Modal close

Dear Democracy Now! visitor,

You turn to Democracy Now! for ad-free news you can trust. Maybe you come for our daily headlines. Maybe you come for in-depth stories that expose corporate and government abuses of power. Democracy Now! brings you crucial reporting like our coverage from the front lines of the Dakota Access pipeline protests or news about this unprecedented US presidential election—and our coverage is never paid for by the oil and gas companies or the campaigns and superPACs. We produce our daily news hour at a fraction of the budget of a commercial news operation—all without ads, government funding or corporate sponsorship. How? This model of news depends on your support. Today, less than 1% of our visitors support Democracy Now! with a donation each year. If even 3% of our website visitors donated just $8 per month, we could cover our basic operating expenses for a year. Pretty amazing right? If you visit us daily or weekly or even just once a month, now is a great time to make your monthly contribution.

Non-commercial news needs your support.

We rely on contributions from you, our viewers and listeners to do our work. If you visit us daily or weekly or even just once a month, now is a great time to make your monthly contribution.

Please do your part today.


Senators Question Alito on Past Statements and Rulings on Abortion, Presidential Power and the Role of the Judiciary

January 11, 2006


On Capitol Hill, Supreme Court nominee Samuel Alito is entering his third day of confirmation hearings today before the Senate Judiciary Committee. On Tuesday, Alito was repeatedly questioned about his past statements and rulings on abortion, presidential power and the role of the judiciary.

We play excerpts of the hearings including the questioning of Alito by Senators Arlen Specter, Diane Feinstein and Jeff Sessions on abortion and Roe v. Wade and Sen. Patrick Leahy on spying and torture and Alito’s membership in a discriminatory Princeton group. [includes rush transcript]

On abortion, Alito vowed to approach the issue with a "open mind." But several Senators questioned whether he still believes — as he did in 1985 — that he personally believes "that the Constitution does not protect a right to an abortion." We will hear Alito discussing abortion later in the show. But first we turn to the issue of presidential power.

  • Sen. Patrick Leahy (D–VT), ranking member on the Senate Judiciary Committee questioning supreme court nominee Samuel Alito.

Although Samuel Alito was repeatedly questioned on the issue of abortion, he said little new beyond vowing to keep an open mind. On Tuesday, Senate Judiciary Committee Chairman Arlen Specter — the Republican from Pennsylvania — opened his questioning of Alito by focusing on the issue of abortion.

  • Sen. Arlen Specter (R–PA) , chairman of the Senate Judiciary Committee questioning supreme court nominee Samuel Alito.

Later in the day, New York Senator Charles Schumer, a Democrat, raised more questions about Alito’s 1985 statement that "the Constitution does not protect a right to an abortion."

  • Sen. Chuck Schumer (D–NY), questioning supreme court nominee Samuel Alito.

We turn to California Senator Diane Feinstein. She asked about the Casey vs. Planned Parenthood when Judge Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion.

  • Sen. Dianne Feinstein (D–CA) , questioning supreme court nominee Samuel Alito.

Republican Senator Jeff Sessions of Alabama attempted to counter the Democrats charges that Alito was a threat to Roe V. Wade by pointing to evidence where Alito appeared to come down on the side of protecting the right to an abortion.

  • Sen. Jeff Sessions (R–AL), questioning supreme court nominee Samuel Alito.

During the Alito hearings Senators also raised numerous other issues from the constitutionality of anti-pornography laws to the 2000 case that decided the Bush-Gore election to Alito’s membership in a controversial group at Princeton called the Concerned Alumni of Princeton — a group criticized for opposing the inclusion of women and minorities at Princeton.

  • Sen. Patrick Leahy (D–VT), ranking member on the Senate Judiciary Committee questioning supreme court nominee Samuel Alito.

Moments after Senator Patrick Leahy stopped questioning Samuel Alito about the Concerned Alumni of Princeton. Republican Orrin Hatch of Utah took up the issue.

  • Sen. Orrin Hatch (R–UT), questioning supreme court nominee Samuel Alito.

Senator Joseph Biden, a Democrat from Delaware spoke about the significance of the confirmation vote before the Senate Judiciary Committee.

  • Sen. Joseph Biden (D–DL), Senate confirmation hearings on Samuel Alito.


