Judge Alito Consistently Refused to Answer Questions About Key Issues

Repeatedly throughout his confirmation hearings, Judge Samuel Alito refused to answer key questions from Senators about his views on a wide variety of topics.  This refusal makes it difficult for Senators, and the American people, to fully evaluate Judge Alito$B!G(Js record.  Below are the instances where Judge Alito refused to answer a Senator$B!G(Js question or address his or her concerns – there are many more instances where Judge Alito was evasive or less than forthcoming. 

Judge Alito Refused to Answer Questions on Executive Power

&bull          SENATOR LEAHY:  And if the President were to authorize somebody or say that he would immunize somebody from [engaging in torture], he wouldn't have that power, would he?

JUDGE ALITO:  Well, Senator, I think the important points are that the President has to follow the Constitution and the laws, and it is up to Congress to exercise its legislative power.  But as to specific issues that might come up, I really need to know the specifics.  I need to know what was done and why it was done, and hear the arguments on the issue.  [1/10/06]

&bull          KENNEDY:  You wrote these words:  "The president's understanding of the bill should be just as important as that of Congress."  With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote "the president's understanding of the bill should be just as important as that of Congress"?

JUDGE ALITO:  When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute.  And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements.  So I think that's the first point that I would make.  Now, I don't say I'm never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that's been unexplored by the Supreme Court.  And it certainly is not something that I have dealt with as a judge.  [1/10/06]

&bull          SENATOR FEINGOLD:   What are the limits, if any, on the president's power to do what he thinks is necessary to protect national security, regardless of what laws Congress passes?   

JUDGE ALITO:  Well, when you say regardless of what laws Congress passes, I think that puts us in that third category that Justice Jackson outlined, the twilight zone, where, according to Justice Jackson, the president has whatever constitutional powers he possesses under Article II, minus what is taken away by whatever Congress has done by an implicit expression of opposition or the enactment of a statute.   

To go beyond that point, I think we need to know the specifics of the case.  We need to know the constitutional power that the president
-- the type of executive power the president is asserting and the
situation in which it's being asserted and exactly what Congress has
done.   [1/10/06]

&bull          SENATOR FEINGOLD:  Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations, in violation of the criminal and foreign intelligence surveillance statutes of this country?   

JUDGE ALITO:   And those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights.  And I would have to know the specifics in the arguments that were made. [1/10/06]

&bull          SENATOR FEINGOLD:  As I understand it, you've prepared for these hearings over the past few months with a variety of practice sessions.  Some have called them moot courts or murder boards.  Was the question of the president's power in time of war to take action contrary to a federal statute ever raised in any way during any of the practice sessions for these hearings?   

JUDGE ALITO:  I have had practice sessions on a great variety of subjects, and I don't know whether that specific issue was brought up.  It may have been. [1/10/06]

&bull          Senator Leahy:  But in the past you criticized Morrison.  Are you saying now that you are comfortable with Morrison, that you accept it?

Judge Alito:  Morrison is a settled--is a precedent of the Court.  It was an 8-1 decision.  It's entitled to respect under stare decisis.  It concerns the Independent Counsel Act, which no longer is in force.  [1/11/06]

&bull          sEnator Leahy:  Do you believe the President has the power to curtail investigations, for example, by the Department of Justice?

Judge Alito:  I don't think--

Senator Leahy:  The Department of Justice is under him.

Judge Alito:  I don't think the President is above the law, and the President is the head of the executive branch, and I've explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch.

Senator Leahy:  But could he order them to stop an investigation?

Judge Alito:  Well, you'd have to look at the facts of the case and the particular officer that we're talking about. [1/11/06]

&bull          Senator Leahy: . . . In other areas, SEC, can he order them to stop an investigation if it is somebody he does not want investigated?

Judge Alito:  Well, the independent agencies are governed by Humphrey's Executor and cases that follow that, and there have been restrictions placed on the removal of commissioners of the independent agencies, and they have been sustained by the Supreme Court.  That's where the Supreme Court precedent on the issue stands.

Senator Leahy:  Is that settled law?

Judge Alito:  It is a line of precedent that culminated, I would say--there have been a few additional cases relating to this, the Edmond case and the Freitag case, but I would look to Morrison, which was an 8-1 decision involving a subject of considerable public controversy, the removal of an independent counsel, removal of restrictions on that independent counsel. [1/11/06]

&bull          Senator Leahy:  Which decision [in the Hamdi case] do you personally agree with, [Justice O$B!G(JConnor$B!G(Js] or the dissent by Justice Thomas?

