KWAME HOLMAN: Senate Judiciary Chairman Arlen Specter knew this first day of questioning Samuel Alito could be an exhausting one for the nominee.
SEN. ARLEN SPECTER: There are eighteen of us and only one of you...
KWAME HOLMAN: During 30-minute rounds committee members repeatedly pressed Alito to reveal his legal thinking on issues such as abortion and presidential powers and to clarify several personal matters. Chairman Arlen Specter, a supporter of abortion rights, got right to that with his first question.
SEN. ARLEN SPECTER: Starting with a woman's right to choose, judge Alito, do you accept the legal principles articulated in Griswold versus Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
JUDGE SAMUEL ALITO: Senator, I do agree that the Constitution protects a right to privacy and it protects a right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons, and the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
KWAME HOLMAN: Specter then brought up the often cited letter Alito wrote in 1985 in applying for a job in the Reagan White House stating the Constitution does not protect a right to an abortion.
SEN. ARLEN SPECTER: 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, then I would have to -- I would approach the question with an open mind. And I would listen to --
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.
KWAME HOLMAN: Specter noted that the 1973 Roe versus Wade decision affirming a woman's right to an abortion has been reaffirmed 38 times and asked if it fell in the category of stare decisis, the principle stating that precedent decisions are to be followed by the courts.
JUDGE SAMUEL ALITO: When a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis, and when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.
Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not but it is a judgment that has to be based taking into account all of the factors that are relevant and that are set out in the Supreme Court's cases.
KWAME HOLMAN: Toward the end of his round of questioning, Specter asked Alito to explain his dissent in the 1991 case of Casey versus Planned Parenthood in which the Third Circuit Court of Appeals struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.
JUDGE SAMUEL ALITO: I did it because that's what I thought the law required.
KWAME HOLMAN: But Wisconsin Democrat Herb Kohl pressed Alito on Casey.
SEN. HERB KOHL: Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman, your reason in part that the number of married women who would receive an abortion without notifying their husbands would be rather small. In other words only some women who would be affected.
The majority in that case disagreed with you and stated "whether the adversely affected group is but a small fraction of the universe a pregnant woman desiring an abortion seems to us irrelevant."
This disagreement begs the question: Is the constitutional right any less of a right if only one person suffers a violation or should greater value be placed on that right if a larger number of people have that right violated?
JUDGE SAMUEL ALITO: Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it. But what she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes but they're pretty close.
And she did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. Those were the -- that was the information that was available in her opinions to try to understand what this test meant.
And so then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? And it was a difficult task. The plaintiffs argued that all of the provisions constituted an undue burden. And when the case went to the Supreme Court, Justice Stevens agreed with that. He said they all were an undue burden: Things like a 24-hour waiting period, that was an undue burden because it would inhibit some women from having an abortion, an informed consent provision. Justice Stevens thought and the plaintiffs argued that would be an undue burden.
The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden. The 24-hour waiting period, the informed consent provision, and all of them -- we disagreed on only one. And that was the provision regarding spousal notification with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her.
And it was -- I wrestled with that issue but they based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind.
Now that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.
KWAME HOLMAN: The issue that most concerned Patrick Leahy, the top Democrat on the committee, was executive power. He raised questions about a 2002 Bush administration memo that outlined how to avoid violating international laws for interrogating prisoners by setting a high threshold for the definition of torture.
SEN. PATRICK LEAHY: What is your view of the legal contention -- 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.
KWAME HOLMAN: Leahy asked Alito about a memo he himself wrote as a Justice Department lawyer in 1984 in which Alito said the attorney general should be immune from lawsuits for ordering wire taps without court permission. He wrote, "I do not question that the attorney general should have this immunity."
SEN. PATRICK LEAHY: Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wiretaps?
JUDGE SAMUEL ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have --
SEN. PATRICK LEAHY: But you did believe that.
JUDGE SAMUEL ALITO: Actually, I recommended that that argument not be made. It was made. And I think it's important to understand the context of that. First of all --
SEN. PATRICK LEAHY: You did say in the memo "I do not question that the attorney general should have this immunity."
JUDGE SAMUEL ALITO: That's correct. And the background of that, if I could just explain --
SEN. PATRICK LEAHY: Sure.
