U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON JUDGE SAMUEL ALITO'S NOMINATION TO THE SUPREME COURT

JANUARY 12, 2006

Transcript provided by CQ Transcriptions, LLC

(Continued)

SPECTER: Welcome back, Judge Alito. A thought just crossed my mind that this is the only time when you walk into a room that everybody doesn't stand up.

(LAUGHTER)

ALITO: That happens to me all the time at home, Senator.

(LAUGHTER)

SPECTER: I'm not saying when you come home, Judge Alito. The reception for a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, All rise. Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.

Senator Kyl?

KYL: Mr. Chairman, I'll reserve my questions for now. Thank you.

SPECTER: Senator Kyl is reserving his time.

Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.

I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.

FEINGOLD: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.

SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her. Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.

FEINSTEIN: Not quite, but I thank you for that...

SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.

FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.

SPECTER: We'll reset the clock at 20, Senator Feinstein.

FEINSTEIN: Thank you.

Good morning, Judge Alito.

ALITO: Good morning.

FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.

And you made comments about the balance of powers, that all branches of government are equal.

There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee. And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.

And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.

And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- plenary meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.

Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.

So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).

Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in. And FISA is very explicit. And let me read a part of it to you.

Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted.

It does provide -- you used the word general. It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.

I was concerned; there are two questions in this one statement. The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?

ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.

But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.

So he is given the responsibility of making sure that the laws are carried out.

FEINSTEIN: Let me press you on unconstitutional. Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.

There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.

As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words deter and preempt any future acts of terrorism or aggression against the United States. And he refused to do it.

And, Mr. Chairman, if I could place this...

SPECTER: Without objection.

FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.

SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.

FEINSTEIN: Thank you.

So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.

The question then comes, I guess, does the plenary power of the president supersede this?

ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.

The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?

And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.

Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.

But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with? And I think legislative history can be appropriately consulted.

And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.

Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.

And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.

FEINSTEIN: Let me stop you right here, because that's right.

Because detention is a necessary following of an authorization of military force, so detention is logical.

When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this. Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.

ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.

FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?

ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.

FEINSTEIN: OK. Enough of that. Let me move on.

In WR Grace v. the EPA, a chemical company released large amounts of ammonia into the local aquifer in Lansing, Michigan. Under the Safe Drinking Water Act, the EPA ordered the chemical company to clean up the discharge to reduce the concentration of ammonia to a level that wouldn't threaten the health of the community. The chemical company challenged this EPA decision. You cast, as I understand it, the decisive vote to overrule the EPA, permitting the company to leave more ammonia in the aquifer, despite the EPA's determination that this level of ammonia would continue to endanger the water supply.

In her dissent, Judge Mansmann urged deference to the EPA in matters of science, noting that, quote, The high degree of deference we are to accord the EPA is a cornerstone to the EPA's power, enshrined in the Safe Drinking Water Act, to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes, end quote.

Do you agree with the dissent that a reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's special area of expertise?

ALITO: I do agree with that. I don't think there's any question about that.

FEINSTEIN: Do you believe that where an agency is taking action to protect the health of citizens, additional deference should be given?

ALITO: I think that deference is owed to the expertise of administrative agencies. That's an important part of administrative law. And when you're dealing with an agency like the EPA, you would defer to their area of expertise. And I think that's correct.

FEINSTEIN: Should the EPA be accorded the same deference as other governmental agencies?

ALITO: I don't see why it should not. It's the expert on environmental questions. And, for example, if the EPA issues regulations interpreting a statutory provision and its given broad authority under the environmental laws frequently to implement choices that are reflected in the legislation, then I think that it's entitled to a broad measure of deference under the Chevron decision if it issues rules and if any reasonable interpretation of the statute is entitled to deference from the courts.

FEINSTEIN: OK. Let me go way back.

And I recognize that time has gone by and I recognize you were in a different position, but these questions are really aimed to point out the importance of the commerce clause to us.

In 1986, Congress passed the Truth in Mileage Act to prevent odometer fraud. As deputy at the Office of Legal Counsel, you recommended that President Reagan veto the bill because you believed it violated the principles of federalism.

In the draft statement for the president, you wrote, It is the states and not the federal government that are charged with protecting the health, safety and welfare of their citizens, that's a quote. President Reagan did sign the Truth in Mileage Act.

Does it remain your opinion that it is the states, not the federal government, that are charged with protecting the health, safety and welfare of Americans?

ALITO: Both the federal government and the states have responsibilities in those areas.

Historically, the primary responsibility with respect to those concerns has been with the states. But with the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas and now has very substantial responsibilities in all of those areas under regulatory schemes that have been in place for a long time and I don't believe are being challenged on constitutional grounds at this time.

If I could just say a word about that memo, which I read for the first time in 20 years recently, it's a brief statement. And as I read it, what it is primarily expressing it is not an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan ministration.

The Reagan administration had a policy of implementing its view of federalism concerns through policy-making decisions. In other words, its policy was to go further in respecting what it viewed as the federalist system -- as our federal system of government than the Constitution required, to go further as a policy matter.

And as I read the brief statement, that's what was being expressed there.

FEINSTEIN: So if I understand that, quickly, what you're saying is, this was written as staff in an administration to follow a policy.

But are you also saying, as a judge, this would not necessarily be a position that you would hold in any case?

ALITO: As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.

Congress can implement policy ideas about federalism. The Garcia case, in fact, is based on the view -- this is what the Supreme Court said there -- that the primary way in which the federalism concerns that were expressed in National League of Cities was to be implemented in the future was through policy decisions made by Congress.

They said the states are represented in Congress through the membership in the Senate. And protection of the prerogatives of the states should be left to policy decisions made by Congress or decisions made by Congress in implementing its view of how the system of federalism should work. And an executive, a president, can take a similar approach. A president can say: Although the Constitution allows the authority of the federal government to go this far, as a policy matter, I do not want to go along with legislation that goes up to the limits of what the Constitution allows. As a policy matter, I want to stop short of that. As I read this memo, that is what we were saying there.

FEINSTEIN: Thank you very much.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Feinstein.

Senator Grassley has stated his interest in claiming some of his reserve time.

Senator Grassley?

GRASSLEY: A small part of it.

Number one, to make a point that I hope would put a lot of my colleagues who have raised questions about some theory you have about this or that; that whatever political science theories you might have about the executive branch of government, I do not worry about that and I would hope my colleagues would not worry about that because you could have a hundred theories and they could be all crazy. But is it not right that you are a person that is bound by the Constitution to only hear cases and controversies that come before the Supreme Court?

And so, you know, whatever comes before you, you are responsible for deciding it within the constitutional case and controversy.

Secondly, it seems to me that you are a person who has the judicial temperament, as you said so many times, that you are going to keep your own personal views out of it.

It seems to me that you are a person that has indicated to us that you are going to look at a case within the four corners of the law and the facts that apply to that case and nothing more. So any theories you might have about -- what was it called, unitary executive or something -- what's that got to do with your deciding a case?