Judge Alito:  I think that the war powers are divided between the executive branch and Congress.  I think that's a starting point to look at in this area.  The President is the Commander in Chief, and he has authority in the area of foreign affairs, and is recognized in Supreme Court decisions as the sole organ of the country in conducting foreign affairs.

Senator Leahy:  But you are not going to say which of the two decisions you agree with.

Judge Alito:  Well, I'm trying to explain my understanding of the division of authority in this area, and I think that it's divided between the executive and the Congress.  I certainly don't think that the President has a blank check in time of war.  He does have the responsibility as the Commander in Chief, which is an awesome responsibility.  [1/11/06]

&bull          SENATOR BIDEN:  So I want to ask you a question.  Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?

JUDGE ALITO:  Well, that's a question that I don't think is settled by
-- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.  [1/12/06]

&bull          SENATOR BIDEN:  So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States.  And that's my question.    

JUDGE ALITO:  And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.  But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an  opinion on a constitutional question...[1/12/06]

Judge Alito Refused to Answer Questions on Privacy

&bull          SENATOR SCHUMER:  Regardless of case law, in 1985, you stated -- you stated it proudly, unequivocally, without exception -- that the Constitution does not protect a right to an abortion.  Do you believe that now?

JUDGE ALITO:  Senator...

SENATOR SCHUMER:  I'm not asking about case law.  I'm not asking about stare decisis.  I'm asking your view about this document and whether what you stated in 1985 you believe today; you changed your view; you've distanced your view? You can give me a direct answer.  It doesn't matter which way you answer, but I think it's important that you answer that question.   

JUDGE ALITO:  Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it.  That's the only way I can answer that question.  [1/10/06]

&bull          SENATOR SCHUMER:  Does the Constitution protect the right to free speech?  

JUDGE ALITO:  Certainly it does.  That's in the First Amendment.

SENATOR SCHUMER:  So why can't you answer the question of:  Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

JUDGE ALITO:  Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged.  Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.    [1/10/06]

&bull          Senator Durbin:  Is [Roe] the settled law of the land?

Judge Alito:  It is a--if settled means that it can$B!G(Jt be re-examined, then that's one thing.  If settled means that it is a precedent that is entitled to respect as stare decisis, and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.  [1/11/06]

&bull          Senator Feinstein:  But you do not agree that [Roe] is well settled in the Court?

Judge Alito:  I think that depends on what one means by the terms "well settled." [1/11/06]

&bull          Senator Schumer:  The question, Judge Alito, is why won't you talk to us about Roe in terms of whether it is settled or not when you will about so many other issues, even issues that would come before the Court?

Judge Alito:  The line that I have tried to law, and I've tried to be as forthcoming as I can with the Committee.  I've tried to provide as many answers as I could, and obviously, I'm speaking here extemporaneously in response to questions.  The line that I have tried to draw is between issues that I don't think realistically will come before the Court, and on those, I feel more freedom to respond.  One person/one vote is an example of that— [1/11/06]

Judge Alito Refused to Answer a Basic Question on Bush v. Gore

&bull          SENATOR KOHL:  Was the Supreme Court correct to take [Bush v. Gore] in the first place?

            JUDGE ALITO:  I really don$B!G(Jt know. I have not studied it in the way I would study a case that comes before me as a judge. . . [1/10/06]

Judge Alito Refused to Answer Questions on Recusal

&bull          SENATOR FEINGOLD:  So my first question is this:  After you were sworn in as judge, did you notify the court of your commitments to the Senate and request that the Vanguard companies, Smith Barney and First Federal Savings & Loan be included on your standing list of priorities whose involvement in a case would require your recusal?   

JUDGE ALITO:  Senator, I don't have a copy of the initial computer list, so I can't answer that question.  At some point, Vanguard -- the computer lists that are available from, I think, 1992 and 1993 do not have Vanguard on it and I don't know why that is so.   

SENATOR FEINGOLD:  So you don't recall whether you notified them or not?   

JUDGE ALITO:  I do not.  No.   [1/10/06]

&bull          SENATOR FEINGOLD:  These documents show that the Vanguard companies and the other financial entities you listed in 1990 were not on your standing recusal list, which you approved in 1993, 1994, 1995 or 1996.  Do you remember removing them from your standing recusal list or is it fair to assume -- or is it your belief that they were never put on your recusal list?

