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DEMOCRAT SENATORS – INACCURACIES IN QUESTIONING: 1/11/06

Sen. Richard Durbin (D-IL): (At Least 2 Inaccuracies)

1.                   Senator Richard Durbin Mischaracterizes Judge Alito’s Forthcoming Nature And Credibility

2.                   Senator Richard Durbin Misleads On Judge Alito And Mining Safety

3.                   Senator Richard Durbin Misrepresents Chief Justice Roberts’ Answers Regarding Roe V. Wade

Sen. Patrick Leahy (D-VT): (At Least 1 Inaccuracy)

4.                   Senator Leahy Mischaracterizes Judge Alito’s Theory Of A Unitary Executive

Sen. Edward Kennedy (D-MA): (At Least 1 Inaccuracy)

5.                   Senator Kennedy Mischaracterizes ROTC At Princeton University

Sen. Joseph Biden (D-DE): (At Least 2 Inaccuracies)

6.                   Senator Biden Mischaracterizes Judge Alito’s Jurisprudence In Casey

7.                   Senator Biden Misstates Judge Alito’s Reasoning On Chittister

Sen. Dianne Feinstein (D-CA): (At Least 1 Inaccuracy)

8.                   Senator Feinstein Mischaracterizes Alito’s Environmental Record

Sen. Russ Feingold (D-WI): (At Least 1 Inaccuracy)

9.                   Senator Feingold Misleads On Judge Alito And The Death Penalty

Sen. Charles Schumer (D-NY): (At Least 2 Inaccuracies)

10.               Senator Schumer Misleads On Judge Alito And Roe V. Wade

11.               Senator Schumer Misrepresents Justice Ginsburg’s Answers Regarding Roe V. Wade

SENATOR RICHARD DURBIN (D-IL)

(1)        Senator Durbin Mischaracterizes Judge Alito’s Forthcoming Nature And Credibility: “But As I Listen To The Way That You've Answered This Question This Morning And Yesterday, And The Fact That You Have Refused To Refute That Statement In The 1985 Job Application, I'm Concerned. I'm Concerned That Many People Will Leave This Hearing With A Question As To Whether Or Not You Could Be The Deciding Vote That Would Eliminate The Legality Of Abortion, That Would Make It Illegal In This Country, Would Criminalize The Conduct Of Women Who Are Seeking To Terminate Pregnancies For Fear Of Their Lives And The Doctors Who Help Them.” (Sen. Richard Durbin, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

Yesterday, Judge Alito Repeatedly Answered Senators' Questions Regarding Abortion And Privacy, Consistent With His Oath As A Judge, And Consistent With The Ethical Obligations That Would Be Incumbent Upon Him As A Supreme Court Justice. 

Chairman Specter Noted That Judge Alito Had Answered More Questions Than Recent Nominees.  Even Senator Biden Noted That Alito Had Been Forthcoming.  Indeed, Judge Alito Answered A Higher Percentage (95%) Of Questions On His Opening Day Of Questioning Than Justices John Roberts (89%) Or Ruth Bader Ginsburg (79%) Did During Their Full Confirmation Hearings.

In Response To Senator Schumer, Judge Alito Explained How He Would Approach Such An Issue As A Justice.  He Said Clearly: "Today, If The Issue [Of  Abortion] Were To Come Before Me...The First Question Would Be...The Issue Of Stare Decisis.  And If The Analysis Were To Get Beyond That Point, Then I Would Approach The Question With An Open Mind And I Would Listen To The Arguments That Were Made.

·        Expanding On His Answer, Judge Alito Discussed His Views On Stare Decisis:  [T]He Doctrine Of Stare Decisis Is A Very Important Doctrine. It's A Fundamental Part Of Our Legal System.

