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CNN LIVE EVENT/SPECIAL
Final Day of Hearings on Samuel Alito Nomination
Aired January 12, 2006 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR: Another grilling day lies ahead of the Senate Judiciary Committee hearing room. Judge Samuel Alito likely will get pummeled once again. Some more tough questions about his legal views and on his character. While emotions ran high yesterday, senators' opinions of the Supreme Court nominee don't seem to have changed much, if at all.
Let's bring in our national correspondent, Bob Franken. He's covering these hearings. He's in the hearing room right now.
Set the stage for us, Bob.
BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, Wolf, these will be remembered as the hearings where the nominee's wife left the room in tears and the hearing where a couple of senators squabbled, which they never do in public. But it's going to also be remembered as the hearing, thus far, anyway, where the Democrats, the opponents, haven't been able to lay a glove on the nominee.
Samuel Alito, who the Democrats would like to paint as somebody who is an ultra-right-winger who would bring the conservative agenda to the Supreme Court, have tried to pin him down on his views about the president, of Roe versus Wade, whether he would absolutely guarantee that he would uphold that precedent. Alito has been unwilling to talk about his view on that and has also been really unwilling to be pinned down on his views about how he would rule on presidential power. And that has frustrated the Democrats, who've gone round after round on this, and they're going to make one more stab this morning.
And after that is over -- it should take up a great part of the morning -- we will move on then to the panels. The panels are usually law professors, fellow lawyers, former clerks and the like, who speak for and against the nominee. But in this particular case, one of the scheduled panels includes judges, colleagues, present and former, of Samuel Alito. And that could be a bit of a problem, because many people believe that's a conflict of interest.
We now go to the committee floor, where the chairman, Arlen Specter, is about to get things under way.
BLITZER: Well, he's not yet ready, Bob. We're watching him. He's still talking to Senator Patrick Leahy.
I want to show our viewers briefly some videotape that we just got in, Samuel Alito as he was walking into the building today and he met with some of his supporters who were there to greet him. Let's watch this video as he walks in, and let's listen.
All right. Let's go to Arlen Specter now, the chairman who is resuming what should be the final session of Q&A with Samuel Alito.
SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY COMMITTEE: I saw your family in the hallway as we were coming down. Everybody appears to be bright and rested and ready.
JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE: Thank you, Senator.
SPECTER: The committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I'm advised, at about 2 a.m. this morning, and provided me with a memorandum that the committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP.
Judge Alito's name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP's long-term executive director, T. Harding Jones. His name does not appear anywhere in the dozens of letters to CAP or from CAP.
The files contain canceled checks for subscriptions to CAP's magazine, Prospect, but none from Judge Alito.
The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Samuel Alito's name is nowhere to be found in any of them.
The Rusher files contain lists of the board of directors, the advisory board and the contributors to both CAP and Prospect magazine. But none of the lists contains Samuel Alito's name.
The files contain minutes and attendance records from CAP meetings in 1983 and 1984, just before Samuel Alito listed the organization on his job application, but Samuel Alito did not attend any of those meetings, at least according to those records. He's not even mentioned in the minutes.
The files contain dozens of issues of CAP's magazines, but nones of the articles was written by, quoted or mentioned Samuel Alito.
CAP founder William Rusher said, quote, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all."
Before turning to Senator Leahy for his allotted time, I yield to him if he has any opening comments he chooses to make.
SEN. PATRICK LEAHY (D), VERMONT: I just think, Mr. Chairman, as we know this will be the last opportunity for the American people to learn what Judge Samuel Alito thinks about the fundamental constitutional rights, whether he's going to serve to protect their liberty, their privacy from government intrusion.
I think it's even more critical today because of the efforts to expand...
SPECTER: Excuse me, Senator. Do you want to start on your 25 minutes?
LEAHY: Oh, no. I thought you were asking me...
SPECTER: No, I do. Yes, opening comments, sure. We're not going to start your time clock until you tell us.
LEAHY: This is just a short opening comment.
LEAHY: I just think it's critical. And I know the judge probably feel like he's here doing nothing but being on a hot seat, but he is talking about a lifetime appointment.
And it is the most powerful court in the land. It is at a time when we see this effort to expand presidential powers, such as illegal wiretaps of Americans, the president using a signing statement to create exemptions to laws prohibiting torture.
These are all important things. The Supreme Court's our ultimate guardian -- has to be our ultimate guardian.
