposed changing New Hampshire's law prohibiting abortion, even after the Supreme Court of the United States had declared it unconstitutional.

At the time of Justice Souter's confirmation hearing, there was a Stop Souter rally of the National Organization for Women a few blocks from where we currently are holding this hearing, displaying in red a banner: "Stop Souter or women will die." Stop Souter Rally, a mass lobbying day -- somewhat similar to this morning's press where banners are paraded in front of the Supreme Court, "Save Roe," and brochure circulated again by NOW, "Save women's lives; vote no on Alito."

SPECTER: So the history of this issue has been one full of surprises.

This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act.

This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases, where Justice Jackson wrote, quote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right and all that Congress can delegate. When the president acts in absence of a congressional grant of authority, he can rely only upon his own independent powers. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."

And as Justice Jackson noted, quote, "What is at stake is the equilibrium established in our constitutional system."

Another major area of concern is congressional power. And, in recent decisions, the Supreme Court of the United States has declared acts of Congress unconstitutional, really denigrating the role of Congress.

In declaring unconstitutional legislation designed to protect women against violence, the Supreme Court did so notwithstanding a voluminous record in support of that legislation, but because of Congress', quote, "method of reasoning"; rather insulting to suggest that there is some superior method of reasoning in the court.

SPECTER: When the Supreme Court handled two cases recently on the Americans for Disability Act, they upheld the act as it applied to discrimination as to access and declared it unconstitutional as it applied to discrimination in employment.

They did so by applying a test of what is called "congruent and proportionate," which, candidly stated, no one can figure out.

In dissent, Justice Scalia called it a, "flabby test, where the court set itself up as the taskmaster to see if Congress had done its homework." And Justice Scalia said that it was, "an invitation to judicial arbitrariness by policy-driven decision-making."

And this hearing, I know will involve consideration as to Judge Alito's views on congressional power.

There is reason to believe that our Senate confirmation hearings may be having an effect on Supreme Court nominees on their later judicial duties. Years after their hearings, Supreme Court justices talked to me about our dialogues at these hearings.

This process has now evolved to a point where nominees meet most of the senators. In this process, nominees get an earful. While no promises are extracted, statements are made by nominees which may well influence their future decisions.

SPECTER: Chief Justice Roberts, for example, will have a tough time giving a jolt to the system after preaching modesty and stability.

There is, I think, a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our constitutional process, as the president nominates, the Senate confirms or rejects and the successful nominee ascends to the bench.

While it may be a bit presumptuous, I believe the framers, if they were here, would be proud and pleased to see how well their constitution is being applied.

My red light just went on and I now yield to my distinguished colleague, Senator Leahy.

LEAHY: Thank you, Mr. Chairman.

Good afternoon, Judge and Mrs. Alito and the others.

You know, following up on what the chairman was saying, the challenge for Judge Alito in the course of these hearings is to demonstrate that he's going to protect the rights and liberties of all Americans and, in doing that, serve as an effective check on government overreaching.

I have said that the president did not help his cause by withdrawing his earlier nomination of Harriet Miers in the face of criticism from the narrow faction of his own party who were concerned about how she might vote.

Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure a small faction of our population, while leaving the American people in the dark.

I think we'd all agree, no president should be allowed to pack the courts, especially the Supreme Court, with nominees selected to enshrine presidential claims of government power.

LEAHY: The checks and balances that should be provided by the courts, Congress and the Constitution are too important to be sacrificed to a narrow, partisan agenda.

So this hearing is the opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he -- you, Judge -- will protect their liberty, their privacy and their autonomy from government intrusion.

The Supreme Court belongs to all Americans, not just to the person occupying the White House and not just to a narrow faction of either political party.

The Supreme Court is our ultimate check and balance. Independence of the court and its members is crucial to our democracy and our way of life.

And the Senate should never be allowed to be a rubber stamp. Neither should the Supreme Court. So I will ask the judge to demonstrate his independence from the interest of the president appointing him or nominating him.

This is a nomination to a lifetime seat on the nation's highest court. It's going to a seat that's often represented the decisive vote on constitutional issues, so we have to make an informed decision. That means knowing more about Samuel Alito's work in the government and knowing more about his views.

I will, as the judge knows, ask about the disturbing memorandum he wrote to become a political appointee in the Meese Justice Department. In that, he professed concern with the fundamental principle of one person, one vote, a principle of the equality that's the bedrock of our laws.

LEAHY: And this hearing is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter on the meaning of the Constitution and its laws.

Has he demonstrated commitment to the fundamental rights of all Americans? Will he allow the government to intrude on Americans' personal privacy and freedoms?

In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially important. It's important to know whether he would serve with judicial independence or as a surrogate for the president nominating him.

And so this public conversation, this hearing over the next few days, is extremely important. It's the people's Constitution and the people's rights that we're all charged with protecting and preserving.

In this hearing, we embark on the constitutional process, one that was designed to protect these rights and has served this country for so very well for more than two centuries.

I'm reminded of a photograph, Mr. Chairman, that hangs in the National Constitution Center in Philadelphia. Shows the first woman ever to serve on the Supreme Court of the United States taking the oath of office in 1981. Justice Sandra Day O'Connor serves as a model Supreme Court justice, widely recognized as a jurist with practical values, a sense of the consequences of the legal decisions being made by the Supreme Court.

And I regret that some on the extreme right have been so critical of Justice O'Connor and have adamantly opposed the naming of a successor who shares her judicial philosophy and qualities. And their criticism actually reflects poorly upon them. It does nothing to tarnish the record of the first woman to serve an associate justice of the Supreme Court of the United States.

She's a justice whose graciousness and sense of duty fuels her continued service, even agreeing to serve more than six months after her retirement date. And I know both you and I commend her for that.

The court that serves America should reflect America. This nomination was an opportunity, of course, for the president to make a nomination based on diversity. He didn't, even though there's no dearth of highly qualified Hispanics and African-Americans, other individuals who could well have served as unifying nominees while adding to diversity.

Actually I look -- but that, of course, is the president's choice, Judge, not yours. But I look forward to the time when the membership of the Supreme Court's more reflective of the country it serves.

LEAHY: Now, as the Senate begins its consideration of President Bush's nominee, his third to this seat, to Justice O'Connor's seat, we do so mindful of her critical role on the Supreme Court. Her legacy is one of fairness. And when I decide how to vote it's because I want to see that legacy preserved.

Justice O'Connor has been a guardian of the protections the Constitution provides the American people. She's come to provide balance and a check on government intrusion into our personal privacy and freedoms.

In the Hamdi decision, she rejected the Bush administration's claim that it could indefinitely detain a United States citizen. She upheld the fundamental principle of judicial review over the exercise of government power.

And she wrote -- and this is one we should all remember -- she wrote that even war is not a blank check for the president when it comes to the rights of the nation's citizens. She held that even this president is not above the law. And of course no president, Democratic or Republican -- no president -- is above the law, as neither are you, nor I, nor anyone in this room.

Her judgment has also been critical in protecting our environmental rights. She joined in 5-4 majorities affirming reproductive freedom and religious freedom and the Voting Rights Act.

Each of these cases -- and I mention them because they make how important a single Supreme Court justice is -- and it's crucial that we determine what kind of justice Samuel Alito would be if confirmed. And of course, Judge, my question will be: Will you be an independent jurist?

It is as the elected representatives of the American people, all the people, nearly 300 million people, that we in the Senate are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee.

LEAHY: The Constitution is their document. It guarantees their rights from the heavy hand of government intrusion and the individual liberties to freedom of speech, to religion, to equal treatment, to due process and to privacy. Actually, this hearing, this is their process.

The federal judiciary is unlike the other branches of government. And once confirmed, a federal judge serves for life. And there's no court above the Supreme Court. So the American people deserve a Supreme Court justice who can demonstrate that he or she will not be beholden to the president, but only to the law.

Last October, the president succumbed to partisan pressure from the extreme right of his party by withdrawing Harriet Miers. And by withdrawing her nomination and substituting this one, the president has allowed his choice to be vetoed by an extreme faction within his party before even a hearing or a vote.

Frankly, that was an eye-opening experience to me. It gives the impression that there are those who do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.

And that's why the questions will be asked so specifically of you, Judge.

The nomination is being considered against the backdrop of another revelation: that the president has, outside the law, been conducting secret and warrant-less spying on Americans for more than four years.

This is a time when the protections of Americans' liberties are directly at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years. The Supreme Court is relied upon by all of to us protect our fundamental rights.

Now, I have not decided how I will vote in this nomination and, like the chairman, I will base my determination on the whole record at the conclusion of these hearings, just as I did in connection with the nomination of John Roberts to be chief justice.

LEAHY: At the conclusion of those hearings, I determined to vote for him.

Stakes for the American people could not be higher. At this critical moment, Senate Democrats serving on this committee will perform our constitutional advice and consent responsibility with heightened vigilance.

But I would urge all senators -- Republicans, Democrats, independents -- to join us with in serious consideration.

The appointment of the next Supreme Court justice must be made in the people's interest and in the nation's interest, not in the interest of any partisan faction.

Mr. Chairman, thank you very much.

SPECTER; Thank you very much, Senator Leahy.

Senator Hatch?

HATCH: Thank you, Mr. Chairman.

I welcome you, Judge Alito, your family members, friends and others who are accompanying you.

This hearing is part of an ongoing evaluation of Judge Samuel Alito's nomination to replace Justice Sandra Day O'Connor as associate justice of the Supreme Court of the United States.

It is remarkable that after a nearly record-long period without a Supreme Court vacancy, we are hear considering a second nominee in less than six months.

Mr. Chairman, let me first commend you for firmly and fairly handling these hearings. The timetable we are following reflects your efforts to accommodate all sides. And the 70 days since President Bush announced the nomination significantly exceeds the average for other Supreme Court nominees.

The debate over this and other judicial nominations is a debate over the judiciary itself. It is a debate over how much power unelected judges should have in our system of government, how much control judges should have over a written constitution that belongs to the people.

Ending up in the right place in this debate requires starting in the right place. The right place to start is the proper discrimination of what judges are supposed to do, and the rest of the process should reflect this judicial job description.

HATCH: The process for evaluating Judge Alito's nomination began when President Bush announced it more than two months ago. It continued with his meetings -- with Judge Alito's meetings -- with more than two-thirds of the senators and a vigorous debate in the media and among analysts, scholars and activists.

As the Senate completes the evaluation process, we must keep some very important principles in mind and follow a few basic rules. The first principle is that in this judicial selection process, the Senate and the president have different roles.

Under the Constitution, the president, not the Senate, nominates and appoints judges. The Senate has a different role. We must give our advice about whether President Bush should actually appoint Judge Alito by giving or withholding our consent.

Abiding by the Constitution's design and our own historical tradition require that after Judge Alito's nomination reaches the Senate floor, we vigorously debate it and then vote up or down.

The second principle is that in our system of government, the judicial and legislative branches have different roles. As Chief Justice Roberts described it when he was before this committee last fall, judges are not politicians. Judges must decide cases, not champion causes. Judges must settle legal disputes, not pursue agendas. Judges must interpret and apply the law, not make the law.

This principle that judges are not politicians lies at the very heart of a judicial job -- of the judicial job description.

In addition to these two principles, a few basic rules should guide how we complete this confirmation process.

First, we must remember that judicial nominees are constrained in what they may discuss and how they may discuss it.

Like Chief Justice Roberts and others before him, Judge Alito is already a federal judge. He not only will be you bound by the canons of judicial ethics as a Supreme Court justice, he is already bound by these canons as an appeals courts judge. Because judges may not issue advisory opinions, judicial nominees may not do so either, especially on issues likely to come before the court. That rule has always been honored.

HATCH: Needless to say, those who will demand such advisory opinions in this hearing will do so precisely on those issues that are likely to come before the court. They have a right to ask those questions. But as The Washington Post editorialized just this morning, however, quote, "He will not and should not tell Americans how he will vote on hotly contested issues," unquote.

When Judge Ruth Bader Ginsburg was before us in 1993, she said that her standard was to give no hints, no forecasts, no previews, and declined to answer dozens of questions.

