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Sessions, Leahy on Alito Hearings: Part I

ROBERT SIEGEL, host:

Joining us now are two members of the Senate Judiciary Committee, Republican Jeff Sessions of Alabama and the ranking minority member of the committee, Democrat Patrick Leahy of Vermont.

Welcome to both of you once again.

Senator JEFF SESSIONS (Republican, Alabama): Thank you.

Senator PATRICK LEAHY (Democrat, Vermont): Thank you.

SIEGEL: And first some questions for Senator Leahy. We heard in Nina's report you questioning Judge Alito about presidential authority. Has Judge Alito described a view of the limits of presidential authority that strikes you as reasonable, if not entirely yours, or extreme, or don't you know enough yet?

Sen. LEAHY: Well, we're still having difficulty with him. He said--you know, he says that nobody's above the law, or the president's not above the law and--fine. That's--can you imagine it'd be like if he came in and said, `Well, these people, this one or this one's above the law'? That's not the case. But as a sitting judge on the federal bench, he has advocated his personal legal view supporting the unitary executive theory. Now he did that just a few years ago again. Now under that, the president--it's a theory basically that allows the president to pick and choose what laws he wants. The president--President Bush has done this over a hundred times, according to The Wall Street Journal in a rather definitive study of this; most recently, when the president signed the torture legislation that John McCain had sponsored. But then the president wrote a separate thing which said that he shall construe...

SIEGEL: The signing announcement, yeah.

Sen. LEAHY: The president signed a separate thing saying, well, that he'll construe it the way he wants, not the way the statute is written, but in a way that would allow him to take people out from under the torture statute. So...

SIEGEL: Let me ask you about another--yeah.

Sen. LEAHY: ...a president can't pick and choose.

SIEGEL: Let me ask you about another question, and that is abortion. Chief Justice Roberts, evidently, paid enough deference to the precedent of Roe v. Wade that you voted for his confirmation. Has Judge Alito said enough to satisfy you at least on that score, apart from other issues?

Sen. LEAHY: Well, others have raised on the question of abortion and will continue to. I--Judge Alito's been very clear in his writings, in his speeches and certainly in his job application to the Reagan administration that he is opposed to Roe and feel that it's unconstitutional. And Judge Roberts is certainly opposed to--now Chief Justice Roberts--certainly opposed to abortion, but he said very clearly that Roe is settled law. The--Judge Alito has not gone quite that far, and people have to make up their mind one way or the other on that.

What I'm concerned, though, is when the president--in this case President Bush, but it could be any president--when President Bush has 103 times signed laws and said, `However, this part or this part will not apply,' and there's no check and balance.

SIEGEL: That's your main concern...

Sen. LEAHY: The Republicans who control Congress won't say a word about it.

SIEGEL: One last point before turning to Senator Sessions, and that is this conservative alumni of Princeton. Is that important to you? Is it important because of the substance of the group's views or as a test of the nominee's candor?

Sen. LEAHY: Well, it's both the views and the candor. I mean, the--Judge Alito made it very clear what his positions were when he was applying for jobs in the Reagan administration. But then on this unitary executive, he made it very, very clear even after he was confirmed as a judge. If you accept his view, there's no check and balance. If you accept his view, the president can pick and choose which laws he wants to enforce and not enforce the others. If you accept his view, we can do away with both courts and the Congress and just allow the president basically to decide what he wants to do.

SIEGEL: OK, Senator, we'll come back to you in a few minutes. First, to Senator Sessions of Alabama. Picking up first on the question that I put to Senator Leahy about the conservative alumni of Princeton, does that in any way--should it in any way figure in Judge Alito's confirmation?

Sen. SESSIONS: One of the good things about these hearings is these matters get aired. I sometimes think it's very unfair that allegations that occur before the hearings--at least he's got a chance to explain this. And what he's said that's been uncontradicted is that he's never written anything for the group; he never attended a meeting that he recalls, and nobody's ever said he did. But it was a group that, in large part, became engendered over the question of ROTC on campus. They bombed the ROTC building at Princeton. He was a member. He had to go to a different college to do his ROT service.

SIEGEL: Trenton State, that was.

Sen. SESSIONS: So he's unhappy with that. And...

SIEGEL: So--but you're satisfied that whatever you've heard so far lays to rest, as far as you're concerned, the issue.

Sen. SESSIONS: That's correct. And The New York Times has already examined these records, and they've found nothing that indicated participation by Alito in any meaningful way.

SIEGEL: We're going to continue hearing from Senator Jeff Sessions of Alabama, and we'll return to Senator Patrick Leahy, Democrat of Vermont, with this discussion of the confirmation hearings of Judge Alito when we continue with ALL THINGS CONSIDERED from NPR News. Transcript provided by NPR, Copyright NPR.