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714 Ruled. He Did Not. You Need Only Read That Memo Because He Said in That Memo That We Should Not Argue That Roe V 714 ruled. He did not. You need only read that memo because he said in that memo that we should not argue that Roe v. Wade should be overruled. I didn’t follow that advice, but that was what the ad- vice was. Similarly, it said that he argued for the absolute immunity of the Attorney General in connection with wiretaps. He did not. What he said was I don’t question that immunity, but we should not propose that argument; we should not make that argument to the Court. Now, in 1985 he wanted a job in the administration, and at that point he took on a different role and he spoke in a different tone of voice. I think that is perfectly understandable and appropriate. And when, 15 years later, he became a judge—when, 15 years ago, he became a judge, he once again assumed a different role. His whole career shows that he understands the different between a professional lawyer, an advocate, and a judge. And no more elo- quent testimony of that understanding can be had than the won- derful testimony of his colleagues, Democrat and Republican, lib- eral and conservative, who served with him for those 15 years. I believe that it is perfectly appropriate for this panel, for this Committee, to have probed Judge Alito’s disposition. Everybody has a disposition. He is in the mainstream. He tends toward the right bank of the mainstream, I agree. When this Senate approved two wonderful judges to be Justices, Justice Breyer and Justice Gins- burg, it was perfectly plain that they tended toward the left bank of the mainstream and they were confirmed, and properly so. I be- lieve Judge Alito should be as well. [The prepared statement of Mr. Fried appears as a submission for the record.] Chairman SPECTER. Thank you very much, Professor Fried. Our next witness is Professor Laurence Tribe, Loeb University Professor at Harvard University and Professor of Constitutional Law at the Harvard Law School. Professor Tribe has argued before the U.S. Supreme Court over 33 times, served as a law clerk to Justice Potter Stewart, and received his bachelor’s degree from Harvard College, summa cum laude, in 1962, and his law degree also from Harvard, magna cum laude, in 1966. Professor Tribe, the floor is yours. STATEMENT OF LAURENCE H. TRIBE, CARL M. LOEB UNIVER- SITY PROFESSOR AND PROFESSOR OF CONSTITUTIONAL LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHU- SETTS Mr. TRIBE. Thank you, Mr. Chairman. It is a great honor to be here on this very important occasion. I am not here to endorse the nomination of Judge Alito, as I did with my most recent testimony before this Committee on a Su- preme Court nomination with Justice Kennedy. I am not here to oppose his nomination, as I did several months before that time with Robert Bork. And I am not here to lecture the Committee on its responsibilities or its role. I don’t think that is my role. I think the only useful function that I can perform is to ensure to the limited extent I can that Senators not cast their votes with, to borrow an image from a Kubrick movie, their eyes wide shut. VerDate 0ct 09 2002 10:43 Feb 24, 2006 Jkt 025429 PO 00000 Frm 00726 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\25429T.004 SJUD4 PsN: CMORC 715 It is quite clear that there are two central concerns in the coun- try and in the Senate with respect to this nomination, and they do not relate, honestly, to what a truly admirable, collegial, modest, thoughtful and brilliant fellow Sam Alito is. And I don’t mean to call him ‘‘Sam.’’ I don’t really know him the way that my colleague, Charles, does. They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, espe- cially for women, and broaden the scope of Presidential power at a time when we see dramatically the dangers of an unfettered Ex- ecutive by weakening the ability of both Congress and the courts to restrict Presidential assertions of authority. A word first about liberty. It is certainly true that in the Solicitor General’s office the memorandum that Judge Alito wrote for the Solicitor General did not urge that the Court be confronted frontally, overrule Roe. But he made it clear even then that the strategy he thought wise to pursue was a step-by-step process to- ward the ultimate goal of overruling Roe. That is the only prospect on the table. I assure you that if the Supreme Court actually overrules Roe, I will have thousands of students to tell that I predicted the wrong thing. That is not the danger. They won’t say Roe v. Wade is hereby overruled. What they will do—and I am saying ‘‘will’’ because I am assuming that con- firmation will occur. Maybe it won’t, but with the vote of Judge Alito as Justice Alito, the Court will cut back on Roe v. Wade step by step, not just to the point where, as the moderate American cen- ter has it, abortion is cautiously restricted, but to the point where the fundamental underlying right to liberty becomes a hollow shell. It is the liberty interest which occurs not only in Roe, but in the right to die and in many cases that we can’t predict over the next century, and certainly over the 30 years that Justice Alito would serve—it is that underlying liberty which is at stake. And it is cru- cial to know that Judge Alito dramatically misstated the current state of the law, and I say that with deference and respect, but it was clear. When pushed on whether he still believed, as he said, not in his role as a Government lawyer but in his personal capacity that he believed the Constitution does not protect a right to abortion— when he was asked, do you still believe that, he said, well, I would approach it by starting with Casey. Casey, in 1992, he said, began and ended with precedent, stare decisis. Casey simply followed Roe. And he thereby avoided the issue. That is not true. Casey split the baby in half; that is, Casey said there are two fundamental questions here. One, does the woman have a fundamental liberty at stake when she is pregnant and wants to make a decision? And No. 2, assuming she does, at what point does the state’s interest in the fetus trump the woman’s lib- erty? On the liberty issue, the Court did not rely on stare decisis and Roe. The moderate Justices who wrote the joint opinion, Justices O’Connor and Kennedy and Souter, said that on the underlying issue of liberty, we agree clearly the woman’s liberty is important, special, not just like the right to fix prices, because if we didn’t think that and if we had a case where a teenage girl was being VerDate 0ct 09 2002 10:43 Feb 24, 2006 Jkt 025429 PO 00000 Frm 00727 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\25429T.004 SJUD4 PsN: CMORC 716 forced to have an abortion, her liberty wouldn’t be special either. And therefore we must conclude, without relying on Roe, this is a liberty deserving of special protection. Never in the descriptions that you heard from Judge Alito with respect to the issues in Roe did he confront the question, does he too believe that that liberty is special or does he, as did Robert Bork and as do many, believe that there is no special liberty. Sim- ply because the woman happens to have a fetus inside her, her in- terest is no greater than my interest in learning how to play ten- nis. So it seems to me clear that the indications we have of Judge Alito’s belief are that he does not have a conviction that that lib- erty is special, and he is unwilling not only to commit to treating this as a so-called super precedent; he is not even willing to indi- cate to this Committee that he believes that the Court has a spe- cial role in protecting intimate personal liberties. Now, with respect to consolidating the powers of the President, I want to associate myself completely with the remarks of Beth Nolan. It is very clear that with respect to the unitary Executive theory that is being espoused that what you saw in the instance of Judge Alito’s testimony was not a forthright description of what he said he believed— Chairman SPECTER. Professor Tribe, you are a minute-and-a-half over. If you could summarize, I would appreciate it. Mr. TRIBE. I am sorry. I will certainly summarize. When he spoke in November of 2000, after Morrison was decided, he outlined a strategy for consolidating the power of the President, notwithstanding Morrison. And I think it is easy to explain, but I won’t try to do it over time. The distinction he tried to draw be- tween the President’s control of functions within his power and the scope of Executive power is a completely phony distinction. Chairman SPECTER. Professor Tribe, did you say you were not testifying against Judge Alito? Mr. TRIBE. I am not recommending any action. I am recom- mending that everybody, because I think it is foolish—nobody real- ly cares what I think. Chairman SPECTER. Aside from your recommendation, are you saying you are not testifying against Judge Alito? Mr.
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