As A Federal Judge, Alito Is Prohibited By Article II Of The Federal Constitution From Issuing Advisory Opinions About Hypothetical Cases.  Moreover, The Ethical Cannons Require Justices To Consider The Impartiality, And The Appearance Of Impartiality, Of The Judiciary.  Therefore, As Every Recent Nominee Has Recognized, It Is Improper To Answer Specific Questions About Issues That Might Come Before The Court. 

• Ginsburg Refused To Disclose Her Personal View On Reproductive Choice. “[I] Would Not Like To Answer That Question Any More Than I Would Like To Answer The Question Of What Choice I Would Make For Myself, What Reproductive Choice I Would Make For Myself. It’s Not Relevant To What I Would Decide As A Judge.” (Judge Ruth Bader Ginsburg, Committee On The Judiciary, U.S. Senate, Hearing, 7/21/93

• Ginsburg: “I Am Again Feeling In The Position Of A [Skier] At The Top Of That Hill Because You Were Asking Me How I Would Have Voted In Rust V. Sullivan. … I Think I Have To Not Descend That Slope Because Once You Ask Me About This Question, This Case, Then You Will Ask Me About Another Case That’s Over And Done And Another Case. So I Think That I Have To Draw The Line At The Cases I Have Decided.” (Judge Ruth Bader Ginsburg, Committee On The Judiciary, U.S. Senate, Hearing, 7/22/93)

(2)        Senator Durbin Misleads On Judge Alito And Mining Safety: “Two Other Judges, Both Reagan Appointees, Who Saw This Case On The Side Of The Workers, Understood That The Wording Of The Law Is As Follows: Congress Declares The First Priority And Concern Of All In The Coal Or Other Mining Industry Must Be The Safety And Health Of Its Most Precious Resource, The Miner. And Instead Of Taking The Obvious Interpretation That These Were People Working In The Mining Industry, Even If They Were Outside Of The Underground Mine And The Danger That It Presents, You Drew This Statute As Narrowly As You Could, Construed It As Narrowly As You Could, To Take The Company Position Here That These Federal And State. In This Case, The Federal Mine Safety Administration Did Not Have Jurisdiction.” (Sen. Richard Durbin, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

• In The Case Mentioned By Senator Durbin, Judge Alito Dissented From A Decision Upholding The Determination Of The Federal Mine Safety And Health Review Commission That A Facility Used Solely For The Loading Of Coal For Transport Was A "Mine" Within The Context Of The Federal Mine Safety And Health Act. 
• Judge Alito Has Approached Each Case As The Law And The Facts Required.  For Example, In Cort V. Director, Office Of Workers' Compensation Programs, 996 F.2d 1549 (3d Cir. 1993), Judge Alito Reversed A Ruling Of The Department Of Labor's Benefit Review Board, And Ordered Entry Of Judgment In Favor Of A Coal Miner Petitioning Under The Black Lung Benefits Act.

(3)        Senator Durbin Misrepresents Chief Justice Roberts’ Answers Regarding Roe V. Wade: “But Let Me Just Ask You This: John Roberts Said That Roe V. Wade Is The Settled Law Of The Land. Do You Believe It Is The Settled Law Of The Land?” (Sen. Richard Durbin, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

The Exchange Senator Durbin Referred To Came From John Robert's Hearing To Be A Circuit Court Judge In 2003.  It Is Beyond Question That For A Circuit Court Nominee, The Supreme Court's Pronouncements On Specific Questions Are Binding Precedent, The Settled Law Of The Land.

Moreover, Contrary To Senator Durbin's Suggestion, Then-Judge Roberts' Testimony At His Recent Confirmation Hearing, And Judge Alito's Testimony Today And Yesterday, Have Been Entirely Consistent.  As Chief Justice Roberts Said, "[Roe Is] Settled As A Precedent Of The Court, Entitled To Respect Under Principles Of Stare Decisis."   Similarly, As Judge Alito Said, Roe "Is A Precedent That Is Entitled To Respect As Stare Decisis And All Of The Factors That I've Mentioned Come Into Play, Including The Reaffirmation And All Of That, Then It Is A Precedent That Is Protected, Entitled To Respect Under The Doctrine Of Stare Decisis In That Way."