The second rule we should follow is to consider each part of Judge Alito's record on its own terms for what each part actually is. He wrote memos when he worked for the Justice Department. He has written judicial opinions while on the appeals court. He wrote answers to the questionnaire from this committee in 1990 and again last year. He has written articles and given speeches. He has joined certain groups.

And each of these is different. Each of these must be considered in its own context, on its own terms, rather than squeezed, twisted and distorted into something designed, instead, to support a preconceived position or serve a preplanned agenda.

The third rule we should follow is considering Judge Alito's entire record. Some interest groups focus on -- some would say they obsess about -- one recusal question. Or they cherry pick from the thousands of cases in which Judge Alito participated and the hundreds of opinions he authored or joined. Or they look at the results but ignore the facts and the law in those cases.

Judge Alito comes to us with a record that is long, broad and deep. He deserves, and our constitutional duty requires, that we consider his entire record.

Finally and perhaps most important, we must apply a judicial rather than a political standard to the information before us. And we do have a lot of information. The record includes more than 360 opinions of all kinds -- majority, concurring and dissenting -- written during his judicial tenure.

HATCH: We have more than 36,000 pages of additional material, including unpublished opinions, legal briefs, articles, speeches and Department of Justice documents relating to his service in the Office of Legal Counsel and in the Solicitor General's Office.

We must apply a judicial, not a political, standard to this record. Asking a judicial nominee whose side you will be on in future cases is a political standard. Evaluating Judge Alito's record by asking whose side he's been on in past cases is, again, a political standard.

Scorecards are common in the political process, but they are inappropriate in the judicial process. The most important tools in the judicial confirmation process are not litmus paper and a calculator.

Applying a proper judicial standard to Judge Alito's record means putting aside the scorecards and looking at how he does what judges are supposed to do: namely, settle legal disputes by applying already established law.

A judicial standard means that a judicious decision can be entirely correct, even when the result does not line up with our preferred political positions or cater to certain political interests.

When he was here last fall, Chief Justice Roberts compared judges to umpires, who apply rules they did not write and cannot change to the competition before them.

We do not evaluate an umpire's performance based on which team won the game but on how that umpire applied the rules inning after inning. We do not hire umpires by showing them the roster for the upcoming season and demanding to know which teams they will favor before those teams even take the field.

HATCH: Similarly, we should evaluate judges and judicial nominees based on the general process for applying the law to any legal disputes, not on the specific result in a particular case or dispute.

The fact that Judge Alito is such a baseball fan gives me even more confidence that he knows the proper role of a judge.

I know that there is a pitched battle going on outside the Senate, with dueling press conferences, television ads, e-mail, petition drives and stacks of reports and press releases. The Senate can rise above that battle if we remember the proper role for the Senate and the proper role for judges.

We can rise above that battle if we respect that judicial nominees are limited into what they may discuss, take each part of Judge Alito's record on its own terms, consider Judge Alito's entire record and apply a judicial, rather than a political, standard.

Judge Alito, I know you. I've known you for a long time. You are a good man. You're an exceptional judge as well. I welcome you and your family to this committee. And I hope that the days ahead will reflect more light than heat.

And we congratulate you that you're willing to go through this grueling process to represent your country on one of the three separated powers that means so much to all of us.

And I'm grateful to personally know you as well as I do.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Hatch.

Senator Kennedy?

KENNEDY: Thank you, Mr. Chairman.

Judge Alito, I join in welcoming you and your family to this committee.

I appreciated the opportunity to visit with you in my office a few weeks ago. And I was particularly impressed by your personal family story of how you were encouraged to do well and contribute to your community.

KENNEDY: And I also applaud your dedication to public service throughout your lifetime.

Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong, just and fair. And we must determine whether a nominee has a demonstrated commitment to those basic values.

Will a nominee embrace and uphold the essential meaning of the four words inscribed above the entrance of the Supreme Court building: Equal justice under law?

Justice Lewis Powell spoke for all of us when he said: Equal justice under law is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists.

As we have seen from Justice O'Connor's example, even one justice can profoundly alter the meaning of those words for our citizens. Even one justice can deeply affect the rights and liberties of the American people.

Even one justice can advance or reverse the progress of our journey. So the question before us in these hearings is this: Does Judge Alito's record hold true to the letter and the spirit of equal justice? Is he committed to the core values of our constitution that are at the heart of our nation's progress. And can he truly be even- handed and fair in his decisions?

KENNEDY: In a way, Judge Alito has faced this issue before as a nominee to the court of appeals. I had the privilege of chairing his confirmation hearing in 1990. And at that time, he had practiced law for 14 years, but only represented one client, the United States government.

And I asked whether he believed he could be impartial in deciding cases involving the government. And in that hearing, Judge Alito said on the record that the most important quality for a judge is open- mindedness to the arguments. And he promised the committee that he would make a very conscious effort to be absolutely impartial. We took him at his word and overwhelmingly confirmed him to the 3rd Court of Appeals.

We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago. And I regret to say that the record troubles me deeply.

In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling.

Under the president's spying program, there are no checks and balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the president vows to continue spying on American citizens.

Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.

KENNEDY: I'm gravely concerned by Judge Alito's clear record of support for vast presidential authority unchecked by the other two branches of government.

In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans.

And in his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.

In fact, it is extraordinary that each of the three individuals this president has nominated for the Supreme Court -- Chief Justice Roberts, Harriet Miers and now Judge Alito -- has served not only as a lawyer for the executive branch, but has defended the most expansive view of presidential authority.

Perhaps that is why this president nominated them.

But as Justice O'Connor stated, even a state of war is not a blank check for a president to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.

There are other areas of concern. In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.

In a study by the well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents.

KENNEDY: To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job: in 15 years on the bench, not one.

And when I look at that record in light of the 1985 job application to the Reagan Justice Department, it's even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities.

It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions.

It expresses outright hostility to the basic principle of one person, one vote, affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.

This application was not a youthful indiscretion. It was a document prepared by a mature, 35-year-old professional.

Finally, many of us are concerned about conflicting statements that Judge Alito has made in response to questions from this committee and others. As Chairman Specter has stated, this confirmation largely depends on the credibility of Judge Alito's statements to us. And we have questions.

When asked about the ideological statements and specific legal opinions in his 1985 application, Judge Alito has dismissed those statements as "just applying for a job."

KENNEDY: When he was before this committee in 1990, applying for a job to the circuit, he promised under oath that he would recuse himself from cases involving Vanguard, the mutual fund company in which he had most of his investments.

But, as a judge, he participated in a Vanguard case anyway and has offered many conflicting reasons to explain why he broke his word. We need to get to the bottom of this matter to assure ourselves that what Judge Alito says in these hearings will not be just words, but pledges that guide him in the future if he is confirmed.

Judges are appointed by and with the advice and consent of the Senate. And it is our duty to ask questions on great issues that matter to the American people and to speak for them.

Many Republican senators certainly demanded answers from Harriet Miers. We should expect no less from Judge Alito. There is no time for a double standard.

If confirmed, Judge Alito could serve on the court for generation or more. And the decisions he will make as justice will have a direct impact on the lives and liberties of our children, our grandchildren, and even our great-grandchildren.

We have only one chance to get it right and a solemn obligation to do so.

So, Judge Alito, I have serious questions to ask. I congratulate you on your nomination and I look forward to your answers in these hearings.

SPECTER: Thank you, Senator Kennedy.

Senator Grassley?

GRASSLEY: I have a much more positive view of Judge Alito.

(LAUGHTER)

And I think the record will sustain my view.

But, first, Judge Alito, I welcome you and your proud family to the committee. And congratulations on your nomination.

I first want to remind all Americans who might be listening that the Senate has a very important responsibility to confirm only well- qualified individuals who will faithfully interpret the law and the Constitution.

GRASSLEY: Confirmation should be limited to those individuals who will be fair, unbiased, devoted to addressing the facts and the law before them, without imposing their own values and political beliefs when deciding cases.

Nominees shouldn't be expected to pre-commit to ruling on certain issues in a certain way. Nor should senators ask nominees to pledge to rule on issues in a particular way.

So if we fulfill our responsibility to the Constitution, the Supreme Court will be filled with superior legal minds who will pursue the one agenda that our founding fathers intended in writing the Constitution: justice, rather than political or personal goals.

The Supreme Court will then consist of individuals who meticulously apply the law and the Constitution, regardless of whether the results they reach are popular or not.

If we do our job right, the Supreme Court won't be made up of men and women who are on the side of the little guy or the big guy; rather, the Supreme Court will be made up of men and women who are on the side of the law and the Constitution.

From all accounts, Judge Alito has an impressive and extensive legal and judicial record; certainly one worthy of someone on the Supreme Court.

Judge Alito excelled at top-notch schools, member of Law Review, clerked for a federal judge. He also held important positions at the Department of Justice Office of Legal Counsel, the Solicitor General's Office, and was U.S. attorney for New Jersey before being appointed to the Third Circuit.

I want to remind the American people, this nominee, Judge Alito, has been confirmed unanimously by the United States Senate, not once, but twice. This is a tremendous record of accomplishment and public service, equal to any Supreme Court nominee that I've considered in 25 years I've been on this committee.

Not only that, Judge Alito has a reputation for being an exceptional and honest judge devoted to the rule of law, as well as being a man of integrity.

GRASSLEY: Judge Alito enjoys the support and respect of the people who work with him, practice with him and, therefore, know him best.

Example: 54 of Judge Alito's law clerks -- Democrats, Republicans and independents alike -- signed a letter to the committee that stated, quote: "We collectively were involved in thousands of cases, and it never once appeared to us that Judge Alito has prejudged a case or ruled based on political ideology."

Continuing the quote, "It is our uniform experience that Judge Alito was guided by his profound respect for the Constitution and the limited role of the judicial branch."

Those 54 opinions say a lot about Judge Alito and his approach to judicial function. Like Chief Justice Roberts, it appears that Judge Alito tries to act like an umpire, calling the balls and strikes, rather than advocating a particular outcome.

I'm also impressed with the very complimentary things that some lawyers have had to say about Judge Alito in the Lawyers Evaluation section of the Almanac of the Federal Judiciary.

GRASSLEY: With respect to his legal ability, lawyers praised him, saying that Judge Alito was, quote, "exceptional," quote, a "brilliant jurist."

Another lawyer stated that, "To say that he is outstanding is to use understatement. He's the best judge on the circuit, maybe in the country," end of quote.

With respect to his demeanor and temperament, lawyers found Judge Alito to be measured and judicial while on the bench. One lawyer commented that, "He is demanding, but always courteous." He may occasionally -- quoting -- "demonstrate a little bit of impatience with lawyers that aren't quite getting it. This can be directed at either side. It's just a sign that his mind is working more efficiently than yours. He's never discourteous, never abusive."

Another lawyer said, "He is pleasant and courteous."

Others commented about the impression that Judge Alito is a conservative judge, but certainly not out to impose his own personal agenda while on the bench. One lawyer commented that he, quote, "is a conservative, but reaches honest decisions," while another said, quote, "by reputation, he's known to be one of the more conservative judges on the court, but he is forthright and fair. He tries to decide cases in front of him in the right way," end quote.

And the American Bar Association came out just last week with an evaluation of Judge Alito to be a justice. And they considered things like integrity, judgment, compassion, open-mindedness, and freedom from bias, and commitment to equal justice under the law. The ABA, once again, found Judge Alito to be unanimously well qualified.

This recommendation should have much weight for my colleagues on the other side who have, time and time again, described the rating of the ABA as, quote, "gold standard."

GRASSLEY: Yet, some liberal interest groups have come out in full force and have attempted to paint Judge Alito to be an extremist and to be an activist. They've criticized a nominee who has, from what I see described by these lawyers and fellow judges, a reputation of being a restrained jurist committed to the rule of law and the Constitution.

But that's what these outside-the-mainstream groups always do. They attack individuals who they believe won't implement their agenda before the Supreme Court. So Judge Alito should see criticism as a badge of honor worn by many past and present members of the Court.

