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http://www.washingtonpost.com/wp-dyn/content/article/2006/01/15/AR2006011500915.html
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https://web.archive.org/web/2006012119id_/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/15/AR2006011500915.html
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In Ga., Abramoff Scandal Threatens a Political Ascendancy
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2006012119
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DAWSONVILLE, Ga. -- Ralph Reed, candidate for lieutenant governor, had just finished his opening statement to the Dawson County Republican Party when retired pulp paper executive Gary Pichon sprang from his seat with a question that cut to the chase:
"Did you accept any gifts, commissions or other payments of any kind from Mr. Abramoff, and are you likely to be a party in the unfolding investigation?"
Silence enveloped the 60 or so Republicans in the auditorium, and Reed's cheerful manner turned tense. "No," he replied. "No to all these."
As everyone knew, Pichon was referring to Jack Abramoff, whose outsize Washington lobbying scandal has reached down to Georgia. Abramoff and Reed -- the former executive director of the Christian Coalition -- have been friends for 25 years, and until recently it had been a mutually profitable association. Now it is proving highly inconvenient for Reed, and threatens to stall a career that has been emblematic of the modern GOP.
Reed served as executive director of the College Republicans from 1983 to 1985 and led a revival of the Christian right in the 1990s. He founded a grass-roots lobbying firm in 1997, bringing in millions of dollars in fees, chaired the Georgia Republican Party in 2002 when the GOP took over the state, and served as Southeast director of the 2004 Bush-Cheney campaign.
At age 44, he still has the choirboy looks that have been noted in dozens of profiles over the past 20 years. But the first major dent in Reed's carefully cultivated image came with the disclosure in the summer of 2004 that his public relations and lobbying companies had received at least $4.2 million from Abramoff to mobilize Christian voters to fight Indian casinos competing with Abramoff's casino clients.
Similarly damaging has been a torrent of e-mails revealed during the investigation that shows a side of Reed that some former supporters say cannot be reconciled with his professed Christian values.
"After reading the e-mail, it became pretty obvious he was putting money before God," said Phil Dacosta, a Georgia Christian Coalition member who had initially backed Reed. "We are righteously casting him out."
Among those e-mails was one from Reed to Abramoff in late 1998: "I need to start humping in corporate accounts! . . . I'm counting on you to help me with some contacts." Within months, Abramoff hired him to lobby on behalf of the Mississippi Band of Choctaws, who were seeking to prevent competitors from setting up facilities in nearby Alabama.
In 1999, Reed e-mailed Abramoff after submitting a bill for $120,000 and warning that he would need as much as $300,000 more: "We are opening the bomb bays and holding nothing back."
In 2004, when the casino payments to Reed were disclosed, Reed issued a statement declaring "no direct knowledge of their [Abramoff's law firm's] clients or interests." In 2005, however, Senate investigators released a 1999 e-mail from Abramoff to Reed explicitly citing the client: "It would be really helpful if you could get me invoices [for services performed] as soon as possible so I can get Choctaw to get us checks ASAP."
One of the most damaging e-mails was sent by Abramoff to partner Michael Scanlon, complaining about Reed's billing practices and expenditure claims: "He is a bad version of us! No more money for him." Scanlon and Abramoff have pleaded guilty to defrauding clients.
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DAWSONVILLE, Ga. -- Ralph Reed, candidate for lieutenant governor, had just finished his opening statement to the Dawson County Republican Party when retired pulp paper executive Gary Pichon sprang from his seat with a question that cut to the chase:
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Senate Democrats Emphasizing Ethics, Not Alito
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2006012119
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Just as Samuel A. Alito Jr. was wrapping up three days of testimony in his bid for a Supreme Court seat -- which core Democratic groups desperately want to prevent -- the Senate's Democratic leader sent an e-mail statement to hundreds of journalists.
In it, Minority Leader Harry M. Reid (Nev.) had this to say about Alito: not one word. The Thursday news release, trumpeting a "Republican Culture of Corruption" in big red letters, dealt with Republican lawmakers' alleged ties to disgraced former lobbyist Jack Abramoff, a theme of Democratic messages these days.
Later that day, after Alito had left the hearing room, Reid issued a criticism of the nominee but made no mention of a possible filibuster, seen as the only conceivable way Democrats might thwart the nomination in the GOP-controlled Senate.
The fact that Reid paid scant attention to Alito that day, amid heavy TV coverage, is testament to the faith that Democratic leaders place in the ethics-corruption issue as a winner in November's congressional elections.
On Wednesday -- when Senate Democrats return from recess and huddle on the Alito nomination for the first time since the hearing -- congressional, national and state party leaders plan a major Washington event. It will not focus not on Alito but on a proposed "honest leadership act" that would ban gifts to lawmakers, among other things.
These priorities hint at the difficulties Democrats have experienced during the past six months in pursuing the goal of keeping conservatives such as Alito and John G. Roberts Jr. off the Supreme Court. Roberts coasted to confirmation as chief justice last fall, and GOP senators predict Alito will be confirmed this month, albeit by a narrower margin. Analysts say Alito's confirmation in particular could move the court notably to the right.
The Supreme Court battles stand in contrast to last year's major Democratic victory, the stifling of President Bush's bid to restructure Social Security. Although key constituency groups poured money and time into both efforts, the outcomes differed dramatically.
"The reality is that Social Security hits people where they live," said Democratic pollster Geoff Garin. "Nearly everyone feels they have skin in the game. It is harder to grab the public's attention on a court nomination."
Senate Democrats have learned this lesson the hard way. Now, forced to decide soon whether to launch an Alito filibuster that is likely to fail, several are asking whether it is worth the effort, party insiders say. One top Senate Democratic aide, who spoke on background because he did not have his boss's permission to talk publicly, predicted a closed debate Wednesday on whether it makes more sense to focus on the most promising issues, such as GOP ethics woes, and avoid being tarred as "obstructionists" for trying to derail a confirmation vote.
Sen. Dianne Feinstein (D-Calif.) said she will vote against Alito's confirmation but saw no reason to filibuster it. "I do not see the likelihood of a filibuster," she said yesterday on CBS's "Face the Nation." "I don't see those kinds of egregious things emerging that would justify a filibuster."
Richard J. Durbin (Ill.), the second-ranking Democratic senator and one of Alito's sharpest questioners last week, spoke to the party's mixed feelings about a filibuster when he told reporters: "I'm not going to presume one way or the other whether my colleagues are even interested in it."
Such comments dismay liberal groups, including those backing abortion rights. Nancy Keenan, president of NARAL Pro-Choice America, said Friday she is not giving up on a filibuster. But she acknowledged that Democratic senators need to be convinced. "Now it's our job to have the American public talk to those senators," Keenan said as her group and others unveiled a TV ad attacking Alito.
Meantime, Reid, House Minority Leader Nancy Pelosi (D-Calif.) and other party leaders are focusing on congressional ethics and allegations of GOP corruption. They hope Americans can relate to the issue viscerally, as they did last year to Democratic pleas to "protect Social Security" from Bush's proposed private accounts.
To that end, Democrats will argue that ethically dubious practices in Congress hit Americans in the pocketbook. Republican lawmakers pass bills that give tax breaks to oil companies, and forbid the federal government to negotiate lower prescription drug prices for Medicare, because they are beholden to petroleum and pharmaceutical lobbyists, said Rep. Chris Van Hollen (D-Md.), his party's chief recruiter for House candidates this fall.
Whether voters buy that message or not, they are likely to hear much more about ethics than justices in the coming weeks and months. "Regardless what the senators do," Van Hollen said, "there's going to be a continuing focus on the lobbying and ethics scandals."
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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I, I, Sir: The Alito Hearings, Annotated
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2006012119
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Republicans on the Senate Judiciary Committee observed with some pride last week that Supreme Court nominee Samuel Alito answered more than 700 questions during his confirmation hearings. But what did he say?
To answer this question, The Washington Post asked Adrian Holovaty, who holds the position of boy genius/computer wiz at Washingtonpost.com, to run a computer analysis of the transcripts of the four-day hearing to see what phrases came out of the judge's -- and the senators' -- mouths most often.
By the numbers, Judge Alito's language was painfully cautious. He mentioned " stare decisis " -- respect for precedents (i.e., Roe v. Wade ) 68 times. But he mentioned "abortion" only 23 times and hardly used the word "overturn" at all. Among his top three-word phrases: "I don't know" (29 times). Among his top four-word phrases: "I would have to" -- as in, "I would have to know the arguments that are made" before answering the question (21 times).
The nominee relied heavily on the language of law books, mentioning "Humphrey's Executor" (whoever he is) 10 times, "undue burden" 10 times, and "jurisdiction" 25 times.
The senators spent less time in the legal gobbledygook and more time scoring political points. Democrats mentioned "Vanguard," a reference to a conflict-of-interest for Alito, 68 times. They invoked Roe 59 times, and "CAP," a controversial group Alito joined, 29 times. "Above the law" came up a dozen times, and "the unitary executive" -- an extreme view of presidential power -- 14 times.
Republicans, defending Alito, countered with flattering and upbeat terms: "integrity" (43 times), "fair" (41), "confirmed" (36), "respect" (34), and "balance" (26). "American Bar Association," which gave Alito its top rating, got 16 GOP mentions.
But one thing united lawmakers on both sides: reverence for the first person. Republicans used the "I" word 1,180 times. Democrats used it 1,123 times. Combined, they used it well more than the nominee, who said "I" 1,907 times.
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Get style news headlines from The Washington Post, including entertainment news, comics, horoscopes, crossword, TV, Dear Abby. arts/theater, Sunday Source and weekend section. Washington Post columnists, movie/book reviews, Carolyn Hax, Tom Shales.
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U.S. Helicopter Crashes North of Baghdad
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2006012119
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BAGHDAD, Jan. 16 -- A U.S. Army helicopter on patrol crashed in a swampy area north of Baghdad on Monday morning, killing both crew members, U.S. authorities said. It was the third such incident this month.
Witnesses said the AH-64 Apache attack helicopter was hit by a missile and came down at a farm near the village of Mishahda, 25 miles north of Baghdad. Two insurgent groups asserted responsibility for attacking the aircraft.
U.S. military authorities in Baghdad said in a statement that it was "premature" to state the cause of the crash, but noted that the helicopter went down in an area "known for terrorist activity." The officials said that the Apache, conducting a combat air patrol, belonged to Task Force Ironhorse and that the incident was under investigation.
The crash area was cordoned off by U.S. troops, and a Washington Post special correspondent was not allowed to approach the scene. A U.S. Army lieutenant, who did not identify himself, said that the helicopter had been hit by a missile and that American troops were searching for the attackers.
Two groups asserted responsibility for the incident. One group, which identified itself as the Mujaheddin Army, published a video on a Web site used by insurgent groups in which there was a whooshing sound followed by a smoke trail as a missile apparently was fired at a speck in the sky. As the stricken helicopter lost altitude, leaving a plume of black smoke, a voice in the background chanted, "Allahu akbar," or "God is great."
The authenticity of the statements and the video could not be verified.
In the two previous incidents, insurgents apparently shot down an OH-58D Kiowa Warrior reconnaissance helicopter on Friday near Mosul in northern Iraq, killing its two pilots. On Jan. 7, a UH-60 Black Hawk helicopter flying in bad weather near the northern city of Tall Afar crashed, killing all four U.S. soldiers and eight American civilians aboard. The military is still investigating both incidents.
The Army's heavily armed and armored Apaches are used to support ground troops with close-in firepower. Although it is unlikely that small-arms fire could bring down an Apache, the helicopter is vulnerable to shoulder-fired, heat-seeking missiles, such as the Russian-made Strela. Thousands of Strelas were sold to the Iraqi government in the years before the U.S. invasion in 2003.
A U.S. military spokesman in Baghdad, Lt. Col. Barry Johnson, said in an interview that it was too early to say what had caused the crash or to find similarities in the three cases.
"I think we take each incident that involves an aircraft going down, or anything else, and make a determination of the circumstances," Johnson said. "Each one is equally tragic, and certainly if there's any pattern or anything related here, that's something we'll consider, and adjust our tactics or techniques."
Authorities reported scattered violence elsewhere across Iraq. A roadside bomb hit a convoy carrying U.S. police liaison officers in Baghdad, killing one American civilian responsible for training Iraqi police, according to a statement issued by the U.S. Embassy.
In Muqdadiyah, about 60 miles north of Baghdad, an explosives-laden car sped into an Iraqi police checkpoint, killing four Iraqi police officers and a child, U.S. military authorities said in a statement. The attack took place near a cluster of primary schools where students were taking their midyear exams, Col. Adnan Lafta of the city police said.
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BAGHDAD, Jan. 16 -- A U.S. Army helicopter on patrol crashed in a swampy area north of Baghdad on Monday morning, killing both crew members, U.S. authorities said. It was the third such incident this month.
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Kaine Pursues Sprawl, Traffic
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2006012119
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RICHMOND, Jan. 15 -- Virginia Gov. Timothy M. Kaine will call for new controls on growth and development Monday night, saying the only way to solve congestion on the state's roads is to slow the march of suburban sprawl.
In his first policy address to the General Assembly, the new governor will urge passage of a law that gives local governments the right to halt housing construction if roads are not adequate. The proposal will be part of a package of transportation initiatives he will unveil during his speech, according to a senior Kaine adviser who asked not to be named because the speech has not been authorized for release.
Kaine also will acknowledge the need for more money to build wider highways, buy more buses and trains and erect bridges. But he will not suggest an increase in gas or sales taxes or offer specific legislation that details how he thinks the state should raise the new funds, the adviser said.
Kaine also hopes to make good on a promise he made during the campaign to lock up the state's transportation fund so road and transit money can't be used for other purposes.
"I am proposing initiatives that better link land use and transportation decisions so that uncoordinated development doesn't overwhelm our roads and infrastructure," Kaine says in a draft of the speech, a portion of which was read to a reporter.
The fact that the centerpiece of Monday's speech will be about growth makes Kaine the first Virginia governor in modern times to tackle the politically touchy issue, which is usually left to city councils and boards of supervisors.
Northern Virginia governments, especially in the outer suburbs, have been struggling for years to find the right balance between growth and property rights. Some officials have said they fear lawsuits from developers if they turn down requests to build because of congested roads.
In October, Kaine ran a television ad promising to give local governments more control over development. Political observers said those ads helped deliver suburban voters -- and the election victory -- to Kaine in November.
The speech will be the first indication from Kaine -- fresh from his inauguration in Williamsburg -- of how he intends to move beyond the vague direction he offered as a candidate and the thematic generalities he discussed in his inaugural speech Saturday.
The governor has spent the past two months hosting town hall meetings across the state to discuss transportation issues. But he did little talking at the meetings, leaving lawmakers and others to wonder aloud about what exactly Kaine hoped to achieve during the legislative session, which began last week.
The speech might disappoint some business executives, lawmakers and transportation advocates, who have for years demanded more money to pay for road and transit construction.
Michael Anzilotti, a Northern Virginia banker who co-chairs the transportation committee for the Greater Washington Board of Trade, questioned whether Kaine's proposals go far enough.
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RICHMOND, Jan. 15 -- Virginia Gov. Timothy M. Kaine will call for new controls on growth and development Monday night, saying the only way to solve congestion on the state's roads is to slow the march of suburban sprawl.
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In the Fog of War, A Moral Haze
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2006012119
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Sometimes, in the murky maze in which journalists dwell, seeing the right course of action isn't easy.
Should major newspapers and networks have agreed to suppress the news that Christian Science Monitor stringer Jill Carroll had been kidnapped in Iraq? The impulse is understandable, given the Monitor's plea that publicity might endanger negotiations to win her freedom. But since when are journalists in the business of sitting on news? And would they have imposed a 48-hour blackout for a non-journalist?
"It created the appearance of one group of people taking care of themselves above anyone else," says Sig Christenson of the San Antonio Express-News, who once covered the kidnapping of a Halliburton contractor. Christenson, the president of Military Reporters and Editors, says one contractor told him last week "he was mad because there was one rule for us and one rule for everyone else over there."
But New York Times Executive Editor Bill Keller told Slate it "was not exactly groundbreaking news that people get kidnapped in Iraq. I think the request would -- certainly ought to -- get the same consideration whether the person abducted was a journalist, an aid worker, a contractor or a soldier." And there's the rub: Who wants to be the one who writes the story that increases the chance that terrorists will murder an American?
On another Iraq-related issue, The Washington Post last month led off a piece about the Pentagon's "increasingly aggressive battle for control over information about the conflict" with the example of blogger Bill Roggio. The computer technician, who was embedded with a Marine unit following an invitation from the military, cried foul.
The Post has corrected three minor factual errors: Roggio was accredited by the Weekly Standard; he had already returned home by the time of the article; and he didn't serve in the military long enough to be deemed a "retired soldier."
But sometimes corrections are too narrow. Did Roggio, who made the trip with $33,000 in reader donations, belong in an article about the military paying Iraqi journalists to publish favorable stories? On billroggio.com, he called the piece "blatantly misleading" because "there was absolutely no association between my embed and any military information operation."
David Hoffman, The Post's assistant managing editor for foreign news, says Roggio has a "worthy argument," but that "the military is fighting an information war and we're covering it. Inviting certain people to come and cover the war is their prerogative, but it's also spin. . . . I don't believe anything in that article misrepresented what he was doing."
In the publishing world, standards can also be hazy. Author James Frey hit it big after Oprah Winfrey endorsed his memoir of a life of crime, "A Million Little Pieces." Thanks to some digging by TheSmokingGun.com, that work has now been exposed as a tangle of fabrications and embellishments. Frey, according to police records and his own admissions, didn't commit most of the felonies he claimed in the book -- including hitting a cop with his car and serving a three-month jail term.
In a painfully weak appearance on CNN's "Larry King Live," Frey acknowledged that he "changed things," but said he has "a long drug and alcohol history," that "everyone's memory is subjective" and that he still "stand[s] by the essential truths of the book." Winfrey, calling in to the show, seemed unconcerned: "Although some of the facts have been questioned," she said, "the underlying message of redemption in James Frey's memoir still resonates with me." So lying is okay if you've got a good "underlying message"?
What about Frey's publisher, which is refusing to investigate? In a remarkable statement, Doubleday said: "Recent accusations against him notwithstanding, the power of the overall reading experience is such that the book remains a deeply inspiring and redemptive story for millions of readers."
Even if it's fiction masquerading as nonfiction? Is that the standard for publishing a memoir? This one doesn't seem quite so murky.
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Sometimes, in the murky maze in which journalists dwell, seeing the right course of action isn't easy. Another columnist has lost his writing gig for failing to disclose corporate payments. Tom Blumer, who critiques the press on BizzyBlog, which is also carried by the conservative Media Research......
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The 'Song Doctor' Is In
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2006012119
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LOS ANGELES It's impolite to stare, but since Rick Rubin is in a meditative state, his eyes sealed, there's little chance he'll catch you gawking.
And so you lean forward to study the iconoclastic record producer's beard up close. What a sight!
Rubin's hirsute hallmark is wiry and unruly, its craggy tips resembling a seismic reading. Nearly as long as it is wide, the salt-and-pepper beard droops to Rubin's chest; given his sprawling bald spot, it's as if there'd been a hairslide on his ample mug and nobody bothered to clean up the mess.
Maybe they were all just afraid: With his similarly unkempt hair, Rubin can appear ridiculously imposing, almost Hell's Angelic -- though in his current state of tranquillity, he sort of resembles Confucius, or maybe David Crosby during his nodding-off days.
And . . . and suddenly Rubin is staring right back, with piercing blue-green eyes.
"Isn't it beautiful?" he says softly.
"It really feels like we captured a moment in the studio," he finally says.
Oh, right -- he's not talking about his beard , silly! It's the Neil Diamond song that's been thundering over the outrageously high-end stereo system here in the library of Rubin's magnificent Hollywood Hills home.
Rubin is playing one of his favorite tracks from "12 Songs," the riveting album he coaxed out of Diamond last year. It was the crooner's best-reviewed work in decades, landing on more than a few music critics' best-of-2005 lists; "12 Songs" also resonated with fans, reaching the No. 4 Billboard ranking -- Diamond's highest chart position in 25 years.
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Search Washington, DC area music events and venues from the Washington Post. Features DC, Virginia and Maryland entertainment listings for music news, events, reviews, clubs, and concerts. Visit http://www.washingtonpost.com/wp-srv/eg/section/music/ today.
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Housing Added to Waterfront Project
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2006012119
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Nearly a year after Fannie Mae walked out of a deal to be the anchor tenant for a complex in Southwest, developers of the Waterside Mall site said they have a plan to revive the project by adding housing.
The developers originally intended to tear down a mostly vacant strip mall and office building at Fourth and M streets SW and build a 2.5-million-square-foot complex dominated by offices for Fannie Mae. But the mortgage finance giant abandoned its plans for the site last January after it ran into billions of dollars of accounting troubles that have yet to be resolved.
The project, called Waterfront, is expected to cost $500 million to $700 million. The developers are District-based Kaempfer Co., which is part of Charles E. Smith Commercial Realty; Forest City Enterprises Inc. of Cleveland; and Bresler & Reiner Inc. of Rockville.
The revised plan would reduce the amount of office space at the site and double the planned residential space. There would be 800,000 square feet of residential space -- 600 to 650 units. About 20 percent of the housing would be below market rate.
The remaining 1.7 million square feet would be office and retail space, including a 30,000-square-foot grocery store.
As part of the new deal, the National Capital Revitalization Corp., the quasi-public group that owns the land, plans to give most of it to developers, ending a long-term lease to Bresler & Reiner. In exchange, the NCRC would develop about half of the space set aside for housing.
"In light of not having one major office user, we decided to go for more of a town center feel to it," said Anthony C. Freeman, president and chief executive of NCRC.
The Waterfront project is part of a broader revitalization plan for the neighborhood. There is a plan to reopen Fourth Street through the Waterfront project. Distict planners had viewed Fannie Mae's plan to come there, and the proposed baseball stadium on nearby South Capitol Street, as part of a building boom that would mesh with their plans to revitalize areas along the Anacostia River.
Waterside Mall was built in the late 1960s as part of a program to revive a residential neighborhood, but it never took off. The drab concrete office buildings at Waterside have been mostly empty since the Environmental Protection Agency, the primary tenant, moved four years ago. Fannie Mae, which employs about 4,000 people and has its headquarters in Northwest Washington, had planned to consolidate some of its offices at the Southwest location.
Some neighbors of the mall and community leaders have complained that Waterside Mall's tenants, which included a liquor store, a nail salon, a paper-goods store and a few restaurants, have left over the past few years in anticipation of the redevelopment, leaving them with only a CVS drugstore and a Safeway supermarket. They are eager for construction to begin.
"The community was crestfallen when Fannie Mae dropped out," said Andrew Litsky, chairman of the Advisory Neighborhood Commission for the area. Of the new plan, Litsky said "we're pleased the residential portion of the project will double," but he added more skeptically that "we've seen the pretty pictures and heard all the assurances.
"We want to be absolutely totally clear of who is going to manage this project and that the public interest is going to be served," Litsky said.
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Nearly a year after Fannie Mae walked out of a deal to be the anchor tenant for a complex in Southwest, developers of the Waterside Mall site said they have a plan to revive the project by adding housing.
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The Long and the Short of Microsoft's Patches
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2006012119
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Microsoft Corp. has often been criticized for taking too long to issue security updates for its software, a shortcoming that critics say leaves customers dangerously exposed to online threats. I recently researched the past three years' worth of "critical" Microsoft patches -- those that mend flaws that hackers can use to take control over Windows computers -- and found that while that criticism may still be valid, Microsoft is making progress on a couple of key fronts.
In 2005, Microsoft took 50 percent more time to issue patches for critical software flaws than it did three years ago. In 2003, it took Microsoft an average of three months to issue patches for problems reported to it privately. The following year, that time frame shot up to 134.5 days, a number that remained virtually unchanged in 2005.
Microsoft seems to do better when outsiders take the controversial step of posting security flaws online for everyone to see. Advocates of this controversial "full disclosure" approach think companies tend to fix security flaws more quickly when their dirty laundry is aired publicly, and at least on the surface, that appears to be the case with Microsoft.
In 2003, when Microsoft learned of a flaw in its products through full disclosure, the company took an average of 71 days to release a fix. In 2004, it took 55 days, and in 2005, 46 days.
Despite the apparent success of the full-disclosure tactic, Microsoft does not like that approach and has persuaded more security researchers to hold off disclosing their findings until the company has issued a patch to fix the problem. In 2003, Microsoft learned of at least eight critical Windows vulnerabilities through full disclosure. Last year, this happened half as many times.
Stephen Toulouse, a security program manager at Microsoft, said that if Microsoft is taking longer to release patches, it is because the company has renewed focus on ensuring that the patch corrects the problem in all versions of the Windows operating system and that each fix does not introduce new glitches.
Toulouse said developing the patch is usually the easiest stage. Testing the patch to make sure it doesn't break other applications is the time-consuming part: If testers find a bug, the patch developers incorporate the fix into all relevant portions of the patch, and the testing must start again from scratch.
"We learned that it's far better for us to find those issues than for customers to run into them," he said.
Microsoft learned some important lessons when it tried to fix a critical flaw in Windows that was later exploited by the infamous "Blaster" worm. Microsoft produced a patch for that vulnerability in just 38 days, Toulouse said, due to level of concern within Microsoft "about the breadth and depth of the vulnerability."
Two days after Microsoft released the patch, researchers found the flaw in three other areas of the operating system that the initial fix did not address. Roughly two weeks after that, the Blaster worm infected millions of Windows PCs worldwide. Some security experts think the worm may have been aided by the initial Microsoft patch, which could have given the worm's authors a better idea of how to exploit the flaw.
"It was a conscious decision at the time to release that patch so quickly, but we later looked back and decided we really should have conducted a more thorough review process," Toulouse said.
Peter G. Allor, manager of the X-Force vulnerability research division at Atlanta's Internet Security Systems Inc., praised Microsoft for "doing a fantastic job over the past year and a half on the [quality assurance] side of patching. We're not seeing the recalls and reissues that we used to. What we're hearing in today's corporate environment is, 'Make sure you get it right the first time.' "
But Marc Maiffret, "chief hacking officer" for Aliso Viejo, Calif.-based eEye Digital Security, noted that the longer a patch is in the works, the longer customers remain unprotected.
"The truth is that unpatched Windows flaws have a value to the underground community, and it is not at all uncommon to see these things sold or traded among certain groups who use them by quietly attacking just a few key targets," Maiffret said. "So, the longer Microsoft takes to patch vulnerabilities, the longer they are leaving customers exposed."
Brian Krebs is a staff writer forhttp://washingtonpost.com. For a more in-depth look at the numbers behind this analysis, read his Security Fix column athttp://www.washingtonpost.com/technology.
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Microsoft Corp. has often been criticized for taking too long to issue security updates for its software, a shortcoming that critics say leaves customers dangerously exposed to online threats. I recently researched the past three years' worth of "critical" Microsoft patches -- those that mend flaws...
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Report Reveals Low Rates of Foster Care Visitation, Reliable Record-Keeping
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Lacking proof from most of the states, federal officials are concerned that many foster children are not being visited regularly by caseworkers.
Only 19 states and the District were able to produce computer-based reports detailing how often such visits occurred in fiscal 2003, according to a new report by the inspector general for the Department of Health and Human Services.
Seventeen of those states required monthly visits. Yet, five reported that less than half of their foster care children were visited that frequently. Another five states reported a visitation rate of 75 percent or less.
Most states said they lacked the resources to produce such a report or they did not have a computer record-keeping system. The federal government and state governments have spent $2.8 billion developing such systems since 1994.
"We're not surprised at what the inspector general found," said Wade Horn, HHS assistant secretary for children and families. He said he shared concerns that states need to do a better job of tracking caseworker visits.
Child welfare experts say caseworker visits are among the most important tools states can use to protect foster children. "The more frequently a child is visited in foster care, the better the outcome for that child," Horn said.
Nationally, about 500,000 children are in foster care, a number that has been declining in recent years, Horn said.
All states must comply with federal regulations to get federal funding for their foster care programs, but each state determines how services are provided. Forty-three states call for monthly visitation. The others set visitation standards ranging from weekly to quarterly.
The government can financially penalize states that do not show improvement in key areas such as caseworker visits. So far, the Bush administration has resisted that approach. "The goal of the [reviews] has not been to penalize states, but to work with them to improve the effectiveness of their child welfare systems," Horn said.
He said he was prepared to enact sanctions for states that fail to improve. "Our hope is that every state will show progress," he said.
Daniel R. Levinson, the HHS inspector general, recommended that the government promote the development of computer tracking systems, which would improve states' abilities to ensure caseworkers visit foster children.
The federal government provides 75 percent of the funding for such automated systems, Horn said. The IG's report noted that 45 states and the District are in various stages of developing their computer systems but six states, unnamed in the report, have no such systems planned.
For the 31 states that could not produce reports, the IG's office repeated some reasons they were given. "We don't have the manpower to generate reports," an unidentified official from New Mexico told the inspector general.
The IG's office found the following rates for monthly visitation in 2003: Wyoming, 27 percent; West Virginia, 42 percent; the District, 43 percent; Kentucky, 44 percent; New Hampshire, 49 percent; Massachusetts, 50 percent; Tennessee, 53 percent; Arizona, 59 percent; Arkansas, 71 percent; and Texas, 75 percent.
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Lacking proof from most of the states, federal officials are concerned that many foster children are not being visited regularly by caseworkers.
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Tell Me About It
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Appearing every Wednesday and Friday in The Washington Post Style section and in Sunday Source, Tell Me About It offers readers advice based on the experiences of someone who's been there -- really recently. Carolyn Hax is a 30-something repatriated New Englander with a liberal arts degree and a lot of opinions and that's about it, really, when you get right down to it. Oh, and the shoes. A lot of shoes.
Other mail can be directed to Carolyn at tellme@washpost.com.
washingtonpost.com: Folks, Carolyn won't be starting until 12:30 p.m. ET. Sorry for the delay. -- Liz
Fairfax, Va.: When I tell a funny story, I really get into it. Sometimes I use voices for different characters in the stories or mime the actions of the players.
My girlfriends, who laugh hysterically when I do this, tell me I shouldn't do this in front of guys. It's not very feminine, and most girls don't use voices when they're telling stories.
I like funny stuff, though, and the girls must, too, because they're not just deadpan staring at me. In other areas of my life I'm pretty mature and conservative and responsible -- job, home life, etc. -- and I don't yearn for attention in general.
Since my mom got ill I feel like sometimes you have to look for the funny stuff in life, because life is kind of sad sometimes otherwise. But I have to admit, I go on lots of first dates but haven't had any 2nd or 3rd dates lately. Do you think they're right?
Carolyn Hax: NO. No no no no.
I would say their opinion crystallizes every bit of bad advice I've ever seen into one piece of advice so horrific you need to encase it in a special leakproof canister before you bury it at least a mile deep into the earth, lest anyone else be exposed to it--but they're you're friends, so that would probably be a bit harsh.
Ignore them. Tell your stories. Endure your relationship false starts. When you meet the guy who laughs hysterically at the way you tell stories, you will be exquisitely grateful you did.
And I'm sorry about your mom.
Carolyn Hax: Oh, and hi everybody.
Williamsburg, Va.: My husband yells at me and tells me that it's my fault he yells because I don't listen. He also tells me I am the problem and I need help. When I try to talk to him about my feelings or what's bothering me with regard to our marriage, he tells me I am being "mean." Everything I do and say is wrong and I am feel emotionally beat up. I don't know if this is emotional abuse or just a communication problem that can be worked out through counseling. I will say he won't let go of his perception that I am wrong wrong wrong and he is right. Can you help?
Carolyn Hax: Yes, if you trust me that you would feel a lot better if you talked to someone about this more extensively. From here, it does look an awful lot like emotional abuse--and if that's true, you're going to second-guess yourself relentlessly as you try to sort it out, especially if you come to the conclusion that you need to get out.
So, you can start by doing some reading. Try the Peace at Home Web site, www.peaceathome.org; a lot of readers have also found Patricia Evans's "The Emotionally Abusive Relationship" helpful, though I am ashamed to admit that my copy is still sitting on my desk unread past p. 20.
You can also contact the National Domestic Violence Hotline, 1-800-799-SAFE, for names of counselors in your area who can help you figure out (in individual. sessions) what the dynamic is in your marriage and explore whether you have a realistic shot at fixing it.
I'd also recommend marriage counseling, but that can get iffy with emotional abuse. If the abuser talks a good game, the victim can often leave the sessions with more doubts and less leverage. So, start on your own and then use that to figure out whether going jointly would make sense.
Or you could just get the hell out, but I'd rather you went through official channels since there's always a chance the abuse could escalate. (Leaving is very dangerous for abuse victims. Obviously staying is worse, but the immediate risk spikes when abusers feel like they're losing control.) Plus, you didn't say whether there were kids involved, which would demand that you be as meticulous as possible in your decision making and planning.
Whoo. I think that's everything.
Anonymous: Say you realize you are having problems with alcohol -- or, more precisely, that you are expressing other problems through irresponsible alcohol use. How do you know whether you should commit to just a few months of booze-free-edness or swear the stuff of for life?
Carolyn Hax: Commit to a day, then another day, then another day, then see how you feel and, more important, how you're dealing with those other problems. You don't have to make any huge decisions right now, you just have to start taking better care of yourself in small but decisive ways.
Washington, DC: I'm sure I speak for just about every guy in this chat when I say:
Fairfax, you sound like a fantastic date! Who wouldn't want to be with a confident, enthusiastic, hilarious girl? Please don't let your friends suck the life out of you.
Carolyn Hax: If not every guy, then certainly any guy she'd want to date. Thanks, DeeCee.
Wilmington, Del.: I have many successful single female friends who are not so successful in relationships. Once problem that many of us have encountered is that many of the "nice" guys that we meet are somewhat intimidated by our high salaries. Although we can buy the bacon and cook it, we would love to have someone to share it with. How can we make income less of an issue?
Carolyn Hax: Don't. It's one thing to realize you need a more flattering haircut or a kinder social manner, but you don't ever want to get into the business of downplaying--or, essentially, falsifying--some real part of yourself just to please other people. In your case, all you'd get for your efforts is someone who needs to believe he has the economic upper hand to feel comfortable. Whoopie! Better just to keep repelling all the people you repel with your high salaries (assuming that is in fact what's scaring men off, but that's a whole other answer), and save your commitments for people who feel comfortable with you as you are.
Carolyn Hax: Seriously. Doesn't that just sound like work, always having to monitor your effect on someone's ego?
Washington, D.C.: In response to your first question -- there are so few really good storytellers in the world, it would be CRIMINAL to silence someone who does it so well. Use those voices for all you're worth. The world will be a better place for it!
Carolyn Hax: A whole angle I hadn't considered. The I-won't-call-them-morons who advised her to play girlie may have hit it blind, backward and with the wrong end of the shovel, but they did hit on a truth: A lot of animated women do get subdued around men. I just don't think it's so much that men prefer demure little girlies as women -think- men prefer DLGs.
Or that some men do prefer DLGs and are vocal about it and that leads animated women and/or their wrongheaded but well-meaning friends to conclude that all men must therefore prefer DLGs.
Silver Spring, Md.: My fiancee is the "golden boy" of his family. As time has gone by I have increasingly begun taking on most if not all of the responsibilities of a wife including taking care of his 13-year-old son while my fiance has done less and less to help out. He is very successful with the magazine he owns and now he is spending time at home writing a book. He still refuses to help out and his mother continually steps in telling me he is too busy which makes me feel unappreciated by him and his family. What is the best way to get him more involved or at least appreciate what I do?
Carolyn Hax: So. According to you, his mother is telling him he is far too important to worry about household trifles, like child rearing and chores and tending to his family members' feelings.
And, according to you, he believes his mother and feels entitled to behave accordingly.
And, according to you, you are absorbing "most if not all" of these trifling responsibilities, thereby reinforcing what he already believes and the way he's already behaving.
The only way to get him more involved is to stop cleaning up after his mommy's precious little boy. Call his attention to the imbalance, explain to him that it's unacceptable and you will no longer play along with it, ask for a plan to remedy it, and Do Not Backslide into your role as his maid. It's possible he won't change even if you do hold the line, but it's absolutely certain he won't if you don't.
re Salaries and Ego: I'd agree that one shouldn't have to downplay one's success in life to preserve someone else's ego, but I can't help but wonder if she's making an issue of it early on in her dating. That's a huge turnoff.
Carolyn Hax: True. But if it's an issue, better to make an issue of it early on than later on. Then at least guys will know right away she's full of herself, instead of getting sandbagged with it later.
If on the other hand she isn't humility-deficient and simply is in a clearly butt-kicking line of work, then what can you do.
Washington, D.C.: Hi Carolyn. My housekeeper gives me a gift every Xmas. I don't like this as it makes me uncomfortable and I find it totally unnecessary. Any polite way to discourage this? We give her a bonus check and something like a box of chocolates or some other nice edible.
Carolyn Hax: Accept the gift. It's an exchange of kindness between equals.
While Williamsburg is doing her research,: Here is something she can try right now with her husband: repeat back or paraphrased to him what he says. Don't otherwise reply until you have confirmation from him that you understand what he's said.
If his complaint is that she is not hearing what he says, that should take care of it.
I'll bet his complaint is that she doesn't always agree with him, though, so he escalates -- increases his volume to yelling -- because he wants things done his way. But just in case he really feels he isn't being heard, the above technique, if done faithfully and kindly, might help.
Carolyn Hax: Thanks. Seems like a great approach any time someone tells us we aren't getting it--even when it's not a pattern.
Cubicle Land, Lunchtime: Hi Carolyn,
I just did an Amazon search on the book you mentioned ("The Emotionally Abusive Relationship") and wanted to (nicely!) correct you. That book is written by Beverly Engel. Patricia Evans wrote "The Verbally Abusive Relationship". But I'm guessing they would probably both be helpful in the chatter's case.