• CNN's Jeff Greenfield: "[When] John Roberts Said Abortion Was Settled Law He Didn't Say It As A Prospective Supreme Court Chief. He Said It As A Candidate For A Lower Federal Court, All [Lower Court] Members Are Bound By The Supreme Court." (CNN's "The Situation Room," 1/11/06)

• Greenfield: "[T]he Spread Between Roberts And Alito Is A Lot Less Than It Might Have Looked Like." (CNN's "The Situation Room," 1/11/06

SENATOR PATRICK LEAHY (D-VT)

(4)        Senator Leahy Mischaracterizes Judge Alito’s Theory Of A Unitary Executive: “Under The Theory Of Unitary Executive That You've Espoused, What Weight And Relevance Should The Supreme Court Give To A Presidential Signing Statement? … Under A Unitary Theory Of Government, One Could Argue That [The President Of The United States] Has An Absolute Right To Ignore A Law That The Congress Has Written. What Kind Of Weight Do You Think Should Be Given To Signing Statements?” (Sen. Patrick Leahy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

Nothing In Judge Alito's Record As A Judge, Or His Extra-Judicial Writings Support This Claim.

• As Judge Alito Made Clear In His Testimony Yesterday, “[N]o Person In This Country Is Above The Law....[T]hat Includes The President And It Includes The Supreme Court.  Everybody Has To Follow The Law, And That Means The Constitution Of The United States And It Means The Laws That Are Enacted Under The Constitution Of The United States...These Are The Gravest Sort Of Constitutional Questions That Come Up. And Very Often There They Don't Make Their Way To The Judiciary Or They're Not Resolved By The Judiciary; They're Resolved By The Other Branches Of The Government.”

• Senator Leahy Bases His Allegation On A Speech Judge Alito Gave In 2000 To The Federalist Society, In Which Alito Expressed Support For A Theory Known As The Unitary Executive Theory.  Senator Leahy Misunderstands That Theory.  It Regards The Location Of Executive Authority, Not Its Scope.  It Says Who Holds Executive Power - The President, Not What Is Included In The President's Power.

As Judge Alito Made Clear This Morning, In The Event That The Congress And The President Disagree Over The Constitutionality Of An Executive Action, It Is The Role Of The Courts To Resolve The Dispute.  Senator Leahy Ageed That This Is The Case.

SENATOR EDWARD KENNEDY (D-MA)

(5)        Senator Kennedy Mischaracterizes ROTC At Princeton University: “Just Moving On, You Mentioned -- And I Only Have A Few Minutes Left – You Joined CAP Because Of Your Concern About Keeping ROTC On Campus. ROTC Was A Fairly Contentious Issue On Princeton Campus In The Early 1970s. The Program Was Slated To Be Terminated In 1970, When You Were An Undergraduate. By 1973, One Year After You Graduated, ROTC Had Returned To Campus And Was No Longer A Source Of Debate. And From What I Can Tell, By 1985, It Was Basically A Dead Issue.” (Sen. Edward Kennedy, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

1985:  Concerned Alumni Of Princeton And Prospect Highlight ROTC’s Plight At Princeton:

“[Prospect Editor Dinesh] D’Souza Added That CAP Is ‘Concerned’ About The Formation Of A Third World Center, A Campaign To Eliminate The Army ROTC Program, And What It Perceives As The Decline Of Princeton Athletics.” (Charles Stile, “A Conservative Voice Targets The University,” The Princeton Packet, 2/12/85)

Kennedy Ignored CAP Disclaimer:

CAP’s Disclaimer: "The Appearance Of An Article In Prospect Does Not Necessarily Represent An Endorsement Of The Author's Beliefs By The Concerned Alumni Of Princeton.  CAP Has Never Taken A Formal Stand On Coeducation, At Princeton Or Elsewhere." (Ed., "Letters To The Editor," Prospect, Spring-Summer 1980)

