JUDGE SAMUEL ALITO: The President has to comply with the Fourth Amendment, and the President has to comply with the statutes that are passed. This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there would be -- there may be statutory issues involved, the meaning of the provision of FISA that you mentioned, the meaning, certainly, of the authorization for the use of military force, and those would have to be resolved.

And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there's a violation? On what basis would the President claim that what he -- that what occurred fell within the authorization of the -- of the authorization for the use of military force? And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power.

SEN. PATRICK LEAHY: But wouldn't the burden be on the government to prove that it wasn't a violation of Fourth Amendment, if you were spying on Americans without a warrant? Especially when you have courts set up, in this case the FISA court, which sets up a very easy procedure to get the warrant, wouldn't the burden be on the government in that case?

JUDGE SAMUEL ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that’s correct.

SEN. PATRICK LEAHY: Well, let me ask you another. How does anybody even -- you talk about this may come before the Third Circuit or come before the Supreme Court. I'll accept that. But how does somebody even get there? If you're having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue?

JUDGE SAMUEL ALITO: Certainly, if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court that -- in a federal court that had jurisdiction.

SEN. PATRICK LEAHY: And I'm not asking these as hypothetical questions, Judge. People are getting very concerned about this. We just found out, again, not because the government told us, but because the press found out about it -- thank God that we do have a free press, because so much of this stuff that is supposed to be reported to Congress never is, and we first hear about it when it's in the press.

But we found out that the Department of Defense was going around -- this makes me think of COINTEL-PRO during the Vietnam War -- they’re going around the country photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont. Now, I don't know why they spent all that money to do that. If they want to find somebody – if they want to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time. But I know some of these Quakers. And the Quaker tradition, they've been protesting war throughout this country's history. You know, if you have somebody who has been spied on, warrant-less spying, would you agree -- and I think you did, but I want to make sure I'm right on this -- do you agree that they should have a day in court?

JUDGE SAMUEL ALITO: Certainly, someone who has been the subject of illegal law enforcement activities, they should have a day in court, and that's what the courts are there for, to protect the rights of individuals against the government, and to -- or anyone else who violates their rights. And they have to be absolutely independent and treat everybody equally.

SEN. PATRICK LEAHY: And those Fourth Amendment rights are pretty significant, are they not?

JUDGE SAMUEL ALITO: They are very significant.

SEN. PATRICK LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor, I was a prosecutor, I think we could agree, even in our past professions, it protects us.

AMY GOODMAN: Vermont Democratic senator, Patrick Leahy, questioning Supreme Court nominee, Samuel Alito.

We turn now to the issue of abortion. Although Samuel Alito was repeatedly questioned on the issue, he said little new beyond vowing to keep an open mind. On Tuesday, Senate Judiciary Committee Chair, Arlen Specter, the Republican from Pennsylvania, opened his questioning of Alito by focusing on the issue of abortion.

SEN. ARLEN SPECTER: Let me come now to the statement you made in 1985, that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?

JUDGE SAMUEL ALITO: Well, that was a correct statement of what I thought in 1985, from my vantage point in 1985, and that was, as a line attorney in the Department of Justice in the Reagan administration. Today, if the issue were to come before me -- if I am fortunate enough to be confirmed, and the issue were to come before me -- the first question would be the question that we've been discussing, and that's the issue of stare decisis. And if the analysis were to get beyond that point, then I would have to – I would approach the question with an open mind, and I would listen to the arguments that were made.

SEN. ARLEN SPECTER: So you would approach it with an open mind, notwithstanding your 1985 statement?

JUDGE SAMUEL ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time, when I was performing a different role, and as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.

SEN. ARLEN SPECTER: Well, Judge Alito, coming to the role you had in the Solicitor General's office, where you wrote the memorandum in the Thornburgh case, urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge. But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job promotion within the federal government. So there's a little difference between the 1985 statement in your advocacy role in the Thornburgh memorandum, isn't there?

