Blog
Jan 11 2006
SPECTER: Thank you, Senator Feingold. Senator Graham? GRAHAM: Thank you, Mr. Chairman. Judge Alito, maybe we could continue with the Vanguard issue just for a moment. And I know you've been asked every conceivable combination of questions. But Senator Feingold is very sincere about ethics in government. He practices what he preaches and he's been one of the leaders of trying to make this place operate better. And my impression of you is that you're a good model for judges in terms of ethical conduct, based on what everybody says who knows you. I mean, I don't claim to be a close associate of yours, but the ABA has looked at this and said that it did not reflect poorly on you. Three hundred lawyers and judges who know you have said that you're just, really, sort of, what we want in a judge. And maybe that's not enough, but that's a pretty good start. I don't think you could get 300 people to say that about me or some of us. But the question I have -- the criminal prosecutor or lawyer in me has this question to ask -- why would you make a conscious decision not to recuse yourself? Why would Judge Alito sit down in the corner of a room and say, I think I've got a conflict, but I'm just going to let it go and hear the case anyway? I am baffled as to why you would make a conscious decision in this situation not to recuse yourself. Do you have an explanation? ALITO: There's no reason why I would make such a conscious decision. I had nothing whatsoever to gain by participating in this case and nobody has suggested that I did. This case involved some thousands of dollars. Vanguard manages billions of dollars of funds. The idea that the outcome of this case could have some effect on the mutual funds that I hold is beyond preposterous, and I don't understand anybody to have suggested anything like that. GRAHAM: Well, I've been asking myself that question quietly. What is in it for this guy? Why would he bring all this grief upon himself consciously? Is it to intentionally break a promise to the Senate so you'd go through hell for three days? I don't think so. (LAUGHTER) So I'm going to accept you at your word, like the ABA, and I'm going to move on. And I don't know if anybody else will. Now, your days at Princeton. The more I know about Princeton, it's an interesting place. (LAUGHTER) What is an eating society? ALITO: The eating clubs are privately owned facilities that upper classmen join for the purpose of taking their meals. The first two years, when I was there -- the situation is now a bit more diversified as far as eating is concerned -- but when I was there, and traditionally the freshmen and sophomores ate in university dining halls. And then, as juniors and seniors, they had to find other places to eat, and these were private facilities. GRAHAM: What is a selective eating society? ALITO: It's one where you apply to be a member, like a fraternity, and you go through a process that is somewhat similar to that, and they select you if they like you. GRAHAM: Were you a member of a selective eating society? ALITO: No, I was not. GRAHAM: Did people not like you or you just didn't apply? (LAUGHTER) ALITO: I didn't apply. GRAHAM: Well, let me tell you who did apply. Donald Rumsfeld was a member of a selective eating society at Princeton. And that's an interesting comment, I thought. Woodrow Wilson. Jim Leach, good friend of mine over in the House. Mitch Daniels, the governor of Indiana, was a member of a nonselective eating society. Senator Claiborne Pell was a member of nonselective eating societies. And other Princeton alumni who are members of Congress could not verify their participation or lack thereof in eating clubs, including Senator Sarbanes, Bond, Frist and Representative Marshall. And I promise you I'll get to the bottom of that before this is all done. (LAUGHTER) Now, this organization that was mentioned very prominently earlier in the day, did you ever write an article for this organization? ALITO: No, I did not. GRAHAM: OK. And some quotes were shown, from people who did write for this organization, that you disavowed. Do you remember that exchange? ALITO: I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly... GRAHAM: If you don't mind the suspicious nature that I have is that you may be saying that because you want to get on the Supreme Court; that you're disavowing this now because it doesn't look good. And really what I would look at to believe you're not -- and I'm going to be very honest with you -- is: How have you lived your life? Are you really a closet bigot? ALITO: I'm not any kind of a bigot, I'm not. GRAHAM: No, sir, you're not. And 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 have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes. Judge Higginbotham -- I don't know where they're at. But 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. 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. And we're going to go through a bit of this ourselves as congressmen and senators. People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, Aha, I got you! And we're going to say, Wait a minute. I didn't know that. I didn't take the money for that reason. And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken. But that doesn't mean that you're a bad person because of that association. 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. Now let's talk about another time not so long ago -- and another judge and some of her writings -- and see if the Senate is changing for the better or for the worse. GRAHAM: Justice Ginsburg, who I need to go have a cup of coffee with because I constantly bring her up and I do not dislike the lady; I admire her. But let's put it bluntly, under today's environment, from a conservative's point of view, she would have a very hard time because Justice Ginsburg was the general counsel for the ACLU from 1973 to 1980. And if you want me to tar somebody by their association, I can put up some pretty wild cases from my point of view where she was involved. But you know what? I respect her because her job as an attorney for the ACLU is to represent the most unpopular causes. And as far as I can tell during her time with the ACLU, she was honest, she was ethical and she fought for the most unpopular causes. And, for that, I respect her. But you've put some things down on an application about your view of the law in Roe v. Wade and it's taking an unbelievable effort on your part, I think, to convince people that, when I was a lawyer, I did this, when I applied for a job, I was doing this, and as a judge, I will do this. Here is what Justice Ginsburg said in an article she wrote titled, Some Thoughts on Autonomy and Equality in Relationship to Roe v. Wade. The conflict, however, is not simply one between a fetus' interest and a woman's interest narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also, in the balance is a woman's autonomous charge of her full life's course, her ability to stand in relation to men, society and to stay as an independent, self-sustaining equal citizen. She wrote further, As long as the government paid for childbirth, the argument proceeded public funding could not be denied for abortion, often a safer and always a far-less expensive course short and long term. By paying for childbirth but not abortion, the government increased spending and intruded upon or steered a choice Roe had ranked as a woman's fundamental right. The public funding of abortion decisions denying a requirement of public funding appear incongruous following so soon after the intrepid 1973 ruling. The court did not adequately explain why the fundamental choice, principle