This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Vermont senator, Patrick Leahy, ranking Democrat on the Senate Judiciary Committee, questioning Samuel Alito.

SEN. PATRICK LEAHY: Three years ago, the Office of Legal Counsel at the Justice Department — and you’re familiar with that; you worked there years ago — they issued a legal opinion, which they kept very secret, in which they concluded that the President of the United States had the power to override domestic and international laws outlawing torture. So the President could override these laws outlawing torture. They tried to redefine torture, and they asserted, I quote, "that the President enjoys complete authority over the conduct of war," close quote. And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the President’s direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional."

They seem to say that the President could immunize — immunize people from any prosecution if they violate our laws on torture. And that state is what was the legal basis in this administration, until somebody, apparently the Justice Department, leaked it to the press. It became public. Once it became public, with the obvious reaction of Republicans, Democrats, everybody saying, 'This is outrageous. It's beyond the pale.’ The administration withdrew that as its position. The Attorney General even said in his confirmation that this no longer, no longer, represented Bush administration policy.

What is your view? And I ask this, because the memo has been withdrawn. It’s not going to come before you. What is your view of the legal contention in that memo, that the President can override the laws and immunize illegal conduct?

JUDGE SAMUEL ALITO: Well, I think the first thing that has to be said is that — is what I said yesterday. And that is that no person in this country is above the law, and that includes the President, and it includes the Supreme Court. Everybody has to follow the law. And that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States. Now, there can be — there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.

SEN. PATRICK LEAHY: Well, let’s go into one of those specifics. Do you believe the President has the constitutional authority as commander-in-chief to override laws enacted by Congress that immunize people under his command from prosecutions that they violate, these laws passed by Congress?

JUDGE SAMUEL ALITO: Well, if we were in — if a question came up of that nature, then I think you’d be in — where the President is exercising executive power in the face of a contrary expression of congressional will, through a statute or even an implicit expression of congressional will, you’d be in what Justice Jackson called the "twilight zone," where the President’s power is at its lowest point. And I think you’d have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up, and very often they don’t make their way to the judiciary, or they’re not resolved by the judiciary. They’re resolved by the other branches of the government.

SEN. PATRICK LEAHY: But, Judge, I’m a little bit troubled by this, because you said yesterday, and I completely agreed with what you said, that no one’s above the law, no one’s beneath the law. You’re not above the law, I’m not, the President’s not. But are you saying that there are chances where the President not only could be above the law passed by Congress, but could immunize others, thus putting them above the law? I mean, listen to what I’m speaking to specifically. We passed a law outlawing certain conduct. The President has this Bybee memo, which has now been withdrawn, but saying — but that won’t apply to me or people that I authorize. Doesn’t that place not only the President, but anybody he wants, above the law?

JUDGE SAMUEL ALITO: Senator, as I said, the President has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the President, and it’s set out expressly in the Constitution, is that the President is to take care that the laws are faithfully executed, and that means the Constitution, it means statutes, it means treaties, it means all of the laws of the United States. But what I’m saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone. And they have to be decided when they come up, based on the specifics of the situation.

SEN. PATRICK LEAHY: Is that saying that there could be instances where the President could not only ignore the law, but authorize others to ignore the law?

JUDGE SAMUEL ALITO: Well, Senator, if you’re in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics of —

SEN. PATRICK LEAHY: Let’s assume there’s not a question of the constitutionality enactment. Let’s make an easy one. We pass a law saying it’s against the law to murder somebody here in the United States. Could the President authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody, and escape prosecution, or immunize the person from prosecution, absent a presidential pardon?

JUDGE SAMUEL ALITO: Neither the President nor anybody else, I think, can authorize someone to — can override a statute that is constitutional. And I think you’re in this area — when you’re in the third category, under Justice Jackson, that’s the issue that you’re grappling with.

SEN. PATRICK LEAHY: Why wouldn’t it be constitutional for the — or wouldn’t it be constitutional for the Congress to outlaw Americans from using torture?

JUDGE SAMUEL ALITO: And Congress has done that. And it is certainly an expression of a very deep value of our country.

SEN. PATRICK LEAHY: And if the President were to authorize somebody or say they would immunize somebody from doing that, he wouldn’t have that power, would he?