JUDGE SAMUEL ALITO: -- very briefly, is that, there we were not just representing the government. We were representing former Attorney General Mitchell in his capacity. He was being sued for damages. And we were in a sense acting as his private attorney.
KWAME HOLMAN: Staying on the subject of executive power Massachusetts Democrat Edward Kennedy returned to Alito's Reagan era writings.
SEN. EDWARD KENNEDY: In 1985 in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words. Am I right?
JUDGE SAMUEL ALITO: They are, and that's a very inapt phrase.
SEN. EDWARD KENNEDY: Excuse me?
JUDGE SAMUEL ALITO: It's an inapt phrase. And I certainly didn't mean that literally at the time. And I wouldn't say that today. The branches of government are equal. They have different responsibilities but they are all equal. And no branch is supreme to the other branches.
SEN. EDWARD KENNEDY: So you've changed your mind?
JUDGE SAMUEL ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.
I think what I was getting at is the fact that our Constitution gives the judiciary a particular role, and there are instances in which it can override the judgments that are made by Congress and by the executive.
KWAME HOLMAN: Kennedy pressed Alito further, bringing up the unitary executive theory, an expansive view of presidential powers that Alito has expressed support for since the 1980s.
Kennedy cited Alito's remarks in a speech to the Federalist Society in 2000, when he said the theory best captures the meaning of the Constitution's text and structure and argued the president has not just some executive powers but the executive power-- the whole thing.
SEN. EDWARD KENNEDY: Why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?
JUDGE SAMUEL ALITO: The issue of, to my mind, the concept of the unitary executive doesn't have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power, and the theory is the Constitution says the executive power is conferred on the president.
Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed -- not some inherent power but a power that is explicitly set out in the Constitution.
KWAME HOLMAN: Reacting to Democratic persistence on the presidential powers issue, Iowa Republican Chuck Grassley gave Alito several chances to clarify his position.
SEN. CHUCK GRASSLEY: So, Judge Alito, do you believe that the executive branch should have unchecked authority?
JUDGE SAMUEL ALITO: Absolutely not, Senator.
SEN. CHUCK GRASSLEY: And do you understand that where constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights?
JUDGE SAMUEL ALITO: I certainly do, Senator. Each branch has very important individual responsibilities. And they should all perform their responsibilities.
SEN. CHUCK GRASSLEY: And so clarify for me: Do you believe that the President of the United States is above the law and the Constitution?
JUDGE SAMUEL ALITO: Nobody in this country is above the law. And that includes the president.
KWAME HOLMAN: Members of both parties questioned Alito about his pledge in 1990 to recuse himself from all cases involving the Vanguard Mutual Fund Company in which he held investments but in 2002 Alito ruled in favor of Vanguard in a lawsuit.
Utah Republican Orrin Hatch.
SEN. ORRIN HATCH: The reason I want to go into this is to kind of get rid of this problem that I think is as stony as anything I've ever seen in my time around here.
Like I say, this case has been written about or reported on for weeks in bits and pieces so that getting a clear picture of the facts is indeed a challenge, let alone getting a clear picture of the ethical issues involved as well. And I know you've not had a chance to respond to any of it publicly so I want to give you that chance now.
JUDGE SAMUEL ALITO: This is a case that came up in 2002, 12 years after I took the bench, and I acknowledge that if I had to do it over again, there are things that I would have done differently.
And it's not because I violated any ethical standard but it's because when this case first came before me, I did not focus on the issue of recusal and apply my own personal standard, which is to go beyond what the code of conduct for judges requires.
KWAME HOLMAN: Democrat Kennedy also weighed in on the Vanguard issue but was more critical than his Utah colleague.
SEN. EDWARD KENNEDY: If you'd like to be refreshed about the number of times the name Vanguard appears on the brief and the number of times Vanguard appears on the opinion which I believe you offer --
JUDGE SAMUEL ALITO: Senator, the name Vanguard certainly appears on the briefs.
SEN. EDWARD KENNEDY: Your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promise to this committee that you would recuse yourself?
JUDGE SAMUEL ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.
And one of the reasons why judges tend to invest in mutual funds is because they generally don't present recusal problems and pro se cases in particular don't present recusal problems and so no light went off. That's all I can say. I didn't focus on the issue of recusal.