Yet, I'm glad to see the public fully participate in this process, because this is the nature of our system of government. But I don't like to see facts twisted, untruths fabricated to give the nominee a black eye, even before he comes before our committee.

So, Judge Alito, now you have that opportunity to set everyone straight on your record and your approach to deciding cases.

These hearings are also an opportunity, a very good opportunity to remind the public about the proper role of a judge in our system of checks and balances and limited government.

Judges are required by our democratic system not to overstep their positions to become policy makers or super-legislators. Supreme Court nominees should know without any doubt that their job is not to impose their own personal opinions of what is right and wrong, but to say what the law is, rather than what they personally think the law ought to be.

Supreme Court nominees should know that this exercise of judicial restraint is the key ingredient of being good judge, as the Constitution constrains judges every bit as much as it constrains we legislators, executives and citizens in their actions.

GRASSLEY: Moreover, Supreme Court nominees should be individuals who not only understand, but truly respect the equal roles and responsibilities of different branches of government and our state governments.

As Alexander Hamilton said Federalist No. 78, quote, "The courts must decide the sense of the law. And if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure to that of the legislative body."

Our Framers expected the judicial branch to be the "least dangerous branch of government."

At our meeting in my office in November, I heard Judge Alito place emphasis on the limited role of the courts in our democratic society. He also reiterated this belief in the questionnaire that he submitted to this committee.

So I have some idea of how Judge Alito approaches the law and views the role of a judge. I'm hopeful that his commitment to judicial restraint and to confining decisions to the law and the Constitution will shine through in this hearing. And I believe it will.

And I'm hopeful that my colleagues will give Judge Alito a civil, a fair and a dignified process, as well as an up-or-down vote on the floor because, as always, the Constitution sets the standard; the president nominates; the Senate deliberates; and, then, we are obligated to give our advice and consent in an up-or-down vote.

Judge Alito, I congratulation you.

SPECTER: Thank you very much, Senator Grassley.

Senator Biden?

BIDEN: Thank you, Mr. Chairman.

Judge, welcome.

Mrs. Alito and your family, welcome.

It's an incredible honor to be nominated by a president of the United States to be associate justice of the Supreme Court.

BIDEN: And you're to be congratulated.

Judge, this may be one of the most significant or consequential nominations that the Senate will vote on since I've been here in the last three decades. And I think history has delivered you, fortunately or unfortunately, to a moment where Supreme Court historians far into the future are going to look back on this nomination and make a judgment whether or not with your nomination and if you are confirmed, whether the jurisprudence of the Supreme Court began to change from the consensus that existed the last 70 years or whether it continued on the same path it has over the past six or seven decades.

And that moment is right now. And lest we think -- it's kind of like we all go through this process, and I liked the phrase "minuet," that the chairman used -- we all act like there is not an elephant in the room.

The truth of the matter is there is significant debate among judicial scholars today as to whether or not we've gone off on the wrong path with regard to Supreme Court decisions.

There's a very significant dispute that's existed in 5-4 decisions over the past two decades in a court that's very closely divided on the critical central issues of the day.

And so just to make it clear, I'm puzzled by some of the things you said, and I'm sure you're going to get a chance to tell me what you meant by some of the things you wrote and said.

But in your job application you talked about being proud, as you should be, to be proud of your subscription to and adhering to notions put forward in the National Review; that you're a proud member of the Federalist Society; the National Conservative Political Action Committee; the American spectator is something you look to, et cetera.

BIDEN: These are really very bright folks. They all have a very decided opinion on the issues of the day; very decided.

And those very organizations I've named think, for example, we misread the Fifth Amendment and have been misreading it for the past three decades. Those same groups argue that we have, in fact -- there is no right of privacy in the Constitution, et cetera.

So people aren't making this up. In a sense, this is not about you. You find yourself in the middle of one of the most significant national debates in modern constitutional history.

And so because you've been nominated to replace a woman, in addition, who has been the deciding vote on a significant number of these cases -- since 1995 there have been 193 5-4 decisions. And Justice O'Connor 77 percent of the time has been the deciding vote.

And for 70 years there's been a consensus among scholars and the American people on a reading to the Constitution that protects the right of privacy, the autonomy of individuals, while at the same time empowering the federal government to protect the less powerful.

Only recently has the debate come that states' rights are being trumped in a fundamental way, reading of the 10th Amendment and 11th Amendment. That's a legitimate debate, totally legitimate.

But anybody who pretends that how you read the 10th and 11th Amendment doesn't have a fundamental impact on the things we care about is kidding themselves. They're either uninformed or they're kidding themselves.

So, Judge, there's a genuine struggle going on well beyond you, well beyond the Congress, in America about how to read the Constitution.

And I believe at its core we have a Constitution, as our Supreme Court's first great justice, Marshall, said in 1819, and I quote, "intended to endure for the ages to come and consequently to be adapted to the various crises of human affairs."

That's the crux of the debate we're having now: whether it is an adaptable Constitution.

BIDEN: A lot of my friends make very powerful and convincing arguments, and they may be right that, "No, no, no, no, it is not adaptable. It is not adaptable."

And since our country's founding, we've tried to keep government's heavy hand out of our personal lives, while ensuring that we do the most important thing, which is to protect those who cannot protect themselves.

And the debate raging today is about whether we'll continue along that path or whether our courts will continue -- and whether our courts will continue to be one of the places where society puts the little guy -- and I know this is not something you're supposed to say -- the little guy on the same footing with the big guy. The one place that David is equal to Goliath is in the Supreme Court.

And it's also important to note that you're slated to replace the first woman ever nominated to the Supreme Court. We can pretend that's not the fact but it is. And through no fault of your own, we're cutting the number of women in half on the court.

And now, as I said, that's not your fault, but I think it means that have to take -- at least speaking for myself -- a closer look at your stands on issues that are important to women.

And moreover, Justice O'Connor brought critical qualities to the high court that not everybody thinks are qualities -- I happen to think they are -- her pragmatism and her state craft. Not that I've always agreed with what she said -- far from it -- but Justice O'Connor has been properly lauded, in my view, as a judge who approached her duties with open-mindedness and with a sensitivity that affects her decisions would have on everyday, ordinary people.

She, unlike, Judge Bork, did not think that being on the court would be an "intellectual feast," to quote Judge Bork.

BIDEN: Justice O'Connor also brought balance to our highest court; most recently, as been repeated many times, when she cautioned about how war doesn't give a blank check.

Her decisions reflect, in my view, that our society has worked very hard to improve the workaday world, to open doors to workers confronted by powerful employers and for women facing harassment and stereotypes.

Now, I acknowledge these are very tough jobs a judge has in determining whether or not there is an openness that is required under the Constitution. But I also acknowledge that prejudice runs very deep in our society. And, in the real world, discrimination rears its ugly head in the shadows, where it's very difficult to root it out. But Justice O'Connor was not afraid to go into the shadows.

The Constitution provides for one democratic moment, Judge, before a lifetime of judicial independence, when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids.

And, Judge, simply put: That is this moment, the one democratic moment in a lifetime of absolute judicial independence. And that's what these hearings are about, in my view.

In the coming days, we want to know about what you believe, Judge, how you view the Constitution, how you envision the role of the federal courts, what kind of justice you would seek to become.

As I said, this one democratic moment when the people, through their elected representatives, get to ask questions of a president's choice for the highest court. And I hope you'll be forthcoming.

I cannot imagine, notwithstanding what many of my colleagues who I have great respect for believe, I can't imagine the founders when they sat down and wrote the document and got to the appointments clause said: You know what? The American people are entitled know before we make him president, before we make her senator, before we make him congressman what they believe on the major issues of the day.

BIDEN: But judges, Supreme Court nominees, as long as they're smart and honest and decent, it really doesn't matter what they think. We don't have to know.

I can't fathom -- can't fathom that that was the intent of the founders. They intended the American people to know what their nominees thought.

And I might add -- and I'll end with this -- we just had two Supreme Court justices before our caucus, just as they were before, I think, the Republican Caucus. They ventured opinions on everything, on everything, things that were going to come before the court. It did not in any way jeopardize their judicial independence.

So, Judge, I really hope that this doesn't turn out to be a minuet. I hope it turns out to be conversation.

I believe we -- you and I and this committee -- owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They're entitled to know what you think.

And I remind my colleagues, many of which are on this committee, they sure wanted to know what Harriet Miers thought about everything. They sure wanted to know in great detail. They were about ready to administer a blood test.

The good news is, no blood test here. The good news is, no blood test, just a conversation. And I hope you'll engage in it with us because I'm anxious to get a sense of how you're going to approach these big issues.

I thank you very much, Judge.

SPECTER: Thank you, Senator Biden.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

Welcome, Judge Alito, to your confirmation hearing.

At the outset, I'm pleased to note that you have more judicial experience than any Supreme Court nominee in more than 70 years.

KYL: Indeed, only one Supreme Court justice in history, one Horace Lurton, nominated by President Taft, had more federal appeals court experience.

Moreover, you've devoted virtually your entire professional life to public service, and the nation owes you gratitude for that service.

I look forward to a dignified hearing followed by a fair up-or- down vote on the Senate floor.

Before discussing your nomination, I'd like to take a moment to express my respect and admiration for the justice whom you're nominated to replace, my fellow Arizonian, Sandra Day O'Connor, whom I've known for more than 30 years.

Justice O'Connor has served with great distinction during her career in the Arizona legislature, on the Arizona Court of Appeals and for what has been a quarter of a century on the United States Supreme Court.

Arizonians are deeply proud of Justice O'Connor's service to this country. She will always be remembered by Arizonans and all Americans as an extraordinary public servant.

Judge Alito, I'd like to discuss your background and experience in the context of other justices on the Supreme Court so that everyone understands how well you satisfy what we have come to expect from our top judges.

Like all the sitting justices, you had an outstanding education. One of your classmates at Yale Law School, Tony Kronman, who later went on to be the dean of the law school and could I believe fairly be described as a political liberal has recently remarked, and I quote, "He impressed me," speaking of you, "as being more interested in the technical, intellectual challenges of the law and its legal reasoning than its political uses or ramifications."

Thus, even in your early 20s, it appears you were focused on the law as an independent pursuit, rather than using law to influence political ends.

With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service.

KYL: In doing so, you meet and even exceed the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service.

Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this nation. It seems that immigrants often have a special understanding of the incredible opportunities that this nation affords its citizens.

Moreover, your father's long service to the people of New Jersey, both as a school teacher and as a civil servant in the state legislature, plainly served as a model for you.

I also note that you served in the U.S. Army Reserves from 1972 until 1980. If confirmed, only you and Justice Stevens would have any military experience. You would also be the first Supreme Court justice to have served in the Army reserve since Justice Frank Murphy did so during World War II.

You've spent much of your career as a federal prosecutor, pursuing terrorists, mob kingpins, drug dealers and others who threaten our safety and our security. Justice Souter had a distinguished career as a state prosecutor, but no justice sitting justice has served as a federal prosecutor. Again, this experience could prove helpful, given that approximately 40 percent of the Supreme Court docket involves criminal matters.

You also served as attorney in the executive branch. Like Chief Justice Roberts, you served in the Solicitor General's Office representing our government before the Supreme Court. And like Justice Scalia, you served in the Office of Legal Counsel, providing constitutional advise to the president and to the rest of the executive branch.

In both of these roles, your job was to advance the policies of a president who twice won an electoral college landslide. He set the agenda and you helped him implement it.

Similarly, Justice Thomas served Presidents Reagan and Bush in political legal capacities, and Justice Breyer also worked in political jobs, both in President Johnson's Justice Department and as a lawyer to this committee.

I note that you were just 39 when nominated to serve on the 3rd Circuit. Justice Kennedy was only 38 when nominated to the 9th Circuit, and Justice Breyer only 42 when nominated to the 1st Circuit. Like them, you now have a great deal of hands-on experience that you can bring to the court for years to come.

During your judicial service, you amassed an impressive record for the Senate to review, including more than 350 authored opinions. It is this judicial record that should be the focus of this committee, just as it was with all of the other sitting justices on the court.

