- The Washington Times - Wednesday, January 11, 2006

The following are excerpts from the Senate Judiciary Committee confirmation hearings yesterday for Judge Samuel A. Alito Jr. for a seat on the Supreme Court:

Sen. Richard J. Durbin, Illinois Democrat: John Roberts said that Roe versus Wade is the settled law of the land. Do you believe it is the settled law of the land?

Judge Alito: Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973, so it’s been on the books for a long time. It has been challenged on a number of occasions … and I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis, for at least two reasons. First of all, the more often a decision is reaffirmed, the more people tend to rely on it. And secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices … . And when they examine a question, and they reach a conclusion, I think that’s entitled to considerable respect.

Sen. Sam Brownback, Kansas Republican: The Congress has passed the Defense of Marriage Act. DOMA … basically did two things: first, establishes, for purposes of federal law, marriage would be defined as the union of a man and a woman, and second, it provides that no state would be forced to recognize a marriage entered into in another state. [A] number of legal scholars believe that this second part violates the full faith and credit clause of the Constitution. … What’s your understanding of the meaning of the full faith and credit clause? And does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states?

Judge Alito: … The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state. … The doctrine has … certain boundaries to it. There are exceptions, and it covers certain areas and doesn’t cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine, and I believe that scholars have expressed differing views about how it would apply in that situation.

Sen. Patrick J. Leahy, Vermont Democrat: … Does the president have unlimited power just to declare a statute, especially if it’s a statute that he had signed into law, to then declare it unconstitutional, he’s not going to follow it?

Judge Alito: If the matter is later challenged in court, of course the president isn’t going to have the last word on that question, that’s for sure. And the court would exercise absolutely independent judgment on that question. It’s emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the courts.

Sen. Orrin G. Hatch, Utah Republican: … How do you react to this suggestion that the way you’ve ruled in the past shows or even suggests that you’re biased and that entire categories of litigants may not get a fair shake before you?

Judge Alito: Well, I reject that. I believe very strongly in treating everybody who comes before me absolutely equal. … And I don’t think a judge should be keeping a score card about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We’re supposed to do justice on an individual basis in the cases that come before us.

Sen. Edward M. Kennedy, Massachusetts Democrat: … You promised the committee that you would recuse yourself on Vanguard issues. Now, I’m just hearing from you that you believe that that pledge was somehow a condition. … You made a pledge to the Senate, effectively, to the American people that you’re going to recuse yourself. Now, you say, “Well, it was just for an initial time, and I think 12 years is more than I really had in mind,” or you just qualified your answer. How long when you made that pledge and that promise to the committee, how long did you intend to keep it?

Judge Alito: As I said, I can’t tell you 15 years later exactly what I thought when I read that question. It refers to the initial period of service. And looking at it now, it doesn’t seem to me that 12 years later is the initial period of service.

Sen. Jeff Sessions, Alabama Republican: Chief Justice Roberts, in his hearings … indicated that he was concerned about activism by the court, overreaching by the court, and he felt that this overreaching — created a danger that it could undermine respect for law in our country. Do you share that view?

Judge Alito: I agree that overreaching by the courts can undermine respect for law. Our authority is based on the belief that what we are doing is different from what Congress is doing, because otherwise, why would people tolerate our functioning? Nobody elects us. And we have a system of government that is fundamentally democratic. It’s based on the sovereignty of the people, so how do you explain an unelected branch of government making decisions? So all of our authority is based on the idea, which was expressed in Marbury versus Madison, that the Constitution is law. It’s not conceptually different from statutory law, and our job is to interpret the Constitution.

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