SENATOR JOSEPH BIDEN (D-DE)

6.         Senator Biden Mischaracterizes Judge Alito’s Jurisprudence In Casey: “The Idea That You Acknowledge That Some Women Would Suffer Ill Effects, Substantial Ill Effects From Informing Their Husbands, But Because It Was Only A Small Percentage That Met The Undue Burden Test – That Didn't Meet The Undue Burden Test – Seems To Me –  Well, Anyway, A Majority Disagreed With You. And I Happen To Disagree With You Because I Guess – Maybe It's Because We've Been So Exposed To How So Many Women, Within Their Relationships, Can Suffer Significant Consequences For Challenging A Position That Their Husband Does Not Want To Accept, Whether It Has To Do With Abortion Or What School Their Child Goes To, And It's Pretty Consequential. But That's My Problem With How You Arrived At Your Reasoning – Your Reasoning Of How You Arrive At Your Conclusion.” (Sen. Joseph Biden, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

In His Dissenting Opinion In Casey, Judge Alito Was Extremely Sensitive To The Situation Of Women Who Would Be Affected By A Spousal Notification Provision.  Indeed, Judge Alito Has Discussed How He Wrestled With His Position In This Case.

• As Judge Alito Wrote In His Opinion:  "Needless To Say, The Plight Of Any Women, No Matter How Few, Who May Suffer Physical Abuse Or Other Harm As A Result Of This Provision Is A Matter Of Grave Concern. It Is Apparent That The Pennsylvania Legislature Considered This Problem And Attempted To Prevent Section 3209 From Causing Adverse Effects By Adopting The Four Exceptions Noted Above."

(7)        Senator Biden Misstates Judge Alito’s Reasoning On Chittister: “Well, On The Congruence And Proportionality Standard, We In The Congress Felt We Were Speaking To That. Were You Aware Or Your Colleagues –  Well, Speak For Yourself, Actually; I Know You Can't Speak For Them – That One In Four People Taking Sick Leave Under The Act Are Women For Pregnancy-Related Disabilities. We, When We Wrote The Law, Said Explicitly That We Wanted The Bill To Protect Working Women From The Dangers That Pregnancy-Based Distinctions Could Be Extended To Limit Their Employment Opportunities. Well, Congress Expressly Stated That The Purpose Of The Act Was, Quote, To Minimize The Potential For Employment Discrimination By Ensuring Generally That Leave Is Available For Eligible Medical Reasons, Including Maternity-Related Disability. And That's Why The Decision Confuses Me.” (Sen. Joseph Biden, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

As A Judge In The Case, Judge Alito Reviewed The Entire Record Developed By Congress When It Enacted The Family Medical Leave Act.  And, As Judge Alito Pointed Out In His Opinion In Chittister, The Statute Contained No Factual Findings Supporting The Conclusion That State Employers Had Discriminated On The Basis Of Sex In The Provision Of Personal Leave.  Therefore, Judge Alito Found That Provision To Violate The Constitution.

• In Addition To Judge Alito, At Least 25 Other Federal Judges Have Agreed That This Provision Of The FMLA Exceeded Congressional Authority, As Have At Least 8 United States Circuit Courts Of Appeals.

SENATOR DIANNE FEINSTEIN (D-CA)

8.         Senator Feinstein Mischaracterizes Alito’s Environmental Record: “In Public Interest Research Group Of New Jersey V. Magnesium Electron, A Citizens Environmental Group Sued A Chemical Manufacturer Under The Clean Water Act For Polluting A River Used By Members Of The Group. … Your Decision, As I Understand It, Was Based Upon Your Conclusion That The Environmental Group Did Not Have Standing To Sue Under The Clean Water Act Because Even Though Members Of The Environmental Group Had Stopped Using The River Due To The Pollution, They Did Not Prove Any Injury To The Environment.  The Decision, If Broadly Applied, Would Have Gutted The Citizen Lawsuit Provision Of The Clean Water Act. … So You See Where The Concern Comes With Respect To Overthrowing Something On A Technicality That Can Have Enormous Implications.” (Sen. Dianne Feinstein, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06 

