Published January 12, 2006
Senate Judiciary Committee Republicans on Thursday charged their Democratic colleagues with trying to smear Samuel Alito's reputation and character because they haven't been able to find anything legally wrong with confirming him to the Supreme Court.
Democrats argue that their questions are appropriate and they should delve into all aspects of a nominee for the highest court of the land, including the reasoning behind some of the his actions.
"I know the judge probably thinks he's doing nothing here but being on the hot seat but we're talking about a lifetime appointment," the committee's ranking Democrat, Sen. Patrick Leahy of Vermont, said Thursday.
Watch live streaming of the hearing on FOXNews.com beginning at 9 a.m. EST Friday.
But Sen. John Cornyn, R-Texas, said a lot of "wild" and "unsubstantiated" claims have been made about Alito's character during the week's confirmation hearing.
"We see same old repeated questions and attacks. I think it's the last dying gasp of an attempt to defeat this nominee," he said. Cornyn and Sen. Orrin Hatch, R-Utah, argued that if an entire panel of independent judges raved about Alito's capacity to adjudicate, senators should accept those endorsements.
"I don't think that you can have a better recommendation than the people that you worked with and the people that you spend the greatest amount of time with and the people who see you under stress, who make evaluations," added Sen. Tom Coburn, R-Okla.
"And the greatest tragedy, I think, of this hearing is the allegations that have been made that aren't substantiated based on fact, but are substantiated on the basis of the fact that you want to try to destroy somebody's character and undermine their character to make them look a certain way in which they're not."
Sen. Jeff Sessions, R-Ala., noted that the American Bar Association has interviewed more than 300 of Alito's colleagues, who both support and oppose the nomination.
"They rate you the highest possible rating. They don't see you as an extremist, out of the mainstream or otherwise," said the Alabama Republican.
Judiciary Committee Chairman Arlen Specter, R-Pa., excused Alito early afternoon Thursday, wrapping up two-and-a-half days of questions for the Supreme Court nominee about everything from abortion and presidential powers to his association to a controversial Princeton alumni group and a failure to recuse himself on one case.
Of the more than 700 questions asked of the nominee during the hearing, 120 related to presidential power and 105 were about abortion rights. Other big topics were judicial philosophy with 86 questions, ethics and the commerce class, of which 64 questions were asked of each. Forty-nine questions related to Alito's membership in the Concerned Alumni of Princeton, a now defunct group whose founder wrote articles seen as elitist and racist. Alito answered 26 questions relating to race issues.
So far, Alito appears to have said nothing striking enough to drive opinion against him, forcing lawmakers to re-evaluate their positions.
As of Thursday, the committee was to meet next Tuesday to begin debating Alito's nomination. Specter wants a committee vote then, but Democrats are expected to delay it for a week.
Senate Democratic Leader Harry Reid of Nevada is "urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday," said spokesman Jim Manley.
Democrats Still Worried
After committee members went into the routine, closed session to review the FBI file of the nominee, a panel of seven judges who have worked with Alito testified that he is a man of great intellect and respect for the law, and he is a careful jurist who does not let his personal views taint his rulings. Had they not seen those qualities in him, they said they would not have agreed to testify.
The American Bar Association has found that Alito has the "proper judicial conduct and evenhanded application in seeking to do what is fundamentally fair," said Stephen Tober, chairman of the ABA's Standing Committee on the Federal Judiciary. "His integrity, his professional competence and judicial temperament is indeed found to be of the highest standard."
Judge Edward Becker, who sits on the U.S. Court of Appeals in Philadelphia and has sat with Alito on over 1,000 cases, said he has never seen Alito's personal views reflected in his decisions.
Judge Anthony Scirica of the Third Circuit Court of Appeals in Philadelphia, acknowledged he has not always agreed with Alito's decisions but said he has never seen signs of a predetermined outcome or view in Alito.
"In 15 years on the court of appeal, Judge Alito has more than earned his keep. He is a thoughtful, careful, principled judge that is guided by a deep and abiding respect for the law," Scirica said.
