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Senators Question Alito on Third Day of Hearings

January 11, 2006 at 12:00 AM EDT

KWAME HOLMAN: As the Senate Judiciary Committee got underway this morning, several Democrats expressed their unhappiness with the quality of Samuel Alito’s responses to their questions yesterday.

SEN. PATRICK LEAHY: A number of us have been troubled by what we see as inconsistencies in some of the answers.

SEN. EDWARD KENNEDY: I don’t think that they add up.

SEN. DICK DURBIN: You wouldn’t answer. You wouldn’t give a direct answer.

KWAME HOLMAN: Illinois’s Dick Durbin was displeased particularly with Judge Alito’s answers on abortion. So today Durbin referenced testimony from September from then nominee John Roberts in which Roberts agreed that the 1973 Roe versus Wade decision was settled law.

SEN. DICK DURBIN: Do you believe it is the settled law of the land?

JUDGE SAMUEL ALITO: Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973 so it’s been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday. And it is my– and the Supreme Court has reaffirmed the decision sometimes on the merits, sometimes in Casey based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it. And secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

And when they examine a question and they reach a conclusion, I think that’s entitled to considerable respect. And of course, the more times that happens, the more respect the decision is entitled to. That’s my view of that. So, it is a very important precedent.

SEN. DICK DURBIN: Is it the settled law of the land?

JUDGE SAMUEL ALITO: It is a precedent — if settled means that it can’t be re-examined, then that’s one thing. If settled means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

KWAME HOLMAN: To anti-abortion Republicans followed Durbin: Kansan Sam Brownback and Oklahoman Tom Coburn. Holding up a copy of the Constitution Sen. Coburn asked why it was important to rely on stare decisis, or precedent, to uphold Roe.

SEN. TOM COBURN: As you talk about stare decisis, is that mentioned anywhere in here?

JUDGE SAMUEL ALITO: It is not expressly mentioned in the Constitution —

SEN. TOM COBURN: It’s actually a procedure of common English law, correct?

JUDGE SAMUEL ALITO: That’s its origin, yes.

SEN. TOM COBURN: That’s its origin. We use that as a tool for working with the Constitution. Can you recall the number of times that precedents have been reversed by the Supreme Court?

JUDGE SAMUEL ALITO: I don’t know the exact figure, Senator.

SEN. TOM COBURN: I think it’s around 170-some times affecting some 225 cases I believe that’s close. That may not be exactly accurate. So, in fact, it’s a tool used to help us with the law but our founders didn’t say you have to use stare decisis in this, did they?

JUDGE SAMUEL ALITO: No, they didn’t.

KWAME HOLMAN: Sen. Brownback cited the case of Plessey versus Ferguson to support his argument that relying on stare decisis often has been a mistake. That 1896 decision affirmed racial segregation and wasn’t overturned until the 1954 Brown versus Board of Education decision.

SEN. SAM BROWNBACK: You’ve got it sitting on the books for 60 years, twice the length of time of Roe versus Wade. You’ve got these number of cases that considered Plessey and upheld Plessey to the dependency.

And yet Brown comes along, 1950s case, poor little girl has to walk by the all white school to go to the black school in Topeka, Kansas. And the court looks at this and they say unanimously that’s just not right.

Now, stare decisis would say in the Brown case, you should uphold Plessey. Is that correct?

JUDGE SAMUEL ALITO: It was certainly — it would certainly be a factor that you would consider in determining whether to overrule it.

SEN. SAM BROWNBACK: But obviously —

JUDGE SAMUEL ALITO: — doctrine that you would consider.

SEN. SAM BROWNBACK: But obviously Brown overturned it and thank goodness it did, correct?


SEN. SAM BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case because the court got it wrong in Plessey.

KWAME HOLMAN: The issue of Judge Alito’s membership in a controversial college organization again came up. The group CAP, Concerned Alumni of Princeton, was criticized for opposing coeducation and affirmative action. Alito cited it on a 1985 job application but maintained he did not recall any involvement with the group.

Edward Kennedy of Massachusetts asked Alito about sealed documents that might shed some light on his role in CAP.

SEN. EDWARD KENNEDY: Last month I sent a letter to Sen. Specter asking a number of questions about your membership in CAP. I asked Sen. Specter to make a formal committee request with the documents in the possession of the Library of Congress as part of the William Rusher papers. Mr. Rusher was the publisher of the National Review as an active founder and leader of CAP.

Do you have any hesitancy or reason for us not to look at those documents?

JUDGE SAMUEL ALITO: They’re not my documents, senator. I have no – I have no opinion about them whatsoever.

SEN. EDWARD KENNEDY: Do you think they would be helpful to us?

KWAME HOLMAN: Then to the surprise of committee chairman Arlen Specter, Sen. Kennedy called for the committee to go to closed session to vote to subpoena the documents. That led to this testy exchange with Chairman Specter.

