- Senate Judiciary Committee Republicans on Thursday charged
their Democratic colleagues with trying to smear Samuel Alito's reputation
and character because they haven't been able to find anything legally wrong
with confirming him to the Supreme Court.
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- Democrats argue that their questions are appropriate
and they should delve into all aspects of a nominee for the highest court
of the land, including the reasoning behind some of the his actions.
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- "I know the judge probably thinks he's doing nothing
here but being on the hot seat but we're talking about a lifetime appointment,"
the committee's ranking Democrat, Sen. Patrick Leahy of Vermont, said Thursday.
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- But Sen. John Cornyn, R-Texas, said a lot of "wild"
and "unsubstantiated" claims have been made about Alito's character
during the week's confirmation hearing.
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- "We see same old repeated questions and attacks.
I think it's the last dying gasp of an attempt to defeat this nominee,"
he said. Cornyn and Sen. Orrin Hatch, R-Utah, argued that if an entire
panel of independent judges raved about Alito's capacity to adjudicate,
senators should accept those endorsements.
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- "I don't think that you can have a better recommendation
than the people that you worked with and the people that you spend the
greatest amount of time with and the people who see you under stress, who
make evaluations," added Sen. Tom Coburn, R-Okla.
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- "And the greatest tragedy, I think, of this hearing
is the allegations that have been made that aren't substantiated based
on fact, but are substantiated on the basis of the fact that you want to
try to destroy somebody's character and undermine their character to make
them look a certain way in which they're not."
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- Sen. Jeff Sessions, R-Ala., noted that the American Bar
Association has interviewed more than 300 of Alito's colleagues, who both
support and oppose the nomination.
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- "They rate you the highest possible rating. They
don't see you as an extremist, out of the mainstream or otherwise,"
said the Alabama Republican.
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- Judiciary Committee Chairman Arlen Specter, R-Pa., excused
Alito early afternoon Thursday, wrapping up two-and-a-half days of questions
for the Supreme Court nominee about everything from abortion and presidential
powers to his association to a controversial Princeton alumni group and
a failure to recuse himself on one case.
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- Of the more than 700 questions asked of the nominee during
the hearing, 120 related to presidential power and 105 were about abortion
rights. Other big topics were judicial philosophy with 86 questions, ethics
and the commerce class, of which 64 questions were asked of each. Forty-nine
questions related to Alito's membership in the Concerned Alumni of Princeton,
a now defunct group whose founder wrote articles seen as elitist and racist.
Alito answered 26 questions relating to race issues.
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- So far, Alito appears to have said nothing striking enough
to drive opinion against him, forcing lawmakers to re-evaluate their positions.
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- As of Thursday, the committee was to meet next Tuesday
to begin debating Alito's nomination. Specter wants a committee vote then,
but Democrats are expected to delay it for a week.
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- Senate Democratic Leader Harry Reid of Nevada is "urging
all Democrats to refrain from committing to a vote either for or against
confirmation prior to the caucus next Wednesday," said spokesman Jim
Manley.
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- Democrats Still Worried
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- After committee members went into the routine, closed
session to review the FBI file of the nominee, a panel of seven judges
who have worked with Alito testified that he is a man of great intellect
and respect for the law, and he is a careful jurist who does not let his
personal views taint his rulings. Had they not seen those qualities in
him, they said they would not have agreed to testify.
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- The American Bar Association has found that Alito has
the "proper judicial conduct and evenhanded application in seeking
to do what is fundamentally fair," said Stephen Tober, chairman of
the ABA's Standing Committee on the Federal Judiciary. "His integrity,
his professional competence and judicial temperament is indeed found to
be of the highest standard."
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- Judge Edward Becker, who sits on the U.S. Court of Appeals
in Philadelphia and has sat with Alito on over 1,000 cases, said he has
never seen Alito's personal views reflected in his decisions.
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- Judge Anthony Scirica of the Third Circuit Court of Appeals
in Philadelphia, acknowledged he has not always agreed with Alito's decisions
but said he has never seen signs of a predetermined outcome or view in
Alito.
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- "In 15 years on the court of appeal, Judge Alito
has more than earned his keep. He is a thoughtful, careful, principled
judge that is guided by a deep and abiding respect for the law," Scirica
said.
