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CNN LIVE EVENT/SPECIAL
The Alito Hearings: Day Two; Iran Announces Resumption of Nuclear Research
Aired January 10, 2006 - 13:58 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: President Bush predicting more fighting and sacrifice in Iraq this year. But he also has a message from Iraqis. He's urging them to put aside their differences to form a government of national unity.
Mr. Bush made his comments in a speech today to the Veterans of Foreign Wars. It's the latest in a series of addresses about the situation in Iraq. The president says the current turmoil will give way to peace and stability.
(BEGIN VIDEO CLIP)
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Democracies are sometimes messy and seemingly chaotic as different parties advance competing agendas and seek their share of political power. We've seen this throughout our own history. We've seen this in other democracies around the world. Yet, out of the turmoil in Iraq, a free government will emerge that represents the will of the Iraqi people instead of the will of one cruel dictator.
(END VIDEO CLIP)
PHILLIPS: The violence in Iraq has surged in recent days, but President Bush again vowed to stay the course in that region.
Still no communications from or about the young American reporter who was ambushed and kidnapped Saturday in Baghdad. Jill Carroll was on assignment for "The Christian Science Monitor" when she, a translator and a driver set out to interview a Sunni politician who never showed up. The translator was killed. The driver now believes the whole thing was a setup.
Today, a nearby Sunni mosque was the scene of a mass display of anger aimed at a raid on Sunday by U.S. and Iraqi forces, a raid that reportedly arose from a tip linked to that kidnapping. In a sermon, a Sunni cleric reached out to rival Shiites but blamed "the occupation" for every crime in Iraq.
There's new concern over Iran and its nuclear program. Iran announced today that it has resumed its controversial nuclear fuel research, but Tehran says that actual nuclear fuel production remains suspended. The move has prompted some tough talk from Washington and sparked outrage in much of the international community.
For more, we go to CNN's Chief International Correspondent Christiane Amanpour, who joins us now with this CNN exclusive from the Iranian capital.
CHRISTIANE AMANPOUR, CNN CHIEF INTERNATIONAL CORRESPONDENT: Today, the U.N. authorities and also the Iranian atomic organization authorities have confirmed what they've been threatening for a long time, that they have in fact removed the shields as you have been reporting and they have called the IAEA inspectors here to monitor them during that. It's obviously called a great deal of anxiety in the rest of the world, at the IAEA, and in Europe and the United States.
The issue is that Iran says it is its legal right under the Nuclear Nonproliferation Treaty to conduct nuclear -- nuclear production, nuclear research, and the production of peaceful energy purposes. And that is true. Under the NPT, it does have that right.
The issue, though, of course, is Iran's intentions, which the West does not fully trust. It does not fully believe Iran when it says that it is only pursuing a peaceful nuclear program. Hence, the deep anger and the deep anxiety now that Iran says has suspended this voluntary moratorium that it agreed to in negotiations with Germany, France and Britain about two years ago.
Iran says that it has not engaged in any enrichment right now, just in research at various sites which it says it has declared to the IAEA. But the IAEA has said that some of those sites where the seals have been broken do concern uranium gas, do concern also centrifuges, and may possibly indicate some kind of pilot enrichment program.
So the question is, will Iran be referred to the Security Council, and if it is referred to the Security Council, what in fact can the Security Council do with its plan, how much support does it have? Are there any punitive measures being considered against Iran?
And here, domestically, Iran has convinced its people -- have been campaigning what analysts call a fairly convincing effort to get its people on board as a matter of national pride. And many people are saying that if many other countries have a nuclear program, why can't we?
PHILLIPS: Well, North Korea's reclusive dictator Kim Jong-il may be on one of his extremely rare journeys outside of his hermit kingdom. "May" is the key word here. With Kim, you never know for sure what he's up to or where he is.
Reuters quotes an unnamed source placing Kim Jong-il on a train that passed through China today on its way to Russia. A South Korean military intelligence official tells The Associated Press that Kim Jong-il entered China by train today. The Chinese foreign ministry spokesperson allows only that, yes, there is a definite plan for him to visit China and that he'd inform reporters about the exact time when he's authorized to do so. Kim Jong-il is in fact in China. His visit comes at a sensitive time. The U.S. has been urging China to use its leverage to urge North Korea to resume its stalled talks in getting the north to abandon its nuclear weapons program.
In Saudi Arabia, huge crowds are taking out their aggressions today on the devil. Outside the holy city of Mecca, Muslim pilgrims started hurling pebbles at three giant stone pillars in a symbolic stoning of the devil. It's one of the final rituals of the Hajj, the annual pilgrimage that every able-bodied Muslim is obliged to take at least once in their lifetime. The stoning of the devil lasts for another two days.
In the United States, heavy rain triggered several mudslides overnight in Washington State. Those slides sent mud and rocks spilling into roadways, including this one in Pierce County.
In Seattle, the city is nearing a record for consecutive days of rain. It has recorded 23 state days of rainfall with wet -- more wet weather, rather, in the forecast. The record is 33 days set back in 1953.
Meteorologist Jacqui Jeras is watching the weather for us here at the CNN weather center.
JACQUI JERAS, CNN METEOROLOGIST: Hi, Kyra.
PHILLIPS: All right, Jacqui, thank you very much. We will continue to check in with you and follow the weather.
We're also continuing to follow this developing story out of Miami, Florida. An inmate -- another inmate has escaped from the same correctional facility that you will remember that serial rapist Rapalo -- Reynaldo Rapalo had escaped from about a month ago.
The inmate apparently scaled a razor wire fence earlier this morning. On the phone with us, Miami-Dade police spokesperson Linda O'Brien.
Linda, I want to talk about Rodney Buckles in just a second. But first of all, what do you know about his escape? What happened?
LINDA O'BRIEN, MIAMI-DADE POLICE DEPT.: Approximate 7:00 this morning, the correctional officers did a headcount which they do regularly, and around 7:30 it was determined that Rodney Buckles was not in his bunk and was not in that section of the stockade.
Actually, it is not the exact same building area as we experienced with Rapalo last month. It's part of the same facility, but it's actually a little bit separate area.
And we're still investigating exactly what happened, but preliminarily, it looks like he came through one of the doors and went over a fence and across some razor wire, and was able to run down a back parking lot area and go over another fence out into -- out into the parking area and the expressway area and off to freedom. And he fled at that point in time.
PHILLIPS: So is Rodney Buckles someone believed to be armed and dangerous? What was he in the correctional center for, and are you concerned that this could be a very dangerous person?
Reynaldo Rapalo of course was in there for rape, and the community was very concerned about his escape. How concerned are you about Rodney Buckles?
O'BRIEN: Well, he was arrested on December 23, and he was arrested for domestic violence battery, which is a misdemeanor charge on -- exactly what he did is a misdemeanor for that time. He has had trouble before with the law.
I would have to say that as far as armed and dangerous, he is an escapee, and we don't believe certainly that he left the facility armed at all, but he has been gone for a few hours now. And so for the purposes of what we have to do in order to take him back into custody, we must for practical reasons consider him armed and dangerous.
PHILLIPS: Linda O'Brien from the Miami-Dade Police Department. Thank you so much. We'll definitely stay on this story.
Meanwhile, Wolf Blitzer with CNN's live coverage of the Samuel Alito Supreme Court confirmation hearings picks up our coverage right after a break.
Stay with us.
WOLF BLITZER, CNN ANCHOR: And as we await this hearing to resume after a lunch break, let's bring in Senator Dick Durbin, the House -- the Senate majority whip, the number two Democrat in the Senate, a key member of the Judiciary Committee.
You're getting ready to ask your own questions of this nominee, Senator. So far, how's he done?
SEN. RICHARD DURBIN (D), ILLINOIS: Well, I think it's been interesting, and I think he's made a good presentation. But there's still a lot of unanswered questions.
Senator Arlen Specter, who is pro-choice, started as he did with Mr. -- Judge Roberts, asking questions about Roe versus Wade. And I think he brought Judge Alito four or five different times right to the edge in asking him whether or not he believed that the Roe v. Wade decision, a woman's right to choose, was settled law. And I think you never heard those words come from Sam Alito's mouth.
Time and again, Arlen Specter said, well, is it something that we've come to rely on, is it embedded in our life experience? And time and again, Sam Alito would just stop short in making that commitment.
So I'm not sure that we got very far on that issue.
BLITZER: And as this hearing gets ready to resume, he did say that he has an opened mind looking ahead. Was that reassuring to you?
DURBIN: Well, I'll tell you, it was absolutely essentially for him to say it. That 1985 application for a job at the Department of Justice contained some statements that were very, very troubling for a lot of us when he said there was no constitutional right for the Roe versus Wade decision.
BLITZER: Senator, we'll check back with you in a little while. Thanks very much for joining us.
The hearing is resuming right now. The chairman, Arlen Specter, has just gaveled the hearing, and Senator Jon Kyl, Republican of Arizona, will resume his questioning of Judge Alito.
SEN. JON KYL (R), ARIZONA: ... related to -- actually, two of them relate to the matter of the CAP that we've heard something about.
I'd like to enter into the record two letters by Democratic attorneys that make clear that Judge Alito has been extremely helpful in advancing the interests of women and minorities.
One letter notes that as U.S. attorney he put women and minorities in supervisory positions. The other is from a president- elect of the National Bar Association for Women.
And also a Washington Post article from January 9th in which a criminal defense attorney and Democrat Alberto Rivas, who served in the U.S. Attorneys Office when Judge Alito was in charge, said -- speaking of the judge -- "While he opposed numeric hiring quotas, he took steps to diversity an office that had the reputation as something of a white boys club."
Mr. Chairman, I hope that this will help address what I think is almost getting to be a...
SPECTER: Without objection, they will be made a part of the record.
KYL: Thank you.
Secondly, there has been some discussion of this Knight-Ridder article that has, to my understanding, been rather completely discredited.
And I ask unanimous consent that the detached document analyzing that article be added to the record.
SPECTER: Without objection, it will be made a part of the record.
KYL: And before the break, Senator Biden suggested that -- at least I understood him to suggest that there was no reason to belong to this organization CAP in 1985 because ROTC was safely on campus at that time.
Judge, let me ask you a question. Do you know what year you joined the CAP?
ALITO: I don't know, Senator. I've tried to wrack my memory about that.
But as I said, if I'd been active in my membership, I think I certainly would remember that. And if I had renewed the membership, I think I would remember that.
So my best reconstruction of this is it was probably sometime around the time when I wrote that statement.
KYL: Long after you were gone from the school?
ALITO: That's correct.
KYL: In that event, Mr. Chairman, I ask unanimous consent to include an article from a campus newspaper, The Princeton Packet, dated February 12, 1985, which expressly explains that ROTC was a core motivation behind the CAP in 1985.
SPECTER: Without objection, it will be made a part of the record.