and trimester approach, embraced in Roe did not bar the sovereign at least at the pre-viability stage of pregnancy from taking sides and being required to provide funding for the abortions of poor women. If that writing doesn't suggest an allegiance to Roe, that writing doesn't suggest from her point of view as the author of that article not only is Roe an important constitutional right, that government ought to pay for abortions in certain circumstances. GRAHAM: If she were here today and a Democratic president had nominated her and we take on the role that our colleagues are playing against you, not only would she not have gotten 96 votes, I think she would have been in for a very rough experience. And what's changed? Justice Ginsburg openly expressed a legal theory about Roe v. Wade. My question to you: If I am arguing a case that would alter Roe v. Wade, would I have the ability because of her prior writings to ask her to recuse herself based on those writings alone? ALITO: I don't think you would, Senator. I think it is established that prior writings of a member of the judiciary do not require the recusal of that member of the judiciary. GRAHAM: I think you're absolutely right, Judge. And let me tell you what she said at the hearing when it was her time to sit where you're sitting. You ask me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision that she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices. A sentiment I think our pro-choice colleagues share, a sentiment that I disagree with because I think the decision does affect humanity, and that's the unborn child. I don't question her religion. I don't question her patriotism. She gave an answer that was very honest and was very direct. And pro-life Republicans and pro-life Democrats never thought about disqualifying her. She didn't go through what you went through. Pro-life Republicans and pro-life Democrats set her comment aside and judged her based on her whole record and believed she was worthy to sit on the Supreme Court and she got 96 votes. And what you've said in your writings about the other side of the issue pales in comparison to what she said before she came to this body. I don't know how many votes you're going to get. You're going to get confirmed. And it's not going to be 96. Judge Roberts got 78, and I'm afraid to say that you're probably going to get less. To my colleagues, I know abortion is important. It's important to me. It's important to you. I know it's an important, central concept in our jurisprudence. But we can't build a judiciary around that one issue. GRAHAM: We can't make judges pledge allegiance to one case. We can't expect them to do things that would destroy their independence. You can vote yes; you can vote no; you can use any reason you would like. I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate. People set aside her writings, set aside her candid statement and gave her the benefit of the doubt that she would apply the law when her time came. She replaced Justice White. We knew that that vote was going to change. I don't think any Republican had any doubt that, if there was a Roe v. Wade issue, she would vote differently than Justice White. But you never know. The one thing I can tell the public about you and John Roberts is that you're first round NFL draft picks, but I don't know what you're going to do 10 or 20 years from now because I think you are men of great integrity. And I may be very well disappointed in some of your legal reasoning, but I'll never be disappointed in you if you do your job as you see fit. The last thing I'm going to read -- do you know Cathy Fleming? ALITO: I do. She was an attorney and supervisor in the U.S. Attorney's office in New Jersey. GRAHAM: Did you ask her to write a letter on your behalf? ALITO: I did not, no. GRAHAM: Judge Alito did not ask me to write this letter. I volunteered. (LAUGHTER) I'm glad you said that, by the way. (LAUGHTER) I'm a lifelong Democrat. I am the president-elect of a national women's bar association. I chaired the corporate integrity and the white collar crime group at a national law firm. I do not speak on behalf of either my law firm or the women's bar association. I speak for myself only. But, by providing my credentials as an outspoken women's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court. Sam possesses the best qualities for judges. He's thoughtful; he's brilliant; he's measured; he's serious; and he's conscious of the awesome responsibilities imposed by his position. I cannot think of better qualities for a Supreme Court justice. It is my fervent hope that politics will not prevent this extraordinary, capable candidate from serving as associate justice on the United States Supreme Court. GRAHAM: I share her hope. Thank you. I yield back my time.
Jan 10 2006
Wes Hickman (202) 224-5972 or Kevin Bishop (864) 250-1417
HATCH: Mr. Chairman? SPECTER: Senator Hatch? HATCH: On this particular issue, could I just take two minutes out of my next round? SPECTER: If you want to comment, you may. And Senator Feingold should have an opportunity to respond. HATCH: Sure. On the form that you filled out, the question was: Explain how you will resolve any potential conflict of interest, including the procedure you will follow in determining these areas of concern. Identify the categories of litigation and financial arrangements that are likely to present potential conflicts of interest during your initial service in the position to which you have been nominated. HATCH: Now, this case arose 12 years later, didn't it? ALITO: Yes, it did, Senator. HATCH: That's hardly your initial service. To be held to that type of a standard, especially in a case that every ethics professor I know of says you didn't do anything wrong in, seems to me is going a little bit beyond the pale here. And it is overblown. And, frankly, I think you got to read the whole thing. You're a good lawyer and you agreed to do it, but it was during your initial service. Now, I guess you could interpret initial service to be a year or two or three years. But 12 years? I don't think so. SPECTER: Senator Feingold...(CROSSTALK) FEINGOLD: Yes. I mean, the fact is the nominee continues to have the holdings in Vanguard. They've appreciated in value. Time hasn't changed that. I think the judge here was at least trying to suggest there might have been some mistake made here, and instead we're getting sort of after-the-fact justifications that put some kind of a time limit on the promise he made to this committee. And there was no time limit on the promise that was made to the committee. HATCH: I still have 30 seconds left. Judge, number one, you've researched it and you didn't have to recuse yourself. You concluded that. ALITO: Yes, I did. HATCH: Number two, these ethics professors have concluded that. right? ALITO: That's right. HATCH: Number three, you have tried to comport with the highest standards of ethics during your whole 15 years on the bench. Right? ALITO: I have tried to do that... HATCH: Number four, I believe we'll have judges from that court who will say that you have. SPECTER: Senator Feingold? FEINGOLD: Mr. Chairman, I'm curious if this isn't a situation where he felt the need to recuse himself, why he would have put Vanguard on the list as something he should recuse himself from after the fact. HATCH: Because he was mistaken. That's why. SPECTER: All right, we're going move on now. I think that this slight exchange is permissible as an exception to our general rules. It livens up the afternoon.