News Intelligence Analysis
From the
Washington Post
U.S. Senate Judiciary Committee
Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Part III of III
CQ Transcriptions
Thursday, January 12, 2006; 5:25 PM
The transcript picks up with Sen. Feinstein's questions. Return to Part II.
Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
And I'd like to thank you very much for being here. I think the testimony was very interesting. I listened acutely.
And, you know, I think we'd all be very lucky if any one of us had colleagues like you that would come forward and say the things that you all have said.
Let me ask this question. How do you look at the evaluations that have been done, those evaluations that say, "Well, in the cases looked that he has judged," whatever percent it was but let's say it's 70 percent, I'm just making it, in favor of corporations or business, or against the little man? How do you look at that sample and how do you regard that? It's been written about rather extensively.
Anyone that would like to try to answer it.
Judge Becker?
ALDISERT: I would try that.
FEINSTEIN: Oh, all right. Give Judge Becker, because I've known him longer.
BECKER: Senator Feinstein, first of all, you have to keep in mind that -- and I think this is a national -- this statistic applies nationwide. I think somewhere between 80 and 85 percent of cases are affirmed. So a lot of this is going to determine who won in the district court or who won in the agency. So those numbers are skewed by that very fact.
The only other thing I would say is, I haven't analyzed these statistics, but that's nothing I've ever seen. He's voted with me. There was a case not long ago, it was a very thin employment discrimination case which a woman, while she never got to a jury in district court, one of my colleagues wanted to affirm. I was on the fence. And Sam wanted to reverse. I said, "OK, write it up." And we went along.
I've just never seen any evidence that he's for the big guy against the little guy. But I think if you analyze these, I think you'd find most of the statistics come from the fact that the big guy won in the district court and 80 to 85 percent of those case are affirmed, and most of those would have been unanimous.
ALDISERT: I was about to say the same thing, but my good friend Judge Becker, your figure was a little skewed there.
ALDISERT: The percentage of reversals is not 15 percent; it's 8.7 percent...
(LAUGHTER)
... in the statistics of last year of all cases. In criminal cases, through in the figures of 2004, the reversal rate in criminal cases was 5.1 percent.
BECKER: I always defer to the master...
BARRY: And of course it should be added that when we are considering cases on appeal, we are operating on a standard of review. So we are not typically looking at the issues underlying that review.
We're looking at an abusive discretion standard. We're looking at: Were the facts clearly erroneous? So we're not starting from scratch, typically.
FEINSTEIN: Let me ask you this question: The subject of abortion and Roe was raised. And, obviously, if you've listened to the hearings, you've heard the questioning going on, back and forth.
I was very puzzled when I read Chief Justice Roberts' statement before us on Roe and how he answered Senator Specter's questions. And the chief ended up by saying that he felt that Roe was well-settled law. I think he even added to that very well-settled law.
SPECTER: He said settled beyond that.
FEINSTEIN: All right, settled beyond that.
And I asked Judge Alito, and I thought at the very least he was going to agree with Justice Roberts.
FEINSTEIN: And he said, "Well, it all depends upon what settled means."
What do you make of that?
BARRY: I respectfully cannot characterize what Judge Alito meant by that, and I much prefer not to have to try.
FEINSTEIN: That's fine.
Anybody?
(UNKNOWN): I think we're here as fact witnesses more than opinion witnesses, Senator Feinstein, and I really would not answer that question.
FEINSTEIN: Very good, very good.
(UNKNOWN): I couldn't make a judgment on it.
FEINSTEIN: Thank you. Thank you very much.
Thanks, Mr. Chairman.
SPECTER: Senator Hatch?
HATCH: Well, I want to express my gratitude to all of you judges -- you too out there in the West, Judge Garth -- for coming here today and helping this committee.
It was pretty apparent that I got quite emotional when my old friend Judge Aldisert testified -- I really did. I got emotional because I care for you and I watched you for years there and just have a tremendous amount of respect. Read your books -- and you've always sent them to me. And that's meant a lot to me.