SEN. ARLEN SPECTER: We actually did get a letter but —

SEN. EDWARD KENNEDY: You did get a letter, are you saying?

SEN. ARLEN SPECTER: Well now wait a minute. You don’t know what I got. I’m about to tell you.

SEN. EDWARD KENNEDY: Yes, I do, Senator, since I sent it.

SEN. ARLEN SPECTER: Well, the sender —

SEN. EDWARD KENNEDY: I’ve got it right here.

SEN. ARLEN SPECTER: — doesn’t necessarily know what the recipient gets, Sen. Kennedy.

SEN. ARLEN SPECTER: I’ve got it right here.

SEN. ARLEN SPECTER: You are not in a position to say what I received.

We’re going to move on now. Sen. Grassley?

SEN. EDWARD KENNEDY: Mr. Chairman, I’d appeal the ruling of the chair on this.

SEN. ARLEN SPECTER: There’s been no ruling of the chair, Sen. Kennedy.

SEN. EDWARD KENNEDY: But my request is —

SEN. ARLEN SPECTER: And I’m the chairman of this committee and I have heard your request and I will consider it. And I’m not going to have you run this committee and decide when we’re going to go into executive session.

KWAME HOLMAN: After an hour-long lunch recess Chairman Specter announced his staff had located Kennedy’s request for the sealed documents and would work to make them available.

SEN. ARLEN SPECTER: I’m just a little puzzled at the issue being raised in this manner. We talk all the time. And I’m just a little surprised that Sen. Kennedy hadn’t talked to Sen. Leahy or hadn’t talked to me before he made a request for access to the Rusher records, talks about a subpoena, talks about a ruling of the chair, talks about overruling the chair, just a little tussle. But the substantive matters are being attended to.

SEN. EDWARD KENNEDY: I welcome the fact that we’re going to have the access to those records. The fact remains, I didn’t anticipate — I thought that since this was a major issue on the 1985 application of the nominee for a new job, this membership with the Federalist Society and the CAP organization, I thought as a matter of routine that we’d have access to those records.

And it was a letter to you, as we would do, with follow up with the staff, which is the usual procedure here.

But the important fact is we’re going to get that information. I think that’s what’s extremely important.

KWAME HOLMAN: South Carolina Republican Lindsey Graham later added his thoughts.

SEN. LINDSEY GRAHAM: Are you really a closet bigot?

JUDGE SAMUEL ALITO: I’m not any kind of a bigot.

SEN. LINDSEY GRAHAM: No, sir, you’re not. You know why I believe that? Not because you just said it but that’s a good enough reason because you seem to be a decent, honorable man. I’ve got reams of quotes from people who have worked with you, African-American judges, glowing quotes about who you are, the way you’ve lived your life, law clerks, men and women, black and white, your colleagues who say that Sam Alito, whether I agree with him or not, is a really good man.

And you know why I believe you when you say that you disavow those quotes because the way you have lived your life and the way you and your wife are raising your children.

Let me tell you this: guilt by association is going to drive good men and women away from wanting to sit where you’re sitting. Judge Alito, I am sorry that you’ve had to go through this. I am sorry that your family has had to sit here and listen to this.

KWAME HOLMAN: Mrs. Alito left the room shortly after that exchange and then returned.

Again this afternoon, there were more questions about Roe versus Wade and why Judge Alito was reluctant to lock it in as settled law. Arizona Republican Jon Kyl.

SEN. JON KYL: But you have declined to announce your constitutional view of Roe today despite repeated attempts by some of my colleagues to get you to do it in these hearings.

Implied in your answer is the point that to do that here would commit you to a particular result, something you cannot ethically do. Are there cases regarding abortion that you believe may come before the United States Supreme Court?

JUDGE SAMUEL ALITO: There certainly are cases that may come before the Supreme Court. There’s a case involving abortion before the court this term, and they come up with some regularity. Many of them involve the application of Roe. Most of them involve the application of Roe or the application of other precedents that build on Roe.

But it is entirely possible that a case involving Roe itself could come up at some point in the future.

KWAME HOLMAN: Still California Democrat Dianne Feinstein, the lone woman on the committee, continued to press Judge Alito on the abortion issue.

SEN. DIANNE FEINSTEIN: You were willing to give your view on one man, one vote. And yet there are four cases pending in the court right now on one man, one vote. If you’re willing to say that you believe “one man one vote” is well settled and you agree with it, I have a hard time understanding how you separate out Roe.

I understand why. If you say one thing, you upset my friends and colleagues on that side. And if you say the other, you upset those of us on this side. But the people are entitled to know.

JUDGE SAMUEL ALITO: I don’t think it’s appropriate for me to speak about issues that could realistically come up.

And my view of Brown versus Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be segregated racial facilities that are facilities that are segregated on the basis of race.

And that’s where I’ve tried to draw the line. If an issue involves something that is in litigation, then I think it’s not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process.

KWAME HOLMAN: And the questioning Judge Alito continued into the evening.