The Facts:

Judge Alito's Vote (He Did Not Write The Opinion) In The PIRG Case Was A Straightforward Application Of The Supreme Court's Controlling Precedent In Lujan V. Defenders Of Wildlife, 504 U.S. 555 (1992), In Which The Court Required That In Order To File Suit A Plaintiff Must Allege An Actual Injury, Not Just Great Concern Over An Activity Such As Pollution.

• In Public Interest Research Group Of New Jersey, Inc. V. Magnesium Elektron, Inc., 123 F.3d 111 (3d Cir. 1997), The Plaintiffs Alleged Concern Over Alleged Pollution Of The Delaware River.  The District Court Found, As A Factual Matter, That The Challenged Activities Had Caused "No Harm" To The River, And In Fact That The Discharges "May Have Improved" The Ecosystem By Adding Certain Lacking Nutrients.  The Appeals Court Held, Therefore, That The Plaintiffs Could Not Demonstrate That They Themselves Were Actually Injured And, Thus, Could Not Bring Suit.

Alito Has A Strong Record On The Environment As Both A Federal Judge And As A Federal Prosecutor.  As A Judge On The Third Circuit, Judge Alito Has Repeatedly Ruled In Favor Of Environmental Interests, Enforcing Congress's Laws To Protect The Environment.

• Most Recently, In United States V. E.I. Dupont De Nemours & Co., 2005 WL 3489474 (3d Cir. Dec. 22, 2005), Judge Alito Joined A Majority En Banc Opinion Holding That The EPA Could Require A Polluter To Pay The Oversight Costs Incurred By The Government In The Cleanup Of A Hazardous Waste Site.
• In Southwestern Pennsylvania Growth Alliance V. Browner, 121 F.3d 106 (3d Cir. 1997), Judge Alito Upheld The EPA's Decision To Revoke Its Determination That The Pittsburgh-Beaver Valley Area Had Achieved The Clean Air Act's Ozone Targets When Later Readings Indicated That The Area Did Not Meet Air Quality Standards.
• In Pennsylvania Coal Ass'n V. Babbitt, 63 F.3d 231 (3d Cir. 1995), Judge Alito Joined An Opinion Upholding The Secretary Of The Interior's Authority To Approve State Environmental Standards That Were More Stringent Than Federal Law Requires.
• In Commonwealth Of Pennsylvania, Department Of Environmental Resources V. Conroy, 24 F.3d 568 (3d Cir. 1994), Judge Alito Held That The Pennsylvania Department Of Environmental Resources Could Collect The Administrative And Legal Expenses It Incurred In Cleaning Up A Hazardous Waste Site In The Polluter's Bankruptcy Proceedings.
• In Manor Care, Inc. V. Yaskin, 950 F.2d 122 (3d Cir. 1991), Judge Alito Held That New Jersey Could Require Polluters To Pay The State's Share Of Cleanup Costs At A Hazardous Waste Site Cleaned Up With State And Federal Money.

Before Becoming A Federal Judge, Alito Was An Admired And Successful Federal Prosecutor Who Focused His Office On The Prosecution Of Environmental Crimes.  From 1987-1990, Alito Served As United States Attorney For The District Of New Jersey, The Chief Federal Law Enforcement Officer In That State.  As United States Attorney, Judge Alito Cracked Down On Environmental Crimes, Creating A New Post Of Environmental Crimes Coordinator. 