JUDGE SAMUEL ALITO: Well, Senator, I think the important points are that the President has to follow the Constitution and the laws. And it is up to Congress to exercise its legislative power. But as to specific issues that might come up, I really need to know the specifics. I need to know —


JUDGE SAMUEL ALITO: — what was done, and why it was done and hear the arguments on the issue.

SEN. PATRICK LEAHY: Let’s go to some specifics [inaudible] to mention FISA, in your role, where FISA, the Foreign Intelligence Surveillance Act. Certainly, you had to be involved with it, appropriately so, when you were a U.S. attorney. This came in after the abuses of the 1960s and 1970s. We had had President Nixon’s enemies lists with breaking into doctors’ offices and wiretapping of innocent Americans, and so on. After that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We have that court that they can handle applications in secret for wiretaps or surveillance, if necessary for national security.

Now, we’ve just learned that the President has chosen to ignore the FISA law and the FISA court. He’s issued secret orders. And according to the press and the President’s own press conference, time after time after time, secret orders for domestically spying on American citizens without obtaining a warrant. Do you believe the President can circumvent the FISA law and bypass the FISA court to conduct warrant-less spying on Americans?

JUDGE SAMUEL ALITO: The President has to comply with the Fourth Amendment, and the President has to comply with the statutes that are passed. This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there would be — there may be statutory issues involved, the meaning of the provision of FISA that you mentioned, the meaning, certainly, of the authorization for the use of military force, and those would have to be resolved.

And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there’s a violation? On what basis would the President claim that what he — that what occurred fell within the authorization of the — of the authorization for the use of military force? And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power.

SEN. PATRICK LEAHY: But wouldn’t the burden be on the government to prove that it wasn’t a violation of Fourth Amendment, if you were spying on Americans without a warrant? Especially when you have courts set up, in this case the FISA court, which sets up a very easy procedure to get the warrant, wouldn’t the burden be on the government in that case?

JUDGE SAMUEL ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that’s correct.

SEN. PATRICK LEAHY: Well, let me ask you another. How does anybody even — you talk about this may come before the Third Circuit or come before the Supreme Court. I’ll accept that. But how does somebody even get there? If you’re having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue?

JUDGE SAMUEL ALITO: Certainly, if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court that — in a federal court that had jurisdiction.

SEN. PATRICK LEAHY: And I’m not asking these as hypothetical questions, Judge. People are getting very concerned about this. We just found out, again, not because the government told us, but because the press found out about it — thank God that we do have a free press, because so much of this stuff that is supposed to be reported to Congress never is, and we first hear about it when it’s in the press.

But we found out that the Department of Defense was going around — this makes me think of COINTEL-PRO during the Vietnam War — they’re going around the country photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont. Now, I don’t know why they spent all that money to do that. If they want to find somebody — if they want to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time. But I know some of these Quakers. And the Quaker tradition, they’ve been protesting war throughout this country’s history. You know, if you have somebody who has been spied on, warrant-less spying, would you agree — and I think you did, but I want to make sure I’m right on this — do you agree that they should have a day in court?

JUDGE SAMUEL ALITO: Certainly, someone who has been the subject of illegal law enforcement activities, they should have a day in court, and that’s what the courts are there for, to protect the rights of individuals against the government, and to — or anyone else who violates their rights. And they have to be absolutely independent and treat everybody equally.

SEN. PATRICK LEAHY: And those Fourth Amendment rights are pretty significant, are they not?

JUDGE SAMUEL ALITO: They are very significant.

SEN. PATRICK LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor, I was a prosecutor, I think we could agree, even in our past professions, it protects us.

AMY GOODMAN: Vermont Democratic senator, Patrick Leahy, questioning Supreme Court nominee, Samuel Alito.


AMY GOODMAN: We turn now to the issue of abortion. Although Samuel Alito was repeatedly questioned on the issue, he said little new beyond vowing to keep an open mind. On Tuesday, Senate Judiciary Committee Chair, Arlen Specter, the Republican from Pennsylvania, opened his questioning of Alito by focusing on the issue of abortion.

SEN. ARLEN SPECTER: Let me come now 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?

JUDGE SAMUEL 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, and I would listen to the arguments that were made.

SEN. ARLEN SPECTER: So you would approach it with an open mind, notwithstanding your 1985 statement?

