JUDGE SAMUEL ALITO: The Constitution contains the due process clause of the Fifth Amendment and the Fourteenth Amendment. It provides protection for liberty. It provides substantive protection, and the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SEN. CHARLES SCHUMER: Does the Constitution protect the right to free speech?

JUDGE SAMUEL ALITO: Certainly, it does. That’s in the First Amendment.

SEN. CHARLES SCHUMER: Well, 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, etc.?

JUDGE SAMUEL 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.

SEN. CHARLES SCHUMER: Well, okay, I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before, so any idea that you're approaching this totally fresh, without any inclination or bias, goes by the wayside. But I do have to tell you, Judge, your refusal I find troubling.

AMY GOODMAN: New York Congress member Charles Schumer, questioning Supreme Court nominee, Samuel Alito. We turn now to California Senator Dianne Feinstein. She asked about Casey v. Planned Parenthood, when Judge Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion.

SEN. DIANNE FEINSTEIN: Let me ask you about your dissent in Casey. You reasoned that most women seeking abortions are either unmarried or would tell their husbands, and therefore, few would be harmed if spousal notification was required. Justice O’Connor, on the other hand, ruled, and I quote, “The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant,” end quote. Why did you propose a different approach than Justice O’Connor?

JUDGE SAMUEL ALITO: Well, I mentioned the fact, in my opinion, that this provision applied only to married women, but I don't think that was really the focus of what I was getting at. I think -- I agree with her, that you look at the group that's affected, not the group that's unaffected, and the standard that she had, so that would be -- that would be women who fell within this provision of the Pennsylvania law, and the standard that she had articulated in the early cases, earlier cases, was, as I described it a couple of minutes ago, that an undue burden, in her view, had to be an absolute obstacle or an extreme obstacle, and it could not be simply something that inhibited some women, the "some women" phrase was her phrase, not my phrase.

SEN. DIANNE FEINSTEIN: Now, I’m going to ask you one other quote that some of my colleagues may disagree with what she said, but she said it. And that is, “A state may not give to a man the kind of dominion and control over his wife that parents exercise over their children.” Do you agree with that?

JUDGE SAMUEL ALITO: I never equated the situation of an adult woman, who fell within the notification provision of the Pennsylvania statute, with the situation of a minor who was required to provide notice. There's an analogy, and the earlier case that Justice O’Connor had decided, the Hodgson case, was a minor notification statute, but I think I made it quite clear in my opinion that this was nothing more than an analogy, and that there was no close -- that these situations were very distinct, and I was aware of that, and I think I pointed that out.

AMY GOODMAN: Supreme Court nominee, Samuel Alito, being questioned by California Senator Diane Feinstein. Republican Senator Jeff Sessions of Alabama attempted to counter the Democrats' charges that Alito is a threat to Roe v. Wade, by pointing to evidence where Alito appeared to come down on the side of protecting the right to an abortion.

SEN. JEFF SESSIONS: Judge Alito, back 20 years ago, you wrote a memorandum to Solicitor General Charles Fried, who was a law professor, I guess, before he became Solicitor General, then went back to Harvard and is there now, a brilliant legal mind. He was the Solicitor General, and you worked for him. You submitted a memorandum on a Pennsylvania case, a case that came out of Pennsylvania, and it was -- seemed to me to be a preliminary analysis of that issue and the question of whether or not that case should be -- whether the Department of Justice should intervene in that case and file a friend of the court brief. Was it a preliminary overview of the issue, and not the final brief or final summary of argument for the appeal?

JUDGE SAMUEL ALITO: And that's the Thornburgh case that you're referring to Senator. Yes, it wasn't the brief. It was a memorandum about whether the government should file a brief as a friend of the court.

SEN. JEFF SESSIONS: And you pointed out a number of points in that decision that was being questioned that I thought were -- the court had overreached and gone too far. A number of them are quite erroneous, it appeared to me, and you analyzed that very carefully. But before you concluded your argument, you suggested -- and not suggested, you stated -- that you did not think a frontal assault on Roe v. Wade would be appropriate. Is that correct?

JUDGE SAMUEL ALITO: Yes, that's correct.

SEN. JEFF SESSIONS: And was it not the position of President Reagan and the Attorney General of the United States at that time, that Roe v. Wade was wrongfully decided, and they would seek the opportunity at some point to seek the overruling of it?

JUDGE SAMUEL ALITO: That was the expressed position of President Reagan himself. He had spoken on the issue, and he had written on the issue.

