Hearing of the Senate Judiciary Committee on the Nomination of Judge Samuel Alito to be Justice of the Supreme Court

By:  Lindsey Graham
Date: Jan. 10, 2006
Location: Washington, Dc


Hearing of the Senate Judiciary Committee on the Nomination of Judge Samuel Alito to be Justice of the Supreme Court

Graham Questioning of Judge Samuel Alito in the Senate Judiciary Committee

BREAK IN TRANSCRIPT

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.

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