And we need to know whether Samuel Alito is willing to be that kind of guardian. I'm still troubled by some of the questions.
And, Mr. Chairman, I know you're going to be asking questions and I'll wait to ask mine after that, of course.
SPECTER: I'm going to reserve my time at this juncture and turn to Senator Leahy for time, up to 25 minutes.
LEAHY: Thank you.
In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.
I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.
But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."
Judge, do you agree with Chief Justice Roberts?
ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.
And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.
And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.
LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.
A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.
We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.
What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?
ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...
LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.
ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.
I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.
If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.
The first procedural step in either instance would be to file a petition with the trial court. If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.
LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.
But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?
ALITO: The Constitution is designed to prevent that.
LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?
In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.
It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.
If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...
ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.
LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.
But I hope at least this idea stays in your mind.
About a decade ago in Washington v. Glucksberg, the Supreme Court declined to find a terminally ill patients had a generalized constitutional right to a physician's aid in dying, preferring the matter be left to the states.
The court noted: "Throughout the nation, Americans are engaged an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."
Chief Justice Rehnquist wrote: "The court's holding permits the debate to continue, as it should in a democratic society."
I remember reading that. I thought it very practical, aside from the legal, a very practical response.
Last spring, we witnessed a fierce legal battle over the medical treatment of Terri Schiavo. She was in a persistent vegetative state for more than a decade. And ultimately, after she died, the autopsy showed that.
But we found politicians rushing to the cameras, engaging in extraordinary measures to override what the state courts determined to be her own wishes, state courts that heard countless cases on this.
Suddenly, this became the thing -- politicians all over the place, rushing forward.
The power of the federal government was wielded by some to determine, in my view, what were deeply personal choices. The president even came back to Washington in the middle of one of his vacations to sign special legislation on this.
Do you agree with the idea advanced in the Cruzan case that the wishes of an unconscious patient, to the degree they can be known, should govern decisions regarding life-sustaining therapies?
Let's assume that the wishes are clearly known. Should they be followed?
ALITO: Well, the Cruzan case proceeded -- assume, for the sake of argument, which is something that judges often do, that there is a constitutional right to say -- that each of us has a constitutional right to say: I don't want medical treatment.
And the Cruzan decision recognized that this was a right that everybody had at common law. At common law, if someone is subjected to a medical procedure that the person doesn't want, that's a battery and it's a tort. And the person can sue for it. It is illegal. The court did not...
LEAHY: One of those cases where we got something from that foreign law -- in this case, English common law. Is that correct?
ALITO: Well, that's correct. And I think that our whole legal system is an outgrowth of English common law, and I don't...
LEAHY: Just thinking of somebody -- why that popped in my mind. I was thinking of some of the people talk about paying attention to foreign law and most of our law is based on foreign law.
But go ahead.
ALITO: Most of our law...
LEAHY: Common law, common law.
ALITO: ... is an outgrowth of English common law. And I think it helps to understand that background often in analyzing issues that come up.
LEAHY: But you agree with Cruzan? I mean, I'm thinking if somebody has a "do not resuscitate" order, do you agree with that?
ALITO: That's a fundamental principle of common law. And Cruzan assumed for the sake of argument that that would be a fundamental constitutional right.
But that is a right that people have had under our legal system for a long time, to make that decision for themselves.
BLITZER: All right. We're going to break away briefly from the hearing. Remember, you can always go to CNN.com/pipeline to get the -- all the hearings uninterrupted on your computer, CNN.com if you want that. We're going to go back there shortly.
Several other senators are getting ready to ask questions as well. I want to use a brief moment, though, to assess where this confirmation process stands right now.
Joining us, our analysts, Jeff Greenfield and Jeff Toobin.
It should wrap up with Samuel Alito over the next few hours.
JEFF GREENFIELD, CNN SR. ANALYST: Yes, this -- a couple of the Democratic senators have said they've got some more questions to pursue. And in this case, what you're hearing Senator Leahy, the ranking Democrat on the committee, doing is probing some issues where there's a feeling that the court majority in cases have been too strict, some of the justices too willing to impose a death penalty even if there's a claim of innocence, too willing to override, for instance, a state's decision on things like assisted suicide. I think that's where they're going on this, and trying to paint the idea that the individual freedoms of Americans are at risk if the wrong kind of judges are on the Supreme Court.
That's the most I can make out of where he's going on this, Jeffrey.
JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: That sounds right to me. It's -- these are not issues that have come up much or at all so far in the hearings. And the Democrats, frankly, seem to be running out of steam.