It appears to me that you easily fit into the mold of what this nation has come to expect from Supreme Court justices: a first-rate intellect, demonstrated academic excellence, a life of engagement with serious constitutional analysis, and a reputation for fair-mindedness and modesty.

These are the standards for a Supreme Court justice, and you plainly meet these expectations. As a consequence, I view your nomination with a heavy presumption in favor of confirmation.

KYL: Before I conclude, I'd like, though, to address two other points.

First, some of my colleagues are fond of asking the question: Which side are you on? You've heard that today.

Politicians must pick sides regularly; every time they vote. So it's perhaps natural that they see the world as a battle between competing groups.

But it is wholly inappropriate as an approach to the judicial role. The only relevant side is that of the law and the Constitution. We do great injury to the integrity of the court system when we start speaking of sides and stop devoting ourselves to the pursuit of impartial justice.

During Chief Justice Roberts' confirmation hearings, I was struck by the way he answered the question. Then Judge Roberts explained that he had been asked earlier in the confirmation process: Are you going to be on the side of the little guy? Roberts explained that this question troubled him, and this is how he answered.

He said, "If the question says that the little guy should win, the little guy is going to win. But if the Constitution says that the big guy should win, well, then, the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that I will look out for particular interests. The oath is to uphold the Constitution and the laws of the United States."

And this is the essence of justice. Our courts provide a neutral forum for the adjudication of disputes under the law, not based on economic or political power, on race, on sex or any other personal characteristics.

KYL: Big guy and little guy, it should make no difference. The rule of law demands neutrality.

Second, I want to address the proper scope of questioning during these hearings, a matter that's also come up already.

As I reminded Chief Justice Roberts at his hearings, the American Bar Association Model Code of Judicial Conduct dictates that, and I quote: "A judge or a candidate for election or appointment to judicial office shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."

In other words, no judicial nomination should answer any question that is designed to reveal how the nominee will rule on any issue that could come before the court.

This rule has come to be known as the Ginsburg standard because Justice Ginsburg stated during her own confirmation hearings that she would give no forecasts, no hints about how she would rule on issues.

And I was pleased to see that Chief Justice Roberts refused to prejudge issues or make promises in exchange for confirmation votes. We're all better off because of his principled stand.

Soon after his confirmation, Justice Ginsburg was asked about this Ginsburg standard as applied to the Roberts hearings and she said: "Judge Roberts was unquestionably right. My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court," end quote.

In other words, Justice Ginsburg reaffirmed the Ginsburg standard.

In light of the chief justice's confirmation hearings and Justice Ginsburg's later remarks, I ask my colleagues for basic fair play.

KYL: Apply the same standards to Judge Alito that we applied to John Roberts, Stephen Breyer, Ruth Bader Ginsburg and all of the other sitting justices.

Let's not invent a new standard for Judge Alito or change the rules in the middle of the game. Politicians must let voters know what they think about issues before the election. Judges should not.

And it's not a hypothetical matter. Senator Kennedy in his opening statement expressed concern about the extent of the executive branch's authority to conduct surveillance of terrorists and said, ultimately, the courts will decide whether the president has gone too far. Indeed, they will.

Judge Alito, I'll tell you the same thing I told John Roberts. I expect you to adhere to the Code of Judicial Conduct.

And I want you to know that I will strongly defend your refusal to give any indication of how you might rule on any matter that might come before you as a judge or to answer any question that you believe to be improper under those circumstances.

Congratulations, Judge Alito, on your nomination.

SPECTER: Thank you, Senator Kyl.

Senator Kohl?

KOHL: I thank you, Mr. Chairman.

Judge Alito, let me also send my welcome to you this afternoon and to your family. You are to be could be congratulated on your nomination.

Through its interpretation of the Constitution, the Supreme Court hugely shapes the fabric of our society for us and for future generations.

Over the course of more than 200 years, it has found a right to equal education regardless of race. It has guaranteed an attorney and a fair trial to all Americans, rich and poor alike. It has allowed women to keep private medical decisions private. And it has allowed Americans to speak, vote and worship without interference from their government.

Through these decisions and many more, the judicial branch has, in its finest hours, stood firmly on the side of individuals against those who would trample their rights.

In the words of Justice Black, "The Court stands against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice or public excitement."

KOHL: As the guardian of our rights, the Supreme Court makes decisions every year which either protect the individual or leave him at the mercy of more powerful forces in our society.

They consider questions like, "When can a disabled individual sue to gain access to a courthouse? When can a parent leave work to care for a sick child? When should the government be allowed to listen to a private conversation? And when will the courthouse doors open or close to an employee covering discrimination at work?"

Whether interpreting the Constitution or filling in the blanks of a law or a regulation, every word of the court's opinion can widen or narrow our rights as Americans and either protect us or leave us more vulnerable to any winds that blow.

If confirmed, you will write the words that will either broaden or narrow our rights for the rest of your working life. You will be interpreting the Constitution in which we as a people place our faith and on which our freedoms as a nation rest. And on a daily basis, the words of your opinions will affect countless individuals as they seek protection behind the courthouse doors.

Despite your enormous power, you will be free of all constraints, unaccountable and unrecallable.

We give Supreme Court justices this freedom because we expect them to remain above the pull of politics, to avoid the effects of public excitement and allow a broader view, not tied to the whims of the majority at a certain moment in history.

So for only a short time this month will the people, through their senators, be able to question and to judge you. In short, before we give you the keys to the car, we'd like to know where you plan to take us.

KOHL: To a certain extent, we know more about what is in your heart and your mind than we did with now-Justice Roberts. You have a long track record as a judge and as a public official in the Justice Department.

When we met privately and I asked you what sort of Supreme Court justice you would make, your answer was fair when you said, "If you want know what sort of a justice I would make, then look at what sort of a judge I have been."

Taking this advice, your critics argue that your judicial record demonstrates that you will not sufficiently protect the individual, but will, instead, side with more powerful interests, narrow the rights we enjoy and leave individual Americans more vulnerable to abuse.

For example, they cite your Casey dissent as diminishing the power of married women over their own bodies. They identify your decision in the Chichester case as evidence that you will make it harder for working people to care for a family. They cite the Bray case and others where you often side with corporations to block the victims of discrimination from getting their day in court. Others raise concerns about your views on the rights of the accused when faced with the government's enormous power in the criminal justice process.

In addition to your record on the bench, your opponents identify memos you wrote while in the Justice Department as further evidence of your hostility to individual rights.

For example, in your now-famous 1985 job application, you express pride in some of the work you did in the Solicitor General's Office. You choose to single out the assistance that you provided in crafting Supreme Court briefs urging that, quote, "the Constitution does not protect the right to an abortion."

While these statements came in the context of your work on behalf of the Reagan administration, they were, nevertheless, your self- proclaimed personal views.

KOHL: In the same job application, you wrote that you had pursued a legal career because you disagreed with many of the decisions of the Warren court, especially, and I quote, "in the areas of criminal procedure, the establishment clause and reapportionment."

These Warren court decisions establishing one person, one vote, Miranda rights and protections for religious minorities are some of the most important cases protecting our rights and our liberties, protecting minorities against majority abuses, and protecting individuals against government abuses. And yet antagonism toward these decisions seems to have motivated your pursuit of the law.

Your supporters, on the other hand, contend that it is not fair to select a few specific cases in light of a career as a judge spanning 15 years.

Further, they dismiss some of your early memos in the Justice Department as old and not particularly relevant. They argue that you are well within the mainstream of judges, especially Republican- appointed judges.

So it is our job to sort out the truth about your record, separate the rhetoric from the reality and decide where you will lead the country. We will need to examine whether, as your critics contend, you will consistently side against the individual, or whether, as your supporters contend, that you are a mainstream conservative who will fairly decide all cases.

I hope these hearings will add to our record in making this critical determination.

This would be an appropriate time to share my perspective on how we will judge a nominee. We have used the same test for each of the five previous Supreme Court nomination hearings, a test of judicial excellence.

Judicial excellence, it seems to me, involves at least four elements.

First, a nominee must possess the competence, character and temperament to serve on the bench.

Second, judicial excellence means that a Supreme Court justice must have a sense of the values from which our core of our political- economic system goes. In other words, we should not approve any nominee whose extreme judicial philosophy would undermine rights and liberties relied upon by all Americans.

KOHL: Third, judicial excellence requires an understanding that the law is more than an intellectual game and more than a mental exercise. He or she must recognize that real people with real problems are affected by the decisions rendered by the court. Justice, after all, may be blind, but it should not be deaf.

And, finally, judicial excellence requires candor before confirmation. We are being asked to give the nominee enormous power. So we want to know what is in your mind and in your heart.

Judge Alito, we are convinced that your intellect and experience qualify you for this position. I enjoyed meeting you a few weeks ago and appreciated our discussion.

Your legal talents are undeniably impressive, and your opinions are thoughtful and well-reasoned.

We are now familiar with your abilities and your long tenure as a judge. And, yet, we do not know whether the concerns some have raised about your judicial philosophy are overstated or whether we need to have serious doubts about your nomination.

I'll look forward to these hearings as an opportunity to learn more and measure whether you meet our test of judicial excellence.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Kohl.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge Alito, I want to welcome you and your family. I appreciate you being here with us today.

The Constitution gives the Senate a solemn duty, a solemn duty when it comes to the nomination of any individual to sit on the United States Supreme Court.

DEWINE: While the president is to nominate that individual, we in the Senate must provide our advice and consent. This function is not well-defined. The Constitution does not set down a road map. It does not require hearings. In fact, it does not even require questioning on your understanding of the Constitution nor the role of the Supreme Court.

To me, however, these things are certainly important. The reason is obvious. When it comes to the Supreme Court, the American people have only two times when they have any input into how our Constitution is interpreted and who will have the privilege to do so.

First, we elect a president who has the power to nominate justices to the Supreme Court.

Second, the people, acting through their representatives in the Senate, have their say on whether the president's nominee should in fact be confirmed.

Judge Alito, I want to use our time together today to make a point about democracy.

When it comes to our Constitution, judges perform, certainly, an important role. But the people, acting through their elected representatives, should play an even more important role.

After all, our Constitution was intended as a popular document. It was drafted and ratified by the people. It established democratic institutions. It entrusts the people with the power to make the tough decisions. And, in most cases, it prefers the will of the people to the unchecked rule of judges.

DEWINE: If confirmed, Judge, you should always keep this in mind.

In my opinion, Chief Justice Roberts put it best during his recent confirmation hearings. And he said, and I quote, "The framers were not the sort of people, having fought a revolution to get the right of self-government to sit down and say, 'Well, let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind," end of quote.

Sometimes, Judge, however, I fear that the Supreme Court forgets this advice.

In the last 15 years, in fact, the court has struck down, in whole or in part, more than 35 acts of this Congress and nearly 60 state and local laws.

Without question, the court does play a vital role in our constitutional system. Sometimes local, state and federal laws so clearly run afoul of the Constitution that the court must step in and strike them down. In most cases, the court performs this admirably and with great restraint.

But in recent years, the court has struck down some laws that, in my opinion, did not serve such a fate.

Take, for instance, the Americans with Disabilities Act. It passed this Congress with overwhelming bipartisan support. The law was supported by an extensive factual record and was based on our government's longstanding constitutional power to fight discrimination wherever it exists.

DEWINE: When the court considered the ADA in the Garrett case, however, it ignored the act's broad support, cast aside the legislative record and struck down a portion of the law.

The decision was a close one, 5-4. The majority relied on a highly controversial legal theory and the case evoked a vigorous dissent.

This is precisely my problem with Garrett. In such a difficult case, where the Constitution does not clearly support the majority's decision, the proper response is not to strike down the law. In such a case, the court should defer to the will of the people.

In other ways, Judge, the court's recent decisions have made life more difficult for the democratic institutions that perform the day- to-day work of our nation.

Recent cases involving affirmative action and the posting of the Ten Commandments on public property would seem to me at least to prove the point.