Former 3rd Circuit Court of Appeals Judge Timothy Lewis, who said he is openly pro-choice and is a civil rights advocate, added that Alito possesses the "most important qualities for anyone who puts on a robe.
"We have different views and different approaches but never would I suggest, would it seem to me that he ever held any hostility to civil rights," Lewis said.
Leahy and Sen. Dick Durbin, D-Ill., declined to ask questions of the "unprecedented" panel of sitting judges. Sen. Russ Feingold, D-Wis., said earlier this week that ethical problems arise from having these witnesses testify since their cases may someday come before Alito in the Supreme Court.
"If Judge Alito becomes a member of the Supreme Court, he'll have to rule on appeals from their decisions so I think rather than to create a difficult situation for them or Judge Alito if he is confirmed, I think I will not avail myself of the chance to ask questions of this unprecedented panel," Leahy said.
Specter ended the panel by saying the judges' input has been of great importance to the confirmation process. "I know of no situation where witnesses have had more to say that is weighty," he said.
Cornyn submitted for the record a list of sitting judges have testified during the confirmation hearings.
"I regret, your honors, you somehow got sucked into the contentiousness and unfairness that occurs sometimes … these hearings have become, in the process, an adversarial process," he added.
On Air Force One Thursday afternoon headed to Florida, President Bush called Alito to congratulate him for performing well in the hearings and to reiterate his appreciation for Alito serving on the nation's highest court. He said Alito "showed great class" and that he "was proud of the way" Alito handled himself during the four days of the hearing.
Earlier, Democratic Sens. Edward Kennedy of Massachusetts and Charles Schumer of New York indicated that they did not hear enough from Alito this week to convince them he should be confirmed. Leahy said he continues to be "worried" that Alito would protect all Americans' fundamental rights if confirmed.
"We started these hearings seeking answers. We've come with even more questions about Judge Alito's commitment to the fairness and equality for all," Kennedy said. "We're not expecting judges to produce particular results in their decisions, but we do expect fairness for understanding the real-world impact of their decisions. Frankly, it would be more comforting if Judge Alito gave individuals the same benefit of the doubt in his courtroom that he's asking from this committee on Vanguard, CAP, the unitary executive and women's privacy."
"I am very troubled, not so much about your personal history," Schumer added, but that the judge's record "contains evidence that does not protect the women's right to choose" and defers too much to an increasingly powerful executive branch.
Leahy said in a stakeout during a committee break: "On almost no issue did Judge Alito distance himself from past opinions ... I think that hearings have presented an opportunity for Judge Alito to meet a burden of proof but he has shied away from that. ... I remain disappointed."
What may add fuel to that Democratic argument that Alito defers too much to the executive branch is the testimony of Goodwin Liu, an assistant law professor at the University of California. He said he studied Alito opinions on which government wields great power on issues such as immigration and Fourth Amendment cases.
Alito sided with the government in 48 out of 52 cases in this arena, Liu said, and agreed with the government over 90 percent of the time in contested cases.
Lessons of Terri Schiavo
Leahy cited the case of Terri Schiavo, the severely brain-damaged Florida woman who was at the center of a fierce fight last year between her husband and family over whether she should live or die. That fight involved the courts, Congress and even President Bush.
Leahy asked: If a person has a living will, could he designate someone to decide whether to use extraordinary measures to keep him alive?
"Yes, that's an extension of the traditional right that I was talking about that existed under common law, and it's been developed by state legislatures and in some instances state courts to deal with the living will situation," Alito said.
Terri Schiavo had no formal living will, however; her husband and some friends claimed she told them in passing that she would not want to be kept artificially alive. But her family did not accept that.
Leahy and Specter also said they wanted to make sure Alito didn't think Congress could take away jurisdiction over the federal courts on First Amendment issues, which were the underpinning of the Schiavo case.
The nominee's involvement in the controversial Concerned Alumni of Princeton group has been a source of much contention. CAP is a conservative group formed in 1972 to, in part, challenge Princeton University's decision to admit women and minorities and protest the school's treatment of the ROTC program.