ALITO: Senator, you are exactly right. If cases involving this area of constitutional law come before me, I will look to the precedents of the Supreme Court. And that's what I think I've been trying to emphasize.

And there are governing precedents in this area. There is Humphrey's Executor and Weiner and, most recently, Morrison, which was an 8-1 decision.

GRASSLEY: Then the other thing -- I'd take an opportunity to just tell you something and not want any response. But that is on the False Claims Act.

This act was originally passed in 1862 because Lincoln didn't have enough people to prosecute fraud by military people against the government. So he empowered individuals to do that under qui tam.

And then in 1942, I think it was, the law was gutted by taking out the qui tam provisions, probably because of World War II and the necessity of getting the job of military construction done.

And then in the 1980s we found a heck of a lot of military -- fraudulent use of taxpayers' money. We held a lot of hearings on that. It came that there wasn't enough being done by the Justice Department to take care of it. We saw the Justice Department making a lot of global settlements.

You know, some company that had done a massive amount of wrong in many areas, and maybe having the Justice Department settle one little dispute, but give a global settlement so that they'd never be prosecuted for anything after that, it led us to beefing up the False Claims Act by putting the qui tam provisions in it.

And it was a terrible thing to get through Congress. I think six months after we voted out of committee, we had every senator putting a hold on it, some bequest of somebody in the defense industry. And you take care of that little problem, and another put a hold on it, and another one put a hold on it.

And finally, the last person was a friend of mine that had a hold on it. I said, Why did you have a hold on it?

Well, some of my friends said that's bad for the defense industry.

And I talked to him about it, and he says, You know, you're absolutely right.

And we got the last hold off and we got it passed and we got it signed by the president of the United States.

And then over the last several years, we have had the defense industry going, trying to gut it again. Then we had the hospital association trying to gut it because we were using it in medical care.

And it's brought in $12 billion into the federal treasury. And I think it's even had the benefit of discouraging a lot of activity that would go on normally that saved the taxpayers' money without prosecution.

But there are people in the Justice Department, the professional people in the Justice Department, doesn't want some citizen looking over their head and doing their job for them when they aren't doing it. And a district judge in the mid-'80s, or maybe it was the late '80s, in, I think, a General Electric case someplace in Ohio -- when the Justice Department was trying to cut back the award that the relator was going to get, said to this Justice Department guy, Don't you get it? You wouldn't even have a case if it wasn't for this whistleblower coming forward to make their statement and to make their case.

And, you know, it's grown into quite a thing now.

The only thing I regret about it -- there's a lot of lawyers that are tort attorneys out there getting rich off of it, but there's also a lot of coming in to the federal treasury. And about 15 percent is what it would cost the federal government anyway to bring in the same amount of money if they prosecute it, but they won't prosecute it. And they don't know about all of it. And you've got to rely on the whistleblowers to get the information out there.

So when you're in your very private meetings that you have after you get on the Supreme Court and you're talking about these things, I hope you'll remember that this was meant to serve a worthy purpose, is serving a worthy purpose. And I'd like to have you look at it in a very unbiased way.

(LAUGHTER)

I reserve the rest of my time.

SPECTER: Judge Alito, Senator Grassley's going to follow that up with a strong letter.

(LAUGHTER)

GRASSLEY: The chairman remembers we even had to subpoena William French Smith one time in this whole process.

LEAHY: Chuck, I think we know where you stand on this.

GRASSLEY: OK.

SPECTER: To use a little bit more of my time, Senator Grassley did more than subpoena Attorney General William French Smith; he started proceedings to hold him in contempt.

And that was at about a time when Attorney General Smith was inviting some members of the Judiciary Committee to have lunch. And he was very dour during the entire lunch as far as his attitude toward me and I found out why at the end of the lunch: He wanted to know why I wanted to hold him in contempt. He'd insulted Senator Grassley to the nth degree by confusing me with him.

(LAUGHTER)

Tell your Anita Hill story, Chuck.

GRASSLEY: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.

And I went back to my constituency and everybody said to me, You were awful to Anita Hill. You just treated her awful, because they got me mixed up with him.

(LAUGHTER)

SPECTER: Wait. I didn't know you're going to tell that part of the story.

(LAUGHTER)

GRASSLEY: I thought that's the only part we talked about.

SPECTER: We're just trying to use a little time over here to give you just a little respite from the...

LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.

SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.

FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.

SPECTER: So granted.

Set the clock at 25 minutes.

And you're recognized, Senator Feingold.

FEINGOLD: Thank you, Mr. Chairman.

Good morning, Judge. It's nice to talk to you in the morning for once.

And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.

(LAUGHTER) First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.

I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.

Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.

I note, for example, that one of the people who participated in these sessions was Benjamin Powell. He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.

I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.

So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.

Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.

You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.

After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.

And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.

So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...

FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?

ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.

Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?

I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.

FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?

ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress. So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.

But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.

FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.

But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.

And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.

ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.

But I think it would be irresponsible for me to say anything on the substance of the question here. And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.

Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly. And that's all I can say.

FEINGOLD: And I respect your constraints in this regard.

And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.

At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.

ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.

And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.

FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle.

FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.

ALITO: In all the contexts that I'm familiar with, that would be the answer.

FEINGOLD: Thank you for that answer.

I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.

You said that the Constitution, of course, is designed to prevent that. We all agree on that.

But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?

ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final.

If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute.

And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks. For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law. And if the state prisoner doesn't do that...

FEINGOLD: My question assumes that all that's been done and the process went through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent.

The question is: Does that person in that posture have a constitutional right not to be executed?

ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.

FEINGOLD: You can't say that the person has a constitutional right not to be executed?

ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.

And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.

FEINGOLD: I'll stop on that topic.

But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed.

But I'm glad we could talk about that a bit.

We talk about affirmative action. In her opinion in Grutter v. Bollinger, Justice O'Connor recognized the, quote, real-world significance and impact of affirmative action programs and policies. And she noted that American businesses need skills obtained through exposure to widely diverse people and cultures. A racially diverse officer corps is essential to the military's ability to fulfill its mission to provide national security. And diversity in colleges and university leads to diversity in civil society, which is, quote, essential if the dream of one nation indivisible is to be realized, unquote.

Justice O'Connor expressly gave great weight to the views of military leaders who said a highly qualified, racially diverse military is essential.

How much weight would you give to that view?

ALITO: Well, I can speak to the issue of diversity in education from a little bit of my own experience.

A couple of years ago, as an adjunct law professor at Seton Hall Law School, I taught a seminar on civil liberties and terrorism. Because in the wake of the terrorist attacks on 9/11, it became apparent to me that there were going to be a lot of civil liberties issues raised, it seemed to me that these were issues of the utmost importance, so I put together a seminar on the question.

And the first time I conducted the class, we had a class with people of extremely diverse backgrounds relating to this issue. There was a student who had been in the special forces in Bosnia. There was a student who was a Muslim from the Middle East. There were a number of students who had been personally affected, in one way or another, by the terrorist attacks on the World Trade Center. There were students who felt very strongly about civil liberties.