KYL: Thank you, Mr. Chairman.
I noted with interest a comment that Senator Durbin made in his opening statement because it referred to a good friend and former colleague of ours, Senator Simon, who put forth a pretty good test about courts.
He said that the real test is, is the court restricting freedom or expanding it?
And I thought about that because it seems to me that so many of these cases about expanding freedom or restricting it are cases that boiled down to the eye of the beholder.
And I specifically thought about the 9th Circuit case -- because my status from the 9th Circuit -- outlawing "under God" in the Pledge of Allegiance, saying that that's unconstitutional.
And I checked: According to one survey that I had access to, 93 percent of the American people support the right to say "under God" in the Pledge of Allegiance.
And I know that the plaintiff in the case, Michael Newdow, thought that he was advancing his freedom or his daughter's freedom in successfully getting the court to strike it down, but it seems to me that the majority of the people are having their freedom restricted in such a case.
And it seems to me -- and I certainly will not ask you because that case could well come before the court again; I wouldn't ask you how you would rule on it.
But as a general proposition, this matter of restricting freedom, is it not the case that in many situations you've got two competing types of freedom liberty involved and it's a question of interpreting the Constitution rather than specifically setting out to advance one sort of freedom as opposed to another?
ALITO: I think that's exactly right, Senator. Often, there are conflicting freedoms and that makes the case difficult.
KYL: Let me ask you, too, there was a concern expressed by Senator Biden that the big factor in your nomination, in his view, was the fact that you would be replacing Justice Sandra O'Connor, and that that might mean that you would change the direction of the court. That's the concern expressed, anyway.
Now as has been famously said, I know Justice O'Connor. I've been a friend of hers for at least 30 years and I don't think she is any kind of a liberal member of the court. She might properly be called moderately conservative. I'm not sure how she would characterize herself.
But I noted that of the 109 justices to sit on the Supreme Court, nearly half -- 46 to be exact -- have replaced judges appointed by another political party.
So it is not at all uncommon -- indeed, it is almost half the situations in which a different party nominates the justice replacing a sitting judge or justice. And one might expect, therefore, some difference.
But I checked the record, because this had been brought up by Senator Brownback yesterday, and I found -- in the nomination of Justice Ginsburg and the confirmation hearings there -- she replaced Justice White, who I think rightly has been called a centrist on the court; certainly not a liberal.
And yet I saw not one expression of concern by any senator, Democrat or Republican, that Justice Ginsburg might be ruling quite a bit differently than Justice White in decisions in the court.
So it seems to me that that is not a test that is rightly applied. That's their results-oriented test, exactly the same kind of thing that you have said that judges shouldn't do when they approach cases.
Let me get to a point that Senator Kennedy made.
He said that you'd been overly deferential to executive power and criticized what he called -- and I think I have this quotation exactly -- your "almost total disregard of the impact of these powers on the rights of individuals." I'd like to know what your response is to that charge and whether you can cite some specific cases that would refute what he said.
ALITO: Certainly, Senator.
I've tried to decide every case on its own merits. And sometimes that means siding with the government and sometimes it means siding with the party who's claiming a violation of rights. And I do it on an individual basis.
Cases that show that I do that are cases like United States v. Kithcart, which was the case in which an African-American man had been stopped by police officers because there had been a description of some robbery suspects and the perpetrator was described as a black man in a black car, and Mr. Kithcart was a black man in a black car. And they thought that was sufficient to stop the car.
I wrote an opinion saying that was insufficient and that was basically racial profiling and was not permitted.
Another example was Bolden v. Southeastern Pennsylvania Transportation Authority, which had to do with a drug test. And I found that the tests there constituted a search and a seizure and would be a violation absent consent on the part of the party who was searched.
There have been a number of criminal cases in which I have sided with the person claiming a violation of rights.
Carpenter v. Vaughn was a case in which I wrote an opinion reversing a death -- I joined an opinion reversing a death penalty. The Braunstein case was another case that came up fairly recently in which I joined an opinion reversing a death penalty.
There have been quite a few cases of this nature, Senator.
KYL: I noted a tax case, too, or a case involving tax evasion, Leveto v. Lapina. Do you remember that 2001 case?
ALITO: I do.
That was the case in which there was a search of I believe it was the office of a veterinarian. And in a way, that is a similar case to the Mellot (ph) case that I was discussing earlier. Although, in Mellot (ph) I thought that the search was carried out properly.
In the Leveto case, on the facts of that case, I thought the search was not carried out properly; that the officers violated the Fourth Amendment in the way they went about carrying out that search. They forced the occupants of these premises to remain on the premises for a very extended period of time while the search was being conducted and violated their Fourth Amendment rights. And that's what I said in the opinion.
KYL: Do you have an idea of how many cases that you've -- that have gone to decision that you have participated in on your 15 years as a Circuit Court judge?
ALITO: I think it's well over 4,000 on the merits.
KYL: And, I mean, I suspect that in those -- of those 4,000 cases, there might be one or two that I disagree with your decisions on, maybe even more than that.
But the point here is there are numerous cases in which you have found that the government acted improperly in criminal law context, in warrant context, in discrimination context, in other cases in which you have found either that the government acted properly or that, at a minimum, government officials were entitled to some immunity with respect to being privately sued. Is that correct?
ALITO: That's correct, Senator.
KYL: Let me also address this question of discrimination, especially racial discrimination. This is a matter that was discussed in some prior questioning, and specifically in Senator Biden's questions. It dealt with the Sheridan case in which you were the sole dissenter.
In the subsequent United States Supreme Court case, the Reeves decision, my understanding from your answer is that the Supreme Court addressed the same issue of law that you and your colleagues had disagreed about and that the U.S. Supreme Court voted unanimously in an opinion written by Justice O'Connor that the test that you used in the Sheridan case was the correct test to use. Is that correct?
ALITO: Yes, correct, Senator. That is correct.
KYL: Now, there are some other cases involving employees claiming racial discrimination that I've looked at. And one of the senators seemed to suggest, in a comment that he made, that you had never written opinions or decided cases for a black plaintiff. Is that a fair statement?
ALITO: No, it's not accurate.
KYL: Do you recall cases in which you upheld the discriminatory claims of racial minorities?
ALITO: Well, there was a case of Goosby v. Johnson & Johnson and that case can be considered together with the Bray case that I was discussing before the break.
Those were both cases in which my colleague, Judge McKee, wrote the opinion, and in the Goosby case I agreed with him. It was a similar case. But it was a case where I thought the facts fell on the other side of the line.
There was a case called Smith v. Davis, which was another case where I joined an opinion upholding the claim of an African American who was claiming racial discrimination.
The Robinson case involved claims of race and gender discrimination, as I recall. There are a number of cases in the criminal law context. I just mentioned the Kithcart case. There was Brenson case. There was Williams v. Price.
There have been many cases involving other forms of discrimination, age discrimination -- the Showalter case. Disability discrimination -- the Manzalusci (ph) case. The case of Shapiro v. Lakewood Township. There was Zubi v. AT&T, which was a case involving the statute of limitations for a claim of racial discrimination.
KYL: And you were the lone dissenter in that case, is that correct?
ALITO: I was the dissenter in that case...
KYL: And your position was what?
ALITO: My position was that -- the majority's position was that the claim had to be thrown out because of the statute of limitations had been violated. And my position was that the claim should be allowed to go forward because the statute of limitations was longer than the majority had recognized.
And that issue later went to the Supreme Court in a case called Jones v. Donnelly. And the Supreme Court agreed with my position that the longer statute of limitations applied.
KYL: I note there was another case involving an African American woman who claimed that their coworkers had made racial and sexual slurs against her, denied her training opportunities, and so on. And you ruled that she was entitled to $124,000 in damages and attorneys' fees -- a case called Reynolds v. USX Corporation. Do you remember that case?
ALITO: That's right, Senator.
KYL: So the bottom line is there are numerous cases in which you have ruled in favor of minorities -- in particular, African Americans -- in discrimination situations, and also where you've dissented in a situation in which your position was to support the claim of discrimination; and that it would be inaccurate to say that you have not taken that position in the 4,000 plus cases that you have decided.
Is that correct?
ALITO: That's certainly correct, Senator.
KYL: Now there's been a lot of talk about precedent and stare decisis. It's certainly something that we lawyers are familiar with. We regard it as key principle in deciding cases.
There was a case that was mentioned by a couple of my Democratic colleagues that I'm sure will be discussed further.
But I thought I'd give you an opportunity to talk about it because it certainly seemed to me to be a case in which you were trying to apply Supreme Court precedent, the precedent being the Lopez v. United States case; a case, by the way, in which I note that it was one of those decisions that Justice O'Connor was in the majority, a 5- 4 decision in which her position could be characterized as the swing vote.
Now, you, in United States v. Rybar, agreed with Justice O'Connor in the way that law should be applied relative to intrastate possession of a weapon.
The Lopez case dealt with a congressional act that said that weapons should not be possessed near schools. The court struck that down, saying that that went beyond the commerce clause capability of commerce to legislate in matters of interstate commerce.
In Rybar, what was the issue, you dissented.
By the way, one of the reasons why this case is interesting to me because the 9th Circuit Court of Appeals, again, which is my circuit, has subsequently ruled -- and this is not a conservative court in most people's estimation -- recently agreed with your dissent in a case called U.S. v. Stewart (ph), a 2003 case in which the court overturned the defendant's conviction under the very same statute, holding that the law exceeded Congress's commerce powers.
So it seems to me that it would be hard to argue that your position is, per se, unreasonable. But could you describe in your own words?
ALITO: Well, my position in Rybar was really a very modest position. And it did not go to the question of whether Congress can regulate the possession of machine guns.
In fact, I explained in the opinion that it would be easy for Congress to do that in a couple of ways that differed from the way in which it was done in Rybar.
The statute in Rybar was very similar to the statute that was at issue in Lopez. In fact, I think they are the only two federal firearms statutes that have been cast in that mold.
They simply prohibited the possession of firearms without either congressional findings concerning the effect of the activity on interstate commerce or a jurisdictional element.
And I knew from my experience as a federal prosecutor that most of the federal firearms statutes have a jurisdictional element right in the statute. And what that means is that when the prosecutor presents the case in court, the statute that's used most frequently is the statute that makes it a crime for someone who has been convicted of a felony to possess a firearm.
In that case, when the prosecutor presents the case in court, the prosecutor has to show that the defendant has been convicted of a felony and that the firearm in question had some connection with interstate commerce.
Under Supreme Court precedent, a case called Scarborough, all that's necessary is to show that the firearm at some point in its history passed an interstate or foreign commerce: it was manufactured in one state and then later turned up in another state or manufactured in a foreign country and brought to the United States.
From my experience, this was never a practical problem and this was how all the federal firearms statutes had been framed.
