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Date:  01/11/2006

Second Round of Graham Questioning Judge Alito


SPECTER: Thank you, Senator Feingold.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

Judge Alito, maybe we could continue with the Vanguard issue just for a moment. And I know you've been asked every conceivable combination of questions.

But Senator Feingold is very sincere about ethics in government. He practices what he preaches and he's been one of the leaders of trying to make this place operate better.

And my impression of you is that you're a good model for judges in terms of ethical conduct, based on what everybody says who knows you. I mean, I don't claim to be a close associate of yours, but the ABA has looked at this and said that it did not reflect poorly on you.

Three hundred lawyers and judges who know you have said that you're just, really, sort of, what we want in a judge. And maybe that's not enough, but that's a pretty good start.

I don't think you could get 300 people to say that about me or some of us. But the question I have -- the criminal prosecutor or lawyer in me has this question to ask -- why would you make a conscious decision not to recuse yourself?

Why would Judge Alito sit down in the corner of a room and say, I think I've got a conflict, but I'm just going to let it go and hear the case anyway?

I am baffled as to why you would make a conscious decision in this situation not to recuse yourself. Do you have an explanation?

ALITO: There's no reason why I would make such a conscious decision. I had nothing whatsoever to gain by participating in this case and nobody has suggested that I did.

This case involved some thousands of dollars. Vanguard manages billions of dollars of funds. The idea that the outcome of this case could have some effect on the mutual funds that I hold is beyond preposterous, and I don't understand anybody to have suggested anything like that.

GRAHAM: Well, I've been asking myself that question quietly. What is in it for this guy? Why would he bring all this grief upon himself consciously? Is it to intentionally break a promise to the Senate so you'd go through hell for three days? I don't think so. (LAUGHTER)

So I'm going to accept you at your word, like the ABA, and I'm going to move on. And I don't know if anybody else will.

Now, your days at Princeton. The more I know about Princeton, it's an interesting place. (LAUGHTER)

What is an eating society?

ALITO: The eating clubs are privately owned facilities that upper classmen join for the purpose of taking their meals. The first two years, when I was there -- the situation is now a bit more diversified as far as eating is concerned -- but when I was there, and traditionally the freshmen and sophomores ate in university dining halls. And then, as juniors and seniors, they had to find other places to eat, and these were private facilities.

GRAHAM: What is a selective eating society?

ALITO: It's one where you apply to be a member, like a fraternity, and you go through a process that is somewhat similar to that, and they select you if they like you.

GRAHAM: Were you a member of a selective eating society?

ALITO: No, I was not.

GRAHAM: Did people not like you or you just didn't apply? (LAUGHTER)

ALITO: I didn't apply.

GRAHAM: Well, let me tell you who did apply. Donald Rumsfeld was a member of a selective eating society at Princeton. And that's an interesting comment, I thought. Woodrow Wilson. Jim Leach, good friend of mine over in the House.

Mitch Daniels, the governor of Indiana, was a member of a nonselective eating society. Senator Claiborne Pell was a member of nonselective eating societies.

And other Princeton alumni who are members of Congress could not verify their participation or lack thereof in eating clubs, including Senator Sarbanes, Bond, Frist and Representative Marshall.

And I promise you I'll get to the bottom of that before this is all done. (LAUGHTER)

Now, this organization that was mentioned very prominently earlier in the day, did you ever write an article for this organization?

ALITO: No, I did not.

GRAHAM: OK.

And some quotes were shown, from people who did write for this organization, that you disavowed. Do you remember that exchange?

ALITO: I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly...

GRAHAM: If you don't mind the suspicious nature that I have is that you may be saying that because you want to get on the Supreme Court; that you're disavowing this now because it doesn't look good.

And really what I would look at to believe you're not -- and I'm going to be very honest with you -- is: How have you lived your life? Are you really a closet bigot?

ALITO: I'm not any kind of a bigot, I'm not.

GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it -- but that's a good enough reason, because you seem to be a decent, honorable man. I have got reams of quotes from people who have worked with you, African American judges -- I've lost my quotes.

Judge Higginbotham -- I don't know where they're at. But glowing quotes about who you are, the way you've lived your life; law clerks, men and women, black and white, your colleagues who say that Sam Alito, whether I agree with him or not, is a really good man.

You know why I believe you when you say that you disavow those quotes? Because the way you have lived your life and the way you and your wife are raising your children.

Let me tell you this: Guilt by association is going to drive good men and women away from wanting to sit where you're sitting. And we're going to go through a bit of this ourselves as congressmen and senators.

People are going to take a fact that we got a campaign donation from somebody who's found out to be a little different than we thought they were -- and our political opponent's going to say, Aha, I got you!

And we're going to say, Wait a minute. I didn't know that. I didn't take the money for that reason.

And you know what? I'm going to believe these senators and congressmen for the most part, because that's the way we do our business. We meet people here every day. We have photos taken with people -- and sometimes you wish you didn't have your photo taken.

But that doesn't mean that you're a bad person because of that association.

Judge Alito, I am sorry that you've had to go through this. I am sorry that your family has had to sit here and listen to this.

Now let's talk about another time not so long ago -- and another judge and some of her writings -- and see if the Senate is changing for the better or for the worse.

GRAHAM: Justice Ginsburg, who I need to go have a cup of coffee with because I constantly bring her up and I do not dislike the lady; I admire her.

But let's put it bluntly, under today's environment, from a conservative's point of view, she would have a very hard time because Justice Ginsburg was the general counsel for the ACLU from 1973 to 1980.