And having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.

So in that setting I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.

And the Supreme Court has expressed the view that diversity is a compelling interest, having a diverse student body is a compelling interest. Justice Powell voiced that back in the Bacci case, and it's been reiterated in a number of cases, and, most prominently, most recently in the Grutter case.

FEINGOLD: Yes, in fact, in Gratz and Grutter, seven of the nine justices -- all but Justices Scalia and Thomas -- reaffirmed Justice Powell's determination of the Bacci case that the state has a compelling interest in promoting diversity in the classroom.

Do you think that increasing diversity in the classroom is a compelling state interest?

ALITO: Well, I've spoken to my own personal experience about its importance in education. And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education. And it's the Supreme Court's recent word on this issue.

FEINGOLD: I hope you'll think it fair that nothing about what you just said would suggest to me that you think it's anything less than a compelling state interest.

ALITO: It's a precedent. And the Supreme Court has dealt with this over a time, and that's the conclusion that they've drawn.

FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?

ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.

FEINGOLD: Thank you, Judge.

2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.

The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, sinful, unquote, nature and harmful effects of homosexuality, as compelled by their religion.

In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.

In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?

ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.

The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy. And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.

The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.

And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.

And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.

FEINGOLD: Thank you, Judge.

Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?

ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.

FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?

ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.

FEINGOLD: Judge, let me switch to an ethics issue that is not Vanguard. As you know, after your testimony concludes today, a number of outside witnesses are coming to testify about your nomination, including seven current and former judges from your court.

As far as I know, this is the first time that sitting federal judges have testified on behalf of the Supreme Court nominee. And I'm a little troubled by it. I hope to have some opportunity to question the judges about this, but I think it may raise something of an ethical issue for you.

If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?

ALITO: That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.

FEINGOLD: Perhaps you could give me an answer after you've had a chance to think about it?

ALITO: I would certainly be happy to do that.

FEINGOLD: I appreciate that.

Well, Mr. Chairman, I think that is sufficient. Thank you very much.

SPECTER: Thank you very much, Senator Feingold.

We are on course to finish you before lunch time, Judge Alito. We have more potential questions from the Republican side, and we have two more Democratic side.

Senator DeWine, do you have any questions?

DEWINE: Mr. Chairman, I'll reserve my time.

SPECTER: Senator DeWine reserves his time. Senator Schumer, you're recognized for up to 25 minutes.

SCHUMER: Thank you, Mr. Chairman.

SPECTER: With our conversation that you're going to ask new questions...

SCHUMER: That's what I want ask. But...

LEAHY: It's a new day.

(LAUGHTER)

SCHUMER: But I think some of my old questions, the ones I've asked before, should bother you. They bother me.

But, in any case, I do have a few other issues that I do want to talk to you about. But, first, there's just a general question on presidential power.

Let's just assume that it was found that the president's right to wiretap people, the way we're discussing it now in terms of the recent NSA revelations, was found constitutional.

Would there be a different standard if, say, the president -- does that necessarily allow the president to then go ahead and go into people's homes here in America, American citizens, without a warrant?

Does the one necessarily lead to the other?

ALITO: I would have to understand -- I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.

SCHUMER: But let's assume it is constitutional.

ALITO: I'd have to know what the arguments were made about it and on what ground was found to be constitutional.

SCHUMER: So, it could follow, but might not? Is that what you are saying?

ALITO: It very well might not. I would have to know the constitutional grounds for the decision relating to the wiretapping and I have no idea what that would be.

It may well not extend to things like physical searches of homes.

SCHUMER: Is there a difference? Is there a constitutional difference between a wiretap and an actual physical search of the home on Fourth Amendment grounds? Is there any that you know in the cases?

ALITO: There are differences. Yes, there are certainly are.

SCHUMER: Thank you.

ALITO: General criminal wiretapping is subject to all the rules that are set out in Title III, which are thought to be based in large part on Fourth Amendment requirements. And the warrant requirement is very strong in the area of electronic surveillance.

When you're talking about other types of searches, the searches can take place in a variety of places for a variety of reasons.

SCHUMER: But if it can be done under the inherent power that the president has for the one, why couldn't it be done for the other? I'm not asking about the statute.

ALITO: There's also a Fourth Amendment issue.

SCHUMER: In both cases.

ALITO: In both cases. And the Fourth Amendment could play out very differently in those two contexts.

SCHUMER: Now I'd like to go back to some of the line of questioning that Senator Durbin explored yesterday when he mentioned the crushing hand of fate: Bruce Springsteen.

Judge Alito, I assume you believe that you will be able to be fair in every case that comes before you on the Supreme Court.

ALITO: I have no reason to think I will not be. I certainly will.

SPECTER: And you don't believe that you prejudged any legal or constitutional issue?

ALITO: I don't believe that I have.

SCHUMER: And you'll take care to apply the rules of law and procedure equally and evenhandedly no matter who the parties are, prosecution or defense?

ALITO: Certainly will, yes, Senator.

SCHUMER: Employer or employee?

ALITO: I will apply the laws evenhandedly to everyone.

SCHUMER: And I take it you believe that you've done just that on the 3rd Circuit while you were there.

ALITO: I believe I have.

SCHUMER: OK.

Now, yesterday, Senator Durbin asked about Pirolli v. World Flavors, and you remember that case. You discussed it with Senator Durbin.

And the case involved the claims of a mentally retarded man who brought suit against his employer for violent and persistent sexual harassment by his coworkers. SCHUMER: Am I right?

ALITO: Those were the claims, yes.

SCHUMER: And the majority allowed the case to proceed, finding that the court had, quote, discretion to consider issues not raised in the brief. And they did so to give the plaintiff his day in court. You exercise your discretion to vote against giving him his day in court because his lawyer failed to raise the argument in the brief.

As you told Senator Durbin, There is a very important principle involved in appellate practice -- these are your words -- I think it goes with the idea of judicial self-restraint. And that requires parties raise issues in the trial court, and that if they do not raise the issue in the trial court, then absent some extraordinary circumstances, they should not be able to raise the issue on appeal, and that was the principle there.

Those are your words. Right?

ALITO: I believe they are. Yes.

SCHUMER: OK. Now I'd like to go to two other cases that you had when you are on the 3rd Circuit. The first one is Smith v. Horn, where a similar issue arose. That was a criminal case involving a habeas corpus petition brought by a criminal defendant, right?

ALITO: Yes, it was.

SCHUMER: And it turns out that in that case as well, just like Pirolli, one of the parties had failed to raise a relevant argument in its brief, right?

ALITO: Smith v. Horn was really not comparable to Pirolli, for a very important reason. Smith v. Horn was a habeas case. And so what is involved there is not simply a dispute between private parties -- and of course disputes between private parties are very important and individual rights can dissolve...

SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.

I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.

They said: Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates. So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.