(LAUGHTER) HATCH: I want my two minutes back. SPECTER: Anything at about 5:30 in the afternoon is welcome. LEAHY: The chairman was disturbed by my snoring over here. (LAUGHTER) SPECTER: Senator Graham? GRAHAM: Hello? (LAUGHTER) ALITO: Hello, Senator. GRAHAM: That was an interesting exchange. I guess there's no rule against beating a dead horse, or we'd all have quit a long time ago. (LAUGHTER) So in the next 30 minutes, I'm going to ask you the same questions you've been asked for a whole day. (LAUGHTER) And I hope you'll understand if any us come before a court and we can't remember Abramoff, you will tend to believe us. (LAUGHTER) (CROSSTALK) GRAHAM: Now I know why they give you a lifetime appointment for doing this. I was skeptical before, but I think once is enough in a lifetime. For what it's worth, I think you've done a great job. You've been very forthcoming. You've seldom used, I may have to decide that. You've answered a lot of questions. And I particularly enjoyed Senator Feingold's questions about the executive power. And I will pick up on that. Number one, from a personal point of view, do you believe the attacks on 9/11 against our nation were a crime or an act of war? ALITO: That's a hard question to answer. GRAHAM: Good. ALITO: That's a way of buying 30 seconds while I think about the answer. Senator, I think that what I think personally about this is really not -- it's not something that would be -- that would inform anything that I would have to do as a judge. GRAHAM: Well, Judge, I guess I disagree. Because I think we're at war. And the law of armed conflict in a war time environment is different than dealing with domestic criminal enterprises. Do you agree with that? ALITO: It certainly is. GRAHAM: We have laws on the book that protects us, the Fourth Amendment included, from our own law enforcement agencies coming against our own citizens. But we also have laws on the books during a time of war to protect our country from being infiltrated by foreign powers and bodies who wish to do harm to us. That's a totally different legal concept. Is that correct? ALITO: I'm reluctant to get into this because I think things like act of war can well have particular legal meanings in particular context, under the Constitution... GRAHAM: Do you doubt that our nation has been in an armed conflict with terrorist organizations since 9/11, that we've been in an undeclared state of war? ALITO: In a lay sense, certainly, we've been in a conflict with terrorist organizations. I'm just concerned that, in the law, all of these phrases can have particular meanings that are defined by the cases and are... GRAHAM: That's very important. And let's have a continuing legal education seminar here about the law of armed conflict in the Hamdi case. The Hamdi case is precedent, is that correct? ALITO: It certainly is. GRAHAM: It's a decision of the Supreme Court. And it tells us at least two to three things. Number one, it tells us something that I find reassuring; that the Bill of Rights, the Constitution, survive even in a time of war. ALITO: That is certainly true. GRAHAM: So, there's a holding in that case that I want to associate myself with, and I think Senator Feingold does; that, even during a time of war when your values are threatened by an enemy who does not adhere to those values, they will not be threatened by your government unless there's a good reason. Do you agree with that, sir? ALITO: Senator, I agree that the constitution was meant to deal with all of the contingencies that our country was going to face. I think the framers hoped that we would not get involved in many wars but they were students of history and I'm sure they realized that there would be wars. They provided for war powers for the president and for Congress. And the structure is meant to apply both in peace and in war. GRAHAM: And you said in your previous testimony that no political figure in this country is above the law, even in a time of war. ALITO: That is correct. GRAHAM: OK. There's another aspect of the Hamdi case that no one's picked up on, but I will read to you: In light of these principles, it is of no moment that the authorization to use military force does not use specific language of detention because detention to prevent a combatant's return to the battlefield is a fundamental instant of waging war. In permitting the use of necessary and appropriate force, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. And those circumstances were a person alleged by the executive branch to be an enemy combatant. And one of the principles we found from the Hamdi case that because we are, in my opinion, at war and Congress has authorized the president to use force against our enemies, the executive branch, according to the Hamdi case, inherent to his power of being commander in chief, can detain people who have been caught on the battlefield. Does that make sense to you? Do you agree that's a principle of the Hamdi case? ALITO: That is a principle of the Hamdi case. GRAHAM: And it makes perfect sense. Because if we catch someone in Afghanistan or Iraq or any other place in the world who is committing acts of violence against our troops or our forces, or we catch people here in the United States who have infiltrated our country for the purpose of sabotaging our nation, there is no requirement in the law to catch and release these people. Is there? ALITO: Well, Hamdi speaks to the situation of an individual who was caught on the battlefield... GRAHAM: In the history of our nation, when we captured German and Japanese prisoners, was there ever a legal requirement anybody advanced that after a specific period of time you have to let them go? ALITO: It's my understanding that the prisoners of war who were taken in World War II were held until the conflict was over. GRAHAM: It would be an absurd conclusion for a court or anyone else to tell the executive branch that if you caught somebody legitimately engaged in hostile activities against the United States that you have to let them go and go back and fight us again. That makes no sense; does it? ALITO: Well, I explained what my understanding is about how this matter of holding prisoners was handled in prior wars. This issue was addressed in Hamdi, or it was discussed in Hamdi in the context... GRAHAM: In the Padilla case they held an American citizen who was engaged in hostile activities against the United States, allegedly, as an enemy combatant. And the 4th Circuit said the president, during a time of hostility, has the ability to do that. Do you agree that that's a part of our jurisprudence? ALITO: That was -- the holding in Padilla? GRAHAM: Yes. ALITO: Yes. That was the holding of the lower court -- of Padilla, yes. GRAHAM: The point I'm trying to make is that when you're engaged in hostilities there are some things that we assume the president will do. If we don't kill the enemy, we capture the enemy. The president as the commander in chief will make sure they don't go back to the battle. Number two, that if we catch someone and there's a question to their status whether or not you're a prisoner of war in the Geneva Convention, are you an enemy combatant, who traditionally in our constitutional democracy determines whether or not the status of a person engaged in hostilities? ALITO: Well, Padilla -- I'm sorry, Hamdi said that a person who was being detained, an unlawful person who's asserted to be an unlawful combatant and who is being detained has due process rights. And the issue of the type of tribunal -- and they explained to some degree how that would be handled. But the identity of the particular tribunal that would be required to adjudicate that was not an issue that was decided in Hamdi or any of the other