But for whatever reason, the statute in Lopez and the statute in Rybar were lacking that jurisdictional element.
So an easy way in which Congress could regulate the possession of a machine gun would be to insert a jurisdictional element. And as I just pointed out, in my experience as the U.S. attorney in New Jersey, that was never a practical problem.
The Supreme Court in Lopez said that there were three reasons why there was a problem with the statute there.
And that case had been decided the year before. And it was my obligation, as a lower court judge, to follow it.
The first was that it involved what the court characterized as a noncommercial activity, and that was the possession of a firearm. And, of course, that was the exactly the same activity that was at issue in Rybar.
The second was the absence of a jurisdictional element, and there was no jurisdictional element in either statute.
And the third was the absence of a congressional finding connecting the activity that was being regulated within interstate commerce.
And I pointed out in my opinion that I would have viewed the Rybar case very differently if there had been a congressional finding or if the Justice Department, in presenting its argument to us, had been able to point to anything that showed that there was a substantial effect on interstate commerce, which is what the Supreme Court says is required.
KYL: So this is one of those situations in which if the result was not what was intended, you were willing to point out in your decision what Congress could relatively easily have done to get the result that it appeared that Congress wanted to achieve.
ALITO: That's exactly correct.
KYL: Thank you. Thank you, Mr. Chairman.
SPECTER: Thank you very much Senator Kyl. Senator Kohl?
BLITZER: We are going to break briefly from this hearing to assess what's going on so far. Very important day, Samuel Alito going through the question-and-answer sessions with members of the Senate Judiciary Committee. We just heard from Republican senator Jon Kyl to ask his questions. Senator Herb Kohl, Democrat of Wisconsin, asking some questions now. Candy Crowley and John King are here in THE SITUATION ROOM with us.
Candy, give us your assessment how this is unfolding, pretty much as scripted?
CANDY CROWLEY, CNN SENIOR POLITICAL ANALYST: I was going to say it has elements of Kabuki theater particular to Alito. This is different from the Roberts hearing, but it has a rhythm to it.
The Democrats are going to come up and hit him hard on the questions of presidential authority, on the questions of abortion, and the Republicans then give him a chance to get out of it.
Well -- when it came to what we were just listening to, do you always side with the state? So you were hearing Republicans say well what about this case and this case and this case? We've really gotten a lot of lawyering in. That's what's sort of amazing to me. It's been pretty emotion free, lots of lawyering.
BLITZER: What do you think, John?
JOHN KING, CHIEF NAT'L CORRESPONDENT: Well, I think it is following exactly the script. Senator Kyl just playing a very important part of the script. The Republicans are very dispassionately asking the judge about the cases they know the Democrats want to highlight to let him explain his views in many cases before the Democrats can raise them in a much more critical way.
Gun control one of the issues, obviously. Senator Specter explored abortion rights this morning. The Democrats are quite frustrated so far. It is early in the hearings. There are still more rounds of questioning to go.
You see from the e-mails coming from the Democrats and in conversations with their staff, they are very frustrated about what essentially they are saying is what he is saying now doesn't necessarily match up with his writings, whether it is his Reagan days or his days of 15 years now on the bench.
The Democrats would concede the point right now in this early stage they are essentially building their case for why they are going to vote against him. There's no 'gotcha' moment.
BLITZER: We are going to take a quick break. We are going to continue to watch these hearings. For those of you want to watch all the hearings unfiltered go to CNN.com/pipeline. There's where you can get all of these hearings streamed on your desktop at home or any place elsewhere you happen to be.
We're going to go back to these Senate confirmation hearings right after this short break. You are in THE SITUATION ROOM.
(COMMERCIAL BREAK) BLITZER: Welcome back. We are watching the hearings, the confirmation hearings of Samuel Alito for the U.S. Supreme Court. We will go back there live in a moment.
There was this important exchange earlier today between the chairman, Arlen Specter, Republican of Pennsylvania, and Alito on the sensitive issue of abortion.
(BEGIN VIDEO CLIP)
SPECTER: Let me come down to the statement you made in 1985 that The Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?
ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985. And that was as a line attorney in the Department of Justice in the Reagan administration.
Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing and that's the issue of stare decisis. And if the analysis were to get beyond that point, then I would have to -- I would approach the question with an open mind.
(END VIDEO CLIP)
BLITZER: That's a very important exchange, Candy and John, that the nominee had. Because he says, you know what? That was then 20 years ago. I now have 15 years experience as a federal judge and I would go into any ruling with an open mind.
CROWLEY: Right, but we didn't get very far on that. I thought it was really -- I mean, what he said was yes, that's what I thought at the time. He didn't say that's not what I think now. He just said but if I were to become a judge, I'd go at it with an open mind, keeping in mind that, you know, precedence of law.
BLITZER: But the fact that he said that he believes in this stare decisis, the precedence, that that has to have significant influence. Although he did past -- a strict adherence to past rulings is not an inexorable command.
CROWLEY: Right. So, I mean, again, you were interviewing Senator Durbin earlier, you know, and he said, I'm not sure we got very far on that. I agree with him. I don't think he gave up much.
KING: I think also, though, in many ways, it's almost a misdirection play, if you will, in that even those who want to overturn Roe v. Wade, that's not their primary focus right now. If that happens, if they find a vehicle to do that in the courts, of course they would love to do it.
But the legal and political battleground over abortion rights now is restrictions, parental consent and parental notification, perhaps spousal notification, third trimester or other late-term abortions. There is no question in anybody's mind that this judge is more open to restrictions on who -- how to set the burdens, how much power does Congress have, how much power does the state legislature have. That this judge is more open to those restrictions than the judge he would replace, Sandra Day O'Connor, who wrote the standard that is now in place for the Supreme Court.
That's the big today fight about abortion rights. Everyone's focusing on Roe v. Wade. But the question, I think, that you'll see maybe in the second and third round is explain what you mean about restrictions, your mind to restrictions. Because in that regard, Sandra Day O'Connor is the key justice on the court, and of course Judge Alito would replace her.
BLITZER: All right, let's go back to the hearing right now. Democratic senator Herb Kohl of Wisconsin asking some pointed questions to Samuel Alito on whether or not he agrees with Judge Bork, who was rejected for the Supreme Court in the 1980s.
ALITO: ... would disagree with him. I expressed my view about Griswold earlier this morning.
On the issue of reapportionment, as I sit here today in 2006, and I think that's what is most relevant, I think that the principle of "one person, one vote" is a fundamental part of our constitutional law. I think it would be -- I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done.
Every legislative district in the country and every congressional district in the country has been reapportioned, has been redistricted numerous times in reliance on the principle of one person, one vote. And the old ways of organizing state legislatures have long been forgotten.
So I think that is very well settled now in the constitutional law of our country.
Under the Fourth Amendment, I have no question about the decision in the United States v. United States District Court -- and I think that is what you were referring to -- which held that a warrant is required for domestic security surveillance.
And that was the decision that led to the enactment of the Foreign Intelligence Surveillance Act.
SEN. HERBERT KOHL (D), WISCONSIN: Of course. I was only referring to -- or trying to refer to your quote with respect to him and the positions he held, which I suggested were at variance with the positions I thought you held, which you're affirming here in your answer.
So that the quote you're pointing out was something you made as an employee of the Reagan administration?
ALITO: I was. I saw that quoted in the paper yesterday. I think that was in 1980...
KOHL: Not necessarily expressing your own real views?
ALITO: I was a supporter of the nominee of the administration, and he was the nominee of the administration. He was and is an accomplished scholar. He had contributed a great deal to constitutional debate with his writings.
But I don't agree with him on a number of issues, and I've mentioned -- you've hit some of the issues on which I would definitely disagree with him.
KOHL: Very good.
Judge Alito, in a document appended to your job application you also wrote that, quote, "I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by branches of government responsible to the electorate," unquote.
The statement is especially troubling given that elsewhere in this application you wrote, quote, "I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren court decisions, particularly in the areas of criminal procedure, establishment clause and reapportionment."
KOHL: Judge Alito, what Warren court cases were you specifically talking about? Miranda? One person, one vote? Any of the privacy decisions? What in particular were you talking about?
ALITO: Well, Senator, I'm happy to address that.
The statement was made in that 1985 form. And, of course, that was written 20 years ago. And in the form, what I was doing was, sort of, outlining the development of my thinking about constitutional law. And I went so far as to go back to my college days, which were before, of course, I had even attended law school, much less practiced law or served as a judge.
I mentioned some of the leading areas that were covered by decisions of the Warren court. And the decisions of the Warren court really stimulated my interest in constitutional law.
And I mentioned a book that had been published at the time, Alexander Bickel's book "The Supreme Court and the Idea of Progress," which was probably the first book about what you might call constitutional theory that I had read.
And he was someone who I think most people would describe as a liberal, but he was a critic of the Warren court for a number of reasons. And he was a great proponent of judicial self-restraint, and that was the main point that I took from my pre-law school study of the Warren court.
I spoke a bit about the reapportionment decisions. I don't believe that I -- in fact, I'm quite sure I never was opposed to the one person, one vote concept. I do recall quite clearly that my father's work at the time -- working for the New Jersey legislature and working on reapportionment -- had brought to my attention the question of just how far that principle of one person, one vote had to be taken in drawing legislative districts.
The New Jersey legislature, and many other legislatures at the time, were trying to redraw their districts in accordance with Reynolds v. Simms, which set out the one person, one vote principle, but it wasn't clear how exactly equal the districts had to be in population.
And in some of the late Warren court decisions, the court seemed to suggest -- did say so for congressional districts -- that they had to be almost exactly equal in population.
And this idea, if applied to the legislatures and to the New Jersey legislative plan, would have wiped the plan out, because there were population deviations, which although not very large, were much larger than the court had said there were going to tolerate in the case of congressional districts.
And I do remember that quite specifically.
Professor Bickel made the argument that the court had taken the one person, one vote principle too far. And I know my father had said that, although he thought it was a good idea, the idea of trying to get the districts to be exactly equal in population at the expense of looking at other factors, such as the shape of the districts and respecting county lines or municipal lines, was a bad idea.
KOHL: Judge Alito, you stated in that same job application that one element of the conservative philosophy that you believed, quote, "very strongly," was the, quote, "legitimacy of a government role in protecting traditional values," unquote.
What traditional values were you referring to? And who decides what is a, quote, "traditional value"?
ALITO: Well, again, I'm trying to remember what I thought about that 20 years ago, and I'm trying to reconstruct it.
I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates.
I think that's a traditional value. I think that the ability to practice your conscience is a traditional value. That is the best I can reconstruct it now, thinking back to 1985.
KOHL: Very good. Judge Alito, in case you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman. The reason in part that the number of married woman who would seek an abortion without notifying their husbands would be rather small.