Carolyn Hax: Thanks! You could have done it meanly, too, and I'd still be grateful (though maybe a particle less).
As their both being helpful, you might be right, but the Evans is the one readers have brought to my attention more times than I can count.
Washington, D.C.: Hi Carolyn, thanks for the chat. Maybe a little advice to get cheery, in addition to a little emotional unload. Currently, I am in the process of getting separated from my wife, who I still consider my best friend, unfortunately our marriage just didn't work. My mother is currently very sick, mentally and physically. So it has been a pretty rough period. I have been going to see counseling individually as well as separately with my wife. Just taking it day by day, some days are better than others. Unfortunately, lately have been very sad. Many more bad days. Any advice to help get through this rough period? Many thanks.
Carolyn Hax: Holy been there.
It's really just a time you're going to have to get through, and until these painful things stop constituting a major part of your daily concerns, you're going to feel like crap.
However, they won't forever constitute a major part of your daily concerns. Their prominence is temporary--in the sum total of a life, even fleeting. That in itself, when you're able to believe it, is helpful.
For the rest, take meticulous care of yourself. First, think of this huge emotional challenge as you would a huge physical challenge. You will get through it better if you are in good physical condition, which means exercise, healthy food and a lot of sleep. It seems almost ridiculously simple but it really does help. (Proven so, in fact, in studies on the benefits of exercise in treating depression.)
Second, seek out non-destructive things you enjoy, and indulge as much as you can. Movies, books, art, music, friends--whatever does it for you.
Hope this helps. Hang in there.
Mom is Biased: My mom is biased toward a sibling. I could write a long question--give a bunch of specifics--but, basically, that is my problem. what to do? In case it matters, the sibling has a TON of personal problems--of her own doing.
Carolyn Hax: Be glad you weren't the chosen one? This is a horrible thing and I don't mean to minimize your hurt feelings, but there always seems to be a chicken-and-egg element to favoritism stories: Was the kid always a little wobbly and so the parent feels eternally guilty and therefore indulges? Or was the parent always biased and the years of indulgence prevented the kid from finding his or her own strength?
Regardless of the answer, it's a situation that creates victims all around. However, if you had your choice to be one of the other victims--the overindulged issue-factory, or the parent reaping her crop of unhappiness--wouldn't you rather be you? On any day of the week, for any amount of money?
So that's really all I advise. Give up hoping your mother will ever be fair, and be glad you got the best of a bad situation.
RE: The Responsibilities of a Wife: Carolyn,
I thought Silver Spring's problem was summed up in her first line. She apparently believes all these tasks WOULD be her responsibility if they were married. Don't you get that vibe? Her solution is easy - insist on marriage so he can walk all over her, but she can be Mrs Golden Boy.
Carolyn Hax: You might be right, but, bleah.
"Whatever it is, yuck." : Carolyn, haven't you ever encountered someone who is one of those "life of the party" sorts who really cannot see that sometimes they're overdoing it with their comedic routines?
Maybe Fairfax is a genuinely funny and delightful person, but isn't it possible that her friends are trying, in an inept and heavy-handed way, to let her know that maybe a little bit of her storytelling goes a long way and she needs to dial it back a bit?
Shouldn't Fairfax consider that if most/all of her girlfriends are advising her to cut the comedy, maybe she needs to at least consider the possibility that she might be laying it on a bit thick, to the point where it's annoying and not funny? If you were doing something you thought was funny but your friends knew that other people found it annoying and it was getting in the way of your relationships with people, wouldn't you want your friends to tell you?
Carolyn Hax: No, because I would see it myself when I noticed they weren't laughing any more.
Certainly some people's social receptors aren't calibrated right and they think they're being riotously funny no matter how silent everyone is (because everyone of course is intimidated ... I mean, has no sense of humor). But even then, I'd argue that a genuinely funny and delightful person who goes overboard sometimes is better off just going overboard sometimes.
If she's not happy in her own skin, then she should look inward. But that doesn't seem to be the case here.
Washington, D.C.: Please... the housekeeper isn't an equal. The people are her boss. They can fire her. They pay her. She works for them. How is that an equal. Maybe if they were stuck on an island, yes. But in the real world, not all people are equal. Take off the rose colored glasses Car.
Carolyn Hax: If I do take off my rose-colored glasses, I now know exactly where to stick them.
Re. Golden Boy: Aren't we wondering what happened to the first wife??
Carolyn Hax: Hardly a mystery, no?
Washington, D.C.: After much thinking and exploration, at age 41, I have decided to leave my cushy but unfulfilling job (read: golden handcuffs). The goal is to pursue consulting work and creative interests, and make my own schedule. I know I'll be working hard but I want that freedom, and I really don't need as much money as I was making (and don't have any dependents). A number of people have been very supportive and excited for me, but probably just as many have freaked out, and acted like I was jumping off a bridge, or assumed I simply hadn't thought it through. How do I handle these naysayers? I know it's more about them than me, but still...
Carolyn Hax: Feel sorry for them. You're living life as you choose to live it. Assuming it's all legal, your need to explain it ends there.
Thanks for the great chat! I've been really stressed lately for a number of reasons (work issues, health issues, family issues, friend issues) and, I think because of that, I've been extra snippy at my boyfriend of a year and a half. I don't mean to do this and after a snide comment comes out of my mouth, I always feel guilty and apologize immediately. The problem is, he takes everything very personally and doesn't understand that I'm just going through a lot right now and might not be myself. How can I help him understand that it's not him, it really is me? I really love this man and I don't want to hurt his feelings. I know we're strong enough as a couple to get through this rough patch...
Carolyn Hax: The question isn't whether you're strong enough as a couple to get through this rough patch, it's whether you're strong enough as person to stop being snide to someone you love just because you're stressed. You ARE being yourself, and that self is a person who gets snippy when stressed. Don't you dare shift the responsibility to him by implying this wouldn't be a problem if he just learned not to take it personally.
Even for people who don't take it personally, it really sucks to be somebody's verbal dartboard.
So please realize it's wrong, start paying attention to exactly what triggers your snippiness, and try out some tactics for getting yourself to stop. Do you need 15 minutes alone between your workday and seeing him? A run? A hot bath? Do you need him to stop asking certain specific trigger questions? Can you learn to recognize the mood, so that you can warn him, "Hey, I'm feeling really bitchy and irritable, so let's ..." cancel, or order takeout, or skip dinner and see a movie, or whatever.
That said, for his own sake, he needs to do the same thing--i.e, learn to read you better and come up with a few tactics of his own.
Washington, D.C.: I submitted this last week (in two different versions, which probably wasn't helpful), but I have a nagging feeling I might be a "functional alcoholic." At what point does one become this?
Carolyn Hax: No, I just saw it too late, or I would have suggested you cruise this Web site for a while: http://www.niaaa.nih.gov
If you don't see yourself or a solution anywhere, there's a resource link with other contacts to try.
I think you'll find the fact that you're asking to be significant enough on its own. You must want to cut back--so, cut back, and if you've tried and can't, then maybe go straight to the resources for a treatment referral or program.
Housekeepers and Equals: Dear Carolyn, Now that someone has broken the ice, I'd like to pile on: I don't think it's crazy to be uncomfortable receiving gifts from an employee. I think your opinion may be biased because the situation is domestic; it isn't very common in my industry for employees to give gifts to the boss. I can think of some situations where that would be inappropriate or even presumptuous. (Merry Christmas, Senator!)
Gift giving is most common between friends, and sometimes from employer to employee (though usually that takes the form of a bonus, right?). This person may be "equal" to her housekeeper in terms of civil worth, but she shouldn't have some obligation to be gift-giving friends with her employee, just because that employee works in her home.
It would be nice if they were friends, given the personal nature of domestic employment, but is a person morally deficient when they don't forge such friendships?
Carolyn Hax: I agree with a lot of what you said; you lost me with the "friends" talk; and it sounds like time to clarify.
I answered the way I did because this is all happening in a home, absolutely. I would have made that clear if I had even thought about it, which I didn't, so thanks for bringing it to my attention. I take it as a given that any household employee is also part household member; I think nannies get this treatment without much second thought (except at firing or boundary-overstepping time), and I believe a housekeeper is no different.
And so a strict employer-employee, office-type line strikes me as dehumanizing. It's necessary at times, but my sense is that if the employee in a household situation makes a small part-of-the-family gesture like giving a small gift (vs., say, helping him or herself to your stuff), then it's best to accept it and the sentiment that goes with it. This doesn't mean they're friends, just elements of a home.
I know a lot of you still won't agree, but am I at least being more clear?
Playdate Hell: A pretty good friend of mine asked if we could set up playdates for our 2 year olds. We did. Her son is really mean to my daughter though. He won't share and has bitten her twice. My friend acts as if this is normal behavior but I want to cancel the playdates forever. Am I overreacting (as she thinks I am)? If not, how can I do this diplomatically?
Carolyn Hax: Just say your daughter needs some time to catch up with her son and you'd like to try the play dates again in 6 months. You don't need to elaborate on her needing to catch up on her lust for violence.
Arlington, Va.: I need some help learning a nice way to tell my family the following - I don't want them to feel guilty, I just want them to understand. I use all of my vacation time to visit family. I live in a small apartment and we're all spread out across the US, so I understand that they can't visit me very often, but it gets tiresome to not get to use vacation time for myself. Holidays I have to travel to be with family (my parents are usually elected hosts by my older sister) and then through out the year I feel guilty if I don't take time to visit them. But then when I take the time, I feel stressed that I haven't had a vacation for me and that I used all my time on family. I love them and want to see them, I just get tired of traveling all the time. There's no hope of getting them to all move here, even though I wish they would.
Carolyn Hax: Um. You don't have to tell them anything. You plan your vacation for you, and you have a great time, and when you want to see others in your family, you make those trips as you can. And when you can't, you say, "I'm sorry, I'm out of vacation days, but I'll see you at [Holiday]"--or why don't you come here?"
Only if someone gives you a hard time about your you-vacation does this even need to come up, and even then, you owe neither an explanation nor an apology.
So really I think you need help learning a nice way to tell yourself that it's not wrong to live your own life, but it is wrong for others to make you feel guilty for that. If in fact that's what they're doing.
Anonymous: My boyfriend is a freeloader. There, I said it. But now what? He's working to get away from freeloader-girlfriend-supported status, but not as hard as I would look and it's annoying me. He chips in when he can for things, which is nice. But I would have taken some temp job or nearby retail to make it through the rough patch. He won't do that and won't even entertain that conversation. Just high hopes and dreams of a career switch while working here and there, off and on in the old field. How do I know when the line is crossed from freeloading-for-the-moment (but being very nice, polite and thankful about it - as I would hope since I have clue where he would go otherwise!) to enabling-boyfriend-to-continue-freeloading?
Carolyn Hax: He "won't even entertain that conversation"? While he's living off you?
That's the sound of the line being crossed.
Re: Playdate hell: Normal 2-year-olds don't share toys, and it's unreasonable and inappropriate to expect them to. "Parallel play" is typical at that age. Also, at age 2, it is unfair to characterize a child as "mean." Meanness requires deliberate intent, and kids of 2 just don't have the capability to be that calculating and aware of how their actions are perceived.
As for the biting, though, that really needs to be addressed. The biter's mom needs to make sure that Junior is not in a position to bite his playmates and that she does everything in her power to assure that he doesn't bite.
Carolyn Hax: And to correct him when he does. Thanks.
Anonymous: Hey Carolyn, Can the same behavior be passive aggressive in one context and totally fine in another? Here's the deal: my roommate of a few months and I have very different ideas regarding kitchen cleanliness. I was raised with the habit of doing my dishes right away. She lets her dishes pile up over a few days (on one occasion, weeks) and then does them. We've acknowledged that we have different dishes standards, and generally leave it at that -- I do mine right away, sometimes I do hers, sometimes I leave them... is it passive aggressive to actively do my dishes and leave hers sitting there (or on the stove or counter or wherever)? I don't always want to do them (because then I end up doing all her dishes all the time), nor do I feel like nagging her (and I'm sure she doesn't feel like being nagged by me). ...but in any other context I'd think doing only "my own" dishes would be really weird and petty. Is it?
Carolyn Hax: No, it's the only solution you really have besides living alone or putting the dishes in her bed.
Washington, D.C.: I found out last week that, despite using birth control, I'm pregnant. My fiance is thrilled, we will be married by the time the child is born, we have a house, we both have good jobs, but I am freaking out. I want to have children, eventually, but right now I still have another year and a half of grad school to finish, travel I'd wanted to do, and am concerned about how I am going to get established in my career once I'm done with school if I have a child. My fiance points out that we are in a much better position than most people who have children, and logically I can see that, but I can't help feeling angry and resentful and like this is going to be a major impediment on what I had planned for the next 5 years. How can I stop feeling this way? I don't want to resent my child for the rest of my life. Help!
Carolyn Hax: Apologies upfront for the analogy.
If you got into a car accident and lost the use of your legs, would you see yourself being resentful the rest of your life, dwelling on the fact that all your career goals and travel, while still achievable, now required more effort for you to achieve than they would have before your accident?
Or would you see yourself being angry for a while, understandably, and then realizing 5-year-plans are to life like dunes are to an ocean--they help, but the ocean has final say? (An analogy within an analogy! Stop me before I equate again ...)
And that it's what you do about the unforeseen is what makes life fulfilling or bitter? That the greatest elements of life often aren't what you had planned, but instead what you found/learned/met/achieved when everything went wrong? Look back, you have to have examples of that in your life right now. And if you don't, surprise! You just got one.
And then look ahead and start revising those plans. Or even better, leave them open, and leave yourself open to the possibility--I'd even say likelihood--that you'll look back on all this and find it unimaginable that things could have gone another way.
If it weren't for the car-wreck thing, the Hallmark people would be calling me after this one. Apologies for that, too.
Silver Spring, Md.: I wish I could live my life over again. I'd be much less responsible and do all the stupid things people do when they're 20. I find it suffocatingly depressing. I tried hanging out with a bunch of college kids for a while, but that just don't work when you're 30. Everyone else is growing up, starting families, and all I want is to relive the misspent youth I never had. Classic midlife crisis? Depression? Nature of being human?
Carolyn Hax: Sounds like rut burn. You've bored yourself stupid. Figure out what it is you'd really like to be doing with your life--in a life-fulfillment sense, not a beer-pong sense--and find a way to do it.
For example, finish this sentence: "If money were no object, I'd chuck everything and move to -------- and take a job at a -------."
(If any of you out there fill these in and start laughing out loud in your cubicles, please share.)
Lamoine, Maine: Regarding the unexpected pregnancy: I might help her if she realized that she does, indeed, still have choices. She can choose to have an abortion. She can choose to place the baby for adoption (though the fiance might not go for the latter.) Still, it IS a choice whether to have the child. Sometimes realizing that you have a choice makes all the difference.
Carolyn Hax: Great point, thanks.
Surprise Baby: Hey, freaking out is okay. Upon learning that after years of fertility treatments I was pregnant I sobbed for hours at my lost "independence". I got over it quick. We had to cancel a dream vacation we'd planned because I was due the week were supposed to go. Guess what? We're going on it this year, 5 years late, and it'll be different - and probably better - because we can see it from a completely different perspective. Yes, my career has been put on hold, but I found another one that I liked even more than what I was doing before I became a mom, and have gone in that direction.
There are surprise forks in every road, take one and see what happens!
Carolyn Hax: Surprise fork = Spork
Dishes: Not washing her dishes is not passive aggressive. I am very messy and will get around to my dishes when I can. The ideal roommate is one who will do his dishes when he wants, leave me to do mine when I want and not nag me about it. I also then don't have to feel annoyed that he is doing my dishes and feel guilty. From the other side, I definitely think your method is the way to go.
Carolyn Hax: Actually, I think doing the damn dishes is the way to go, and this is merely the perfect contingency plan. But that's just me.
Carolyn Hax: Eek. Lost track of the time. Bye, thanks everyone, and see you next week, if in fact it isn't already next week.
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Web Trends
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Burke, VA: Good afternoon Ms. Shlain,
What did you think of the young lad who made over $1M by selling pixels on his webpage for $1 per? Seems to me that the money in web advertising is just huge! One only has to look at Google and our young pixel selling college student to verify that fact. What do you see as the next big trends in web advertising?
washingtonpost.com: Related Story: A Million to One
Tiffany Shlain: There is huge potetial in web advertising. We will continue to see personalization and customization. I also see social networking tying into this. Just imagine if you search for a movie or a book, and you will see what your friends prefer along with the search to help you decide. All the parts are there right now but it all be more seamless in the future.
Los Angeles, California: What sector of the technology/media and technology industry hasn't quite taken off yet, but you expect will in the next year?
Tiffany Shlain: I have to say that I still think that the film distribution is still not in full bloom. Another area is new entertainment created specifically for the web. I know it's happening but I think the audience has arrived for this as well as the caliber of content being created.
Where do you see women making the bigger impact than men, in the online world?
Tiffany Shlain: Since the beginning of time men have been the hunters, women have been the gatherers...perhaps we are more adept at gathering information online? No, not really but that was kind of fun to write;) Hmmm..that is a good question. I think that women are very good at communicating feelings and emotions. There is a challenge with infusing into the online world emotion---in writing, in images, in experiences...perhaps this is where women will make a bigger impact. This is a good one to ponder...
Silver Spring MD: Why do you think there is such a gap between those who can "develop" sites, and those who can "design" sites. So many people have the technical know-how, but not the aesthetic eye for design.
Tiffany Shlain: Both sides bring so much to the table and unfortunately, they usually speak in different languages...very right brain/left brain. I hope that what people want to do technologically will continue to be more seamless..so that people with aesthetic design skills will have the tools that they need to create an experience online.
McLean, VA: Your thoughts on content delivery to cell phones? Ready for prime time, or perpetually not quite there?
Tiffany Shlain: I have been thinking about this a lot. What would I really want to see on my cell phone. I have a new film I just directed that will be playing at Sundance next week (www.tribethefilm.com) and it is 18 minutes long. Would I want it to be seen on the cell phone. Hmmm...not really sure. However, what would I personally want to watch on the cell phone..when would I watch it? when I am waiting in line? stuck somewhere? I think pithy, funny, short films (1 to 3 minutes) would be good. Lots of stuff to make people laugh. Laughing is always a good thing. I do think we are in the year that this is going to happen. I am excited to see what is going to come out. There are so many great short films out there looking for a distribution platform. The web and cell phones and IPODs offer huge possibilities.
White Oak, MD: I'm currently studying Graphic Design, and have learned a bit of HTML, Dreamweaver, etc. But opted not to take Flash. Was that a mistake? Do people still have a need for conservative design vs. Flash sites?
Tiffany Shlain: You should have the full palette of paints when you are creating. Learn flash. It is exciting and you want to know all the tools when you are creating a website.*
Cincinnati, Ohio: Do you foresee vodcasts and video over the Internet becoming nearly as commonplace as blogs and podcasts over the course of the year?
washingtonpost.com: Leslie Walker's .com: Future of Internet TV Is Coming Into View
Tiffany Shlain: Yes. People want an emotional experience. Images/video add that. I am excited by this development and happy it has finally arrived.
Flash-based web sites...Better than sliced bread or worse than burned toast?
What's are some outstanding local government web sites that you've come across?
Tiffany Shlain: Two answers to your two part question.
1. Flash is yummy. But you should always give people the option to experience via flash or a more simple way.
2. National Cancer Institute Web site won The Webby Award for best Government Website for the 9th Annual Webby Awards. It is an outstanding site.
Do you think spam's negative affect on email marketing will boost other forms of Internet communication?
Tiffany Shlain: I hope we find a solution for spam. I personally found that www.spamarrest.com has been working for me. It has really helped me deal with my spam problem although it is a service I pay for each month. I hope there will be a solution soon that everyone can use. I don't want spam to kill this amazing communication tool of email.
Silver Spring, MD: I'm a graphic designer in the area, and am constantly asked for web design vs. print design projects. Are there any good online "web design" companies I can refer my clients to? And I mean, a PROFESSIONAL site.
Tiffany Shlain: A great thing to do is to go to the www.webbyawards.com website and look at our winners for the 9th Annual Webby Awards and see the web design companies that made the award winning sites.
www.webbyaward.com , look for nominees and winners*
Washington DC: So what is Web 3.0 going to be like?
Tiffany Shlain: Perhaps the glasses we wear will be screens and instead of clicking on links we will be "blinking" to move into a link. All the information will be accessible....but boy would I miss eye contact;)
On a more serious note, we are accepting entries right now for the 10th Annual Webby Awards (deadline Jan. 27t.) Many of our entrants are doing new things that are paving the way for the future. If you are doing something that you think is great, be sure to enter. If you want to see examples of excellent websites or what you will see more of in the future, look for our nominees announced this spring.*
Winners of the 10th Annual Webby Awards will be awarded June 12th in New York City. Stay posted on all of this at www.webbyawards.com
Washington, D.C.: This being a city full of museums, what sort of technology/features do you see coming up for museum web sites, especially regarding online resources and tools for visitors?
Tiffany Shlain: you should check out:
*New York Academy of Sciences http://www.nyas.org
They won a Webby Award for Best Association Website.
Also, Best Cultural Institution Websites Webby Winners were:
*Lakota Winter Counts: An Online Exhibit
*National Aquarium in Baltimore Visitor's Web Site http://www.aqua.org
Reading, PA: Currently Google and "search" in general are the leading vehicles for Internet advertising, but within the next five years what other aspects of the Internet do you envision emerging as significant factors in Internet advertising, and why? Thank you.
Tiffany Shlain: This is going to have to be my last question. I have really enjoyed this chat with everyone. The next vehicle is really going to be our cell phone. Most people have no idea how much a cell phone or PDA can really do. I think the convergence of the web with the cell phone is going to be huge. Just imagine when your cell phone camera will take a snap shot of a barcode of a product and then tell you information about the product i.e.what companies were involved in making it, what other products you may be interested in, deals, etc. This will be a huge open field when the web, search, cell phones are all working together. This information can flow both ways and will be significant in internet advertising. It's very close to happening.
Have a great weekend everyone!
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Join live discussions from the Washington Post. Feature topics include national, world and DC area news, politics, elections, campaigns, government policy, tech regulation, travel, entertainment, cars, and real estate.
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PBS: 'Raising Cain'
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What can be done to keep boys today from growing into men who are more prone to anger than to empathy?
"Raising Cain" on PBS explores the emotional development of boys in the United States. The program is hosted by child psychologist Michael Thompson, Ph.D., co-author of the book Raising Cain. Thompson consults with psychologists, social activists, researchers and educators to probe the issues facing young males.
The documentary provides new research about boys' inner workings, dispelling a number of commonly held misconceptions and highlighting programs that are bringing out the best in the country's boys. "Raising Cain" aired on PBS on Thursday, Jan. 12 at 9 p.m. ET. (Check local listings.)
Host Michael Thompson was online Friday, Jan. 13, at 3 p.m. ET to examine the emotional development of boys today and the PBS film "Raising Cain."
Research confirms that genetically baby boys and girls exhibit more similarities than differences. Contrary to common stereotypes, experiments show that baby boys are emotionally more vulnerable than girls. At Harvard University Medical School, Thompson follows an experiment that shows how infant boys and girls deal with the absence of a mother's attention. While the girls remain calm and find ways to occupy themselves, the boys become upset. But from a young age, boys are directed to deny their feelings and emotional responses. They are encouraged to exhibit aggression and toughness as signs of manliness; feelings of vulnerability and fear are discouraged. Authority figures then react simply to the physical and aggressive behavior they see rather than boys' true feelings. Problems intensify as boys enter the public school system.
Thompson is a consultant, author and psychologist specializing in children and families. His areas of expertise include eating disorders, depression, teenage suicide, and social development. As a clinical consultant, Thompson has worked with more than two hundred independent schools across the U.S. and in other countries. He and co-author Dan Kindlon wrote The New York Times bestseller, "Raising Cain: Protecting the Emotional Life of Boys" (Ballantine Books, 1999). He is the author of "Speaking of Boys: Answers to the Most-Asked Questions About Raising Sons" (Ballantine, 2000), and co-author of "Best Friends/Worst Enemies: Understanding the Social Lives of Children."
Related Link: PBS Parents Guide to Understanding and Raising Boys
Michael G. Thompson, Ph. D: Hello, this is Michael Thompson. I have just joined the online chat and will begin answering as many of your questions as I possibly can in this hour. I see that I have received some good questions already. I am assuming that almost all of you are parents of boys and I hope you watched and enjoyed "Raising Cain" on your local PBS station last night. Now, I'll get to work.
Novi, Mich.: Will this program be aired again on PBS? If yes, when? I was only able to catch the very beginning and end and would like to see more.
Michael G. Thompson, Ph. D: Dear Novi, Mich., I am told the program is going to be re-broadcast a number of times. I know that it is going to air twice more in the Boston area this weekend and I assume your local PBS station will re-broadcast it. Check the local listings or call your station.
Bessemer, Ala.: My son is 13 and has shown aggression since he was in K4. His mother and I divorced in 2003 and I have had very little contact with him at his request. We recently had to place him in a development program outside our local school system due to the excessive aggression. I have made several attempts to get close to him through fishing. He and I had a wonderful day last summer. However, several days later he cussed me out over the phone. I have told him that I will always love him. Do you have any wisdom/advice that you could give me?
Michael G. Thompson, Ph. D: Dear Dad in Bessemer, Ala. Learning to control anger is the four and five-year-old boy issue. Though it doesn't happen all the time, many boys experiment with throwing out their chests, becoming oppositional, swearing and bullying to get their way. Half an hour later they are just little boys again, eager to please. Boys like your son, however, are angrier than average, or they have a special complaint against the world. and need special help to be able to get their anger under control.
His getting angry at you isn't related to the fishing; nor should you hope that a one-time fishing trip will make his anger go away. You should fish, and go to the park, and play and do whatever you can to stay in contact with your son. Over time, he will realize that he didn't lose his father in the divorce, that he has a good relationship with both his mom and dad.
Ft. Myers, Fla.: Thank You! I could go on & on about the "need" to share this story and its message but I simply want to say - thank you a million times over.
Michael G. Thompson, Ph. D: Dear Paul,
Being a single parent is tough and lonely at times, but you should know that the research shows that men who single parent are just as good at it as single moms. I have enormous respect for the fact that you are giving your time to be a Big Brother. As you could see from the documentary last night, there are so many boys out there looking for an older man to be a mentor or big brother to them. Keep it up!
Waltham, Mass.: Our 4.5 year old LOVES his screen time; we limit it to 0-2 hrs/day: PBS, a few good movies and preschool Internet games ... but sometimes it seems that's ALL he thinks about and when we say no it can lead to huge meltdowns or incessant negotiation - WHY is he so intense about it and how much is too much?
Michael G. Thompson, Ph. D: Dear Helen and Jamie,
Your four and a half-year-old son is just trying to run the world the way he wants it. Once again, it is because he has a strong little body now, he dreams about being grown up, he wants to be in charge of things, and HE WANTS HIS TV WHEN HE WANTS IT!
Television is pretty entertaining and the stories are pretty compelling. If you give in to him all the time, especially when he is angry and demanding, you will be rewarding his anger. The result will be that he is likely to use his anger in demanding, unpleasant ways later. Two hours of television per day is plenty; no pediatrician in the U.S. would recommend more than two hours per day. What I would do is make the time or hours consistent from day to day. If you keep changing the amount of time, saying "One hour today...two hours tomorrow...one hour the day after," he will experience you as being inconsistent and he will keep objecting. Boys his age need consistency in their routine. You should also find diverting activities to do with him after you turn the TV off: cooking, reading, painting, playing in the back yard. Make it rewarding for him to give up television because he is rewarded by time with you.
I watched the last hour of Raising Cain last night and was fascinated by the research and devt. of boys.
I am sorry I missed the first hour because I have a 4 year old boy that I trying to understand his changing emotional needs.
We have not exposed him to many of the action figures prevalent in today's "play world" such as Power Rangers, super heroes and Spongebob but he attends a Montessori school where the other boys must have older siblings that have been exposed to such characters. I am struggling with how to introduce some of these violent, or sassy characters to my son in a way to get him to understand that just because other kids want to reenact super hero play, it isn't necessarily appropriate. I realize I can't shelter him from these characters, but how are they in general affecting the upbringing of our boys?
My funny example story is that my son and other kids got in trouble for playing power rangers on the playground. When I asked him how they were playing he told me that the other kids said he had to play the bad guy, and hurt them. This isn't something I expected given his lack of exposure at home to these characters. I insisted that he tells his friends in the future that it isn't nice to be a bad guy, and he would only play good guys.
How do we as parents explain all of this violence kids are exposed to in public arenas?
Michael G. Thompson, Ph. D: Dear Brighton, Michigan. While it is true that boys today are exposed to a lot of media violence, the deeper truth is that boys have been playing games of "good" and "evil" since the beginning of civilization. I'm sure that boys in Athens played fantasy games with sticks in which they were fighting against the Trojans.
Action figures are not, in my mind, a problem. Action figures are not the source of adult male violence in the United States. Play is play and almost every loving, peaceful man in this country played "cops and robbers," or "cowboys and Indians" or wrestled with his brothers and friends. Play violence is not real violence.
It is a different matter if a boy hits others, or uses a play gun to poke someone in the eye, but if the play is controlled, and fun and exciting, that is not a problem. My daughter, who is twenty, baby-sits for two children a girl, age three and a boy, age four. I went to the park with them yesterday afternoon and we "fought" dragons with sticks for an hour. We ran around finding (invisible) dragons, stabbing them, hiding behind tress, finding more fantasy dragons and killing those too. It was a regular free-for-all. Then we went back home and the kids took a nap. No one got hurt.
Bridgeport, Conn.: I saw Raising Cain documentary which I think was very interesting, but you let out one very important issue "race". You only showed the stereotypes that society have of minority adolescents in this country. There many minority adolescents that face the same problems that the ones you showed in you program, but their behavior is totally different.
Michael G. Thompson, Ph. D: Dear Bridgeport, Conn. I respect your critique of the show. I agree that there are many boys of color living in suburbs who don't have the problems of inner-city youth, and by focusing on just African-American inner city kids we risk reinforcing a stereotype.
However, we wanted to show kids who were at risk and boys who are tempted to join gangs like the Bloods and the Crips, because I wanted to talk about what boys need psychologically that propels them into gangs. It is simply is a fact that most kids who are involved in gangs in the inner city poor; gangs thrive where there is poverty and where boys don't have educational or job opportunities. Sadly, such boys are often from immigrant families, as well as Hispanic and African-American. That is the legacy of racism in the United States.
If you had wanted to see the struggles of poor white kids in rural areas of the U.S., you could have watched "Country Boys," the documentary that was on for three nights before Raising Cain. It showed the lives of two, poor boys in Kentucky, one of whom had an alcoholic father and the other of whom had a father who had committed a murder/suicide. Did "Country Boys" reinforce stereotypes of poor, white people who live in trailers in Kentucky? You could say that it did, but it was also true and honest and fascinating. That's a documentary.
Sleepy Hollow, N.Y.: Hello Dr. Thompson,
I was blessed to watch your show yesterday evening. I am a concerned mother with a 3-year old son in childcare. My son is a very active and inquisitive boy and, I believe, this has led him to be labeled as "bad" by his day care provider. I am concerned because she strongly suggests that he be evaluated by the public school system. When is an appropriate age for children to be evaluated for behavioral disorders?
Michael G. Thompson, Ph. D: Dear Sleepy Hollow,
Don't be afraid of an evaluation, as long as it is recommended by a teacher or care-giver whom you trust and who really likes your son. My son was evaluated in pre-school by the "early intervention" team in town because his language was slow to develop and he had bitten a few kids in a pre-school. The evaluation showed that he had a speech disorder, and the recommendation to move him to a smaller, quieter pre-school was exactly the right recommendation. He later had speech therapy and now he is a strong, healthy fifteen-year-old with clear speech (he is at a play practice in his high school right now, and he has a speaking part!)
The key, however, was that we trusted the people who made the recommendation. They weren't being hurtful, punishing or discriminatory. They had his best interests at heart. I hope you find an evaluator whom you like and trust.
Montreal, Quebec, Canada: I have a 6 year old son, I am a single mother and have raised him alone from day one. My problem is his sleeping habits, from birth he has not slept through the night. He wakes several times and uses all types of excuses. He is not ADHD and I am pulling my hair out trying to figure out why he wakes so often. Can you offer some advice?
Michael G. Thompson, Ph. D: Dear Sleepless in Montreal,
I'm not an expert on sleep troubles, but I do know that lots of kids wake up in the night, more than anyone in American is prepared to admit. You are not alone. Does he get enough sleep overall? Is he getting enough exercise? Does he get lonely and want to sleep with you? Does he get scared in the middle of the night? Is he terrified? Is that what this is about? If so, put a cot next to your bed, or a camp-style mattress on the floor in your room and let him sleep there when he gets frightened. Just don't stay up and entertain him. Make your response quiet and low-key, and expect him to get back to sleep as soon as possible.
Ann Arbor, Mich.: Have you kept in touch with Hugo and his 2 sisters, and with Renato?Please tell us how we can help find them safer housing.
Michael G. Thompson, Ph. D: Dear Ann Arbor,
Hugo and his two sisters living public housing, what Hugo calls "The Projects." I know that the social workers at the Chelsea Boys and Girls Club are in touch with his family and are trying to help them. I also hope they find better housing; what I do know is that they are poor, and poverty makes life really hard. I don't think anyone who has not been poor knows how tough it can be.
Ventura, Calif.: I teach high school math and will shortly be marrying a woman with two boys ages 10 and 5. I have always believed that boys don't want to do what you want them to do ie: chores, going to bed, working on homework, primarily because it is hard or painful. So to motivate boys to do what you want them to do requires one to create consequences such that the desired path is the least painful choice.
Would you please address this belief and explain if it is flawed and how this method of motivation could be harmful? What alternatives to this kind of motivation could I use.
Michael G. Thompson, Ph. D: Dear John in Ventura,
No one on earth lovves doing chores that someone else has given to them; we have to be taught to do chores and supported while we become consistent in doing them. Behavioral psychologists have clearly demonstrated over and over that rewards are more effective than punishments in shaping behavior. The rewards that work for most boys--indeed, all children--- are: the love and respect of their parents, allowance, earning privileges or freedom, etc. So, if you want boys to do chores, it is helpful to set up clear expectations, tell them how much it means to you and the family, praise them when they do them well, and make their allowance contingent on their finishing their chores.
But you know all this, because you're a teacher, and not every child who comes into your class wants to do math. You are constantly working with both very motivated math students and not-so-motivated math students. Still, everyone has to learn math. The same consistent, supportive, rewarding approach you use in teaching math can be used for chores.
Anonymous: Would you please comment on how the message that "women can do anything a man can" is affecting younger boys. Let me add: I don't disagree with the message. I believe there has been much discrimination against women. Yet, as there has been a campaign of the past several decades (and quite notable in the media: children's programs and films often show a female proving her superiority to condescending males) to build the confidence of females, I sometimes fear that younger men (who are less aware of the past discrimination against women) begin to feel they are less worthy when viewing these messages. Indeed, as I see more women than men continuing to college, I wonder if it is time for the media to build the confidence of young boys, or at least to point out that all need boosts in their confidences.
Michael G. Thompson, Ph. D: Dear Anonymous,
I believe that girls should be told they can grow up to be anything they want to be, and boys should be told the same thing. All children should be encouraged to become well educated, competent and to pursue their dreams. Part of the problem in schools is that we define girl behavior as the norm, and we sometimes treat boys as if they were defective girls. Boys resent that, and they fight against it. But, you are correct, it can make small boys feel uncertain and bad, as if the world has no use for boys and not trust in their development. Boys need us to trust that they are okay and will grow up to be just fine---in their own boy way, and at their own boy speed.
Charlotte, N.C.: You talked a lot about what fathers can do, are there specific things mothers can or should not do to help raise a boy?
Michael G. Thompson, Ph. D: Dear Charlotte, N.C. Yes, a mother should remember what she loved about her father or her brothers, and what she loves about her husband. She should tell her sons what a good man is, and express her belief that her sons are going to turn out to be good men. Boys need to know, indeed boys yearn to know, that the women in their lives are going to love and respect the man they are becoming.
Also, moms should try not to be afraid of their sons. Yes, they'll try to gross you out and scare you sometimes. Just remember they are still just boys.
Dayton, Ohio: I watched the program last evening and thought you did an excellent job tracking the academic/emotional development of boys to men. One of the things I would like to ask is about the suicide rate among young men (16-24) - what, if anything, can we as parents, educators and any thinking society do to prevent it.
Michael G. Thompson, Ph. D: Dear Dayton, Boys don't talk as much as girls, and if they are considering suicide, they don't give as much warning as girls. Therefore, it is essential to have adults in constant contact with students in schools, so they can see if a boy is depressed, or withdrawn or his behavior has changed. You need to ask boys, "You seem depressed. Are you thinking of hurting yourself." You can't be squeamish, you have to be direct. It is a question I have asked many, many boys, and if you have the courage to ask it, they almost always give you a straight answer, one that reassures you and requires you to get them extra help.
Hopewell, N.J.: Is it true that a boy's most physically aggressive stage is at two years of age?
Michael G. Thompson, Ph. D: Dear Hopewell. Yes, Prof. Tremblay in Montreal has shown that all human aggression, in both boys and girls, is at its most ferocious and uninhibited at age two. Thank goodness they are so little or they would be dangerous! My friends had a little boy (now a wonderful twelve-year-old) whom they laughingly referred to as The Terminator!
Bloomingburg, N.Y.: I watched your program "Raising Cain" on channel 13 last night and do not remember the all boys school you profiled,where the boy had to travel a long distance to get too, I believe it is in New York. Can you tell me the name of the school I would like to make a monetary donation.