The court has upheld one affirmative action program at the University of Michigan but struck down another one, and has allowed the posting of the 10 Commandments outside of a public building but banned it on the inside in another case.

To add to the confusion, some of the court's decisions involved multiple concurrences and dissents, making it hard even for lawyers and judges to figure out what the law is and why.

Chief Justice Roberts mentioned this problem at his hearing, and in one of his final statements as chief justice, William Rehnquist noted that one of the court's decisions had so many opinions within it that he, and I quote, "didn't know we had so many justices on the court."

What has emerged in certain areas, therefore, is a patchwork, a patchwork that leaves local officials, state legislators, members of Congress and the public guessing what the law permits and what it does not.

DEWINE: In 1937, President Franklin Roosevelt reminded us that the Constitution is, and I quote, "a layman's document, not a lawyer's contract."

But that very document does little to serve people when Supreme Court decisions are written so that even high-priced lawyers can't figure them out.

Now, I'm not the first to have raised these democratic concerns. Many have faulted the court for its lack of clarity in certain cases and many have criticized its recent lack of deference to decisions made by state legislatures and Congress.

In fact, some have even suggested that this recent trend has transformed our democracy from one founded on, "We the people," to one ruled by, "We the court."

To me, the criticism has some force. The Constitution empowers the people to resolve our day's most contentious issues. When judges forget this basic truth, they do a disservice to our democracy and to our constitution.

Judges are not members of Congress, they're not state legislators, governors, nor presidents. Their job is not to pass laws, implement regulations, nor to make policy.

To use the words of Justice Byron White, words that I quoted at our last Supreme Court hearing, "The role of the judge is simply to decide cases" -- to decide cases, nothing more.

DEWINE: And, Judge, from what I've seen so far, you don't need much reminding on this score. Your decisions are usually brief and to the point. You write with clarity and common sense. And in most cases, you defer to the decision-making of those closest to the problem at hand.

I don't expect to agree with every case that you decide, but your modest approach to judging seems to bode well for our democracy.

Over the next several days, the members of this committee will question you to find out what kind of justice you will be. This hearing is really our opportunity to try to answer that question.

Our constitutional system is founded on democracy: the will of the people, not the unchecked rule of judges. If confirmed, it will be your job to faithfully interpret our Constitution and to defend our democracy, case by case.

I wish you well.

Thank you.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

Welcome, Judge Alito.

I'm one that believes that your appointment on the Supreme Court is a pivotal appointment. And because you replace Sandra Day O'Connor and because she was the fifth vote on 148 cases, you well could be a very key and decisive vote.

And so during these hearings, I think it's fair for us to try to determine whether your legal reasoning is within the mainstream of American legal thought and whether you're going to follow the law regardless of your personal views about the law.

FEINSTEIN: And since you have provided personal and legal opinions in the past, I very much hope that you will be straightforward with us, share your thinking and share your legal reasoning.

Now, I'd like to use my time to discuss with you some of my concerns. I have very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution, including the commerce clause and the 14th Amendment.

This trend, I believe, if continued, would restrict and could even prevent the Congress from addressing major environmental and social issues of the future.

As I see it, certain of your decisions on the 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court's limited view of congressional authority. And I hope to clear that up.

But let me give you one example here, and that's the Rybar case. Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.

You took this position, even though the Supreme Court had made clear in 1939, the Miller case, that Congress did have the authority to ban the possession and transfer of firearms and even though Congress had passed three federal statutes that extensively documented the impact that guns and gun violence has on interstate commerce.

FEINSTEIN: I'm concerned that your Rybar opinion demonstrates a willingness to strike down laws with which you personally may disagree by employing a narrow reading of Congress' constitutional authority to enact legislation.

Now, the subject of executive power has come up. And indeed it is a very big one.

I think we're all concerned about how you approach and decide cases involving expanded presidential powers.

And recently there have been several actions taken by the administration that highlight why the constitutional checks and balances between the branches of government are so essential. These include the use of torture, whether an expansive reading of law or disregarding Geneva Conventions, including the Convention on Torture; whether the president is bound by ratified treaties or not; allowing the detention of American citizens without providing due process -- of course, Sandra Day O'Connor was dispositive in the Hamdi case -- whether the president can conduct electronic surveillance on Americans without a warrant, despite legislation that establishes a court process for all intelligence for all electronic surveillance.

I'm also concerned with the impact you could have on women's rights, and specifically a woman's right to choose. In the 33 years since Roe was decided, there have been 38 occasions on which Roe has been taken up by the court.

FEINSTEIN: The court has not only declined to overrule Roe, but it has also explicitly reaffirmed its central holding.

In our private meeting, when we spoke about Roe and precedent, you stated that you could not think of a case that's been reviewed or challenged more than Roe. You also stated that you believe that the Constitution does provide a right of privacy and that you have a deep respect for precedent.

However, in 1985, you clearly stated that you believed Roe should be overturned and that the Constitution does not protect a woman's right to choose.

So despite voting to sustain Roe on the Third Circuit, your opinions also raise questions about how you might rule if not bound by precedent. And of course, obviously, I'd like to find that out.

I'm also concerned about the role the court will play in protecting individual rights in this and the next century.

Historically, the court has been the forum to which individuals can turn when they believed their constitutional rights were violated. This has been especially noteworthy in the arena of civil rights.

And, as has been mentioned, in that same 1985 job application, you wrote that while in college, you developed a deep interest in constitutional law, and then you said, motivated in part by disagreement with the Warren court's decision, particularly in the areas of criminal procedure, the establishment clause and reapportionment.

Now, of course, it was the Warren court that brought us Brown v. the Board of Education and, of course, reapportionment is the bedrock principle of one man, one vote.

So exactly what you mean by this, I think is necessary to clear up.

FEINSTEIN: Now, additionally, Justice O'Connor was a deciding vote on a critical affirmative action case involving the University of Michigan, Grutter v. Bollinger, so your views may well here be pivotal. So I think the American people deserve to know how you feel, how you think, how you would legally reason affirmative action legislation.

When you served in the Solicitor General's Office during the Reagan administration, you argued in three cases against the constitutionality of affirmative action programs. Then once on the 3rd Circuit you sided against the individual alleging discrimination in about three-quarters of the cases before you.

So we have a lot to learn about what your views are, your legal reasoning, and how you would apply that legal reasoning. So I really look forward to the questions. And once again, because this appointment is so important, I hope you really will be straightforward with us and thereby be really straightforward with the American people.

So thank you and welcome.

SPECTER: Thank you, Senator Feinstein.

Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

And I'd like to also extend my congratulations to you, Judge Alito, and your family. It's a very special day, a great honor to be nominated to the Supreme Court, the greatest court in the world, in my view.

And this will be a good, vigorous process. The Senate does have an obligation to make inquiry, and they'll do so.

I just hope and truly believe that when the end comes to these hearings, your answers will be heard, the charges that I've heard made that I know will be rebutted, people will listen and see the answers that you give.

SESSIONS: And when they do, they'll feel great confidence in you as a member of the Supreme Court.

You have a record as a brilliant but modest jurist, one who follows the law, who exercises restraint and does not use the bench as an opportunity to promote any personal or political agenda. This is exactly what I believe the American people want in a justice to the Supreme Court. It's exactly what President Bush promised to nominate.

You represent philosophically that kind of judge who shows restraint, but at the same time you bring extraordinary qualifications and abilities here.

As has been said, judges are not politicians. They must decide discrete cases before them based on facts and the law of that case.

They're not policy-makers. Every lawyer that's practiced in America knows that. That's what they want in a judge. That's what I understand they believe you are. That's why the ABA has given you their top rating in my view.

This is the ideal of American law. It's the rule of law. It's the American ideal of justice, not to have an agenda, not to allow personal views to impact your decision-making. And I am real proud to see that your record indicates that.

I like Judge Roberts' phrase of modesty. I believe that is your philosophy also.

We had the opportunity for a time to serve as United States attorneys together. You are the top prosecutor in the office in New Jersey, one of the largest in the country.

SESSIONS: And you had the whole state -- much larger than my office. But I think -- I do know your reputation as one of ability but modesty.

In fact, I remember distinctly somebody told me, "Don't underestimate Sam Alito. He's a modest kind of guy, but he's probably the smart guy in the Department of Justice." And I think that's the reputation you had and it's one that you can be quite proud of.

Your record of achievement is extraordinary. You were Phi Beta Kappa at Princeton, a Woodrow Wilson scholar. You attended Yale Law School. You were an editor of the Law Review, elected by your colleagues.

And, of course, for a graduating law student at a prestigious law school or any law school, being an editor of the Law Review is an extraordinary honor.

You clerked for a federal judge on the 3rd Circuit. And you were an assistant United States attorney. You did appellate work handling criminal cases. And as United States attorney, you prosecuted cases.

As I've checked the record, you would be the first person since Harry Truman to serve on the Supreme Court that had actual federal prosecutorial experience, which I think is of great value. As a matter of fact, I know it's of value.

And I've seen instances of Supreme Court rulings where errors have been made mostly as a result of just not understanding the system and how it operates.

As an assistant solicitor general, you argued 12 cases before the Supreme Court. That's an extraordinary number. Very, very few people in our country have had the opportunity to do that.

SESSIONS: Very few lawyers will ever in their career do one case, much less 10.

You did a great job. I think that is why the ABA, American Bar Association, has rendered their views on you.

It's a 15-member committee. All of them participate on Supreme Court nominees. They take this very seriously. They interviewed judges with whom you worked, they interviewed your colleagues, they interviewed people who litigated against you, they interviewed litigants who'd lost before you as well as those who had won before you, your co-counsel. And at the conclusion of all of that, they unanimously gave you their highest possible rating. I think that is an important thing.

Some of us on our side of the aisle have criticized the ABA. We say they tilt a little to the left.

But their analysis process and the way they go about it provides valuable insight to this committee and to the people of America that the people of the country can know that they have interviewed a host of people who've dealt with you in every single area of your life, and they found you highly qualified, the best recommendation that they can get. And that is something you should take great pride in.

We don't want an activist judge. That's not what we want in this country.

By activist, I mean a judge who allows his personal views to overcome a commitment to faithfully following the law; following the law as it is, not as you would like it to be, good or bad, following that law. That's what we count on.

And when we violate that, we undermine law, we undermine respect for law and endanger this magnificent heritage of law that we've been given.

So from what I understand your approach to law, you've got it right, and your record indicates that.

The judicial oath you take is important. Some might say you have to follow precedent, and precedent is a very big part of what you do. But you take the oath to swear that you will support and defend the Constitution of the United States.

That oath you will take, if confirmed -- and you've already taken it previously -- it is an oath not to decide whether a decision is good policy or not; that's for the legislative branch. It's not an oath to defend the wall the Supreme Court has enclosed sometimes around itself. It's not an oath to avoid admitting error in previous decisions.

But let me be more direct: The oath you take is not an oath to uphold precedent whether that precedent is super-duper or not.

SESSIONS: If you love the Constitution -- which I hope you do; and intend to inquire about that -- you will enforce the Constitution as it is, good and bad. That's your responsibility in our democracy.

You know, we've already had this morning some matters that have been raised and I think are worthy of just responding to briefly, because allegations get made in these hearings. You may never get a chance, by the time this hearing's over, to rebut some of the things that have already been raised.

Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers.

A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because he was a black man in a black sports car.

You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient.

And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors.

SESSIONS: And you granted the petition -- habeas petition -- in that case, reversing the conviction. You stated the Constitution guarantees, quote, "that a state does not use peremptory challenges of jurors, to remove any black jurors because of his race. Thus, a prosecutor's decision to refrain from discriminating against some African-American voters does not cure discrimination against others," closed quote.

And as for dissents, you were the lone dissenter, calling for an expansive interpretation of civil rights laws. Your dissent complained in an employer case that the majority had substituted its own opinion for the law, and you dissented and later the Supreme Court vindicated you 9-0.

So I would also note you were questioned about judicial independence. I think some of our people have mentioned that.

But an academic study of federal appeals court opinions rated you the fourth-most independent judge in the federal judiciary. That's out of about 900. And they took that based on issues such as whether or not you were most likely to disagree with judges or agree with judges of a different political party.