In other words, only some women who would be affected. The majority in that case disagreed with you and stated, quote, "Whether the adversely affected group is but a small fraction of the universe, a pregnant woman desiring an abortion seems to us irrelevant to the issue," unquote. This disagreement begs the question: Is a constitutional right any less of a right if only one person suffers a violation? Or should greater value be placed on that right if a larger number of people have that right violated?
ALITO: Trying to apply the undue burden test at that time to the provisions of the Pennsylvania statute that were before the court in Casey was extremely difficult. I can really remember wrestling with the problem. I took it very seriously, and I mentioned that in my opinion. It presented some really difficult issues.
Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it.
What she said was that an undue burden consisted of an absolute obstacle or an extreme burden -- those may not be exact quotes, but they are pretty close. She did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. That was the information that was available in her opinions to try to understand what this test meant.
Then the question became, how you apply that to the numerous provisions of the Pennsylvania statute that were before us? It was a difficult task.
The plaintiffs argued that all of the provisions constituted an undue burden. When the case went to the Supreme Court, Justice Stevens agreed with that.
He said they all were an undue burden, things like a 24-hour waiting time. That was an undue burden because it would inhibit some women from having an abortion.
An informed consent provision -- Justice Stevens thought and the plaintiffs argued that would be an undue burden.
The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden.
The 24-hour waiting period, the informed consent provision, and all of them.
We disagreed on only one and that was the provision regarding spousal notification, with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her. And it was -- I wrestled with that issue, but based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.
KOHL: Judge Alito, in your 1985 job application memo, again, you identified reapportionment as one of the three issues decided by...
BLITZER: All right, we're going to break away briefly from this hearing to assess what's going on. Candy Crowley and John King are here in THE SITUATION ROOM with us.
So many questions, especially from the Democrats and even a lot of the Republicans, Candy, come from this two-page memo that he wrote. That he was a 35-year-old man, exactly 20 years ago, when he applied for a position in the Justice Department under Ronald Reagan to work for the attorney general, Ed Meese.
Is it fair, based on what you're hearing, to go back 20 years ago and to assume a 35-year-old lawyer working at the Justice Department with the views he held then, necessarily apply right now?
CROWLEY: I don't think it's fair to assume that those views -- I mean, anybody who's lived more than 35 years can tell you that change your opinion over time. It is fair game to say, you know, what is your opinion now? It's also fair game for him not to answer as we're seeing.
I mean, obviously who needs a long paper trail when you've got memos like this? It provided a lot of fodder. And his explanation throughout has been on the abortion, "Well that's how I felt then. I feel differently now." Or, "This is a different job. Being a judge is a different job."
BLITZER: What do you think, John?
KING: Well I think the Democrats clearly want to say he may be mild-mannered. He may not be as combative as Robert Bork was in his hearings, in essentially sparring with the Democrats. But the Democrats want to make the case that he is very soft-spoken an quiet perhaps, but he has been since the Reagan days, an advocate for an agenda that includes taking away the Roe v. Wade decision, reversing the right to an abortion, opposing racial quotas or set asides as part of affirmative action.
They want to make the case that he has been a political advocate on a mission for a long time, and they want to make the case that's what he would be like on the Supreme Court, which is why they don't want him on the highest court of the land. That's why they go back to the paper trail. And as Candy said, if you wrote this then, Judge, if you don't believe it now, why did you change your mind? And what is your position now? That's what we're going to go through for a few days. BLITZER: And the first words he wrote in that memo, "I am and always have been a conservative and inherent to the same philosophical views that I believe are central to this Reagan administration." All right, we'll take a quick break. Much more of our coverage: the confirmation hearings of Samuel Alito right after this.
BLITZER: Welcome back, we're in THE SITUATION ROOM, watching the hearings of Samuel Alito to be confirmed as the next U.S. Supreme Court justice. We're going to go back to those hearings momentarily. Candy Crowley and John King are in THE SITUATION ROOM with us.
Candy, Robert Bork, you hear that name a lot, whenever there's a confirmation hearing for any Supreme Court nominee. In October 1987, he was rejected, his nomination, put forward by Ronald Reagan, 58-42, in a Democratic-led U.S. Senate at that time. But clearly, every nominee since then has learned a lot of lessons from what Bork did wrong, including this nominee. We see some of the lessons that he's learned.
CROWLEY: Don't fight. Don't fight with the committee. I mean, that's really was the basic thing. When you look at where Judge Bork was on the issues, and when you look at where you believe some of these people are on the issues. Bork's problem was he told them, I mean, that's really how Republicans went back and dissected that. And said, "We are going to break the template.
From now on, this is going to be the anti-Bork template that we're going to put out there." And that is, don't show your cards and who you are, or what you do, and how you feel about things. And don't be confrontational. That was -- because what happened with Judge Bork, that not only did grate on the people in the room, he grated on the people outside of the room that were watching on television. And part of it was he was combative, he was tough, and he wouldn't back down.
So we have seen since then, a string of nominees who may be saying, as John said, you know, they're trying to make you say, "You said this, you said this," and use his old words. But he's not -- you know, they don't take the bait. And they specifically go into training prior to this in the 70 days they have, not to get ticked off at the questions in the throne.
BLITZER: John, hold on for one second. I want to get to you in a moment. It's the top of the hour. Our hearing coverage is continuing. We're watching the Senate confirmation hearings of Samuel Alito for the U.S. Supreme Court. We're speaking about Robert Bork in 1987. He was rejected by the U.S. Senate as Ronald Reagan's nominee for the U.S. Supreme Court.
Our Jeff Greenfield looked back at that entire episode.
RONALD REAGAN, PRESIDENT OF THE UNITED STATES: Judge Bork is recognized as a premiere constitutional authority
JEFF GREENFIELD, CNN SENIOR ANALYST (voice-over): Nineteen eighty-seven: There's no doubt about Robert Bork's credential when President Reagan nominates him to the court, professor at Yale Law, acting solicitor general under Nixon, a federal appeals court judge.
But comes Robert Bork comes with heavy baggage.
ROBERT BORK, SUPREME COURT NOMINEE: My assurance, when I was named...
GREENFIELD: He had fired special prosecutor Archibald Cox during the height of the Watergate controversy, had written that the First Amendment only protects political, not artistic speech, and argues that there is no constitutional right of privacy, so, states could not only forbid abortion, but birth control.
SEN. EDWARD KENNEDY (D), MASSACHUSETTS: The question is whether...
GREENFIELD: Bork's views lead Senator Ted Kennedy to denounce him in incendiary terms.
KENNEDY: Robert Bork's America is a land in which women would be forced into back-alley abortions.
GREENFIELD: And neither the White House, nor conservatives have any organized effort to back Robert Bork.
BORK: My side didn't do anything, because I think they never saw anything like this before, among other reasons. Now the -- the Republicans at last realize that they can't let that happen again.
GREENFIELD: His opponents also gained from the fact that Bork lacks political skills. When asked why he wanted to be on the court, he said it would be an intellectual feast. And Democrats had taken control of the Senate in 1986. Only two of them vote for Judge Bork, while six Republicans vote no. Bork's nomination is soundly rejected.
BLITZER: Jeff Greenfield, looking back on Robert Bork.
John, you remember those days. We all remember those days. And we also remember that the word Bork became a -- a verb.
KING: It did. You -- to be Borked is to be denied your seat on the bench.
There's -- the most important lesson -- Candy noted one, which is, don't fight with the committee. The other one is, when they ask you, does the Constitution have a right to privacy, say yes. Clarence Thomas said yes. Samuel Alito said yes. Now Chief Justice John Roberts said yes. They don't necessarily say where that would take them when the issue is Roe v. Wade or anything else. But when -- when the question is, does the Constitution have a right to privacy, say yes. Judge Bork said no, which is what ended up costing him.
BLITZER: It's interesting, also, Candy, that the -- the rehearsals that go into this, the preparation, all of the work, the -- these fake Q&A sessions that they go through, all designed to avoid the mistakes that Robert Bork made.
CROWLEY: Absolutely, that sort of, you know, coming across as an ogre kind of a thing, which, you know, matters in television.
And they knew how -- I mean, not so much that -- that -- that -- that senators look and say, oh, he's not going across well in America, but that it does give them, if -- as they -- if they watch the polls, it does give them access to tougher questions.
And they get -- you know, it sort of feeds on it, when you see that he's not coming across well in public. And -- and Bork made a really good point in that piece from Jeff's, which is, they didn't have the machinery they do now. You -- you can't get into your e-mail anymore for the number of...
CROWLEY: ... of e-mails that come in pro and con, I mean, as we're going.
CROWLEY: It's almost like blogging, except for that the -- it's not, you know, a diary. It's just constant, you know, well, he said this, but, in 1985, he said that, on the against side.
And, then, on the -- on the pro side, it's, you know, this was wonderful, and the Democrats are just out to get him. So, believe me, there are machineries on both sides of this that are unbelievable.
KING: And the country was in a very different place politically.
Remember, that's 1987. The Democrats at the time were ascendant. As Jeff noted, they had just taken over the Senate again. They thought they were going to win the 1988 presidential election at that point. It is now a Republican-controlled Congress at the beginning of another election year in which the Democrats are sitting there saying, hmm, maybe, again, this is our moment.
BLITZER: We're about to hear questioning from Senator Mike DeWine, Republican of Ohio. He has been a member of the Judiciary Committee since 1995, Candy.
But, as we listen to his questioning -- and we are going to go back there live to listen to Mike DeWine question Samuel Alito -- remember, also, that he has a reelection campaign that is coming up this year.
CROWLEY: Well, the -- you -- it's very hard to take the politics out of anything.
And -- and Senator DeWine has a -- a really tough race coming up in Ohio, for both state problems and national problems. The national problems have to do with Iraq, where Ohio has suffered tremendously.
And state problems, there's just been some corruption. And the -- the governor there, who is a Republican, is very unpopular. Beyond that, you have people like Joe Biden, who is on this committee. He's, you know, the only person currently openly running for president.
You have a lot of people there that, at -- in an election year, where all of the House and a third of the Senate is up, you have people that want to please your base. So, you get the left giving very tough questions.
BLITZER: Here's Mike DeWine beginning to ask his questions.
SEN. MIKE DEWINE (R), OHIO: So, that's the good news. The bad news is, this is just the first round.
So let me respond if I could, Judge, to three things that I've heard so far during these hearings that have, frankly, disturbed me.
First, I'm bothered by what I consider to be distortions of your record, really in an effort to make you look like something that you're not.
I just read a very interesting article by Stuart Taylor from the National Journal about this issue.
And I would like, Mr. Chairman, to make this a part of the record -- this article -- if I could.
SPECTER: Without objection.
DEWINE: Mr. Taylor describes the opinions of a, quote, "right- wing jurist. This judge has consistently ruled against minorities, striking down affirmative action programs, making it harder for victims of race and gender discrimination to vindicate their rights."