Michael G. Thompson, Ph. D: Dear Bloomingburg, The boy, Ruben, who traveled two on two subways and two busses to get to school was going to "George Jackson Academy" on St. Mark's Place in New York. It is a new style of school of disadvantaged boys, run by Catholic monks, and it is am amazing place. They are doing a great job with almost no money. I am very glad that you want to make a contribution to the school.
Elkton, Md.: Dear Dr. Thompson
My son is bright - he has been tested with high scores. He does extremely well in school He loves to read, play videos, and ride his bike. However, I'm concerned because although bright, he isn't overly motivated, or should I say deficient in this category. How can I motivate him without bribes? His younger brother came out of the womb highly motivated but not as super bright. I just dread that my older son may become one of those highly intelligent people who work at a video store for a living. Your documentary was enthralling to watch. I really hope it airs again. My sisters and brother-in-laws are all interested. I told them about it today.
Michael G. Thompson, Ph. D: Dear Elkton, You say your son is bright and he is doing "extremely well" in school. He loves to read. Hey, enjoy him. It sounds to me like he is doing just fine. We're not all motivated to get A's all the time, but that doesn't mean we aren't great kids. You are worrying too much. I would bet he's not going to end up in a video store as his final job.)
Upper Marlboro, Md.: I have an 8 year old son who attends a special education program in one of PG County's public schools. I am concerned about his social development. He was recently transferred to a school for comprehensive needs. I would like to know what type of programs I should put in to help develop his social skills. Thanks
Michael G. Thompson, Ph. D: Dear Upper Marlboro, Special Needs educators should be able to tell you what kind of programs for "social pragmatics" are available for your son, and whether he is a good fit for them. Go ask someone whom you trust to help you find your way through the maze of Special Education programs. Good luck!
Northboro, Mass.: I watched the show with great interest, and plan on reading the book cover to cover. I was particularly interested in your observations about the distinction between "fantasy violence" and actual violence in the emotional development of boys. Toward the end of the program, you interview a group of boys from affluent Lincoln Sudbury Highschool, and reference an incident in which the boys performed a mock retelling of the Snow White story that was in questionable taste. In their performance, the dwarves bully and shove Snow White around in an aggressive and sexual manner. I wonder if you have any thoughts on the role that aggressive attitudes toward women play in the lives of adolescent boys as they approach manhood, and what can be done to address them. It seemed particularly interesting to me that all of these boys were from two parent households, with the influence of a father in their lives, and seemingly devoted mothers.
Michael G. Thompson, Ph. D: Dear Northboro. The boys who did that tasteless "Snow White" skit and really not planned their skit at all. They had a dumb-clever idea, they never rehearsed and they didn't really plan, nor did they want to look like rapists. From the point of view of a psychologist they were giving many messages at the same time: We're big sexy men now, we're still little boys (dwarves in short points), and we want to remembered somehow by our high school because we're going off to college and we're scared! I have seen senior boys in so many dumb good-bye skits, I wish I had a dollar for every one of them I've seen. They are regrettable, but NOT DANGEROUS.
Vancouver, British Columbia: I have a 7 year old nephew and am concerned that he is being labeled as having ADHD. I do not live in the same town as him therefore do not see him on a daily basis however the times I do spend with him he seems to be a completely normal little boy. His mother, my sister, is a single parent. His father is not in the picture and has not been for approximately 4 years. He has 2 older sisters which means he has been growing up in a house full of women. No male role-model. I watched Raising Cain last night and saw similarities in his behavior to those of the boys on the show. I always figured he was just "being a boy", but my sister seems to think there is something wrong with him because he doesn't behave the same as her two older daughters did when they were his age. I am afraid of what being labeled ADHD will do to him if it's not actually the case. As well I am concerned about the restrictions my sister is putting on his diet for she is contributing his somewhat aggressive behavior(which I think is normal) to ADHD which she believes is triggered by certain foods. How do I get her to see that he is just a normal boy and to treat him as such and not to put labels on him such as ADHD. I don't want him to think he is sick, I just don't think that can be good.
Michael G. Thompson, Ph. D: Dear Vancouver, A boy shouldn't be measured by whether he acts like his two sisters did. He should be evaluated on how he compares to other boys. If he is the most distractible, impulsive boy in the class, then he might be ADHD. If he is just distractible and impulsive compared to his sisters, he might be a fine, healthy boy. The teacher will know. Have his parents talk to a teacher they trust and ask her opinion.
Michael G. Thompson, Ph. D: Thank you all for your wonderful questions. I have to go now! Sincerely, Michael Thompson
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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What can be done to keep boys today from growing into men who are more prone to anger than to empathy? Host Michael Thompson examined the emotional development of boys today and the PBS film "Raising Cain."
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Md. Legislature Overrides Veto on Wal-Mart Bill
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Maryland lawmakers bucked the will of the state's Republican governor and the nation's largest retailer yesterday, voting to become the first state to effectively require that Wal-Mart spend more on employee health care.
In a veto reversal that was closely watched nationally, lawmakers in the Democrat-led General Assembly voted largely along party lines for a measure that legislatures in more than 30 states are considering replicating.
"Maryland is not a shrinking violet -- no, far from it," said Sen. Gloria G. Lawlah (D-Prince George's), a lead sponsor of the legislation, which drew strong backing from labor unions and health care advocates. "Maryland is a leader. Let us light the torch today. Let us lead."
The Senate voted 30-17 for the bill after a filibuster attempt by Republicans. The House followed last night with an 88-50 vote that handed Gov. Robert L. Ehrlich Jr. (R) a defeat early in the legislative session on a bill he argues is an unwarranted government intrusion into business.
The bill will require private companies with more than 10,000 employees in Maryland to spend at least 8 percent of their payroll on employee health benefits or make a contribution to the state's insurance program for the poor. Wal-Mart, which employs about 17,000 Marylanders, is the only known company of such size that does not meet that spending requirement.
Wal-Mart spokesman Nate Hurst said the votes were driven by "partisan politics."
"This vote was never about health care," Hurst said. "In allowing a bad bill to become a bad law, the General Assembly took a giant step backward and placed the special interests of Washington, D.C., union leaders ahead of the well-being of the people they serve. And that's wrong."
Hurst said the company's lawyers were certain to look into questions raised by business groups about whether the bill violates federal law. The Maryland Attorney General's Office issued an opinion this week dismissing those concerns.
The legislation has resonated in Maryland and beyond in part because it is viewed as a relatively easy and inexpensive way for lawmakers to expand access to health care and because Wal-Mart, a company with a reputation for stingy benefits, is considered an easy target.
"We don't want to kill this giant. We want this giant to behave itself," said Del. Anne Healey (D-Prince George's County), the lead sponsor in the House. "We want this giant not to be a bully."
The bill drew spirited opposition from Republican legislators, who argued that supporters were trying to punish an unpopular company and help its unionized rivals. Opponents also predicted that lawmakers would gradually expand the bill to include smaller businesses.
"This is a revenge bill," said Sen. E.J. Pipkin (R-Queen Anne's). "This isn't about health care."
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Maryland lawmakers bucked the will of the state's Republican governor and the nation's largest retailer yesterday, voting to become the first state to effectively require that Wal-Mart spend more on employee health care.
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A Hearing About Nothing
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A listless intellectual fog had fallen over the Senate hearing room on Tuesday, the first full day of questioning for Judge Samuel A. Alito Jr. before the Judiciary Committee. As one Democratic senator strode out to the hallway during an afternoon break, he leaned toward me and said: "We have to hit him
The senator was expressing frustration over a process that doesn't work. It turns out that, especially when their party controls the process, Supreme Court nominees can avoid answering any question they don't want to answer. Senators make the process worse with meandering soliloquies. But when the questioning gets pointed, the opposition is immediately accused of scurrilous smears. The result: an exchange of tens of thousands of words signifying, in so many cases, nothing -- as long as the nominee has the discipline to say nothing, over and over and over.
Alito, an ardent baseball fan, established himself as the Babe Ruth of evasion.
The headlines went to the abortion issue. Alito was pressed about his statement in a 1985 job application letter to the Reagan administration that "the Constitution does not protect a right to an abortion." It is a reasonable view shared by millions of Americans. Republican Sens. Sam Brownback (Kan.) and Tom Coburn (Okla.) were refreshingly open in their denunciations of Roe v. Wade .
But Alito would neither embrace nor back away from what he had said. He did allow that "there is a general presumption that decisions of the court will not be overruled." Well, yeah.
When Sen. Dianne Feinstein (D-Calif.) asked Alito if the issue was "well-settled in court," he offered the celebrated formulation: "I think that depends on what one means by the term 'well-settled.' " The standard dodge is that nominees can't answer questions bearing on cases they might later have to decide. But Democrats Feinstein, Richard J. Durbin (Ill.) and Charles E. Schumer (N.Y.) all noted that Alito was perfectly happy to speak expansively on some questions he would face, notably reapportionment.
Sen. Joe Biden (D-Del.), much mocked for his prolix prattling in the early going, actually made a pithy observation yesterday. He said that nominees "tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them."
Conservatives are right that our abortion debate is distorted because Roe v. Wade has forced too much discussion into the limited confines of Senate hearings over future judges. But that doesn't make the circumlocutions any more satisfactory. Conservative appointees who might well overrule Roe can't quite say so if they are to get the votes they need from Republican senators who support abortion rights and want to protect themselves with pro-choice voters.
That was just one of many evasions. When Sen. Patrick Leahy (D-Vt.) asked if "the president has the power to curtail investigations, for example, by the Department of Justice," Alito replied: "I don't think the president is above the law." A fine sentiment that didn't answer the question. Leahy asked yesterday if Congress could strip courts of their authority to rule on cases involving the First Amendment. Alito didn't have a view.
When Biden asked Alito about John Yoo's expansive reading of presidential power, Alito said he had not read the former Justice Department official's recent book, even though Yoo's views have long been well known.
And there was something odd about the gap in Alito's memory concerning his membership in Concerned Alumni of Princeton, a right-wing group whose publications said some rather unpleasant things about blacks, women and gays. Alito didn't remember anything, but if he did remember something, his membership might have been related to Princeton's decision to throw the ROTC off campus, even though parts of ROTC later returned. The first public reference I can find to the ROTC rationale came not from anything Alito has said but from talking points put out Monday by Republican National Committee Chairman Ken Mehlman.
My biggest worries about Alito are how he would rule on presidential power, workers' rights, civil rights and regulatory issues. Cass Sunstein, a University of Chicago law professor, has noted that Alito follows the law when it's clear, but he almost always tilts toward his conservative predilections when the law is less settled.
Democrats seem to be wary of mounting a filibuster. What they should insist upon, to use a euphemism Alito might appreciate, is an extended debate in which his evasions will be made perfectly clear to the public. If moderate senators want to vote for a justice highly likely to move the Supreme Court to the right, they can. But their electorates should know that's exactly what they're doing.
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Samuel Alito, a baseball fan, has established himself as the Babe Ruth of evasion. It turns out that nominees don't have to answer questions when their party has the votes.
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Requiem for the Crescent City
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NEW ORLEANS -- Assemble the brass band and let the funeral march begin, because the old New Orleans is dead.
The passing of our most distinctive city, so prominent in American imagination and lore, became official Wednesday when a blue-ribbon commission presented its plan to rebuild on the mud-caked ruins. One way or another -- through a proposed moratorium on rebuilding in the areas flooded when the levees failed, or through protracted argument over whether to have a moratorium -- the plan all but guarantees additional months of delay and rot. Every day, meanwhile, more evacuees will decide to make new lives for themselves elsewhere.
Play a mournful dirge for the lost city they have left behind.
The old New Orleans was unique in so many ways. The cityscape was like no other, with its thousands of little Creole cottages and shotgun houses. Before the flood, the city boasted 38,000 recognized historic structures; about 25,000 were badly damaged. All told, according to the report from the Bring New Orleans Back Commission, 108,731 households -- half the city's total -- were inundated with more than four feet of water.
Some echoes of the old New Orleans live on. The anything-goes atmosphere of the French Quarter persists. There will indeed be a Mardi Gras. As for the glorious cuisine, most restaurants in the dry parts of the city are functional, if barely -- a lot of the people who used to cook, serve, bus tables and wash dishes are scattered around the country.
And of course there's the music -- the city's greatest contribution to modern culture. You can still go out at night and hear jazz being reinvented. The city's "cultural ambassador," a young trumpet virtuoso named Irvin Mayfield who can make his horn sing like an angel or growl like a hungry dog, is trying to use his fledgling New Orleans Jazz Orchestra as an instrument of civic renewal. He envisions a living institution that honors the birthplace of the 20th century's most important musical form.
Mayfield's father, Irvin Mayfield Sr., lived in the devastated Gentilly neighborhood and did not escape the flood. Several weeks after the putrid water was pumped out of the city, authorities identified his body.
The great musician Fats Domino did manage to flee his home in the Lower Ninth Ward by boat. The plan city officials unveiled Wednesday envisions much of Domino's neighborhood being condemned and turned into parkland or sold to developers. Several property owners reacted angrily and threatened to resist the bulldozers, with physical force if need be, but the plan just recognizes the inevitable. The Lower Ninth will never be the Lower Ninth again.
Neither will Central City or a half-dozen other big neighborhoods that the city wants to condemn and sell for development. Much of what has always been considered the heart and soul of black New Orleans has in effect been wiped off the map. Former residents are dispersed; the few who got housed in local hotels are under pressure to get out so the hotels can make room for the Mardi Gras tourists.
The numbers are merciless: New Orleans has a sprawling "footprint," or infrastructure, to accommodate the more than 600,000 people who lived in the city at its height. By the time Hurricane Katrina hit, the population was down to 462,000 -- meaning that some neighborhoods were already blighted. At present there are only 144,000 souls, and the city estimates that in September 2008, the population will still be just 247,000.
The reason the old New Orleans is dead is that the people who made it special are gone and there is no path for them to come back. I doubt there's anywhere else in this country you could find so many black people who look white or so many white people who sound black. I know there's nowhere else you could find all the Creoles and Cajuns, nowhere else you could hear that odd New Orleans accent that sounds more like Brooklyn than Biloxi.
The Bring New Orleans Back Commission envisions a city with lots of green space and a new light rail system; it sees revitalized schools and world-class medical research centers, all protected by invincible levees. It might be a nice place to live, but it won't be the old New Orleans.
In the old days, at a jazz funeral, the "second line" of followers would sing and dance the departed to heaven. The music is still playing in New Orleans, but there's nobody to form the second line.
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Assemble the brass band and let the funeral march begin, because the old New Orleans is dead. The rebuilding plan all but guarantees that the city's evacuees will have to move on.
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'Munich,' the Travesty
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If Steven Spielberg had made a fictional movie about the psychological disintegration of a revenge assassin, that would have been fine. Instead, he decided to call this fiction "Munich" and root it in a historical event: the 1972 massacre by Palestinian terrorists of 11 Israeli athletes at the Olympic Games. Once you've done that -- evoked the killing of innocents who, but for Palestinian murderers, would today be not much older than Spielberg himself -- you have an obligation to get the story right and not to use the victims as props for any political agenda, let alone for the political agenda of those who killed them.
The only true part of the story is the few minutes spent on the massacre. The rest is invention, as Spielberg delicately puts it in the opening credits, "inspired by real events."
By real events? Rubbish. Inspired by Tony Kushner's belief (he co-wrote the screenplay) that the founding of Israel was a "historical, moral, political calamity" for the Jewish people.
It is an axiom of filmmaking that you can only care about a character you know. In "Munich," the Israeli athletes are not only theatrical but historical extras, stick figures. Spielberg dutifully gives us their names -- Spielberg's List -- and nothing more: no history, no context, no relationships, nothing. They are there to die.
The Palestinians who plan the massacre and are hunted down by Israel are given -- with the concision of the gifted cinematic craftsman -- texture, humanity, depth, history. The first Palestinian we meet is the erudite translator of poetry giving a public reading, then acting kindly toward an Italian shopkeeper -- before he is shot in cold blood by Jews.
Then there is the elderly PLO member who dotes on his 7-year-old daughter before being blown to bits. Not one of these plotters is ever shown plotting Munich, or any other atrocity for that matter. They are shown in the full flower of their humanity, savagely extinguished by Jews.
But the most shocking Israeli brutality involves the Dutch prostitute -- apolitical, beautiful, pathetic -- shot to death, naked, of course, by the now half-crazed Israelis settling
private business. The Israeli way, I suppose.
Even more egregious than the manipulation by character is the propaganda by dialogue. The Palestinian case is made forthrightly: The Jews stole our land and we're going to kill any Israeli we can to get it back. Those who are supposedly making the Israeli case say . . . the same thing. The hero's mother, the pitiless committed Zionist, says: We needed the refuge. We seized it. Whatever it takes to secure it. Then she ticks off members of their family lost in the Holocaust.
Spielberg makes the Holocaust the engine of Zionism and its justification. Which, of course, is the Palestinian narrative. Indeed, it is the classic narrative for anti-Zionists, most recently the president of Iran, who says that Israel should be wiped off the map. And why not? If Israel is nothing more than Europe's guilt trip for the Holocaust, then why should Muslims have to suffer a Jewish state in their midst?
It takes a Hollywood ignoramus to give flesh to the argument of a radical anti-Semitic Iranian. Jewish history did not begin with Kristallnacht. The first Zionist Congress occurred in 1897. The Jews fought for and received recognition for the right to establish a "Jewish national home in Palestine" from Britain in 1917 and from the League of Nations in 1922, two decades before the Holocaust.
But the Jewish claim is far more ancient. If the Jews were just seeking a nice refuge, why did they choose the malarial swamps and barren sand dunes of 19th-century Palestine? Because Israel was their ancestral home, site of the first two Jewish commonwealths for a thousand years -- long before Arabs, long before Islam, long before the Holocaust. The Roman destructions of 70 A.D and 135 A.D. extinguished Jewish independence but never the Jewish claim and vow to return home. The Jews' miraculous return 2,000 years later was tragic because others had settled in the land and had a legitimate competing claim. Which is why Jews have for three generations offered to partition the house. The Arab response in every generation has been rejection, war and terrorism.
And Munich. Munich, the massacre, had only modest success in launching the Palestinian cause with the blood of 11 Jews. "Munich," the movie, has now made that success complete 33 years later. No longer is it crude, grainy TV propaganda. "Munich" now enjoys high cinematic production values and the imprimatur of Steven Spielberg, no less, carrying the original terrorists' intended message to every theater in the world.
This is hardly surprising, considering that "Munich's" case for the moral bankruptcy of the Israeli cause -- not just the campaign to assassinate Munich's planners but the entire enterprise of Israel itself -- is so thorough that the movie concludes with the lead Mossad assassin, seared by his experience, abandoning Israel forever. Where does the hero resettle? In the only true home for the Jew of conscience, sensitivity and authenticity: Brooklyn.
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Munich, the massacre, had only modest success in launching the Palestinian cause with the blood of 11 Jews. "Munich," the movie, has now made that success complete 33 years later.
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Alito Likely To Become A Justice
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Samuel A. Alito Jr., an appellate judge who could shift the Supreme Court significantly to the right, appeared headed for the high court yesterday after completing three days of interrogation without a serious misstep.
Democrats on the Senate Judiciary Committee made a final stab at challenging Alito on presidential powers, the death penalty and other matters. But their efforts sometimes seemed halfhearted, and even the most liberal advocacy groups acknowledged privately that they saw slim hopes of preventing his confirmation later this month in the full Senate, where Republicans hold 55 of the 100 seats.
President Bush called Alito from Air Force One "to congratulate him for doing a great job during the hearings," the White House said. Committee member John Cornyn (R-Tex.) predicted the nominee "will be confirmed," adding that "the unfounded attacks on Judge Alito had about as much traction as bald tires on an icy road."
When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure. When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides agreed he had done neither.
The committee could vote as early as Tuesday on whether to recommend Alito, 55, to the full Senate. All 10 Republicans on the panel appear virtually certain to support him, while several senators predicted all eight Democrats will oppose him.
Liberals fear Alito's potential impact on the court because Bush tapped him to succeed retiring Justice Sandra Day O'Connor, who has sided with liberal justices in several high-profile 5 to 4 decisions over the years. Alito, a New Jersey-based federal appellate judge for the past 15 years, praised O'Connor's work ethic yesterday without addressing her often moderate views.
"I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication," he told Sen. Herb Kohl (D-Wis.). "I am my own person, with whatever abilities I have and whatever limitations I have."
Sen. Orrin G. Hatch (R-Utah) predicted that Alito will win the backing of all 55 GOP senators, including those who support abortion rights and those who joined a bipartisan effort last year to avert a showdown over judicial filibusters. He practically dared Democrats to try a filibuster, a tactic in which they could block a vote on Alito's confirmation unless 60 senators agreed to end debate. Democrats used the procedure to block several appellate court nominees in Bush's first term.
"If they want to filibuster, frankly, bring it on," Hatch said. In return, he predicted, Republicans would change Senate rules to ban judicial filibusters.
Democrats generally avoided mentioning the tactic. "We've still got a ways to go to figure what the strategy is going to be," Sen. Edward M. Kennedy (D-Mass.), the committee's best-known liberal, said in an interview.
Minority Leader Harry M. Reid (D-Nev.) issued a statement criticizing Alito but not mentioning a filibuster. "I have not forgotten that Judge Alito was only nominated after the radical right wing of the president's party forced Harriet Miers to withdraw," he said, referring to Bush's earlier choice for the slot.
The White House thinks Alito will win 60 to 70 votes for confirmation, short of the 78 votes Chief Justice John G. Roberts Jr. received last year, said an administration official who spoke on the condition of anonymity to avoid offending senators' sensibilities. One Senate Democrat, Ben Nelson (Neb.), said yesterday that he has seen nothing "that I would consider a disqualifying issue against Judge Alito."
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Samuel A. Alito Jr., an appellate judge who could shift the Supreme Court significantly to the right, appeared headed for the high court yesterday after completing three days of interrogation without a serious misstep.
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Emphasis Shifts From Rights to Powers
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During the initial hours of last September's confirmation hearings on the Supreme Court nomination of John G. Roberts Jr., Sen. Edward M. Kennedy laid out his central concern:
As chief justice, would Roberts "guarantee that all Americans have their rightful place in the nation's future? . . . We need to know his views on civil rights, voting rights and the right to privacy," said Kennedy (Mass.), one of five Judiciary Committee Democrats who emphasized Roberts's civil rights record during opening statements that day.
Four months later, as the same senators concluded about 18 hours of questioning of Supreme Court nominee Samuel A. Alito Jr., issues of civil rights -- while not entirely absent -- played a markedly less prominent role. While Roberts was in the witness chair, transcripts show, the phrase "civil rights" cropped up 65 times. During the same part of the Alito hearings, it was mentioned fewer than 20.
Although two Republican senators defended Alito's stance on affirmative action on the second day of the hearings, no Democrat asked him about it until Sen. Russell Feingold (Wis.) did so during the final round of questions yesterday.
Alito replied that, during his own experience in classrooms, he has discovered "how valuable having people with diverse backgrounds and viewpoints can be."
When Feingold pressed him on whether he believes that "increasing diversity in the classroom is a compelling state interest," the nominee did not answer directly, citing instead a Supreme Court ruling that he said was precedent.
Overall, according to an informal tally by the Judiciary Committee's Republican staff, senators asked Alito 26 questions about race, 10 about women, eight about people with disabilities and half a dozen about the implications of legislative redistricting for voting rights. In contrast, they asked more than 100 questions about abortion and 120 about presidential powers.
The different contours of the inquiry during the Alito and Roberts hearings reflect, in part, the different job experiences of the two men and the amount of written material on their views that was available to senators. They also reflect political calculations made by committee Democrats as to which themes would be most likely to sow doubts about the nominee among fellow senators and the public.
Roberts had been a federal appeals judge for only two years before President Bush nominated him to the high court, and most of the documents to which senators had access dated to the 1980s, when Roberts held influential positions in the Reagan administration Justice Department. "I thought, quite frankly, Roberts was the point man for the Reagan administration on civil rights," Kennedy said in an interview.
In contrast, Kennedy said, with 15 years of appellate court opinions, Alito has cast votes that Democrats regard as problematic in several civil rights lawsuits -- some of which they asked him about -- but Alito also has a record on a broader array of issues.
In particular, Kennedy said, the question "has ripened now" of whether Alito was sympathetic to an excessively broad interpretation of presidential powers.
One Senate Democratic leadership aide, who spoke anonymously because he was discussing internal party strategy, said Democratic senators had decided beforehand that their best avenues for challenging Alito were his character and issues that fell under the broad umbrella of privacy: abortion and the administration's domestic spying policies, as well as civil rights.
Leaders of several left-leaning advocacy groups that focus on various kinds of rights -- and have devoted money and energy to try to build opposition to Alito's confirmation -- said yesterday that they were satisfied with the questioning of Alito on those issues.
Leslie M. Proll, director of the Washington office of the NAACP Legal Defense Fund, said she was pleased Alito had been asked about cases involving job discrimination, voting rights and racial bias in jury selection.
But given Alito's history of rulings and the controversy over the administration's anti-terrorism policies, said Caroline Frederickson, director of the American Civil Liberty Union's Washington legislative office, "I think there's just a whole other layer on top of that."
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
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U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
NOMINATED TO BE AN ASSOCIATE JUSTICE OF
SPECTER: These hearings will resume on the confirmation proceedings for Judge Samuel Alito to the Supreme Court of the United States.
Good morning, Judge. I saw your family in the hallway as we were coming down. Everybody appears to be bright and rested and ready.
SPECTER: The committee staff, accompanied by representatives of Senator Kennedy, went through the Rusher files yesterday, finishing up their work, I'm advised, at about 2 a.m. this morning, and provided me with a memorandum that the committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP.
Judge Alito's name never appeared in any document. His name was not mentioned in any of the letters to or from the founder, William Rusher. His name was not mentioned in any of the letters to or from CAP's long-term executive director, T. Harding Jones. His name does not appear anywhere in the dozens of letters to CAP or from CAP.
The files contain canceled checks for subscriptions to CAP's magazine, Prospect, but none from Judge Alito.
The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Samuel Alito's name is nowhere to be found in any of them.
The Rusher files contain lists of the board of directors, the advisory board and the contributors to both CAP and Prospect magazine. But none of the lists contains Samuel Alito's name.
The files contain minutes and attendance records from CAP meetings in 1983 and 1984, just before Samuel Alito listed the organization on his job application, but Samuel Alito did not attend any of those meetings, at least according to those records. He's not even mentioned in the minutes.
The files contain dozens of issues of CAP's magazines, but nones of the articles was written by, quoted or mentioned Samuel Alito.
SPECTER: CAP founder William Rusher said, quote, "I have no recollection of Samuel Alito at all. He certainly was not very heavily involved in CAP, if at all."
Before turning to Senator Leahy for his allotted time, I yield to him if he has any opening comments he chooses to make.
LEAHY: I just think, Mr. Chairman, as we know this will be the last opportunity for the American people to learn what Judge Samuel Alito thinks about the fundamental constitutional rights, whether he's going to serve to protect their liberty, their privacy from government intrusion.
I think it's even more critical today because of the efforts to expand...
SPECTER: Excuse me, Senator. Do you want to start on your 25 minutes?
LEAHY: Oh, no. I thought you were asking me...
SPECTER: No, I do. Yes, opening comments, sure. We're not going to start your time clock until you tell us.
LEAHY: This is just a short opening comment.
LEAHY: I just think it's critical. And I know the judge probably feel like he's here doing nothing but being on a hot seat, but he is talking about a lifetime appointment.
And it is the most powerful court in the land. It is at a time when we see this effort to expand presidential powers, such as illegal wiretaps of Americans, the president using a signing statement to create exemptions to laws prohibiting torture.
These are all important things. The Supreme Court's our ultimate guardian -- has to be our ultimate guardian.
LEAHY: And we need to know whether Samuel Alito is willing to be that kind of guardian.
I'm still troubled by some of the questions.
And, Mr. Chairman, I know you're going to be asking questions and I'll wait to ask mine after that, of course.
SPECTER: I'm going to reserve my time at this juncture and turn to Senator Leahy for time, up to 25 minutes.
In his confirmation hearing last September we, as you know, went through hours and hours, days and days with Judge Roberts, now chief justice.
I asked him if the Constitution permits the execution of an innocent person. He said, "If they've been falsely convicted and they're innocent, they shouldn't be in prison, let alone executed." I think we all agree with that.
But I pushed further, because my question was whether the Constitution permits the execution of an innocent person -- you know that they're innocent. He said, "I would think not."
Judge, do you agree with Chief Justice Roberts?
ALITO: I agree that it is one of the most fundamental rights protected by our Constitution that no one may be convicted of an offense unless they're proven to be guilty beyond a reasonable doubt.
And further than that, the Supreme Court's decisions since 1976 dealing with the Eighth Amendment have attempted to create a whole set of procedural safeguards to make sure that the death penalty is not imposed arbitrarily or capriciously.
ALITO: And this whole framework is designed to prevent exactly that: to prevent the conviction of an innocent person and to prevent the imposition of capital punishment on someone who is innocent or on someone who is guilty of the offense but is not deserving to be -- to have that penalty imposed on the person.
LEAHY: But, Judge, we have, as we know -- we saw the cases in Illinois, people a few days away from execution. They'd been sentenced to death. They'd been convicted. They had their trial, gone to trial. Jury came back. Apparently procedures followed on sentencing. They are now sentenced to death.
A few days before death, somebody comes forward at the very last minute because of DNA evidence, and says "Whoops, we got the wrong person," and then they are let loose.
We're finding in Virginia now, in other cases, it appears that there's a possibility a number of innocent people were executed.
What if you had a case -- they've gone through the whole thing. They've been convicted. The judge has followed all of the appropriate sentencing, the jury came back for sentencing, did everything following the law. And now they're up for execution. Evidence comes up, say, DNA evidence, or DNA evidence, a confession of somebody else. Would it be unconstitutional then to execute that person?
ALITO: Well, Senator, it is unconstitutional to execute someone who has not been proven guilty beyond a reasonable doubt. Now, depending...
LEAHY: They may have been found guilty beyond a reasonable doubt, is what I'm saying. And then as a lot of these people were on death row and had to be commuted at the last moment when they -- a few days before the execution they found, whoops, they have the wrong guy.
ALITO: That's the ultimate tragedy that could possibly occur in our criminal justice system. We should do everything we can to prevent that from ever occurring.
I have not had a case -- during my time on the court of appeals, I've had only a handful of capital punishment cases where there was a suggestion that that was a possibility.
If the evidence develops at the last minute, then I think -- and if this is -- it would depend to some degree on -- the procedures would be different, depending on whether the person had been convicted in state court or in federal court.
The first procedural step in either instance would be to file a petition with the trial court.
ALITO: If it were in state court, it would be a state collateral relief petition. And those are handled differently depending on the state. And then file a -- I'm sorry. You could go to the state court or you could attempt to file a second habeas petition in federal court and follow the procedures that are set out in the habeas corpus statute.
LEAHY: But you agree with -- I understand all the steps. Like you, I was a prosecutor. Even though we don't have death sentence in Vermont, we have real life imprisonment. And I remember those.
But you agree, though, with Chief Justice Roberts that the Constitution does not countenance the execution of an innocent person?
ALITO: The Constitution is designed to prevent that.
LEAHY: And the reason I ask this, this is something that originally raised, as I recall, in the Judiciary Committee by Chairman Specter, the Rule of Four. Are you familiar with that, where the Supreme Court?
In other words it takes five justices to stay an execution or to hear one of these cases. Usually, if there's been four that have agreed it should be, somebody will make the fifth just as a matter of courtesy.
It hasn't been followed that much recently. Chairman Specter has called it is bizarre, an unacceptable outcome, to not provide the fifth vote. He wanted to introduce legislation to codify the Rule of Four.
If you were one of the justices and you're there -- and these things always seem to happen. Everybody is scattered all over the place. Four of your fellow justices have said that they would hold, what would you do? They voted to stay an execution. They're asking you to be the fifth vote. Four have...
ALITO: I had not heard of this rule until the hearings for Chief Justice Roberts. But it seems to me to be a very sensible procedure because I think we all want to avoid the tragedy of having an innocent person executed or having anyone executed whose constitutional rights have been violated.
LEAHY: Well, I raise it, as I did with then Judge Roberts, here because some things you remember from this hearing; some things you will probably try to forget -- both you and your family.
But I hope at least this idea stays in your mind.
About a decade ago in Washington v. Glucksberg, the Supreme Court declined to find a terminally ill patients had a generalized constitutional right to a physician's aid in dying, preferring the matter be left to the states.
The court noted: "Throughout the nation, Americans are engaged an earnest and profound debate about the morality, legality and practicality of physician-assisted suicide."
Chief Justice Rehnquist wrote: "The court's holding permits the debate to continue, as it should in a democratic society."
I remember reading that. I thought it very practical, aside from the legal, a very practical response.
Last spring, we witnessed a fierce legal battle over the medical treatment of Terri Schiavo. She was in a persistent vegetative state for more than a decade.
LEAHY: And ultimately, after she died, the autopsy showed that.
But we found politicians rushing to the cameras, engaging in extraordinary measures to override what the state courts determined to be her own wishes, state courts that heard countless cases on this.
Suddenly, this became the thing -- politicians all over the place, rushing forward.
The power of the federal government was wielded by some to determine, in my view, what were deeply personal choices. The president even came back to Washington in the middle of one of his vacations to sign special legislation on this.
Do you agree with the idea advanced in the Cruzan case that the wishes of an unconscious patient, to the degree they can be known, should govern decisions regarding life-sustaining therapies?
Let's assume that the wishes are clearly known. Should they be followed?
ALITO: Well, the Cruzan case proceeded -- assume, for the sake of argument, which is something that judges often do, that there is a constitutional right to say -- that each of us has a constitutional right to say: I don't want medical treatment.
And the Cruzan decision recognized that this was a right that everybody had at common law. At common law, if someone is subjected to a medical procedure that the person doesn't want, that's a battery and it's a tort. And the person can sue for it. It is illegal. The court did not...
LEAHY: One of those cases where we got something from that foreign law -- in this case, English common law. Is that correct?
ALITO: Well, that's correct. And I think that our whole legal system is an outgrowth of English common law, and I don't...
LEAHY: Just thinking of somebody -- why that popped in my mind. I was thinking of some of the people talk about paying attention to foreign law and most of our law is based on foreign law.
ALITO: Most of our law...
LEAHY: Common law, common law.
ALITO: ... is an outgrowth of English common law. And I think it helps to understand that background often in analyzing issues that come up.
LEAHY: But you agree with Cruzan? I mean, I'm thinking if somebody has a "do not resuscitate" order, do you agree with that?
ALITO: That's a fundamental principle of common law. And Cruzan assumed for the sake of argument that that would be a fundamental constitutional right.
But that is a right that people have had under our legal system for a long time, to make that decision for themselves.
LEAHY: My wife was -- or is a nurse. And she was working on a medical surgical floor and she had mentioned about people with these DNR, do not resuscitate.
Would you agree that a patient would have a right -- for example, if you have a living will, you have a right to designate somebody who can speak for you in a case of terrible injury or unconscious, speak for you on a "do not resuscitate" or "do not use heroic measures," all the rest? Do you agree with that?
That's, I think, an extension of the traditional right that I was talking about that existed under common law. And it's been developed by state legislatures, and in some instances by state courts, to deal with the living will situation and with advances in -- which I think is, in large measure, a response to advances in medical technology, which create new issues in this area.
LEAHY: We have three separate and coequal branches of government, as the Constitution says; have these checks and balances. Most of us feel that if the Congress is going to carry that out, they have to carry out real oversight and make sure the government's accountable to the American people. If you don't do that, corruption, incompetence sets in.
We've given a lot of powers to our government in the fight against terrorism and others. And the check and balance is to make sure there's oversight.
Do you believe in the general principle of the Congress having major oversight powers?
ALITO: I don't think there's any question about that.
LEAHY: Well, let me go -- and I was thinking of this as we were talking about the Schiavo case. And I don't want you to have to get involved in what many thought was, kind of, a sorry exercise when people are already suffering enough -- sorry exercise by the Congress. So I won't talk about the House committee's unbelievable subpoena to Terri Schiavo.
But let me ask you this: Could this committee, the Judiciary Committee, issue a subpoena for a defendant on death row in a state prison if we believed he was about to be executed and thought he was innocent?
ALITO: Could this committee issue a subpoena...
ALITO: ... to have the defendant come and testify before the committee?
LEAHY: It's an hour before execution, for example, and make it even a tougher case.
ALITO: It's not a question that I ever thought of. Sitting here I can't think of an objection to it, but I would have to hear whatever arguments there were to be made.
LEAHY: You know, this may seem to be bouncing around here a little bit. I'm trying to pull together my own mind after looking at the transcript last night of some of the things you were saying. And you were in a discussion with a number of senators about views of the court, or how the courts -- how the American people view courts and how, basically, in a democracy, courts have to have the respect of people if they're going to be able to carry out their orders.
Brown is probably one of the key examples of that where the chief justice spent two and a half years until he got a unanimous court decision.
Justice O'Connor gave a speech decrying the present climate of antipathy between the judiciary and some members of Congress, and I've spoken with her and others and the late chief justice about this.
She expressed concern about efforts to limit federal court jurisdiction in areas that some members of Congress think the federal court should not be involved. We've seen a number of efforts to strip the federal courts of jurisdiction when some members of Congress felt they disagreed with it.
LEAHY: Now, I thought some of these issues were settled by Marbury and when Chief Justice Marshall said it is emphatically the province and duty of the judicial department to say what the law is.