cases. GRAHAM: Can you show me an example in American jurisprudence where the question of status, whether a person was a lawful combatant or an unlawful combatant, was decided by a court and not the military? ALITO: I can't think of an example. I can't say that I am able to survey the whole history of this issue, but I... (CROSSTALK) GRAHAM: Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention? ALITO: I am not aware of such a case. GRAHAM: Is there a constitutional right for a foreign, noncitizen enemy prisoner to have access to our courts to sue regarding their condition of the confinement under our Constitution? ALITO: Well, I'm not aware of a precedent that addresses the issue. GRAHAM: Do you know of any case where an enemy prisoner of war brought a habeas petition in World War II objecting to be their confinement to our federal judiciary? ALITO: There may have been a lower court case. I'm trying to remember the exact status of the individual. GRAHAM: Let me help you. There were two cases. One of them involved six saboteurs, the in re Quirin case. Would you agree with me that that case stood for the proposition that in a time of war or declared hostilities an illegal combatant, even though they may be an American citizen, the proper forum for them to be tried in is a military tribunal and they're not entitled to a jury trial as an American citizen in a non-wartime environment? ALITO: Well, those were a number of German saboteurs who landed by submarine in the United States. And they were taken into custody. And they were tried before a military tribunal. And the case went up to the Supreme Court. The Supreme Court sustained their being tried before a military tribunal. At least one of them claimed to be an American citizen. And most of them, I think all but one or two, actually were executed. GRAHAM: And our Supreme Court said that is the proper forum during a war-time environment to try people who were engaged in a legal combat activities against our country. Is that correct? ALITO: They sustained what was done under the circumstances. GRAHAM: That would be a precedent then, wouldn't it? ALITO: It is a precedent. Yes. GRAHAM: OK. There was a case involving six Germans, soldiers, captured in Japan and transferred to Germany, and they brought a habeas petition to be released in the -- I can't remember the ... ALITO: Eisentrager. GRAHAM: You know it. Tell me what the court decided there. ALITO: They were, as I recall, they were Germans who were found in China... GRAHAM: China. You're right ALITO: ... assisting the Japanese after termination of the war with Germany. And they were unsuccessful in their habeas petition. That was interpreted, prior to the Supreme Court's decision a couple of years ago, to mean that there was a lack of habeas jurisdiction over them because they were being held in territory that was not U.S. territory. GRAHAM: For those who are watching who are not lawyers, generally speaking, in all of the wars that we've been involved in we don't let the people trying to kill us sue us. Right? And we're not going to let them go at an arbitrary time period if we think they're still dangerous because we don't want to go have to shoot at them again or let them shoot at us again. Is that a good summary of the law of armed conflict? ALITO: I don't know whether I'd put it quite that broadly, Senator. (LAUGHTER) The precedent that you -- the Johnson v. Eisentrager, of course, has been substantially modified, if not overruled. Ex Parte Quirin, of course, is still a precedent. There was a lower precedent involving someone who fought with the Italian army. And I can't remember the exact name of it. And that was the case that I thought you were referring to when you first framed the question. But those are the precedents in the area. Then, if you go back to the Civil War, there's Ex Parte Milligan and a few others. GRAHAM: We don't have to go back that far. (LAUGHTER) ALITO: Well, in this area... GRAHAM: Well... ALITO: ... it's actually instructive to do it. But in Hamdi the court addressed this question of how long the detention should take place. And they said -- because they were responding to the argument that this situation is not like the wars of the past which had a more or less fixed -- it was not anticipated that they would go on for a generation. And they said: We'll get to that if it develops that way. GRAHAM: Who is better able to determine if an enemy combatant properly held has ongoing intelligence value to our country? Is it the military or a judge? ALITO: On intelligence matters I would think that is an issue -- that is an area where the judiciary doesn't have expertise. But we do get into this issue I was discussing with Senator Feingold about the degree to which the balance between the judiciary's performing its function in cases involving individual rights and its desire not to intrude into areas where it lacks expertise, particularly in times of war and national crisis. GRAHAM: So, having said that, if we have a decision to make as a country when to let someone go who's an enemy combatant, I guess we've got two choices. We can have court cases or we can allow the military to make a determination if that person still presents a threat to the United States and whether or not that person has an intelligence value by further confinement. Do you feel the courts possess the capabilities and the confidence to make those two decisions better than the military? ALITO: The courts do not have expertise in foreign affairs or in military affairs. And they certainly should recognize that. And that is one powerful consideration in addressing legal issues that may come up in this context. But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court, cases where they have jurisdiction in one way or another, cases that are fit for judicial resolution. GRAHAM: I totally understand that. But our courts have not, by tradition, gotten involved in running military jails during a time of war. I can't think of one time where a prisoner of war housed in the United States during World War II, a German Nazi or a Japanese prisoner, was able to go and sue our own troops about their confinement. I think there's a reason there's none of those cases. It would lead to chaos. Now, when it comes to treating detainees and how to treat them, I think the Congress has a big role to play. And I think that the courts have a big role to play. Are you familiar with the Geneva Convention? ALITO: I have some familiarity with it. I'm... GRAHAM: Do you believe it's been good for our country to be a signatory to that convention? ALITO: I think it has. But that's not really my area of authority. That's Congress' area of authority. GRAHAM: Well, just as an American citizen, are you proud of the fact that your country has signed up the Geneva Convention and that we have laid out a system of how we treat people who fall into our hands and how we'll engage in war? ALITO: I think the Geneva Convention -- and I'm not an expert on the Geneva Conventions -- but I think they express some very deep values of the American people. And we've been a signatory of them for some time. And I think that... GRAHAM: Now, let's go back to the legal application of the Geneva Convention. If someone was captured by an American force and detained either at home or abroad, would the Geneva Convention give that detainee a private cause of action against the United States government? ALITO: Well, that's an issue I believe in the Hamdan case, which is an actual case that's before the Supreme Court. And it goes to the question of whether a treaty is self-executing or not. Some treaties are