SPECTER: Senator DeWine, your unanimous consent request is granted.
DEWINE: Thank you, sir.
"This judge has struck down a federal law to protect kids from guns; ruled that state and local governments cannot be sued under the Fair Labor Standards Act, leaving 4.7 million workers without a remedy in court.
"This judge has immunized the president from suit, even when he illegally wiretaps political opponents.
"This judge approved a police officer's fatal shooting in the back of an unarmed 15-year-old African-American boy. "Finally, this judge has called abortion, and I quote, 'morally repugnant' and declared Roe v. Wade to be, quote, 'on a collision course with itself.'
"Based on such a record, no right-thinking Democrat could ever support such a judge."
But as Taylor tells us, this judge is none other than Sandra Day O'Connor, the same Sandra Day O'Connor who has been praised for the past few days as a model of moderation.
Judge, the point Mr. Taylor made is clear: You can distort and misrepresent anyone's record.
And that, I believe, unfortunately, is what some of your opponents are doing to you. It's unfair, it's inaccurate. And it's just flat-out wrong.
Second, I would like to respond to the allegation that you have not written an opinion in favor of a plaintiff alleging race discrimination on the job. You did a very good job a moment ago, when Senator Kyl was talking to you, in describing some of the cases.
I think the facts of these cases are what is particularly interesting.
In Reynolds versus USX Corporation, you ruled that an African- American woman whose coworkers and supervisors regularly made racial and sexual slurs against her and denied her training opportunities was, in fact, entitled to $124,000 in damages and in attorney fees.
In Zubi v. AT&T Corporation, you dissented -- you dissented -- arguing against a stringent limitations period which prevented a civil rights plaintiff from filing a claim. And your position was vindicated -- you were vindicated by the United States Supreme Court unanimously a few years later.
In Smith v. Davis, you disagreed with the district court, which had dismissed an African-American employee's claim of discrimination. Instead, you found that there was evidence to support a finding that the employer's stated reasons for firing the plaintiff were not genuine.
In Goosby v. Johnson & Johnson, you ruled that the plaintiff, an African-American woman, was entitled to a trial under claims of employment discrimination, because you found that there was evidence that the employer was treating white male employees differently than it was treating the plaintiff.
There are more cases, as you've testified to. But I think we make the point.
We would all be better off, and this process, Mr. Chairman, would be better off and would be more instructive if we could evaluate your nomination, Judge, based on your full and complete record. And, finally, let me add my two cents on this Vanguard issue. I'm going take it from a little different perspective than has been done so far.
To me, this is really a non-issue. In the so-called Vanguard lawsuit, two people were in a financial dispute. The plaintiff sued to force the defendant to turn over $170,000 held by him in some Vanguard accounts. The defendant went to court to prevent Vanguard from turning over the money.
Now, while Vanguard was technically part of the suit, and was technically a defendant, it wasn't really a defendant in any sense of the term that would be used by the public or understood by the public. It was not accused of any wrongdoing. It didn't stand to lose anything.
Really, the only question was whether Vanguard would transfer some of the funds it held for one person over to another. It was simply being asked: Who do I pay the money to? Who do I give the money to? That's all Vanguard was being asked to do. So nothing in the classic sense of being a defendant. Nothing about this case could realistically have affected Vanguard as a company, let alone -- let alone affected your mutual funds. It's a joke. It's ridiculous. It's absurd. And everybody on this panel knows that.
Now, for the sake of the process, I hope we can put these issues behind us.
This hearing is really our opportunity to fully and fairly evaluate your qualifications for the high court and to get some idea about how you think as a judge, how you process things, what kind of a judge you will be on the United States Supreme Court.
Now let me turn to the substance. Judge Alito, I want to turn to an issue that is very important to me. In a number of recent cases, the Supreme Court of this country has restricted congressional power in a way that I think is not required by the Constitution.
In my opening statement I mentioned the Supreme Court's decision in the Board of Trustees v. Garrett, a 5-4 decision. To me, that case is a best example of this recent trend. And it's not a good trend in my opinion.
Garrett involved a woman who claimed that she had been discriminated against because she was disabled. She was employed by the state of Alabama and she sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, however, holding that Congress lacked the power to make the state subject to suit.
Judge, as I see it, the problem with Garrett is that the court ignored findings made by Congress. While we were considering the ADA, we held 13 hearings and even set up a task force that held hearings in every state of the union, attended by more than 30,000 individuals.
Based on these hearings, we found hundreds of examples -- hundreds of examples -- of people with disabilities being discriminated against by the states and in employment decisions.
Further, we found that, and I quote, two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all -- even though a large majority of them were capable of doing so.
And finally -- we found that this discrimination flowed from, and I quote, "stereotypic assumptions about people with disabilities as well as" -- and I quote -- "purposeful unequal treatment," end of quote.
Sadly, however, in Garrett, the court said that this was just not enough. In fact, it held that we had not pointed to any evidence that the states discriminated in employment decisions against people with disabilities.
Judge Alito, from a review of your decisions, it appears to me that you tended to defer in close cases to the decisions of those individuals closest to the problem at hand. I applaud you for taking that approach.
Now, let me ask: In your opinion, what role should a judge play when reviewing congressional fact-finding? And how can you ensure us -- how can you assure us -- that you will show appropriate deference to the role of Congress as the representative of the people in this democracy when we pass important legislation?
ALITO: I think that the judiciary should have great respect for findings of fact that are made by Congress. And in the Rybar decision that I was discussing earlier, although it is controversial and it involved an application of the Lopez decision, I state that that decision would have been very different -- that case would have been very different for me if Congress had made findings.
And that's because of two things. I am fully aware of the fact that the members of the judiciary are not the officers in the United States who take an oath to support and defend the Constitution of the United States. The members of Congress take an oath to support the Constitution and officers of the executive branch take an oath to support the Constitution. And I presume that they go about their work in good faith.
The second point, and this goes directly to the issue of findings, is that the judiciary is not equipped at all to make findings about what's going on in the real world, not just sort of legislative findings. And Congress, of course, is in the best position to do that. You have constituents. Members of Congress hear from their constituents. Congress can have hearings and examine complex social issues, receive statistical data, hear testimony from experts, analyze that and synthesize that and reduce that to findings.
And when Congress makes findings on questions that have a bearing on the constitutionality of legislation, I think they are entitled to great respect.
DEWINE: Well, Judge, I appreciate your response. We can't ask you, obviously, to decide any particular case. But what we're trying to do today is get the general idea of how you approach cases. And we've looked at your previous cases. We have a pretty good idea from that. But I appreciate this exchange.
Let me follow up with this. Garrett is the law of the land today. Nonetheless, let me ask you, whether, after Garrett, Congress might still have a way to protect the disabled. Rather than focus on the problem caused by Garrett, let me focus on the solution.
To me, even after Garrett, Congress still has the power to protect the disabled under the spending clause of the Constitution. I'd like to explore, maybe, that with you if I could.
Let me give you an example how this might work. Of course, you're very familiar with South Dakota v. Dole. In that case, Congress had wanted to establish a national drinking age of 21.
As you know, we, of course, don't have the power to require that under our Constitution. Therefore, Congress used its power under the spending clause.
We said to the states, "If you don't establish a 21-year-old drinking age, you will lose 5 percent of your federal highway dollars."
This left the states with a choice: adopt a 21-year-old drinking age or lose 5 percent of their federal money. When presented with such a choice, the states kept the money and changed the drinking age to 21.
It seems to me that Congress might be able to use this same approach to require the states to waive their immunity from suit under statutes like the ADA.
Judge, based on your experience, could you give me your understanding of what Congress can do and what it can't do under the spending clause power? Maybe just go back and look at recent cases and give me a little indication.
ALITO: Yes, certainly, Senator.
Well, I think you've pointed to the leading case in this area, and that's South Dakota v. Dole.
And South Dakota v. Dole recognizes that Congress has broad powers under the spending clause. And that when Congress provides money to the states, Congress can attach conditions to the receipt of the money, provided that certain standards are met.
One thing that has to be done under the Supreme Court's cases is that there has to be a clear statement that the conditions are attached to the receipt of the money.
The Supreme Court views this like a contract so that the party receiving the notice has to have clear and fair notice about what it's agreeing to by taking the money. And then beyond that, if that's satisfied, then the condition has to be germane to the purposes of the funds.
And in South Dakota v. Dole, the court found that the drinking age and the 55 mile-an-hour speed limit were germane to the purpose of the expenditures. And these, I believe, were federal highway funds.
So those are the standards that would be applied to any future legislation under the current precedents, if the future legislation invokes Congress' broad power under the spending clause.
DEWINE: That's helpful. Thank you, Judge.
BLITZER: All right, Samuel Alito continuing to answer questions from Senator Mike DeWine, Republican of Ohio.
We are going to take a quick break -- much more of our coverage of the Alito hearings, including questioning coming up from the only woman member of the Senate Judiciary Committee, Dianne Feinstein. She is getting ready for -- to ask her questions.
Also, if you want to watch these hearings unfiltered, go to CNN.com. Go to our Pipeline service there. You can see it streamed right on your laptop -- or your desktop, for that matter.
We will be right back.
BLITZER: Welcome back to THE SITUATION ROOM. I'm Wolf Blitzer in Washington -- day two of the Samuel Alito confirmation hearings before the Senate Judiciary Committee.
We are -- we have briefly broken away from the Ohio hearings to get a catchup on all the day's other news.
Kyra Phillips standing by at the CNN Center in Atlanta.
PHILLIPS: Thanks, Wolf.
A Miami prison has had a second escape in three weeks. Police say that 25-year-old Rodney Buckles fled the Miami-Dade stockade today, apparently by scaling a razor-wire fence. It's not known if he is hurt. And police are now searching for Buckles, who had been locked up on a domestic abuse misdemeanor.
This is the same prison that made headlines last month when a serial rapist -- serial rape suspect, rather, escaped using rope made of bedsheets. That man was recaptured nearly a week later.
And a tense situation continues at a bank in Kissimmee, Florida. Police are trying to end a standoff with two suspected robbers holed up inside that building. The suspects have released two hostages, but it's believed they're still holding one other person. No one has been hurt so far.
A SWAT team and a hostage negotiator are on that scene. The same bank, located near Walt Disney World, was robbed two months ago.
Still no communications from or about the young American reporter who was ambushed and kidnapped Saturday in Baghdad. Jill Carroll was on assignment for "The Christian Science Monitor" when she, a translator, and driver set out to interview a Sunni politician who never showed up. The translator was killed. The driver now believes the whole thing was a setup.
Today, a nearby Sunni mosque was the scene of a mass display of anger aimed at the raid on Sunday by U.S. and Iraqi forces, a raid that reportedly arose from a trip linked to that kidnapping. In a sermon, a Sunni cleric reached out to rival Shiites, but blamed -- quote -- "the occupation" for every crime in Iraq.