In the first case, you said to that retarded individual, Sorry, you're out of luck. In the second case, you said to the government, I'll make your argument for you. And that doesn't seem even handed to me.

Can you explain the difference, please?

ALITO: Yes, Senator.

As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.

What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.

And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.

SCHUMER: Now, that applies to the government as well as to the defendant?

ALITO: Absolutely.

The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?

Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.

SCHUMER: But the majority didn't agree with you in that situation, did they?

ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.

And my position on...

SCHUMER: Let me ask you -- I understand your explanation. I'm not sure I agree with it. But let me go on to another one. This is Dillinger.

In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.

They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?

ALITO: I don't have a recollection of all the facts...

(CROSSTALK)

SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.

The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.

You dissented, with the result, had you prevailed, that the accident victim's case would have been over.

The majority describe your approach as follows. Quote: There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial.

So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?

ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case.

SCHUMER: Can you explain the difference between the two for us; why in one case it was OK and why in another case it wasn't?

ALITO: Senator, I'd have to refresh my recollection of Dillinger.

But what you've just mentioned relates to the principle that it is appropriate for an appellate court to affirm a decision of a lower court on an alternative ground when the basis for that is apparent from the record of the case.

So if the facts -- if it's a purely legal issue, for example, and you're talking about whether you're going to affirm or whether you're going to reverse...

SCHUMER: But was that the case in Dillinger?

ALITO: Well, without refreshing my recollection, I wouldn't be able to say.

SCHUMER: Oh, OK.

ALITO: But what you read to me...

SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another. But what I'd like to do, Mr. Chairman, is just ask permission that Judge Alito could respond to the difference which he hasn't been able to do here because he doesn't recall the details of the case in writing in the next few days.

SPECTER: Is that acceptable to you, Judge Alito?

ALITO: It certainly is, Senator, yes.

SCHUMER: Because he can then look at the case and explain to us why he thought it was different.

SPECTER: With Judge Alito's agreement, that will be the procedure.

SCHUMER: Thank you.

Next: strict construction.

President Bush has stated his beliefs that judges should be strict constructionists, rigidly adhering to the letter of the Constitution. He's described you as a strict constructionist who favors judicial restraint. So I'd just like to explore one particular issue with you.

First, as you've said before, there are certain very straightforward questions that are easy to interpret. It says, Article I, Section 3, No person shall be a senator who will not have attained the age of 30 years.

That was a section you mentioned at our individual meeting. And there is no way that it could be constitutional, I suppose, for a 27- year-old to become a senator, correct? That's easy. That's strict- construction easy.

ALITO: I can't think of a reason why that would not be the case.

SCHUMER: Good. Me, either. Lucky for them.

(LAUGHTER)

Next, another one: No person except a natural-born citizen or a citizen of United States at the time of the adoption of this Constitution shall be eligible to the office of president.

So there's no way, without a constitutional amendment that, say -- I know Senator Hatch has a bill that, say, Arnold Schwarzenegger could become president under the current circumstances. That's easy.

ALITO; Well, I don't want to express a view about the constitutionality of Senator Hatch's bill.

SCHUMER: No, it's a constitutional amendment.

ALITO: A constitutional amendment.

SCHUMER: I'm asking you very simply -- you would need a constitutional...

ALITO: No one but a natural-born citizen can be the president of the United States.

SCHUMER: OK. Now, I want to ask you about the 14th Amendment, which sets forth the definition of citizenship.

It states in relevant part, All persons born or naturalized in the United States and subject to the jurisdiction therefore are citizens of the United States. All persons means all persons. That's pretty easy.

Do you agree this is a fairly clear and straightforward provision of the Constitution?

ALITO: There are active legal disputes about the meaning of that provision at this time.

SCHUMER: Right. But given the clear language, could Congress pass a statute, not a constitutional amendment, denying citizenship to a person born in the United States?

ALITO: And I know that there are proposals to do that. I know that it's an issue that is in play. And if it were to come before me, then I would have to go through the whole judicial process...

SCHUMER: Is there any way that you can see, just off the top of your head here, that that kind of statute would be constitutional?

ALITO: Well, Senator, on issues that can come before me in litigation, I need to apply the same standard that previous nominees have applied, and that's no hints and no previews. And they may turn out to be easy issues, they may turn out to be hard issues. But I can't opine on them here off the cuff. I would have to go through the process of...

SCHUMER: Just make the argument. You don't even have to tell us how you decide. What imaginable argument could there be for a statute that Congress could deny the citizenship to those born in the United States, say, on the grounds that their parents were illegal aliens?

Is there any constitutional argument that you can see off the top of your head?

ALITO: Well, Senator, I don't want to say anything that -- could I answer the question, Senator?

I don't want to say anything that anybody will characterize as an argument that I am making on one side of this question or on the other side of the question.

I know that an argument is being made by people who favor this kind of legislation based on the language under the jurisdiction of the United States. And I don't know whether that will turn out -- I don't know whether it will come before me. I don't know whether, when it's analyzed, it will turn out to be a compelling argument or a frivolous argument or something in between. And I wouldn't express an opinion.

SCHUMER: Judge, I simply ask you to give us an interpretation of one of the most direct and clear provisions in the United States Constitution. And if you can't give us an answer on a very, it seems to me, clear-cut question like that, I find, and I think many of us find, make it difficult to make an assessment of how to vote on your nomination.

ALITO: Senator, my answer is that it is inappropriate for a sitting judge or for a nominee to a judicial position to offer opinions on constitutional questions that are percolating at that time and may well come before that judge or that nominee.

It may turn out to be a very simple question; it may turn out to be a complicated question. Without studying the question, I don't know. And even if I had an initial impression, I wouldn't voice it here. I would have to go through the whole judicial decision-making process before reaching a conclusion that I would be willing to...

SCHUMER: I want to move on now to the commerce clause and Rybar. As you know, after you ruled on Rybar, Gonzales v. Raich was decided, and Justice Stevens wrote for the majority the following: Our understanding of the reach of the commerce clause as well as Congress' assertion of the authority thereunder has evolved over time.

Do you agree with that statement? Has our understanding of the scope of that clause evolved over time? And is it appropriate for our understanding to evolve?

ALITO: I think our understanding of the reach of the commerce clause has evolved as the commercial activity of the country has developed. Commerce in the United States at the time of the adoption of the Constitution was entirely different from commerce in the United States today.

SCHUMER: I think most people would agree with that. Maybe...

ALITO: As a matter of looking at the development of case law, certainly, the case law has developed. The pre-New Deal case law was fundamentally different from the post-New Deal case law -- with which I don't have any quarrel.

SCHUMER: Right. Good.

Here I'm going to read you two views on the commerce clause.

One: Congress' authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activity that have a substantial effect on interstate commerce. Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.

Then there's another view.

Under the commerce clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce.

Those are pretty diametrical. I'm not asking for an absolute here, but which one is closer to your view of the commerce clause?