self-executing... GRAHAM: Has there ever been an occasion in all the wars we fought where the Geneva Convention was involved whether the courts treated the Geneva Convention as a private cause of action to bring a lawsuit against our own troops? ALITO: I'm not familiar with such a case. But I can't say whether there might be some case or not. GRAHAM: Now, when it comes to what authority the executive has during a time of war, we know the Supreme Court has said it's implicit from the force resolution that you can detain people captured on the battlefield. Hamdi stands for that proposition. Is that correct? ALITO: That's what was involved in Hamdi. GRAHAM: OK. The problem that Senator Feingold has and I have and some of the rest of us have is does that force resolution, does it have the legal effect of creating an exception to the FISA Court? And I know that may come before you, but let's talk about generally how the law works. You say that the president has to follow every statute on the books unless the statute allows an exception for the president. Is that a fair statement? Just being president, you can't set aside the law. ALITO: The president has to follow the law, and that means the Constitution and the laws that are enacted consistent with the Constitution. GRAHAM: There's a statute that we have on the books against torture. Are you familiar with that statute? ALITO: Convention against torture, I am. Well, the statutes implementing the convention against torture. GRAHAM: And the statute provides the death penalty for somebody who violates the conventions as a possible punishment. ALITO: That's right. If death results, the death penalty is available. GRAHAM: So this idea that Senator McCain somehow banned torture is not quite right. The convention on torture and the statute that we have implementing that convention were on the books long before this year. GRAHAM: Is that correct? ALITO: Yes, they were. GRAHAM: Do you believe that any president, because we're at war, could say, the statute on torture gets in the way of my ability to defend the United States; therefore I don't have to comply with it? ALITO: The president has to comply with the Constitution and the laws of the United States that are enacted consistent with the Constitution. That is the principle. The president is not above the Constitution and the laws. Now, there are issues about the interpretation of the laws and the interpretation of the Constitution. GRAHAM: Are you a strict constructionist? ALITO: I think it depends on what you mean by that phrase. And if you... GRAHAM: Well, let's forget that. We'll never get to the end of that. (LAUGHTER) Have you heard the term used? ALITO: I have heard the term used. GRAHAM: Is it fair to say that, when it's used by politicians, people like me, that we're trying to tell the public we want a judge who looks at things very narrowly, that doesn't make a bunch of stuff up? Is that a fair understanding of what a strict constructionist may be in the political world? ALITO: Well, if a strict constructionist is a judge who doesn't make things up, than I'm a strict constructionist. (LAUGHTER) GRAHAM: There you go. ALITO: I agree with that, Senator. (LAUGHTER) GRAHAM: Now, if there's a force resolution that Congress passes to allow any president to engage in military activity against someone trying to do us harm and the force resolution says, The president is authorized to use all necessary and appropriate force against those nations, organizations or persons he determines, planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 -- or just make it generic -- if someone argued that that declaration by Congress was a blanket exemption to the warrant requirement under FISA, would that be a product of strict constructionist legal reasoning? ALITO: I think that a strict constructionist as you understand it would engage in a certain process in evaluating that question. And a strict constructionist, a person who interprets the law -- that's how I would put it -- a person who interprets the law would look at the language of the authorization for the use of military force and legislative history that was informative, maybe past practices. Were there prior enactments that are analogous to that? What was the understanding of those? And a host of other considerations that might go into the interpretive process. GRAHAM: I guess what I'm saying, Judge, is I can understand why the court ruled that the president has within his authority to detain people on the battlefield under this force resolution. That makes sense. I understand why the president believes he has the ability to surveil the enemy at a time of war. And the idea that our president or this administration took the law in their own hands and ignored precedent of other presidents or case law and just tried to make a power grab, I don't agree with. But this is really not about you, so you don't have to listen. I'm talking to other people right now. (LAUGHTER) The point I'm trying to make -- the point I'm trying to make is what Justice Jackson made, is that, when it comes to issues like this, when we surveil our enemy and we've cross the our own borders and we have information about our own people, we need, in my opinion, Judge, to have the president at the strongest. And that would be when Congress, through collaboration with the president, comes up with a method of dealing with that situation. And then it could be very dangerous in the long run if we over- interpret war resolutions. Because I've got a problem with that. And I believe that if we don't watch it and we over-interpret these resolutions, that we will have a chilling effect for the next president. The next president who wants to use force to protect us in a justifiable manner may be less likely to get that resolution approved if we go too far. And Judge, you're likely to rule on these issues. And my hope is, before you rule, that we all sit down between the executive and the legislative and we talk about this, because, as you said before, our nation, not only our legal system, is strongest when we work together. Executive power: The Constitution allows the president to nominate judges. If Congress tried to change that by statute and say that we would like to pick the judges, what would happen, hypothetically? ALITO: I have a certain amount of self-interest in the answer to that question. GRAHAM: Yes, I thought you might, yes. Clearly, clearly, the statute would fall under the Constitution. A veto is not reviewable by courts because that's a basically political decision. Under the Constitution, what's the vote requirement to get confirmed to the Supreme Court? ALITO: It's a majority. GRAHAM: Hypothetically speaking, what if the Senate passed a statute or had a rule that said you can't get a vote to be on the Supreme Court unless you get 60 votes? How does that sit with you? ALITO: Speaking in my personal capacity or my judicial capacity? GRAHAM: Your judicial capacity. ALITO: Senator, I just don't think I should answer questions like -- constitutional questions like that. GRAHAM: What if the Senate said during impeachment that we don't want a two-thirds vote of the Senate; we want a majority vote? Would the Senate's action fall under the Constitution? ALITO: There are certain questions that seem perfectly clear. And I guess there's no harm in answering... GRAHAM: Is there any doubt in your mind the Constitution requires a majority vote to be on the Supreme Court or any other federal judicial office? ALITO: You know what? I remember this phrase from law school... GRAHAM: Is that a super-duper precedent? (LAUGHTER) ALITO: I think it's