JUDGE ALITO:  Senator, I don't know.  I don't know whether they were removed.  I don't think I ever told the clerk's office:  Take them off.  It may be that at some point I submitted a new list and they were not on the list.  I do think it's important to keep in mind that this list is just an aid for the judge.  This is not a comprehensive list of everything that will cause a judge to recuse.  [1/10/06]

&bull         SENATOR FEINGOLD: If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those
sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?  

JUDGE ALITO:  That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.  [1/12/06]

Judge Alito Refused to Answer Questions on Court Stripping

&bull          SENATOR LEAHY:  Now, imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving segregation of public schools.  Would such a law have been constitutional?   

JUDGE ALITO:  There's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court.  There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.  And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.  And there's this debate.  It's not something...[1/12/06]

&bull          SENATOR LEAHY:  So let me ask the same question that Senator Specter asked in 1986:  Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?

JUDGE ALITO:  Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.  [1/12/06]

Judge Alito Refused to Answer Questions on Congressional Power

&bull          SENATOR FEINSTEIN: Do you agree with the direction the Supreme Court took in Lopez?

            JUDGE ALITO:  Well, Senator, that really relates to the next case in the Lopez-Morrison line of cases that might come before the Supreme Court. [1/10/06]

&bull          SENATOR FEINSTEIN:  If Congress makes findings, would you have agreed that the statute [in Rybar] would have been constitutional?

JUDGE ALITO:  . . . I don$B!G(Jt think I can express a view on how I would have decided a hypothetical case.  [1/10/06]

&bull          SENATOR LEAHY: Could this committee issue a subpoena...to have the defendant come and testify before the committee?

JUDGE ALITO:  It's not a question that I ever thought of.  Sitting here I can't think of an objection to it, but I would have to hear whatever arguments there were to be made.   [1/12/06]

Judge Alito Refused to Answer A Question on Judicial Term Limits

&bull         SENATOR KOHL:  What is your opinion [on term limits for federal judges]?

JUDGE ALITO:  On federal judges?  I'm not really sure.  I understand the arguments in favor of doing both of those things.  And state courts do that.  [1/12/06]

Judge Alito Refused to Answer Questions on Criminal Law

&bull         SENATOR FEINGOLD:  You can't say that the person has a constitutional right not to be executed?  

JUDGE ALITO:  Well, I have to know the specific facts of the case and the way it works its way through the legal system.  The rules here are complicated.  A person has a right.  It is one of the most fundamental rights that anybody has.  It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.  And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.  [1/12/06]

&bull          Senator Feingold:  Do you think your replacing Justice O'Connor will change the direction of the Court in [giving greater recognition to ineffective assistance of counsel claims]?

Judge Alito:  I would approach these cases under the law that the Supreme Court has established in this area, with the recognition that I have attempted to explain of how important I believe this right is in all cases and in death cases in particular.  When the Supreme Court reviews a case that has come up through the Federal system, in a habeas proceeding, then the Supreme Court, just like my court, should apply the standards that are set out in the habeas corpus statute. [1/11/06]

Judge Alito Refused to Answer Questions on Affirmative Action

&bull         SENATOR FEINGOLD:  Do you think that increasing diversity in the classroom is a compelling state interest?

JUDGE ALITO:  Well, I've spoken to my own personal experience about its importance in education.  And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education.  And it's the Supreme Court's recent word on this issue.  [1/12/06]

Judge Alito Refused to Answer Questions on Immigration

&bull         SENATOR SCHUMER:  OK.  Now, I want to ask you about the 14th Amendment, which sets forth the definition of citizenship.  It states in relevant part, $B!H(JAll persons born or naturalized in the United States and subject to the jurisdiction therefore are citizens of the United States.$B!I(J  All persons means all persons.  That's pretty easy.  Do you agree this is a fairly clear and straightforward provision of the Constitution?  

JUDGE ALITO:  There are active legal disputes about the meaning of that provision at this time.   

SENATOR SCHUMER:  Right.  But given the clear language, could Congress pass a statute, not a constitutional amendment, denying citizenship to a person born in the United States?  

JUDGE ALITO:  And I know that there are proposals to do that.  I know that it's an issue that is in play.  And if it were to come before me, then I would have to go through the whole judicial process...[1/12/06]