JUDGE SAMUEL ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time, when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

SEN. ARLEN SPECTER: Well, Judge Alito, coming to the role you had in the Solicitor General’s office, where you wrote the memorandum in the Thornburgh case, urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job promotion within the federal government. So there’s a little difference between the 1985 statement in your advocacy role in the Thornburgh memorandum, isn’t there?

JUDGE SAMUEL ALITO: Well there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. I’m not saying that I made the statement simply because I was advocating the administration’s position, but that was the position that I held at the time, and that was the position of the administration.

AMY GOODMAN: That is Supreme Court nominee, Samuel Alito, answering questions from the Senate Judiciary Chair, Arlen Specter. Later in the day, Democratic New York senator, Charles Schumer raised more questions about Alito’s 1985 statement that, quote, "the Constitution does not protect a right to an abortion."

SEN. CHARLES SCHUMER: Judge Alito, in 1985 you wrote that "the Constitution" — these are your words — "does not protect a right to an abortion." And you said to Senator Specter a long time ago — I think it was about 9:30 this morning, 9:45 — that those words accurately reflected your view at the time. Now let me ask you, do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it? It’s okay if you distance yourself from it, and it’s fine if you embrace it. We just want to know your view.

JUDGE SAMUEL ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985, and I made it from my vantage point as an attorney in the Solicitor General’s office, but it was an expression of what I thought at that time. If the issue were to come before me as a judge, if I’m confirmed, and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I’ve discussed earlier, and it’s a very important doctrine, and that was the starting point and the ending point of the joint opinion in Casey. And then, if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SEN. CHARLES SCHUMER: But, sir, I am not asking you about stare decisis. I’m not asking you about cases. I’m asking you about this: the United States Constitution. As far as I know, it’s the same as it was in 1985, with the exception of the 27th Amendment, which has nothing to do with what we’re talking about. Regardless of case law, in 1985 you stated — you stated it proudly, unequivocally, without exception — that the Constitution does not protect a right to an abortion. Do you believe that now? I’m not asking about case law. I’m not asking about stare decisis. I’m asking your view about this document and whether what you stated in 1985, you believe today? You’ve changed your view? You’ve distanced your view? You can give me a direct answer. It doesn’t matter right now which way you answer, but I think it’s important that you answer that question.

JUDGE SAMUEL ALITO: The answer to the question is that I would address that issue in accordance with the judicial process, as I understand it and as I have practiced it. That’s the only way I can answer that question.

SEN. CHARLES SCHUMER: Sir, I’m not asking for the process. Obviously, you would use a judicial mind frame. You’ve been a judge for 15 years. I’m asking you — you stated what you believed the Constitution contained. You didn’t say the Constitution as interpreted by this or that. You didn’t say the Constitution with this exception or that exception. It was a statement you made directly. You made it proudly. You said you were particularly proud of that personal belief that you had. Do you still believe it?

JUDGE SAMUEL ALITO: And, Senator, I would make up my mind on that question, if I got to it, if I got past the issue of stare decisis, after going through the whole process that I’ve described. I would need to know the case that is before me. And I would have to consider the arguments. And they might be different arguments from the arguments that were available in 1985.

SEN. CHARLES SCHUMER: But, sir, I’m not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution. I’m asking you — and not about the process you would use. I’m asking you about your view of the Constitution, because as we all know — and we’re going to talk about stare decisis in a few minutes — that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are, and there’s precedent on the books for decades, it’s still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in the same memo — I can’t remember who asked the question — but you said — you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn’t know that there was a word that was "inapt." But you said that it was inapt to have written that the elected branches are supreme. So you discussed that, your view on that issue without reference to case law, because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this. Can you tell us your view, just one more time, your view about the Constitution not protecting a right to an abortion, which you have talked about before, and you said you personally proudly held that view? Can you?

JUDGE SAMUEL ALITO: The question about the supremacy — the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country, and so, certainly that’s a subject that is proper for me to talk about. But the only way —- you are asking me how I would decide -—

SEN. CHARLES SCHUMER: No, I’m not. I’m asking you what you believe is in the Constitution.

JUDGE SAMUEL ALITO: You’re asking me my view of a question that —

SEN. CHARLES SCHUMER: I’m not asking about a question. I’m asking about the Constitution, in all due respect, and something you wrote about.