ALITO: Well, the second view is contrary to Supreme Court precedent. It is contrary to even Lopez and Morrison, which says that Congress may regulate activities that substantially affect interstate commerce.

SCHUMER: All right.

And the first actually was Justice Scalia's concurrence in Raich, and the second -- even though it may be contrary to precedent; we've talked about precedent before -- was actually Justice Thomas's dissent in Raich. So it is obviously a view that has some currency on the court. I'm glad to see you favor the first one.

Now, I asked you a question when we met. I asked you -- as you know because we talked about it, I was troubled by your decision in Rybar -- and Mr. Chairman, I just don't want to try -- could I get permission for an additional five minutes? That's all I will need.

SPECTER: Yes. I couldn't be very forceful about it, but yes.

(LAUGHTER)

SCHUMER: Thank you, Mr. Chairman. I'll take it any way you give it.

I asked you in Rybar, when we had met, if you would have decided the case differently after Raich, which is quite different than Rybar. And at that point, you said you wanted to think about it and I told you that I'd ask you here.

So I guess you've thought about it now.

So my question is, does the recent Supreme Court decision in Raich, joined by Justice Scalia, whose opinion you said was closer to your view than the other, affect your thinking? More specifically, had Raich been decided before you got Rybar, do you think you would have decided it differently?

ALITO: Well, Senator, I don't recall making a promise that I would reach a definitive conclusion on the issue...

SCHUMER: I asked you to think about it; you said you would. That's all.

ALITO: And I have thought about it. But what I can say is that I certainly would have thought about Rybar differently had I had Raich available at that time.

My effort in Rybar was to follow Supreme Court precedent. At the time, Lopez was the latest expression of the Supreme Court's view of this question. And if the chronology had been different and I had the benefit of Raich, I would have taken that into account.

SCHUMER: OK.

Now, just one other thing on the commerce clause.

So what you're saying, there's a possibility -- we won't put a percentage on it -- that Raich might have changed the outcome of your dissent in Rybar?

ALITO: Well, it certainly would have changed my thinking and my analysis. I would have had to take it into account.

SCHUMER: We'll take what we can get.

Next, as a U.S. attorney you frequently crossed paths with state agencies, particularly law enforcement agencies. And at that point, as I remember -- I was a member of Congress very active in anti-crime legislation -- there were all kinds of fights about whether there should be an increased federal role in crime-fighting.

And you must have dealt with some of those statutes. There was carjacking and trigger-lock type offenses. And you must have presided over some prosecutions of local corruption, based on an expansive federal law theory -- mail fraud was being expanded at that time.

These enforcement priorities tended to be conservative. I agreed with them, but they tended to be conservative priorities.

So did your tenure as U.S. attorney affect your thinking on these kinds of situations in terms of the need for federal involvement when the state can't do it? And it brings up -- and then I'll let you speak about this for a minute -- in the odometer act -- I can't remember the exact name of it -- but the legislation that was Bill S. 475 that Senator Feinstein mentioned, you urged disapproval. But it seems to me if that legislation was disproved, it would have been very difficult for the federal government to regulate odometers because cars that were transferred from one state to the other wouldn't have the same uniform system in terms of their title.

And it seems to me, at least, in this world which is becoming smaller and smaller that some of the federalism theory that the states should have primacy in regulation just don't make sense. Didn't make sense to me in your decision in Rybar, as we discussed.

Ninety percent of the guns used in crimes in New York come from out of state. There's no way New York state could stop them unless they inspected each car that came across the George Washington Bridge.

Similarly here, without this federal statute, there's no way the federal government could regulate odometers. It would be ridiculous to ask General Motors to have 50 different standards for 50 different states.

And, similarly, as U.S. attorney, there were areas where it was better for, particularly in our interconnected world, for the federal government to prevail.

And yet, here you were saying -- you were working for the administration, but they ultimately rejected your view that state primacy is such. You even said in this memo, After all, it is the states, not the federal government, that are charged with protecting the health, safety and welfare of citizens. That's a pretty broad statement. I take it you had exceptions to it, of course -- Medicare. U.S. attorneys -- you wouldn't have a job if that was an absolute statement back then.

But just tell us a little bit, for a couple of minutes, about your view of the balance between state and federal powers, particularly in light of the changing circumstances we face.

ALITO: Well, I think you're mentioning those two things -- the memo that I wrote when I was in OLC or that I signed when I was in OLC, and my service as U.S. attorney -- brings out an important point. I was playing different roles. I had different responsibilities in those two jobs.

When I was in the OLC, I think what I was expressing in that memo was the federalism policies of the Reagan administration, which as I mentioned earlier involved going beyond simply insisting on compliance with constitutional standards, it also involves implementing a policy that certain things should be done at the state and local level, even if the federal government could do that.

As U.S. attorney, it was my job to use the legal resources that were available to address the crime problems of the district for which I was U.S. attorney. And I approached that on the basis of cooperating with state and local law enforcement. And my approach was that we should do -- the federal prosecutors should do and the federal investigative agencies should do the things that they were best suited to do and that it should be a practical division of responsibility.

And in many instances as U.S. attorney, we were using far- reaching federal powers. We brought a Hobbs Act prosecution and we were stunned when the district court initially threw it out on commerce clause grounds, because that was virtually unheard of.

SCHUMER: All I'm trying to get at here, there is a practical dimension here that I think fits within the Constitution. And you are agreeing with that?

ALITO: Absolutely. And I...

SCHUMER: I just have to conclude, but go ahead.

ALITO: Go ahead, Senator. That's fine.

SCHUMER: Good. We'll quit while we're ahead on that one.

Let me just, in conclusion, Judge, thank you. It's been a long three days, obviously.

And, as your testimony in these hearings come to a close, I just have to tell you that I remain very troubled, not by anything in your personal history, so much as by your judicial views.

You arrived before us this week with a record. It's a record that contains evidence that you believe the Constitution does not protect a woman's right to choose.

It's a record that suggests you believe in an executive branch so powerful that it would trump other branches of government.

It's a record that makes you appear all too willing to curtail the ability of Congress to look out for the little guy and a record in which you all too often seem to reach for the legal theory that allows you to side with the large and powerful when average Americans are touched by this crushing hand of fate need the most help.

Unfortunately, by refusing to confront our questions directly and by giving us responses that really don't illuminate how you really think, as opposed to real answers, many of us have no choice but to conclude that you still embrace those views completely, or in large part and would continue in a similar fashion on the Supreme Court.

So while the process is not yet over -- we have written questions; we have some witnesses -- the evidence before us makes it very hard to vote yes on your nomination.

On the first day of hearings, I said that while you give the appearance of being a meticulous legal navigator, in the end, you almost always choose the rightward course.

I am sorry to say that I haven't heard anything this week very substantive to dissuade me from that opinion. But I thank you for being here and going through these hearings.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Schumer.

Senator Sessions, do you have any questions?