They are not -- there is not a single coherent message that they're trying to send about why Alito should not be confirmed. And the fundamental fact with which this hearing began is that there are 55 Republicans in the Senate, and they seem unified or close to it in support of him. Which means in the absence of a filibuster, and there's no sign there's going to be a filibuster, it means Alito will be confirmed.
BLITZER: And how much of a sympathy factor, the fact that Mrs. Alito had to leave that hearing room yesterday crying -- I suspect there will be a sympathy factor for this ordeal that he's been going through. GREENFIELD: You know, I think if there were this proverbial, cliched smoking gun, if they -- if the people going through the record of the conservative Princeton alumni group found Alito short-lean (ph) over the foolish idea that women and blacks be admitted to this great university, that wouldn't weigh much. But in the absence of anything else, a picture of the -- of the nominee's wife leaving in tears, I think it's marginal, but it's -- you know, and I think some of the people on Alito's side will use it and say, see, you guys are just hectoring this nominee, you're just being unfair.
TOOBIN: And there was some news of the day today, which was, after the confrontation yesterday between Senator Specter and Senator Kennedy over access to these -- the records of this Concerned Alumni of Princeton organization, the staff looked through these documents through most of the night and found apparently not a single reference of any kind to Samuel Alito. So I assume the Princeton issue will probably just go away at this point.
BLITZER: Good. All right. We'll leave it at that.
We're going to take a quick break. We'll resume our coverage of the Samuel Alito confirmation hearings. We'll go back to Capitol Hill.
And remember, you can watch it on your computer uninterrupted any time, CNN.com/pipeline if you want to do that.
We'll be right back.
BLITZER: The picture you're seeing now of Air Force One, Andrews Air Force Base, outside of Washington, D.C. The president getting ready to take off on Air Force One.
He's going to be going down to New Orleans, a roundtable discussion with small business owners on reconstruction. He'll go to Bay St. Louis in Mississippi to continue Gulf Coast reconstruction discussions, wind up tonight in Palm Beach, Florida, at a Republican political fund-raiser.
We'll show you that picture of Air Force One as it gets ready to take off.
We're going back to the hearing right now. Senator Patrick Leahy of Vermont continuing to question Samuel Alito.
ALITO: ... of the Supreme Court. There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.
And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.
And there's this debate. It's not something...
LEAHY: Have you taken part in that debate?
ALITO: Pardon me?
LEAHY: Have you taken a position in that debate?
ALITO: I have not taken part in that. And I've read...
LEAHY: Would you like to?
ALITO: Not at this time.
LEAHY: I don't know why that surprises me.
ALITO: And the case law is not definitive on this question, according to the scholars. Ex Parte McCardle is a case that can be interpreted in a number of different ways.
LEAHY: You know, we had many in the Congress at that time, had they thought that Brown v. Board of Education was about to come down the way it did, probably would have made efforts to strip the authority of the Supreme Court to hear it.
And I'm afraid that, as we find some of these efforts where the courts become a very convenient whipping boy to people looking for votes or whatever, that that might happen again. And I'd suggest that you think long and hard on it.
Let me ask you this. On more than one occasion, the House of Representatives has included a provision in an appropriations bill -- and we all agree that the Congress has the power of the purse -- but in an appropriations bill saying that none of the funds can be spent enforcing a particular court decision. Pick something that they feel is unpopular at the moment, so they say, "No money can be spent to enforce it."
LEAHY: And let us say the court has ruled, basically, on a constitutional issue, saying: "This shall be in force." The Congress says: "No, we won't allow money to be spent."
Does that violate the Constitution?
ALITO: Well, that's also a provocative constitutional question.
I can't recall an instance where that has been done with respect to a constitutional decision. Perhaps it has been.
I do recall, back during the 1980s, that it was done with respect to an issue of antitrust. And I would assume that if there wasn't -- well, obviously, if there isn't a constitutional question raised by that limitation on the expenditure of funds, and if you're talking about a nonconstitutional question, maybe there is no constitutional issue raised, there wouldn't be an obstacle to Congress's doing that. With respect to a constitutional question, that's a provocative constitutional issue that -- I don't know the answer to it. And I cannot think of precedent on that point. I don't believe there is any.
LEAHY: Well, let's take a nonconstitutional. I want to make sure I understand your answer.
