Alito Hearings: 1/10/2006

11.01 Hatch asks about judicial philosophy. Alito says that the judiciary should be vigorous in protecting rights and enforcing the law. But although the judiciary has an important role to play, it is a limited role, and judges should always consider whether they are over-reaching. His experience on the bench has reinforced the importance of the judicial process, engaging with the briefs and arguments with an open mind, and always being willing to change your mind.

10.58 Hatch talks about Alito’s lack of legislative experience, and notes concerns that Alito’s extensive executive branch experience biases him in favor of the executive. Although he is dubious about “the other sides” tally sheets, Hatch lists some examples where Alito has ruled against executive policies, and asks Alito for some more. Alito obliges. Hatch interupts to make his point: that out of 5000 cases you can cherry pick cases that you disagree with. He doesn’t know a judge of 15 years experience that hasn’t rendered a judgment that some senators disagree with.

10.54 Hatch asks some follow-ups to confirm that there was no chance of Alito financially benefitting from the case, and that he was not required to recuse himself, and that the panel reconsidering the case came to the same result. Hatch notes that the view of a number of “top ethics experts” on recusl, including a Professor who testified on a similar matter in Justice Breyer’s hearing, was tha Alito was not required to recuse himself. These opinions go into the record. Hatch says that Alito went above and beyond his ethical duties and that he should be praised, not criticised.

10.50 Alito says he complied with the ethics rules, and has standards for recusal that go beyond the letter of the rules. He acknowledges that he would do some things differently, particularly not considering recusal against his own, higher, standards. Alito describes the procedure in pro se cases. He says that when he received a recusal notice, he carefully considered whether he was required to recuse and concluded that he was not. But, given his higher standards he did recuse himself and asked that the original decision be vacated. Altio says that he has also implimented his own procedure in pro se cases to ensure that he focuses on recusal problems to his own standards.

10.45 Hatch moves onto Vanguard. Hatch says that Alito is a man of integrity, and notes that the ABA “well-qualified” recommendation includes a finding of “excellent integrity”, and that the ABA accepted Alito’s explanation of his actions over Vanguard. Hatch wants to get rid of this problem, and wants to give Alito a chance to respond to the allegations about Vanguard.

10.41 Alito confirms that he was a member of ROTC. Hatch notes that the ROTC headquarters was firebombed at the time that members were fighting in Vietnam.

10.40 Hatch asks about Alito’s refusal to join an eating club. Alito says that it was a good way to talk to faculty. He says that nothing of his record at Princeton or after demonstrates any animus towards women.

10.38 Hatch begins with CAP. He leads Alito through denials that he was a founding member, that he is against women’s rights. Alito says that he hadn’t attended a co-education school prior to attending Princeton, but that soon after he realised the benefits of attending a co-educational school. This gets a laugh.

10. 36 Leahy asks why, in 1985, Alito proudly stated this as one of his qualifications in the job application. He can’t believe that the careful Alito would do this without thinking about it. Alito says that CAP’s attempt to maintain “traditional” Princeton values wasn’t part of his background.

10.34 Leahy compares his parents’ story as immigrants in Vermont to Alito’s. Leahy says that he hopes Alito understands ethnic and religious prejudice from this, and transitions from this to Alito’s membership of Concerned Alumni of Princeton. Leahy asks why in heaven’s name Alito was proud of being a member of CAP in his application letter. Alito says he has wracked his brain for memories, and can’t remember any active participation. Alito thinks his joining up was probably a reaction to ROTC’s ejection from campus.

10.29 Leahy suggests Alito went beyond the “four corners” of the warrants in these cases, and often places the most favorable interpretation for the government on the warrants. Alito says that Leahy is putting too strong an interpretation on his opinions. Alito stresses that the test is whether a “reasonable” officer would have read the warrant to authorise the searches, and he thought that a reasonable officer could have. Leahy disagrees.

10.26 Leahy asks about Alito’s opinions in search warrant cases, in particular the strip search of a 10 year old girl. Leahy asks whether Alito continues to hold the views expressed in those opinions. Altio says that he hasn’t had a chance to reconsider the issue. He says that the case turned on a rather technical issue of whether the warrant authorised the search of people not on the premises.

10.23 Leahy asks about Alito’s memo on Attorney-General’s personal immunity against suit for warrantless searches. Alito says that the Attorney-General doesn’t have immunity because the Supreme Court held against the Attorney. Alito says that he advised not to take the case, but that he didn’t dispute whether immunity existed.

10.20 Leahy complains about government survelliance of Vermont Quaker war protest and that the courts have to act to protect privacy. Alito says that the courts are there to protect individual’s privacy, and that 4th Amendment rights are important.

10.18 Leahy asks whether the President can authorise the bypass of FISA? Alito says that the President has to comply with the Fourth Amendment and with statutes, but the various arguments on these issues might come before the courts. Leahy asks about standing to sue. Alito says that if someone alleges that they have been subject to an illegal search, they will have standing.