JUDGE SAMUEL ALITO: Well there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice. I'm not saying that I made the statement simply because I was advocating the administration's position, but that was the position that I held at the time, and that was the position of the administration.

AMY GOODMAN: That is Supreme Court nominee, Samuel Alito, answering questions from the Senate Judiciary Chair, Arlen Specter. Later in the day, Democratic New York senator, Charles Schumer raised more questions about Alito's 1985 statement that, quote, “the Constitution does not protect a right to an abortion.”

SEN. CHARLES SCHUMER: Judge Alito, in 1985 you wrote that “the Constitution” -- these are your words -- “does not protect a right to an abortion.” And you said to Senator Specter a long time ago -- I think it was about 9:30 this morning, 9:45 -- that those words accurately reflected your view at the time. Now let me ask you, do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it? It's okay if you distance yourself from it, and it's fine if you embrace it. We just want to know your view.

JUDGE SAMUEL ALITO: Senator, it was an accurate statement of my views at the time. That was in 1985, and I made it from my vantage point as an attorney in the Solicitor General's office, but it was an expression of what I thought at that time. If the issue were to come before me as a judge, if I'm confirmed, and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I've discussed earlier, and it's a very important doctrine, and that was the starting point and the ending point of the joint opinion in Casey. And then, if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SEN. CHARLES SCHUMER: But, sir, I am not asking you about stare decisis. I'm not asking you about cases. I'm asking you about this: the United States Constitution. As far as I know, it's the same as it was in 1985, with the exception of the 27th Amendment, which has nothing to do with what we're talking about. 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? 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’ve changed your view? You’ve distanced your view? You can give me a direct answer. It doesn't matter right now which way you answer, but I think it's important that you answer that question.

JUDGE SAMUEL ALITO: The 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.

SEN. CHARLES SCHUMER: Sir, I'm not asking for the process. Obviously, you would use a judicial mind frame. You've been a judge for 15 years. I'm asking you -- you stated what you believed the Constitution contained. You didn't say the Constitution as interpreted by this or that. You didn't say the Constitution with this exception or that exception. It was a statement you made directly. You made it proudly. You said you were particularly proud of that personal belief that you had. Do you still believe it?

JUDGE SAMUEL ALITO: And, Senator, I would make up my mind on that question, if I got to it, if I got past the issue of stare decisis, after going through the whole process that I've described. I would need to know the case that is before me. And I would have to consider the arguments. And they might be different arguments from the arguments that were available in 1985.

SEN. CHARLES SCHUMER: But, sir, I'm not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution. I'm asking you -- and not about the process you would use. I'm asking you about your view of the Constitution, because as we all know -- and we're going to talk about stare decisis in a few minutes -- that if somebody believes, a judge, especially a Supreme Court justice, that something is unconstitutional, even though stare decisis is on the books, governs the way you are, and there's precedent on the books for decades, it's still important to know your view of what the Constitution contains.

And let me just say, a few hours ago, in the same memo -- I can't remember who asked the question -- but you said -- you backed off one of the statements you had written. You said it was inapt, which taught me something. I didn't know that there was a word that was "inapt." But you said that it was inapt to have written that the elected branches are supreme. So you discussed that, your view on that issue without reference to case law, because there was no reference to case law when you wrote it. There was no reference to case law when you wrote this. Can you tell us your view, just one more time, your view about the Constitution not protecting a right to an abortion, which you have talked about before, and you said you personally proudly held that view? Can you?

JUDGE SAMUEL ALITO: The question about the supremacy -- the statement about the supremacy of the elected branches of government went to my understanding of the constitutional structure of our country, and so, certainly that's a subject that is proper for me to talk about. But the only way -- you are asking me how I would decide --

SEN. CHARLES SCHUMER: No, I'm not. I'm asking you what you believe is in the Constitution.

JUDGE SAMUEL ALITO: You're asking me my view of a question that --

SEN. CHARLES SCHUMER: I'm not asking about a question. I'm asking about the Constitution, in all due respect, and something you wrote about.




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