The Congress decision has come down of whatever nature. You mention antitrust -- whatever it is, it comes down from the court. And it is going to require some enforcement. And the Congress says: "No, we're not going to put the money in there."
Can the Congress do that?
ALITO: Well, I'd have to know the facts of the case and hear the arguments on both sides of it.
Unless there was a constitutional objection, then that falls within one of the most important powers of the Congress, the expenditure of funds that Congress exercises.
The framers wanted Congress to have the control of the purse because Congress is the branch that's closest to the people. And I would think that -- and Congress obviously has great latitude in this area.
I don't know what constitutional objections would be raised to doing that with respect to a nonconstitutional question. But I'd have to understand what exactly was going on.
LEAHY: Well, it's something to keep in mind because it may happen.
You know, we can grandstand -- Congress can grandstand the way it did on the Schiavo case, you have to wonder what else may come down.
One of the advantages or disadvantages of being here for a long time -- I've actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion.
And I think the chairman remembers this. He can be a rather tenacious questioner, as I know from some of my weekend phone calls from him.
BLITZER: Senator Patrick Leahy continuing to question Samuel Alito on important, very important but rather technical aspects of the law.
We're going to also be hearing questions coming up this morning from Democratic senators Dianne Feinstein, Joe Biden, Dick Durbin. We're going to resume our coverage. We'll go back there live momentarily.
I just want to bring back Jeff Greenfield and Jeff Toobin here in THE SITUATION ROOM.
As we look ahead to this morning, really this is the last chance that any of these Democratic senators or Republican senators are going to have to question this nominee. After this, after the next hour or two, when it's all over, there are other witnesses who come forward, but Alito is gone. He waits for the confirmation process to move forward.
GREENFIELD: I'll tell you, one of the more interesting things is going to be when I think at 7:00 present and former federal appeals judges come and testify on Alito's behalf.
I'm not sure this has ever been done before. But if you think about it, if a federal appeals court judge didn't want Alito on the Supreme Court, it's highly unlikely that judge would testify. Because if Alito got on the court, he could make the lower court judge profession like a living hell. There's no harm, no foul if you testify for a guy who doesn't make it. So I don't know, I don't think that's ever happened.
TOOBIN: I think there have been some federal judges who testified on behalf of other appeals court judges and other district court judges. I don't think it's ever been done for a Supreme Court judge. It's like lobbying for someone to become the boss, and that's somewhat -- some people think it's distasteful. I can't imagine that their testimony is going to matter one way or another.
I think one of the subtext here is one of the judge whose is testifying, Judge Edward Becker is Arlen Specter's best friend in the world. They have been buddies since they were prosecutors together 40 years ago. I think that may have something to do with why he's testifying, but I don't imagine it's going to have a big impact on any senator's vote.
BLITZER: I seem to think that they did come up with a few precedents where sitting federal judges have testified, but we'll double check and we'll get the nuance.
GREENFIELD: Very quickly. I think you're going to hear from Feinstein and a couple of the others on an attempt that they began yesterday to separate Alito from Judge Roberts, to say he was much more clear about his position on Roe versus Wade, and you seem unwilling to go as he did. That I think is going to be a main theme here.
BLITZER: We did hear something very interesting from Senator Joe Biden today suggesting, you know what, maybe this whole process is broken, since you don't get a lot out of these nominees to begin with, and maybe you just forget about bringing these nominees before the Senate Judiciary Committee.
TOOBIN: I think it's a cry of frustration, and I think it's an understandable frustration, because not a lot of information comes out, but I wouldn't hold your breath for that change to come about.
GREENFIELD: Maybe the senators ought to learn, a, how to talk less, and, b, how to figure out what questions you might actually be able to elicit from these nominees, some interesting information.
I mean one that occurred to me was, OK, you all say judges shouldn't legislate from the bench, right? Everybody says that. Give me two or three examples in the last 50 years where you think the court has done it. You might actually learn something. But what happens is the Democrat are looking for stuff to beat Alito over the head with, and the Republicans are looking to protect him. So you're not getting any kind of real inquiry here. That's part of the problem.
BLITZER: I like the set of questions that Jeff Greenfield came with to try to elicit some personal information about...
GREENFIELD. Sure. Favorite Beatle tells you a lot. Do you like the designated hitter rule? That tells you whether you're a Federalist or believe in one rule for both leagues. Yes, I don't think you're going to hear too many of those, either.