Alito has claimed he doesn't remember being active in the group yet Democrats want to know why he put it on his 1985 job application for a position in the Reagan administration. Alito has said he "deplores" the articles in CAP's magazine, Prospect, that exude racist or elitist sentiment.
Specter opened the Thursday session by announcing that an examination of four boxes of hundreds of documents at the Library of Congress from CAP founder William Rusher found no mention of Alito. According to Rusher, Alito didn't attend CAP meetings nor was he heavily involved — if at all involved — in the organization.
"The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Sam Alito's name is nowhere to be found in any of them," Specter said.
Beating a 'Dead Horse?'
Alito has said his participation in the 2002 Vanguard case was an oversight but both he and the ABA have said he didn't do anything wrong nor did he gain anything from his participation. Alito owns six-figures worth in shares in the mutual funds company. Whereas Alito told the committee in 1990 that he would recuse himself if any Vanguard cases came up, he didn't do it until after he ruled on the case 12 years later.
Kennedy on Thursday referred to Republicans who find it "shocking" that Democrats would continue questioning Alito on this, but he said, "the real shock is Judge Alito failed to take his sworn promise to this committee more seriously."
"I am one of those judges who takes recusals very, very seriously," Alito said. "I have not been giving conflicting answers but I have been asked different questions."
"I really think bringing up the Vanguard or Princeton matter really goes beyond the pale at this point," Hatch shot back, adding that Alito did more than he needed to to later rectify the situation. "Certainly no law said you had to recuse yourself from that case. ... My gosh, how many times do we have to beat that dead horse?"
Becker said his wife owns Vanguard shares, as well, but is not considered an "owner" and he doesn't recuse himself from Vanguard cases.
John Payton, the federal circuit representative of the ABA's Special Committee on the Federal Judiciary, said that Alito has recused himself from more than 1,000 cases and that his organization accepts Alito's explanation that it was an unintentional slip-up.
"In the end, he did acknowledge that it was his responsibility, that a mistake and error had been made, that mistake should have been caught and he should not have heard those cases," Payton said. "We accepted his explanation that he simply made a mistake. … We think that did not reflect in any significant degree on his integrity."
Alito: 'I Am My Own Person'
Sen. Herbert Kohl, D-Wis., wanted to know if Alito will emulate retiring Associate Justice Sandra Day O'Connor, who was often a swing vote on an otherwise divided court.
"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 other courts should carry out. That is a central feature of the best traditions of our judicial system," Alito responded by saying.
But no judge should ever try to duplicate someone they are trying to replace, Alito added.
"We all have to proceed in accordance with our own abilities and our own outlook. We all have to be who we are but I think we can emulate the great jurists of the past … "I'd be the same sort of justice on the Supreme Court as I've been a judge on the court of appeals. I am my own person."
Alito also said the courts should not sway according to public opinion.
"I think the courts are structured the way they are so they're cases are not decided by public opinion," Alito said. If that were meant to be the case, the founders would have made judges federal officials like they are in many states. "They gave them lifetime tenure because they thought there was a critical difference between deciding cases under the constitution and the laws and responding to public opinion."
Alito has consistently said that precedent would be the first thing to take into account when considering a case.
On other issues, Alito said:
—The Constitution prevents the conviction and death sentence of the innocent and if DNA evidence or other information surfaces at the 11th hour to cast doubt on one's conviction, the case should be reviewed.
—The "Rule of Four" is a "sensible procedure." It takes five Supreme Court justices to agree to hear a last-minute death penalty case; the rule says that if only four agree, a fifth justice will join in out of courtesy to bring about a stay of execution.
"I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated," Alito said.
—In the eminent domain case of Kelo v. City of New London, Ct., the Supreme Court said private property can be taken by government for public use, whether it be a park or a shopping mall. Alito said precedent would be his first consideration if he ever had to look at the case, but added that he would take other merits of the case into consideration.
"I know that it touches some very sensitive nerves. When someone's home is being taken away using the power of eminent domain, that is a blow to a lot of people, even if they're going to get compensated at fair-market value for their home. The home often means more to people than dollars and cents," Alito said.