JUDGE SAMUEL ALITO: The Constitution contains the due process clause of the Fifth Amendment and the Fourteenth Amendment. It provides protection for liberty. It provides substantive protection, and the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SEN. CHARLES SCHUMER: Does the Constitution protect the right to free speech?

JUDGE SAMUEL ALITO: Certainly, it does. That’s in the First Amendment.

SEN. CHARLES SCHUMER: Well, why can’t you answer the question of does the Constitution protect the right to an abortion the same way, without talking about stare decisis, without talking about cases, etc.?

JUDGE SAMUEL ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SEN. CHARLES SCHUMER: Well, okay, I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before, so any idea that you’re approaching this totally fresh, without any inclination or bias, goes by the wayside. But I do have to tell you, Judge, your refusal I find troubling.

AMY GOODMAN: New York Congress member Charles Schumer, questioning Supreme Court nominee, Samuel Alito. We turn now to California Senator Dianne Feinstein. She asked about Casey v. Planned Parenthood, when Judge Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion.

SEN. DIANNE 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 group for 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?

JUDGE SAMUEL ALITO: Well, I mentioned the fact, in my opinion, that this provision applied only to 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 — that would be women who fell within this provision of the Pennsylvania law, and the standard that she had articulated in the early cases, 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 could not be simply something that inhibited some women, the "some women" phrase was her phrase, not my phrase.

SEN. DIANNE FEINSTEIN: Now, 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, "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?

JUDGE SAMUEL 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 Hodgson 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 — that these situations were very distinct, and I was aware of that, and I think I pointed that out.

AMY GOODMAN: Supreme Court nominee, Samuel Alito, being questioned by California Senator Diane Feinstein. Republican Senator Jeff Sessions of Alabama attempted to counter the Democrats’ charges that Alito is a threat to Roe v. Wade, by pointing to evidence where Alito appeared to come down on the side of protecting the right to an abortion.

SEN. JEFF SESSIONS: Judge Alito, back 20 years ago, you wrote a memorandum to Solicitor General Charles Fried, who was a law professor, I guess, before he became Solicitor General, then went back to Harvard and is there now, a brilliant legal mind. He was the Solicitor General, and you worked for him. You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania, and it was — seemed to me to be a preliminary analysis of that issue and the question of whether or not that case should be — whether the Department of Justice should intervene in that case and file a friend of the court brief. Was it a preliminary overview of the issue, and not the final brief or final summary of argument for the appeal?

JUDGE SAMUEL ALITO: And that’s the Thornburgh case that you’re referring to Senator. Yes, it wasn’t the brief. It was a memorandum about whether the government should file a brief as a friend of the court.

SEN. JEFF SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought were — the court had overreached and gone too far. A number of them are quite erroneous, it appeared to me, and you analyzed that very carefully. But before you concluded your argument, you suggested — and not suggested, you stated — that you did not think a frontal assault on Roe v. Wade would be appropriate. Is that correct?

JUDGE SAMUEL ALITO: Yes, that’s correct.

SEN. JEFF SESSIONS: And was it not the position of President Reagan and the Attorney General of the United States at that time, that Roe v. Wade was wrongfully decided, and they would seek the opportunity at some point to seek the overruling of it?

JUDGE SAMUEL ALITO: That was the expressed position of President Reagan himself. He had spoken on the issue, and he had written on the issue.

SEN. JEFF SESSIONS: So your opinion to the Solicitor General as a young staff attorney in the Solicitor General’s office was in some ways contrary to that of the President of the United States.

JUDGE SAMUEL ALITO: Well, I was doing what I thought my job was as an advocate, which was to outline the litigation strategy that would be in the best interests of my client, given what my client was interested in. And it seemed to me that the strategy that I recommended was the best strategy to be followed.

SEN. JEFF SESSIONS: And did they follow your suggestion?

JUDGE SAMUEL ALITO: No, they did not. They argued that Roe v. Wade should be overruled, and the Supreme Court rejected that, rejected that argument.

SEN. JEFF SESSIONS: So they, in fact, carried out a frontal assault, and it was not approved by the court. So I think that, to me, plus your other decision in which you ruled that Health and Human Services funds could be utilized to fund an abortion for those who qualified, was a closed question, that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error. Is that correct?