Now the court-stripping bills are not without precedent. Recent efforts have failed. I recall one where three senators finally talked it down, until it ran out of time. I was one of the three. Senator Lowell Weicker of Connecticut was one of the other three.
On the way out, the third one put his arm around us and said, "I think we're the only true conservatives in this Senate." We both said, "Thank you, Barry Goldwater. We appreciate you joining us in this."
I took it as a great compliment.
Now, imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving segregation of public schools. Would such a law have been constitutional?
ALITO: There's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court. There are those who say that Congress has the authority to eliminate appellate jurisdiction by topic and they rely on the language of Article III.
ALITO: And there are those who say that to take away jurisdiction over a category of cases such as that would be a violation of another constitutional provision; in that instance, a violation, perhaps, of the equal protection clause.
And there's this debate. It's not something...
LEAHY: Have you taken part in that debate?
LEAHY: Have you taken a position in that debate?
ALITO: I have not taken part in that. And I've read...
LEAHY: Would you like to?
ALITO: Not at this time.
LEAHY: I don't know why that surprises me.
ALITO: And the case law is not definitive on this question, according to the scholars. Ex Parte McCardle is a case that can be interpreted in a number of different ways.
LEAHY: You know, we had many in the Congress at that time, had they thought that Brown v. Board of Education was about to come down the way it did, probably would have made efforts to strip the authority of the Supreme Court to hear it.
And I'm afraid that, as we find some of these efforts where the courts become a very convenient whipping boy to people looking for votes or whatever, that that might happen again. And I'd suggest that you think long and hard on it.
Let me ask you this. On more than one occasion, the House of Representatives has included a provision in an appropriations bill -- and we all agree that the Congress has the power of the purse -- but in an appropriations bill saying that none of the funds can be spent enforcing a particular court decision. Pick something that they feel is unpopular at the moment, so they say, "No money can be spent to enforce it."
LEAHY: And let us say the court has ruled, basically, on a constitutional issue, saying: "This shall be in force." The Congress says: "No, we won't allow money to be spent."
Does that violate the Constitution?
ALITO: Well, that's also a provocative constitutional question.
I can't recall an instance where that has been done with respect to a constitutional decision. Perhaps it has been.
I do recall, back during the 1980s, that it was done with respect to an issue of antitrust. And I would assume that if there wasn't -- well, obviously, if there isn't a constitutional question raised by that limitation on the expenditure of funds, and if you're talking about a nonconstitutional question, maybe there is no constitutional issue raised, there wouldn't be an obstacle to Congress's doing that.
With respect to a constitutional question, that's a provocative constitutional issue that -- I don't know the answer to it. And I cannot think of precedent on that point. I don't believe there is any.
LEAHY: Well, let's take a nonconstitutional. I want to make sure I understand your answer.
The Congress decision has come down of whatever nature. You mention antitrust -- whatever it is, it comes down from the court. And it is going to require some enforcement. And the Congress says: "No, we're not going to put the money in there."
LEAHY: Can the Congress do that?
ALITO: Well, I'd have to know the facts of the case and hear the arguments on both sides of it.
Unless there was a constitutional objection, then that falls within one of the most important powers of the Congress, the expenditure of funds that Congress exercises.
The framers wanted Congress to have the control of the purse because Congress is the branch that's closest to the people. And I would think that -- and Congress obviously has great latitude in this area.
I don't know what constitutional objections would be raised to doing that with respect to a nonconstitutional question. But I'd have to understand what exactly was going on.
LEAHY: Well, it's something to keep in mind because it may happen.
You know, we can grandstand -- Congress can grandstand the way it did on the Schiavo case, you have to wonder what else may come down.
One of the advantages or disadvantages of being here for a long time -- I've actually been here for the hearings on every member of the Supreme Court, including that of former Chief Justice Rehnquist. And Senator Specter and I have served here together a long time. And I went back to one of his questions. He asked then Justice Rehnquist whether Congress can strip the Supreme Court of jurisdiction over First Amendment cases involving freedom of speech, press or religion.
And I think the chairman remembers this. He can be a rather tenacious questioner, as I know from some of my weekend phone calls from him.
LEAHY: But he kept pushing then Justice Rehnquist until he finally got an answer. In the end, then Justice Rehnquist gave his view. He said that Congress could not remove the court's jurisdiction over First Amendment cases.
So let me ask the same question that Senator Specter asked in 1986: Does Congress have the authority to say the Supreme Court does not have jurisdiction over First Amendment issues of freedom of speech, press and religion?
ALITO: Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago about taking away the Supreme Court's appellate jurisdiction over a topic of cases. It's not a question that I have -- obviously have had to deal with in my capacity as a judge or something that I've written about or studied in any sort of a focused way.
My understanding of the writing on the question is that there's a division of thought among leading constitutional scholars on the issue. And there are some who argue that Congress has plenary authority to define the appellate jurisdiction over the Supreme Court and there others who argue that if Congress takes away the authority of the Supreme Court to hear a particular type of case, that there could be a violation of another constitutional provision. And, in that instance, it would be the First Amendment.
ALITO: And as a matter of constitutional law, I don't feel I can go further than that.
LEAHY: But, Judge, this is somewhat similar to the initial answers given by then-Justice Rehnquist. But he ultimately came down and said in that hearing that Congress could not remove the court's jurisdiction over First Amendment cases.
Are you telling me that -- and I just want to make sure I fully understand your answer -- you're not willing to go to the extent then- Justice Rehnquist did at his hearing?
ALITO: I gave a speech a while ago addressing this question from a practical standpoint or touching on it from a practical standpoint. And I said I thought that doing something like this would be an awkward and undesirable way of proceeding because it would lead to a lack of uniformity in decisions.
If jurisdiction is taken away from the Supreme Court, but jurisdiction remains in the courts of appeals on it, then conflicts in the circuits would develop and you'd have conflicting decisions potentially governing in different parts of the country and no way to resolve the issue.
And if the jurisdiction was taken away from the federal courts in general, then you would potentially have conflicting state court decisions. So the First Amendment, or whatever constitutional provision was at issue, would mean something different potentially in Vermont than it did in New Hampshire or in some other state.
So there are undesirable practical consequences of proceeding in that way.
LEAHY: Your answer would be the same if I was asking, I assume, asking the question of the Fourth or the Fifth or Sixth Amendment?
ALITO: It would be, Senator. I have just not studied this issue in enough depth to be able to give an answer. I would have to study it in depth and probably hear it in the context of the case.
What I do know is that there's a division of authority among leading constitutional scholars. And I would not want to hazard an answer to the question here without going into the question, studying the question in considerably greater depth than I have.
LEAHY: This will be my last. And I appreciate the courtesy of the chairman who, I might say, has run this hearing with total fairness, as he always does. I may have some follow-up questions. This will be my last chance to ask you anything.
Under your theory of unitary executive are citizen suit provisions, such as those in our environmental laws, allowing citizens to act basically as a private attorneys general and sue polluters, are they constitutional?
ALITO: I don't see a connection between the unitary executive theory and that issue.
And I think Congress has the authority to create a private cause of action for anyone that Congress chooses to create such a cause of action for, subject only to whatever limitations are imposed by the Constitution.
ALITO: But we often grapple with the issue of whether Congress intended to create a private cause of action for a particular class of plaintiffs. That's a difficult issue that comes up with some frequency in federal litigation.
But where Congress speaks directly to the question and defines the category of plaintiffs who can bring a suit, a citizen suit or whatever it is, then that's definitive; of course, subject only to whatever limitations the Constitution imposes.
LEAHY: Judge, that's an answer -- substance of what you said is something, obviously, I would like. But I'm still troubled by it, because in November of 2000, right after the presidential election, you came and spoke to a meeting of the Annual Federalist Society Lawyers Convention about the powers of the president.
And when you discussed your theory of a unitary executive, you criticized the Supreme Court's upholding the independent counsel statute, among other things.
Is your answer today different than what you were saying then?
ALITO: What I said in that speech was that the Constitution confers the executive power on the president. And when we are dealing with something that is within the president's executive power -- without getting into the scope of executive power; and there, I was focusing on the president's duty to take care that the laws are faithfully executed; that's explicitly set out in the Constitution, so there can't be any debate about whether or not the president has that power -- when we're dealing with something that is within the scope of the president's executive power, the president should have the authority to control the executive branch.
ALITO: And the latest expression of the Supreme Court on that issue at the time was the Morrison decision. And the Morrison decision formulated the governing standard in what I would call functional terms.
And it said that Congress has the authority to place restrictions on the president's ability to remove inferior executive officers provided that, in doing so, Congress does not take away the president's authority to control the executive branch.
And I was talking about the importance of maintaining the principle that the president is the head of the executive branch and should control the executive branch.
LEAHY: But you did, at that time, criticize the Supreme Court upholding independent counsel statute, did you not?
ALITO: I said that it was inconsistent with what you could call the pure theory of the unitary executive.
But at the time, of course, Morrison had been decided. It was a resounding 8-1 decision and it is a very important precedent of the court.
LEAHY: If you were there it might be 7-2; is that what you're suggesting?
ALITO: Well, if it comes up before me, if I'm confirmed, then Morrison is a strong expression of the view of the Supreme Court on the question and an 8-1 precedent on an issue that was important and controversial at the time when it came up before the court.
ALITO: And it was very clear and, as I said, a resounding decision by the Supreme Court on the question.
LEAHY: Well, I'm now intruding on other senators' time. And I may do a follow-up question with you.
Thank you for your answers. We've obviously agreed on some things, disagreed on others. And I appreciate you taking the time to answer.
Mr. Chairman, I appreciate your time.
SPECTER: I'm going to use just a little of my reserved time to comment on what Senator Leahy raised about the issue with Chief Justice Rehnquist on his statement that you could not take away the jurisdiction of the Supreme Court of the United States on First Amendment issues.
That was as interesting a dialogue as I've had in my tenure here, and I've had a few. And it arose in a curious context. I'd asked the chief justice about the question, and he refused to answer.
And over night, the staff had found an article written by a young Arizona lawyer named William H. Rehnquist in 1958 which was published in the Harvard Law Record, not the Harvard Law Review but the Harvard Law Record. And, in that article, lawyer Rehnquist said that the Senate Judiciary Committee was derelict in its duty in questioning Justice Whittaker at his confirmation hearings in not asking pointed questions about due process or equal protection.
And when my turn came, I came back to then Justice Rehnquist and said, "How about it? Are you that William H. Rehnquist?"
SPECTER: And he admitted he was; didn't have much choice.
And I said, "Well, how about his article?" And he emphatically said, "I was wrong."
(UNKNOWN): He was under oath.
SPECTER: That provided an opening, and I proceeded to continue the line of questioning. And finally he allowed as to how Congress couldn't take away the court's power over the First Amendment.
Seems to me patently clear that the Congress cannot take away the jurisdiction of the Supreme Court on constitutional issues -- cannot do it. That's the principal function of the Supreme Court of the United States, is to interpret the Constitution. And if the Congress can take away that authority, the court's authority would be vacuous.
But then, as you might expect, I asked him about Fourth Amendment search and seizure and Fifth Amendment privilege against self- incrimination -- went right down the line. He refused to answer every question.
And I said, "Well, why will you answer questions on the First Amendment and not on the rest of them?" He wouldn't answer that either.
Chief Justice Rehnquist was confirmed 65-33, which confirmed an observation which I have made from time to time, Judge Alito: that nominees just about as many questions as they think they have to to be confirmed.
Now, you may turn out to be a notable exception, but I think that's a valid generalization. And it also confirmed my experience that nominees remember these proceedings and nominees are influenced by these proceedings in very subtle ways.
SPECTER: We don't extract promises, but when Senator Leahy very adroitly asks you about the rule of four on granting cert -- four justices say, "A cert's granted" -- but it takes give to stay an execution in a capital case, how ridiculous can you be?
And Senator Leahy wondered if you'd remember that. Well, I predict you'll, if confirmed, remember that. In fact, I predict you'll remember it even if you're not confirmed.
But to this day, justices comment to me about questions they had here. Every time I see Justice Souter, he says he still hasn't made up his mind on whether Korea was a war or not. And the other justices -- I won't go into any more detail.
I'm going to reserve the balance of my 20:54.
HATCH: Well, I'll reserve my 25 minutes.
SPECTER: Senator Kennedy, you're recognized for up to 25 minutes.
KENNEDY: Thank you. Thank you.
KENNEDY: Just to initially follow up on the last area of questioning by Senator Leahy about the unitary presidency, I've asked you questions about this earlier in the week and my colleagues have. I'm not going to get back into the speech you gave at the Federalist Society.
Well, I'll mention just the one part of it that is of concern: "If the administrative agencies are in the federal government, which they certainly are, they have to be in one of those branches -- legislative, executive judicial -- and the logical candidate is the executive branch.
And the president, it continues, the president has the power and the duty to supervise the way to which the board and the executive branch officials exercise the president's power, carrying federal law into execution."
KENNEDY: So we asked you about that power and that authority. And you responded, as I think you just repeated here, that the Humphrey case was the dominating case on this issue. Am I roughly correct? I'm trying to get through some material.
ALITO: Yes. It was the leading case. It was followed up by Morrison cases.
KENNEDY: Followed up by the Morrison case as the controlling case on the administrative agencies.
What you haven't mentioned to date is that the theory -- what you haven't mentioned to date is your dissent from the Morrison case. We've been trying to gain your view about the unitary presidency. Most people believe we have an executive, legislative and judicial, and now we have this unitary presidency which many people don't really kind of understand and it sounds a little bizarre.
We want to know about -- you've indicated support for it. You've commented back and forth about it. You've indicated the controlling cases that establish the administrative agencies. You refer to the Morrison case as being guiding, the authority.
But then in your comments about the Morrison, you then proceed to outline a legal strategy for getting around Morrison.
This is what you said: "Perhaps the Morrison decision can be read in a way that heeds, if not the constitutional text that I mentioned at least the objectives for setting up a unitary executive." That could lead to a fairly strong degree of presidential control over the work of the administrative agencies in the area of policy-making.
Our questions in this hearing is: What is your view of the unitary presidency?
KENNEDY: You've responded in a number of our people, but we were interested in your view and your comments on the Morrison case, which you say is the controlling, but we want to know your view.
And it includes these words: that could lead to a fairly strong degree of presidential control over the workings of the administrative agencies in the areas of policy-making.
Now, that would alter and change the balance between the Congress and the president in a very dramatic and significant way, would it not?
ALITO: I don't think that it would, Senator. The administrative agencies -- the term administrative agencies is a broad term, and it includes...
ALITO: It includes agencies that are not regarded as so-called independent agencies. It includes agencies that is are within -- that are squarely within the executive branch under anybody's understanding of the term, agencies that are headed by a presidential appointee whose term of office is at the pleasure of the president.
And that's principally what I'm talking about there, the ability of the president to control the structure of the executive branch, not agencies -- the term administrative agencies is not synonymous with agencies like the FTC which was involved in the Humphrey's Executor case where the agency is headed by a commission and commissioners are appointed by the president for a term of office and there are conditions placed on the removal of the agency -- of the commissioners.
KENNEDY: Well, the point, Judge -- the answers you gave both to my colleagues, Senator Leahy, Durbin and to me, in the quote, "The concept of a unitary executive does not have to do with the scope of executive power," really was not accurate.
KENNEDY: You're admitting now that it has to do with the administrative agencies. And this would have a dramatic and important reconsideration of the balance between the executive and the Congress.
I haven't got the time to go through.
But we're talking about the Federal Reserve, Consumer Product Safety, the Federal Trade Commission, a number of the agencies that would be directly considered and that have very, very important independent strategy.
ALITO: Senator, as to the agencies that are headed by commissions, the members of which are appointed for terms, and there are limitations placed on removal, the leading precedent is Humphrey's Executor. And that is reinforced, and I would say very dramatically reinforced, by the decision in Morrison which did not involve such an agency. It involved an officer who was carrying out what I think everyone would agree is a core function of the executive branch, which is the enforcement of the law, taking care that the laws are faithfully executed.
KENNEDY: But the point here is you take exception to Morrison. You're very clear about -- we're interested in your views. We understand Humphrey's and Morrison are the guiding laws. But we've talked about stare decisis and other precedents.
But you have a different view with regards to the role of the executive now, an enhanced role, what they called the unitary presidency. And that has to do as well with the balance between the executive and the Congress in a very important way in terms of the use of administrative agencies.
I haven't got the time to go over through. But we did have some discussion about those agencies and how it would alter the balance of authority and power between the Congress and the executive.
KENNEDY: That's very important. It's enormously interesting. We've has Professor Calabrese from Harvard University spell this out in great detail now, and I know you've separated yourself a bit from his thinking to the extent that he would go in terms of administrative agencies.
The point is, it would be a different relationship if your view was the dominant view in the Supreme Court between the executive and the Congress. And that's really the point.
ALITO: Senator Kennedy, what I've tried to say is that I regard this as a line of precedent that is very well developed, and I have no quarrel with it. And it culminates in Morrison in which the Supreme Court said that even as to an inferior officer who's carrying out the core executive function of taking care that the laws are faithfully executed, it is permissible for Congress to place restrictions on the ability of a president to remove such an officer, provided that in doing so there is no interference with the president's authority. And they found no interference with that authority there.
And that is an expression of the Supreme Court's view on an issue where the claim that there should be no removal restrictions imposed is far stronger than it is with respect to an independent agency like the one involved in Humphrey's Executor.
KENNEDY: Well, the point is that you've differed with the Morrison and outlined a different kind of a strategy.
I want to move on. I want to come back just briefly again to the Vanguard issue, which continues to trouble and puzzle me by your answers to me and others.
Now, just to get back to the starting point, in your sworn statement to the committee when you were nominated to the circuit court in 1990, on page 15 of that statement you wrote this about your recusal practices: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard Companies."
KENNEDY: So according to your sworn promise, you were going to recuse yourself from cases involving the Vanguard Companies, is that correct?
ALITO: I said I would disqualify myself from any cases involving the Vanguard Companies.
You also said you'd recuse yourself from any case involving your sister's firm...
KENNEDY: ... in cases in which you were involved in the U.S. Attorney's Office. Is that correct?
KENNEDY: And there's been some discussion as to whether that commitment covered only the initial period of your judgeship. And I'm not going to go on into that. I'm not going into that.
I just want to know about the steps you took to meet your commitment to the committee even in the initial years. On Tuesday, you told Senator Feingold that you had no recollection of whether you put Vanguard on your recusal list when you were first appointed to the bench in 1990.
ALITO: That's correct. I don't have the initial list that was submitted to the clerk's office. And I think I clarified, in response to Senator Feingold's question, that that is a list that is used by the clerk's office to make the first cut on recusal issues. But it is not by any means the last word.
And in 1990, you owned $80,000 of Vanguard funds. Is that right? And over the year it grew to hundreds of thousands. Is that correct?
KENNEDY: So you were getting reports from Vanguard now either monthly or quarterly or annually, were you not -- reporting?
KENNEDY: All during this period of time?
KENNEDY: Do you know whether Vanguard was on your recusal list in 1991?
ALITO: I don't know what was on the list that was with the clerk's office prior to the time when the system was computerized.
ALITO: And I have seen recently -- and I believe you have -- copies of the list that were on the computer. And those lists do not include Vanguard. There's no question about that.
KENNEDY: We received your standing recusal list from the 3rd Circuit earlier this week. It's dated January 28th, 1993. Vanguard is not on it. You have your sister's law firm on it, you have your cases from the U.S. Attorney's Office on it, but not Vanguard, your largest investment.
Here are the recusal lists for 1994, 1995, 1996 and Vanguard is not on it any of them either.
Do you have any reason to disagree with the report from the clerk of the court?
ALITO: I don't, Senator. I don't know whether -- I have no comment on the list. That's the list that they had. I don't know exactly how that list came about, but that's the list they have.
KENNEDY: What does it say at the top of 1/28/93 list under the date? As I understand it, it says no changes.
ALITO: As of 1/28/93, no changes. That's correct.
KENNEDY: This was '93. So there were no changes in that from '92. And you've listed probably eight or nine different items on there, have you not?
ALITO: There are eight items listed.
KENNEDY: OK. So you have eight items on there. Vanguard isn't on. And it says no changes from the previous year. So I assume that means '92 list was the same. So you did not have Vanguard on the '92 list either.
Do you remember whether you ever placed Vanguard on your recusal list at anytime between the time you were sworn in and January 1993?
ALITO: As I said, I don't have a copy of lists that predate this. In fact, I didn't have a copy of these lists. And I don't know -- obviously, I can't recall what was on their earlier list.
KENNEDY: Well, in 1994, you removed the U.S. Attorney's Office from your recusal list. Is that right?
KENNEDY: So you did revisit the recusal list at that time?
ALITO: I notified the clerk's office to take the U.S. Attorney's Office off the list. I actually think I have a copy of the letter that I sent there. I don't believe that I looked at the list and crossed it off the list.
I sent them a letter and I outlined -- I say, it's now been four years. This was another instance of my going beyond what I had to do. I recused myself in everything from the office, not just things that were there while I was in office.
And after the passage of four years, I thought that the cases that I had had any possible connection has washed out.
And so, I sent a letter, and have a copy of the letter, saying, take it off this list but notify the U.S. Attorney's Office and the public defender's offices that they should notify the clerk's office if any case comes up in which they have any reason to believe that any aspect of the case was in the U.S. Attorney's Office while I was there.
KENNEDY: Well, I just mentioned that one of the things you had to do was put Vanguard on the list, was it not, because you gave assurances to the committee, sworn testimony, that you were going to recuse yourself? That was one of the things.
ALITO: Senator, if it was not on the initial list, then that would be an oversight on my part. I said, in answering the question to the Senate, I don't believe conflicts of interest are likely to arise. They rarely do arise with respect to mutual funds.
That's one of the main reasons judges and other people who have to worry about conflicts, invest in mutual funds. And no Vanguard case -- no case involving Vanguard -- came before me for 12 years.
KENNEDY: Well, the point is judges, as I understand and as their responsibility, take the whole issue on recusal extremely seriously and review those lists very, very carefully. And given the assurances and the pledge and the promise under oath to the committee and not to find out that it's on your list.
And over the periods of these last weeks, we've heard so many explanations, Judge. This is what confuses us.
We heard, first of all, that it's a computer glitch. And then we hear, "Well, it doesn't really apply because it's an initial service list. So Vanguard didn't -- I wasn't in it because I didn't make the decisions on it until after I'd been in 12 years. I made the pledge to the committee. I don't know how good that pledge was, or how many years it was good, but that initial pledge -- initial service meant I didn't have to do it."
And then we heard the excuse, "Well, it was a pro se case, and we had different computers." That was what was mentioned in my office, "It's a pro se case, and we have different computers. They're different computers in the clerk's office than exist in the law firms here in Washington from all over the country."
I could never quite understand it, because pro se, obviously talking about individuals, you'd think that might even have a higher kind of a requirement.
But the facts are that you never put that Vanguard on your recusal list and all of these papers were in your control. And that, I think, is a matter of concern -- should be to all of us for the reasons.
ALITO: Senator, can I just say a brief comment on that?
I've tried to be as forthcoming in explaining what happened here as I possibly could be. And I am one of those judges that you described who take recusals very, very seriously. And I served for 15 and a half years. I sat on the merits on well over 4,000 cases.
ALITO: In addition to that, let me just mention the statistics for a recent year. And I think these are typical of my entire period of service.
During the last calendar year, I received over 500 petitions for rehearing -- most of those are in cases I didn't sit on initially; over 400 motions -- most of those are in cases that I didn't hear on the merits.
And many of those are just as important as appeals on the merits because they involve things like whether someone is going to be removed to a country where the person claims that they will be subjected to persecution or there are applications by habeas petitioners for permission to take an appeal in a habeas case. And if we don't issue the certificate of appealability, that's the end of the matter for that petitioner, who may be serving a very length sentence or a life sentence.
So we're talking about well over a thousand cases a year. And this is over a course of 15 years. This Monga case is one case -- and I've said there was an oversight on my part in not focusing on my personal practice when the issue came before me. And when the recusal issue was brought to my attention, I did everything that I could to make sure that nobody could come away from this with the impression that this Ms. Maharaj got anything other than an absolutely fair appeal.
But I've tried to explain the whole thing. I have not given conflicting answers. But I've been asked a number of different questions and there are a number of steps that were involved in what took place.
The fact that it was a pro se case -- I mention that not because the pro se cases are any less important than any other category of cases; they're very important. But it is the fact that our court uses a different system.
ALITO: For pro se cases, we don't have these clearance sheets. And that's when I have typically focused on the issue of recusal.
KENNEDY: Well, I thank you, Judge.
I think if we had in the beginning -- we all make mistakes and all of us, and I've certainly made more than my share. But when we have a statement on this, I think we could have cleared this all up in the very beginning if you just said, "It was a mistake, it wasn't on the list, it should have been on the list," as we're saying now, we would never have had to get all this -- go through this.
But we've had a series of explanations: "The light not going off when I looked over the Vanguard case," the computer glitches, the changes of the computers, "I wasn't told by my clerks." We had all of those statements. And so this was what troubles many of us on the committee about getting the straight answers on an issue which is of great importance.
Mr. Chairman, I want to just, and will use the remainder of my time with a brief comment.
I want to thank our chairman for the fair and dignified way that he's conducted the hearing.
I thank our ranking, Senator Leahy, for his usual courtesies as well.
And I thank Judge Alito for your willingness to serve. And thanks to your family for being here and for the support they've given throughout these hearings.
These stakes are very high and that was reflected in the variety of questions posed over the past three days.
We started these hearings seeking answers. We've come with even more questions about Judge Alito's commitment to the fairness and equality for all.
Unitary executive: We discussed Judge Alito's expansive views on presidential authority. He distanced himself from the theory of the so-called unitary executive, one that promotes extremely expanded executive power.
He gave the committee the platitudes about Supreme Court precedent on the Constitution, but his comments before this committee run away from his statements of the past, some as recently as five years ago, that embrace this fairly radical, and I believe bizarre, theory.
KENNEDY: Professor Steven Calabresi, one of the originator of the unitary executive theory, says that, "The impact on this nation is vast and dramatic. It obliterates the independence of agencies that protect the public, such as the Consumer Product Safety Commission, the Election Commission, Security Exchange Commission and much more."
It makes no sense to describe the effects of this bizarre theory in any other terms. That's how its founders brazenly described it.
Somehow Judge Alito expects us to buy his unique and lonely portrayal of this radical theory as something less than it is.
On the Concerned Alumni of Princeton, much has been made of the wide interest in Judge Alito's interest in this organization, and its, frankly, bigoted views. I was pleased that Judge Alito distanced himself from its repulsive anti-woman, anti-black, anti-disability, anti-gay pronouncements; views that we especially pronounced at the time that Judge Alito believes he joined.
But we still do not have a clear answer to why Judge Alito joined this reprehensible group in the first place. We still do not know why he believed that membership in the group would enhance his job application in the Reagan Justice Department. We still don't know why he chose this organization among so many other organizations that he likely belonged to, but somehow can't remember why.
In the Vanguard, some of our Republican colleagues find it shocking that we would even question Judge Alito about his failure to recuse himself from Vanguard cases. But the real shock is that Judge Alito failed to meet his sworn promise to this committee more seriously.
He says it was an oversight that he corrected 12 years after he made that promise. But now we know, from his own testimony and records, that he apparently never put Vanguard on the recusal list, even immediately after his promise to this committee.
KENNEDY: He has failed to give us any plausible explanation. The bottom line is that he just didn't think his commitment to the committee and to the United States Senate was important enough to honor.
In the 1985 job application in my office, Judge Alito tried to distance himself from the ideological views and legal opinions expressed in the '85 job application to the Reagan Justice Department. He brushed it off as just a job application.
Now he has tried, before the committee, to distance himself from the stunning statement that the White House and Congress somehow are superior to the Supreme Court, the keeper of our liberties.
He didn't back away one inch from his view that a woman's right to make her own reproductive decision is not protected under the Constitution. He didn't back away from his criticism of the principle of one person, one vote.
And on the cases he decided, in case after case, we see legal contortions and inconsistent reasoning to bend over backward to help the powerful. He may cite instances to think that he helped the little guy, but the records clear that the average person has a hard time getting a fair shake in Judge Alito's courtroom.
We're not expecting judges to produce particular results in their decisions, but we do expect fairness, for understanding the real-world impact of their decisions.
Frankly, it would be more comforting if Judge Alito gave individuals the same benefit of the doubt in his courtroom that he's asking from this committee on Vanguard, CAP, the unitary executive and women's privacy.
Now the debate over the nomination continues. In the end, this debate really is about the path of progress and the kind of America we hope to become.
America is noblest when it is just to all of its citizens in equal measure. America is freest when the rights and liberties of all are respected. America is strongest when all can share fairly in its prosperity. And we need a court that will hold us true to these guiding principles today and into the future.
Thank you very much, Mr. Chairman.
SPECTER: Thank you, Senator Kennedy.
Senator Hatch has stated his wish to reclaim at this point some of his reserved time.
HATCH: I don't intend to be very long, but I really believe that bringing up Vanguard or the Princeton matter goes beyond the pale at this point in this hearing. And let me just make this case.
Some of your critics, Judge, have focused a lot of attention on the actions over the Vanguard matter. And I think most people who think think this is really a case of much ado about nothing.
Certainly no law required you to recuse yourself in that case. As a matter of fact, the law -- helped put together by one of the leading Democrat ethicist professors of law -- reads as follows: "Financial interest means ownership of a legal or equitable interest, however small, or a relationship as director, adviser or other active participant in the affairs of a party, except that ownership in a mutual or common investment fund that holds securities is not a, quote, 'financial interest,' unquote, in such securities unless the judge participates in the management of the fund."
Now, you did not participate in the management of the fund, right?
ALITO: No, I certainly did not.
HATCH: OK. That's what the law says.
So what's this big case that's being made? It must be that since you signed -- among dozens of pages -- the committee form that says in the initial service, you agreed to recuse yourself in the Vanguard matter.
HATCH: And then you made a mistake 12 years later, which you rectified. In other words, you lived up to to your word in every sense of that term. Whether or not you considered that initial service or not, but anybody who looks at it would have to say, "My gosh, that doesn't mean 12 years from now."
But you even ignored that and said, "I recognize that I made a mistake; I recused myself even when I didn't have to recuse myself and did everything I could to live up to my word," which you did. In other words you lived up to your word.
That's a fair interpretation, isn't it?
ALITO: It is, Senator. I said, even if you read the answer as setting out a promise that would exist -- that would be binding on me for the entire term of my judicial service, I did disqualify myself in the only Vanguard case that ever came before me.
HATCH: And so to imply somehow or other that you were dishonest because you lived up to your word in the end I think is a little bit beyond the pale.
The ABA reviewed this matter and found that you have an excellent record for integrity. You earned, for the second time, the highest American Bar Association rating, of well qualified.
Now, I put in the record yesterday letters from several ethics professors who have examined this issue and found nothing improper.
They agree that you lived up to your word and you didn't have to, nor will you have to in the future. That's what that law says in 28 U.S. Code, Section 455(d)(4)(i). That's what it says.
Now, I might add that includes a letter from Professor Geoffery Hazard. Back when Justice Breyer was up for confirmation and questions were raised about the propriety of him hearing a case in which some argued -- falsely, I think -- that he had a financial interest, my friend from Massachusetts, Senator Kennedy, favorably cited a letter from Professor Hazard that was favorable to Justice Breyer.
HATCH: And by the way, I'm not going to judge the two cases, but it was every bit as much a case as this weak thing that has been brought against you.
Now, what is going on here is nothing but an attempt to make a big deal about nothing, a small thing. And I think it's being done with a bit of old bait and switch, if you ask my opinion.
I might add that when Judge Breyer -- what happened there in the case of Breyer, I reviewed it, I investigated it, and when the facts showed that he did no wrong, as they show you've done no wrong, I came out of the blocks and defended him. And I'm glad I did because he, like you, is an honest man.
Neither Justice Breyer or you have gone into public service to make money. That's pretty apparent.
Now, to have this like you've done something wrong because you made a mistake and then you rectified it, my gosh, how many times do we have to beat that old dead horse?
With regard to the other thing, I have my own opinion as to why that's repeatedly brought up, when you have adequately explained that you didn't remember much about it or anything at all.
Now we find that the Rusher memoranda contained no reference to you. He never heard of you before now. And it makes you wonder: Why are they bringing that up? Well, I've got my opinions on that, and I think my opinions are right.
The fact of the matter is you've been straightforward here, you've honestly answered the questions, you've answered more questions than almost any Supreme Court nominee in my 29 years in the Senate and I don't think you've been fairly treated.
HATCH: And it makes everybody wonder: Why would anyone want to do these jobs?
I know Law Review graduates (sic) who will make more than the chief justice this year, new graduates from law school.
So it's apparent you're going into this because you love your country, you want to serve it. And you've done it well for 15 years. And anybody who knows you knows that, and I know you.
So I think it's just wrong to keep bringing these phony issues up. And you have to ask, "Well, why are they doing it?" Because they're so phony.
That's all I care to say. I reserve the balance of my time.
SPECTER: Thank you, Senator Hatch. Your 18 minutes and 9 seconds will be reserved.
SPECTER: Senator Biden has asked for 20 minutes. We're going to be a little more flexible this final round because I see light at the end of the tunnel, quite frankly. I see our conclusion of these hearings probably not tonight, but tomorrow not too late.
We've started all the sessions exactly on time, and we've held to the time limits up until now, which I think we have to do if we want to move ahead.
If you want start to slip on when you start the timing it just gets out of hand, but at this juncture on a final round, we have a little more flexibility. I see the light at the end of the tunnel.
SPECTER: And, Senator Biden, you're recognized for up to 20 minutes, as you have requested. And if you go a little more, my gavel will stay put.
BIDEN: Well, thank you, Mr. Chairman. I'll try not to.
Judge, I heard the chairman -- and I happened to be doing something on Darfur. And I was in the conference room and I heard the chairman say that -- which I agree; he and I have talked about this -- nominees tend to answer as many questions as they think they have to in order to get confirmed. And I would say that that's been the case with all nominees, basically, since Judge Bork.
I'd also add another, I think, truism that's developed is they tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them.
And it all goes to, kind of, a central point here is: What is the public entitled to know about what you think, or what anyone thinks, before they go on the court?
And I realize there's this dynamic tension between your independence as a nominee, wand to be an independent justice, and answering questions.
But having said that, let me go to an area that I hope you'll engage me in. And it goes to executive power.
I have had the dubious distinction, because of my role in the Judiciary Committee and on the Foreign Relations Committee, in the last three or four times forces have been used by a president, to be the guy in charge of -- at least on my side of the aisle -- drafting or negotiating the drafting of the authority to use force, whether it was President Clinton, before that President Bush and even before that the discussion back on Lebanon, with President Reagan, et cetera.
So it's something I've dealt with a lot. Doesn't mean I'm right about it, but I've thought a lot about it.
And now there is a school of thought that's emerging within the administration that is making -- not illegitimate -- an intellectually thought-out claim that the power of the executive in times of war exceed that of what I would argue a majority of the constitutional scholarship has suggested.
BIDEN: And the fellow -- a very bright guy -- who is referred to as the architect of the president's memorandum on the ability of the presidents to conduct military operations against terrorists and nations supporting them is Professor Yoo.
He's written a book called "The Powers of War and Peace." And he makes some claims that are relatively new among the constitutional scholars in his book. And he had urged, when he was at the administration, the president had these authorities.
For example, he says that, "The framing generation well understood that declarations of war were obsolete." He goes on to say, "Given this context, it's clear that Congress' power to declare war does not constrain a president's independent and plenary right, constitutional authority over the use of force."
And he goes on and he argues, as you well know this argument -- I mean, not from your court, just as an informed, intelligent man -- there's a great debate now of whether or not the administration's internal position is correct. And that is, the president has the authority to go to war absent congressional authorization.
And it was a claim made by Bush I and then dropped. Bush I argued that the only reason the declare war provision is in the Constitution is to give the president the authority to go to war if the president didn't want to. That was the claim made.
Similar claim made here, so I want to ask you a question.
Do you think the president has the authority to invade Iran tomorrow without getting permission from the people, from the United States Congress, absent him being able to show there's an immediate threat to our national security?
ALITO: Well, that's a question that I don't think is settled by -- the whole issue of the extent of the president's authority to authorize the use of military force without congressional approval has been the subject of a lot of debate.
The Constitution divides the powers relating to making war between the president and the Congress. It gives Congress the power to declare war, and obviously that means something. It gives Congress the power of the purse, and obviously military operations can't be carried out for any length of time without congressional appropriations. Congress is given the power to raise and support an Army, to maintain a Navy, to make the rules for governing the land and the naval forces.
The president has the power of the commander in chief. And I think there's been general agreement and the Prize cases support the authority of the president to take military action on his own in the case of an emergency when there is not time for Congress to react.
BIDEN: Is that the deciding question, if the Congress does not have the time to act?
ALITO: Well, the Prize cases I think are read to go as far as to say that in that limited circumstance the president can act without congressional approval.
A lot of scholars say that what's important as far as congressional approval is not the form, it's not whether it's a formal declaration of war or not, it's whether there is authorization in one form or another.
The war powers resolution was obviously an expression of the view on the part of Congress...
BIDEN: If I can interrupt, Judge, since I'm not going to have much time. The war powers resolution is a legislative act. I don't want to get into that. I'm talking about the war clause.
And the administration argues and Yoo argues that, quote, "I do not think the president is constitutionally required to get legislative authorization for launching military hostilities."
And that's a pretty central question. That means, if that interpretation is taken, the president could invade -- and maybe there's good reason to -- invade Iraq -- excuse me, invade Syria tomorrow or invade Iran tomorrow without any consultation with the United States Congress.
And that's a pretty big deal. Up to now, Fisher and Henkin and most of the scholarship here has said, "No, no, no. The president's authority falls into the zone where he needs it for emergency purposes, where he doesn't have time to consult with the Congress."