And if you want me to tar somebody by their association, I can put up some pretty wild cases from my point of view where she was involved.

But you know what? I respect her because her job as an attorney for the ACLU is to represent the most unpopular causes.

And as far as I can tell during her time with the ACLU, she was honest, she was ethical and she fought for the most unpopular causes. And, for that, I respect her.

But you've put some things down on an application about your view of the law in Roe v. Wade and it's taking an unbelievable effort on your part, I think, to convince people that, when I was a lawyer, I did this, when I applied for a job, I was doing this, and as a judge, I will do this.

Here is what Justice Ginsburg said in an article she wrote titled, Some Thoughts on Autonomy and Equality in Relationship to Roe v. Wade.

The conflict, however, is not simply one between a fetus' interest and a woman's interest narrowly conceived, nor is the overriding issue state versus private control of a woman's body for a span of nine months. Also, in the balance is a woman's autonomous charge of her full life's course, her ability to stand in relation to men, society and to stay as an independent, self-sustaining equal citizen.

She wrote further, As long as the government paid for childbirth, the argument proceeded public funding could not be denied for abortion, often a safer and always a far-less expensive course short and long term. By paying for childbirth but not abortion, the government increased spending and intruded upon or steered a choice Roe had ranked as a woman's fundamental right.

The public funding of abortion decisions denying a requirement of public funding appear incongruous following so soon after the intrepid 1973 ruling. The court did not adequately explain why the fundamental choice, principle and trimester approach, embraced in Roe did not bar the sovereign at least at the pre-viability stage of pregnancy from taking sides and being required to provide funding for the abortions of poor women.

If that writing doesn't suggest an allegiance to Roe, that writing doesn't suggest from her point of view as the author of that article not only is Roe an important constitutional right, that government ought to pay for abortions in certain circumstances.

GRAHAM: If she were here today and a Democratic president had nominated her and we take on the role that our colleagues are playing against you, not only would she not have gotten 96 votes, I think she would have been in for a very rough experience.

And what's changed? Justice Ginsburg openly expressed a legal theory about Roe v. Wade. My question to you: If I am arguing a case that would alter Roe v. Wade, would I have the ability because of her prior writings to ask her to recuse herself based on those writings alone?

ALITO: I don't think you would, Senator. I think it is established that prior writings of a member of the judiciary do not require the recusal of that member of the judiciary.

GRAHAM: I think you're absolutely right, Judge. And let me tell you what she said at the hearing when it was her time to sit where you're sitting. You ask me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman's life, to her well-being and dignity. It is a decision that she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.

A sentiment I think our pro-choice colleagues share, a sentiment that I disagree with because I think the decision does affect humanity, and that's the unborn child.

I don't question her religion. I don't question her patriotism. She gave an answer that was very honest and was very direct.

And pro-life Republicans and pro-life Democrats never thought about disqualifying her. She didn't go through what you went through. Pro-life Republicans and pro-life Democrats set her comment aside and judged her based on her whole record and believed she was worthy to sit on the Supreme Court and she got 96 votes.

And what you've said in your writings about the other side of the issue pales in comparison to what she said before she came to this body. I don't know how many votes you're going to get. You're going to get confirmed. And it's not going to be 96. Judge Roberts got 78, and I'm afraid to say that you're probably going to get less.

To my colleagues, I know abortion is important. It's important to me. It's important to you. I know it's an important, central concept in our jurisprudence. But we can't build a judiciary around that one issue.

GRAHAM: We can't make judges pledge allegiance to one case. We can't expect them to do things that would destroy their independence. You can vote yes; you can vote no; you can use any reason you would like.

I just beg my colleagues: Let's don't go down a road that the country can't sustain and the judiciary will not be able to tolerate.

People set aside her writings, set aside her candid statement and gave her the benefit of the doubt that she would apply the law when her time came. She replaced Justice White.

We knew that that vote was going to change. I don't think any Republican had any doubt that, if there was a Roe v. Wade issue, she would vote differently than Justice White. But you never know.

The one thing I can tell the public about you and John Roberts is that you're first round NFL draft picks, but I don't know what you're going to do 10 or 20 years from now because I think you are men of great integrity.

And I may be very well disappointed in some of your legal reasoning, but I'll never be disappointed in you if you do your job as you see fit.

The last thing I'm going to read -- do you know Cathy Fleming?

ALITO: I do. She was an attorney and supervisor in the U.S. Attorney's office in New Jersey.

GRAHAM: Did you ask her to write a letter on your behalf?

ALITO: I did not, no.

GRAHAM: Judge Alito did not ask me to write this letter. I volunteered. (LAUGHTER) I'm glad you said that, by the way. (LAUGHTER) I'm a lifelong Democrat. I am the president-elect of a national women's bar association. I chaired the corporate integrity and the white collar crime group at a national law firm. I do not speak on behalf of either my law firm or the women's bar association. I speak for myself only. But, by providing my credentials as an outspoken women's rights advocate and liberal-minded criminal defense attorney, I hope you will appreciate the significance of my unqualified and enthusiastic recommendation of Sam Alito for the Supreme Court.

Sam possesses the best qualities for judges. He's thoughtful; he's brilliant; he's measured; he's serious; and he's conscious of the awesome responsibilities imposed by his position.

I cannot think of better qualities for a Supreme Court justice. It is my fervent hope that politics will not prevent this extraordinary, capable candidate from serving as associate justice on the United States Supreme Court.

GRAHAM: I share her hope.

Thank you. I yield back my time.

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