So, Mr. Chairman, I thank you for your leadership.

I look forward to a vigorous hearing. I'm confident this nominee has the skills and graces to make an outstanding Supreme Court justice.

SPECTER: Thank you, Senator Sessions.

We're going to turn to one more senator, Senator Feingold, for an opening statement.

SPECTER: And then we're going to take a 15-minute break. We will have concluded the opening statements of 12 of our 18 Judiciary Committee members. That will leave us four more.

And then Senator Lautenberg and Governor Whitman to make the formal presentation of Judge Alito. And then Judge Alito's opening statement. So, at this time, we will adjourn and we will reconvene at 2:10.

Pardon me. We're going to proceed with you, Senator Feingold.

(LAUGHTER)

FEINGOLD: Thank you, Mr. Chairman, I think.

SPECTER: This is called the potted plant routine, Russ.

(LAUGHTER)

FEINGOLD: Thank you, Mr. Chairman.

SPECTER: I was so anxious for the recess, I jumped the gun a little.

(LAUGHTER)

FEINGOLD: Mr. Chairman, I too want to welcome our nominee and thank him in advance for the long hours that he'll put in this week.

Judge, I do greatly admire your legal qualifications and, of course, your record of public service and I wish you well here. And, as with the hearing on the nomination of Chief Justice Roberts, I approach this proceeding with an open mind.

Judge Alito, I know that, as a longtime student of the law in the Supreme Court, you appreciate the importance of the process that we begin today.

A position on the Supreme Court is one of the highest honors and greatest responsibilities in our country. The Constitution requires the Senate to offer its advice and decide whether to grant its consent to your nomination.

And the Senate has duly delegated to the Judiciary Committee the task of examining your record and hearing your testimony in responses to questions about your views.

FEINGOLD: So it is our job in these hearings to try to get a sense for ourselves, for our colleagues who are not on the committee and for the American people of whether you should be given the enormous responsibility of protecting our citizens' constitutional freedoms on the Supreme Court.

So you will obviously face tough questions here, Judge. No one is entitled to a seat on the Supreme Court simply because he has been nominated by the president.

I think the burden is actually on the nominee to demonstrate that he should be confirmed.

We begin these hearings today in an important time. Less than a month ago, we learned that this administration has for years been spying on American citizens without a court order and without following the laws passed by Congress.

Americans are understandably asking each other whether our government believes it is subject to the rule of law.

Now, more than ever, we need a strong and independent judicial branch. We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress. We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even -- even -- when the president of the United States is telling the country that he should be able to decide unilaterally -- unilaterally -- how far these freedoms go.

To win my support, Judge Alito will have to show that he is up to the challenge. His instincts sometimes seem to be to defer to the executive branch, to minimize the ability of the courts to question the executive in national security cases, to grant prosecutors whatever powers they seek and to deny relief to those accused of crimes who assert that their constitutional rights were violated.

FEINGOLD: So it will be up to Judge Alito to satisfy the Senate that he can be fair and objective in these kinds of cases. We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect.

And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach.

In 1990, when the judge appeared before this committee in connection with his nomination to the court of appeals, Judge Alito promised to recuse himself from cases involving a mutual fund company with which he had substantial investments, Vanguard. He kept those investments throughout his service the court of appeals and still has them today.

But, in 2002, he sat on a panel in a case involving Vanguard. Since his nomination to the Supreme Court, we have now heard different explanations from the nominee and his supporters about why he failed to do recuse himself.

Needless the say, the shifting explanations and justifications are somewhat troubling. I hope that we will get the full and final story in these hearings.

Before we grant lifetime tenure to federal judges, and particularly, justices of the Supreme Court, we must make sure that they have the highest ethical standards.

The stakes for this nomination could hardly be higher. Justice O'Connor, as many have said, was the swing vote in many important decisions in the past decade. Her successor could well be the deciding vote in a number of cases that have already been argued this term that may have to be re-argued after a new justice is confirmed. The outcome of these cases could shape our society for generations to come.

FEINGOLD: Now, we don't have the right to know how a nominee would rule on those cases. Indeed, we should all hope that the nominee doesn't know either.

But we do have a right to know what and how a nominee thinks about the important legal issues that have come to the court in recent years. Commenting on past Supreme Court decisions, in my view, would no more disqualify a nominee from hearing a future case on a similar topic than would a current justice participating in those past decisions.

Mr. Chairman, it simply cannot be that the only person in America who can't express an opinion on a case where Justice O'Connor cast the deciding vote is the person who has been nominated to replace her on the court.

So I look forward to questioning you, Judge Alito, about executive power, the death penalty, employment discrimination, criminal procedure and other important topics.

And I look forward to your candid answers.

I'll have to say that I was rather pleased that the judge was actually less guarded in our private meeting than were the other two Supreme Court nominees who I have had the privilege to meet. I hope he's even more forthcoming in this hearing.

Given his long judicial record and the memos we have seen that express his personal views on legal issues, I expect complete answers and I think my colleagues do, too.

If a nominee expresses a personal view on a legal issue in a memo written over a decade ago, I think we and the American people have the right to know if he still holds that view today.

Mr. Chairman, if confirmed to the Supreme Court, Judge Alito is likely to have a profound impact on the lives of Americans for decades to come. That is a fact.

It is clear, Mr. Chairman, from how you have planned these hearings that you recognize that.

Thank you for your efforts to ensure a full and fair evaluation of this nominee, and I not only look forward to the questioning but I want to note that I have caused the recess to occur three minutes and 40 seconds earlier than it normally would have.

Thank you, Mr. Chairman.

SPECTER: Thank you, Judge (sic) Feingold, for your brevity.

We will now take a 15-minute recess until 2:15.

(RECESS)

SPECTER: Senator Graham, you may begin.

GRAHAM: Thank you, Mr. Chairman.

And welcome back, Judge. I'd hate for you to miss my opening statement.

(LAUGHTER)

It would be a loss for the ages.

Welcome to the committee. Welcome to one of the most important events in your life.

You've got the people that mean the most here with you today, your family. And I know they're proud of you. And I'm certainly proud of what you have been able to accomplish.

And to say the least, you come to the Senate in interesting political times.

There is going to be a lot of talk by the senators of this committee about concepts that are important to Americans.

But what I worry the most about -- your time, believe it or not, will come and go. You will not be here forever; it may seem that way. But I think you're going to be just fine. I don't know what kind of vote you're going to get, but you'll make it through.

It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines. I feel very comfortable with you being on the Supreme Court based on what I know.

And the hearings will be helpful to all of us to find out some issues that are important to us.

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

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

And we've talked about those things and we'll talk more about it.

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

Everybody knows you're a conservative.

GRAHAM: The question is: Are you a mainstream conservative?

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

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

(LAUGHTER)

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

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

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

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

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

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

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

I understand that is very seared in her memory banks and that is important to her.

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

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

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

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

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

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

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

And is that what we want? Is that where we're going as a nation? Are we going to take one case and one issue, and if we don't get the answer we like that represents our political view on that issue, are we going to bring the judiciary to their knees? Are we going to say as a body, "It doesn't how matter how smart you are, how many cases you decided, how many things you've done in your life as a lawyer, forget about it; it all comes down to this one issue"?

If we do, if we go down that road, there will be no going back. And good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

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

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

These decisions are final and appeals impossible.

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

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

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

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

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

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

They seem to be very sure of you.

The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you, Judge Alito.

SCHUMER: We'd be remiss if we didn't explore why.

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

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

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

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

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

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

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

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

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

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

Sometimes you give the government a free pass but refuse to give plaintiffs a fair shake. We need to know that presidents and paupers will receive equal justice in your courtroom.

If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SPECTER: Thank you, Senator Schumer.

Courtesy FDCH e-Media
© 2006 Washingtonpost.Newsweek Interactive

Transcript
U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Part II of II

Courtesy FDCH e-Media
Monday, January 9, 2006; 3:32 PM

The transcript picks up with the opening statement of Sen. Cornyn.

SPECTER: Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Supreme Court nomination and appointment is not a roving commission to rewrite our laws however you and your colleagues see fit. I'll give you one example where I believe our Supreme Court has been rewriting the law for a long time. It's a narrative near and dear to me and others in this country. And I'm speaking of the ability of people of faith to freely express their beliefs in the public square.

There is no doubt where the founding fathers stood on this issue. They believed that people of faith should be permitted to express themselves in public. They believed that this country was big enough and free enough to allow expression of on enormous variety of views and beliefs.

They believed that freedom of expression included religious views and beliefs, so long as the government did not force people to worship in a particular matter and remain neutral on what those views and beliefs were.

CORNYN: But this country has gotten seriously off track under the Supreme Court when it went so far as to limit the right of even private citizens to freely express their religious views in public.

As I mentioned to you when we met early on in these proceedings, I had an opportunity, as some have had on this committee, to argue a case before the United States Supreme Court.

When I was attorney general, I argued a case -- helped argue a case called -- Santa Fe Independent School District v. Doe. The school district in that case had the temerity to permit student-led, student-initiated prayer before football games. And, of course, someone sued. I repeat, this was student-led, student-initiated, voluntary prayer. The Supreme Court held by a vote of 6-3 that this was unconstitutional.

The decision led the late Chief Justice Rehnquist to remark that the court now, quote, "exhibits hostility to all things religious in public life." And it's hard to disagree with him.

Depictions or expressions of sex, violence, crime are all permitted virtually without limit; but religion, it seems, never.

Now, this is where you come in, Judge.

I appreciate your record on the 3rd Circuit respecting the importance of neutrality of government when it comes to religious expression on a voluntary basis by individual citizens.

It's my sincere hope that when confirmed that you will persuade your colleagues to reconsider their attitude toward religious expression and grant it the same freedom currently reserved for almost all other non-religious speech.

No wonder many in America seem to believe that the court has become one more inclined to protect pornography than to protect religious expression.

Most people in America don't believe that "God" is a dirty word, but the sad fact is that some Americans are left to wonder whether the Supreme Court might have greater regard for it if it was.

CORNYN: Again, welcome to the committee, and thank you for your continued willingness to serve our great nation.

SPECTER: Thank you, Senator Cornyn.

Senator Durbin?

DURBIN: Thank you very much, Mr. Chairman.

Judge Alito, welcome to you and your family before the Judiciary Committee.

You've heard time and again from my colleagues why this seat on the Supreme Court means so much. They've quoted the statistics of 193 5-4 decisions where Sandra Day O'Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, workers' rights, women's rights, restraining the power of an overreaching president.

If you look at the record and the enviable record which Sandra Day O'Connor has written, you find she was the fifth and decisive vote to safeguard Americans' right to privacy, to require our courtrooms to grant access to the disabled, to allow the federal government to pass laws to protect the environment, to preserve the right of universities to use affirmative action, to ban the execution of children in America.

And Justice O'Connor was the fifth vote to uphold the time- honored principle, which bears repeating, of separation of church and state. There was real wisdom in the decision of our forefathers in writing a Constitution that gave us an opportunity to grow as such a diverse nation, and we should never forget it.

Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. We believe -- many of us -- that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other. And that's why we are so mindful of the importance of our task.

DURBIN: Yesterday, the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. I believe the burden of proof is yours, Judge Alito, the burden of demonstrating to the American people and this committee that you or any nominee is worthy to serve on the highest court to succeed Sandra Day O'Connor.

My friend, Illinois Senator Paul Simon, once said on the same committee that the test for a Supreme Court nominee is not where he stands on any one specific issue. The test is this: Will you use your power on the court to restrict freedom or expand it?

In the simplest terms, I think Paul Simon got it right. That is the best test because the Supreme Court is the last refuge in America for our rights and liberties. In my lifetime, it's the Supreme Court, not Congress, that integrated our public schools, that allowed people of different races to marry, and established the principle that our government should respect the value of privacy of American families. These decisions are the legacy of justices who chose to expand American freedom.

If you're confirmed, Judge Alito, will you continue their legacy?