But you all mean a lot to me. It's no secret that, with very few exceptions, I love the federal courts. I love the judges. And there are very few exceptions.
There are a few that I think you could name yourselves.
(LAUGHTER)
But by and large -- you know, we pass unconstitutional legislation up here all the time and the president sometimes, too.
(LAUGHTER)
If it hadn't been for the courts, we would probably not have preserved the Constitution.
(LAUGHTER)
So I want to give you all credit for that.
But let me just say this -- by the way, just to correct the record, what Judge, now Chief Justice Roberts -- he and Judge Alito basically said the same thing. They said, well, it's settled as a precedent of the court -- with regard to Roe v. Wade. And that's exactly what he said. Entitled to respect under principles of stare decisis. That's basically what Alito said.
HATCH: And Roberts said, "And it is settled as a precedent of the court, yes."
So Senator Specter asked him some more, and then he said, I think the initial question for the judge confronting an issue in this area -- you don't go straight to the Roe decision. You begin with Casey, which modified the Roe framework and reaffirmed its central holding.
So these are maybe touchy words, but it's important to get it right.
Now, one of the most prominent issues in this hearing has been how Judge Alito views the role of precedent in deciding cases. Too often, I think, the objective seems not so much to get insight into Judge Alito's general views about precedent, but about clues about how he will treat particular precedents.
First, let me make this point about Judge Alito's record regarding circuit precedent. As I understand it, the appeals court can reconsider its own precedents only when all 3rd Circuit judges sit together en banc.
Is that correct?
(UNKNOWN): That is correct.
HATCH: OK. It is my understanding that in his 15 years on the 3rd Circuit, Judge Alito has participated in 38 en banc decisions.
Now, Judge Alito voted to overturn circuit precedent in just four of those cases. Two of those decisions were unanimous, all judges agreed.
Now, that does not look to me like someone who plays fast and loose with precedent.
Let me just ask you, Judge Becker -- and if anybody disagrees with what Judge Becker says I'll be happy to have you respond -- let me ask you a question about Judge Alito's handling of -- and the reason I ask Judge Becker is Judge Becker, as Senator Specter said, is the 101st senator. He came down here and gave (inaudible) time trying to help this asbestos problem, and we all respect him for that.
Let me just say, I know you have participated in more than 1,000 cases -- or decisions rather -- with Judge Alito. All of you, of course, can offer your thoughts as well.
Yesterday during the hearing, one of my Democratic colleagues held up some charts listing quotes from a few case in which Judge Alito's colleagues criticized how he applied circuit precedent. The picture that was painted was that Judge Alito misapplies precedent when it suits him -- suggesting, I suppose, that he might be an activist or careless in this regard on the Supreme Court.
HATCH: Now I certainly agree that the views of his fellow judges are particularly relevant on this point, and having you here is very valuable to all of us for that reason.
Now, asking you all about this here seems more useful than a few selective sentence fragments on a chart.
Realizing, Judge Becker, that judges do not always agree on every single point every single time, how would you characterize Judge Alito's overall view or approach to precedent?
BECKER: Respectful of it. I've never seen what was portrayed where...
(CROSSTALK)
BECKER: Judge Alito might have disagreed with prior precedent, but he followed it unless he felt that it was dicta -- in which case it wouldn't be precedent...
HATCH: Right.
BECKER: ... or the case was distinguishable. But I have never seen him ignore or disregard precedent.
HATCH: Has any of the rest of you seen that?
(UNKNOWN): No.
HATCH: Judge Aldisert?
ALDISERT: Judge Hatch...
HATCH: Senator Hatch, please.
(LAUGHTER)
ALDISERT: I wanted to answer Judge Feinstein (sic) the same way.
In my book "The Judicial Process: Text, Materials and Cases," second edition, 1996, I have an entire chapter on precedent.