Five yards from the edge of the cliff, an Israeli doctor's metaphorical assessment of Ariel Sharon's five-and-a-half says into the turmoil triggered by the Israeli leader's major cerebral hemorrhage. Today, as the metaphor suggests, Sharon is not believed to be in immediate danger of dying.
In fact, doctors say he moved his right hand and leg for the second straight day, and, for the first time since he was stricken, moved his left hand as well -- another first today, public comments from one of Sharon's sons. This was Omri Sharon around 7:00 p.m., Israeli time.
(BEGIN VIDEO CLIP)
OMRI SHARON, SON OF ISRAELI PRIME MINISTER ARIEL SHARON (through translator): Good evening.
I have come out in order -- on behalf of my family to thank fellow Israeli citizens, who have been so concerned, been praying for us and for our father since Wednesday.
In addition, I want to express our great appreciation and thanks to the Hadassah Hospital, to the medical team, and all of the personnel, who have spent so much time in devoted efforts looking after our father. We would like to thank you for the affection, for the professionalism and the devotion of everyone.
Thank you very much. This really does help us a great deal and strengthens us.
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PHILLIPS: Doctors even say the prime minister's blood pressure rose today, when Omri and his brother, Gilad, came into the room and their father heard their voices. But they point out, again, that cognitive abilities can't be assessed until Sharon is completely off the anesthesia.
A crisis center set up in Turkey prompted by an outbreak of bird flu. Sixteen human cases of the avian flu virus are now confirmed in that country, including three children who died from the disease last week. Scientists believe that none of the cases were caused by human- to-human transmission, but were the result of contact with infected chickens.
They are taking precautions, spraying vehicles with disinfectant along the border there. This happened as a new study finds that the bird flu may be more widespread than originally thought. The study suggests there could be more human cases of that disease, but with milder symptoms that are not being reported -- Wolf.
BLITZER: Kyra, thanks very much -- Kyra Phillips reporting from the CNN Center.
We're waiting -- we are -- we are waiting to return to the Senate confirmation hearings of Samuel Alito to be a justice on the U.S. Supreme Court.
Dianne Feinstein, the only woman member of the Senate Judiciary Committee -- 18 members, she's the only female -- is about to start asking questions of Samuel Alito. She's up for reelection this year as well.
Candy Crowley and John King are here in THE SITUATION ROOM with us.
I -- I could be wrong, but I suspect she's going to start off with the issue of abortion rights for women.
CROWLEY: One -- one would suspect that she would.
I mean, obviously, as a female, she brings certain cred to the -- to the subject matter. I mean, we have seen -- there's 18 members and one woman. So, that will help. Also, I might point out, she's one of only four non-lawyers on the -- the Senate Judiciary Committee. So, you -- you tend to get more consumer friendly questions that way.
BLITZER: And she has publicly already stated, as recently as last Sunday, John, that, if she felt that Samuel Alito would move to overturn Roe vs. Wade, there's no way she could support his nomination.
KING: That's right.
She has, herself, described her role as that she thinks she has a special role and a unique role, because she is the only woman on the committee. So, she, also, though, is involved in intelligence issues and defense issues, so, she may go after the presidential power issue as well.
But one of the reasons some of the other Democrats have done that is because these -- this is all coordinated. They know she's going to ask. And it's -- it will be very interesting to watch this if it goes beyond Roe v. Wade, again, to the issue of abortion restrictions, because that is where Sandra Day O'Connor has set the standard.
And that is the evolving part of abortion law and the abortion political debate. And -- and that is where the Democrats want to pin this judge down a little bit, because that is where most people believe he could immediately shift the court. There's a New Hampshire case they just heard. That one could be reargued again, if there's a tie.
There's federal challenge to throwing out the late-term abortion, the federal late-term ban on late-term abortions. The federal government is bringing that case, probably, before the Supreme Court next year. That is where Sam Alito could have the most immediate impact on abortion rights. Look for Senator Feinstein to go there.
BLITZER: And, as you point out, in that famous 1985 memo he wrote when he was applying for a job, he suggested, don't necessarily just try to overturn Roe vs. Wade, but try to chip away at some of the abortion rights issues.
And I suspect we're going to be getting questions on that front as well.
As we await Dianne Feinstein to begin her questioning, Mike DeWine, the Republican senator from Ohio, continues his questioning of Samuel Alito.
DEWINE: ... suggest that they could. So, I appreciate your comments.
Judge Alito, let me ask you about Congress' power to protect our children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling.
Congress has tried several times to protect our children from being exposed to pornography on the Internet. In 1996, we passed the Communications Decency Act, but the Supreme Court struck it down, citing the First Amendment. A few years later, we passed the Child Online Protection Act. Again, the court struck it down.
What bothers me about these cases is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all.
It doesn't communicate a message, other than one that degrades women. It does not contribute to the public debate. And it actually causes harm to the victims who take part in making it and those who use it.
There are, of course, a number of cases that seem to recognize that pornography is of lesser-value speech. In Young v. American Minitheaters, the court upheld zoning regulations on adult theaters.
In doing so, Justice Stevens had this to say, and I quote, "Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate."
Let me ask you, Judge, what is your thinking on the subject? Is pornography lesser-value speech as Justice Stevens has seemed to suggest? And are there or should there be different levels of speech under the First Amendment?
ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that, although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations, when the world changes and, in particular, when, in the First Amendment context when means of communication changes, the job of applying the principles that have been worked out -- and I think in this area, worked out with a great deal of effort over a period of time in the pre-Internet world -- applying those to the world of the Internet is a really difficult problem.
And I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it.
The law, of course, as you know, constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it's permissible for a state to regulate the sale of pornography to minors.
It has greater authority there. I think that's the Ginsburg case. It has great authority there than it does with respect to the distribution of pornography to adults.
Now, in the pre-Internet world, the job of preventing minors from purchasing pornography was a lot simpler. If they wanted to get it, I guess they would have to go to a store or some place and buy it.
But on the Internet, of course, it's readily available from any computer terminal. And a lot of minors today are a lot more sophisticated in the use of computers than their parents. So the ability of parents to monitor what they're doing and supervise what they're doing is greatly impaired by this difference in computer aptitude.
And I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.
DEWINE: Judge, I have one last question.
If confirmed to the Supreme Court, only part of your job will be hearing arguments and issuing opinions. An equally important part of the job will be involved deciding which cases to hear in the first place.
Each year the Supreme Court receives approximately 8,000 petitions for cert -- cert petitions as they are called. These are petitions by a party to a lawsuit asking the court to hear its case. Out of these 8,000 annual requests, the court decides to hear only about 75 to 80. For many years, individual justices would review each cert petition and cast a vote on whether to hear the case. Today, however, eight of the justices are part of what is called the cert pool.
Here's how it works. All petitions are put into a pool. A single law clerk then picks up a petition and writes a memo recommending for or against hearing the case. That memo is then circulated to the eight justices in the cert pool who use it to cast their vote on whether to hear the case.
Justice Stevens is the only one who does not participate in this pool. Instead, he has his staff prepare a memo on each case with a recommendation tailored to his own thinking on an issue.
It would seem to me that the cert pool greatly limits the exchange of ideas among members of the court. I wonder if you could tell me how you would intend to proceed, if you're going to use the pool or if you are going to do what Justice Stevens does, or if you've thought about it.
ALITO: Well, I'm aware of the issue. But I have not thought past what might happen with these confirmation proceedings.
So it's not the kind of issue that I have really thought through in my mind.
If I'm fortunate enough to be confirmed, I think I would assess the situation at that time and talk to the Supreme Court justices and see what their views are, the reasons why they're proceeding in one way or another.
I know from my perspective as a lower court judge that there is a constant conflict between the obligation that we have to deal with a very heavy case load and the need for the judge, as opposed to a law clerk or a staff employee of the court, to deal with the cases.
We cannot delegate our judicial responsibility. But we do need to call on -- we need to find ways, and we do find ways, of obtaining assistance from clerks and staff, employees so that we can deal with the large case load that we have.
DEWINE: Thank you, Judge.
SPECTER: Thank you, Senator DeWine.
FEINSTEIN: Thank you very much, Mr. Chairman.
Good afternoon, Judge.
Because Sandra Day O'Connor was the fifth vote on both Lopez and Morrison, I think I'd like to start with the commerce clause and your views of federalism.
Do you agree with the direction the Supreme Court took in Lopez?
ALITO: Well, Senator, that really relates to the next case in the Lopez-Morrison line of cases that might come before the Supreme Court. And so I don't know how I can address that question without knowing what that case is. And, of course, my resolution of it...
FEINSTEIN: I was just asking you about Lopez, but if you don't want to answer, that's OK.
ALITO: Well, Lopez is a precedent of the court and it's been followed in Morrison and then it has to be considered in connection with the Supreme Court's decision in Raich. And I think that all three of those have to be taken into account together.
I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place.
We do still have a federal system of government, and I think most people believe that is the system set up by our Constitution.
Now, having said that, I pulled the Rybar case and read it over the noon break. And let me just see if we agree on the facts, and stop me if you think I'm misquoting or misstating anything.
The Rybar case essentially took place the year after Lopez. It involved Mr. Rybar, who was a federally licensed gun dealer, who went to a gun show in Pennsylvania and bought a Chinese-type 54/7.62 millimeter submachine gun one day, sold it to Mr. Baublitz, went back the next day and sold him a military M-3 .45 caliber submachine gun.
The grand jury indicted him on two counts of unlawful possession of a machine gun in violation of the law and two counts of unlawful transfer of an unregistered firearm.
He changed his plea, pled guilty to two counts, I think pled conditionally guilty to two counts.
And when the case came before you -- and I read with great interest your dissenting opinion -- and what you said was, and I quote, "If Lopez, which happened the year before, does not govern this case, then it may well be a precedent that's strictly limited to its own peculiar circumstances. But our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form."
And then you went on to say that the present form, quote, "might be sustainable in its current form if Congress made findings that the purely intrastate possession of a machine guns has a substantial effect on interstate commerce or if Congress or the executive assembled empirical evidence documenting such a link."
"If, as the government and the majority boldly insist, the purely intrastate possession of machine guns have such an effect, these steps are not too much to demand to protect our system of constitutional federalism."
So if I understand this, you essentially said that you wanted to follow precedent, newly established law in this area. And you left a little hedge that if Congress made findings in that law, then that might be a different situation.
If Congress did make findings, would you have agreed that that statute would been constitutional?
ALITO: What I said in the opinion and what I will reiterate this afternoon is that it would have been a very different case for me. I don't think I can express an opinion on how I would have decided a hypothetical case.
FEINSTEIN: It's not hypothetical. I'm just asking you, if there were findings as you said, you might have sustained the law.