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- Former 3rd Circuit Court of Appeals Judge Timothy Lewis,
who said he is openly pro-choice and is a civil rights advocate, added
that Alito possesses the "most important qualities for anyone who
puts on a robe.
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- "We have different views and different approaches
but never would I suggest, would it seem to me that he ever held any hostility
to civil rights," Lewis said.
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- Leahy and Sen. Dick Durbin, D-Ill., declined to ask questions
of the "unprecedented" panel of sitting judges. Sen. Russ Feingold,
D-Wis., said earlier this week that ethical problems arise from having
these witnesses testify since their cases may someday come before Alito
in the Supreme Court.
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- "If Judge Alito becomes a member of the Supreme
Court, he'll have to rule on appeals from their decisions so I think rather
than to create a difficult situation for them or Judge Alito if he is confirmed,
I think I will not avail myself of the chance to ask questions of this
unprecedented panel," Leahy said.
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- Specter ended the panel by saying the judges' input has
been of great importance to the confirmation process. "I know of no
situation where witnesses have had more to say that is weighty," he
said.
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- Cornyn submitted for the record a list of sitting judges
have testified during the confirmation hearings.
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- "I regret, your honors, you somehow got sucked into
the contentiousness and unfairness that occurs sometimes ... these hearings
have become, in the process, an adversarial process," he added.
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- On Air Force One Thursday afternoon headed to Florida,
President Bush called Alito to congratulate him for performing well in
the hearings and to reiterate his appreciation for Alito serving on the
nation's highest court. He said Alito "showed great class" and
that he "was proud of the way" Alito handled himself during the
four days of the hearing.
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- Earlier, Democratic Sens. Edward Kennedy of Massachusetts
and Charles Schumer of New York indicated that they did not hear enough
from Alito this week to convince them he should be confirmed. Leahy said
he continues to be "worried" that Alito would protect all Americans'
fundamental rights if confirmed.
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- "We started these hearings seeking answers. We've
come with even more questions about Judge Alito's commitment to the fairness
and equality for all," Kennedy said. "We're not expecting judges
to produce particular results in their decisions, but we do expect fairness
for understanding the real-world impact of their decisions. Frankly, it
would be more comforting if Judge Alito gave individuals the same benefit
of the doubt in his courtroom that he's asking from this committee on Vanguard,
CAP, the unitary executive and women's privacy."
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- "I am very troubled, not so much about your personal
history," Schumer added, but that the judge's record "contains
evidence that does not protect the women's right to choose" and defers
too much to an increasingly powerful executive branch.
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- Leahy said in a stakeout during a committee break: "On
almost no issue did Judge Alito distance himself from past opinions ...
I think that hearings have presented an opportunity for Judge Alito to
meet a burden of proof but he has shied away from that. ... I remain disappointed."
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- What may add fuel to that Democratic argument that Alito
defers too much to the executive branch is the testimony of Goodwin Liu,
an assistant law professor at the University of California. He said he
studied Alito opinions on which government wields great power on issues
such as immigration and Fourth Amendment cases.
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- Alito sided with the government in 48 out of 52 cases
in this arena, Liu said, and agreed with the government over 90 percent
of the time in contested cases.
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- Lessons of Terri Schiavo
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- Leahy cited the case of Terri Schiavo, the severely brain-damaged
Florida woman who was at the center of a fierce fight last year between
her husband and family over whether she should live or die. That fight
involved the courts, Congress and even President Bush.
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- Leahy asked: If a person has a living will, could he
designate someone to decide whether to use extraordinary measures to keep
him alive?
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- "Yes, that's 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 state courts to deal with the
living will situation," Alito said.
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- Terri Schiavo had no formal living will, however; her
husband and some friends claimed she told them in passing that she would
not want to be kept artificially alive. But her family did not accept that.
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- Leahy and Specter also said they wanted to make sure
Alito didn't think Congress could take away jurisdiction over the federal
courts on First Amendment issues, which were the underpinning of the Schiavo
case.
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- The nominee's involvement in the controversial Concerned
Alumni of Princeton group has been a source of much contention. CAP is
a conservative group formed in 1972 to, in part, challenge Princeton University's
decision to admit women and minorities and protest the school's treatment
of the ROTC program.
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- Alito has claimed he doesn't remember being active in
the group yet Democrats want to know why he put it on his 1985 job application
for a position in the Reagan administration. Alito has said he "deplores"
the articles in CAP's magazine, Prospect, that exude racist or elitist
sentiment.