And one of those sections is called viability of precedent or when do you depart? And there's a sophisticated body of law -- and I cite cases with Justice Sandra Day O'Connor, Thurgood Marshall and a few others.
And there are also some very important scholarly academic articles on it. And I think that Judge Alito's expression that it depends is a statement that you have to consider all the factors on all the Supreme Court cases that discuss when do we depart from precedent?
ALDISERT: And there's a body of law. And it's in my case book.
HATCH: Thank you so much.
Mr. Chairman, I want to thank all of these great judges for being here. And I want to thank you, Judge Lewis, for taking time to be here, in particular. We just really respect you. I love and respect the 3rd Circuit Court of Appeals.
SPECTER: Thank you, Senator Hatch.
Senator Leahy?
LEAHY: Well, Mr. Chairman, I realize we have some retired and very distinguished retired judges, but some current judges. Insofar as the current judges, their cases are appealed to the Supreme Court. If Judge Alito becomes a member of the Supreme Court, he'll have to rule on appeals from their decisions.
And so I think, rather than create a difficulty for them or for Judge Alito if he is confirmed, I think I will not avail myself of a chance to ask questions of this unprecedented panel.
SPECTER: Thank you very much, Senator Leahy.
Senator Kyl?
KYL: Thank you, Mr. Chairman.
I just had a question -- and I think, Judge Lewis, it was a comment that you made that raised this question in my mind.
There was a point made about the circulation of opinions among all of the judges on the court.
When a three-judge panel has tentatively made a decision in a case and circulates an opinion, is that opinion circulated among all the judges? And then do all of the judges have an opportunity to comment on that in some way?
(UNKNOWN): Yes.
KYL: Any of you -- Judge Lewis?
LEWIS: Yes, that is correct. And that is why the opinion is the opinion of the entire court, in the end, when it is released.
I should let Chief Judge Scirica address the current practice. I've been off the court for some time.
SCIRICA: Thank you.
LEWIS: But I assume it's done the same way. Is it not, sir?
KYL: This is interesting to me because I practiced before the 9th Circuit Court of Appeals and that same opportunity, I think, is not as available.
LEWIS: Yes.
ALDISERT: That, Senator -- that was invented by Judge Biggs in the late 1930s.
KYL: In the 3rd Circuit, sir?
ALDISERT: Yes.
SCIRICA: We circulate all of our precedential opinions to the entire court before they are ever published; that is, before the litigants or before the public sees them.
We do not do that with a category that we call not precedential opinions. They are handled by the panel themselves unless there is a dissent, in which case we circulate them as well.
Now, of course, when a litigant loses a case, that litigant has the opportunity to file a petition for rehearing. And that goes to the entire court, because the litigant usually asks both for panel rehearing before the original panel and also before the entire court.
And so for precedential opinions it gets sent to the court on two different occasion -- one before it is ever published and one after it is published.
KYL: I'm curious, what happens if there's a strong opinion by one of the judges on the court who did not sit on the original three- judge panel?
SCIRICA: Well, that's...
KYL: Different from the conclusion.
SCIRICA: Any judge on our court, on the initial circulation or even on the circulation for the petition for a rehearing may write to the entire court or may write to the opinion writer or may write to the panel expressing his or her disagreement.
It's one of the wonderful things about an appellate court, because we view the panel decisions that are precedential as opinions of the court, more than just the opinion of the panel or the opinion of the author of the case.
And there's often this wonderful dialogue that goes back and forth between the opinion writer or the panel and the judge who may have concerns about what is being decided. And it can sometimes can go on for days, sometimes the panel will, or the author, will say, "I want to think about this. I want to have the opportunity to revisit this issue."
SCIRICA: And sometimes it takes weeks before the panel comes back with a new opinion, often a revised opinion. This is part of the collegial aspect of the court.
KYL: This should be very reassuring to the litigants...
BARRY: And sometimes we'll go en banc before the opinion ever issues.
(UNKNOWN): Often the panel will change its mind, say, "We got it wrong."
