Video: Alito and Ashcroft

updated 1/10/2006 11:47:09 AM ET 2006-01-10T16:47:09

Supreme Court nominee Samuel Alito survived day one of his battle for Senate confirmation on Monday.  After hearing 18 members of the Judiciary Committee show him how much they know about the law and tell him what they do and don't want to hear, Alito gave a brief statement about who he is, where he came from, and reminded the Senate there's a difference between a practicing lawyer and a judge.

Judge Alito will face some more tough times as the hearings continue but he has some heavy hitters out there supporting him, including former Attorney General John Ashcroft.

Ashcroft joined Dan Abrams on ‘The Abrams Report’ to discuss the Supreme Court confirmation hearings and other political issues affecting the Bush administration.

To read an excerpt from their conversation, continue to the text below.  To watch the video, click on the “Launch” button to the right.

DAN ABRAMS, HOST, ‘THE ABRAMS REPORT’:  The judge talks about the rule of law and says that's really the job of a judge.  But, as you well know, different judges interpret the rule of law differently. 

Different judges draw that line at different places.  So, is that really helpful in the analysis? 


I think it signals that, as a judge—and this can be confirmed in this judge's record—that he repairs to that which has been established in the law and in the Constitution, as the main guideposts for the way he will make decisions. 

And one of the areas that is expected to be explored with him—I don't know to what extent he will talk about a number of these things—is the area of abortion.  And I know that, on various abortion cases, he has come out differently based on how the specific facts of the case relate to the rules that have been established or announced by the courts. 

For example, on two occasions, I know, he struck down proposed regulations as being nonconforming with the law, as it has been announced by the Supreme Court.  And, on another occasion, he said, well, that one meets the test. 

It is pretty clear to me that this is a person who references what he does by the law.  And I think that's an assurance to the American people.  Absent the rule of law, you're just out there doing what you want to do, and every person is a law unto himself.

And, obviously, that's not something the American people are looking for in this judge. 

ABRAMS:  But, as you know, it is different being a federal appeals court judge than being a Supreme Court judge. 

And the argument will go that, back then, he had to apply the rulings of the U.S. Supreme Court, and, yet, as a Supreme Court justice, he has got a lot more flexibility. 

ASHCROFT:  Well, I think he sees himself bound by the law, bound by the Constitution.

ABRAMS:  But you can interpret the Constitution in different ways. 

ASHCROFT:  Certainly, you can.  And there's no question about it, particularly in tender areas, where there haven't been very strong indications in the Constitution or in the language of the Constitution itself. 

But this individual is an individual of great talent who has had lots of experience, hundreds of opinions, thousands of cases, and, in those opinions and cases, has shown himself to be a very careful scholar and to treat the law with great respect, and to repair to the law for his decision-making. 

And I think that's what he was signaling, that the judge can't have an agenda.  The agenda of the judge is the rule of law, not the outcome, in a specific case. 

ABRAMS:  Do you think he is going to have a hard time getting around this?  And you have obviously heard a lot about it.  We have all heard a lot about it. 

This is a 1985 job application, where he said the following: “It has been an honor and source of personal satisfaction for me to serve in the Office of the Solicitor General during President Reagan's administration and to help advance legal positions in which personally—and I personally believe very strongly.  I'm particularly proud of my contributions in recent cases in which the government has argued that racial and ethnic quotas should be not allowed and that the Constitution does not protect a right to an abortion.”

Now, he will, unquestionably, argue that, as an attorney, I took certain positions.

But, here, he's talking about how he feels personally.  Is he going to be able to deal with that? 

ASHCROFT:  Well, I think so.  I think that's what he indicated in his remarks today. 

He set the stage for an understanding that he would act differently as a judge than did he as an individual who was advocating for a particular result.  And, as a matter of fact, I think, if you read his decisions, as I have indicated earlier, the decisions don't refer and reinforce his personal beliefs. 

The decisions make reference to and implement the law that he has ascertained is applicable in the particular case.  He is a great student. 

He has a tremendous intellect.  He is the kind of expert, he's the kind of   “brain surgeon” in the legal arena that you would want operating in areas that require delicate and important decision-making. 

ABRAMS:  So, he's not going to argue, well, that was just a job application, and I was trying to get a job?  That's not the kind of argument you make as you are being considered for the U.S. Supreme Court. 