JUDGE SAMUEL ALITO: That is correct. That’s what I thought the law required. I thought we were required to defer to the Department of Health and Human Services’ interpretation of the statute, and so that’s how I voted. And if I had been out to implement some sort of agenda to strike down, to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case.

AMY GOODMAN: Supreme Court nominee, Samuel Alito, responding to the questions of Republican Alabama Senator Jeff Sessions. This is Democracy Now! When we come back, we go to the portion of the hearings where he’s questioned about being a member of a discriminatory alumni group at Princeton University, as well as questions about spying.


AMY GOODMAN: We continue with the Samuel Alito hearings. Senators also raised numerous questions about the constitutionality of anti-pornography laws to the 2000 case that decided the Bush-Gore election to Alito’s membership in a controversial alumni group at Princeton called the Concerned Alumni of Princeton, a group criticized for opposing the inclusion of women and minorities at the university. This is Senator Patrick Leahy of Vermont, the ranking Democrat on the Committee.

SEN. PATRICK LEAHY: You spoke eloquently of your father’s experience when he came to this country. The reason it touched me, I was thinking when my grandparents, my maternal grandparents, immigrated to America, to Vermont, speaking only Italian, coming from Italy to a new country, and I know some of the problems they faced. These people speaking this strange language, my mother was a child learning English when she went to school. Why don’t they speak like us? Why are they different than us? And some of the obstacles that that faced.

And my father’s case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Barre, Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply" or "No Catholics need apply." And I think you and I would be in total agreement that we’re now at a different world, at least most of our country and that we’re better, we’re better people because we’ve done away with that. We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father was a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree, and my sister the next one.

So, with that in mind, I was — there was something in your background that I was very troubled with. That’s the Concerned Alumni of Princeton University, C.A.P. This was a group that received attention, because it was put together, but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt were people who did not fit Princeton’s traditional mold: women and minorities. Now, two prominent Princetonians: one, Bill Frist, who is now the Majority Leader of the United States Senate, in a committee roundly criticized C.A.P.; Bill Bradley, who had joined it and then found out what it was, left it, and roundly criticized it.

And yet, you proudly, in 1985, well after, well after the criticism of this, in your job application proudly put that you were a member of it, a member of Concerned Alumni at Princeton University, a conservative alumni group. Why, in heaven’s name, Judge, with your background and what your father faced, why in heaven’s name were you proud of being part of C.A.P.?

JUDGE SAMUEL ALITO: Well, Senator, I have racked my memory about this issue, and I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time. But if I had been actively involved in the organization in any way, if I had attended meetings or been actively involved in any way, I would certainly remember that. And I don’t.

And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time. And the issue that had rankled me about Princeton for sometime was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn’t think that it was right to oppose the military for that reason.

And the issue — although the Army unit was eventually brought back, the Navy and the Air Force units did not come back. And the issue kept coming up. And there were people who were strongly opposed to having any unit on campus. And the attitude seemed to be that the military was a bad institution, and that Princeton, that Princeton was too good for the military and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses were not — didn’t merit getting credit, that the instructors shouldn’t be viewed as part of the faculty. And that was the issue that bothered me about that.

SEN. PATRICK LEAHY: But, Judge, with all due respect, C.A.P. was most noted for the fact that they were worried that women, too many women and too many minorities were going to Princeton. In 1985, when everybody knew that’s what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials. Now, you strike me as a very cautious and careful person, and I say that with admiration, because a judge should be. But I can’t believe that at 35, when you’re applying for a job, that you’re going to be anything less than careful in putting together such a job application. And frankly, I don’t know why that was a matter of pride for you at that time. My time is up. We’ll come back to this. I have other questions.

JUDGE SAMUEL ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that. And that certainly was not any part of my thinking in whatever I did in relation to this group.

SEN. PATRICK LEAHY: Or my background, either, Judge. Or my background, either.

AMY GOODMAN: Moments after Senator Leahy stopped questioning Samuel Alito about the Concerned Alumni of Princeton, Republican Orrin Hatch of Utah took up the issue.

SEN. ORRIN HATCH: But you were not a founding member?

JUDGE SAMUEL ALITO: I certainly was not a founding member.

SEN. ORRIN HATCH: You were not a board member?

JUDGE SAMUEL ALITO: I was not a board member.