KYL: It's very interesting, and I appreciated the opportunity to at least mention that. And I, too, want to thank all of you for your willingness to be here, to take time out, but most especially to speak on behalf of a colleague who I know you all admire a great deal. And I thank you for that very much.
SPECTER: Thank you, Senator Kyl.
Senator Durbin?
DURBIN: Mr. Chairman, I thank the members of the panel for their public service. I have no questions. And I would like to associate myself with the remarks of Senator Leahy.
SPECTER: Thank you very much, Senator Durbin.
Senator DeWine?
DEWINE: I have no questions, Mr. Chairman.
SPECTER: Senator Sessions?
SESSIONS: I would just like to ask the panel, I see one of the articles that stirred up some of this discussion about not being evenhanded judge actually only considered 221 cases in the judge's first six years on the bench.
I'm sure you as professionals who have been there, your judgment is better about his style and fairness than some abstract numbers would be. But I will just ask you, Judge Scirica, maybe, and if others would like to comment please do so, on civil rights cases that I've seen here, the civil rights cases Judge Alito wrote, the panel agreed with him 90 percent of the time and his opinions were unanimous 90 percent of the time. That doesn't sound like an extreme position to me.
What would you say about that?
SCIRICA: Well, I would agree. That would comport with my recollection of these cases.
SESSIONS: And I notice the respect Judge Lewis had for Judge Alito. It said, when he sat on panels where both the other judges were Democratic appointees, the decision was unanimous in 100 percent of the cases, or whatever those statistics show.
And then, with regard to the immigration cases, it says that his appeals, the average judge in the country, in the average cases, the immigrant wins asylum claims in the court of appeals in slightly over 11 percent of the time. But in Judge Alito's record he ruled for the immigrant seeking asylum in fully 18 percent of the cases.
Do those numbers, Judge Scirica, strike you as sort of what the -- well, the 11 percent, is that about what you would expect?
SCIRICA: Yes, sir.
SESSIONS: And in the cases that he wrote opinions on, the average court of appeals judge ruled for the immigrants 8 percent; he ruled for the immigrants 19 percent.
Well, I don't know that those numbers mean a whole lot, but I do think they tend to rebut some of the numbers that we've seen floating around, because your opinion of him does not reflect a person who shows bias.
In the Rybar case, Judge Gibbons, you're no longer on the bench, you could be honest with us right here in Congress. If the Congress had put in an interstate commerce nexus in the statute they passed about machine guns, like they did in ITSMV, Interstate Transportation of Stolen Motor Vehicle, or interstate transportation of stolen property, kidnapping or theft from interstate shipment, it would have been upheld, wouldn't it?
GIBBONS: That's what he said in his dissenting opinion.
SESSIONS: So the truth is that Congress missed the boat.
GIBBONS: Yes.
(LAUGHTER)
(CROSSTALK)
SESSIONS: And we'd be fix it soon as we passed the law correctly, I would submit.
SESSIONS: And I would just ask this, Judge Aldisert. I'm serious about this question, but I think Judge Roberts agreed with me that if an individual within the heart of Pennsylvania or New Jersey picks up a rock and kills another person, that is not a federal crime. Is that correct? Unless there's something added, without an interstate nexus of some kind, or that would be prosecuted solely by the state court.
(UNKNOWN): Unless he stole the rock out of an interstate shipment.
(LAUGHTER)
LEWIS: It could be a violation of federal civil rights, also.
(UNKNOWN): Or if the person he assaulted was a federal official.
SESSIONS: Right.
(UNKNOWN): A president or a vice president or a senator.
(LAUGHTER)
SESSIONS: Well, Judge Lewis said it could be a civil rights violation if he was in a way to deny someone of civil rights or if he was a federal official. But classically, the federal criminal law has been tied to interstate commerce nexus, hasn't it, Judge Aldisert?
(UNKNOWN): Civil rights.