TOOBIN: Alito would have views on that. He's a big baseball fan. He went to a Philadelphia Phillies fantasy baseball camp, and I don't think any federal judge should be pictured in a baseball uniform. It's not a flattering -- stick to the robe.
BLITZER: We're going back to the hearings momentarily. Remember, you can watch it all on the computer uninterrupted. Go to CNN.com/pipeline. It's streaming, the video, live video from the hearing room all the time, including highlights. We'll take a quick break. We'll also check some of the important news happening elsewhere in the United States and around the world. We'll be right back.
BLITZER: And we're going to get right back to those hearings momentarily. We'll take another quick break. We're here in the situation room. The Samuel Alito hearings coming right back.
BLITZER: Welcome back. We're in THE SITUATION ROOM. We're covering the hearings, the confirmation hearings of Samuel Alito. This is the final day of questioning for the Supreme Court nominee. Let's go back to the hearing right now. The chairman, Arlen Specter has been speaking about some First Amendment issues.
SPECTER: ... you may turn out to be a notable exception, but I think that's a valid generalization. And it also confirmed my experience that nominees remember these proceedings and nominees are influenced by these proceedings in very subtle ways. We don't extract promises, but when Senator Leahy very adroitly asks you about the rule of four on granting cert -- four justices say, "A cert's granted" -- but it takes give to stay an execution in a capital case, how ridiculous can you be?
And Senator Leahy wondered if you'd remember that. Well, I predict you'll, if confirmed, remember that. In fact, I predict you'll remember it even if you're not confirmed.
But to this day, justices comment to me about questions they had here. Every time I see Justice Souter, he says he still hasn't made up his mind on whether Korea was a war or not. And the other justices -- I won't go into any more detail.
I'm going to reserve the balance of my 20:54.
SEN. ORRIN HATCH (R), UTAH: Well, I'll reserve my 25 minutes.
SPECTER: Senator Kennedy, you're recognized for up to 25 minutes.
SEN. EDWARD KENNEDY (D), MASSACHUSETTS: Thank you. Thank you.
ALITO: Good morning, Senator.
KENNEDY: Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech you gave at the Federalist Society.
Well, I'll mention just the one part of it that is of concern: "If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches -- legislative, executive judicial -- and the logical candidate is the executive branch.
And the president, it continues, the president has the power and the duty to supervise the way to which the board and the executive branch officials exercise the president's power, carrying federal law into execution."
So we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.
ALITO: Yes. It was the leading case. It was followed up by Morrison cases.
KENNEDY: Followed up by the Morrison case as the controlling case on the administrative agencies. What you haven't mentioned to date is that the theory -- what you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.
We want to know about -- you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority.
But then in your comments about the Morrison, you then proceed to outline a legal strategy for getting around Morrison.
This is what you said: "Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive." That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.
Our questions in this hearing is: What is your view of the unitary presidency?
You've responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.
And it includes these words: that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.
Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?
ALITO: I don't think that it would, Senator. The administrative agencies -- the term administrative agencies is a broad term, and it includes...
KENNEDY: The Federal Reserve?
ALITO: It includes agencies that are not regarded as so-called independent agencies. It includes agencies that is are within -- that are squarely within the executive branch under anybody's understanding of the term, agencies that are headed by a presidential appointee whose term of office is at the pleasure of the president.
And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies -- the term administrative agencies is not synonymous with agencies like the FTC which was involved in the Humphrey's Executor case where the agency is headed by a commission and commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency -- of the commissioners. KENNEDY: Well, the point, Judge -- the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, "The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate.
You're admitting now that it has to do with the administrative agencies. And this would have a dramatic and important reconsideration of the balance between the executive and the Congress.
I haven't got the time to go through.
But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.
ALITO: Senator, as to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed.
KENNEDY: But the point here is you take exception to Morrison. You're very clear about -- we're interested in your views. We understand Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents.
But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do as well with the balance between the executive and the Congress in a very important way in terms of the use of administrative agencies.
I haven't got the time to go over through. But we did have some discussion about those agencies and how it would alter the balance of authority and power between the Congress and the executive.
That's very important. It's enormously interesting. We've has Professor Calabrese from Harvard University spell this out in great detail now, and I know you've separated yourself a bit from his thinking to the extent that he would go in terms of administrative agencies.
The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that's really the point.
ALITO: Senator Kennedy, what I've tried to say is that I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.
And that is an expression of the Supreme Court's view on an issue where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.
KENNEDY: Well, the point is that you've differed with the Morrison and outlined a different kind of a strategy.