SEN. JEFF SESSIONS: So your opinion to the Solicitor General as a young staff attorney in the Solicitor General's office was in some ways contrary to that of the President of the United States.

JUDGE SAMUEL ALITO: Well, I was doing what I thought my job was as an advocate, which was to outline the litigation strategy that would be in the best interests of my client, given what my client was interested in. And it seemed to me that the strategy that I recommended was the best strategy to be followed.

SEN. JEFF SESSIONS: And did they follow your suggestion?

JUDGE SAMUEL ALITO: No, they did not. They argued that Roe v. Wade should be overruled, and the Supreme Court rejected that, rejected that argument.

SEN. JEFF SESSIONS: So they, in fact, carried out a frontal assault, and it was not approved by the court. So I think that, to me, plus your other decision in which you ruled that Health and Human Services funds could be utilized to fund an abortion for those who qualified, was a closed question, that case was, I thought. There was a dissent in it. But you ruled in favor of the pro-choice, the pro-abortion side of that case, even though a dissent argued that it was in error. Is that correct?

JUDGE SAMUEL ALITO: That is correct. That's what I thought the law required. I thought we were required to defer to the Department of Health and Human Services' interpretation of the statute, and so that's how I voted. And if I had been out to implement some sort of agenda to strike down, to uphold any abortion regulation that came along, then I would not have voted the way I did in that Elizabeth Blackwell case.

AMY GOODMAN: Supreme Court nominee, Samuel Alito, responding to the questions of Republican Alabama Senator Jeff Sessions. This is Democracy Now! When we come back, we go to the portion of the hearings where he’s questioned about being a member of a discriminatory alumni group at Princeton University, as well as questions about spying.  

We continue with the Samuel Alito hearings. Senators also raised numerous questions about the constitutionality of anti-pornography laws to the 2000 case that decided the Bush-Gore election to Alito’s membership in a controversial alumni group at Princeton called the Concerned Alumni of Princeton, a group criticized for opposing the inclusion of women and minorities at the university. This is Senator Patrick Leahy of Vermont, the ranking Democrat on the Committee.

SEN. PATRICK LEAHY: You spoke eloquently of your father's experience when he came to this country. The reason it touched me, I was thinking when my grandparents, my maternal grandparents, immigrated to America, to Vermont, speaking only Italian, coming from Italy to a new country, and I know some of the problems they faced. These people speaking this strange language, my mother was a child learning English when she went to school. Why don't they speak like us? Why are they different than us? And some of the obstacles that that faced.

And my father's case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Barre, Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply" or "No Catholics need apply." And I think you and I would be in total agreement that we're now at a different world, at least most of our country and that we're better, we're better people because we've done away with that. We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father was a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree, and my sister the next one.

So, with that in mind, I was -- there was something in your background that I was very troubled with. That's the Concerned Alumni of Princeton University, C.A.P. This was a group that received attention, because it was put together, but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt were people who did not fit Princeton's traditional mold: women and minorities. Now, two prominent Princetonians: one, Bill Frist, who is now the Majority Leader of the United States Senate, in a committee roundly criticized C.A.P.; Bill Bradley, who had joined it and then found out what it was, left it, and roundly criticized it.

And yet, you proudly, in 1985, well after, well after the criticism of this, in your job application proudly put that you were a member of it, a member of Concerned Alumni at Princeton University, a conservative alumni group. Why, in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of C.A.P.?

JUDGE SAMUEL ALITO: Well, Senator, I have racked my memory about this issue, and I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time. But if I had been actively involved in the organization in any way, if I had attended meetings or been actively involved in any way, I would certainly remember that. And I don't.

And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time. And the issue that had rankled me about Princeton for sometime was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason.

And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back. And the issue kept coming up. And there were people who were strongly opposed to having any unit on campus. And the attitude seemed to be that the military was a bad institution, and that Princeton, that Princeton was too good for the military and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses were not -- didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty. And that was the issue that bothered me about that.

SEN. PATRICK LEAHY: But, Judge, with all due respect, C.A.P. was most noted for the fact that they were worried that women, too many women and too many minorities were going to Princeton. In 1985, when everybody knew that's what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials. Now, you strike me as a very cautious and careful person, and I say that with admiration, because a judge should be. But I can't believe that at 35, when you're applying for a job, that you're going to be anything less than careful in putting together such a job application. And frankly, I don't know why that was a matter of pride for you at that time. My time is up. We'll come back to this. I have other questions.

JUDGE SAMUEL ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that. And that certainly was not any part of my thinking in whatever I did in relation to this group.




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