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The Alito Hearings, Day Four

January 12, 2006 at 12:00 AM EDT
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KWAME HOLMAN: Entering the fourth day of his confirmation hearing, Samuel Alito already had fielded close to 600 questions from members of the Senate Judiciary Committee and probably was relieved to hear Chairman Arlen Specter say –

SEN. ARLEN SPECTER: I see light at the end of the tunnel quite frankly.

KWAME HOLMAN: But Specter first dispensed with some housekeeping.

Democrat Edward Kennedy yesterday had demanded the inspection of hundreds of documents regarding Concerned Alumni of Princeton or CAP. The judge had touted his membership in the controversial group on a Reagan era job application but Alito told senators he did not recall any involvement.

This morning Specter said an overnight examination of the records found no mention of Alito.

SEN. ARLEN SPECTER: The files contained 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.

KWAME HOLMAN: Once Specter reopened the questioning many Republicans took a pass. Democrats, however, came back to several issues they previously had pressed Alito on such as the limits of executive power.

SEN. RUSS FEINGOLD: The question is whether presidents can claim inherent powers under the Constitution that allow them certain cases to violate a criminal law.

KWAME HOLMAN: And there were more references to Sandra Day O’Connor that Justice Alito would replace.

SEN. HERB KOHL: Do you see yourself as a justice, if you are confirmed, who in many ways will fill the same role as Justice O’Connor has filled?

JUDGE SAMUEL ALITO: I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication which is what I think the Supreme Court and the other federal courts should carry out.

KWAME HOLMAN: Still, Democrats one after another reiterated how unhappy they were with Alito’s overall performance this week. New York’s Chuck Schumer said he would have trouble voting for confirmation.

SEN. CHARLES SCHUMER: On the first day of hearings I said that while you give the appearance of being a meticulous legal navigator, in the end, you almost always choose the rightward course.

I’m sorry to say that I haven’t heard anything this week very substantive to dissuade me from that opinion.

KWAME HOLMAN: Republicans such as Utah’s Orrin Hatch took a different view.

SEN. ORRIN HATCH: The fact of the matter is you have been straightforward here. You’ve honestly answered the questions. You’ve answered more questions than almost any Supreme Court nominee in my 29 years in the Senate. And I don’t think you’ve been fairly treated.

KWAME HOLMAN: As questioning of Alito drew to a close, several committee republicans predicted the judge would be confirmed.

JIM LEHRER: Judge Alito finished his testimony at midday; he was followed by professional and character witnesses.

And again to Kwame Holman.

KWAME HOLMAN: This afternoon the committee began by hearing from three representatives the American Bar Association, who explained why they gave Judge Alito the ABA’s highest rating of “well qualified.”

STEPHEN TOBER: We are ultimately persuaded that Judge Alito has, throughout his 15 years on the federal bench, established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair.

His integrity, his professional competence and his judicial temperament are, indeed, found to be of the highest standard. The goal of the ABA standing committee has always been and remains in concert with the goal of your committee: To assure a qualified and independent judiciary for the American people.

KWAME HOLMAN: Democrat Chuck Schumer however asked whether the ABA’s examination/rating revealed Judge Alito’s political leanings.

SEN. CHARLES SCHUMER: And so if somebody were very far right or very far left as long as they had integrity, professional competence, or judicial temperament, you would give them — that’s what you would rate them on?

STEPHEN TOBER: Senator, we don’t do politics. What we do is integrity, professional competence and judicial temperament, they are objective standards and that’s what we bring to this committee.

SEN. CHARLES SCHUMER: And if one standard was — however one defined it, if somebody was out of the mainstream, again, your rating would not give us any inclination whether that was part of it?

STEPHEN TOBER: If the suggestion was that they were out of the mainstream politically, that’s correct. If they’re out of the mainstream because of their –

SEN. CHARLES SCHUMER: — in terms their philosophy -

STEPHEN TOBER: — judicial temperament, we might have a different thought.

KWAME HOLMAN: The second panel consisted of judges, all of whom served with Judge Alito on the Third Circuit Court of Appeals.

The committee’s top Democrat, Patrick Leahy objected to hearing from current judges whose cases might end up before Alito on the Supreme Court and declined to question them.

JUDGE TIMOTHY LEWIS (Ret.): I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference when he exhibited anything remotely resembling an ideological bent; that does not mean that I agreed with him, but he did not come to conference or come to any decision that he’s made — he made during the time that I worked with him based on what I perceived to be an ideological bent or a result-oriented demeanor or approach. He was intellectually honest and I would say rigorously so, even with respect to those areas that he and I did not agree.

Second, I have no hesitation in commending his commitment to principle, both in how he went about his work on the Third Circuit, how he came to his decisions. It was through a very difficult process we all — we all would put ourselves through, but in Sam’s case, I think that I can say there’s no one worked harder at coming to what he thought was the right decision than Judge Alito.

In the end, I’m here as a matter of principle and as a matter of my own commitment to justice, fairness and my sense that Sam Alito is uniformly qualified in all important respects to serve as a justice on the United States Supreme Court.

KWAME HOLMAN: A third panel included witnesses called by committee Republicans and Democrats. Michael Gerhardt, a law professor at the University of North Carolina, said senators had every right to turn down a Supreme Court nominee based on his ideology.

MICHAEL GERHARDT: You know better than I the important function of this committee as a gatekeeper. You are in the position, at least the initial position of being able to sort of filter out the views and personnel you don’t want to see reflected on the Supreme Court, or you’re in the position of determining what views of personnel you do want to have on the Supreme Court.

The Supreme Court is largely a function of choices made by the president and the Senate. The Senate and the president help to make the Supreme Court what it is. And I think that that dual partnership is something we ought to keep in mind because in making determinations and judgments about a Supreme Court nomination, the Senate has an extremely important role to play.

And the more vigorously you perform that role, I think the more credit it does to you and the more we can be assured that whatever choice gets made about the people that serve on the court, that we can have confidence that they can be there, that they can trust the judging — that they are worthy of the trust you have given them to exercise the awesome power of judicial review over the constitutionality of not just your actions but the actions of other branches.

KWAME HOLMAN: The panels of witnesses continued into the evening.