what we call in law school the slippery slope, and if you start answering the easy questions, you're going to be sliding down the ski run into the hard questions. And that's what I'm not too happy to do. GRAHAM: That's what I tried to get to you do and I'm glad you didn't do it. (LAUGHTER) The bottom line through this exercise is: You've got a job. I've got a job. And what disturbs me a bit is that we're beginning to hold the lawyer responsible for the client. And in my remaining time here, what damage could be done to the legal profession or judiciary if people in my profession start holding your clients' position against the advocate? ALITO: I think it's been traditionally recognized that lawyers have an obligation to their clients. That's how our legal system works. Some lawyers have private clients. Some lawyers work for government agencies and the lawyer-client relationship there is not exactly the same. But still there is a lawyer-client relationship. And I think our whole system is based on the idea that justice is best served... GRAHAM: If you were an attorney general representing a state that passed a ban on partial-birth abortion, would it be fair to that attorney general if they came before this committee to hold that against them if you disagreed with them on the subject matter? ALITO: I think that attorneys general -- I can speak to the issue of the attorney general of the United States because I know there's a statute and there's an understanding about what the attorney general of the United States will do when an act of Congress is called into question. And the obligation of the attorney general is to defend the constitutionality of the act of Congress... (CROSSTALK) GRAHAM: Lawyers' obligation is to defend their clients' interest. Is that an accurate statement of what a lawyer is supposed to do? ALITO: It certainly is, yes. GRAHAM: No matter where that client is popular or not or the position is popular or not. Is that correct? ALITO: Consistent with ethical obligations and professional responsibility, yes, indeed. GRAHAM: What's this process been like for you and your family? In a short period of time, could you tell us how to improve it? ALITO: Well, it's been a combination -- at times it's been a thrill and at times it's been extremely disorienting. I've spent the last 15 years as a judge on the court of appeals. And you probably could not think of a more cloistered existence than a judge on the court of appeals. Most of the time nobody other than the parties pays attention to what we do. When an article is written in the paper about one of our decisions, it's a federal appeals court in Philadelphia or in whatever city. And this has been a strange process for me. I made some reference to that yesterday. But I understand the reason for it. And I am reluctant in my current capacity as a nominee to offer any suggestions about the process. I think that you're carrying out your responsibility. I spoke about the fact that different people under the Constitution have different obligations. And you have the advice and consent function, Congress -- the Senate does. And I think it's for the Senate to decide what it should do in this area. SPECTER: Thank you, Senator Graham.Jan 09 2006
Wes Hickman (202) 24-5972 or Kevin Bishop (864) 250-1417
Thank you, Mr. Chairman. And welcome back, Judge. I'd hate for you to miss my opening statement. (LAUGHTER) It would be a loss for the ages. Welcome to the committee. Welcome to one of the most important events in your life. You've got the people that mean the most here with you today, your family. I know they're proud of you. I'm certainly proud of what you have been able to accomplish. And to say the least, you come to the Senate in interesting political times. There is going to be a lot of talk by the senators of this committee about concepts that are important to Americans. But what I worry the most about -- your time, believe it or not, will come and go. You will not be here forever, it may just seem that way. But I think you're going to be just fine. I don't know what kind of vote you're going to get, but you'll make it through. It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines. I feel very comfortable with you being on the Supreme Court based on what I know. And the hearings will be helpful to all of us to find out some issues that are important to us. We had a talk recently about executive power. That's very important to me. In a time of war, I want the executive branch to have the tools to protect me, my family and my country. But also I believe even during a time of war, the rule of law applies. And I've got some problems with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly. We've talked about those things and we'll talk more about it. But I'm going to talk a little bit about some of the points my colleagues have been making. Everybody knows you're a conservative. The question is: Are you a mainstream conservative? Well, the question I have for my colleagues is: Who would you ask to find out? Would you ask Senator Kennedy? Probably not. If you asked me who a mainstream liberal is, I would be the worst person to pick, because I do not hang out over there. (LAUGHTER) I expect that most all of us, if not all of us, will vote for you. I would argue that we represent from the center line to the right ditch in our party and, if all of us vote for you, you've got to be pretty mainstream. So the answer to the question, Are you a mainstream conservative? We’ll soon know. If every Republican member of the Judiciary Committee votes for you, and you're not mainstream, that means we are not mainstream. It is a word that means what you want it to mean. Advise and consent means what? Whatever you want it to be. Advise and consent means the process has got to work to the advantage of people I like and with people I don't want on the court, it is a different process. That is politics. Every senator will have to live within themselves as to what they would like to see happen for the judiciary. My main concern here is not about you, it's about us. What are we going to be doing as a body to the judiciary when it is all said and done? Roe v. Wade and abortion: If I wanted to work for Ronald Reagan, one of the things I would tell the Reagan Administration is I think Roe v. Wade was wrongly decided. They are likely to hire me because they were trying to prove to the court that the court took away from elected officials a very important right, protecting the unborn. I was on the news program with Senator Feinstein this weekend, who is a terrific person. She made a very emotional, compelling argument that she can remember back alley abortions and women committing suicide when abortion was illegal. I understand that is seared in her memory banks and that is important to her. Let me tell you, there's another side to that story. There are millions of Americans -- a bunch of them in South Carolina -- who are heartsick that millions of unborn children have been sent to a certain death because of what judges have done. It's a two-sided argument and an emotional event in our society. They're talking about maybe filibustering if you don't give the right answer. Well, what could possibly be the right answer about Roe v. Wade? If you acknowledge it's a precedent of the court, well, then you would be right. If you refused to listen to someone who's trying to change the way it's applied or to overturn it and you will say, Here, I will never listen to them, you might talk me out of voting for you. I don't think any American should lose the right to challenge any precedent the Supreme Court has issued because