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- Specter opened the Thursday session by announcing that
an examination of four boxes of hundreds of documents at the Library of
Congress from CAP founder William Rusher found no mention of Alito. According
to Rusher, Alito didn't attend CAP meetings nor was he heavily involved
- if at all involved - in the organization.
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- "The files contain dozens of articles, including
investigative exposes written at the height of the organization's prominence,
but Sam Alito's name is nowhere to be found in any of them," Specter
said.
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- Beating a 'Dead Horse?'
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- Alito has said his participation in the 2002 Vanguard
case was an oversight but both he and the ABA have said he didn't do anything
wrong nor did he gain anything from his participation. Alito owns six-figures
worth in shares in the mutual funds company. Whereas Alito told the committee
in 1990 that he would recuse himself if any Vanguard cases came up, he
didn't do it until after he ruled on the case 12 years later.
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- Kennedy on Thursday referred to Republicans who find
it "shocking" that Democrats would continue questioning Alito
on this, but he said, "the real shock is Judge Alito failed to take
his sworn promise to this committee more seriously."
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- "I am one of those judges who takes recusals very,
very seriously," Alito said. "I have not been giving conflicting
answers but I have been asked different questions."
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- "I really think bringing up the Vanguard or Princeton
matter really goes beyond the pale at this point," Hatch shot back,
adding that Alito did more than he needed to to later rectify the situation.
"Certainly no law said you had to recuse yourself from that case.
... My gosh, how many times do we have to beat that dead horse?"
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- Becker said his wife owns Vanguard shares, as well, but
is not considered an "owner" and he doesn't recuse himself from
Vanguard cases.
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- John Payton, the federal circuit representative of the
ABA's Special Committee on the Federal Judiciary, said that Alito has recused
himself from more than 1,000 cases and that his organization accepts Alito's
explanation that it was an unintentional slip-up.
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- "In the end, he did acknowledge that it was his
responsibility, that a mistake and error had been made, that mistake should
have been caught and he should not have heard those cases," Payton
said. "We accepted his explanation that he simply made a mistake.
... We think that did not reflect in any significant degree on his integrity."
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- Alito: 'I Am My Own Person'
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- Sen. Herbert Kohl, D-Wis., wanted to know if Alito will
emulate retiring Associate Justice Sandra Day O'Connor, who was often a
swing vote on an otherwise divided court.
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- "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 other courts should carry out. That
is a central feature of the best traditions of our judicial system,"
Alito responded by saying.
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- But no judge should ever try to duplicate someone they
are trying to replace, Alito added.
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- "We all have to proceed in accordance with our own
abilities and our own outlook. We all have to be who we are but I think
we can emulate the great jurists of the past ... "I'd be the same
sort of justice on the Supreme Court as I've been a judge on the court
of appeals. I am my own person."
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- Alito also said the courts should not sway according
to public opinion.
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- "I think the courts are structured the way they
are so they're cases are not decided by public opinion," Alito said.
If that were meant to be the case, the founders would have made judges
federal officials like they are in many states. "They gave them lifetime
tenure because they thought there was a critical difference between deciding
cases under the constitution and the laws and responding to public opinion."
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- Alito has consistently said that precedent would be the
first thing to take into account when considering a case.
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- On other issues, Alito said:
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- -The Constitution prevents the conviction and death sentence
of the innocent and if DNA evidence or other information surfaces at the
11th hour to cast doubt on one's conviction, the case should be reviewed.
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- -The "Rule of Four" is a "sensible procedure."
It takes five Supreme Court justices to agree to hear a last-minute death
penalty case; the rule says that if only four agree, a fifth justice will
join in out of courtesy to bring about a stay of execution.
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- "I think we all want to avoid the tragedy of having
an innocent person executed or having anyone executed whose constitutional
rights have been violated," Alito said.
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- -In the eminent domain case of Kelo v. City of New London,
Ct., the Supreme Court said private property can be taken by government
for public use, whether it be a park or a shopping mall. Alito said precedent
would be his first consideration if he ever had to look at the case, but
added that he would take other merits of the case into consideration.
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- "I know that it touches some very sensitive nerves.
When someone's home is being taken away using the power of eminent domain,
that is a blow to a lot of people, even if they're going to get compensated
at fair-market value for their home. The home often means more to people
than dollars and cents," Alito said.
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