I want to move on. I want to come back just briefly again to the Vanguard issue, which continues to trouble and puzzle me by your answers to me and others.
Now, just to get back to the starting point, in your sworn statement to the committee when you were nominated to the circuit court in 1990, on page 15 of that statement you wrote this about your recusal practices: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard Companies."
So according to your sworn promise, you were going to recuse yourself from cases involving the Vanguard Companies, is that correct?
ALITO: I said I would disqualify myself from any cases involving the Vanguard Companies.
KENNEDY: Recuse. All right.
You also said you'd recuse yourself from any case involving your sister's firm...
ALITO: That's correct.
KENNEDY: ... in cases in which you were involved in the U.S. Attorney's Office. Is that correct?
ALITO: Yes, that's correct.
KENNEDY: And there's been some discussion as to whether that commitment covered only the initial period of your judgeship. And I'm not going to go on into that. I'm not going into that.
I just want to know about the steps you took to meet your commitment to the committee even in the initial years. On Tuesday, you told Senator Feingold that you had no recollection of whether you put Vanguard on your recusal list when you were first appointed to the bench in 1990.
Is that still right?
ALITO: That's correct. I don't have the initial list that was submitted to the clerk's office. And I think I clarified, in response to Senator Feingold's question, that that is a list that is used by the clerk's office to make the first cut on recusal issues. But it is not by any means the last word.
And in 1990, you owned $80,000 of Vanguard funds. Is that right? And over the year it grew to hundreds of thousands. Is that correct?
ALITO: It grew, yes.
KENNEDY: So you were getting reports from Vanguard now either monthly or quarterly or annually, were you not -- reporting?
ALITO: Yes, I was.
KENNEDY: All during this period of time?
KENNEDY: Do you know whether Vanguard was on your recusal list in 1991?
ALITO: I don't know what was on the list that was with the clerk's office prior to the time when the system was computerized.
And I have seen recently -- and I believe you have -- copies of the list that were on the computer. And those lists do not include Vanguard. There's no question about that.
KENNEDY: We received your standing recusal list from the 3rd Circuit earlier this week. It's dated January 28th, 1993. Vanguard is not on it. You have your sister's law firm on it, you have your cases from the U.S. Attorney's Office on it, but not Vanguard, your largest investment.
Here are the recusal lists for 1994, 1995, 1996 and Vanguard is not on it any of them either.
Do you have any reason to disagree with the report from the clerk of the court?
ALITO: I don't, Senator. I don't know whether -- I have no comment on the list. That's the list that they had. And I don't know exactly how that list came about, but that's the list they have.
BLITZER: We're going to break away briefly from this hearing as they go through the issue that Senator Kennedy has been hammering away at over the past few days, an investment that Samuel Alito had in a mutual fund, Vanguard, that he promised in 1990 when he was confirmed for the circuit court that he would recuse himself from any decisions involving Vanguard, but subsequently, some 12 years later, he failed to do so.
Jeff Toobin is this a -- I mean, Kennedy seems to think this is still a big issue? TOOBIN: You know, it just seems to me, if you want to raise this issue, you -- the point you're raising is you are trying to enrich yourself at the expense of the taxpayers that you have conflicts of interest, you're ruling on cases that help. If you want to make that argument, raise the issue. I think that argument, frankly, is preposterous in this case. So I don't see why Senator Kennedy keeps pursuing it.
BLITZER: Do you?
GREENFIELD: Well, I -- I mean, what he's saying is you made us a specific promise when you came here to be confirmed as a federal judge. You said in so many words, this is what you do. And now it turns out -- what we just heard briefly as we looked at we look at your list of recusal -- the recusal list and Vanguard wasn't on it. And so why did you break your word for us?
But in the absence -- you know, in the past, when justices, prospective justices, have gotten in real trouble about conflicts, it's because the allegation has been what Jeffrey Toobin just described, that you somehow were gaining. And so far there's not a shred of evidence in the cases he ruled on Alito did that.
So the question is credibility. Kennedy is saying you didn't do what you told us you were going to do, so maybe would he can't trust you.
BLITZER: All right, we'll see if Kennedy goes back to the issue of the Concerned Alumni at Princeton.
We'll take another quick break. Remember, all of the hearing, you can watch it. It's being streamed live on CNN.com/pipeline. Go there. You can watch it on your computer. We'll be back with more of our coverage of the Samuel Alito confirmation hearings.
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