• Among Numerous Environmental Prosecutions, He Oversaw The Prosecution Of Exxon For Failing To Pay Fines For Oil Spills That Had Occurred Over A Number Of Years
• Alito Also Brought Clean Water Act Actions Against A Number Of New Jersey Municipalities And Oversaw The A Number Of Superfund Cases, Including A Case Involving The Lipari Landfill, The Number One Site On The EPA's National Priorities List Of Polluted Sites At The Time.
• In United States V. Ciampitti, Alito's Office, Assisted By Attorneys For The Army Corps Of Engineers, Obtained An Injunction Against The Developer Of Wetlands Acreage In Cape May, New Jersey.  The Court Ordered Restoration Of The Wetlands To Their Former State And Imposed A $235,000 Fine, At The Time One Of The Largest Civil Fines Ever Imposed For Violations Of The Clean Water Act.

One Of New Jersey's Democratic Senators Has Recognized Alito's Tenure As United States Attorney As Good For The Environment.  Senator Lautenberg (D-NJ) Noted That, "[A]s Chief Federal Prosecutor For One Of The Largest Districts In The Country, [Alito] Led The Effort To Fight Big-Time Drug Rings And Organized Crime [But Also] Made Environmental Crime A High Priority."

SENATOR RUSS FEINGOLD (D-WI)

9.         Senator Feingold Misleads On Judge Alito And The Death Penalty: “According To Two Independent Studies, Your Record In Death Penalty Case Has Been More Anti-Capital Defendant Even Than Most Republican-Appointed Judges. In Fact, In Every Disputed Capital Case That You Heard – That Is, Cases In Which A Panel Of Three Judges Did Not All Agree – You Would Have Ruled Against The Defendant. How Do You Explain This Seeming Tendency To Favor The Government In Capital Cases?” (Sen. Russ Feingold, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

However, In The Nine Capital Cases In Which He Has Participated, Judge Alito Voted In Favor Of The Capital Defendant 3 Times, Or 33 Percent.  A Study By The Bureau Of Justice Statistics, Reviewing Trends In Federal Appeals From 1985 Through 1999, Found That In Criminal Appeals Resolved During 1999 By A Losing Defendant, The Defendant Secured A Reversal In Only 12 Percent Of Cases. (Department Of Justice Website, http://www.ojp.usdoj.gov/bjs/pub/pdf/fca99.pdf, Accessed 1/11/06)

SENATOR CHARLES SCHUMER (D-NY)

10.        Senator Schumer Misleads On Judge Alito And Roe V. Wade:  “So, Why Is It Only When It Comes To Roe, You Can't Tell Us Whether It's Settled, Whether It's Not Settled Or How It Is Settled?” (Sen. Charles Schumer, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06)

The Facts:

Judge Alito Was Fully Candid In Discussing His Own Prior Statement On Roe In His 1985 Job Application And Has Been Fully Forthcoming On The Approach He Would Employ In Approaching Any Case That Raises The Question Of Roe V. Wade.  He Has Explained Repeatedly That He Would Approach It Through The Judicial Process, Inquiring First Into The Principles Of Stare Decisis, And Then If Necessary Moving Onto The Merits.  He Has Outlined The Considerations That Would Be Relevant To This Inquiry, Including Reliance, Prior Precedent, And Others.

11.        Senator Schumer Misrepresents Justice Ginsburg’s Answers Regarding Roe V. Wade: “Other Judges Have Commented On Roe Being Settled And Lindsey Graham Pointed Out – He's Not Here – But Ruth Bader Ginsburg Talked About Her View And She Still Got A Lot Of Votes On The Other Side Of The Aisle.” (Sen. Charles Schumer, Committee On The Judiciary, Hearings On The Nomination Of Samuel Alito Jr. To Supreme Court, 1/11/06

The Facts:

Justice Ginsburg, At Her Confirmation Hearing, Expressly Declined To Discuss Roe Beyond The Context Of Her Own Prior Writings And The Supreme Court's Precedents.  In Her Words: "It Would Not Be Appropriate For Me To Go Beyond The Court's Recent Reaffirmation That Abortion Is A Woman's Right [In Casey]."

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