the judge wanted to get on the court. You may be a great fan of Roe v. Wade and you think it should be there forever. There may be a case where someone disagrees with that line of reasoning. What I want from the judge is an understanding that precedent matters but the facts, the brief and the law is what you're going to base your decision on as to whether or not that precedent stands. Not some bargain to get on the court. Because I can tell you, if that ever becomes a reason to filibuster, there are plenty of people that I personally know, if it became fashionable to stand on the floor of the Senate to stop a nominee on the issue of abortion, feel so deeply, so honestly held belief that an abortion is certain death for an unborn child that they would stand on their feet forever. Is that what we want? Is that where we're going as a nation? Are we going to take one case and one issue, and if we don't get the answer we like that represents our political view on that issue, are we going to bring the judiciary to their knees? Are we going to say as a body, It doesn't matter how smart you are, how many cases you decided, how many things you've done in your life as a lawyer, forget about it; it all comes down to this one issue ? If we do, if we go down that road, there will be no going back. Good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels. What we're saying and what we're doing here is far more important than just whether or not Judge Alito gets through the process. What is the proper role of a senator when it come to advise and consent? I would argue that, if we start taking the one or two cases we cherish the most and make that a litmus test, we've let our country down and we've changed a historical standard. Elections matter. Values debates occur all over this country. They occur in presidential elections. It is no mystery as to what President Bush would do if he won. He would pick people like John Roberts and Sam Alito. That's what he said he would do. That's exactly what he's done. He's picked solid, strict constructionist conservatives who have long, distinguished legal careers. What did President Clinton do? He picked people left of the center who worked for Democrats. It cannot surprise anybody on the other side that two people we picked worked for Ronald Reagan. We like Ronald Reagan. President Clinton picked Ginsburg and Breyer. Justice Ginsburg was the general counsel for the ACLU. If I'm going to base my decision based on who you represented as a lawyer, how in the world could I ever vote for somebody that represented the ACLU? If I'm going to make my decision based on whether or not I agree with the Princeton faculty and administration policies on ROTC students and quotas and I am bound by that, I'll get killed at home. What the president does with their admission policies and whether or not an ROTC unit should be on a campus is an OK thing to debate. At least I hope it is OK. I think most American are going to be with the group that you're associated with, not the policies of Princeton. The bottom line is you come here as an individual with a life well-lived. Everybody who seems to work with you as a private lawyer, public lawyer, as a judge, admires you, even though they may disagree with you. My biggest concern, members of this committee, is if we don't watch the way we treat people like Judge Alito, we're going to drive good men and women away from wanting to serve. There'll be a Democratic president one day. I do not know when, but that's likely to happen. There'll be another Justice Ginsburg come over. If she came over in this atmosphere, she wouldn't get 96 votes. Justice Scalia wouldn't get 98 votes. And that's sad to me. I hope we'll use this opportunity to not only treat you fairly but not use a double standard. I hope we'll understand this is bigger than you, this is bigger than us. The way we conduct ourselves and what we expect of you, we better be expecting when we're not in power. Thank you.Jan 04 2006
Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)
WASHINGTON- U.S. Senator Lindsey Graham (R-South Carolina) today announced the Business Development Corporation of Clarendon County will receive a $50,000 economic development grant. “South Carolina’s natural resources are some of our most valuable assets,” said Graham. “I hope this grant will prove beneficial to the county’s efforts to bring more tourism dollars to the area.” The funds will be used to support a feasibility study of tourism development in the Santee-Cooper Lakes System. The grant was awarded by the U.S. Department of Commerce. ####Jan 04 2006
Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)
WASHINGTON- U.S. Senator Lindsey Graham (R-South Carolina) today announced Charleston Interfaith Crisis Ministry will receive a $204,539 Healthcare for the Homeless (HCH) grant. The funds will help provide primary health care, mental health, and substance abuse services to the homeless population in the Charleston area. Interfaith Crisis Ministry has been a recipient of this competitive federal grant since 1996. The grant was awarded by the U.S. Department of Health and Human Services. ####Jan 04 2006
Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)
WASHINGTON -- U.S. Senator Lindsey Graham (R-South Carolina) today announced displaced employees at Weavetex, Inc. in Jonesville are eligible to receive trade adjustment assistance (TAA). The Department of Labor has certified that Weavetex has suffered losses due to increased foreign imports and cheap foreign labor. TAA benefits help provide displaced workers with job retraining, educational advancement, resume writing and relocation assistance. Eligible workers also qualify for alternative trade adjustment assistance, a special program that benefits workers over the age of fifty. “These programs help soften the blow of job losses due to the unfair trade practices,” said Graham. “Our manufacturers and textile companies are simply asking for a fair playing field. American workers are hard-working and when given the chance to compete in a fair market, no one can come close to them.” Graham noted that manufacturing companies in South Carolina have been hard hit by unfair competition much of it coming from China. Employees of Weavetex should visit their local ‘One-Stop Center’ for more information on how to receive TAA benefits. There are ‘One-Stop’ locations in Spartanburg and Union: Upstate One-Stop Career Center 110 Commerce Street Spartanburg, SC 29306 864-562-4168 Spartanburg ESC One-Stop Satellite Center 364 South Church Street Spartanburg, SC 29304 864-573-7525 Union One-Stop Satellite Center 440 Duncan Highway Union, SC 29379 864-427-5672 ####Jan 04 2006
Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)