SESSIONS: Just a few. I would just respond to Senator Schumer and Senator Kennedy, and would note that that's not what the ABA has concluded. They've interviewed 300 of your colleagues, judges and lawyers who practice before you and against you, and they rate you the highest possible rating. They don't see you as an extremist, out of the mainstream or otherwise.

And I also want to thank your family for their patience in going through all of this and listening to those of us on this side as we expostulate on all sorts of things.

And I see your sister back there, in your own right a nationally known attorney.

Rosemary, it's good to see you here.

I understand you were debate partners in high school. It must have been an interesting household to have two prominent lawyers growing up.

So I'll ask you how that was and who was the best debater.

(LAUGHTER)

ALITO: Well, I'll take the Fifth Amendment on the second part of the question.

(LAUGHTER)

But it structured our arguments. So instead of arguing about things at home, we would argue about the issues that we were debating.

My wife insists that we actually argued a debate in front of her class. We didn't know each other at all at the time and didn't meet actually for many, many years later. But we did have a debate at her high school, which was about 20 miles away, and she insists she remembers seeing us debating in front of her French class. SESSIONS: Well, it must have been an interesting thing. Apparently, your colleagues in school there were impressed. They predicted you would serve on the Supreme Court one day. And I think that's going to turn out to be a good prediction.

I would point out, Judge Alito, that you've been asked a lot about separation of powers, FISA act and those kind of things. This Congress has not clarified its position yet. As a judge, if some of these issues were to come before you involving congressional power or something, you would expect the Congress to have formulated its position first, would you not?

ALITO: That would certainly be very helpful.

These are very momentous issues and they're difficult issues and they have just come to the surface in the last few weeks. I couldn't begin to say how I would decide any of these issues without going through the whole judicial decision-making process. I think it would be the height of irresponsibility for me to try to do that.

SESSIONS: I would agree.

The chairman is going to be having hearings within a few weeks here to discuss many of these issues. And it's something that every senator will be engaged in, whether they desire to or not. And we'll have to think these important issues through. And I don't think they're ripe yet for a decision, that's for sure.

I would also note that, with regard to Justice Jackson's position on the president and his war-making powers and the question of when he is a high position and a lower ebb position, Chief Justice Rehnquist discussed that idea in Dames Moore v. Reagan and, in fact, pointed out that that doesn't completely answer the question, those answers are not black and white, and that there's a spectrum running from explicit congressional authorization to explicit congressional prohibition. So there are many factors that must be considered, would you not agree, as you analyze those matters?

ALITO: Yes. You have to know the specifics of the situation.

SESSIONS: On the question of jurisdiction of the Supreme Court and whether Congress has the power to contain it in some way, it does appear there's language in the Constitution that indicates that, as you said yesterday. It's there.

My question to you is: Do you believe that the three branches of government owe it to our country and to our constituents to stay within our bounds and to avoid a constitutional confrontation, a constitutional crisis?

Isn't it better that if the courts to restrain themselves, that Congress would restrain itself and not go forward to an ultimate confrontation of those issues?

ALITO: It certainly is.

The issue of the ability of Congress to take away the Supreme Court's jurisdiction over a particular subject of cases is not something that I have previously addressed in writings, unlike a lot of previous nominees who had addressed that, and therefore, I think, felt that they were freer to discuss that when they came before the committee.

That's not something I've ever addressed in any writing, nor is it something that I've studied, other than to read some of the authorities who have addressed the question.

I did mention that I had given a speech expressing the idea that I thought that it was not a good policy idea. I can understand the motivation, but I don't think that it's good, as a matter of policy, to proceed in that fashion.

And I don't know what the argument would be, as I sit here, in favor of taking away jurisdiction over an entire class of cases. That would raise some serious constitutional questions.

SESSIONS: I would just say to you: I think we ought not to confront that question if we can avoid it. And that's why I have not joined in legislation, some of which has been filed in this Congress, to take jurisdiction away. But I do believe that is some power that's been given to the Congress; hopefully will not have to be used, hopefully that sword will never be drawn because the court will show restraint and remain within the constitutional powers that they have.

With regard to the unitary executive, there are just three branches of government in our Constitution. That's correct, is it not?

ALITO: That's all I see in it.

(LAUGHTER)

SESSIONS: Well, does every agency and department have to be within one or the other?

ALITO: I think they do.

That doesn't say that they can't be structured in ways that differ from each other depending on their function. And that doesn't address the issue of the separate issues of appointment or removal or whether -- well, let me just leave it there with appointment and removal.

But I think that the Constitution sets up three branches and everything has to be within one of those branches.

SESSIONS: One of the things that I learned as United States attorney is these agencies think they're independent entities. They think they're almost like nations. When they get together -- you probably had this experience -- they sign memorandums of understanding. Wouldn't you agree they sometimes look awfully like treaties?

ALITO: Yes, they do look like treaties between federal law- enforcement agencies and state law-enforcement agencies.

SESSIONS: But, of course, the federal government is one. They can't take two positions in a lawsuit, that's for certain.

With regard to interstate commerce, there is a limit to that, to the power of the government, I believe. In the Hobbs Act, in the racketeering act that Senator Schumer mentioned, doesn't it say within those acts that the extortion or the pattern of racketeering has to affect interstate commerce and that is an element the prosecutor must prove before a conviction can be obtained?

ALITO: Yes, that's right.

And the federal criminal statutes that I'm familiar with, almost without exception, have jurisdictional elements in them. That's the traditional way of casting them. There are a few areas where that's not feasible, such as drugs, but most of the statutes have jurisdictional elements right in them.

SESSIONS: And that's basically the Lopez holding, was it not? And in your opinion in Rybar, you specifically said all the Congress needed to do was to put in an interstate commerce nexus that would be proved to the jury, which -- I agree with you, having prosecuted hundreds of drug cases -- it's not ever been a problem in those cases to prove.

That would have solved the problem, isn't that correct?

ALITO: That's right. In firearms cases, that's just not a problem.

SESSIONS: Well, I think you've testified extremely well here. You have been most forthcoming. I disagree with the recent comment that you haven't been forthcoming.

I would say, and I think Senator Biden indicated, that we have not had a witness more forthcoming, more willing to discuss the issues than you have.

Thank you.

SPECTER: Make you, Senator Sessions.

I thought we were going to get to that light at the end of the tunnel before 1:00. It looks like we're going to be a little later than that. But we don't want to take a break now, so to the extent we could move ahead rapidly, it would be appreciated.

Senator Durbin, you had originally asked for 10 minutes, but I understand you want more time. How much would you like?

DURBIN: Senator, I will do it as close to 10 minutes as I can. But I might need a few extra; I want to reach the end of that same tunnel.

SPECTER: Let's set the clock at 10 with flexibility to exceed that.

DURBIN: Thank you very much.

Thank you, Judge Alito. Thanks to your family for putting up with this endurance test. And I appreciate your patience throughout.

First, let me address the issue of court stripping that was mentioned by my friend from the state of Alabama. I really hope that Congress will never draw that sword. We heard about it during the Schiavo case.

