Judge Alito
excerpts from confirmation hearings
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SESSIONS: Thank you, Mr. Chairman.
We've had a good hearing, I believe. A lot of exchanges have occurred.
I will agree with Senator Biden: I can't remember a nominee being this
forthcoming. You've gone into more detail and talked closer to questions
that may come up before you -- without going too far, in my opinion --
than we've seen before. You've been very open. And I've been very
impressed with your analytical spirit and your ability to handle these
cases.
We need an aggressive hearing. I agree with those who say that questions
need to be propounded to the nominee because this is the only chance,
politically, that we will have; that you will ultimately be on the bench
for life, unaccountable to the political process. So it's good to ask
questions.
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KOHL: I thank you very much, Mr. Chairman.
Judge Alito, elected officials make decisions on issues every day as we
try to best represent the people of our states. And if our constituents
do not think that the choices we make reflect their opinions, then every
few years they have an opportunity to vote for someone else.
As you know, that's not the case with the courts. Once confirmed,
federal judges have lifetime tenure and are virtually unaccountable.
And that lifetime tenure can result in a judge or in a court that is
removed from the thoughts and opinions of most Americans. As public
opinion changes on an issue, the court may cease to reflect the views of
the country.
KOHL: Right. We're asking you -- you know, I appreciate that and I
appreciate your thoughtfulness. But again, this is the only time --
today may be the last time -- that we ever have a chance as a nation to
talk to you.
So you have a thought on it? I mean, I can't believe you don't have a
thought. You know, we're not going to amend the Constitution tomorrow
based on your thought that you expressed today.
But what is your thought? Do you think it's a good thing for judges to
serve unaccountably forever, no age limits, no term limit? Or do you
think it might be the best thing for our society for judges, after a
reasonably long period of time if you so wish or at a certain age, to
phase themselves out?
ALITO: If I had been a delegate to the Constitutional Convention in
Philadelphia in 1787, which is a little hard for me to imagine, but if I
had been there, and knowing the way things work out, I guess I would
narrow the range of possibilities down to -- the range of options that I
would consider down to either life tenure or a long term of years so
that the judiciary would be insulated from being swayed by popular
opinion during a particular period as to the constitutional questions
that come before them.
And as between those, I'm not sure which I would choose. If the
judiciary is going to exercise the power of judicial review in enforcing
constitutional rights, then I would think that one of those two options
would be the best.
But I wasn't in Philadelphia in 1787. So I have (inaudible) on that
question.
_________________________________________________________
ALITO: There is no express reference to privacy in the Constitution. But
it is protected by the Fourth Amendment and in certain circumstances by
the First Amendment and in certain circumstances by the Fifth and the
14th Amendments.
CORNYN: And the reason it's protected is because the Supreme Court has
so interpreted the Constitution. Isn't that correct, sir?
ALITO: That's correct. It's a question of interpretation rather than
simply looking at what is in the text of the document.
CORNYN: So to ask you whether the right to free speech, which is
explicitly protected under the First Amendment of the Constitution, ask
you whether that's in there, and then to ask you in the same question or
at least same series of questions whether the right to abortion on
demand is in the Constitution, one is explicitly stated in the First
Amendment. The other is the product of court interpretation.
Isn't that accurate, sir?
ALITO: Yes. That's my view of it.
CORNYN: ...So I think in all fairness the question is not a fair one to
ask you whether the right to an abortion is written in this document.
The fact is and the reason why you applied the doctrine of stare decisis
is because you recognize the precedential effect, the authoritative
effect of the Supreme Court's interpretation of this document as the law
of the land, do you not, sir?
ALITO: That's correct.
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