ASHCROFT:  I think he set up a response today by saying, there are things you do when you're an advocate that you don't do when you're an arbiter. 

ABRAMS:  Right. 

ASHCROFT:  And a judge is an arbiter of decisions, and he has to listen carefully and decide on the facts and the law of the case before him. 

ABRAMS:  All right.  Now I'm going to ask to you put on your former attorney general and former senator's hat.  So, here we have got the dual question.  The purpose of me asking you both is because there is this tension going on right now between what kinds of questions Judge Alito should answer, what kinds of questions he shouldn't answer.  The Democratic senators in particular are saying, we're going to demand answers from you.  You have got to answer questions.  This is different.  This is to replace Justice O'Connor. 

ASHCROFT:  Well, you know, I think it is important to know that a judge is asked to rule on a specific case, and specific cases come up with different factual bases and circumstances that shape what ought to be the way the law relates to those facts and circumstances. 

And for a judge to announce himself on a case before they have the complete array of circumstances and all the facts there could be indeed prejudicial.  And it is not that we want to be ignorant about people who are going to be involved in administering the law as, of course, members of the Supreme Court of the United States.  It is that we want those people to be impartial, and we don't want them to have an incapacity to rule on the cases, when the case, with all of the individual, unique characteristics, permutations, all the facts come there. 

We don't want them to be in a setting where they are seen to have a predisposition on that case.  And for that reason, it's been a tradition, for quite some time, for Republican nominees and for Democrat nominees not to take positions in advance that would make difficult the way they would professionally conduct themselves on the court. 

ABRAMS:  Haven't we created, though, a ridiculous system, because if the judges or the candidates have written about the topic, then they have to answer questions?  But, if they have said nothing that it, they don't to have answer questions about it.  And, as a result, all we're getting are responses to written documents or legal opinions. 

And, as long as they haven't said anything about it, they don't have to say anything.  And that seems to encourage nominations of people who don't have any paper trail. 

ASHCROFT:  Well, one of the things we don't have to worry about in this case is a nomination of an individual without a paper trail. 

This individual has written hundreds of legal opinions on scores of legal issues.

The way in which, fairness with which, the intellect with which, the kind of carefulness with which Judge Alito has handled himself is there for viewing as a judge over a decade on very important court of appeals, handling the most sensitive issues. 

So, yes, I suppose there is a way in which you can say that letting people off the hook, if they have never had a written opinion before, and letting them duck the questions, might be a case providing difficulty or it might be an anomalous situation somewhere.  It is not anomalous here.  This is a guy who is well staked out. 

ABRAMS:  All right. 

Attorney General Ashcroft, if you could stay with us for a moment, I just want to ask you a few more questions. 


ABRAMS: Let me ask you, is there some hypocrisy on the part of some of the Republican senators who are now saying to Judge Alito, you don't to have answer questions about your positions; feel free to say no?  And, yet, when it came to Harriet Miers, the reason that her nomination was pulled clearly was because many on the right were concerned that she wasn't going to rule the way they wanted. 

ASHCROFT:  Well, I don't know what the reason is.  You may know. 

I dealt with her when I was attorney general and she was working in the president's administration.  She's a wonderful human being and a good lawyer.  I don't know what the reason is.  And my own sense is that, whatever the reason is, she decided not to go forward with the nomination.  I don't think you can presume that they would have had a different standard for Harriet Miers in a hearing that they have for this judge or they have had for previous judges, both Democrat and Republican. 

This is not a new format for interviewing judicial nominees. 

ABRAMS:  No, that's true.  I'm not saying it about the hearings.  But there is something odd about the fact that, look, almost everyone will agree that, in the end, they had to pull or she had to pull her nomination because there was so much opposition from the right, people concerned that she just simply wasn't going to vote their way on the crucial issues. 

ASHCROFT:  Well, I don't know what poll you're referring to about everyone agreeing there.

I'm not able to draw that conclusion.  And if people believe that she wasn't acceptable to them, that's their right to do so.  She chose to withdraw her nomination.  She's a person of great integrity and a person of great capacity.  I respected my opportunity to deal with her when she was at the White House.  And she made a decision which I have to respect as well. 

ABRAMS:  I don't know if you can speak on this topic, but let me ask you about it anyway, the NSA surveillance program.  There's a report in “The New York Times” that Andy Card and Alberto Gonzales had to make an emergency trip to see you in the hospital in March of 2004  actually, it may not have been “The New York Times”to get the program recertified, because the undersecretary, the under-attorney general who was serving that role at that time, James Comey, had balked. 