If we're going to have a truly independent judiciary, the thought that Congress will take away from the courts issues which we disagree with would really jeopardize it. And just editorializing, I hope we don't reach that point.

After you leave today, there will be a panel come before us of your colleagues on the bench from the 3rd Circuit. Was this your idea that they come and testify?

ALITO: No, it was not.

DURBIN: Were you asked if it was a good idea?

ALITO: No, I was not.

DURBIN: OK.

I understand it's never happened before, and that's why I asked you that question. I don't know who came up with this notion, but it does raise some interesting questions, which we've shared on a bipartisan basis about that testimony. But since you weren't involved in that decision-making, I'll drop it at that. Then there will come some public witnesses. And one of those witnesses will raise a contrast between two decisions you made. And I'm going to give you a chance now to respond to that charge or that observation that will be made.

Fourth Amendment cases: one we've talked about a lot, Doe v. Groody; another we've talked about I think tangentially, which involves Leveto. I hope I'm pronouncing that correctly.

ALITO: Leveto; I'm not sure what the pronunciation is there.

DURBIN: Do you know which case I'm concerned with?

ALITO: Yes, I do.

DURBIN: In the Leveto case, a veterinarian and his wife, subject to Internal Revenue Service agents coming at 6:30 in the morning, detaining him, patting him down in the Internal Revenue Service investigation, holding him for six hours in his office.

Then they went to his home, found his wife in her nightgown, patted her down, held her incommunicado for a period of time.

And they brought a civil suit and said, The government went too far. They didn't have the authority to do those things, to pat us down and search.

And your conclusion, writing the majority opinion, was, Yes, they did go too far. There was a question about immunity, which I won't touch on, but at least from the Fourth Amendment point of view, you said that the government went too far.

Now, of course, the notorious case that's come up time and again of Doe v. Groody. In that case, of course, it's about a year earlier. There's a search of the premises and a John Doe search warrant looking for someone who might have been involved in drug dealing.

An affidavit attached to the warrant says that it could also involve persons on the premises who may be hiding drugs, but the affidavit is not part of the search warrant; it's maybe incorporated in general terms.

The majority of the court says that it was not incorporated; Judge Chertoff writing for the majority. Particularly egregious is the fact that a mother and her 10-year-old daughter were strip- searched pursuant to that search warrant. In that case, you concluded that that was warranted, that was acceptable search.

The witness who comes before us is going to say, Judge, how can you do this? You have a veterinarian here and his wife, IRS search. In their case, you said, 'They went too far when they patted them down and searched them.' The next case, involving a 10-year-old girl in a strip-search, you say, 'They didn't go too far.' How would you compare the two and draw the distinction between them?

ALITO: Well, the Leveto case involved the issue of how long they could detain people who were present on the premises while they executed a search of the premises. And they detained these people for a very long time. I don't remember...

DURBIN: Six hours or more.

ALITO: It maybe even have been longer. It was a very long period of time.

There was no warrant for their arrest. There was no claim that there was a justification to seize them, other than the fact that they were present on the premises at the time when the search was being executed.

The Doe v. Groody case involved the question of the interpretation of a warrant. And the standard that is to be applied there -- the Supreme Court has told us -- is a practical, common-sense instruction. A warrant is not to be interpreted like a sophisticated commercial instrument that's drafted by parties.

The facts were -- you mentioned many of them -- that the affidavit prepared by the police officer said, We have probable cause to search anybody who's found on the premises because we have probable cause to believe that this drug dealer will hide drugs on the people on the premises.

And they presented that to the magistrate and the magistrate issued the warrant, attached the affidavit to the warrant, and said, The warrant is incorporated for -- and I guess I left out the important fact that the officers -- they said, We have probable cause to search anybody on the premises and that's what we want. We want authorization to search anybody on the premises.

And the magistrate granted the warrant and attached the affidavit to the warrant and said, The affidavit is incorporated for the purpose of probable cause, which meant that the magistrate found that there was probable cause to search anybody on the premises.

But in the portion of the warrant where it said person to be searched, it only mentioned...

DURBIN: John Doe?

ALITO: ... the John Doe. Now, if this were a bond, I think you would conclude that the only person you can search is John Doe. But it's a warrant.

And my view was that, viewing this from a practical standpoint, when the magistrate said, Yes, you're right, there's probable cause to search anybody on the premises, those are the people he's saying can be searched.

But even if one didn't agree with that, you would go on to the qualified immunity question and say, Could a reasonable police officer who says, 'I've got probable cause to search anybody who's on the premises and that's what I want,' and you go to the magistrate and the magistrate says, 'I agree with you on probable cause and here's your warrant,' could they reasonably think that the magistrate is saying, 'Yes, search anybody on the premises?'

DURBIN: So did it go into your thinking this whole question of the dignity of the individual; that we are, in fact, dealing with a mother and a 10-year-old daughter who were subjected to the most intrusive search? Was that part of your thinking in terms of coming down in the minority position and saying it was all right to go ahead with the search? Did you consider that calculation?

ALITO: I was concerned about the fact they a minor had been searched, and I mentioned that in my opinion. And that's something that's very unfortunate.

But the issue in the case was not whether there was some sort of rule that minors cannot be searched. That's not part of Fourth Amendment law as I understand it. And there would be a very bad consequence if that were the rule, because where would drug dealers hide their drugs? Minors would then become -- they would become the repository of the drugs and firearms.

DURBIN: Or the issuing authority may be more specific in the warrant, which, as I understand it, is what the Fourth Amendment's all about.

ALITO: Well, the warrant here certainly could have been drafted better.

DURBIN: I think that's what the majority said.

ALITO: It is, but we have to take into account that these are police officers operating under time pressure. And the Supreme Court has told us that we are not to read these warrants like they're complicated commercial documents. We're trying to get at the practicalities of the situation.

DURBIN: I only have a few minutes, and I will try my best to end it, but I don't think I can do it in two.

In our circuit in Chicago, Judge Richard Posner is a very prolific writer about many things. He recently made an observation which I think really is a challenge to all us on the Senate Judiciary Committee.

We currently have a situation involving immigration cases, particularly those involving asylum and deportation, that we have to look at very seriously. There was an effort to clear the backlog when Attorney General Ashcroft was in charge and some procedures were changed to streamline the process, and a lot of these cases were just churned out very quickly with very little evidence as to why decisions were being made. Judge Posner made that point recently, publicly stating, if I might quote him, The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice, he said.

Now, you've been involved in some of these cases: about eight of them as we calculate here. There's been a dramatic increase in the number of these cases coming to the federal appeals courts.

In one particular case here, the Saidou Dia case, which involved the deportation of a man back to Guinea, was a case where he refused to serve in the military. His wife was then confronted in his home country at his home. When they couldn't find him, they beat her, raped her and burned down his home. And this was a man who said, I don't want to go back because I think it could be a dangerous circumstance for me.

