SEN. PATRICK LEAHY: Or my background, either, Judge. Or my background, either.

AMY GOODMAN: Moments after Senator Leahy stopped questioning Samuel Alito about the Concerned Alumni of Princeton, Republican Orrin Hatch of Utah took up the issue.

SEN. ORRIN HATCH: But you were not a founding member?

JUDGE SAMUEL ALITO: I certainly was not a founding member.

SEN. ORRIN HATCH: You were not a board member?

JUDGE SAMUEL ALITO: I was not a board member.

SEN. ORRIN HATCH: Or, for that matter, you were not even an active member of the organization, to the best of your recollection.

JUDGE SAMUEL ALITO: I don't believe I did anything that was active in relation to this organization.

SEN. ORRIN HATCH: Now, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were somehow against the rights of women and minorities attending colleges. So let me just ask you directly, on the record, are you against women and minorities attending colleges?

JUDGE SAMUEL ALITO: Absolutely not, Senator, no.

SEN. ORRIN HATCH: Now, I felt that that would be your answer, I really did. It's a good question though, it's one that kind of overcomes the implications that you were.

JUDGE SAMUEL ALITO: Senator, I had never attended a non-coeducational school until I went to Princeton. And after I was there a short time, I realized the benefits of attending a coeducational school.

AMY GOODMAN: Judge Alito answering questions from Republican Senator Orrin Hatch. The issue of domestic spying was raised several times, including by Democrat Russell Feingold of Wisconsin.

SEN. RUSSELL FEINGOLD: I want to come back to Mitchell v. Forsyth, which you participated in the Solicitor General's office. As we've already heard, that case considered the government's argument that President Nixon's Attorney General, John Mitchell, should be granted absolute immunity for authorizing warrant-less wiretaps. And you signed the government's brief, making that argument. The Supreme Court rejected the claim of absolute immunity, noting that the Attorney General acting in the inherently secretive nationally security context has few built-in restraints. Justice White, writing for the court in Mitchell, said, quote, “The danger that high federal officials would disregard constitutional rights in their zeal to protect national security is sufficiently real to counsel against affording such officials an absolute immunity,” unquote. And that statement still has a lot of relevance today, doesn't it?

JUDGE SAMUEL ALITO: Yes, it does. Absolute immunity is quite restricted under our legal system. But there are some high-ranking officials in all three branches of the government, who do have absolute immunity, just from civil damages, not from criminal liability or from impeachment or removal from office. But for -- or for injunctive relief. They can be ordered to comply with the Constitution. But as far as civil damages are concerned --

SEN. RUSSELL FEINGOLD: But when you were at the Solicitor General's office, you wrote this memo about the case, saying, quote, “I do not question the Attorney General should have this immunity,” quote, “for authorizing warrant-less wiretaps.” Why did you not question the Attorney General's absolute immunity?

JUDGE SAMUEL ALITO: First of all, because it was the position that our client, whom we represented in an individual capacity, and it was his money that was at stake here, wanted to make. So we had an obligation that was somewhat akin to the obligation of a private attorney representing a client. Secondly, it was an argument to which the department was committed. It had been made in Kissinger v. Halperin in the Carter administration. It was repeated in Harlow v. Fitzgerald in the Reagan administration. In Harlow v. Fitzgerald, the Supreme Court, while rejecting the idea that cabinet officers in general should have absolute immunity from civil damages, had said something like -- and I'm not going to be able to provide an exact quote -- but something like, ‘but the situation could well be different for people who are involved in insensitive national security matters.’

AMY GOODMAN: Judge Samuel Alito, responding to Senator Russell Feingold. We finally turn to Senator Joseph Biden, the Delaware Democrat, speaking on the significance of the confirmation vote before the Senate Judiciary Committee.

SEN. JOSEPH BIDEN: Every nominee who comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here. One is, the first one is, individual qualifications and what their constitutional methodology, their views are, their philosophy. But the other is, and it always occurs, whose spot they're taking and what impact that would have on the court. Everybody wrote with Roberts after the fact. And a lot of people voted with Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist, so Roberts for Rehnquist, you know, ‘What's the worst that can happen?’ quote-unquote. ‘Or the best that can happen?’ Now, I'm not being if facetious. What’s the best or worst? If you're conservative, the best that can happen is he's as good as Rehnquist; from the standpoint of someone who's a liberal, the worst that can happen, he's as good as Rehnquist.

So, I mean -- but you are replacing -- I mean, we can't lose this, and so people understand this, you are replacing someone who has been the fulcrum on an evenly -- otherwise evenly-divided court. And a woman whose -- most scholars who write about her and in the retrospective about her say this is a woman who viewed things from -- the phrase you've used -- "a real-world perspective." This is a former legislator. This was a former practitioner. This was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that what would happen to an individual. So her focus on the impact on individuals was sometimes criticized and praised. It's just important you understand, at least from my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country, by shifting the balance 5-4, 4-5, one way or another.

AMY GOODMAN: Delaware Democrat, Joseph Biden. And that does it for today's broadcast. We will continue with the Alito hearings tomorrow.

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