You and I spoke about the Griswold decision in my office. Hard to imagine 40 years ago people could be convicted of a crime, fined, sent to prison for using the most common forms of birth control. The Supreme Court looked at that decision and looked at that case and said, "That's just wrong." We may not find the word "privacy" in the Constitution. That's just inherent to our freedom as Americans.

It seems like a given now. Who would even question it? But it hasn't been that long ago that up here on Capitol Hill we were involved in a bitter debate over the tragedy of Terri Schiavo. And Republican congressional leaders threatened federal judges with impeachment if they didn't agree to intervene into that family's painful, personal decision.

DURBIN: We see it in attempts on Capitol Hill to impose gag rules on rules on doctors on what they can say to their patients about family planning. And we certainly see it now with an effort by this government to tap our phones; invade our medical records, credit information, library records and the most sensitive personal information in the name of national security.

Now, Justice O'Connor was the critical fifth vote to protect our right of privacy. We want to know whether you will be that vote as well. You were the only judge on your court to authorize a very intrusive search of the 10-year-old girl. You were the only judge on your court who voted to diminish the right of privacy in the case the Planned Parenthood v. Casey, a position that was specifically rejected by the Supreme Court.

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

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

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

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

DURBIN: And, in going too far, they have taken away the individual rights of American citizens.

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

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

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

In speeches to the Federalist Society, you've identified yourself as a strong proponent of the so-called unitary executive theory. That's a marginal theory at best, and yet it's one that you've said you believe.

This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism.

Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without a charge.

They've claimed this right to engage in torture even though American law makes torture are a crime.

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

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

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

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

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

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

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

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

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

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

DURBIN: That was a civil rights decision.

We want you to explain your membership in an organization that you highlighted at Princeton University that tried to challenge the admission of women and minorities.

And I think we want to make certain of one thing: We want to make certain that every American who stood in silent tribute to Rosa Parks hopes that you will break your silence and speak out clearly for the civil rights that define our unity as a nation.

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

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

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

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

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

Thank you very much.

SPECTER: Thank you, Senator Durbin.

Senator Brownback?

BROWNBACK: Thank you, Mr. Chairman.

Welcome, Judge Alito, your wife, family.

BROWNBACK: Delighted to have you here. You only have two more pitcher and then you get a bat. So I'm sure people will be happy to hear from you.

Mr. Chairman, before I go forward with my statement, would like to entire into the record a summary of four cases that Judge Alito has ruled on where he backed employees claiming racial discrimination. It's been entered a couple of times here that he hasn't ruled in favor of people claiming racial discrimination. I have a summary of four cases where he has, and I want to enter that into the record.

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

BROWNBACK: Judge Alito, welcome you to the hearing. This is an extraordinary process. It's a fabulous process and a chance for a discussion with you, with the American public about the role of the judiciary in our society today.

It's become an ever-expanding and important discussion because of the expanding role of the courts in recent years in the American society.

When the courts improperly, I believe, assume the power to decide more political than legal issues in nature, the people naturally focus less on the law and more on the lawyers that are chosen really to administer the law. Most Americans want judges who will stick to interpreting the law rather than making it.

It's beyond dispute that the Constitution and its framers intended this to be the role of judges. For instance, although he was perhaps the leading advocate for expansive political power, you can look at founding father Alexander Hamilton nevertheless assuring -- assuring -- the countrymen in Federalist 78 that the role of the federal courts under the proposed Constitution would be limited.

He says the courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body.

BROWNBACK: Seems like we're back at an old debate: the role the courts.

And I believe you and others would look and say that the role of the courts is limited and it's not to decide political matters.

Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted federal courts neither to write nor execute the laws but rather to say what the law is. That narrow scope of judicial power was the reason that people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.

The people believed that while the courts would be independent, they would defer to the political branches on policy issues.

This is the most foundational and fundamental of issues. And yet we are back and discussing it because of the role of the judiciary expanding in this society today.

It may seem ironic that the judicial branch preserves its legitimacy through refraining from action on political questions. That concept was put forward best by Justice Frankfurter, appointed by President Roosevelt.

He said courts are not representative bodies. They're not designed to be a good reflex of a democratic society. Their judgment is best informed and, therefore, most dependable within narrow limits.

I want to take on this point of the reservation of certain seats on the bench for certain philosophies, which it seems as if we've heard a great deal about today, that you need to be like Sandra Day O'Connor in judicial philosophy to be able to go on her seat on the bench.

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

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

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

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

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

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

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

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

Now, Justice Ginsburg, it was noted earlier, was a general counsel for the ACLU, certainly a liberal group. It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the court to the left.

But because President Clinton won the election and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the court, she was confirmed.

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

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

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

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

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

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

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

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

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

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

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

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

BROWNBACK: This is the effect of Roe.

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

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

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

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

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

Mr. Chairman...

SPECTER: Thank you very much, Senator Brownback.

We now move to the final opening statement.

When we finish the statement of Senator Coburn, we are going to go right to the presenters, Senator Lautenberg and Governor Whitman. So I'd like them to be on notice that we will be doing that in just a few moments.

And following Senator Lautenberg and Governor Whitman, we'll be hearing from Judge Alito.

Senator Coburn, the floor is yours.

COBURN: Thank you.

Judge Alito, welcome.

I know you're tired of this and I'll try to be as brief as possible.

One of the advantages of going last is to be able to hear what everybody else has said.

COBURN: And as I've listened today, we've talked about the unfortunate, the frail. The quotes have been "fair shake for those that are underprivileged." We've heard "values, strong, free and fair, progressive judiciary." We've heard "the vulnerable, the more unvulnerable (sic), the weak, those who suffer." We've heard of an Alito mold that has to be in the mold of somebody else.

And as a practicing physician, the one disheartening thing that I hear is this very common word, this "right to choose" and how we sterilize that to not talk about what it really is.

I've had the unfortunate privilege of carrying over 300 women who've had complications from this wonderful right to choose to kill their unborn babies. And that's what it is: It's the right of convenience to take the life.

And the question that arises as we use all these adjectives and adverbs to describe our physicians as we approach a Supreme Court nominee is where are we in America when we decide that it's legal to kill our unborn children?

I mean, it's a real question for us. I debate honestly with those who disagree with me on this. It is a real issue, a measurement of our society, when we say it's fine to destroy unborn life who has a heartbeat at 16 days post-conception. Thirty-nine days post- conception you can measure the brain waves and there's pain felt.

The ripping and tearing of an unborn child from his mother's womb through the hands of another, and we say, "That's fine; you have a constitutional right to do that."

How is it that we have a right of privacy and due process to do that but you don't have the right, as rejected unanimously by the Supreme Court in 1997, to take your own life in assisted suicide?

COBURN: You know, how is it that we have sodomy protected under that due process but prostitution unprotected? It's schizophrenic. And the reason it's schizophrenic is there's no foundation for it whatsoever other than a falsely created foundation that is in error.

I don't know if we'll ever change that. It's a measure of our society.

But the fact is that you can't claim, in this Senate hearing, to care for those that are underprivileged, to those that are at risk, to those that are vulnerable, to those that are weak, to those that suffer and, at the same time, say I don't care about those who have been ripped from the wombs of women and the complications that have come about throughout that.

So, the debate, for the American public -- and the real debate here is about Roe.

We're going to go off in all sorts of directions, but the decisions that are going to be made on votes on the committee and the votes on the floor is going to be about Roe, whether or not we as a society have decided that this is an ethical process, that we have this convenient process that if we want to rationalize one moral choice with another, we just do it through abortion, this taking of the life, of life of an unborn child.

I asked Chief Justice Roberts about this definition of life -- you know, what is life? The Supreme Court can't figure it out or doesn't want us to figure it out; the fact that we know that there is no life if there's no heartbeat and brainwaves. We know that in every state and every territory. But when we have heartbeat and brain waves, we refuse to accept it as the presence of life -- this lack of logic of which we approach this issue because we like and we favor convenience over ethics. We favor convenience over the hard parts of life that actually make us grow.

Senator Brownback talked about those with disabilities that are destroyed in the womb because of a genetic test that is sometimes wrong. I would put forward that we all have disabilities.

Some of us, you just can't see it. And yet, who makes the decisions as to whether we're qualified or not?

COBURN: We've gone down a road to which we don't have the answers for. That's why we have the schizophrenic decisions coming out of the Supreme Court that don't balance logically with one versus another decision.

So my hope, is as we go through this process, let's not confuse it with the easy words and really be honest and straightforward about what this is about.

I firmly believe that the court should take another direction on many of these moral issues that face us. If we're to honor the heritage of our country, whether it be in terms of religious freedom, whether it be in terms of truly protecting life, protecting not just the unborn but who comes next, the infirm, the elderly, the maimed, the disabled -- that's who comes next as we get into the budget crunch of taking care of those people in the years -- I believe we ought to have that debate honest and openly.

But the fact is, is we're going to cover it with everything except the real fact is we've made a mistake going down that road in terms of saying we can destroy our unborn children and there's no consequences to it.

So I welcome you.

This is a difficult process for you and your family. I am hopeful that you will be treated fairly.

I'm very disturbed at the picture that was painted by Senator Kennedy that you're not a man of your word, that you're dishonest. The implication that you're not reliable I don't think is a fair characterization of what I've read.

And I look forward to you being able to giving answers, as you can, to your philosophy.

The real debate is we've had an activist court, and the American people don't want an activist court. And the real fear from those who might oppose you is that you'll bring the court back within a realm where the American people might want us to be with a Supreme Court; one that interprets the law, equal justice under the law, but not advancing without us advancing, the legislative body advancing, ahead of you.

I welcome you.

I return the balance of my time and I look forward for your introduction and your opening statement.

SPECTER: Thank you very much, Senator Coburn.

We will now turn to our presenting witnesses, Senator Lautenberg and Governor Whitman.

SPECTER: In accordance with our standing rules of the committee, the presenters will each have five minutes. They've been so informed.

And we first welcome our colleague Senator Frank Lautenberg to present Judge Alito.

LAUTENBERG: Thank you, Mr. Chairman and Senator Leahy, colleagues on this committee. Thank you for the opportunity to testify here today.

Jon Corzine, U.S. senator and now governor-elect in New Jersey, wanted to be here, but transition duties in Trenton prevent him from doing so.

Now, I've been honored to serve in the United States Senate for 21 years. And I'm convinced that our duty to provide advice and consent for justices of the Supreme Court is our most important constitutional responsibility.

Our mandate is to be a nation of laws. And the Supreme Court is the place where we look to safeguard our civil rights and our individual liberties.

But I believe that justices must recognize that our Constitution is an 18th-century document that needs to be applied in the context of the 21st century.

We also depend on the Supreme Court to uphold the integrity of our government.

So I'm privileged to have the opportunity today to introduce Sam Alito Jr. to this committee, and his beautiful family that he brought along to fortify his candidacy.

Judge Alito was born and raised in the great state of New Jersey. Our state has a legacy of producing outstanding jurists, most notably the late William J. Brennan, who ushered in our nation's recommitment to civil rights in the latter half of the 20th century.

Another distinguished jurist, Justice Antonin Scalia, also was born in New Jersey.

LAUTENBERG: In 1950, Sam Alito was born in our state's capital city, Trenton, New Jersey, to a family of worthy achievement.

Justice -- or Judge Alito's father; I'm moving too quickly here. Judge Alito's father was an immigrant from Italy who taught history in high school and later ran the New Jersey Office of Legislative Services, which is similar to our own Congressional Research Service, in that it provides objective, unbiased information to the legislature.

Judge Alito's mother was a librarian, teacher and a school principal. And she is now 91 and still, as I understand, residing in the family home in Hamilton, New Jersey.

From his parents, Judge Alito learned the importance of education and integrity.

Judge Alito and his sister went to public school in Hamilton, New Jersey, where they both joined the debating team. It seemed like the debating experience paid off, as both he and his sister have excelled in the legal profession.

Sam Alito then went on to Princeton University, where his yearbook entry predicted that one day he would warm a seat on the Supreme Court.

He graduated from Yale Law School 1975 and then served as a clerk for Circuit Court Judge Leonard Garth, with whom he currently serves.