In this case, you dissented and said, Return him to Guinea, that you didn't feel that there was a strong enough case to grant him asylum in the United States and to stay.

And the reason I raise it is we looked at your record in these cases where there was a split decision. And we discovered that you ruled for the government in eight out of nine cases where there was a split decision on these questions. And in seven of those eight cases that you ruled in this, yours was the minority position.

So my question to you is: Do you appreciate the observation made by Judge Posner about the terrible state of affairs when it comes to the immigration judges and the decisions they're sending for you to review?

And why did you, more or less consistently, in those contested cases, consistently rule on the government side?

ALITO: Well, Senator, I think I have ruled in favor of asylum- seekers in a number of cases.

DURBIN: Those are usually no dissents in those cases.

ALITO: Well, I know that I've ruled in favor of asylum-seekers in quite a number of cases. I don't have the list on the tip of my tongue.

In the Dia case that you mentioned, the facts that you recited were not the facts that were found by the immigration judge. Those were the facts that the asylum-seeker alleged. And the whole issue in the case was whether there was sufficient evidence to support the contrary finding of the immigration judge.

I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I have been troubled by this. My court has been troubled by this.

But my situation as a court of appeals judge before whom these cases come is created by the legal framework that Congress has created. And Congress has given us a very limited role in reviewing factual findings by immigration judges. What Congress has said is that we have to accept factual findings by the immigration judge unless no reasonable fact finder could come to a contrary conclusion. And that's a tough standard. And I have tried to adhere faithfully to that standard in all the cases that come before, even if I felt that I might have reached a different conclusion on the record.

DURBIN: Judge, wouldn't you concede there are basically two standards that are being debated here? One is you just referred to, no reasonable adjudicator would have come to a different conclusion. The other talks about substantial evidence. And you have followed that second standard, the substantial evidence case, in Lu v. Ashcroft and Zhang v. Gonzales. So you've leaned toward it.

My point I want to get to, and this will be the last thing I ask you, is if we know the system's broken, if we know that it doesn't give basic fairness and justice, do you not feel at your level that you have to be more sensitive to the fact that there are people's lives at stake here and that you have to take care when they're asking for asylum and protection in the United States not to let this broken system work to their detriment?

ALITO: We do have to keep in mind just what's at stake, and I do that. I know that a lot is at stake in these cases. And I read the record to see if there is support for the arguments that are made by these petitioners.

But I have no way of supplementing the record. And there are serious problems. One of the most serious problems, I think, is that the witnesses, the asylum seekers generally testify in another language. Sometimes it's a language that is not well represented in the population in the United States, so it may be difficult to get a translator. And the quality of the transcripts is often very poor, which makes it very difficult to understand what was going on before the immigration judge.

Now, there have been cases where we've said the transcript here is so bad that we can't make a decision on this, and we will send it back.

There's the additional problem that the immigration judges are forced to forced to make credibility determinations based on viewing someone who comes from a different culture, where mannerisms, gestures, facial expressions may mean something different than they do in our culture. And I'm aware of that. But these are bigger problems. These are problems for Congress to address. They're not problems that I can address in the context of deciding these particular cases.

DURBIN: Thank you. I agree. And I thank you very much.

And I finished under 15 minutes, Mr. Chairman.

SPECTER: Thank you very much, Senator Durbin. That's appreciated.

Senator Graham?

No comments. Wonderful.

Senator Cornyn?

CORNYN: I yield back my time.

SPECTER: Doubly wonderful. We're going to be going into executive session when we finish, which will be just in a few moments and we've attempted to notify all senators -- those not here -- through staff. And the purpose is to discuss in private any questions anybody may have in mind as to Judge Alito.

It doesn't suggest anything of substance, but we've adopted this practice since Justice Breyer's proceeding and do it as a matter of routine so that if there is something, by going into executive session, we do not signal that there is something. And going into executive session does not mean that there is something or that there is nothing, but it is routine.

As I explained it, I'm not quite sure why we do it, but we do it.

(LAUGHTER)

And it doesn't take long if you do it before lunch.

(LAUGHTER)

Some suggest we do it after lunch, and let me tell you, it'd be a long session. But we're going to do it before lunch and we're going to do it in the committee hearing room which has been swept -- another unnecessary item because there's nothing to say in there. But that's our procedure.

Now I yield to my distinguished ranking member, Senator Leahy.

LEAHY: Thank you.

And just briefly, Mr. Chairman, you have been so courteous on this, I hate to even take this time by saying this. I want to make sure Judge Alito is here.

When we started this, I actually started the same subject I started with then Judge John Roberts, now chief justice. It's on the question of presidential power and whether he appreciates the role of the Supreme Court as a check and balance. As you know, I voted for him. And that is a leap of faith because nobody makes commitments exactly how they're going to vote in one case or another.

In this case, it's been pointed out you're going to replace Justice Sandra Day O'Connor; actually, additionally, Chief Justice Roberts was nominated for that.

Then Harriet Miers was nominated. The president was forced, by concerns within his own party, to withdraw her.

He then nominated you very briefly after you had been -- well, you had been interviewed once at the beginning of his term, but then you were interviewed again by Vice President Cheney and Karl Rove, Scooter Libby and I think a few others.

And that's why I worry. I just want to make sure, in my own mind, that you would stand as a check and balance for this president or any president.

I know you're concerned. You expressed in the year 2000 -- you criticized independent counsel law. So many times in the questions I've raised it's because I was afraid you would not act as a check and balance.

We have a government that is getting more and more powerful and, in the electronic age, especially powerful. We see illegal spying on Americans by Americans. All of us agree the president is not above the law, any more than you are or I am. But it takes more than that, especially if we're giving the president the power unilaterally to redefine the law, an issue that's going to eventually come before you.

Those are my concerns. I wanted you to know that what my concerns are. They go beyond -- anything what the other issues raised by senators, Senator Specter or other senators; legitimate issues that those are. But those are mine, and I wanted to say that to you personally.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Leahy.

We're about to excuse you from any further participation in these proceedings, Judge Alito.

I've been handed statistics which show that you've been questioned for about 18 hours, the number of questions approximating some 700. And some differences of opinion as to the comprehensiveness of your responses, but the senators are entitled to their own views.

And you'll be hearing more when we conclude the hearings and later go into executive session for the committee to vote. And further on floor debate. But you've certainly demonstrated remarkable patience -- I think everybody would agree with that -- and remarkable stamina, and a very loyal family, led by your wife.

And we thank you for your public service. And you may be assured that the committee, on both sides, and all of the balance of our 100 senators will give very, very careful consideration to the president's nomination of you for the Supreme Court.

We will recess now, and we will resume at -- it's uncertain how long our session will be, so we'll resume at 2:30. And we will begin with a report from the American Bar Association, and then we'll move to witnesses from the Court of Appeals for the 3rd Circuit.

LEAHY: But now we're going to the closed session.

SPECTER: But now we're going to the committee hearing room, Dirksen 226, for an executive session.

END