10.15 Alito accepts that the President can’t authorise a violation of a constitutional statute. Leahy asks whether the Congresional ban on torture is constitutional. Alito says that its an important expression of a deep seating feeling, but won’t give a general view. He would need to know the specifics of the executive conduct.

10. 13 Leahy wants to know whether the President has power as Commander in Chief to go above law passed by Congress and immunise executive officers who violate Congressional law. Alito says you would have to look at the specifics of the situation within the Youngstown Steel framework. Leahy is troubled by this. He asks whether the President can authorise conduct prohibited by Congress. Alito refuses to be drawn on generalities: it all depends on the specifics.

10.10 Leahy says that one of the most important roles of the courts is to protect citizen’s privacy against the government. He quotes from the Department of Justice memo arguing that the President is not bound by laws prohibiting torture. What are Alito’s views on this memo? Alito says that no person is above the law.

10.07 Leahy says that the President’s use of signing statements goes beyond the theoretical, citing the McCain Anti-Torture Bill. Alito agrees that there are important practical implications, but says that the difficult theoretical issues need to be thought through, and he hasn’t done that.

10.05 Specter moves onto whether the President’s “legislative statement” should be accorded equal weight with legislative history. Alito says that the most important part of his memo on the issue is the large section that raises difficult theoretical questions about the issue, many of which Specter had raised, and notes that the memo is a rough first effort on the issue.

10.03 Specter wants to know whether AUF authorises warrantless wiretapping. Specter asks a long multi-part question on how Alito would interpret AUF, which sets out a number of objections to the Administration’s position, and then the President’s Art II authority. Altio says he would look to the statute first. Then, depending on how you interpret FISA and AUF, Alito would look to the Youngstown Steel framework. Alito acknowledges that the questions are important and difficult, but these specific issues might arise before the court.

9.58 Specter moves onto executive power. Altio agrees with the Jackson framework in Youngstown steel. Alito also agrees with O’Connor that war does not give a blank check to the President. He says that the Bill of Rights applies at all times, and that it’s very important that this is adhered to in times of war and national emergency.

9.55 Specter moves onto Alito’s opinion in the Pennsylvania abortion statute case, in which he gave deference to a Department’s interpretation restricting medicaid support for an abortion. Altio says that he struck down the statute becuase the law required deference to the Department’s interpretation. He notes that he has sat on three abortion cases, and has twice struck down the law because that was what the law required.

9.55 Specter wonders whether Alito’s statements on Roe in the 1985 appointment form is different from his role as an advocate in the OSG. Altio agrees that his statement in his appointment form were his views at the time. But precedent now an important factor.

9.50 Specter gets out his chart. Specter notes that this is a good photo-op for Senator Hatch, and that Leahy would prefer that the chart was held beside him. But he doesn’t ask any questions about it. Specter raises Alito’s 1985 statement on Roe. Alito says that his 1985 statement was a correct statement of what he thought in 1985, but this was a prior period of time in a different role. Says that he would now approach question with an open mind

9.48 Specter raises the concept of “super-stare decisis”, and notes that it has been applied to Casey. Alito doesn’t want to categorise precedents, including as “super-dupa precedent”. But he agrees that when precedent has been reaffirmed, this is a factor that should be taken into account. When the precedent is reaffirmed on the grounds of precedent, this is a precedent on precedent.

9.46 Alito: the Constitution is a living thing “in the sense it matters”. The Constitution includes some general principles and leaves it to each generation to apply these to the facts. Alito resists accepting that Constitution embodies a living tradition: principles don’t change, but as new situations arise, these have to be applied.

9.45 Specter wants Alito’s opinion on Rehnquist’s upholding of Miranda as being embedded as part of the national culture. He notes the analogy with the Roe issue. Alito says Rehnquist was right in acknowledging that reliance can take different forms, including where government branches have internalised rules and come to reconcile themselves with them asa good way to deal with difficult issues.

9.41 Specter has a third quote from Casey, which seperates out the correctness of Roe and places weight on its precedential value. Alito says that the first quesion is always stare decisis.

9.40 Specter quotes from Casey’s discussion of the legtimacy of the Court in overturning Roe as a result of public opinion. Alito says that the judiciary should be insulated from public opinion, and not do “anything under fire”.

9.37 Specter quotes from Casey’s discussion of reliance: how would Alito weigh this as it affects the women’s right to choose? Alito says that stare decisis is important, although acknowledges that it is not inexorable. Specter presses for specifics on concept of reliance. Alito says it’s an important foundation for stare decisis.

9.35 Specter starts with the right to choose. Alito agrees that the Constitution protects a right to privacy, in a number of ways. Alito appears to agree with Griswold, and agrees with the “result” in Eisenstadt.

9.34 The hearing has started. Specter reviews the proceedure. 30 minutes for each witness. Specter wants to complete the first round of questioning today, even if this means working into the evening, although this may not be possible. Leahy would prefer that it wasn’t a marathon “for us older guys’ sake”. Specter disputes that any older guys or gals are involved.

9.00 The hearing is set to reconvene at 9.30 am, with the first round of questioning by senators. In the first round, each senator will have 30 minutes to question the nominee.