ALITO: And I reiterate that...
FEINSTEIN: And I'm just asking you would you have sustained the law...
ALITO: I don't think that I can give you a definitive answer to the question because that involves a case that's different from the case that came before me.
But I repeat what I said there: It would have been a very different matter if Congress had made findings.
I have the greatest respect for findings. This is an area where Congress has the expertise and where Congress has the opportunity to assemble facts and to assess the facts. We on the appellate judiciary don't have that opportunity.
So if Congress had made findings -- and I didn't insist on findings. If the executive branch, which was defending the statute, had pointed to testimony at hearings -- and that's been done in other commerce clause cases -- or statements by responsible government officials with expertise in the area of firearms control, or any other evidence that substantiated this, it would have been a very different case for me.
And, of course, if there had been a jurisdictional element, then I think it's perfectly clear, under the precedents, that it would have been constitutional.
FEINSTEIN: OK. Well, I accept that with one exception. I think most people know that particularly machine guns do affect interstate commerce. And there is generally no question about that. If one looks at a gun trace, even before Mr. Rybar had the gun, the likelihood was that it came across state lines, particularly the Chinese model.
So I think that's a difficult extrapolation for me to understand. But that's not necessarily dispositive.
Let me go on. At the conclusion of your dissent, you wrote that, quote, "Even today, the normative case for federalism remains strong," end quote.
Now, federalism is often used to describe the strengthening of state powers as the expense of the federal government. What exactly did you mean by that statement?
ALITO: I meant that there are activities that -- and I think there's general agreement on this, and it goes beyond what the Constitution requires into areas of policy that I think Congress respects -- that I think there's general agreement that there are some activities that have traditionally been handled by the states and by local governments. And those are the areas in which they have taken the lead because the view has been that they're in the best position to deal with that.
And that was the issue that was directly addressed by the Justice Kennedy's concurrence in Lopez. He relied in large part on the fact that -- he put heavy reliance on the fact that was what was involved in Lopez was a law relating to schools. And although the federal government certainly has a role in education, traditionally that has been regarded as something that is primarily to be handled at the state and local level.
FEINSTEIN: OK. Now, you cited a Law Review article by a professor named Steven Calabresi. In that article, he argues that Lopez was a revolution that shattered forever the notion that after 50 years of commerce clause precedent, we could never go back to the days of limited national power.
Do you agree with that?
ALITO: I agree that Lopez was a startling development for a lot of people. When I was in law school, I think the traditional wisdom was that the commerce power reached everything; that there was no limit to the power; that nothing could ever exceed the power.
And Lopez and the Lopez line of cases have not made huge inroads on that principle, but it was the first time in a long time that a statute had been held to exceed Congress's commerce power.
So to that extent, yes, it was a revolution. But how big of one...
FEINSTEIN: I would say not yet has it made that kind of a dent. And that's why your nomination is so important, because you can be a decisive vote in this area.
Do you believe that the Supreme Court's commerce clause decisions in the 50 years preceding Lopez are settled law? ALITO: I think that I'd have to talk about individual cases. But I do think that most of those -- the ones that come to my mind, I think, are well-settled precedents.
FEINSTEIN: Now, unlike the machine gun law in Rybar, the Family and Medical Leave Act in Chittister did include congressional findings of fact as the Supreme Court confirmed. And yet you authored the majority opinion to invalidate the law.
ALITO: Well, in Chittister...
FEINSTEIN: Do you see a contradiction in that?
ALITO: I don't, Senator. I don't believe that there were congressional findings in Chittister that went to the issue in Chittister.
FEINSTEIN: OK, that's good.
Now, let me ask you some questions.
Is it enough for Congress to provide findings of fact in the statute? Or do the findings of fact need to be deemed sufficient by a court?
ALITO: Well, what the Supreme Court has said is that findings of fact are very helpful when they are provided. And the court will certainly treat them with respect. But they are not necessarily definitive and they also are not necessary.
Congress doesn't have to make findings. It's helpful when it does it. And, under the Supreme Court's cases, the findings are not necessarily definitive. That's what the Supreme Court has said about this.
FEINSTEIN: But you struck down Rybar, ostensibly (ph). You said it would have better chance with if it had findings of fact. And this was a case where prior laws had major findings of fact with respect to machine guns this. I mean, this wasn't a new thing.
ALITO: Senator, I looked very carefully at all of the materials that were cited by the other judges in Rybar and that were provided by the government. And the things that were cited from the legislative history of the prior statutes did not, in my view, go to the issue in Rybar. All of those prior statutes were statute that had jurisdictional elements in them.
All that I was looking for was some evidence that the possession of a machine gun -- not the transfer of a machine gun or the sale of a machine gun, but the mere possession -- had a substantial effect on interstate commerce.
That's what I understood the Supreme Court precedent to require. And it's not a very heavy burden to show that something has a substantial effect on interstate commerce. But that's what I understood the Supreme Court precedent to require. And that's what I was looking for.
FEINSTEIN: OK. Let's move to the issue of a woman's right to choose and Roe.
This morning, Senator Specter talked about how Casey reaffirmed the original soundness of Roe and then put emphasis on precedent. And he then asked, "How would you weigh that consideration were this issue to come before you if confirmed?"
And, in response, you said, and I'd like to quote, "Well, I agree that, in every case in which there is prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent."
Can you give us a few examples of a special justification, not including Brown v. Board of Education, which you think would qualify?
ALITO: There are a number of factors that figure in the application of stare decisis in particular cases. There are factors that weigh in favor of stare decisis and there are factors that weigh against stare decisis.
Factors that weigh in favor of stare decisis are things like what the initial vote was on the case, the length of time that the case has been on the books, whether it has been reaffirmed, whether it has been reaffirmed on stare decisis grounds, whether there has been reliance, the nature and the extent of the reliance, whether the precedent has proven to be workable. Those are all factors that have to be considered on an individual basis.
FEINSTEIN: But I'm asking you for the -- what would be the special justification that you mentioned this morning that would be needed to overcome precedence and reliance?
ALITO: Well, I think what needs to be done is a consideration of all of the factors that are relevant.
This is not a mathematical formula. It would be a lot easier for everybody if it were, but it's not.
The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed.
But it is not the -- the rule of stare decisis is not an inexorable command. And I don't think anybody would want a rule in the area of constitutional law that pointed and said that a constitutional decision once handed down can never be overruled.
So it's a matter of weighing all of the -- taking into account all of the factors and seeing whether there is a strong case based on all of the...
FEINSTEIN: My question was a different one, respectfully. ALITO: I'm sorry, Senator.
FEINSTEIN: It was, can you give me a few examples of what you think would qualify as a special justification for overruling prior precedent?
And the reason I ask you this is in my -- our private conversation, you said to me that you didn't think there had been any case you could think of that had been more tested than Roe. So...
ALITO: Well, Roe -- sorry.
FEINSTEIN: What special circumstance would there be which would overcome this kind -- whether you call it super precedent or super duper or anything -- but this kind of protracted testing over a 33- year period of time?
ALITO: All right, Senator, I'm sorry if I didn't understand your question previously.
One situation in which there is a special justification for overruling a precedent is if the rule is proven to be unworkable.
An example where the Supreme Court thought that a rule had proven to be unworkable is provided by National League of Cities and San Antonio Transit Authority v. Garcia. National League of Cities asked whether something was traditionally a sovereign function.
And that resulted in a whole series of cases in the lower courts, a number of cases in the lower courts, and a number of cases in the Supreme Court in which the courts had to decide whether something was on one side of this line or not. And it proved, in the view of the Supreme Court, to be a very difficult standard to work with.
And finally in Garcia they said: This is unworkable, and we're going overrule National League of Cities and we're going to leave it to Congress to deal with the federalism issue that's presented here this. This is an example of the Supreme Court saying there's a federalism concern here, but it's one that Congress rather than the court would have to deal with.
Sometimes changes in the situation in the real world can call for the overruling of a precedent. An example of that is provided by Katz v. United States, which I was talking about this morning in relation to wiretapping.
The old rule under Olmstead was that in order for there to be a search, you had to look to property law. You had to see whether there was an invasion of a property interest. And then with the development of electronic communications and electronic surveillance, wiretapping or other forms of electronic surveillance, which is what was involved in Katz, the Supreme Court said that this is a sensible way to apply the Fourth Amendment principle under the conditions of the modern world? And they said famously that the Fourth Amendment protects people, not places. So they shifted. They found the doctrinal underpinnings of the old Olmstead rule to be undermined by developments in the society and they shifted the focus from property law to whether somebody had an expectation of privacy.
Those are examples.
FEINSTEIN: Well, and you did say that you believe the Constitution provides a right of privacy.
ALITO: I did say that. The 14th Amendment protects liberty. The Fifth Amendment protects liberty. And I think it's well accepted that this has a substantive component and that that component includes aspects of privacy that have constitutional protection.
FEINSTEIN: Let me ask you about your dissent in Casey. You reasoned that most women seeking abortions are either unmarried or would tell their husbands and therefore few would be harmed if spousal notification was required.
Justice O'Connor, on the other hand, ruled, and I quote, "The proper focus of constitutional inquiry is the ground of whom the law is a restriction, not the group for whom the law is irrelevant," end quote. Why did you propose a different approach than Justice O'Connor?
ALITO: I mentioned the fact in my opinion that this provision applied to only married women. But I don't think that was really the focus of what I was getting at.
I think I agree with her that you look at the group that's affected -- not the group that's unaffected. And the standard that she had -- so that would be women who fell within this provision of the Pennsylvania law -- and the standard that she had articulated in the earlier cases, was, as I described it a couple of minutes ago, that an undue burden in her view had to be an absolute obstacle or an extreme obstacle, and it couldn't be simply something that inhibited some women -- the some women phrase was her phrase, not my phrase.
FEINSTEIN: I'm going to ask you one other quote that some of my colleagues may disagree with what she said, but she said it -- and that is that a state may not give to a man the kind of dominion and control over his wife that parents exercise over their children. Do you agree with that?
ALITO: I never equated the situation of an adult woman who fell within the notification provision of the Pennsylvania statute with the situation of a minor who was required to provide notice. There's an analogy, and the earlier case that Justice O'Connor had decided, the Hodgkin case, was a minor notification statute.
But I think I made it quite clear in my opinion that this was nothing more than an analogy and that there was no close -- these situations were very distinct and I was aware of that. And I think I pointed that out. FEINSTEIN: Let me move on, if I might. One of the core principles of Roe is that a woman's health must be protected. In Casey, O'Connor specifically wrote that after viability the state, quote, "may, if it chooses, regulate and even proscribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life of the mother."
This requirement to protect a woman's health was always -- was also reaffirmed in Stenberg v. Carhart where it was said the court rejects Nebraska's contention that there is no need for a health exception.