SESSIONS: Judge Lewis?
LEWIS: That's right.
SESSIONS: Thank you.
SPECTER: Thank you, Senator Sessions.
Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
I feel like I need to say "may it please the court."
Thank you all for being here. It's very important, I believe, to have testimony from people that know this nominee.
We've heard a lot of wild and crazy, from my perspective, accusations that have been unsubstantiated, from people who don't know this nominee as well as you do.
I want to just try to eliminate one concern that's been expressed. And I've heard a hint of criticism about these judges appearing as witnesses in this hearing, supposing that perhaps there will be some conflict of interest if your decisions would be appealed to the United States Supreme Court and Justice Alito had to sit on it.
I haven't noticed any lack of a willingness to disagree with him while you were colleagues on the 3rd Circuit. That seems highly unlikely. And for the suggestion that this is somehow unprecedented, to have judges, former and current sitting judges, testify, Mr. Chairman, I have a list of examples where sitting members of the federal judiciary have testified during the confirmation proceedings of another federal judge. And I would ask that that be made a part of the record.
SPECTER: Without objection, it will be made a part of the record.
CORNYN: Canon 4B of the code of conduct for U.S. judges provides, "A judge may appear at a public hearing before a legislative body..."
There's some ellipses there.
"... on matters concerning the law, the legal system and the administration of justice to the extent it would generally be perceived that a judge's judicial experience provides special expertise in the area."
And I regret, your honors, that you somehow get sucked in to the contentiousness and some of the unfairness that occurs sometimes -- the innuendo that sometimes arises when you're a witness in a contested proceeding.
And, as you can tell, these hearings have become -- and the confirmation process -- an adversarial process.
The unfortunate point, as our chairman has noted before, it's not controlled by the rules of evidence. It could be based on speculation, hearsay and rumor. Whereas we know, in a court of law, that wouldn't be admissible.
And our procedures are a lot more flexible and open-ended. And, certainly, there's no standard of review that applies to judges in your distinguished and exalted position as members of the federal judiciary.
Judge Aldisert, I want to say that I guess I'm the only other panel member, member of this committee, who's probably read one of your books. But I'm certainly familiar with your great work and your writings.
And, of course, as has already been noticed, Judge Becker is very familiar to the Judiciary Committee.
And I want to ask both Judge Gibbons, who is no longer on the bench, and Judge Becker -- both of you have talked about the transforming experience of crossing over from being an ordinary lawyer, including a U.S. attorney, and then putting on the black robe, after you have put your hand on the Bible and have taken an oath to uphold the laws and Constitution of the United States, so help me God, and what a different perspective that provides -- a different obligation, different responsibilities.
CORNYN: And I think Judge Trump Barry noticed that transformation in this nominee when he crossed over from being a practicing lawyer to becoming a member of the judiciary.
And, Judge Becker, I wonder if you just might comment -- we just have a couple of seconds here. But this morning, Senator Biden was asking questions about this nominee's views on Roe v. Wade and perhaps is reflected in an application he made for a job in 1985. And it seemed to raise the question of: Well, if that's your view today, wouldn't you just feel free to go in and vote to overrule it?
And it struck me because of the difference in a judge's role from that of an advocate. He was applying for a job as part of the Reagan administration.
But on one hand he was talking about, well, maybe you have the power, but what Judge Alito seemed to talk about most was legitimacy of the judicial making process and the judgments rendered by courts and why that's such an integral part of the role judges play in our system of government.
Would you please respond to that?
BECKER: Well, I agree with Judge Alito and I think, Senator Cornyn, that you have eloquently described the transforming experience.
I know that it is within your life's experience when you took the oath of office to be the justice of the Texas Supreme Court, it just transforms you. You become a different person and your obligation is to the rule of law. And you have no interest in a case -- and if I could just segway this into your original point, which bears upon what Senator Leahy had to say in terms of whether or not a justice of the Supreme Court would have to recuse on an opinion I wrote, on one of our cases, I have no interest in the case.