WASHINGTON – U.S. Senator Lindsey Graham (R-South Carolina) today made the following statement on the Graham-Levin-Kyl amendment to the recently enacted defense appropriations bill. “Under no circumstance did I intend, by a change in language, that existing lawsuits filed by enemy combatants detained at Guantanamo Bay, Cuba (GTMO) would be statutorily preserved. Nor do I believe a reasonable reading of the statute would lead to that conclusion. “The intent of the language contained within the Graham-Levin-Kyl amendment is that Courts will decide in accord with their own rules, procedures and precedents whether to proceed in pending cases. “It is my belief Congress has spoken in a bipartisan fashion – loud and clear – that enemy combatant terrorists engaged in hostile acts against the United States do not have the same legal rights as American citizens under Section 2241 of the federal criminal code passed by Congress. “It is clear from the Graham-Levin-Kyl amendment federal courts will retain jurisdiction to review military decisions as to whether an individual was properly classified as an enemy combatant. It is my belief the Courts will use the procedures outlined in Graham-Levin-Kyl for judicial review in place of habeas petitions under Section 2241 past, present, and future. The over 160 habeas petitions plus over 200 money damage claims are undermining the effective operation of Guantanamo Bay, Cuba. “Michael Ratner, a lawyer who has filed lawsuits on behalf of numerous enemy combatants held at Guantanamo Bay, boasts about the fact this litigation has undermined intelligence gathering in the war on terror. Ratner said, “The litigation is brutal for [the United States]. It’s huge. We have over one hundred lawyers now from big and small firms working to represent these detainees. Every time an attorney goes down there, it makes it that much harder [for the U.S. military] to do what they’re doing. You can’t run an interrogation…with attorneys. What are they going to do now that we’re getting court orders to get more lawyers down there?” (Onnesha Roychoudhuri, The Torn Fabric of the Law: An Interview with Michael Ratner, Mother Jones Magazine, March 21, 2005.) “There are now cases filed by enemy combatants requesting better mail delivery, more exercise, judge-supervised interrogation, Internet access, the right to view DVDs and alleging medical malpractice. Never in the history of warfare have enemy prisoners been able to bring lawsuits about their detention. Thousands of Germans and Japanese prisoners during World War II were captured and held by the military. Not one case was allowed in federal court regarding their detention. “The legal review allowed for in Graham-Levin-Kyl is far beyond the requirements of the Geneva Convention but will prevent the unnecessary disruption of the operation of Guantamo Bay to protect our nation’s national security.” ####Jan 04 2006
Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)
WASHINGTON- U.S. Senator Lindsey Graham (R-South Carolina) today announced the Catawba Regional Council of Governments will receive a $55,000 economic development grant. “Regionalism is the key to promoting economic growth and development,” said Graham. “I am pleased to see our local governments working together with the regional councils to improve the economic future of our state.” The funds will be used to support long-term regional economic development planning efforts. The Catawba Regional Council of Governments serves Chester, Lancaster, Union, and York County. The grant was awarded by the U.S. Department of Commerce. ####Dec 22 2005
Congress Improves Benefits for Military Personnel
Graham Helps Secure TRICARE for National Guard and Reserve
Wes Hickman (202) 224-5972 or Kevin Bishop (864) 250-1417
WASHINGTON -- The United States Senate last night approved the Fiscal Year 2006 Defense Authorization bill. The legislation improves benefits for military personnel including a provision offered by U.S. Senator Lindsey Graham (R-South Carolina) to expand TRICARE to all drilling reservists. Graham has worked with other Senators to expand access to health care for members of the National Guard and Reserve who are playing an ever-increasing and historic role in the global War on Terror. He noted that Guardsmen and Reservists now make up approximately 40 percent of American forces in Iraq. “Our work reflects a significant triumph for the Guard, Reserves and their families,” said Graham, chairman of the Armed Services Subcommittee on Personnel. “Now, after years of relative neglect, these soldiers’ health care coverage and benefits are more in line with their service to our nation. This year’s bill provides continuous health care coverage for all drilling reservists, an important improvement over what we were able to accomplish last year.” Under the expansion of TRICARE championed by Graham, all members of the Selected Reserve are eligible to enroll in the military health care program for a monthly premium. The premiums are based on categories of eligibility: Category 1: Members of the Selected Reserve who are called to active duty qualify for TRICARE Reserve Select (TRS). Under this program, established last year, a reservist would accumulate one year of TRS coverage for every 90 days of active duty service. Monthly premiums during the years of accumulated eligibility are only 28 percent of the program cost. The government picks up the remaining 72 percent. As has always been the case, coverage is free of charge while on active duty. This bill now permits accumulation of earned periods of coverage for frequently deployed personnel. In addition, it authorizes 6 months of transitional coverage for family members following the death of the Reserve member, if the member dies while in an inactive status.Category 2: Members of the Selected Reserve who are not called to active duty, and who otherwise do not qualify for health insurance due to unemployment or lack of employer-provided coverage, are eligible to enroll in TRICARE for a 50 percent cost-sharing premium. The government will pay the remaining 50 percent.
Category 3: Members of the Selected Reserve who do not fit into either of the above categories but would like to participate in TRICARE are eligible to do so for an 85 percent cost share. Employers are allowed and encouraged to contribute to the reservist’s share. The government contributes 15 percent of the costs. “I will continue to work to improve benefits available to members of the Guard and Reserve,” said Graham. “The nation will continue to need their services, in large numbers, in fighting the War on Terror. I am proud of and appreciate the progress we’ve made this year with the Senate and Bush Administration working together.” “Guardsmen and Reservists are citizen-soldiers,” said Graham. “Increasingly they are being called up, taken away from their work and families, and being sent to far-away lands for long tours of duty. We need to ensure the benefits they are receiving are equal to the sacrifice they are making to protect our country and interests around the world.” The defense bill authorized additional benefits for the men and women serving our nation in uniform. Among these important changes were: * A 3.1 percent pay raise for all military personnel;
* Payment of “matching fund” contributions of up to 5 percent of basic pay for first term enlistees who participate in the Thrift Savings Plan. The TSP is a 401(k) retirement plan available to all federal employees.
* Increases in maximum amounts of assignment incentive pay and hardship duty pay.
* $60 million increase in child care and family assistance services to active-duty and Reserve military families.
* Critical skills retention bonus of up to $100,000 over a career for members of the Selected Reserve.
* Increases TRICARE benefits for the surviving children of members who die on active duty.
* Increases to $100,000 in the death gratuity allowance payable to survivors of all active duty military decedents, including retroactive payment to October 7, 2001, the date of commencement of Operation Enduring Freedom.
* Directs the establishment of a uniform Department policy on casualty assistance to improve the services provided to survivors and next of kin of military members killed on active duty.
* In addition the bill authorizes increases in the active-duty end strength of 10,000 for the Army and 1,000 for the Marine Corps.
The bill has been passed by the House and is expected to be signed into law by President Bush in the coming days. ####