But you seem to be agreeing with the interpretation of the president, Professor Yoo, that says, "Nope, the president has the authority, if he thinks it's necessary, to move from a state of peace to a state of war without any congressional authorization."
ALITO: I hope I'm not giving you that impression, Senator, because I didn't mean to...
BIDEN: Oh, OK, maybe you can...
I have not read Professor Yoo's book or anything that he or anyone else has written setting out the theory that you've described.
ALITO: I've been trying to describe what I understand the authorities to say in this area. Generally, when this issue has come up, or variations of this issue have come up in relation to a number of recent wars -- there were a number of efforts to raise issues relating to this in relation to the war in Vietnam. There was an effort to raise it in relation to our military operations in the former Yugoslavia. In most of those instances they didn't -- in most of those instances were -- the cases were dismissed by the lower courts under the so-called political question doctrine that you described earlier.
BIDEN: You and I both know that's a different issue. The political question doctrine is a different issue than whether or not you think that -- I'm asking you as a citizen whether you think that as the administration is arguing -- for example, it argues that the case is made, and I'm quoting, "that the Constitution permits the president to violate international law when he's engaged in war." It just states it flatly. That's what the memorandum of the Justice Department states flatly. The president has that sole authority.
He argues the Congress would have that authority as well, just violate international law. He goes on to argue, as does the memorandum argue -- this is this administration's position, so that's why it's relevant. It says that the president may use his commander in chief and executive power to use military force to protect the nation, subject only to the congressional appropriations.
And that means that the argument the administration is making is the only authority that Congress has is to cut off funds. Let's say we didn't want the president to invade Iran.
BIDEN: The administration argues we could pass a resolution saying that, "You have no authority to invade Iran," and the president could the next day invade Iran. Our only recourse would be to cut off appropriations.
But, as you know, there's no way to cut off specific appropriations. You have to cut off appropriations for the entire military, which means it's a totally useless tool for the Congress in today's world. You know?
You can't say, well, I'm going to cut off only the money for the oil that allows the steaming of the ships to get from the East Coast to the Mediterranean sea and/or to the Persian Gulf.
So it's really kind of important, whether or not you think the president does not need the authority of the United States Congress to wage a war where there's not an imminent threat against the United States. And that's my question.
ALITO: And, Senator, if I'm confirmed and if this comes before me -- or perhaps it could come before me on the Court of Appeals -- the first issue would be the political question doctrine that I've described.
But if we were to get beyond that, what I can tell you is that I have not studied these authorities and it is not my practice to just express an opinion on a constitutional question...
ALITO: ... including particularly one that is as momentous as this. I've set out my understanding of what the Constitution does in allocating powers relating to war between the executive and Congress, and some of what some of the leading authorities have said on this question. But beyond that -- and I haven't read Professor Yoo's book or anything that he's written on this issue -- I would have to study the question.
Well, let me move to something you have spoken about, stare decisis. I know it's been raised a number of times. That's basically following precedent.
As a Circuit Court of Appeals judge, in layman's language, what does that mean, you're required to -- as a circuit court -- what does it mean that you're required to adhere to stare decisis?
ALITO: We are required to follow decisions of the Supreme Court, to start out with because it's a superior court. We when we sit as a panel, it is our practice and I think it's the practice of all the courts of appeals that one panel can't overrule a decision of another panel.
So it means that. When we sit en banc, it is a doctrine that counsels adherence to prior precedent.
BIDEN: But you're allowed in that -- like you did in ACLU v. Schundler, you concluded, which I think you had a right to do, that the precedent of your circuit was incorrect. And you ruled the other way.
I think you had a right to do that, right?
ALITO: We can't do that at the panel level. We can't say a prior panel decision is incorrect.
BIDEN: No, but you can when you sit en banc?
ALITO: When we sit en banc, we can.
BIDEN: When all the justices...
BIDEN: OK. Now, how about for a Supreme Court justice; a Supreme Court justice is not required, is he or she, to follow the precedent of the Supreme Court?
Stare decisis doesn't apply there, does it? It may be practiced, but as a practical matter, no scholar say you're required, as a Supreme Court justice to adhere to precedent, are they -- is it?
ALITO: Well, stare decisis certainly applies. Stare decisis takes different forms. There's what some people call horizontal stare decisis, which means a lower court has to follow the higher court -- I'm sorry -- vertical stare decisis.
And then there are various forms of horizontal stare decisis which means a court either must or should follow its own prior precedents. And, on the Supreme Court, of course, when we're talking about whether the Supreme Court is going to follow a prior Supreme Court precedent, that's horizontal.
And there it isn't an absolute requirement to follow a prior precedent.
ALITO: It is not an absolute requirement, but it is the presumption that the court will follow its prior precedents.
BIDEN: I understand that. But no one would argue that if you or any other justice broke from -- clearly broke from the precedent of a Supreme Court decision, that you're in any way violating your ethical responsibility as a judge.
BIDEN: You're entitled to do that. Not that you would, but you're entitled to do that, and no one would question that as a matter of right. Is that not correct?
ALITO: I think people would question it, if you disregarded the factors that go into the stare decisis analysis. If you said I don't believe, I'm not absolutely required to follow prior Supreme Court precedent, and I regard every question as a completely open question, I think...
BIDEN: With all due respect, the way it would likely take the form is a justice could say I disagree with the line of cases that say that, you know, a president needs congressional authority, or that a, whatever the line of cases are.
They're not likely to say I disregard stare decisis. It's like what Scalia said in the abortion case, he said, "Look, we just look at this head on. Roe v. Wade is wrongly decided. We should just say so." And he's entitled to do that. And if he had a majority -- I'm not suggesting what you would do on that -- he's entitled to do that, and that wouldn't be a violation of any written or unwritten code that relates to a Supreme Court justice's conduct, would it?
ALITO: Different justices and different judges have different views about stare decisis, but my view is that you need a special justification for overruling a prior precedent and that reliance and reaffirmation are among the factors that are important.
ALITO: But I've also said it's not an inexorable command.
In the area of constitutional law, there has to be the ability to revisit a case like Plessy v. Ferguson. I don't think anybody would want a system of stare decisis that made that impossible.
My time -- three minutes left -- I'd like to try to get quickly to another area here, if I may, that you've been questioned on, this notion of unitary executive and the questions referencing Morrison and the dissent of Scalia, et cetera.
As I reach and teach the dissent of Scalia -- and I won't take the time, in the interest of time, to read his exact language -- he has a very scathing and intellectually justifiable, many would argue, criticism of the test employed by the majority in that case to determine whether separation of powers has been breached. He argues there are very bright lines, that there can be no sharing of any of the power. If it's an executive power, it's an executive power and it's executive power.
He would argue that the alphabet agencies -- the FDA, the FCC, the EPA -- they are really not constitutionally permissible because the FDA makes a legislative judgment, it makes a judicial judgment, and it imposes fines and penalties, and so therefore it does all three things as sort of the bastard child.
But most of the -- the majority of the justices say that as long as the power one branch is using does not unduly trench upon the power of the other branch, or it does not substantially affect its ability to carry out its powers, then that's permissible.
BIDEN: Which school of thought do you fall into?
ALITO: Well, different issues are presented in different factual situations.
BIDEN: That's why I didn't give you a specific issue.
ALITO: Well, I think you need a specific issue in order to answer it's. For example...
BIDEN: OK, the FDA, is it constitutional, Federal Drug Administration?
ALITO: I don't know whether there are statutory restrictions on the removal of the FDA commissioner.
BIDEN: No, but there are. The FDA does exercise judicial power. It makes judgments -- "You, drug company A, violated the law."
ALITO: And I don't know any constitutional object to that.
ALITO: I don't know that he would have a constitutional objection to that. My understanding is that he would not have a constitutional objection to their doing that, but I could be mistaken.
And I wouldn't want to prejudge my constitutional question that might be presented to me. But I'm not aware of a constitutional -- if there isn't any limitation on removal, then there obviously isn't a removal issue there.
As to the agencies where there are restrictions on the removal of commissioners who are appointed for a term, that issue is dealt with in Humphrey's Executor and Weiner and in Morrison. And Morrison was 8-1 and the other cases would be, sort of, a fortiori from Morrison.
BIDEN: Well, my time's up. And hopefully someone will pursue this unitary executive issue about private suits, because I thought what you explained was a little inconsistent, or I don't understand it. But I'll let someone else do that.
SPECTER: Thanks very much, Senator Biden.
Senator Grassley has asked that his time be reserved. Senator Grassley has other duties which he had to attend to. He was here earlier; will be back. He's also chairman of the Finance Committee.
Just a word, when senators come and go -- everybody has many committees and many constituents and many visitors and many callers. So when they're not here, you can conclude they're otherwise engaged.
And Senator Grassley is now.
SPECTER: But his time is reserved.
Senator Kohl has asked for 20 minutes.
Senator Kohl, we'll set the clock at 20 minutes for you. And as I said earlier, we have some flexibility here.
KOHL: I thank you very much, Mr. Chairman.
Judge Alito, elected officials make decisions on issues every day as we try to best represent the people of our states. And if our constituents do not think that the choices we make reflect their opinions, then every few years they have an opportunity to vote for someone else.
As you know, that's not the case with the courts. Once confirmed, federal judges have lifetime tenure and are virtually unaccountable.
And that lifetime tenure can result in a judge or in a court that is removed from the thoughts and opinions of most Americans. As public opinion changes on an issue, the court may cease to reflect the views of the country.
If the courts take positions contrary to what most Americans think about an issue or a decide case, very important case, in a way that is clearly out of the mainstream of American thought, what can be done about it? And do you think that the courts need to consider public opinion when deciding cases?
ALITO: I think that the courts were structured the way they are so that they would not decide their cases based on public opinion.
If the framers had wanted the federal courts to follow public opinion, then they would have made federal judges elected officials, as state judges are in many states.
ALITO: They gave them lifetime tenure because they thought there was a critical difference between deciding cases under the Constitution and the laws and responding to public opinion.
Now, they gave the courts limited authority because they wanted most of the decisions that affect people's daily lives to be made by the branches of government that are directly responsible to the people, so that the people can control their own destiny.
The framers' theory was that sovereignty lay with the people and the government was legitimate only insofar as it responded to the people. And that's why Congress is structured the way it is, that's why the presidency is structured the way it is.
But the courts were viewed -- the courts are not a democratic institution. And they were structured the way they are because they saw a difference between the judicial function and the other functions that are performed by the branches of the federal government.
KOHL: Well, and yet the courts, particularly the Rehnquist court, has struck down more laws than any court in recent memory, in response to your comment about the legislatures as being involved in the daily lives of people. And the rate that they've been striking down laws during the Rehnquist court was six times faster than during the first 200 years of our republic.
So how do we deal with the fact that while the legislature, in your opinion, is supposed to represent the daily lives of people, the courts, particularly Supreme Court in recent years, has been striking down the laws of the legislature more often than ever before?
ALITO: Acts of Congress are presumptively constitutional and I don't think that saying that is just words.
ALITO: I think that means something. Members of Congress take an oath to support the Constitution and I think that the presumption of constitutionality means a lot.
And I think that judgments that are reached by the legislative branch in the form of findings of fact, for example, are entitled to great respect because of the structure of our government, the fact that the basic policy decisions are supposed to be made by the legislative branch and carried out by the executive branch, and also for the practical reason or the functional reason that Congress is in a better position to evaluate conditions in our country and conditions in our society and to make findings and to determine what's appropriate to deal with the social and economic problems that we face.
So I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done.
Now, ultimately, Marbury v. Madison decided the question that when a case or controversy comes before the Supreme Court, and the constitutionality of an act of Congress is challenged, it is the duty of the court to decide the question. Unless we were going to go back to 1819, then that's the practice that the federal courts have to follow. But they should always do that with an appreciation of their limited role and the role that the legislature is supposed to play.
KOHL: All right. As a follow-up to that, would you comment on term limits for federal judges or age limits for federal judges?
KOHL: As you know, if a judge so wishes, he or she can serve forever. Do you think that's a good thing in our society?
Should judges be term limited? Should judges, at least, be age limited? Or should they serve just as long as they wish?
ALITO: Well, those are issues that are decided by the Constitution. The framers said that federal judges have life tenure. So, without amending the Constitution, I don't think you could make, you could you have judges serve for a term of years or impose an age limitation on...
KOHL: What is your opinion?
ALITO: On federal judges? I'm not really sure. I understand the arguments in favor of doing both of those things. And state courts do that.
And, although I said yesterday, I didn't think we should look to foreign law in interpreting our Constitution, I don't see a problem in looking to the practices of foreign countries in the way they organize their constitutional courts.
And I believe that many of them do have term limitations on the length of service of a member of the highest court and other members of the judiciary.
So, there are arguments on both sides of the question. If you had a short term of years, you would have a judiciary that was like an elected judiciary. And you would have the advantages and the disadvantages of that kind of structure.
ALITO: But there are arguments on both sides of the question. And it's for other people to decide...
KOHL: Right. We're asking you -- you know, I appreciate that and I appreciate your thoughtfulness. But again, this is the only time -- today may be the last time -- that we ever have a chance as a nation to talk to you.
So you have a thought on it? I mean, I can't believe you don't have a thought. You know, we're not going to amend the Constitution tomorrow based on your thought that you expressed today.
But what is your thought? Do you think it's a good thing for judges to serve unaccountably forever, no age limits, no term limit? Or do you think it might be the best thing for our society for judges, after a reasonably long period of time if you so wish or at a certain age, to phase themselves out?
ALITO: If I had been a delegate to the Constitutional Convention in Philadelphia in 1787, which is a little hard for me to imagine, but if I had been there, and knowing the way things work out, I guess I would narrow the range of possibilities down to -- the range of options that I would consider down to either life tenure or a long term of years so that the judiciary would be insulated from being swayed by popular opinion during a particular period as to the constitutional questions that come before them.
And as between those, I'm not sure which I would choose. If the judiciary is going to exercise the power of judicial review in enforcing constitutional rights, then I would think that one of those two options would be the best.
But I wasn't in Philadelphia in 1787. So I have (inaudible) on that question.
KOHL: Judge, at the end of its term last year, in a 5-4 decision, the Supreme Court ruled in Kelo v. City of New London that it was constitutional for a local government to seize private property for private economic development.
Many people are alarmed about the consequences of this ruling because of the words of Justice O'Connor. Under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall or any farm with a factory," unquote.
KOHL: So what is your view of the Kelo decision, Judge Alito?
ALITO: Well, what I can say is that it's a precedent of the court, and it built on the Midkiff decision, which had been handed down a number of years earlier.
I know that it touches some very sensitive nerves. When someone's home is being taken away, using the power of eminent domain, that is a blow to a lot of people.
Even if they're going to get compensated at fair market value for their home, the home often means more to people than just dollars and cents. It's a place that often involves a lot of emotion. They have emotional attachments to it. They've lived in it a long time. They're familiar with the neighborhood. They want to be with the neighbors they like. They want to stay in the same area. They may have emotional attachments to things in the home.
So it's a tremendous blow. And I suppose that when -- I would imagine that when someone's home is being taken away, a modest home, for the purpose of building a very expensive commercial structure, that that is particularly galling.
But Kelo was the decision of the court, and I've got my view about stare decisis. And should that issue come up again, then obviously the stare decisis factors would have to be considered. The stare decisis question would have to be the first question addressed. And the factors that I've discussed would have to be weighed.
KOHL: Well, your comment is, "On the one, and on the other hand," and I do appreciate that.
KOHL: But I'd ask you, if you would, venture an opinion more precisely, specifically, do you agree in general with Justice O'Connor's dissent?
ALITO: Well, Senator, I don't think I can answer that beyond what I've said.
If the issue were to come before me and if I'm confirmed, then I would first have to consider whether there's any reason for not following Kelo, which is a precedent of the Supreme Court and grew out of the earlier precedent that I discussed, that I mentioned.
Now, I'm not suggesting which way I would decide that question of stare decisis, but that is the way our legal system works; that decisions are presumptively to be followed. And I would have to address that question.
If I got beyond it, I would have to go through the whole judicial process that is set up so that questions of constitutional law and other questions are decided in the best way, reading the briefs, listening to the arguments, participating in the conference and only after that reaching a decision on the merits of it.
As a follow-up, Judge Alito, if confirmed you'll be replacing Justice O'Connor, who is a justice who will be remembered by history as one of the most influential justices of the 20th century. She's also, as you know, a much beloved person.
How will you be different from her, Judge Alito? How do you think Justice O'Connor ought to be remembered, Judge Alito? And how are you like or not like Justice O'Connor as a judge?
ALITO: She certainly will be remembered from many reasons and I think with great admiration. I think she is held in great admiration by the American people at this time, and I think that when people look back they will have great admiration for her work.
She obviously was a pioneering figure, and was an inspiration for many people who want to pursue legal careers and other careers.
She has been a very dedicated justice and has been known for her meticulous devotion to the facts of the particular cases that come before her and her belief that each case needs to be decided on its complex facts, and that's something that is an important part of our judicial process.
I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication, which is what I think the Supreme Court and the other federal courts should carry out. I think that is a central feature of best traditions of our judicial system.
KOHL: She was seen as someone who in a general way was a dissenter of the court. You never had an idea whether she might look a little left or a little right, but she was seen as the center of the court, which as you know is central to your nomination.
And you've said you had great respect for her. You've said you respect her as a justice who did look at the facts and made judgments based on those facts, which is -- I think, you would say about yourself -- umpire calling balls and strikes, pretty much as they see them.
Do you see yourself as a justice, if you're confirmed, who in many ways will fill the same role as Justice O'Connor has filled?
ALITO: I think that anybody who is appointed to any judicial position has to be himself or herself. And I don't think that anybody can try to replace the person or can duplicate the approach of the person who that person is replacing.
ALITO: We all have to proceed in accordance with our own abilities and our own outlook.
And so I don't think that -- I think we all have to be who we are. But I think we can emulate the great jurists of the past. Which is not to say that we can equal them, but we can look at what they've done and see the things that they've done very well and try to approach what they've done in various areas.
And I think that I certainly would try to emulate Justice O'Connor in the ways that I've described. I wouldn't flatter myself to say that I could equal her in any of those ways, but I would certainly try to emulate the conscientious and dignified way in which she's gone about the performance of her judicial duties.
KOHL: You may have answered this question already, but as I said, she was at the center of the court -- at least viewed as a person at the center of the court and served a very useful purpose in that respect.
Is it, in your opinion, likely that you might turn out, in a general way, to be that kind of a justice?
ALITO: I can only answer that, really, by saying what I think I've said before, which is that I'd be the same sort of justice in the Supreme Court as I've been a judge on the court of appeals.
ALITO: I am my own person, with whatever abilities I have and whatever limitations I have. And I think if anybody looks at my record on the court of appeals they can get an idea about the way I approach the work of being a judge. And that's what I would try to do on the Supreme Court.
I don't think I can do anything other than that, and that's what I think I should do, and that's what I would do if I'm confirmed.
KOHL: Judge Alito, I thank you very much.
Mr. Chairman, I thank you very much.
SPECTER: Thank you, Senator Kohl.
We'll take our break now and resume at 10 minutes after 11:00.
SPECTER: Welcome back, Judge Alito. A thought just crossed my mind that this is the only time when you walk into a room that everybody doesn't stand up.
ALITO: That happens to me all the time at home, Senator.
SPECTER: I'm not saying when you come home, Judge Alito. The reception for a judge or a senator or even the chief justice is very different at home than when he walks into a room and a bailiff shouts, "All rise." Just crossed my mind that we weren't all standing up. But as Chief Justice Roberts said, this is a discussion among equals; that is, until you're confirmed, if confirmed.
KYL: Mr. Chairman, I'll reserve my questions for now. Thank you.
SPECTER: Senator Kyl is reserving his time.
Senator Feinstein is about to join us, coming in, so we'll await her arrival, which should be imminently.
I think Senator Feinstein is going to be a few moments or more, so let's turn to Senator Feingold.
FEINGOLD: Mr. Chairman, if that's your wish, I'd certainly defer to Senator Feinstein if she wants to reclaim her time when she comes. But I'll get started if you want.
SPECTER: Let's wait another minute or two for her. She's not in the back room and she's not in the corridor. But let's wait another minute or two for her.
SPECTER: Senator Feinstein, you have made another dramatic entrance. We were all assembled for the committee action on Chief Justice Roberts' when you were on the floor in your position on the Appropriations Committee, managing a bill, and the 17 of us were there.
FEINSTEIN: Not quite, but I thank you for that...
SPECTER: And you walked in with drama, as today. You have asked for up to 10 minutes, Senator Feinstein. We will set the clock at 10, but as I have indicated, we have some flexibility. We see the light at the end of the tunnel.
FEINSTEIN: I may take 20, if that is all right with you, Mr. Chairman.
SPECTER: We'll reset the clock at 20, Senator Feinstein.
FEINSTEIN: I want to begin a conversation, hopefully. Let me try to set the precedent for it because others have discussed this, as well. You said, and I think everybody agrees, that nobody is above the law and nobody is beneath the law.
And you made comments about the balance of powers, that all branches of government are equal.
There are three of us on this committee -- Senator Hatch, Senator DeWine and myself -- that also serve on the Intelligence Committee.
FEINSTEIN: And Intelligence has the duty to provide the oversight for the 15 different agencies that relate to America's intelligence activities.
And so this question of presidential authority at a time of crisis -- not necessarily a full declaration of war state to state, but a time of crisis -- because very prescient right now.
And I wanted to talk to you a little bit about the president's plenary authorities as commander in chief -- "plenary" meaning unrestrained and unrestrainable, his plenary authorities to defend the United States -- and whether it is true that no law passed by Congress binds him if he determines that it interferes with his commander in chief role.
Now, we have explicit powers, as you've said, under the Constitution. And in Section 8, we have the explicit power to raise and support armies, to provide and maintain a Navy, to make rules for the government and regulation of the land and naval forces. And the National Security Administration (sic), known as the NSA, is within the Department of Defense. It's headed by a general.
So it would seem to me that there is an explicit power for the Congress to be able to pass the rules that govern the procedures of the National Security Administration (sic).
Now, again to the Jackson test. When the president's power is in least is when the Congress has legislated. And this is where the national -- excuse me -- the Foreign Intelligence Surveillance Act, known as FISA, comes in.
FEINSTEIN: And FISA is very explicit. And let me read a part of it to you.
"Procedures in this chapter and the Foreign Intelligence Surveillance Act, known as FISA, shall be the exclusive means by which electronic surveillance, as defined in Section 101 of such act, and the interception of domestic wire and oral communications may be conducted."
It does provide -- you used the word "general." It does provide two exigent circumstances. One is, following a declaration of war, the president has 15 days in which he can wiretap. The second exigent circumstance is an emergency provision that if he needs emergency authority, he can go -- the attorney general can authorize, provided they go to the FISA court within 72 hours.
I was concerned; there are two questions in this one statement.
FEINSTEIN: The first question is: If we have explicit authority under the Constitution to pass a law and we pass that law, is the president bound by that law or does his plenary authority supersede that law?
ALITO: The president, like everybody else, is bound by statutes that are enacted by Congress, unless the statutes are unconstitutional, because the Constitution takes precedence over a statute.
But in general, of course, the president and everybody else is bound by statute. There is no question about that whatsoever. And the president is explicitly given the obligation under Article II to take care that the laws are faithfully executed.
So he is given the responsibility of making sure that the laws are carried out.
FEINSTEIN: Let me press you on "unconstitutional." Very few of us on this committee are not lawyers. I'm one of them. So let me just speak in common, everyday terms.
There are two resolutions that were passed: one authorizing the use of the military force involving Iraq and one involving use of terrorism. Never was there any indication that domestic wiretapping of Americans was involved in anything that was done.
As a matter of fact, the former minority leader just wrote an op- ed piece in which he said he was approached by the administration shortly before the second resolution was passed and asked to add certain words that essentially added the words "deter and preempt any future acts of terrorism or aggression against the United States."
FEINSTEIN: And he refused to do it.
And, Mr. Chairman, if I could place this...
FEINSTEIN: ... statement in the record, since we are going to be having hearings on what's happened. I think this is an inappropriate bit of legislative history. I'd like to place it in the record.
SPECTER: Thank you, Senator Feinstein. It will be made a part of the record without objection.
So, bottom line: Two resolutions passed; no consideration by the Congress or any member that I know of, no legislative history to indicate that we included in these authorizations authorization to wiretap Americans.
The question then comes, I guess, does the plenary power of the president supersede this?
ALITO: I think there are two questions. Maybe there are more than two questions, but there are at least two questions.
The first question, to my mind, is the question of statutory interpretation. What is the scope of the authorization of the use of military force?
And I don't know whether that will turn out to be an easy question or whether it will turn out to be a difficult question. But it is a question of statutory interpretation like any other.
Of course, there's a great deal at stake and maybe a lot more at stake than is involved in a lot of issues of statutory interpretation.
But if I were required to decide that, I would approach it in essentially the same way I approach any other question of statutory interpretation. What does the word of the law -- or, what does the law say? Are there terms in there that carry a special meaning because of the subject matter that's being dealt with?
ALITO: And I think legislative history can be appropriately consulted.
And I would have to decide that in the context of the whole process of deciding legal questions, as I said, like any other issue of statutory interpretation.
Once a decision was reached on the issue of statutory interpretation, it might be necessary to go further depending, I guess, on the answer to that question.
And I would also say in connection with this that we have a little bit of guidance as to the interpretation of the authorization of the use of military force in the Hamdi case, where the court interpreted that enactment and determined that the detention of an individual who was captured on the battlefield in Afghanistan fell within the scope of that. And they relied there, I think, on customary practices in the conduct of warfare in determining what fell within the scope of the authorization.
FEINSTEIN: Let me stop you right here, because that's right.
Because detention is a necessary following of an authorization of military force, so detention is logical.
When you've got a specific statute that covers all electronic surveillance, the question comes: Is that statute nullified and does it necessarily follow that the wiretapping of Americans without -- and I'm not saying there isn't a reason to do this.
FEINSTEIN: What I'm saying is, that we set up a legal procedure by which you do it and we set two exigent circumstances to excuse a president from having to do it. Therefore, doesn't that law prevail?
ALITO: As I said, I think the threshold question is interpreting the scope of that and it might turn out to be an open-and-shut argument. It might turn out to be very complicated argument. I would not presume to voice an opinion on the question here, in particular because I have not studied it in the depth that I would have to study it before reaching a judicial decision on the matter.
Then, depending on how that issue was resolved, it would be -- it might be necessary to go on to the constitutional question. I think you exactly outlined where that would fall under Justice Jackson's method of analyzing these questions. This would be in the category in which, if it was determined that there was not statutory authorization...
FEINSTEIN: There was. No statutory authorization to wiretap, right?
ALITO: If it was determined that there was statutory authorization, then I do not know what the constitutional issue would...
FEINSTEIN: But, if there wasn't...
ALITO: There might be a constitutional issue. Let me stop there.
There would be a Fourth Amendment issue, obviously.
If you went beyond -- if you determined that there was not statutory authorization, then as far as the issue of presidential power is concerned, you would be in Justice Jackson's scheme, in the category where the president -- you would have to determine if this is the argument that is made; whether the president's power, inherent powers, the powers given to the president under Article II, are sufficient, even taking away congressional authorization, the area where the president is asserting a power to do something in the face of an explicit congressional determination to the contrary.
FEINSTEIN: Now, in my lay mind, the way I interpret that -- and correct me if I'm wrong -- is that you essentially have a conflict, and that it hasn't been decided whether one trumps the other.
ALITO: I think that's close to the point that I was trying to make. The way Justice Jackson described it was that you have whatever executive power the president has minus what Congress has taken away by enacting the statute.
FEINSTEIN: Even though you have a statutory prohibition, even a criminal prohibition?
ALITO: Well, I'm not suggesting how the determination would come out. I think that it is implicit in the way Justice Jackson outlined this that presidential -- he said it expressly -- presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.
FEINSTEIN: OK. Enough of that. Let me move on.
In WR Grace v. the EPA, a chemical company released large amounts of ammonia into the local aquifer in Lansing, Michigan. Under the Safe Drinking Water Act, the EPA ordered the chemical company to clean up the discharge to reduce the concentration of ammonia to a level that wouldn't threaten the health of the community.
FEINSTEIN: The chemical company challenged this EPA decision. You cast, as I understand it, the decisive vote to overrule the EPA, permitting the company to leave more ammonia in the aquifer, despite the EPA's determination that this level of ammonia would continue to endanger the water supply.
In her dissent, Judge Mansmann urged deference to the EPA in matters of science, noting that, quote, "The high degree of deference we are to accord the EPA is a cornerstone to the EPA's power, enshrined in the Safe Drinking Water Act, to protect the public health, the environment and public water supplies from the pernicious effects of toxic wastes," end quote.
Do you agree with the dissent that a reviewing court must generally be at its most deferential when reviewing factual determinations within an agency's special area of expertise?
ALITO: I do agree with that. I don't think there's any question about that.
FEINSTEIN: Do you believe that where an agency is taking action to protect the health of citizens, additional deference should be given?
ALITO: I think that deference is owed to the expertise of administrative agencies. That's an important part of administrative law. And when you're dealing with an agency like the EPA, you would defer to their area of expertise. And I think that's correct.
FEINSTEIN: Should the EPA be accorded the same deference as other governmental agencies?
ALITO: I don't see why it should not. It's the expert on environmental questions.
ALITO: And, for example, if the EPA issues regulations interpreting a statutory provision and its given broad authority under the environmental laws frequently to implement choices that are reflected in the legislation, then I think that it's entitled to a broad measure of deference under the Chevron decision if it issues rules and if any reasonable interpretation of the statute is entitled to deference from the courts.
FEINSTEIN: OK. Let me go way back.
And I recognize that time has gone by and I recognize you were in a different position, but these questions are really aimed to point out the importance of the commerce clause to us.
In 1986, Congress passed the Truth in Mileage Act to prevent odometer fraud. As deputy at the Office of Legal Counsel, you recommended that President Reagan veto the bill because you believed it violated the principles of federalism.
In the draft statement for the president, you wrote, "It is the states and not the federal government that are charged with protecting the health, safety and welfare of their citizens," that's a quote. President Reagan did sign the Truth in Mileage Act.
Does it remain your opinion that it is the states, not the federal government, that are charged with protecting the health, safety and welfare of Americans?
ALITO: Both the federal government and the states have responsibilities in those areas.
Historically, the primary responsibility with respect to those concerns has been with the states. But with the expansion of federal regulatory programs, the federal government has taken on broader and broader responsibilities in those areas and now has very substantial responsibilities in all of those areas under regulatory schemes that have been in place for a long time and I don't believe are being challenged on constitutional grounds at this time.
If I could just say a word about that memo, which I read for the first time in 20 years recently, it's a brief statement. And as I read it, what it is primarily expressing it is not an interpretation of the scope of Congress's constitutional authority but a recommendation based on the federalism policies of the Reagan ministration.
The Reagan administration had a policy of implementing its view of federalism concerns through policy-making decisions.
ALITO: In other words, its policy was to go further in respecting what it viewed as the federalist system -- as our federal system of government than the Constitution required, to go further as a policy matter.
And as I read the brief statement, that's what was being expressed there.
FEINSTEIN: So if I understand that, quickly, what you're saying is, this was written as staff in an administration to follow a policy.
But are you also saying, as a judge, this would not necessarily be a position that you would hold in any case?
ALITO: As a judge, I would have no authority and certainly would not try to implement any policy ideas about federalism.
Congress can implement policy ideas about federalism. The Garcia case, in fact, is based on the view -- this is what the Supreme Court said there -- that the primary way in which the federalism concerns that were expressed in National League of Cities was to be implemented in the future was through policy decisions made by Congress.
They said the states are represented in Congress through the membership in the Senate. And protection of the prerogatives of the states should be left to policy decisions made by Congress or decisions made by Congress in implementing its view of how the system of federalism should work.
ALITO: And an executive, a president, can take a similar approach. A president can say: Although the Constitution allows the authority of the federal government to go this far, as a policy matter, I do not want to go along with legislation that goes up to the limits of what the Constitution allows. As a policy matter, I want to stop short of that. As I read this memo, that is what we were saying there.
FEINSTEIN: Thank you very much.
SPECTER: Thank you, Senator Feinstein.
Senator Grassley has stated his interest in claiming some of his reserve time.
GRASSLEY: A small part of it.
Number one, to make a point that I hope would put a lot of my colleagues who have raised questions about some theory you have about this or that; that whatever political science theories you might have about the executive branch of government, I do not worry about that and I would hope my colleagues would not worry about that because you could have a hundred theories and they could be all crazy. But is it not right that you are a person that is bound by the Constitution to only hear cases and controversies that come before the Supreme Court?
And so, you know, whatever comes before you, you are responsible for deciding it within the constitutional case and controversy.
Secondly, it seems to me that you are a person who has the judicial temperament, as you said so many times, that you are going to keep your own personal views out of it.
It seems to me that you are a person that has indicated to us that you are going to look at a case within the four corners of the law and the facts that apply to that case and nothing more.
GRASSLEY: So any theories you might have about -- what was it called, unitary executive or something -- what's that got to do with your deciding a case?
ALITO: Senator, you are exactly right. If cases involving this area of constitutional law come before me, I will look to the precedents of the Supreme Court. And that's what I think I've been trying to emphasize.
And there are governing precedents in this area. There is Humphrey's Executor and Wiener and, most recently, Morrison, which was an 8-1 decision.
GRASSLEY: Then the other thing -- I'd take an opportunity to just tell you something and not want any response. But that is on the False Claims Act.
This act was originally passed in 1862 because Lincoln didn't have enough people to prosecute fraud by military people against the government. So he empowered individuals to do that under qui tam.
And then in 1942, I think it was, the law was gutted by taking out the qui tam provisions, probably because of World War II and the necessity of getting the job of military construction done.
And then in the 1980s we found a heck of a lot of military -- fraudulent use of taxpayers' money.
GRASSLEY: We held a lot of hearings on that. It came that there wasn't enough being done by the Justice Department to take care of it. We saw the Justice Department making a lot of global settlements.
You know, some company that had done a massive amount of wrong in many areas, and maybe having the Justice Department settle one little dispute, but give a global settlement so that they'd never be prosecuted for anything after that, it led us to beefing up the False Claims Act by putting the qui tam provisions in it.
And it was a terrible thing to get through Congress. I think six months after we voted out of committee, we had every senator putting a hold on it, some bequest of somebody in the defense industry. And you take care of that little problem, and another put a hold on it, and another one put a hold on it.
And finally, the last person was a friend of mine that had a hold on it. I said, "Why did you have a hold on it?"
"Well, some of my friends said that's bad for the defense industry."
And I talked to him about it, and he says, "You know, you're absolutely right."
And we got the last hold off and we got it passed and we got it signed by the president of the United States.
And then over the last several years, we have had the defense industry going, trying to gut it again. Then we had the hospital association trying to gut it because we were using it in medical care.
And it's brought in $12 billion into the federal treasury. And I think it's even had the benefit of discouraging a lot of activity that would go on normally that saved the taxpayers' money without prosecution.
But there are people in the Justice Department, the professional people in the Justice Department, doesn't want some citizen looking over their head and doing their job for them when they aren't doing it.
GRASSLEY: And a district judge in the mid-'80s, or maybe it was the late '80s, in, I think, a General Electric case someplace in Ohio -- when the Justice Department was trying to cut back the award that the relator was going to get, said to this Justice Department guy, "Don't you get it? You wouldn't even have a case if it wasn't for this whistleblower coming forward to make their statement and to make their case."
And, you know, it's grown into quite a thing now.
The only thing I regret about it -- there's a lot of lawyers that are tort attorneys out there getting rich off of it, but there's also a lot of coming in to the federal treasury. And about 15 percent is what it would cost the federal government anyway to bring in the same amount of money if they prosecute it, but they won't prosecute it. And they don't know about all of it. And you've got to rely on the whistleblowers to get the information out there.
So when you're in your very private meetings that you have after you get on the Supreme Court and you're talking about these things, I hope you'll remember that this was meant to serve a worthy purpose, is serving a worthy purpose. And I'd like to have you look at it in a very unbiased way.
I reserve the rest of my time.
SPECTER: Judge Alito, Senator Grassley's going to follow that up with a strong letter.
GRASSLEY: The chairman remembers we even had to subpoena William French Smith one time in this whole process.
LEAHY: Chuck, I think we know where you stand on this.
SPECTER: To use a little bit more of my time, Senator Grassley did more than subpoena Attorney General William French Smith; he started proceedings to hold him in contempt.
And that was at about a time when Attorney General Smith was inviting some members of the Judiciary Committee to have lunch. And he was very dour during the entire lunch as far as his attitude toward me and I found out why at the end of the lunch: He wanted to know why I wanted to hold him in contempt. He'd insulted Senator Grassley to the nth degree by confusing me with him.
Tell your Anita Hill story, Chuck.
GRASSLEY: Well, just to show you how they get mixed up, you know, he asked the questions of Anita Hill and I was sitting behind him, or beside him very quietly because only two Republicans were going to ask questions.
And I went back to my constituency and everybody said to me, "You were awful to Anita Hill. You just treated her awful," because they got me mixed up with him.
SPECTER: Wait. I didn't know you're going to tell that part of the story.
GRASSLEY: I thought that's the only part we talked about.
SPECTER: We're just trying to use a little time over here to give you just a little respite from the...
LEAHY: Fortunately, none of this is on television so nobody knows what we're saying here on this story.
SPECTER: Senator Feingold, you haven't told me how much time you'd like to have.
FEINGOLD: I think 25 minutes with flexibility. Maybe I won't have to use it all.
Set the clock at 25 minutes.
And you're recognized, Senator Feingold.
FEINGOLD: Thank you, Mr. Chairman.