Is that true? 

ASHCROFT:  I'm not going to talk about programs that were protecting the rights and liberties of Americans in the war on terror. 

I am willing to comment on the president's capacity and responsibility to exercise the powers that he has to make sure that we remain free and safe.  But I'm not going to talk about specific programs. 

In the deadly game of hide and seek, if the hiders know what the seekers are doing, and where they are seeking all time, it makes hiding much easier.  And this is a deadly game.  And I'm not interested in making it easier for the terrorists by letting them know more about what we do and what we don't do. 

ABRAMS:  Even though what we're really talking about is a legal issue, right?  I mean, everyone knows that the NSA engages in spying.  The question was whether they have to get a wiretap or not. 

ASHCROFT:  Well, I am willing to talk about the president's authority to undertake activities in defense of the country and especially in light of the act to authorize the president to use all means and force necessary to defend us against terror, and in light of court decisions which recognize that broad grant of authority by the Congress, and including the Supreme Court of the United States in Hamdi case.

It is pretty clear to me that the president has significant authority to defend the United States, and that authority is parallel and multiple, so that, in some cases, it would be through the use of the Foreign Intelligence Surveillance Act.  And, in other cases, it might be other ways. 

ABRAMS:  But, ultimately, though, there is no limitation on the president's authority meaning the president gets to decide it?

ASHCROFT:  That's absolutely wrong, Dan.

I don't ever want to suggest that the president is without limitation.  The president lives under the Constitution of the United States. 

ABRAMS:  But who interprets that? 

ASHCROFT:  Well, the courts interpret it, and they have interpreted. 

The president, of course, makes an effort to interpret it and to guide his own behavior by it.  But I would not be one to say that there are no limits on what the president can and should do.  As a matter of fact, I believe the Constitution is the controlling law, not only on the president, but on the Congress. 

It, in fact, is the supreme law of the land for all of us. 

ABRAMS:  Let me ask you about the leak investigation.  I want to read you this quote from an editorial in the generally conservative “New York Sun.”

“The zeal to prosecute these leak cases came in 2002, after then Attorney General John Ashcroft promised the chairman of the Senate's Intelligence Committee he would make the execution of the current law against leakers a priority, as a response to Senator Shelby of Alabama's request to rewrite that law to make it more punitive and broader in scope.”


ASHCROFT:  Well, we worked to make sure that we would do what we could to stop leaks. 

As I said earlier, in the deadly game of hide and seek, the hiders have a big advantage if they know everything the seekers are doing.  The leaks of classified and confidential and important law enforcement material can be very damaging.

ABRAMS:  Do you support investigating the press on those? 

ASHCROFT:  When it is necessary in order to get to the bottom of the situation, we have asked as well that the press cooperate. 

The press should not be a party to leaks, which damage the national security of the United States. 

ABRAMS:  And even if, in certain cases, it is important to get the information out? 

ASHCROFT:  Well, classified information should not be leaked. 

If we leave it in the judgment of everyone who handles information, that they have the right, thinking that this is important, so, therefore, I'm going to violate the law, we will have nothing but chaos.  And, very frequently, pieces of information which appear by themselves to be innocuous can, when assembled with other portions of information which also appear to be innocent, be put together to reveal something that impairs the national security of the United States. 

It is unacceptable to let that happen. 

ABRAMS:  Got to ask you a final question.  True, you—you were just sworn into the D.C. bar as an attorney today? 

ASHCROFT:  I was admitted to the District of Columbia bar as an attorney.  I have been an attorney for quite some time, but not as a member of the bar in the District. 

ABRAMS:  Did they make you take the test? 

ASHCROFT:  Of course not. 

ABRAMS:  I can just imagine you sitting there with the rest of these law students.  Hey, isn't that Attorney General Ashcroft sitting there next to me? 

ASHCROFT:  Well, I there were a number of course, people join the D.C. bar who are members of bar associations and bar organizations around the country.  And they do it at various stages in their life. 

ABRAMS:  Right. 

ASHCROFT:  So, I was by no means the oldest of the individuals here. 

Both my wife and I joined the D.C. bar after years of being involved as lawyers in other settings. 

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.


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