In 1977, Sam Alito joined the U.S. Attorney's Office in Newark, where he met his future wife, Martha, who is present here today. They later moved to Washington, where Sam Alito served as an assistant to the solicitor general and later in the Department of Justice Office of Legal Counsel.

In 1987, Judge Alito returned home to New Jersey after President Reagan appointed him U.S. attorney for the District of New Jersey. He was a strong prosecutor and nobody was surprised when President George H.W. Bush appointed him to the 3rd Circuit Court in 1990.

And I had the privilege of introducing him then, as well.

LAUTENBERG: Judge Alito's accomplishments in life are the embodiment of the American dream. I'm honored today to introduce him to the committee.

He's a young man. If the Senate confirms him for a lifetime appointment to the Supreme Court, he could serve for three decades or even longer, especially judging it from my point of view.

(LAUGHTER)

His decisions would affect our rights, the rights of our children, our grandchildren and other future generations.

Mr. Chairman, you know it well. It is the job of this committee to evaluate Judge Alito's qualifications and fitness for the court, including his views on legal issues. And I know every member of the committee takes that obligation seriously.

And I trust that Judge Alito will be forthcoming and cooperative in this process. I've had a chance to meet him. I know that he responds to the questions that I put to him. Maybe they were too easy, but he responded very well to them.

And I thank you, Mr. Chairman. I'm pleased to be here with our former governor, Christine Whitman. And we haven't sat at a table together for a long time, but it's a good opportunity to do so.

Thank you.

SPECTER: Senator Lautenberg, do you care to make a recommendation on the nominee?

(LAUGHTER)

LAUTENBERG: I care to present the evidence, just the evidence, Mr. Chairman, and we'll let the record speak for itself.

SPECTER: Our next presenter is Governor Whitman, distinguished, two-term governor for the State of New Jersey, Cabinet of President Bush as administrator of the Environmental Protection Agency.

We welcome you here, Governor Whitman, and look forward to your testimony.

WHITMAN: Thank you, Mr. Chairman. It's a pleasure to be here today with Senator Lautenberg to introduce Judge Samuel A. Alito Jr.

I do urge your support for his nomination to the Supreme Court.

WHITMAN: I won't go into his family background -- Senator Lautenberg has done that -- save to mention one member of the family that he didn't, which is that the judge's sister, Rosemary, is a nationally recognized employment attorney, and someone who's recognized as part of a family that has devoted itself to public service and continues to do that.

Judge Alito personifies the motto of his -- the civic pride embodied in the slogan of his hometown: "Trenton makes, the world takes."

And with the consent of the Senate, one of the most important bodies in the world, the United States Supreme Court, can take a proud product of Trenton, New Jersey, into their chambers.

But I'm not here to discuss President Alito's family background or his state ties. I'm here to discuss his own history of achievement and his potential to be a great associate justice of our Supreme Court.

Sam Alito has excelled at everything he has undertaken. He was an exceptional student at Princeton University and Yale Law School, an outstanding young attorney at the Justice Department, an accomplished United States attorney, and for the past 15 years has been a respected and exemplary federal appeals court judge.

The American Bar Association just gave him their highest rating for his seat as justice. And in his past two appearances before the Senate for confirmation, he has received unanimous support.

There is, however, more to my support of Judge Alito. Like other Americans, I have read many articles dissecting positions Judge Alito has taken throughout his career trying to discern how he might decide on issues likely to appear before the Supreme Court that he would confront as a justice. I, too, have examined the record.

In the final analysis, my decision to support Judge Alito for this position is not based on whether I agree with him on a particular issue or set of issues, or on his conformity with any particular political ideology. In fact, while we may agree on some political issues, I know there are others on which we disagree.

Nevertheless, one's agreement or disagreement on political questions is after all ultimately irrelevant to the issue of whether or not Judge Alito should serve as an associate justice of the Supreme Court.

WHITMAN: The court's role is not to rule based on justices' personal persuasions, rather on persuasive arguments grounded on fact, those facts presented in that particular case, and on their interpretation of the Constitution.

Those decisions are, of course, grounded in the hard reality of disputed fact and the messiness of the real world. But they are also guided by principles of law and justice which have long been treasured by the people of this country.

We should look for justices who understand that instinctively in the very core of their being.

I saw this trait on Judge Alito when he served on the appeals court during my terms as governor. And I have every reason and every confidence that he will exhibit the same as a Supreme Court justice.

Policy in the United States is defined through the laws crafted by the legislative branches of government and carried out by the executive. Our judges make decisions based on their interpretation of the intent of those laws.

We don't want justices to conform their decisions to ideologies. We do want justices whose opinions are shaped by the facts before them and by their understanding of the Constitution.

We should also look for justices who possess the necessary qualities of intellect and humility desirable in those with great responsibility and who can express their thinking clearly and in understandable language.

While we should expect that justices will hold philosophies that will guide their decisions, we should equally expect that they will not hold ideologies that will predetermine their decisions. That is the genius of our system.

Mr. Chairman, some have suggested that Judge Alito has an ideological agenda. I believe that an honest and complete review of his record as a whole will find that his only agenda is fidelity to his judicial craft.

If Judge Alito has a bias, it's in favor of narrowly drawn opinions that respect precedent and reflect the facts before him.

WHITMAN: Members of the committee, yours is an extraordinary responsibility. Decisions by our Supreme Court will affect the lives of Americans for generations to come.

As politicians, whether current or retired, we all have deeply held positions we want to protect. When I was governor, it fell to me five times to appoint members of the New Jersey State Supreme Court.

One thing that experience taught me was that it is virtually impossible to find judges who will act as you would act were you in their position. That's as it should be.

Your responsibility is, to the extent possible, to determine whether or not the nominee before you has the legal background, intelligence and integrity to be a credit to the court.

Sam Alito has been a model as a federal appeals court judge. He has shown that he has the intellect, the experience and the temperament to serve with true distinction.

I have every confidence he will be a balanced, fair and thoughtful justice. I urge this committee to favorably report his nomination to the United States Senate.

Thank you very much.

SPECTER: Thank you very much, Governor Whitman. Without objection, the statement of Senator Corzine will be made a part of the record.

We appreciate your coming, Senator Lautenberg.

We appreciate your coming, Governor Whitman.

And now, Judge Alito, if you will resume center stage.

We now come to the -- you can remain standing. We've come to the formal swearing in of a nominee. I count 41 cameras in the well.

(LAUGHTER)

And, just behind you, a grouping of cameras of seven in number. And I see three more, so you're well up to 50, which exceeds the number present, only 28 for Chief Justice Roberts, so that may be an omen.

I'm stalling for time a little bit here to allow the photographers to position themselves.

(LAUGHTER)

SPECTER: They have sat patiently -- impatiently all day.

We may move the swearing in to the beginning of the ceremony in the future so they can all go out and do something productive.

(LAUGHTER)

But if you would raise your right hand.

Do you solemnly swear that the testimony you will give before the Committee of the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God.

ALITO: I do.

SPECTER: Thank you, Judge Alito. You may be seated.

And we welcome whatever opening comments if you care to make them.

ALITO: Thank you very much, Mr. Chairman. I am deeply honored to appear before you.

I am deeply honored to have been nominated for a position on the Supreme Court. And I an humbled to have been nominated for the seat that is now held by Justice O'Connor.

Justice O'Connor has been a pioneer, and her dedicated service on the Supreme Court will never be forgotten. And the people of the country certainly owe her a great debt for the service that she has provided.

I'm very thankful to the president for nominating me, and I'm also thankful to the members of this committee and many other senators who took time from their busy schedules to meet with me. That was a great honor for me, and I appreciate all of the courtesies that were extended to me during those visits.

And I want to thank the Senator Lautenberg and Governor Whitman for coming here today and for their kind introductions.

During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story.

ALITO: The story goes as follows.

This was a lawyer who had never argued a case before the court before. And when the argument began, one of the justices said, "How did you get here?," meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said -- and this was some years ago -- he said, "I came here on the Baltimore and Ohio Railroad."

This story has come to my mind in recent weeks because I have often asked myself, "How in the world did I get here?" And I want to try to answer that today and not by saying that I came here on I-95 or on Amtrak.

I am who I am, in the first place, because of my parents and because of the things that they taught me.

And I know from my own experience as a parent that parents probably teach most powerfully not through their words but through their deeds. And my parents taught me through the stories of their lives. And I don't take any credit for the things that they did or the things that they experienced, but they made a great impression on me.

My father was brought to this country as an infant. He lost his mother as a teenager. He grew up in poverty.

Although he graduated at the top of his high school class, he had no money for college. And he was set to work in a factory but, at the last minute, a kind person in the Trenton area arranged for him to receive a $50 scholarship and that was enough in those days for him to pay the tuition at a local college and buy one used suit. And that made the difference between his working in a factory and going to college.

After he graduated from college in 1935, in the midst of the Depression, he found that teaching jobs for Italian-Americans were not easy to come by and he had to find other work for a while.

But eventually he became a teacher and he served in the Pacific during World War II. And he worked, as has been mentioned, for many years in a nonpartisan position for the New Jersey legislature, which was an institution that he revered.

ALITO: His story is a story that is typical of a lot of Americans both back in his day and today. And it is a story, as far as I can see it, about the opportunities that our country offers, and also about the need for fairness and about hard work and perseverance and the power of a small good deed.

My mother is a first generation American. Her father worked in the Roebling Steel Mill in Trenton, New Jersey. Her mother came from a culture in which women generally didn't even leave the house alone, and yet my mother became the first person in her family to get a college degree.

She worked for more than a decade before marrying. She went to New York City to get a master's degree. And she continued to work as a teacher and a principal until she was forced to retire.

Both she and my father instilled in my sister and me a deep love of learning.

I got here in part because of the community in which I grew up. It was a warm, but definitely an unpretentious, down-to-earth community. Most of the adults in the neighborhood were not college graduates. I attended the public schools. In my spare time, I played baseball and other sports with my friends.

And I have happy memories and strong memories of those days and good memories of the good sense and the decency of my friends and my neighbors.

And after I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University. A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton. But, by the time I graduated from high school, things had changed.

And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s.

ALITO: It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

I'm here in part because of my experiences as a lawyer.

I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail in every single case that came before me; he insisted on scrupulously following precedents, both the precedents of the Supreme Court and the decisions of his own court, the 3rd Circuit.

He taught all of his law clerks that every case has to be decided on an individual basis. And he really didn't have much use for any grand theories.

After my clerkship finished, I worked for more than a decade as an attorney in the Department of Justice.

And I can still remember the day, as an assistant U.S. attorney, when I stood up in court for the first time and I proudly said, "My name is Samuel Alito and I represent the United States in this court." It was a great honor for me to have the United States as my client during all of those years.

I have been shaped by the experiences of the people who are closest to me, by the things I've learned from Martha, by my hopes and my concerns for my children, Philip and Laura, by the experiences of members of my family, who are getting older, by my sister's experiences as a trial lawyer in a profession that has traditionally been dominated by men.

And, of course, I have been shaped for the last 15 years by my experiences as a judge of the court of appeals.

During that time, I have sat on thousands of cases -- somebody mentioned the exact figure this morning; I don't know what the exact figure is, but it is way up into the thousands -- and I have written hundreds of opinions.

And the members of this committee and the members of their staff, who have had the job of reviewing all of those opinions, really have my sympathy.

(LAUGHTER)

I think that may have constituted cruel and unusual punishment.

(LAUGHTER)

I've learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I've learned by doing, by sitting on all of these cases. And I think I've also learned from the examples of some really remarkable colleagues.

When I became a judge, I stopped being a practicing attorney. And that was a big change in role.

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client.

The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered.

Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that's made by an attorney who's appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.

It's been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years, because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law.

And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States.

And that is what I have tried to do to the very best of my ability for the past 15 years. And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court.

Thank you.

SPECTER: Thank you very much, Judge Alito, for those opening comments.

We will adjourn at this point and we will resume tomorrow morning at 9:30 when we will start the first round of questioning with each senator on round one having 30 minutes.

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