Good morning, Judge. It's nice to talk to you in the morning for once.
And, thank you, Mr. Chairman, for the opportunity to ask a third round of questions. And I do appreciate the latitude on the time, if it's necessary.
First, Judge, I want to thank you for arranging to have put together the list of people who participated in your practice sessions.
I'm going to say that I am still somewhat troubled by the idea that you were prepared for this hearing by some lawyers who were very much involved in promoting the purported legal justification for the NSA wiretapping program.
Obviously, this issue of presidential power is so central to this hearing. In fact, my first questions will also be about this as well.
I note, for example, that one of the people who participated in these sessions was Benjamin Powell.
FEINGOLD: He recently advised President Bush on intelligence matters and was just given a recess appointment as general counsel to the national intelligence director.
I also see the name of White House Counsel Harriet Miers on the list. And she, obviously, is involved in the president's position on this matter.
So I'm just going to continue to think about this issue. And I hope that you and the department will, too. I think you would agree that at some point, in a situation like this, an ethical issue could arise.
Let me go back, though, to what many senators have asked you about, including most recently Senator Feinstein. I want to try again to clarify this issue of the constitutional authority of the president to violate a criminal statute.
You've said repeatedly that the president is not above the law. But you've also been careful to qualify this statement by saying that the president must always follow the Constitution and laws that are consistent with the Constitution. And that statement sounds good until you look at it real closely.
After all, everyone agrees that the president must follow constitutional laws. The question is whether presidents can claim inherent power under the Constitution that allow them, in certain cases, to violate a criminal law.
And your formulation seems to leave open the possibility that the president can assert inherent authority to violate the criminal law and still be following -- to use your words -- the Constitution and laws that are consistent with the Constitution.
So I'd like to ask you -- assuming that you've already done phase one, step one, the statutory analysis -- in your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?
ALITO: I do not think I would separate the constitutional questions into categories. I think it follows from the structure of our Constitution that the Constitution trumps a statute. That was the issue in Marbury v. Madison. It would be rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress. It would be a very rare example...
FEINGOLD: But it is possible, based on your answers, that a statute that has been determined, standing on its own to be constitutional, could in theory run in some conflict with an inherent, as you would say, constitutional power of the president, which in theory, even under Justice Jackson's test, could trump the seemingly constitutional criminal statute -- is that correct?
ALITO: I'm not sure what standing on its own means there. Somebody gave an example in a Law Review article I remember reading of a statute that said that a particular named individual was to be immediately taken into custody by federal law enforcement agents and taken immediately to a certain place to be executed.
Would the president be bound, under his responsibility to take care that the laws are faithfully executed, would the president be legally obligated to do that, even though it flies in the face of some of the most fundamental guarantees in the Constitution?
I think we would all say in a situation like that, no, the Constitution trumps the statutory enactment.
FEINGOLD: But it is possible under your construct that an inherent constitutional power of the president could, under some analysis or in some case, override what people believe to be a constitutional criminal statute?
ALITO: I want to be very precise on this. What I have said -- and I don't think I can go further than to say this -- is that that situation seems to be exactly what is -- to fall exactly within that category that Justice Jackson outlined, where the president is claiming the authority to do something, and the thing that he is claiming the authority to do has been explicitly disapproved by Congress.
ALITO: So his own taxonomy contemplates the possibility that -- says that there is this category, and cases can fall in this category. And he seems to contemplate the possibility that that might be justified.
But I don't want to even say that there could be such a case. I don't know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don't think I can go beyond that.
FEINGOLD: I understand that's been your position. I've heard the repeated references to Justice Jackson's test. But all that test says in the end is that the president's power is at the lowest ebb at that point. And I understand, and obviously have enormous regard for Justice Jackson and that opinion in particular.
But I think in this time it leaves me troubled. I'm concerned that if we're simply going to rely on that in the end without getting a better sense of where you might come down in these kind of matters, that it really goes to the very heart of our system of government.
And if somehow that -- even if the president's power is at a very low ebb at that point, I think it still leaves open the possibility of enough ambiguity and vagueness that it could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government.
ALITO: Well, Senator, this is a momentous constitutional issue. It is the kind of constitutional issue that generally is not resolved -- well, let me say this. It often comes up in a context that is not justiciable.
But I think it would be irresponsible for me to say anything on the substance of the question here.
ALITO: And by not saying it, I don't mean to suggest in any way how I would come out on the question. I don't mean to suggest there could be a case where it would be justified or not.
Particularly, on an issue of this magnitude, I think anybody in my position can say no more than, "This is the framework that the Supreme Court precedents have provided for us. And when the issue comes up, if it comes up, if it comes before me, if it is justiciable, I will analyze it thoroughly." And that's all I can say.
FEINGOLD: And I respect your constraints in this regard.
And, frankly, this isn't so much about you or your appointment. This is about the possibility that you've raised that this may not be justiciable, which is going to be a very serious problem for our system of government if the United States Supreme Court cannot help us resolve these issues because of justiciability issues.
At a time of crisis like this in terms of the fight against terrorism, I think it raises one of the most important issues in the history of our country's constitutional debate. I don't think you disagree with that. But it really troubles me that the Supreme Court could possibly not help us resolve this.
ALITO: And I don't I want to suggest that it is or is not justiciable. We would look to the Baker v. Carr factors.
And that's something else that it would be very irresponsible for me to express an opinion on in this forum. And I want to make it perfectly clear that I'm not doing that.
FEINGOLD: Do you think it could ever be constitutional to admit evidence obtained by torture against an individual who is being charged with a crime?
ALITO: Well, the Fifth Amendment prohibits compelled self- incrimination. And it's long been established that evidence that is obtained through torture is inadmissible in our courts. That's the governing principle.
FEINGOLD: I take that answer to mean it could not be constitutional to admit evidence obtained by torture against someone accused of a crime.
ALITO: In all the contexts that I'm familiar with, that would be the answer.
FEINGOLD: Thank you for that answer.
I want to follow up on one question that Senator Leahy asked this morning about the constitutionality of executing an innocent person.
You said that the Constitution, of course, is designed to prevent that. We all agree on that.
But let's say that the trial was procedurally perfect and there were no legal or constitutional errors, but later evidence proves that the person convicted was unquestionably innocent. Does that person have a constitutional right not to be executed?
ALITO: The person would first have to avail himself or herself of the procedures that Congress has specified for challenging convictions after they've become final.
If this individual has been convicted and has gone through the whole process of direct appeal, either in the state system or in the federal system, then there are procedures. States have procedures for collateral attacks and there are procedures under federal statutes for collateral attacks on federal conventions and on state convictions. And the person would have to go through the procedures that are set out in the statute.
And the system is designed to prevent a person from being executed if the person is innocent. And actual innocence figures very importantly even in these sometimes complex procedures that have to be followed in these collateral attacks.
For example, usually, there's this doctrine of procedural default, which is not something that ordinary people are familiar with, but it means that if a state prisoner is challenging a state conviction, the state prisoner has to take advantage of the procedures that are available under state law.
ALITO: And if the state prisoner doesn't do that...
FEINGOLD: My question assumes that all that's been done and the process went through and there's no legal or constitutional or procedural problems, but evidence suddenly proves that the person convicted was unquestionably innocent.
The question is: Does that person in that posture have a constitutional right not to be executed?
ALITO: Well, then the person would have to, as I said, file a petition. And if it was an initial petition, it would fall into one category. If it was a second or a successive petition, it would fall into another category and the person would have to satisfy the requirements the Congress has set out for filing a second or successive petition.
FEINGOLD: You can't say that the person has a constitutional right not to be executed?
ALITO: Well, I have to know the specific facts of the case and the way it works its way through the legal system. The rules here are complicated. A person has a right. It is one of the most fundamental rights that anybody has. It is a fundamental right and a fundamental objective of our judicial system that nobody is to be convicted without proof beyond a reasonable doubt.
And if there's evidence that the person is not guilty of the offense, then that gets to the very heart of what our whole system of criminal justice is designed to address.
FEINGOLD: I'll stop on that topic.
But, you know, I think there's a real question here simply because somebody is adjudicated guilty but they are, in fact, innocent -- I would take the view that they still have a constitutional right not to be executed.
But I'm glad we could talk about that a bit.
We talk about affirmative action. In her opinion in Grutter v. Bollinger, Justice O'Connor recognized the, quote, "real-world significance and impact of affirmative action programs and policies." And she noted that American businesses need skills obtained through exposure to widely diverse people and cultures. A racially diverse officer corps is essential to the military's ability to fulfill its mission to provide national security. And diversity in colleges and university leads to diversity in civil society, which is, quote, "essential if the dream of one nation indivisible is to be realized," unquote.
Justice O'Connor expressly gave great weight to the views of military leaders who said a highly qualified, racially diverse military is essential.
How much weight would you give to that view?
ALITO: Well, I can speak to the issue of diversity in education from a little bit of my own experience.
A couple of years ago, as an adjunct law professor at Seton Hall Law School, I taught a seminar on civil liberties and terrorism. Because in the wake of the terrorist attacks on 9/11, it became apparent to me that there were going to be a lot of civil liberties issues raised, it seemed to me that these were issues of the utmost importance, so I put together a seminar on the question.
And the first time I conducted the class, we had a class with people of extremely diverse backgrounds relating to this issue. There was a student who had been in the special forces in Bosnia. There was a student who was a Muslim from the Middle East.
ALITO: There were a number of students who had been personally affected, in one way or another, by the terrorist attacks on the World Trade Center. There were students who felt very strongly about civil liberties.
And having these people in the class with diverse backgrounds and outlooks on the issues that we were discussing made an enormous contribution to the class.
So in that setting I have personal experience about how valuable having people with diverse backgrounds and viewpoints can be.
And the Supreme Court has expressed the view that diversity is a compelling interest, having a diverse student body is a compelling interest. Justice Powell voiced that back in the Bacci case, and it's been reiterated in a number of cases, and, most prominently, most recently in the Grutter case.
FEINGOLD: Yes, in fact, in Gratz and Grutter, seven of the nine justices -- all but Justices Scalia and Thomas -- reaffirmed Justice Powell's determination of the Bacci case that the state has a compelling interest in promoting diversity in the classroom.
Do you think that increasing diversity in the classroom is a compelling state interest?
ALITO: Well, I've spoken to my own personal experience about its importance in education. And Grutter is a precedent that directly addressed this issue, and Gratz, in the context of education. And it's the Supreme Court's recent word on this issue.
FEINGOLD: I hope you'll think it fair that nothing about what you just said would suggest to me that you think it's anything less than a compelling state interest.
ALITO: It's a precedent. And the Supreme Court has dealt with this over a time, and that's the conclusion that they've drawn.
FEINGOLD: Do you believe -- on another subject -- that Congress has the power under the Constitution to prohibit discrimination against gays and lesbians in employment?
ALITO: I can't think of a reason why Congress would not have that power, but I would have be presented with the arguments.
2001, you wrote an opinion overturning a public school district's anti-harassment policy that protected, among other people, lesbian and gay students. You said the school policy in the case Saxe v. State College Area School District violated the First Amendment.
The case was brought by students who believed that the policy interfered with their ability to speak out against the, quote, "sinful," unquote, nature and harmful effects of homosexuality, as compelled by their religion.
In your Senate questionnaire, you note that you won the Family Research Council Golden Gavel Award in 2001 for your decision striking down that policy. The Family Research Council is a leading conservative group that opposes gay rights.
In order for a policy protecting gay students from harassment to pass constitutional scrutiny, must it have an exception for harassment motivated by religious belief?
ALITO: Let me say what was at issue in the Saxe case, because that is the context in which I dealt with issues like this.
The Saxe case involved a very broad anti-harassment policy that had been adopted by a school district. It not only prohibited the expression of political viewpoints, but it went so far as to say that just about anything that any student would say about another student that would be offensive to that student, including comments on the way the student dressed or the things that they liked to do, would be a violation of the anti-harassment policy.
ALITO: And under the First Amendment, unlike in most other areas of the law, statutes can be challenged on overbreadth grounds. And that was the ground on which the statute was struck down in the Saxe case, that it was overly broad, that it prohibited a great deal of speech that was constitutionally protected.
The Supreme Court decided back in the Tinker case that students don't lose all of their First Amendment rights to freedom of expression when they enter the school grounds.
And Justice Brennan's opinion in that case set out the test that is to be applied there. The schools have greater ability to regulate student's speech than government has to regulate adult speech in general. But the authority of school officials to regulate the political speech by students -- in Tinker it was the wearing of an arm band to protest the war in Vietnam -- is not unlimited and there has to be a threat of disturbance on the school grounds or a violation of the constitutional rights of another student.
And so, any policy that regulated student expression, political expression in a school, would have to satisfy Justice Brennan's Tinker standard.
Does Congress have the authority to enact legislation that would protect gay students of harassment in schools that receive federal funding?
ALITO: That would fall within the South Dakota v. Dole standard, and the question would be whether the condition that's attached to the receipt of the federal funds is germane to the purpose of the funding, and that's a standard that gives Congress very broad authority.
FEINGOLD: So the Congress does have the authority in general; the question would be scope of it?
ALITO: Congress has the authority to attach all sorts of conditions to the receipt of federal money. It has to be clear so that the states understand what they're getting into, that if you take this money, there are conditions that go with it -- but provided that that clear statement requirement is satisfied, and provided that the condition is germane to the purpose of the funding, then Congress can attach conditions and it could do so in this area.
FEINGOLD: Judge, let me switch to an ethics issue that is not Vanguard. As you know, after your testimony concludes today, a number of outside witnesses are coming to testify about your nomination, including seven current and former judges from your court.
As far as I know, this is the first time that sitting federal judges have testified on behalf of the Supreme Court nominee. And I'm a little troubled by it. I hope to have some opportunity to question the judges about this, but I think it may raise something of an ethical issue for you.
If you are confirmed to the Supreme Court, how would you analyze a possible recusal motion if an appeal on a case from one of those sitting judges testifying on your behalf were to come before you? Will you have to recuse yourself from any case where one of these judges was involved in the decision?
ALITO: That's not a question that I've given any thought to before this minute, Senator, so I don't know that I could answer it and I would want to answer any recusal question very carefully.
FEINGOLD: Perhaps you could give me an answer after you've had a chance to think about it?
ALITO: I would certainly be happy to do that.
Well, Mr. Chairman, I think that is sufficient. Thank you very much.
SPECTER: Thank you very much, Senator Feingold.
We are on course to finish you before lunch time, Judge Alito. We have more potential questions from the Republican side, and we have two more Democratic side.
Senator DeWine, do you have any questions?
DEWINE: Mr. Chairman, I'll reserve my time.
SPECTER: Senator DeWine reserves his time.
SPECTER: Senator Schumer, you're recognized for up to 25 minutes.
SCHUMER: Thank you, Mr. Chairman.
SPECTER: With our conversation that you're going to ask new questions...
SCHUMER: That's what I want ask. But...
LEAHY: It's a new day.
SCHUMER: But I think some of my old questions, the ones I've asked before, should bother you. They bother me.
But, in any case, I do have a few other issues that I do want to talk to you about. But, first, there's just a general question on presidential power.
Let's just assume that it was found that the president's right to wiretap people, the way we're discussing it now in terms of the recent NSA revelations, was found constitutional.
Would there be a different standard if, say, the president -- does that necessarily allow the president to then go ahead and go into people's homes here in America, American citizens, without a warrant?
Does the one necessarily lead to the other?
ALITO: I would have to understand -- I would have to see the ground for holding the wiretapping or the electronic surveillance constitutional before seeing whether it would apply in the case of other searches and seizures.
SCHUMER: But let's assume it is constitutional.
ALITO: I'd have to know what the arguments were made about it and on what ground was found to be constitutional.
SCHUMER: So, it could follow, but might not? Is that what you are saying?
ALITO: It very well might not. I would have to know the constitutional grounds for the decision relating to the wiretapping and I have no idea what that would be.
It may well not extend to things like physical searches of homes.
SCHUMER: Is there a difference? Is there a constitutional difference between a wiretap and an actual physical search of the home on Fourth Amendment grounds? Is there any that you know in the cases?
ALITO: There are differences. Yes, there are certainly are.
ALITO: General criminal wiretapping is subject to all the rules that are set out in Title III, which are thought to be based in large part on Fourth Amendment requirements. And the warrant requirement is very strong in the area of electronic surveillance.
When you're talking about other types of searches, the searches can take place in a variety of places for a variety of reasons.
SCHUMER: But if it can be done under the inherent power that the president has for the one, why couldn't it be done for the other? I'm not asking about the statute.
ALITO: There's also a Fourth Amendment issue.
ALITO: In both cases. And the Fourth Amendment could play out very differently in those two contexts.
SCHUMER: Now I'd like to go back to some of the line of questioning that Senator Durbin explored yesterday when he mentioned the crushing hand of fate: Bruce Springsteen.
Judge Alito, I assume you believe that you will be able to be fair in every case that comes before you on the Supreme Court.
ALITO: I have no reason to think I will not be. I certainly will.
SPECTER: And you don't believe that you prejudged any legal or constitutional issue?
ALITO: I don't believe that I have.
SCHUMER: And you'll take care to apply the rules of law and procedure equally and evenhandedly no matter who the parties are, prosecution or defense?
ALITO: Certainly will, yes, Senator.
ALITO: I will apply the laws evenhandedly to everyone.
SCHUMER: And I take it you believe that you've done just that on the 3rd Circuit while you were there.
ALITO: I believe I have.
Now, yesterday, Senator Durbin asked about Pirolli v. World Flavors, and you remember that case. You discussed it with Senator Durbin.
And the case involved the claims of a mentally retarded man who brought suit against his employer for violent and persistent sexual harassment by his coworkers.
ALITO: Those were the claims, yes.
SCHUMER: And the majority allowed the case to proceed, finding that the court had, quote, "discretion to consider issues not raised in the brief." And they did so to give the plaintiff his day in court. You exercise your discretion to vote against giving him his day in court because his lawyer failed to raise the argument in the brief.
As you told Senator Durbin, "There is a very important principle involved in appellate practice" -- these are your words -- "I think it goes with the idea of judicial self-restraint. And that requires parties raise issues in the trial court, and that if they do not raise the issue in the trial court, then absent some extraordinary circumstances, they should not be able to raise the issue on appeal, and that was the principle there."
Those are your words. Right?
ALITO: I believe they are. Yes.
SCHUMER: OK. Now I'd like to go to two other cases that you had when you are on the 3rd Circuit. The first one is Smith v. Horn, where a similar issue arose. That was a criminal case involving a habeas corpus petition brought by a criminal defendant, right?
SCHUMER: And it turns out that in that case as well, just like Pirolli, one of the parties had failed to raise a relevant argument in its brief, right?
ALITO: Smith v. Horn was really not comparable to Pirolli, for a very important reason. Smith v. Horn was a habeas case. And so what is involved there is not simply a dispute between private parties -- and of course disputes between private parties are very important and individual rights can dissolve...
SCHUMER: I understand it's a government case. Let me just make -- I'm going to let you answer it. I just want to make the point here so everybody can understand. The majority in Smith v. Horn to say -- this time it was the government had failed to raise the issue in the district court brief. This time you were prepared to excuse that failure. This time you felt it was appropriate to consider the issue on your own.
I am at a loss to understand the difference. I'm going to give you a chance to explain, but I want to read what the majority in Smith v. Horn had to say about your indulgence of the government for failing to bring up an issue, just as the retarded person in that case did.
They said: "Where the state has never raised the issue at all, in any court, raising the issue ourselves puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates."
SCHUMER: So as far as I can see, the legal principle and procedural rule in each case was precisely the same. The only difference being that the first was a sexual harassment plaintiff who left out an argument, and in the second it was the government who did.
In the first case, you said to that retarded individual, "Sorry, you're out of luck." In the second case, you said to the government, "I'll make your argument for you." And that doesn't seem even handed to me.
Can you explain the difference, please?
As I was attempting to explain a couple of minutes ago, there is an important principle called the principle of comity that is involved in habeas cases. And it goes to a critical part of our concept of federalism, and it's something that Congress itself has very strongly recognized in the habeas corpus statute.
What I'm talking about there is the doctrine of procedural default, which is very closely related to the doctrine of exhaustion. They go hand in hand.
And what Congress has said in the Anti-Terrorism and Effective Death Penalty Act of 1996 is that on the issue of exhaustion, the court has to consider that even if the parties don't raise it.
SCHUMER: Now, that applies to the government as well as to the defendant?
The issue of exhaustion must be considered by the federal habeas court, even if the state prosecutor does not raise the issue of exhaustion. And why did Congress say that?
Congress said that because there's something more involved here than a dispute between the state prosecutor and the habeas petitioner; there is respect for the federal system of government involved. There is respect for the state court system involved.
SCHUMER: But the majority didn't agree with you in that situation, did they?
ALITO: The majority -- but what I'm saying, Senator, is that the underlying principle of comity makes this case, makes Smith v. Warren quite different from a dispute between private parties. Now, the Supreme Court has said that it is appropriate in certain circumstances for the court to consider procedural default sua sponte, and that's what I thought we should do there.
SCHUMER: Let me ask you -- I understand your explanation.
SCHUMER: I'm not sure I agree with it. But let me go on to another one. This is Dillinger.
In this case, it was with a corporation. The case is Dillinger v. Caterpillar. And it's also a case where a party didn't raise an issue at trial -- won't have the same explanation as the habeas case, obviously.
They didn't raise the issue at trial or on appeal -- this time the large company didn't: Caterpillar. And the majority held that it waived, and it sided with the plaintiff who was seriously injured in the accident, right?
ALITO: I don't have a recollection of all the facts...
SCHUMER: OK, well, let me tell you -- maybe this'll refresh your recollection.
The majority wrote that it was not appropriate to exercise its discretion -- again it was the majority -- to excuse the defendant companies waiver when the consequence of the decision would be to deprive a seriously injured plaintiff of a trial in conformity with applicable law. That's the majority.
You dissented, with the result, had you prevailed, that the accident victim's case would have been over.
The majority describe your approach as follows. Quote: "There is an insurmountable procedural difficulty with Judge Alito's position. Caterpillar never advanced this argument at trial, an oversight that Judge Alito excuses on a ground that a district court decision may be affirmed on an alternative ground, though not advanced at trial."
So in the Dillinger case, you also thought it was appropriate to use your discretion to excuse Caterpillar, isn't that right?
ALITO: Well, I'd have to refresh my recollection about exactly what was involved in the case.
SCHUMER: Can you explain the difference between the two for us; why in one case it was OK and why in another case it wasn't?
ALITO: Senator, I'd have to refresh my recollection of Dillinger.
But what you've just mentioned relates to the principle that it is appropriate for an appellate court to affirm a decision of a lower court on an alternative ground when the basis for that is apparent from the record of the case.
So if the facts -- if it's a purely legal issue, for example, and you're talking about whether you're going to affirm or whether you're going to reverse...
SCHUMER: But was that the case in Dillinger?
ALITO: Well, without refreshing my recollection, I wouldn't be able to say.
ALITO: But what you read to me...
SCHUMER: I would posit to you that, again, it was an example of your seeming to have more sympathy for a certain type of plaintiff than another.
The transcript continues in Part II.
Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved
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JANUARY 12, 2005 SPEAKERS: U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
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GOP Contest Guided by Lessons of Battles Past
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When the House speaker's job opened up in 1998, Rep. Christopher Cox (R-Calif.) -- a telegenic policy intellectual from the nation's most populous state -- seemed like a logical candidate. Cox certainly thought so. He brooded over his options and mused about a possible run on CNN.
But while Cox was in the studio, J. Dennis Hastert was winning the cloakroom. With powerful backing from Rep. Tom DeLay (R-Tex.), Hastert -- a decidedly untelegenic, nuts-and-bolts pol from small-town Illinois -- was working the phones, cutting deals and forming alliances. Within hours, he locked down the most powerful job in Congress.
DeLay's decision to give up the majority leader's post for good has thrown the House into its first leadership race since 1998, and the lessons of the Hastert episode still echo. Congressional leadership contests, in which politicians are both the candidates and the voters, are a special kind of art form.
Though hundreds of the 435 House members probably have the ambition to lead the chamber, only a few have the right combination of personal relationships, tactical smarts and mettle to make it happen. Those who have what it takes routinely jump the line over much more senior colleagues in a way that was uncommon in earlier eras.
The first rule of leadership races, several lawmakers said, is that fortune favors the bold. Reps. John A. Boehner (R-Ohio) and Roy Blunt (R-Mo.), the acting majority leader, barely waited for the ink to dry on DeLay's farewell letter earlier this month before jumping into the race for the second-ranking job.
A quick start allows the aspirants to start locking up votes, cutting deals and discouraging others from running, as Hastert did in his 1998 triumph. It also gives them a head start in digging up unfavorable information on the their opponents, which sources said both the Blunt and Boehner camps are doing aggressively.
Rep. John Shadegg (R-Ariz.) did not get in early but is considering a bid -- hoping he can shake up the race by casting himself as a reform-minded alternative to Blunt and Boehner, both of whom have extensive ties to lobbyists.
The quick-start strategy appears to be working best for Rep. Eric I. Cantor (Va.), a conservative from Richmond who was the first to enter the race for majority whip -- the third-ranking GOP post, with responsibility for counting votes and keeping members happy. Cantor, who arrived in the House just five years ago, had a detailed plan in place long before DeLay stepped aside, and he implemented it immediately. Three potential rivals were still deliberating, to their apparent detriment.
"There are a lot of people in leadership just because they were the first in," said former congressman Vin Weber (R-Minn.), who ran Newt Gingrich's first leadership-election bid in 1989.
But the quick entrance must be done with tact, lawmakers said, in this case by praising DeLay's tenure, informing Hastert and emphasizing publicly that the campaign is about saving the GOP caucus, not satisfying personal ambitions.
The most important factor in leadership races is that the logic of general elections -- in which candidates often vie to claim the center -- does not apply. The GOP conference is dominated by antiabortion, anti-gay-rights, pro-tax-cuts and pro-military members, who demand the same of their leaders. So the 30 or so moderate Republicans in the caucus need not apply in most cases.
In the opening hours of the race for majority leader, Boehner and Blunt argued over who is the more purebred conservative. Blunt's allies whispered about Boehner's prominent role in passing the No Child Left Behind Act, which many conservatives deride for its expansion of the federal role in local education and its high price tag. Sensitive to this charge, Boehner told members he was more committed than the current leaders to ending pork-barrel spending.
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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Aspiring House Leaders Cite Support
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Rep. Roy Blunt of Missouri claimed yesterday to be within striking distance of the support needed to permanently succeed Tom DeLay as majority leader, but opponent John A. Boehner of Ohio said his vote count was building almost as rapidly.
As the two announced candidates traded barbs and sought to build momentum, a third Republican, Rep. John Shadegg of Arizona, weighed whether to join the race as a reform candidate who is not as closely tied to the lobbying community as Blunt and Boehner.
"I am convinced we need to change and change dramatically," Shadegg said. "We need to examine ourselves and the scandals that have hit Washington."
House Republicans have battled a series of ethical problems in recent months, culminating with last week's guilty plea by high-profile lobbyist Jack Abramoff and DeLay's formal resignation on Saturday from his leadership post. The Texas Republican had been on leave pending the outcome of an unrelated campaign finance charge in Texas. Abramoff, a close DeLay friend, is cooperating with prosecutors in a broader corruption investigation that could touch several members of Congress.
Abramoff's large political network extended to many members of Congress, including Shadegg, a conservative better known as a policy expert than as a political operative. On Dec. 3, Shadegg's office returned or donated $6,900 in contributions from an Indian tribe and other sources connected to Greenberg Traurig, the law firm where Abramoff once worked. None of the money came directly from Abramoff, Shadegg spokesman Michael Steel said.
"Congressman Shadegg has never taken a dime from Jack Abramoff. He's never met Jack Abramoff," Steel said. He said the donations were discovered after the congressman directed his campaign staff to scour campaign-contribution records "to determine if there was anything with the appearance of a connection."
Democrats are trying to draw a broad portrait of immorality and corruption resulting from a decade of unchecked Republican House rule. "As far as distancing themselves from Congressman Tom DeLay, they almost have to distance themselves from themselves, because the Republican Caucus has been fully complicit with this culture of corruption," said House Democratic Leader Nancy Pelosi (Calif.), who called yesterday for the House ethics committee to examine various allegations of Abramoff-related abuses.
Blunt, the House majority whip who has been filling in for DeLay as majority leader, said yesterday that he has lined up more than 100 commitments from fellow GOP lawmakers, just shy of the 116 needed to win the leadership race that is scheduled to take place Feb. 2.
In a news release headlined "Blunt Nears Finish Line," Blunt said he would "work aggressively in the next few hours and days to build on these commitments and to reach out to each of my colleagues."
Boehner spokesman Kevin Smith fired back that "Team Boehner" counted 90 members. "Almost three days ago, the Blunt camp was boasting he would go over the top within the next several hours," Smith said. "That was three days ago, and they're only able to claim 100-plus supporters without naming them." But many of Boehner's supporters also have not yet publicly declared.
There are two broad constituencies that candidates seek in House leadership races: state delegations and ideological groups. The key is to win support from key members in different factions, who have the influence to bring others along.
Blunt, for instance, has targeted Florida, signing up at least 10 of the 18 Republicans from that state's GOP delegation, according to a list of supporters distributed by his office. One of the lawmakers is Rep. E. Clay Shaw Jr., a senior Republican in the Florida delegation, who hopes to succeed Rep. Bill Thomas as Ways and Means Chairman when the powerful Californian -- who has not declared a preference -- gives up to the post because of term limits after the 2006 election.
Both candidates include several Texans on their list, but at least a dozen Texas Republicans will decide later this month whether to endorse one or the other as a bloc, according to local news reports. Blunt and Boehner also appear to be splitting moderate voters, with Reps. Michael N. Castle of Delaware and Wayne T. Gilchrest of Maryland appearing on Boehner's list, and Blunt lining up Nancy L. Johnson and Christopher Shays, both of Connecticut.
Two critical factions are barely represented on either lawmaker's list: Western states and the Republican Study Committee, a group of 100-plus conservatives. Both are considered potential power bases for Shadegg, who hails from the West and who chaired the Conservative Action Team, an RSC precursor. Senior GOP House aides said the RSC is expected to endorse a candidate after its retreat at the end of January, when members of the group are hoping to interview the contenders.
Shadegg acknowledged that "there certainly is a bloc of members out there who are looking for an alternative" but stressed that he lacked the political networks of two declared candidates. "I was never going to be competitive with Blunt or Boehner in jumping into this race with a team of people to whip votes," Shadegg said. But he added: "Do either one of the candidates sufficiently recognize that we need to change? At the moment, I'm not convinced either one of the two have."
Staff writer Jonathan Weisman contributed to this report.
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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After Handover, Hussein Palaces Looted
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BAGHDAD, Jan. 12 -- On Nov. 22, the top U.S. military and civilian leaders in Iraq handed over Saddam Hussein's most lavish palace compound to the safekeeping and control of the new Iraqi army and government, in a ceremony whose intended symbolism was as impossible to ignore as the military brass band.
"The passing of this facility is a simple ceremony that vividly demonstrates the continuing progress being made by the Iraqi government and their people," said Col. Mark McKnight, commander of 1st Brigade Combat Team, 3rd Infantry Division, who handed the keys to the palaces to the governor of Salahuddin province.
But in the days after American forces and the Iraqi brass band pulled out of the circular palace drive on a bluff overlooking the Tigris River, local officials now say, looters moved in, ripping out doors, air conditioners, ceiling fans and light-switch plates from some of the compound's 136 palaces, leaving little more than plaster and dangling electric wires.
The culprits are some of the same Iraqi security forces and officials to whom Americans transferred control, police and the governor say.
"Thank God we were able to save the walls from the looters, because everything else was stolen," Gov. Hamed Hamood Shekti said by telephone.
Shekti, like police officials, blamed Iraqi soldiers at the palaces and his own deputy. "The palace was turned over to the Iraqi army units in the presence of Deputy Governor Abdullah Naji Jabara," he said. "Two weeks later I heard the place was looted. Now who can I accuse of the looting?"
Iraqi army commanders in and around Tikrit could not be reached by telephone for comment. Local authorities said Jabara had left on a pilgrimage to Mecca and could not be reached either.
The full extent of the alleged looting could not be determined. A provincial police commander, Lt. Col. Mahmud Hiazza, said soldiers and officials stripped at least some palaces that had been occupied by U.S. officials. "Also, there were some palaces not occupied by Americans," he said. "Even in those palaces, everything was gone."
A trip to one of the palaces appeared to substantiate the allegations. A witness, visiting one palace now used by Iraqi police, found officers working in offices stripped of their baseboards and doors, with holes where some air conditioners had sat and plaited wiring in place of electrical switches.
According to local officials, the Iraqi troops responsible for the alleged pillaging came from elsewhere, including the northern city of Mosul.
Over several days after the transfer of control from U.S. to Iraqi hands, furnishings from the palaces turned up in one local market for sale by the truckload, said a Tikrit resident, Rashid Juburi.
U.S. military spokesmen, some expressing surprise, said this month that they had not known of the alleged looting spree after the handover. They stressed that the Tikriti palaces, after Baghdad's Green Zone the most prominent U.S. installations eventually slated for return to Iraqi authority, were no longer U.S. troops' concern.
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BAGHDAD, Jan. 12 -- On Nov. 22, the top U.S. military and civilian leaders in Iraq handed over Saddam Hussein's most lavish palace compound to the safekeeping and control of the new Iraqi army and government, in a ceremony whose intended symbolism was as impossible to ignore as the military brass...
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Iran Threatens to Block U.N. Inspections
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PARIS, Jan. 13 -- Iran threatened Friday to block U.N. inspections of its nuclear facilities and end all voluntary cooperation if it is referred to the U.N. Security Council as the long confrontation over Iran's nuclear program escalated.
Iranian Foreign Minister Manouchehr Mottaki, quoted by the state-run news agency IRNA, said 2 1/2 years of talks over Iran's nuclear issue would then end. He said it is up to France, Britain and Germany to make that decision.
"The Iranian government will have to stop all its voluntary cooperation with the U.N. nuclear watchdog" if the case is referred to the United Nations Security Council, Mottaki said. Mottaki insisted that Iran's "right to access nuclear technology is not associated with the will of any particular country." Last year, Iran's parliament passed a law mandating that cooperation with the International Atomic Energy Agency, the U.N.'s nuclear watchdog, be terminated if it was sent to the Security Council.
Iran's latest threats came one day after the foreign ministers of Britain, Germany and France called for Tehran to be referred to the Security Council for violating its nuclear treaty obligations, saying that their long negotiations reached a dead end this week when the Iranians resumed enriching uranium.
The issue came to a head Tuesday when Iran, under the supervision of inspectors from the IAEA, broke the agency's seals on a nuclear plant in Natanz to resume uranium enrichment research. Highly-enriched uranium can be used to produce nuclear bombs.
In Washington, Secretary of State Condoleezza Rice also endorsed a Security Council referral. "There is simply no peaceful rationale for the Iranian regime to resume uranium enrichment," she told reporters Thursday.
But in a new sign of the twists and turns of this lengthy confrontation, U.N. Secretary-General Kofi Annan said that Iran's top nuclear negotiator, Ali Larijani, had told him Wednesday in a 40-minute telephone conversation that the Islamic republic was "interested in serious and constructive negotiations," but with a deadline. Annan said he would try to settle the dispute so that it would not reach the council.
U.S. and European officials suggested Larijani was trying to buy time by recycling arguments that failed during negotiations. The Iranians have said repeatedly since the summer that they want successful talks but only if the outcome ensures Iran could go forward with large-scale uranium enrichment.
Foreign Minister Mottaki told the state-run news agency Friday that Iran was prepared to continue talks if the European countries showed a "sensible attitude" toward what he called Iran's "right" to conduct nuclear research. He called for the three European countries to show "forbearance and patience."
In a news conference in Berlin, the three European diplomats said they would ask the board of the IAEA to convene an emergency meeting in Vienna and refer Iran to the Security Council, a major escalation in the world of diplomacy. Top diplomats from the E.U. countries, Russia, China and the United States will meet in London on Monday to discuss the timing of an IAEA meeting, which Western officials said could take place in about two weeks.
The European diplomats said in a joint statement that Iran had spurned all offers from the outside world for better relations in exchange for continuing to refrain from uranium enrichment activities.
British Foreign Secretary Jack Straw said that even the United States, which broke off relations with Iran in 1979 after students took over the U.S. Embassy in Tehran, had offered significant incentives. The United States agreed last spring to lift its embargo on the shipment of aircraft parts to Iran and to stop blocking its efforts to joint the World Trade Organization in exchange for Iran shelving its nuclear programs.
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PARIS, Jan. 13 -- Iran threatened Friday to block U.N. inspections of its nuclear facilities and end all voluntary cooperation if it is referred to the U.N. Security Council as the long confrontation over Iran's nuclear program escalated.
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Reggie Bush Decides to Turn Pro
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LOS ANGELES -- Reggie Bush was ready to bolt.
The decision to pass up his senior season at Southern California was a difficult one, but the Heisman Trophy winner said he's eager for a new challenge -- such as playing for a losing team.
The Houston Texans, coming off a 2-14 record and without a winning season in their four-year existence, own the No. 1 pick in April's draft. Bush could be their choice.
"If they were to pick me, I wouldn't have a problem with that. I'm just excited to have an opportunity to make my mark at the next level, just to play for an NFL team," Bush said Thursday at a news conference on campus.
"Whatever team I go to, whether it's the Texans or another team, I hope I can build the same kind of relationships that I did with my teammates here."
Bush is expected to be one of the first players taken in the draft -- with many projecting him to go first overall.