SEN. EDWARD KENNEDY: Well, this is important when the lights do go on and when the lights do go off.
KWAME HOLMAN: And then there was the issue of Alito's membership in a college organization called Concerned Alumni of Princeton. The group also called CAP had been criticized for opposing co-education and affirmative action. But Alito's 1985 job application touted his membership.
SEN. PATRICK LEAHY: Why in heaven's name were you proud of being part of CAP?
JUDGE SAMUEL ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.
SEN. PATRICK LEAHY: CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton.
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.
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. That certainly was not any part of my thinking in whatever I did in relation to this group.
KWAME HOLMAN: Sen. Hatch offered Alito an opportunity to explain further his association with the Princeton group.
SEN. ORRIN HATCH: So is it fair to say that 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: 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: I felt that that would be your answer. I really did.
KWAME HOLMAN: Some questions by senators this afternoon explored some newly tested areas of the law. Ohio Republican Mike DeWine.
SEN. MIKE DeWINE: Judge Alito, let me ask you about Congress's power to protect children from the proliferation of pornography on the Internet. This is an important issue. I raised it at the last hearing. It's one that I think is very troubling.
Congress has tried several times to protect our children from being exposed to pornography on the Internet.
In 1996, we passed the Communications Decency Act but the Supreme Court struck it down citing the First Amendment. A few years later we passed the Child Online Protection Act. Again the court struck it down.
What bothers me about these cases is they fail to account for something that to me seems relatively simple.
Let me ask you, Judge, what is your thinking on this subject. Is pornography lesser value speech as Justice Stevens has seemed to suggest and are there or should there be different levels of speech under the First Amendment?
JUDGE SAMUEL ALITO: I think that the problem of protecting children from pornography on the Internet illustrates the fact that although the task of the judiciary is to apply principles that are in the Constitution and not make up its own principles, to apply those to different factual situations when the world changes and in particular when, in the First Amendment context, when means of communication changes.
The job of applying the principles that have been worked out -- and I think in this area worked out with a great deal of effort over a period of time in the pre-Internet world -- applying those to the world of the Internet is a really difficult problem.
And I understand that Congress has been struggling with it, and I know the judiciary has been struggling with it. I can't say much more about the question than that. It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors.
KWAME HOLMAN: And Judge Alito could give only general answers to a series of questions posed by Wisconsin Democrat Russ Feingold concerning the president's actions in the war against terror.
SEN. RUSS FEINGOLD: Does the president in your opinion have the authority acting as commander in chief to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?
JUDGE SAMUEL ALITO: That's the issue that's been framed by the developments that have been in the news over the past few weeks. And, as I understand the situation, it can involve statutory questions, the interpretation of FISA, and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise as authorized by law and the meaning of the authorization for the use of military force and then constitutional questions.
And those would be -- those are issues, as I said this morning, that may well result in litigation. They could come before me on the court of appeals for the Third Circuit. They certainly could come before the Supreme Court. And before -- those are weighty issues involving two of the most important considerations that can arise in constitutional law: The protection of the country and the protection of people's fundamental rights. And I would have to know the specifics and the arguments that were made.
SEN. RUSS FEINGOLD: As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions; some have called them moot courts or murder boards.
Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?
JUDGE SAMUEL ALITO: I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up. It may have been.
SEN. RUSS FEINGOLD: Who was present at these practice sessions where these questions were discussed and who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?
JUDGE SAMUEL ALITO: Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question.
SEN. RUSS FEINGOLD: I just asked --
JUDGE SAMUEL ALITO: Those are --
SEN. RUSS FEINGOLD: Were there no comments?
JUDGE SAMUEL ALITO: The comments that I've received --
SEN. RUSS FEINGOLD: No advice?
SEN. ARLEN SPECTER: Let him answer the question, Sen. Feingold.
JUDGE SAMUEL ALITO: The advice that I have received has gone generally to familiarizing me with the format of this hearing, which is very different from the format of legal proceedings in which I have participated either as a judge or previously when I was arguing a legal issue as a lawyer, but nobody has told me what to say. Everything that I've said is an expression of my own ideas.
KWAME HOLMAN: Despite a full day of questioning Judge Alito, senators were just getting started. They'll return tomorrow morning for round two.