SEN. ORRIN HATCH: Or, for that matter, you were not even an active member of the organization, to the best of your recollection.

JUDGE SAMUEL ALITO: I don’t believe I did anything that was active in relation to this organization.

SEN. ORRIN HATCH: Now, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were somehow against the rights of women and minorities attending colleges. So let me just ask you directly, on the record, are you against women and minorities attending colleges?

JUDGE SAMUEL ALITO: Absolutely not, Senator, no.

SEN. ORRIN HATCH: Now, I felt that that would be your answer, I really did. It’s a good question though, it’s one that kind of overcomes the implications that you were.

JUDGE SAMUEL ALITO: Senator, I had never attended a non-coeducational school until I went to Princeton. And after I was there a short time, I realized the benefits of attending a coeducational school.

AMY GOODMAN: Judge Alito answering questions from Republican Senator Orrin Hatch. The issue of domestic spying was raised several times, including by Democrat Russell Feingold of Wisconsin.

SEN. RUSSELL FEINGOLD: I want to come back to Mitchell v. Forsyth, which you participated in the Solicitor General’s office. As we’ve already heard, that case considered the government’s argument that President Nixon’s Attorney General, John Mitchell, should be granted absolute immunity for authorizing warrant-less wiretaps. And you signed the government’s brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the Attorney General acting in the inherently secretive nationally security context has few built-in restraints. Justice White, writing for the court in Mitchell, said, quote, "The danger that high federal officials would disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity," unquote. And that statement still has a lot of relevance today, doesn’t it?

JUDGE SAMUEL ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system. But there are some high-ranking officials in all three branches of the government, who do have absolute immunity, just from civil damages, not from criminal liability or from impeachment or removal from office. But for —- or for injunctive relief. They can be ordered to comply with the Constitution. But as far as civil damages are concerned -—

SEN. RUSSELL FEINGOLD: But when you were at the Solicitor General’s office, you wrote this memo about the case, saying, quote, "I do not question the Attorney General should have this immunity," quote, "for authorizing warrant-less wiretaps." Why did you not question the Attorney General’s absolute immunity?

JUDGE SAMUEL ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity, and it was his money that was at stake here, wanted to make. So we had an obligation that was somewhat akin to the obligation of a private attorney representing a client. Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halperin in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration. In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like — and I’m not going to be able to provide an exact quote — but something like, 'but the situation could well be different for people who are involved in insensitive national security matters.'

AMY GOODMAN: Judge Samuel Alito, responding to Senator Russell Feingold. We finally turn to Senator Joseph Biden, the Delaware Democrat, speaking on the significance of the confirmation vote before the Senate Judiciary Committee.

SEN. JOSEPH BIDEN: Every nominee who comes before us is viewed by all the senators — left, right, center, Democrat, Republican — at least on two levels, at least in my experience here. One is, the first one is, individual qualifications and what their constitutional methodology, their views are, their philosophy. But the other is, and it always occurs, whose spot they’re taking and what impact that would have on the court. Everybody wrote with Roberts after the fact. And a lot of people voted with Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist, so Roberts for Rehnquist, you know, ’What’s the worst that can happen?’ quote-unquote. 'Or the best that can happen?' Now, I’m not being if facetious. What’s the best or worst? If you’re conservative, the best that can happen is he’s as good as Rehnquist; from the standpoint of someone who’s a liberal, the worst that can happen, he’s as good as Rehnquist.

So, I mean — but you are replacing — I mean, we can’t lose this, and so people understand this, you are replacing someone who has been the fulcrum on an evenly — otherwise evenly-divided court. And a woman whose — most scholars who write about her and in the retrospective about her say this is a woman who viewed things from — the phrase you’ve used — "a real-world perspective." This is a former legislator. This was a former practitioner. This was someone who came to the bench and applied — to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that what would happen to an individual. So her focus on the impact on individuals was sometimes criticized and praised. It’s just important you understand, at least from my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country, by shifting the balance 5-4, 4-5, one way or another.

AMY GOODMAN: Delaware Democrat, Joseph Biden. And that does it for today’s broadcast. We will continue with the Alito hearings tomorrow.

The original content of this program is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 United States License. Please attribute legal copies of this work to Some of the work(s) that this program incorporates, however, may be separately licensed. For further information or additional permissions, contact us.

Email icon redDaily News Digest