- The Washington Times - Thursday, January 12, 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. Patrick J. Leahy, Vermont Democrat: … Would you agree that a patient would have a right — for example, if you have a living will, you have a right to designate somebody who can speak for you in a case of terrible injury or [unconsciousness], can speak for you on a do not resuscitate or do not use heroic measures, all the rest. Do you agree with that?

Judge Alito: Yes, senator. That’s, I think, an extension of the traditional right that I was talking about that existed under common law. And it’s been developed by state legislatures, and in some instances by state courts, to deal with the living will situation and with advances … in medical technology, which create new issues in this area.

Sen. Joseph R. Biden Jr., Delaware Democrat: Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there’s an immediate threat to our national security?

Judge Alito: … The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously, that means something. It gives Congress the power of the purse, and obviously, military operations can’t be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an army, to maintain a navy, to make the rules for governing the land and the naval forces. The president has the power of the commander in chief. And I think there’s been general agreement and the Prize Cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.

Sen. Jeff Sessions, Alabama Republican: … You’ve been asked a lot about separation of power, FISA [the Foreign Intelligence Surveillance Act] and those kinds of things. This Congress has not clarified its position. As a judge, if some of these issues were to come before you, involving congressional power or something, you would expect the Congress to have formulated its position first, would you not?

Judge Alito: Well, that would certainly be very helpful. These are momentous issues and they’re difficult issues, and they’ve just come to the surface in the last few weeks. And I couldn’t begin to say how I would decide any of these issues without going through the whole judicial decision-making process. I think it would be the height of irresponsibility for me to try to do that.

Sen. Herb Kohl, Wisconsin Democrat: … If confirmed, you’ll be replacing Justice [Sandra Day] O’Connor, who is a justice who will be remembered by history as one of the most influential justices of the 20th century. … How will you be different from her? … How do you think Justice O’Connor ought to be remembered? … And how are you like or not like Justice O’Connor as a judge?

Judge Alito: She certainly will be remembered for many reasons and I think with great admiration by … the American people … and I think that when people look back they will have great admiration for her work. She obviously was a pioneering figure and was an inspiration for many people. … She has been a very dedicated justice and has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts. … I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. …

Sen. Dianne Feinstein, California Democrat: … If we have explicit authority under the Constitution to pass a law, and we pass that law, is the president bound by that law, or does his plenary authority supersede that law?

Judge Alito: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes … precedence over a statute. But in general, of course the president and everybody else is bound by a statute. There’s no question about that whatsoever. And the president is explicitly given the obligation, under Article II, to take care that the laws are faithfully executed. …

Sen. Russell D. Feingold, Wisconsin Democrat: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?

Judge Alito: Well, the Fifth Amendment prohibits compelled self- incrimination, and it has long been established that evidence that is obtained through torture is inadmissible in our courts. That’s the governing principle.

Sen. Charles E. Schumer, New York Democrat: Let’s just assume that it was found that the president’s right to wiretap people the way we’re discussing it now, in terms of the recent NSA [National Security Agency] revelations, was found constitutional. … Does that necessarily allow the president to then go ahead and go into people’s homes here in America, American citizens’, without a warrant? Does the one necessarily lead to the other?

Judge Alito: … I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.

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