"He's such a special player, a once-in-a-lifetime talent," said USC coach Pete Carroll, a former head coach with the New York Jets and New England Patriots. "He's a game-changer, with his speed, instincts, vision and competitiveness. He's just so much fun to watch."
"He'll take that talent to the NFL and wow them there as a runner, receiver and as a returner. Now the Reggie Bush Show goes to Sundays, and I can't wait to watch him," Carroll said in a statement.
He was in Northern California to attend the funeral of the father of USC linebacker Rey Maualuga. Talatonu Maualuga died after a long illness.
Bush, who turns 21 in March, made his announcement a day after running mate LenDale White made his decision to leave school early to go to the NFL. The elusive Bush had been the Trojans' Lightning to the power-running White's Thunder in the USC backfield.
With quarterback Matt Leinart out of eligibility and Bush and White leaving early, All-America receiver Dwayne Jarrett will be USC's highest-profile offensive star going into next season.
Jarrett said it's hard to see Bush go.
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Running back Reggie Bush is skipping his senior season at Southern Cal to enter the NFL draft.
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Debating The Tissues: What Makes A Good Cry
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It was the context of the tears that surprised people -- in the midst of Wednesday's confirmation hearings for a Supreme Court nominee, a setting that could not be more rehearsed. We're not used to spontaneous expressions of emotion on C-SPAN.
It's a throwback, but men tend to get all rubbery when a woman cries. With tears, a woman is transported to the land-beyond-reproach. (The truth is, if Hillary had only cried a little, back during The Troubles, she might not be seen as the ice queen.)
Anyway, Martha-Ann Alito sniffles and steps out of the hearing room after her husband, Samuel Alito, has been interrogated by Democrats, and the next thing you know, the "Today" show is asking: "DEMOCRATS GONE TOO FAR?"
So here's the new Republican script: The Democrats are bullies. We wanted to ask Martha-Ann about that, so we caught her in a hallway of the Dirksen Building, coming out of a door labeled SENATORS & STAFF ONLY after her husband's questioning ended yesterday. She looked ecstatic, maybe because her husband's part in the whole thing was over. A couple of people came up and gave her hugs. We introduced ourselves.
"Next time," she said sweetly, as if there would be a next time, as if the committee's questioning hadn't just ended, as if she couldn't quite bring herself to say, N o .
The crying wife is sacrosanct, an argument-ender, and more than a little retrograde, which is why we think of "I Love Lucy," and Lucy dissolving into tears when Ricky wouldn't let her buy a new coat or some such thing.
Between the "bullying" Sen. Edward Kennedy and the "loving spouse of a smeared nominee, most American people would side with a loving spouse," says Ed Whelan, president of the Ethics and Public Policy Center, whom we found outside the hearing room.
On the other hand, said Ellen Murphy, listening to Air America on her headphones just outside the Hart Building, the reason the Democrats keep pounding at Martha-Ann's husband is " 'cuz the man won't answer."
The power of tears prompted lefty bloggers and Internet commentators to speculate that Martha-Ann might have faked them, that the tears were a "Rovian cue." Translation: She who cries, wins.
What are the rules about crying in public? Someone should figure these out, because we're stumped. Crying is seen as wimpy, unless it's seen as a sign of strength. Former congresswoman Pat Schroeder (D-Colo.), who memorably broke down upon announcing that she would not seek the Democratic nomination for president in 1988, leading to assumptions that she was too emotional, says that after the incident, she kept a file of all politicians who cried publicly.
"I never knew why it was a big deal that I cried, but not when Margaret Thatcher cried," she says.
Ronald Reagan used to tear up all the time, she points out, and that seemed to be okay. But 1972 presidential candidate Ed Muskie's misty-eyed appearance outside the Manchester Union Leader came to symbolize the decline -- and eventual demise -- of his once-front-running campaign. (Muskie, who died in 1996, later claimed that snow had blown in his eyes.)
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Science Club: Intelligent by Design
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The art nouveau logo over the door of the imposing brownstone on 19th Street NW says "Science Club." Passersby might wonder what lurks behind the heavy doors and etched glass windows -- a place where men and women in lab coats gather to discuss Newtonian physics or string theory? A debating society for biologists?
Not exactly -- it's downtown Washington's newest lounge and nightspot, but one that owner Steve Maguire hopes is a little more cerebral than most.
When he first looked at the building, Maguire explains, the facade reminded him of a turn-of-the-20th-century private club. "The facade looks like it's an institution, like we've been here for 100 years," he says. "I thought about the Cosmos Club, places like that. I wanted to open a bar where there's intelligent discussion about the news of the day."
A noble goal, but I have a theory that although Science Club (1136 19th St. NW; 202-775-0747) may appeal to those who want to ponder intelligent design and the size of finches' beaks over an imported ale, it will certainly attract a broader audience. Open since mid-December, Science Club draws ahead-of-the-curve DJs and women with high heels and tiny purses, as well as people who introduce themselves to the bartender as science teachers who stopped by because they heard about the name. Couples wander in at happy hour, dressed in their office suits, for glasses of house wine and cold $3 bottles of Yuengling, and perhaps a snack of hummus or baba ghanouj. Tables are hard to come by on weekends, and the dance floor fills as DJs spin forward-looking dubstep and broken beat records. The buzz of conversation fills the air.
I shouldn't be surprised -- Maguire knows a thing or two about Washington nightlife. He was the general manager at Chi-Cha Lounge when the couch-filled U Street bar arrived on the scene, and he stayed there for four years before helping owner Mauricio Fraga-Rosenfeld open the trendy Dupont lounge Gazuza.
After Gazuza, Maguire decided it was time to take a step up. "I wanted to be a sole owner," he says. "I went searching with no understanding of the D.C. real estate market. It took me two years. I got to a point where I was going to take the next place that came along."
Luckily, he found this four-level space, recently occupied by restaurants Thai Bistro and Star of Siam. Maguire and his designers have made the most of the narrow building. Science Club's decor is simple but as artfully distressed as a pair of $300 jeans from Denim Bar: walls that alternate between painted panels and whitewashed brick; shelves behind the bar that look as if they were hewn from the skeleton of the building; mahogany chairs have been violently "antiqued"; mismatched light fixtures shine down onto the polished hardwood floors.
In one of the few nods to the club's name, patrons at the bar sit on round metal stools rescued from some high-school chem lab -- the kind where, if it's too short, you spin the seat to raise it. A nearby chalkboard is available for computations as well as random graffiti.
Once you squeeze past the two-person booths hugging the walls near the entrance, things become a little more spacious. In the back, where tables are moved on weekends to create a makeshift dance floor, a long, low banquette snakes around three walls, and a table is hidden in a semi-private nook. Mirrors and a skylight combine to make it feel roomier than you'd expect, which is welcome when Roots and Zee of the ESL Records group See-I spin dub and funk on Wednesdays, or Digital K -- nephew of legendary DJ King Tubby -- takes over on Thursdays.
I prefer to hang out in the basement. Accessed separately from the street through a padded door -- look for the small sign that says "Bar" -- it seems like a holdover from Prohibition, thanks to low ceilings and sparse decor that is more "furnished cellar" than "finished basement."
Science Club is fairly egalitarian. There's no dress code, no cover charge, no private rooms or tables reserved for bottle service. "I've never been about VIPs and separation," Maguire says, though he admits he watches the door on weekends "to make sure the kids who go to [neighboring bar] Rumors and have 15 beers don't come in here and try to have their 16th."
Still, Science Club isn't cheap -- expect to pay $6 to $8 for a bottle of imported beer, and $10 or more for the large appetizer dishes. Service is hit-and-miss, with attentive waitresses one visit followed by scatterbrained service the next time.
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The art nouveau logo over the door of the imposing brownstone on 19th Street NW says "Science Club." Passersby might wonder what lurks behind the heavy doors and etched glass windows -- a place where men and women in lab coats gather to discuss Newtonian physics or string theory? A debating...
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Army Ends Lockheed Contract for New Spy Plane
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2006011519
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The Army canceled its contract for a new spy plane yesterday after the Lockheed Martin Corp. program developed technical problems that military officials determined were too expensive to fix.
Bethesda-based Lockheed, the nation's largest defense contractor, spent months trying to save the plane, known as the Aerial Common Sensor, which was supposed to detect enemy signals and track enemy troop movements from 37,000 feet in the air. But Lockheed struggled to fit all of the required technology on the aircraft it picked for the job, a regional jet from Embraer SA of Brazil.
"After carefully evaluating Lockheed's proposals [to save the program], we decided that the prudent course of action at this time was to terminate the contract," Claude M. Bolton, the Army's acquisition chief, said in a written statement. The Army is headed back to the "drawing board," he said. In a letter to Congress, the Army said it would open a new competition for the plane in 2009.
For Lockheed, the loss of the $879 million development contract was embarrassing, though not an immediate financial blow. Building the more than 50 aircraft the Pentagon planned to order was potentially worth $8 billion. The Army canceled the contract for "convenience," which means Lockheed will receive a termination fee.
"We regret but respect the government's decision to terminate" the contract, Lockheed spokeswoman Judith B. Gan said in a written statement. The company has "made significant progress in the development of the multi-intelligence sensor system but encountered technical challenges with the integration of this state-of-the-art system into the aircraft platform."
The Pentagon will begin a six-month study of its intelligence, surveillance and reconnaissance aircraft, the Army letter to Congress said. The planes that the Aerial Common Sensor was to replace, the Army's Guardrail Common Sensor and Airborne Reconnaissance Low and the Navy's EP-3E, will continue to operate.
It is important that the Army invest in these aging systems, the letter said, "to ensure they remain safe to operate and relevant to counter current and future threats."
Industry analysts said the decision to cancel the Lockheed contract reflects both the difficulty of developing the increasingly technical weapons the military demands and the Army's budget pressures. "The Army has plans that are too expensive and can't afford all of them," said Steve Kosiak, research analyst at the Center for Strategic and Budgetary Assessments. "They have to make cuts somewhere. The days of the very large increases in defense spending are over."
Part of the problem, analysts said, was that while the services have different needs, the military wanted to put both Navy and Army technology on one plane, and Lockheed underestimated how much it would weigh. For example, while the Army wanted the plane to monitor the battlefield, the Navy wanted its version to intercept overseas communications in the Western Pacific and the Middle East, said Loren B. Thompson, a defense industry consultant at the Lexington Institute.
The Army was expected to order 38 of the planes, with the Navy buying 19.
The military faced two choices, according to the Army's letter to Congress. It could use the aircraft Lockheed originally proposed and have less capability or switch to a larger plane and more than double development costs. Moving to a larger plane would probably have triggered complaints from Northrop Grumman Corp., which lost the competition for the program in 2004 and had planned to use a larger aircraft.
After considering the alternatives "we found that we could not provide the value that tax payers and our war fighters would expect under the existing contract," Lt. Col. Steven Drake, the product manager, said in a written statement. "Although our initial costs for the research and development were substantial, the long term costs of continuing this contract would not have fallen within acceptable parameters. As a diligent manager of its resources, the Army chose this sensible time to terminate this contract."
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2 Million Displaced By Storms
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2006011519
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The Federal Emergency Management Agency yesterday increased its count of people displaced from the Gulf Coast by hurricanes Katrina and Rita by nearly a third, to about 2 million people. A FEMA spokeswoman attributed the sharp rise to a reporting error.
According to a news release, FEMA is paying rental assistance to 685,635 families whose homes were damaged or destroyed by the Aug. 29 and Sept. 24 storms, an increase of 167,000, or 32 percent, over a month ago. FEMA officials generally estimate three people per household as a rule of thumb.
In December, the agency counted only recipients of a transitional housing assistance program created Sept. 23, FEMA spokeswoman Nicol Andrews said. Shortly before Christmas, FEMA discovered that it had not counted families receiving rental assistance under a traditional disaster aid program, she said.
"We've never had a situation where an entire American city was evacuated, and they weren't able to go home," she said. "These numbers represent that phenomenon."
The figure exceeds initial post-hurricane estimate of 300,000 displaced families and an October estimate by FEMA to Congress of 450,000 to 600,000 households.
The estimate of 2 million displaced also dwarfs the number of people forced from their homes by past U.S. natural disasters, such as hurricanes Andrew, Charley, Ivan or Hugo, as well as the Dust Bowl migration.
Also yesterday, a federal judge in New Orleans ordered FEMA to allow hurricane evacuees in that city to stay in subsidized hotel rooms until March 1, extending a Feb. 27 deadline FEMA set Monday. FEMA also was required to continue providing lodging for at least two weeks for occupants nationwide whose eligibility for rental housing assistance is determined after Jan. 30, whenever that occurs.
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The Federal Emergency Management Agency yesterday increased its count of people displaced from the Gulf Coast by hurricanes Katrina and Rita by nearly a third, to about 2 million people. A FEMA spokeswoman attributed the sharp rise to a reporting error.
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Corralling Domestic Intelligence
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2006011519
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The Bush administration is trying to set standards for how government agencies collect and maintain reports of suspicious activity because of concern that the agencies may be keeping inappropriate information on Americans while working to thwart terrorism with more extensive domestic intelligence, according to officials.
A number of departments have set up systems to encourage employees and others to file suspicious-activity reports, or SARs, to protect their facilities and personnel from attack. The National Counterterrorism Center, which by law has primary responsibility for analyzing terrorism-related intelligence, is trying to bring some order to that system, officials said.
Currently, the reporting varies in type and specific purpose from agency to agency, and information is collected in one form or another in data systems by the Pentagon, the FBI, the CIA, and the departments of State, the Treasury and Homeland Security.
How that information is handled and shared among intelligence agencies has become a matter of heightened concern after recent revelations that a Pentagon agency inappropriately kept reports in a database about people and groups that had protested the war in Iraq. Yesterday, Sen. Dianne Feinstein (D-Calif.) wrote Defense Secretary Donald H. Rumsfeld to express concern and ask him for answers about the Counterintelligence Field Activity agency, or CIFA.
Officials hope that imposing common procedures for collecting and keeping information will reduce the chances for abuse.
"One of our objectives certainly is to weed out rubbish and other stuff that shouldn't make its way into suspicious-activity reports in the first place," a senior counterterrorism official said of the NCTC effort. "In many instances the threshold for reporting is low, which makes it extremely difficult to evaluate some of this information," said the official, who spoke on the condition of anonymity because of the sensitivity of the issues.
A spokesman for Director of National Intelligence John D. Negroponte said the NCTC, which is under his control, was "playing the primary role in seeking to establish common standards" and added: "There are various suspicious-activity reporting systems, and it is NCTC's role to improve and coordinate the way they are done."
The government's increased emphasis on collecting domestic intelligence has raised concerns among civil liberties advocates and members of Congress, who cite abuses during the Vietnam War years. Congressional investigations in the 1970s uncovered evidence of unauthorized wiretapping, domestic surveillance, infiltration of peace groups and the creation of files on thousands of Americans. The findings led to laws restricting the government's ability to spy on and keep information about U.S. citizens.
Feinstein's letter focused on the Pentagon's Talon system, in which civilians and military personnel are encouraged to report activity they consider suspicious around defense installations. The reports are fed into a database managed by CIFA, a three-year-old agency whose budget and size are classified.
Last month, Pentagon officials acknowledged that the reports included information on peace activists and other apparently innocent people, including some who protested military recruiting at the University of California at Santa Cruz.
Defense Department spokesman Bryan Whitman said in December that reports about protesters and others who were not a threat should have been purged from the database but were not. The undersecretary of defense for intelligence, Stephen A. Cambone, ordered a review, still underway, to identify any information "that might be improperly stored in the database," Whitman said.
Richard A. Falkenrath, a senior fellow at the Brookings Institution and former deputy homeland security adviser at the National Security Council, said suspicious-activity reports from various agencies were sometimes passed to senior officials before they had been checked out and verified or disproved.
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Koreans 'Blinded' to Truth About Claims on Stem Cells
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2006011519
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SEOUL, Jan. 12 -- When South Korean investigative television reporters late last year exposed massive fraud and ethical breaches by Hwang Woo Suk, the now-disgraced cloning scientist, virtually nobody believed them.
Furious viewers demonstrated against their program, "PD Notebook," and clogged its computers with e-mails. The show's producer received death threats. President Roh Moo Hyun declared that the allegations against Hwang, who had been given the official title of "supreme scientist," were "ridiculous."
"The Korean people were blinded against the truth all along," said Han Hak Soo, the producer and director of "PD Notebook." "Hwang was not just a successful scientist, he had become a Jesus figure, someone who said he could make the crippled walk again. He was going to make Korea the center of a new major industry in stem cell research and biotechnology. How could any good Korean dare question him?"
Faced with overwhelming evidence, Hwang apologized Thursday on national television for having published false research. An academic panel at Seoul National University this week discredited Hwang's claims in 2004 and 2005 that his research team had harvested stem cells from cloned human embryos. Such a process could lead to new treatments for currently incurable diseases.
Hwang's deception ranks as one of the highest-profile cases of scientific fraud in recent history. The public prosecutor's office, which has opened an investigation, seized documents Thursday from Hwang and 11 of his colleagues.
Other researchers have been working on the process and hope soon to succeed in producing stem cells from cloned human embryos. But the issue of human cloning has generated a substantial ethical debate in the United States and elsewhere.
Here in South Korea, Hwang's case has provoked soul-searching about national values, which often focus on success and quick results, sometimes at the expense of ethical standards.
"Our society has been overwhelmed with the principle of focusing on outcome instead of procedure, and we forgot that ends cannot justify the means," Chung Un Chan, president of Seoul National University, where most of Hwang's work was conducted, said in an apology to the nation Wednesday. "Most of us, in the name of national interests, exaggerated Dr. Hwang's research to make it an aspiration of the nation."
Over the past four decades, South Korea has grown into the world's 11th-largest economy, while becoming known for its unparalleled respect for higher education. With the government supporting innovation in high-tech industries, South Korea has become a leading player in the fields of semiconductors, automobile manufacturing and shipbuilding.
Seeking also to promote its international position in biotechnology research, the government delivered $30 million of funding to Hwang's team with few strings attached, leading academics here said. Last October, the government launched the World Stem Cell Hub, headed by Hwang and intended to make South Korea a center for the medical cloning industry.
The drive to succeed was so strong that many top academics and government officials concede they ignored a series of warning signs. The British journal Nature, for example, starting in May 2004 repeatedly raised questions about the ethical standards of Hwang's work. Last July, detailed charges of exaggerations and ethical breaches by Hwang's team were posted on a scientific Web site. Last fall, a group of young scientists demanded an inquiry into Hwang's work at Seoul National University, South Korea's leading institution of higher education.
The university was prodded into launching an official investigation on Dec. 11, three weeks after the first exposé of Hwang by "PD Notebook" and one week after a scientific Web site posted the doctored photos that had been used to substantiate Hwang's work.
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SEOUL, Jan. 12 -- When South Korean investigative television reporters late last year exposed massive fraud and ethical breaches by Hwang Woo Suk, the now-disgraced cloning scientist, virtually nobody believed them.
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Ethiopians in D.C. Region Mourn Archbishop's Death
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2006011519
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Hundreds of Ethiopian immigrants gathered at a District church yesterday to mourn Archbishop Abuna Yesehaq Mandefro, who spent decades launching congregations throughout the United States and the Caribbean and is credited with leading thousands of Rastafarians -- including reggae great Bob Marley -- toward Orthodox Christianity.
The elaborate funeral Mass and memorial service unfolded over nearly 10 hours at Debre Selam Kidist Mariam Church, an Ethiopian Orthodox congregation that worships in a converted parking garage on Buchanan Street NW in 16th Street Heights.
Men and women -- many wearing traditional, gauzy robes over Western-style attire -- wept as clerics chanted the liturgy, sang hymns and recited eulogies in praise of the man whom many consider the father of Orthodox Christianity in the Ethiopian diaspora.
"He was the one who really started this church. He would come here from New York and give us service," recalled Sergout Workue, the church secretary, who immigrated to the United States 28 years ago.
Back then, she said, there were no Ethiopian churches in this area. She went to Mass at a Roman Catholic church instead. "When we didn't have anything in this community, he was the one who was there for us," said Workue, of Mount Rainier. "We run to him, everybody. He touched our lives."
The bishop commonly known as Abuna Yesehaq -- Father Isaac in Ethiopia's Amharic language -- died Dec. 29 in Newark at age 72. His body lay in state in New York before being brought to Washington. From here, it will travel to Dallas for another memorial service, then to Jamaica for burial.
As a young cleric, Yesehaq was a protege of Emperor Haile Selassie, titular head of the Ethiopian church. Yesehaq was sent to the United States in the 1960s and eventually became administrator of the church in the hemisphere, launching about 70 congregations, his followers say.
Yesehaq's work in the Caribbean began after Selassie visited Jamaica in 1966 and was thronged by local Rastafarians, who saw Selassie as a modern-day messiah. According to church leaders, Selassie denied being a deity and urged Yesehaq to try to draw the Rastafarians to the Ethiopian church. Yesehaq served many Jamaicans and others of Caribbean descent, in the islands and in immigrant enclaves in the United States. Among them was Marley, at whose funeral Yesehaq officiated in 1981.
The Ethiopian Orthodox Church, one of Christianity's oldest branches, was linked to the Coptic Church in Egypt until the 1050s, when it began conducting worship in the ancient Ethiopian language of Geez.
In the 1990s, Yesehaq declared the Western branch of Ethiopian Orthodoxy independent of the hierarchy in Addis Ababa, rejecting the authority of the new patriarch, Abuna Paulos. The rift endures today, although there are no liturgical differences between the two branches.
Every Ethiopian church includes a mekdes , or holy of holies, containing a replica of the biblical ark of the covenant -- which according to some was taken to Ethiopia after the conquest of the Israelite Holy Temple in Jerusalem. Only clergy can enter the mekdes.
At the Mariam Church, Yesehaq's casket was positioned in front of the white-curtained mekdes, draped in a vivid burgundy tapestry embroidered with turquoise and gold. Bishops and priests from Ethiopian Orthodox congregations throughout the United States and the Caribbean read scripture, burned incense and chanted traditional prayers.
The D.C. congregation was started in 1987, renting space from another church for a decade until it bought the former Bell Atlantic parking garage. At first, services there were held in a small chapel created from office space on the structure's upper level. But when the number of faithful grew, the garage space was remade for worship, with chandeliers, carpet and colorful tapestries installed amid the exposed ductwork and wiring.
Yesehaq visited the church often, hearing parishioners' confessions and celebrating holidays and other special occasions. In 2001, he granted the church cathedral status. More than 400 people attend most Sundays, church leaders said, and on holidays, more than 1,000.
When church members offered Yesehaq a stipend for his visits or for travel expenses, "He'd say, 'No, no, no, no, no,' " recalled deacon Dagne Gizaw of Silver Spring. "He'd say, 'We need to strengthen your church.' And he would give his own money to make his own donation."
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Get Washington DC, Maryland, Virginia news. Includes news headlines from The Washington Post. Get info/values for Washington DC, Maryland, Virginia homes. Features schools, crime, government, traffic, lottery, religion, obituaries.
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Post Politics Hour
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2006011219
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Don't want to miss out on the latest buzz in politics? Start each day at wonk central: The Post Politics Hour. Join in each weekday morning at 11 a.m. as a member of The Washington Post's team of White House and Congressional reporters answers questions about the latest in buzz in Washington and The Post's coverage of political news.
Washington Post national political editor John F. Harris was online Thursday, Jan. 12, at 11 a.m. ET to discuss the latest in political news.
Conway, Ark.: So let me get this straight--of course the warrantless snooping is legal, says the Bush administration, because the program was vetted by executive branch lawyers, who exercised legal judgment independent of their client, we're supposed to believe. Meanwhile, down the street, we shouldn't put too much stock in things Sam Alito wrote in the 80s when he was a government lawyer in the Reagan administration, because he was just doing his client's bidding.
John F. Harris: Good morning. I'm filling in for Mike Fletcher, one of our White House correspondents, who is on the road with President Bush. I like your question, even if it is perhaps a bit argumentative. I'll e-mail it on to him and see if he can get an answer from the White House.
Astoria, N.Y.: I have a problem with the pro-life crowd. It seems they deplore judicial activism as they believe (rightly so) that the courts made abortion legal. However, since a majority of the population believes that abortion should be legal now, wouldn't it take judicial activism to make abortion illegal? It seems a bit hypocritical to me. Let's put it to a vote, and, as every poll shows, abortion would remain legal. It seems the pro-life crowd's only hope for making abortion illegal is judicial activism. Is my logic right, here? Thanks.
John F. Harris: I think your logic is probably wrong. Abortion rights, as I understand the polling, is a majority position in the country as a whole, but it is by no means a majority position in all states. If there was not a national right to abortion under Roe v. Wade, it seems reasonable to expect that a large number of state legislatures would impose new restrictions on the procedure.
Your general point rings true to me. Most people regardless of where they fall on the ideological spectrum deplore judicial activism when it produces results they don't like, but see wise interpretation of the Constitution when it produces results they do like.
I like your question, even if it is perhaps a bit argumentative: You people in D.C. don't like argument? Isn't that why we have courts, legislatures, and public discourse?
Did I wake up in the old Soviet Union this morning?
John F. Harris: Don't get huffy with me Anchorage. I do indeed like argument and argumentative questions.
Silver Spring, Md.: The Alito hearings have been interesting enough, I suppose, if one doesn't mind considerable senatorial bloviation, but I do think that the stakes are clear enough. We have been through this dance before, and we ought to realize that Alito will vote to overturn Roe v. Wade at the earliest opportunity. At this point, the issue can not be only a judges qualifications, but whether or not the senators are be willing to risk that decision. I think that they have a principled enough stand to say that, in order to protect women's rights, they are obligated to keep him off the court. Your thoughts?
John F. Harris: I think you have framed the issue in a pretty clear-eyed way.
We do not know for sure how Alito would vote on Roe v. Wade, but I can certainly understand why abortion rights supporters would not want him on the court given his previously expressed views. The fact is there is not really a prevailing understanding of what the reasonable grounds are for senators to vote no on a nominee. I think many Democrats would accept your interpretation--it's enough for senators to vote no because they don't agree with the nominee's ideology. But Republicans are right to point out that this was not previously the standard--as witnessed by nearly unanimous votes for Bill Clinton's two nominees. Ruth Bader Ginsburg had a long record of statements that conservatives found objectionable, but most Republicans supported her because her credentials seemed sound.
This confusion over what the standard is--qualifications or ideology--really hangs over judicial nominations these days.
Hope Mills, N.C.: Regarding Alito's wife leaving the hearing in tears yesterday. Why are the Supreme Court's nominees spouses even there? If I have a job interview, my wife doesn't come and sit behind me. Is the purpose of them being there and attempt to soften the questioning?
John F. Harris: see the next question, too.
Fla.: John, I don't know your age so forgive me if this presumes too much: how have the Senate judiciary committee Supreme Court confirmation hearings changed over the years? Has it always been that the families accompany the nominee and stay with him during the interrogation?
Wouldn't it make more sense for families to be introduced, for the senate to be polite and on their best behavior for a couple of hours and then for the family members to be kindly escorted to the green room (or wherever) while the nominee is grilled?
I mean, no disrespect to Mrs. Alito, but these are not kindergarten games where everyone is expected to play nicely (it would be nice if people like blowhard Kennedy and self-important Biden would balance their hot air with some professionalism and questions that might actually shed some light on Mr. Alito's judicial philosophy, history, relevant activities and if possible: future endeavors if appointed to the court. Give me Dianne Feinstein over those egotistical males of either party any day of the week, please!).
Anyway, you get my gist, yes?
John F. Harris: I do get your gist, which seems to be similar to that of the other poster.
I don't have deep understanding of previous nomination hearings but this is not due to my age (42) but the fact that I've never covered one first hand.
It is striking the amount of skeptical and even mocking coverage some of the Democratic senators in particular are getting for what has struck many viewers as grand-standing and long-windedness...But these are not unfamiliar traits in political life.
Probably lots of people felt sorry for Mrs. Alito, and I'm sympathetic, too. But I agree that the senators' rights and responsibilities to ask what they think is important must trump concern for her feelings.
Republicans are right to point out : Oh please. It's on record that Ginsberg was a compromise candidate on a list which was provided by Republican Senators to Clinton, in exchange for having a couple of preferred Clinton candidates torpedoed for...yes, that's right...ideological reasons.
Do any of you bother reporting facts anymore? Never mind, I'm sure you want to get back to the Constitutionally critical issue of who made Alito's wife cry.
John F. Harris: I just think you are wrong on the history of this...Ginsburg may have been seen as a consensus candidate of sorts, but she had political views from her time at the ACLU that clearly many Republicans were not enthusiastic about.
(Clinton picked her after they hit it off in an interview and after some earlier possibilities--such as Mario Cuomo--told him they weren't interested or were scratched for various political reasons.)
The same is true from the other direction. Scalia was overwhelmingly confirmed by a Democratic senate.
Both these nominations reflected one way of thinking--the Senate is there primarily to assess judicial qualifications and temperament not the philosophical leanings of the nominee.
I'm not saying that the standard Democrats now invoke--that philosophy is certainly one of the things they can weigh--is right or wrong, just that it's a change from some previous episodes.
There's no mystery why the standards have changed...This is a critically important vacancy that Alito will fill, one that will affect the direction of a court that is very narrowly divided on many of the most important questions in American life.
Baltimore, Md.: After the Roberts' hearing there was widespread commentary on Senators' tendency to spend most of their "question time" on self-serving speeches. There were great questions suggested by legal experts and political pundits that the Senators could use. So, why, are they continuing to use their question time as speech time and not ask the perfectly framed questions provided by both sides of the aisle via pundits and legal experts?
John F. Harris: You ask too much when you ask a senator not to make a speech when given national television time.
Lake Forest, Calif.: Good morning. I love this chat. It has become part of my daily routine. My question is, why does it sometimes take so long between questioned asked and answered in this chat? Do you have to wait for questions, have technical difficulties or are you also doing your other work while chatting?
John F. Harris: Thanks for checking in to our chats. Some reporters are a lot faster at taking questions than I am. I tend to be a sloppy typist, so I try to clean up answers before clicking the "post reply" button. And I also will sometimes look up stories that questioners refer to in the hope that I don't say something dumb. This does not prevent me from saying something dumb with some frequency.
Vienna, Va.: To the Liberal from Astoria: Liberal judicial activism is wrong because it is not founded on Constitutional principles (except for distortions of those principles). Conservative judicial "activism" is more restorationist than activist--because it returns to founding Constitutional principles. The conservative brand should actually be called "judicial restoration" with the fundamental Constitutional goal of judicial restraint.
John F. Harris: I'll post this in the interests of debate, though I don't really have a comment.
Washington, D.C.: Wow - I'm a left-leaner, but I wholeheartedly agree with Senator Biden's suggestion to scrap this nomination process - if Roberts, Alito, etc. aren't going to be forthright in answering legitimate questions, why waste the time? I'd rather see the time used to hold hearings on the NSA domestic spying.
Any thoughts on this change of nomination process suggestion?
John F. Harris: I don't know whether the process should be scrapped but I do believe there is quite a lot of artifice in these hearings. Nominees have to pretend like they do not have strong pre-existing views on subjects on which it is obvious they do. And senators sometimes feel like they have to trip up nominees they oppose on tangential issues since they can't go after them on the main question: What do you really think and how will you vote?
Raleigh, N.C.: Sen. Kennedy grilled Judge Alito about his membership in the P.A.C., yet Senator Kennedy himself belonged to the "Owl Club" at Harvard which didn't allow women.
Shouldn't this hypocrisy be pointed out?
John F. Harris: I'll let you point it out...while also pointing out that I don't know if you are right or even whether there is such a thing as the Owl Club.
Baton Rouge, La.: If you do some research, you'll find that Orrin Hatch recommended Ginsberg to Clinton.
John F. Harris: I think that's right...But I'm quite certain this was not the decisive factor in her nomination. You'll recall that Democrats controlled the Senate in 1993, when Clinton nominated her.
To the Conservative from Vienna: Tell that to John Marshall.
John F. Harris: You guys may need to step outside and settle this.
Washington, D.C.: You wrote: "I'm not saying that the standard Democrats now invoke--that philosophy is certainly one of the things they can weigh--is right or wrong, just that it's a change from some previous episodes."
It's also consistent with the standard Republicans and conservative groups used to torpedo Harriet Myers.
John F. Harris: Yep, I agree with this.
Pittsburgh, Pa.: Hello and thank you for taking questions. I graduated with high honors from the University of Michigan in 1975. At the same time that Justice Roberts and Mr. Alito were off on what seems pretty assured career paths, I was confronted in job interviews with employers who said "We just don't hire girls for those jobs." The jobs in question were on the sales and management track. There was nothing illegal about this or any of the harassment I and many others faced. Perseverance and artful avoidance helped me in what ended up a reasonably successful career in banking and brokerage. I think the court will be losing a link to this past reality when Justice O'Connor is gone. Any thoughts?
John F. Harris: Well, I'm glad this era of casual discrimination is receding. There will probably be considerable pressure to nominate another woman to the court--as Bush originally tried to do with Miers--when the next vacancy occurs.
Kansas City, Mo.: As a Democrat I don't think they are helping themselves with the hearings. I just wish this anger and concern by Senators had been raised in the Senate in January 2001 when it mattered.
Senate Democrats didn't challenge the results then so this is the result. It's a little late to complain about the types of judges being appointed, everyone knew this would happen if Bush got into office.
John F. Harris: I heard recently from an associate of former president Bill Clinton, who reported that he has been saying something like this: If we don't like Bush's judicial nominations, we should maybe try winning some presidential elections.
Like most presidents, he does believe in the general presumption that presidents should receive deference on their nominees...though he would also surely point out that many of his lower court nominees did not receive such deference from the Republican Senate majority, which quashed many of the people he sent up.
South Burlington, Vt.: I guess I'm a little frustrated by coverage of these hearings in which the Democrats are always portrayed as egomaniacal windbags. Just a thought but I'm betting some people have similar impressions of the other side. By the way, during the Clinton administration, Republicans were given the courtesy of suggesting potential nominees before they were announced and my understanding is that both Breyer and Ginsburg were okayed by Republicans on the committee before the process ever started. To say that "Ruth Bader Ginsburg had a long record of statements that Republicans found objectionable but most Republicans supported her because her credentials seemed sound" rings hollow to me. Had Clinton paid so little respect to the other side, good chance she'd have received far fewer votes.
John F. Harris: Windbaggery is bipartisan, in my experience.
Washington, D.C.: RE: Owl Club- Ted Kennedy may be old, but I don't think he's old enough to have been a member of Harvard's Owl Club. According to this article, "George Washington and John Adams founded the Owl Club in 1745, before it was founded again in 1896 as the Phi Delta Psi fraternity at Harvard."
Nice try, though. At least now we know that there was such a thing as the Owl Club.
I find your responses argumentative and your facts (Ginsburg) for example to be way off.
John F. Harris: Okay, not my intent to be argumentative, but I'll post your view.
Northfield, Minn.: So word on the street is you're working on a new book? How is it coming? When can we find it in stores?
John F. Harris: This is true. I am writing a book, with co-author Mark Halperin of ABC News, on the challenges of political strategy in an age of intense polarization in the electorate. It is due to be published in the fall.
In the meantime, I would remind you of washingtonpost.com's strict policy against posting questions or comments from a locale where you are not actually located at the time you click send.
Washington, D.C.: An observation heretofore under-reported: Alito is not dodging with nearly the same grace as Roberts did. He sounds, in my opinion, like he's blocking, whereas Roberts made you feel like you had received an answer even when you hadn't. Frankly, I am not impressed.
Also, I think senators should be allowed to question Alito as long as they'd like until they receive answers. I don't understand why the hearings have to be so rushed. If the longer he stalled answering, the longer the hearings were, you wouldn't have this problem of non-answers. It seems a perfectly reasonable solution. Why do the hearings have to be a mere week?
John F. Harris: I have not heard great popular clamor for longer hearings. But you raise a fair point about these hearings. The trick for nominees is to be as artful and articulate as possible in not answering.
Arlington, Va.: "This confusion over what the standard is--qualifications or ideology--really hangs over judicial nominations these days."
I respectfully disagree. The first standard is qualifications, as witnessed by Mr. Bush's last failed nomination. The remaining and unanswered questions are whether or not ideology should be considered and, if so, to what degree.
John F. Harris: Here's a good question to end on. Many of those sending questions or comments have more interesting thoughts on judicial nominations than I do. I enjoyed playing moderator and am sorry we did not get to more. Please check in tomorrow when I'm sure there will be lots more on this subject.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Washington Post national Political Editor John F. Harris discusses and the latest in political news.
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U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
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VIDEO | Watch excerpts from the second day of the Alito confirmation hearings.
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
NOMINATED TO BE AN ASSOCIATE JUSTICE
OF THE U.S. SUPREME COURT
SPECTER: The Judiciary Committee will now proceed with the confirmation hearing for Judge Alito for the Supreme Court of the United States.
We have three members who have not had their first round of questioning, 30 minutes. We will proceed there. And then we will have a second round of questioning for 20 minutes each.
I expect we'll need to work a long day today. It's my hope that we might finish the questioning of Judge Alito. That might be overly optimistic. We will see how things go.
Senator Durbin, you're recognized for 30 minutes.
DURBIN: Thank you very much, Mr. Chairman.
LEAHY: Before we start the clock on Senator Durbin, if I might -- some questions.
One, I admire the stamina of both the nominee and his family. But a number of us have been troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth: on the issue of one person, one vote; Vanguard recusal; unitary theory of government; CAP; and so on.
I want to clear up in my own mind and the mind of many over here what we see as inconsistencies. I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more.
SPECTER: Well, thank you, Senator Leahy.
SPECTER: I appreciate the comment.
There are many issues. Judge Alito has responded for seven and a half hours so far, and we're going to have another hour and a half on opening statements and then with each senator having 20 minutes on a second round there are six more hours.