Recusal is a function of whether or not the party or the lawyer has an interest in the case.
BECKER: But I don't have any interest in any case. And (inaudible) none of us have any interest in any case. And this is consistent with what Judge Alito said and your description of that transforming experience.
CORNYN: Mr. Chairman, I would just say, Judge Gibbons and Judge Lewis are no longer members of the bench; I'm sure have experienced the liberating transformation once you cross back over that rubicon, perhaps, as well.
Thank you very much.
SPECTER: Thank you very much, Senator Cornyn.
Senator Coburn?
COBURN: Thank you very much. And I appreciate so much you all taking the time to come here.
As a physician, I'm starting to learn some of the lingo of the legal profession. It's hard, but I'm going to talk in doctor's terms so the rest of them can't understand.
But, Judge Barry, I wanted to ask you -- and also Judge Lewis -- do you think that there is any merit whatsoever to the allegations that were made that Judge Alito is hostile to the rights of women or minorities? And have you seen that? In the 30 years, have you seen any indication whatsoever, either in his opinions, his personal life, in his interpersonal relations with you, or you, Judge Lewis, that there is any indication that there's that type of bias in this man?
BARRY: I have never seen it. And if I had seen it, I would not be here today.
COBURN: Judge Lewis?
LEWIS: I've already said that if I sensed that Sam Alito, during the time that I served with him or since then, was hostile to civil rights or would be hostile to civil rights as a justice of the United States Supreme Court, I absolutely would not be here today.
I am not interested in saying anything on behalf of someone that I believe would hold views like that or would proceed in that way.
I am basing what I am saying on my years of experience in conference with him, discussing cases. We had different views and different approaches, but never did it seem to me that he held any hostility to civil rights, which is an area that I hold very dear and is very important to me -- and remain committed to furthering in this country.
COBURN: Thank you.
Well, Mr. Chairman, 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.
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.
COBURN: And I appreciate your all's very straightforward answer, and I thank you coming.
And I yield back my time.
SPECTER: Thank you very much, Senator Coburn.
The question has been raised as to precedents. And Senator Cornyn has addressed that. And it's worth mentioning just a few, that former Chief Justice Burger testified for Judge Bork, District Judge Craig testified for Chief Justice Rehnquist, District Judge Tanner testified for Justice Thomas. The canons, specifically 4B, of the conduct of U.S. judges makes a specific allowance for this kind of a situation. Quote, "A judicial experience provides special expertise to the area."
And it is certainly obvious that the insights which you judges have to Judge Alito's background is unique. When you talk about what goes on in those conferences, you're the only ones who are there. And you have much more insights as to the opinions he has written that you have worked with him on.
We have 30 witnesses who are coming in, and that has been a traditional part of the process, but I know of no situation where witnesses have more to say which is relevant and weighty. Perhaps weight is the best evidentiary characterization of what you've had to say.
A lot of things can be relevant. Especially where you have the issue which has been before this committee as to Judge Alito's agenda or Judge Alito's approach or Judge Alito's personal views dominating his judicial determinations, this panel is right on the head.
SPECTER: And it has been an unusual panel, but that's really not a strike against the practice. It may be a precedent for the future and it, I think, will be a good precedent.
But whenever you try something new, there are differing voices, but I think it's an extraordinary contribution which this panel has made to this process.
So, Judge Becker, former Chief Judge Becker, Chief Judge Scirica, Judge Barry, Judge Aldisert, Judge Gibbons, Judge Lewis and Judge Garth from Phoenix, Arizona -- you lucky fellow -- we thank you all very much for coming in.
We're going to take only a 10-minute break now. I didn't have a chance to discuss it with Senator Leahy.
But we do not have the situation where Judge Alito is on the stand and he needs a little longer break. We'll have fresh witnesses and tired senators.
Ten minutes. We'll resume at 5:20.
Transcript to be completed Friday morning.
Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved
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