Do you agree if a statute that restricts access to abortion that it must protect the health of the mother in order for it to be constitutional?
ALITO: Well, I think that the case law is very clear that protecting the life and the health of a mother is a compelling interest throughout pregnancy. I think that's very clear in the case law.
FEINSTEIN: Thank you. I appreciate that.
In 1985, at the time you wrote the strategy memo on Thornburg, the court had already held that Roe, Akron, and eventually 30 other cases that a woman had a constitutional right to choose whether to continue a pregnancy.
In addition, in your memo, you specifically wrote that in the Akron case, the Supreme Court reaffirmed Roe. However, despite this, your memo outlined a strategy to eventually overturn Roe. My question is a little different from what you discussed somewhat yesterday. What was your view of precedent at time you wrote that memo?
ALITO: Well, I think there are two things that I should say in response to that. The first is that I did not advocate in the memo that an argument be made that Roe be overruled, and therefore, the whole issue -- had the government proceeded with the argument they recommended, the issue of stare decisis wouldn't have been presented. And so there wasn't occasion for me to talk about stare decisis in the memo, and I did not talk about it. I think there's a mention of it in a footnote.
So I didn't address it, and there wasn't occasion to address it. The second thing I would say is that stare decisis a concern for the judiciary much more than it is for an advocate, an advocate is trying to achieve a result. So an advocate is -- for an advocate stare decisis can be either a great benefit if it is in your favor or an obstacle to get over. But it isn't the kind of issue that needs to be grappled with the way in which -- in the way in which a court has to grapple with stare decis.
FEINSTEIN: OK. In Casey, you wrote about the harms caused by spousal notification. The practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed by minors. Just to go back to that. Is this what you meant? ALITO: Senator, I did not equate the situation of a married woman with the situation of a minor.
FEINSTEIN: You keep saying that but I keep going back to the words, and they seem to say that.
ALITO: Well, I think, if you look at words I actually said I don't equate these two situations. I was mindful of the fact that they are very different situations. But often the law proceeds on the basis, legal reasoning is based on analogy, and so, if you take a situation that's quite different and yet has some relationship to a situation that comes up later, you can draw some analogies while still recognizing that the two situations are very different.
If you're talking about the potential for abuse, that certainly is something that can come up in either of these two contexts. And it's a tragedy in either context. If a single minor is abused as a result of notification, that's a single strategy as if a woman is abused as a result of notification, it's a tragedy.
But what I think I'm getting at there is this is what we had. This is what I had. This is the information that I had to work with to try to understand what this provision meant, and so you work with what you've got. And that's what I had, and I was trying to see to what degree the prior situation was relevant and to what degree it wasn't relevant to the issue that was before me.
FEINSTEIN: I'd like to quickly switch subjects for a moment, just to clarify something you said this morning, and this has to do with electronic surveillance of Americans. As you know, in 1978, the Congress, after a lot of introspection, passed a bill called the Foreign Intelligence Surveillance Act, which we call FISA, which essentially set up the parameters for all electronic surveillance within the United States. And it's very specific if you read it.
There is a great concern right now because of what's been happening with respect to electronic surveillance, quite possibly involving Americans, as well as foreigners. You said something interesting this morning. You said generally there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.
Now, with respect to the FISA law. The committee report, Birch Bayh (ph) was the chairman of the Intelligence Committee at time. He spells out this covers all of the United States, and then President Carter when he signed the law says this covers all surveillance within the United States, so there is a burgeoning question as to whether the president now has the authority to wiretap Americans without going to the FISA court.
When you said "generally" there has to be a warrant, what that said to me you is were providing for an exception, is that correct? Are you providing for an exception?
ALITO: I think that what I was addressing when I said that was what the Fourth Amendment means. The general principle that is set out in the Fourth Amendment, and the case law under the Fourth Amendment says a warrant is generally required, but there are well- recognized situations in which a search be carried out without a warrant. Exigent circumstances is a situation that comes immediately to mind if ...
FEINSTEIN: Well, let me stop you here. Do you recognize Justice Jackson's comment in the 1952 Steele case where he set up that tripartite framework of the presidential authority?
ALITO: I do.
FEINSTEIN: And when it is weakest is when Congress legislated. And in 1978, congress did legislate and covered the horizon, so to speak?
ALITO: Yes, senator, I recognize that and I think that's a very useful framework for addressing issues of executive power. Now, there's a question about the meaning of what Congress did and that would be a statutory -- that would be a statutory question. What is the meaning of the provision of FISA in question, and maybe there is no substantial argument about what was meant there, but maybe there would be an issue about what was meant there and certainly there could be an issue about the meaning of the authorization of the use of military force. How far was that intended to go?
And so this statutory question, I think, would -- that's certainly would be an issue that could come up in this situation, and probably you would need to -- I think you would have to resolve the statutory question before you could figure out which are the three categories that Justice Jackson set out, the case fell into.
FEINSTEIN: Thank you. I'm running out -- I've run out of time. I'll continue this next session, thank you.
ALITO: Thank you, Senator.
SEN. PAT ROBERTS, (R) JUDICIARY COMMITTEE CHAIR: Thank you, Senator Feinstein, Senator Sessions?
SEN. JEFF SESSIONS, (R) AL: Thank you, Mr. Chairman. We've had a good hearing, I believe ...
BLITZER: Break away from the hearing for a moment. Senator Jeff Sessions, Republican of Alabama starting to ask some questions, we'll go back there momentarily. We just heard from the only woman member of this panel, Dianne Feinstein of California asking Samuel Alito some pointed questions. Candy Crowley and John King are with us here in THE SITUATION ROOM. Abortion rights clearly very much atop her agenda.
CROWLEY: Absolutely. But what was interesting she started out with another issue that is on the top of her agenda. That, of course, is assault weaponry, and a case that Judge Alito was involved in. So I think pretty much as expected, we watched this whole, it's been going on for a while now. Many hours of this. And I think if we're wrapping it up, so far, through half of this it's that no hits, no runs, no errors? We haven't really seen anything that just said, wow, that was great, but he's calm, he's measured. They don't seem to have hit him anyplace vulnerable.
BLITZER: Hold on for a second. Senator Patrick Leahy, the ranking Democrat on the committee is joining us now. If you guys want to turn around, you'll see him over there, in the screen. How do you think he's doing so far, senator?
SEN. PATRICK LEAHY, (D) VERMONT: Well, it's been interesting. I think, as I told you, incidentally, welcome back from your trip to Israel, Wolf.
BLITZER: Thank you.
LEAHY: But when you interviewed me this weekend, I had mentioned that I spent hours with Judge Roberts prior to the hearing. I've only spent a few -- 20 minutes or so with Judge Alito. So I am having more of a chance to get to know him during this hearing. I'm worried about some of his answers. I wonder whether he was one Samuel Alito in the 1980s and a different one today. Whether he's running away from his record. I'd asked him questions about this Concerned Alumni of Princeton that he bragged about being in 1985.
But as we know at that time -- That was a group that had -- was concerned, why were they concerned? Because they were letting minorities and women into Princeton. That was a position that by that time had been disavowed by two very prominent Princetonians, Bill Frist, now the majority leader, Republican leader of the Senate. And Bill Bradley, a Democratic Senator. From New Jersey.
So I'm concerned about, it it's not -- that's not a make-or-break item, Wolf. But it's a case of -- that's the position I'd take to get the job then, am I going to take a different position now? We've had his position on executive power, he said, yesterday. No person is above the law, not a president, not anybody else, he said that again today in answer to my questions, but he has written in the past, and even as recently as the last few years was on a panel where he spoke of this unitary concept of government where basically, the president can determine what he wants to do. That's relevant today, when we see the president one day sign the McCain Law, outlawing torture and two days later saying however, it doesn't apply to me or people I direct.
KING: Senator Leahy, this is John King in Washington here with Wolf and Candy Crowley.
LEAHY: Hello, John.
KING: Hello to you, sir. I want to focus on what Senator Feinstein was asking about, on the issue of how would he define undue burden when it came to abortion rights? And what are his views on whether you have to have a health and life of the mother clause. That is the ball game when it comes to states trying to write laws that restrict abortion rights. And Justice O'Connor, who Judge Alito would replace wrote the current Supreme Court standards when it comes to both of those issues. Is there any doubt in your mind - conservative is probably not the right word -- that he, Judge Alito is more open than Justice O'Connor is to states restricting abortion rights?
LEAHY: Oh, I think he is. Everything from his writings, everything he has said that he is more open to such restrictions. I don't think he has said anything today that would indicate that he's not, but I also think, John, I know you're not suggesting this, this whole issue should not be decided on the issue of abortion, there's a whole lot of other things at play, especially when we have the situation where you now have with illegal spying on Americans, illegal wiretaps, opening up their mail.
The question that the president puts himself and those under him above the law on torture, we really have to make sure that the Supreme Court, which is there for all 290 million or more Americans, is going to be a real check and balance. It's going to be willing to stand up to the executives and say, no, no, you can't do, that whether it's a Democratic president or a Republican president.
CROWLEY: Senator Leahy, you said that your concern about Judge Alito's membership in the Princeton club was not a deal breaker. What is a deal breaker?
LEAHY: I think deal breakers become an accumulation of things. I think when people keep talking about, well, Judge Bork, and I'm not equating Judge Alito with Judge Bork, but I think most members of the committee, and I was on the committee at that time, came in there assuming they were going to vote for Judge Bork, decided to vote against him, based on what he said.
I'm waiting for assurances that Judge Alito has evolved from Sam Alito trying to ingratiate himself with the Reagan administration. I fully understand the president will nominate conservatives to the bench, I voted for John Roberts, but I thought he was consistent in what he was saying. I'm not hearing that consistency with Judge Alito. If I don't hear the consistency with him, I don't know how I'd vote for him.
BLITZER: And we're going to let you go back into the hearing, Senator Leahy. Quick question, anything you heard so far that would incline to you move toward a filibuster?
LEAHY: I'll wait until the whole thing is over. That's really in Judge Alito's hands. If he is straightforward and answers the questions, that's one thing, if he's not, that raises another thing. But I think we're too early on that. What I worry about, Wolf, as I've said before, here's a man, as you know, the president first proposed Harriet Miers and immediately some in the far right said you can't have her because we're not -- we're not convinced how she'll vote.
As soon as he put forward Judge Alito who had been vetted by Dick Cheney and Scooter Libby, they said, oh, okay, we're satisfied with him. And a number of senators, including some on the panel, announced that they'd vote for him even before they heard a single answer for him or read his opinions. I'm worried what that's based on. I want someone to be independent even of the president who nominates him. BLITZER: Senator Leahy, thanks very much for joining us. Senator Leahy is the ranking Democrat on the Senate Judiciary Committee. We'll let you go back inside.
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