So we'll see if he has covered the waterfront. And this will be a full and fair hearing. We will give every opportunity to ask the questions.
LEAHY: Mr. Chairman, with you as chairman, I know it will be a full and fair hearing. And that's one thing that every single Democrat on this side is aware of.
SPECTER: Well, I think that's very important for the nominee, for the committee and for the country. And we will do that.
The adjunct to full, fair is dignified, and I think so far we're on track.
OK, Senator Durbin, keep us on track.
Senator Durbin's recognized for -- we'll restart the clock at 30 minutes.
DURBIN: Thank you, very much, Mr. Chairman.
Judge Alito, thank you for coming for the second day and not quite the end of the first round. I thank your family for their patience, listening to all of our questions. And I hope at the end of the day, we'll feel that we've really added something to the process of choosing a person to serve in a lifetime appointment to the highest court in our land.
I listened to you carefully yesterday address an issue which is very important to me, the Griswold case, because I think that it's a starting point for me when it comes to appointments to the Supreme Court.
DURBIN: If I had any doubt in my mind that a Supreme Court nominee recognized the basic right of privacy of American citizens, as articulated in Griswold, I couldn't support the nominee.
And I listened as you explained that you supported that right of privacy and that you found the Griswold decision grounded in the Fifth Amendment as well as the 11th Amendment. I'd ask you, at this point, you obviously support Brown v. Board of Education -- do you, and the finding of the court?
DURBIN: And do you believe that the Constitution protects the right of children in America to be educated in schools that are not segregated?
ALITO: Absolutely, Senator. That was one of the greatest, if not the single greatest thing, that the Supreme Court of the United States has ever done.
DURBIN: And as you read that Supreme Court decision, that historic decision, they find the basis for that decision the equal protection clause of our Constitution.
ALITO: Yes, they did. That was I think -- of course, we fought a Civil War to get the 14th Amendment and to adopt the constitutional principle of equality for people of all races.
DURBIN: The reason I asked you about those two cases is that neither of those cases referred to explicit language in the Constitution. Those cases were based on concepts of equality and liberty within our Constitution.
And the Griswold case took that concept of liberty and said it means privacy, though the word is not in our Constitution. And the Brown v. Board of Education took the concept of equality, equal protection, and said that means public education will not be segregated.
I raise that because I listened carefully as Senator Schumer asked you yesterday about Roe v. Wade.
DURBIN: And I couldn't understand your conclusion.
You conceded the fact that we have free speech because it's explicit in our Constitution, protected constitutional right. And yet, when Senator Schumer asked you repeatedly, "Do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision?," you wouldn't answer. You wouldn't give a direct answer.
On two Supreme Court cases, Griswold and Brown now, you have said, just right as we started this hearing, that you believe there is a constitutional basis for this protection and for this right. And yet, when it came to Roe v. Wade, you would not.
Most of us are troubled by this 1985 memo. You said yesterday, you would have an open mind when it came to this issue.
I'm sorry to report that your memo seeking a job in the Reagan administration does not evidence an open mind. It evidences a mind that sadly is closed in some areas.
Yesterday, when you were asked about one man, one vote, you clarified it. You said those were my views then, they're not my views now.
When Senator Kohl asked you about the power and authority of elected branches as opposed to others, no; you said I want to clarify that's not my view now.
And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you've been unwilling to distance yourself and to say that you disagree with that.
DURBIN: I think this is critically important, because as far as I am concerned, Judge Alito, we have to rely on the Supreme Court to protect our rights and freedom, especially our right to privacy. And for you to say that you're for Griswold, you accept the constitutional basis for Griswold, but you can't bring yourself to say there's a constitutional basis for the right of a woman's privacy when she is deciding -- making a tragic, painful decision about continuing a pregnancy that may risk her health or her life, I'm troubled by that.
Why can you say unequivocally that you find constitutional support for Griswold, unequivocally you find constitutional support for Brown, but cannot bring yourself to say that you find constitutional support for a woman's right to choose?
ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.
And the principle that was finally recognized in Brown v. Board of Education, after nearly a century of misapplication of the 14th Amendment, is that denying people of a particular race the opportunity to attend schools or, for that matter, to make use of other public facilities that are open to people of a different race denies them equality. They're not treated the same way -- an African-American is not treated the same way as a black (sic) person when they're treated that way, so they're denied equality.
And that is based squarely on the language of the equal protection clause and the principle, the heart of the principle that was -- the magnificent principle that emerged from this great struggle that is embodied in the equal protection clause.
Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.
ALITO: But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law.
And that's my understanding of it. And the issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again.
It's not likely to come before the 3rd Circuit; it's not likely to come before the Supreme Court. So, I feel an ability to comment -- a greater ability to comment on that than I do on an issue that is involved in litigation.
What I have said about Roe is that if it were -- if the issue were to come before me, if I'm confirmed and I'm on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important.
The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General's office. But that was 20 years ago and a great deal has happened in the case law since then.
Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.
And then if I got beyond that, I would approach the question. And of course, in Casey, that was that was the beginning and the ending point of the analysis in the joint opinion.
If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.
DURBIN: Well, this is what troubles me: that you do not see Roe as a natural extension of Griswold; that you do not see the privacy rights of Griswold extended by the decision in Roe; that you decided to create categories of cases that have been decided by the court that you will concede have constitutional protection, but you have left in question the future of Roe v. Wade.
DURBIN: Yesterday, Senator Specter asked you, as he asked John Roberts before you, a series of questions about whether or not you accept the concept that this is somehow a precedent, that we can rely on; that is embedded in our experience; that if it were changed, it would call into question the legitimacy of the court.
And time and time again, he brought you to the edge, hoping that you would agree. And rarely, if ever, did you acknowledge that you would agree.
You made a most general statement that you believed reliance was part of stare decisis.
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?
ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.
And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.
And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.
First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.
ALITO: And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.
And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.
So it's a very important precedent...
DURBIN: Is it the settled law of the land?
ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it 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.
DURBIN: How do you see it?
ALITO: I have explained, Senator, as best I can how I see it.
It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.
But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.
So it's an issue that is involved in a considerable amount of litigation that is going on.
DURBIN: I would say, Judge Alito, that is a painful issue for most of us. It is a difficult issue for most of us. The act of abortion itself is many times a hard decision, a sad decision, a tragic decision.
I believe that, for 30 years, we have tried to strike a balance in this country to say it is a legal procedure but it should be discouraged, it should be legal but rare, and try to find ways to reduce the incidence of abortion.
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.
DURBIN: 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.
That is very troubling, particularly -- and because you have stated that you are committed to this right of privacy.
If I could move to another issue that came up yesterday, I didn't understand your answer to one question, and I want to clarify it: this so-called Concerned Alumni of Princeton. You noted in your application for a job with the Department of Justice you belonged to two organizations: the Federalist Society and the Concerned Alumni of Princeton.
I won't get into the Federalist Society because every time I say those words, they go into a rage that I'm somehow guilty of McCarthy- like tactics, asking, "Who are these people in the Federalist Society?" I won't touch it.
Let me just go to the Concerned Alumni of Princeton. I didn't understand your answer.
Your answer said something about ROTC being discontinued at Princeton University. I know you were involved in ROTC. I'm told that by the time you filled out this application ROTC had been restored.
I don't believe you were suggesting that bringing more women and minorities to Princeton would somehow jeopardize the future of ROTC. I don't know that that's the case. But there is a woman named Diane Weeks who was a colleague of yours in the New Jersey U.S. Attorney's Office. And she said that she was troubled by your membership in this group.
She said you had a first-rate legal mind, but here's what she went on to say: "When I saw Concerned Alumni of Princeton on that 1985 job application, I was flabbergasted," she said.
DURBIN: "I was totally stunned. I couldn't believe it. CAP made it clear to women like me we were not wanted on campus. And he is touting his membership in this group in 1985, 13 years after he graduated? He's not a young man at this point," she said. "And I don't buy for a second that he was doing it just to get a job.
"Membership in CAP gives a good sense of what someone's personal beliefs are. I'm very troubled by this and if I were in the Senate, I would want some answers. I don't think explaining discontinuing ROTC at Princeton is an answer."
What is your answer? Why did you include this controversial organization as one of your qualifications for being part of the Reagan administration?
As you said, with your background, with your immigrant background and the fact that Princeton had just started allowing people of your background as students, how could you identify with a group that would discriminate against women and minorities?
ALITO: Well, Diane Weeks was an assistant U.S. attorney in the U.S. Attorney's Office in New Jersey and somebody that I hired, and one of many women whom I hired when I was U.S. attorney. And I think that illustrates my attitude toward equality for women.
I've said what I can say about what I can recall about this group, Senator, which is virtually nothing.
I put it down on the '85 form as a group in which I was a member. I didn't say I was anything more than a member. And since I put it down, I'm sure that I was a member at the time.
But I'm also sure -- and I have wracked my memory on this, that if I had participated in the group in any active way, if I had attended meetings or done anything else substantial in connection with this group, I would remember it.
And if I had repeated -- if I had renewed my membership, for example, over a period of years, I'm sure I would remember that.
ALITO: So that's the best I can reconstruct as to what happened with this group.
I mentioned in wracking my memory about this, I said, "What would it have been, what could it have been about the administration of Princeton that would have caused me to sign up to be a member of this group around the time of this application?" And I don't have a specific recollection, but I do know that the issue of ROTC has bothered me for a long period of time. The expulsion during the time of the units, at the time when I was a student there, struck me as a very bad thing for Princeton to do.
DURBIN: Did women and minorities have anything to do with that?
ALITO: No. And I did not join this group, I'm quite confident, because of any attitude toward women or minorities.
What has bothered me about -- what bothered me about the Princeton administration over a period of time was the treatment of ROTC. And after the unit was brought back, I know there's been a continuing controversy over a period of years about whether it would be kept on campus, whether in any way this was demeaning to the university to have an ROTC unit on campus, whether students who were enrolled in ROTC could receive credit for the courses, whether the ROTC instructors could be considered in any way a part of the faculty.
All of this bothered me, and it is my recollection that it continued over a period of time.
DURBIN: Let me ask you, if I might, to reflect on a couple other things. You're a Bruce Springsteen fan?
ALITO: I am to some degree, yes.
DURBIN: I guess most people in New Jersey would be. They should be.
ALITO: There was a movement some time ago -- we don't have an official state song and there was a movement to make "Born to Run" our official state song. But it didn't quite make it.
DURBIN: We'll stick with Lincoln in Illinois, but I can understand your commitment to Bruce Springsteen.
They once asked him: How do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. It's a great line.
I want to ask you about the crushing happened of fate in several of your decisions. Riley v. Taylor: It was the murder conviction of an African-American defendant.
And the question was raised as to whether he had a fair trial. The people who were arguing in his defense said: When we take a look at the various people who were involved in these jury pools in the murder cases here, we find that the local prosecutors had eliminated all the African-Americans in four murder trials that had taken place during the year that led up to his trial.
And they raised the question, in his case, whether there had been a conscious effort to eliminate African-American jurors in this case involving an African-American defendant.
And you dismissed the statistical evidence of these all-white juries. And you made a statement that said: The significance of an all-white jury was as relevant as the fact that, quote, "five of the past six presidents of the United States have been left-handed," end of quote.
That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.
Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed."
DURBIN: "To suggest any comparability to striking a juror based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."
Why did you use that analogy that apparently is so inappropriate?
ALITO: Well, the analogy went to the issue of statistics and the use and misuse of statistics and the fact that statistics can be quite misleading. Statistics are very powerful, but statistics can also be very misleading. And that's what that was referring to. There's a whole -- I mean, statistics is a branch of mathematics, and there are ways to analyze statistics so that you draw sound conclusions from them and avoid erroneous conclusions from them.
Sometimes when you see a pattern it's the result of a cause, and sometimes when you see something that looks like it might be a pattern it's the result of chance.
Riley was a very, very difficult case. And I can tell you I struggled over that case because the issue of racial discrimination in the criminal justice system is an issue of enormous importance.
Obviously, it's very important for the defendant. It's important for the society so that everybody knows that everyone in this country is treated equally regardless of race. And it's important for law enforcement, because I know, from years as a prosecutor, that nothing is a greater poison for law enforcement than even the slightest hint of unfairness.
The issue of racial discrimination in the jury had to be viewed by our court and by me under the habeas corpus statute that Congress passed. And that gave us an important role to play, but a very limited role.
The Pennsylvania -- and what the habeas corpus statute says is that if the state courts have decided a question on the merits and they've applied the correct legal standard, the correct constitutional standard, we can't authorize granting of a writ of habeas corpus unless they were unreasonable.
It's not enough for us to say we don't agree with it. We have to say: You were unreasonable.
Now I think seven members of the Pennsylvania judiciary -- well, I think there were more.
ALITO: There was the judge who heard the state habeas case and the Pennsylvania Supreme Court. And the Pennsylvania Supreme Court, as I recall, was unanimous on the issue that there hadn't been racial discrimination in the selection of the jury in the case.
Then the case came up to us, and the issue was whether the state courts were unreasonable in finding that the particular peremptory challenges at issue in this case were not based on race. And it was a tough question, but I didn't see how we could overturn what they had done under the habeas standard.
DURBIN: I'd like to say, Judge, in many of these tough questions, as I read through cases, you end up ruling in favor of established institutions and against individuals.
Let me tell you another one: Pirolli v. World Flavors. Remember this case?
A mentally retarded individual, Kenneth Pirolli, physically harassed at his workplace; subjected to a hostile, abusive work environment; sexually assaulted by his co-workers. And according to his deposition testimony, he said they attempted to rape him.
I could read to you what's in that record here, but it is so graphic and it tells in such detail the sexual assault that he was subjected to that I'm not going to read it into the record, but I bet you remember it.
And when it came to this case as to whether or not he should have a trial, as to whether he was entitled to bring his case before a jury, you said no. "Stand by the summary judgment. Don't take this to a jury." You dissented from the majority position here.
And the reason you dissented was, I think, significant.
DURBIN: It wasn't about Kenneth Pirolli or the merits of his case; it was about the conduct and efforts of his lawyer.
You noted the fact that his lawyer had not adequately provided citations in his brief to places in the record describing the harassment. So you held Kenneth Pirolli responsible for the fact that his lawyer didn't do a good job and denied him -- at least in your view -- denied him his day in court.
How do you explain that crushing hand of fate on this man who was a victim of sexual harassment?
ALITO: Well, Senator, the district court thought that the defendant in that case was entitled to summary judgment. And so I think that says something about the facts of the case and whether it was a particularly strong case.
There's a very important principle involved in the appellate practice, and I think it goes with the idea of judicial self- restraint. It is that certain things are to be decided at certain levels in the court system.
And that requires that parties raise issues in the trial court. And that if they do not raise the issue in the trial court, then, absent some extraordinary circumstances, they shouldn't be able to raise the issue on appeal. And that was the principle there.
Now, this was not a criminal case. In a criminal case, there's a constitutional right to counsel and so a person can claim ineffective assistance of counsel. And we treat that issue differently in criminal cases than we do in civil cases.
DURBIN; I would just say that you're arguing on the merits of the district court decision. Your statement in dissent criticized his lawyer for the brief that they presented to your court.
DURBIN: That seems to me to be an unfair treatment of a man who I think deserved a day in court.
Let me ask you about another group looking for a day in court: the RNS Services v. the Secretary of Labor case that I referred to in my opening statement. It's a timely case. It's about mine safety. We know what happened in West Virginia a few days ago and yesterday in the state of the Kentucky, where there are serious questions being raised about whether there's adequate mine safety.
And in this case, there was a question as to whether or not the federal and state mine safety provisions applied to a company in a certain activity.
And you concluded they did not apply. You concluded that you would narrowly construe the statute passed by Congress, and in construing it that way, that the requirements of inspecting this mine location, this treatment of coal, would not be subject to federal and state inspection.
Again, when you dissented, and when given the chance, you ruled on the side of the company, on the side of the established institution, against the coal miners and against the workers in this circumstance.
It's a recurring pattern. The crushing hand of fate here seems to always come down against the workers and the consumers and in favor of these established institutions and corporations.
How would you explain the fact that you would so narrowly construe a statute when you knew that the lives and safety of coal miners were at stake?
ALITO: And the facility that was involved in that case was not a mine as a layperson would think of a mine.
ALITO: It wasn't an underground facility. It wasn't like the facility in West Virginia, where the terrible accident occurred a few days ago. It was basically a pile of coal that was being loaded onto trucks to be transported to another place.
The definition of a mine under the federal law is very broad, and it's not limited to what ordinary people would think of as a mine. And there was an argument that this facility -- which, as I said, as I recall, was basically a big pile of coal on top of the ground, and the coal was being hauled away to a cogeneration facility -- is that a mine? An ordinary person would look at that and say: That's not a mine; that's a pile of coal.
But the issue in the case was the kind of technical issue of interpretation that we get all the time, and the question was: Is this a mine in the sense of the law? And I thought it was not a mine in the sense of the law.
Now, that conclusion, I don't believe, would mean that this facility would be spared safety regulation at either the federal or local level.
It's been a long time since I worked on that case, but I would imagine that if the facility is not governed by the federal mining laws, it would be covered by OSHA, by the Occupational Safety and Health Administration and perhaps by state law.
So the issue would not be whether this facility would be allowed -- which was not a mine in the ordinary sense -- would be allowed to operate in an unsafe fashion. It was: Which body of laws and regulations would govern the facility?
DURBIN: Judge, I would say that your opinion did not prevail.
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.
I find this as a recurring pattern, and it raises the question in my mind whether the average person, the dispossessed person, the poor person who finally has their day in court, and may make it all the way through the process to the Supreme Court, are going to be subject to the crushing hand of fate when it comes to your decisions.
They have been many times at the 3rd Circuit, and that is a concern which I will continue when we have further questions in the next round.
SPECTER: Do you care to respond, Judge Alito?
ALITO: Yes. Could I just say a couple of words? That case was a case of statutory interpretation and applying the statute. And that's how I thought it came out.
There have been many other cases that I have worked on on the court of appeals where I have come out in favor of the small person, who was challenging a big institution.
ALITO: And I could mention a number of them. Let me just mention Shore Regional High School, because I think because I think it has some relation to the Pirolli case, which you mentioned.
This was a case in which a high school student had been bullied unmercifully by other students in his school because of their perception of his sexual orientation; been bullied to the point of attempting to commit suicide. And his parents wanted to enroll him at an adjacent public high school. And the school board said, "No, you can't do that."
And I wrote an opinion upholding their right to have him placed in a safe school in an adjacent municipality.
And that's just one example. But all of these cases involve what judges are supposed to do, which is to take the law and apply it to the particular facts of the case that is before them.
SPECTER: Thank you very much, Judge Alito.
BROWNBACK: Thank you very much, Mr. Chairman.
Good morning, Judge Alito, Mrs. Alito, family members. Good to have you here.
I've got a number of areas I'd like to ask you questions about, and I'm hopeful we can get through them and maybe reduce the need of time in the second round, which would probably be pleasing to your ears.
I want to first go at this area, because it seems to keep coming up, that I think is really not applicable and not reflective of your record, that you always take the side of the big institution and against the little guys, as you just stated.
And then, I want to get into a number of areas of constitutional law, some of which that you have written on, religious freedom-type cases, takings cases. I'd like to get into some of these areas.
But I want to enter into the record, Mr. Chairman, a letter from a former law clerk of yours, David Walk, dated January 6, 2006. David worked with you in the New Jersey U.S. Attorney's Office. I don't know if you remember David or not.
ALITO: I do. He was a fine attorney.
SPECTER: Without objection, it will be made a part of the record.
BROWNBACK: As a lifelong Democrat, former member of the ACLU, and it talks about how fair you were to everybody's rights.
But then he cites the case of Franklin Igbonwa. This was a Nigerian set to be deported for drug dealing who had testified against other Nigerian drug dealers and was fearful of being deported; that he would be killed once back in Nigeria.
The other two judges said his case -- he shouldn't be believed on the face of it. You said he should and that the trial court should have given more deference to this Nigerian to be deported. This was somebody that David Walk represented.
Talk about a little guy and a case, and that's one that is cited in this particular record and letter that I would hope my colleague from Illinois could take a chance at, because it's a legitimate point of view saying, "Well, it looks like you always take one side or the other." Here's where another side was taken.
And then here's a letter from another individual, worked with you, Cathy Fleming, lifelong Democrat, president-elect National Women's Bar Association; gives an unqualified endorsement of you.
And she says, "But by providing my credentials as an outspoken woman'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."
I think one can, kind of, look in the past and try to say, "Well, OK, there's this problem, there's that." But then, when people that know you well put their names to letters saying differently, I think that's also something we should consider.
And I'd ask that that letter be put into the record as well.
SPECTER: Without objection, it will be made a part of the record.
Judge Alito, the Supreme Court has gotten a number of things wrong at times, too.
BROWNBACK: That would be correct. And the answer, when the court gets things wrong, is to overturn the case.
Is that -- that's the way it works, isn't that correct?
ALITO: Well, when the court gets something wrong, and there's a prior precedent, then you have to analyze the doctrine of stare decisis. It is an important doctrine, and I have said a lot about it...
BROWNBACK: Let me just ask you, is Plessy wrong, Plessy v. Ferguson?
ALITO: Plessy was certainly wrong.
BROWNBACK: OK. I mean, and you have gone through this.
Brown v. Board of Education, which is in my hometown of Topeka, Kansas -- I was there last year at the dedication of the school house, 50 years ago -- that overturned Plessy.
Plessy had stood on the books since 1896. I don't know if you knew the number. And I've got a chart up here. It was depended upon by a number of people for a long period of time.
You've got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You've got these number of cases that considered Plessy and upheld Plessy to the dependency.
And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that's just not right.
Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?
ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it.
ALITO: Doctrine that would consider.
BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?
BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy.
ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.
One of the things, I think, that people should have understood that separate facilities, even if they were absolutely equal in every respect, even if they were identical, could never give people equal treatment under the law.
ALITO: I think they should have recognized that.
But one of the things that was illustrated in those cases -- and Sweatt v. Painter, the last one on the list, brought that out -- was that, in fact, the facilities, the supposedly equal facilities, were never equal.
And the continuing series of litigation that was brought by the NAACP to challenge racial discrimination illustrated -- if illustration was needed, the litigation illustrated that, in fact, the facilities that were supposedly equal were not equal.
And that was an important factor, I think, in leading to the decision in Brown v. Board of Education.
BROWNBACK: I want to give you another number, and that is that in over 200 other cases, the court has revisited and revised earlier judgments. In other words, in some portion or in all the cases, the court got it wrong in some 200 cases. And thank goodness the court's willing to review various cases.
BROWNBACK: I want to give you an example of a couple, though, that the court hasn't reviewed yet that I think are spectacularly wrong.
The 1927 case of Buck v. Bell; I don't know if you're familiar with that case. The court examined a Virginia statute that permitted the sterilization of the mentally impaired. Buck, a patient at the so-called Virginia State Colony for Epileptics and Feebleminded, was scheduled to be sterilized after doctors alleged that she was a genetic threat to the population due to her diminished mental capacity.
Buck's guardian challenged the decision to have Carrie sterilized all the way to the Supreme Court, but in an 8-1 decision the court found that it was in the state's interest to have her sterilized.
Majority opinion written by Justice Oliver Wendell Holmes said, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the state for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetents."
Clearly, some precedents are undeserving of respect because they're repugnant to the Constitution. Isn't Plessy repugnant to the Constitution?
ALITO: It certainly was repugnant to the equal protection clause.
BROWNBACK: And the vision of human dignity.
Isn't Buck and those sort of statements by Oliver Wendell Holmes repugnant to the Constitution?
ALITO: I think they are repugnant to the traditions of our country. I don't think there's any question about that.
BROWNBACK: Give you another case, the Korematsu case versus the United States, 1944 case. World War II broke out following Japanese attacks on Pearl Harbor. Feelings spread that Japanese-Americans, both naturalized and those born in the United States, might not be loyal to the United States; should be removed from the West Coast.
BROWNBACK: So great was the fear that even the esteemed writer, Walter Lippmann stated that, quote, "Nobody's constitutional rights include the right to reside and do business on a battlefield. There's plenty of room elsewhere for him to exercise his rights."
President Roosevelt signed an executive order removing them. Korematsu contested the constitutionality -- Fred Korematsu did -- of his internment.
In Korematsu v. the United States, the Supreme Court held that military necessity justified the internment program and that Fred Korematsu had no protection against relocation under the Constitution.
Of course, that was later overturned. Excuse me: That was never overturned. In 1948, Congress enacted the Japanese American Evacuation Claims Act to provide some monetary compensation. In 1980, Congress again revisited the case.
In 1988, Congress passed legislation apologizing for the internment; awarded each survivor $20,000. In 1999, Fred Korematsu was awarded the Presidential Medal of Freedom, the highest civilian honor that anyone can receive.
Justice has not been done because Korematsu remains on the books. It's still on the books.
Roe v. Wade: you have had every question on that. But I want to point out its difficulty. My colleagues on the other side look at this as completely settled law, but let's see what the legal experts say about how settled it is.
Lawrence Tribe, who will be here to testify, I believe probably against you, in a little bit. Let's see what he says, professor of law at Harvard.
Quote, "One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."
BROWNBACK: Settled law? Super-duper precedents? Lawrence Tribe asked some questions about it.
Justice Ruth Bader Ginsburg: "Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict."
"Provoked, not resolved, conflict" one of your potential colleagues says.
Edward Lazarus, former clerk to Chief Justice Harry Blackmun, who wrote Roe: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right was granted elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe's author like a grandfather."
Settled law? Edward Lazarus has some questions about it being settled.
Let's look at John Hart Ely, former dean of Stanford Law School. Excellent law school in the country -- one of the top law schools in the country.
Roe v. Wade, quote, "is not constitutional law and gives almost no sense of an obligation to try to be. What is frightening about Roe is that this superprotected right is not inferred from the language of the Constitution framers' thinking respecting the specific problem at issue, any general value derivable from the provisions they included or the nation's governmental structure."
John Hart Ely -- think he thinks Roe is settled law? Not constitutional and gives no sense of an obligation to try to be.
Alan Dershowitz, professor of law, Harvard Law School, one of the top law schools in the country. It's not Princeton, but -- Roe v. Wade and Bush v. Gore, quote, "represent opposite sides of the same currency of judicial activism in areas more appropriately left to the political process.
"Judges have no special competency, qualifications or mandate to decide between equally compelling moral claims, as in the abortion controversy. Clear governing constitutional principles are not present in either case."
BROWNBACK: Settled law, super-duper precedents? I think there's places where the court gets it wrong, and hopefully they will continue to be willing to revisit it.
Now I want to look at a couple of areas of law in addition to this. Your view of the Constitution -- and we had -- yesterday, you hit at this, I thought, on some of the edges, but I just want to get your thoughts on how you view the Constitution, how you would review it.
There are these different schools of thought on this: strict constructionists, living document, originalists, and there are several others that float around out there. How do you generally look at the Constitution?
And I'm aware yesterday you were saying that some provisions are very clear and some are not, and you seemed to apply a different set of viewpoints on those of the Constitution.
Could you articulate your view of how you look and interpret the Constitution?
ALITO: First of all, Senator, I think the Constitution means something. And I don't think it means whatever I might want it to mean or whatever any other member of the judiciary might want it to mean.
It has its own meaning. And it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution.
In interpreting the Constitution, I think we should proceed in the way we proceed in interpreting other important legal authorities; in interpreting statutes, for example. I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
But I think we have to recognize that the Constitution is very different from statutes in some important respects.
Statutes are often very detailed, and they generally don't exist without revision for very long periods of time.
The Constitution was adopted to endure throughout the history of our country. And considering how long our country has existed, it's been amended relatively few times.
And the magic of that, I think, is that it sets out a basic structure for our government and protects fundamental rights. But on a number of very important issues, I think the framers recognized that times would change, new questions would come up. And so they didn't purport to adopt a detailed code, for example, governing searches and seizures. That was the example I gave yesterday, and I'll come back to it.
ALITO: They could have set out a detailed code of search and seizure; they didn't do that. They said that the people are protected against unreasonable searches and seizures, and they left it for the courts -- and, of course, the legislative body can supplement this -- to apply that principle to the new situations that come up.
Now, when that is done, that doesn't amount to an amendment of the Constitution or a changing of the Constitution. It involves the application of a constitutional principle to the situation at hand.
BROWNBACK: Let me go to a specific area you have written quite a bit about, and that's on religious liberties and free exercise.
And I've looked at these cases. And this is going to be an active area of law in front of the Supreme Court. It has been for the last 40 years.
You wrote the case of ACLU v. Schundler, 3rd Circuit case considered ACLU challenge to religious displays erected by Jersey City on the plaza of city hall. Jersey City, for decades, it had holiday displays of menorah and Christmas tree. Litigation resulted in permanent pulling of this. The city came back, said, "OK, if that's not good enough, we'll put a nativity scene, a menorah, Christmas tree, Frosty the Snowman, Santa Claus, Kwanzaa symbols and signs explaining the display. So, OK, if two is not enough, we'll add more into that."
And they were again challenged by the ACLU. District court found no constitutional violation.
Panel 3rd Circuit, not including you, reversed that decision. Panel found no basis for the demystification approach, as they put it, and expressed skepticism as to constitutional display.
BROWNBACK: On remand, district court held that there was a constitutional violation. The city appealed. You sat on the panel that heard that appeal. In a 2-1 decision, you upheld the constitutionality of the modified display.
In your decision, you specifically cited Justice O'Connor and two particular issues regarding excessive entanglement with religious institutions and government endorsement or disapproval of religion.
Because Justice O'Connor used these factors to uphold similar displays in prior cases, you applied them to your upholding that Case. That's a correct interpretation; is that correct?
ALITO: Yes, it is, Senator.
BROWNBACK: Because these are coming up so much in front of the court, are these types of displays, you feel -- generally -- constitutionally permissible?
ALITO: Well, this is an area in which the Supreme Court has handed down several decisions. And like a number of the issues that the court has addressed under the establishment clause, it has drawn some fairly fine lines.
The first case involving a display of this nature was the Pawtucket, Rhode Island, display that was involved in Lynch v. Donnelly. And it was a display that was similar to the display in Jersey City. It included both religious and secular symbols. And they found that that was not a violation.
BROWNBACK: I want to jump in here, because I've several areas I want to go at. When I read your opinions, what I hear you to write is you would rather have a robust public square than a naked public square; that you think there is room for these sorts of displays in the public square.
ALITO: Well, that was exactly what Jersey City had decided in that case. And Jersey City said: We are one of the most religiously diverse, ethnically diverse, racially diverse communities you will find anywhere in the country. This is right across the New York harbor from the Statue of Liberty and from Ellis Island and it's still an entry point for a lot of people coming into the country.
And so they have -- over the course of the year at the appropriate time they had a Christmas display, they had a display of a Menorah. On that particular year, Hanukkah was early in the month of December, so the Menorah was up at a different point. They had celebrations for Muslim festivals, for Hindu festivals, for Buddhist festivals, for Latino festivals, for festivals concerning the many ethnic groups in the community.
And their view was that this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them. And this display, they said, reflected that philosophy and, applying the precedents that the Supreme Court had provided in this area, the Pawtucket case.
And in a later case involving a display in Pittsburgh, Judge Rendell and I, who were the judges in the majority on that case, said this is constitutional; this is consistent with the establishment clause.
BROWNBACK: And that's what -- as we've had this 40 years of cases, I really hope we can have a public square that celebrates and not that's got to be completely naked to those views (ph). And I appreciate that.
You wrote in a free exercise case, C.H. v. Olivia. You heard a case in which a child sued through his parents for violation of his free speech and free exercise rights when his school removed and repositioned a poster he had made of a religious figure that was important to him. It was a picture of Jesus. The poster was part of an assignment where students were instructed to show something for which they were thankful.
The district court granted judgment in the pleadings in favor of the defendant, the school district. The 3rd Circuit affirmed.
You dissented in that opinion. Can you elaborate on your reasoning in that particular opinion? Do you remember the case?
ALITO: Yes, Senator, I do.
Justice O'Connor pointed out something that's very critical in this area. She said there is a big difference between government speech endorsing religion and private religious speech. And private religious speech can't be discriminated against. It has to be treated equally with secular speech.
And in this case, this involved a student who -- and there were two incidents. One involved reading. The students in the class were told that if they could read at a certain level, their reward would be to be able to read their favorite story to the class.
And this student satisfied those requirements. And the student wanted to read a very simplified version of the story of Jacob and Esau to the class. And the teacher said, "No, you can't read that to the class. You can read that privately to me off in a corner."
And then Thanksgiving was coming along and the students were told, "Draw a picture of something that you are thankful for."
And I guess the teacher expected they were going to draw pictures of football games and turkeys and things like that, but this student drew a picture of Jesus and said, "That's what I am thankful for."
And the teacher put all the other pictures up in the hall, but would not put this student's picture up in the hall because of its religious content.
ALITO: And that, we found, was a violation of this principle that you have to treat religious speech equally with secular speech.
If you ask a student to say something about a topic -- "What are you thankful for?" -- and the student and the student says something that fits within the topic that the student was asked to talk about, then you can't discriminate against one kind of speech or another.
BROWNBACK: I thought it was a very interesting stance, and I think appropriate that you took, and in one of the obviously very active areas of the law that we have.
I want to look at the issue of checks and balances on the federal court. It's a very active area here in Congress, as a lot of people across the country and certainly members of Congress have grown to feeling that we can do whatever we want to here, but wait until the court decides -- the court has moved beyond judicial restraint.
I asked this of John Roberts, and I asked -- the checks and balances on Congress are obvious. The president can veto a bill. A court can declare something unconstitutional. Checks and balances executive branch are clear. They can be challenged, their actions in the court. Court can say the president can't do that; we cannot appropriate money from here. We've got checks and balances in government. Any high school government student would know that.
Checks and balances on the court: When I talked to John Roberts about this, he said basically the only check and balance is judicial restraint. It's what the court restrains itself in. And yet you have within the constitution a provision that is there that I asked him about, that I want to ask you about.
Article III, Section 2 goes, "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact" -- then it goes on with this interesting exceptions clause -- "with such exceptions and under such regulations as the Congress shall make." The last phrase known as the exceptions clause.
BROWNBACK: What do you believe is Congress' power to define the jurisdiction of the Supreme Court under the exceptions clause?
ALITO: Well, the exceptions clause, obviously, gives Congress the authority to define the appellate jurisdiction of the Supreme Court, and it can provide for various avenues by which cases get to the Supreme Court. And that has changed over the years.
There's been a controversy never resolved about the exact scope of the authority. It came up in Ex Parte McCardle, in the post-Civil War era. And it has been discussed by scholars in subsequent years, and there are several schools of thought on the question about whether it would be consistent with the Constitution for Congress to eliminate jurisdiction in the Supreme Court over a particular type of case.
That's an unresolved issue that the scholars have addressed. And some argue that that falls within the exceptions clause and some argue that it would be inconsistent with other provisions of the Constitution.
BROWNBACK: What I see taking place in this country is the court gets more and more involved in tough political issues, as you're going to be pressing other bodies, then, to say: Look we believe these decisions should be here. We believe the issues on the competing interests in abortion, the mother and the child, should be decided by legislative bodies.
BROWNBACK: But the court said no.
The issue of marriage is coming through the court system right now. As the court keeps getting involved in these areas, I think you're going to see these sorts of constitutional issues being explored more and more.
The marriage case I want to take you to, because that's making its way through the federal court -- 45 of our 50 states have deemed marriage being between the union of a man and a woman.
The state of Nebraska passes a state constitutional amendment, 70 percent of the people voting for it, saying that marriage is a union of a man and a woman. Yet a federal judge, in that case, threw out the state constitutional amendment on novel constitutional grounds, and it's now making its way up through the system.
The Congress has passed the Defense of Marriage Act, DOMA, passed overwhelmingly, signed into law by President Clinton. It basically did two things. First, it establishes for purposes of federal law, marriage would be defined as a union of a man and woman. And second it provided that no state would be forced to recognize a marriage entered into in another state.
A number of legal scholars believe this second part violates the full faith and credit clause of the Constitution.
Judge Alito, this case is coming forward and will probably be resolved in the federal courts, if it isn't resolved by the Congress through a constitutional amendment. What is your understanding of the meaning of the full faith and credit clause, and does this apply to the institution of marriage, which has been traditionally an issue and an area left up to the states?
ALITO: Well, several constitutional doctrines seem to be implicated by the matters that you have discussed.
ALITO: The full faith and credit clause in general means that one state must honor judgments that are issued by a court of another state, and it's an important part of the process. It is an important part of the federal system, so that we don't have warring decisions in different states.
I have not had cases involving this, but there are -- the doctrine has certain boundaries to it. There are exceptions and it covers certain areas and doesn't cover other areas. And a challenge to the Defense of Marriage Act under the full faith and credit clause would call into question the precise scope of the doctrine. And I believe that scholars have expressed differing views about how it would apply in that situation. And that's an issue that may well come up within the federal courts, almost certain to do so.
BROWNBACK: And I know you can't express on it.
One last thing I'd like to get into just very briefly is the takings clause in the Kelo case -- it was in a neighboring circuit to yours, Kelo v. City of New London, where private property was taken by another private group -- private property was taken by a public group and given to another private group.
BROWNBACK: Judge O'Connor wrote eloquently in her dissent: "Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton or any home with a shopping mall or any farm with a factory now."
I just conclude by putting that in front of you, saying that this is one that people have relied upon for a long time: You couldn't take private property to another private individual; it's for public use. And I hope that's one that the court will end up reviewing at some point in time.
SPECTER: Thank you, Senator Brownback.
COBURN: Thank you, Mr. Chairman.
I'd like to put a few things into the record, if I may. One is just a list of cases where Judge Alito ruled for the little guy. There's been a lot made, and here's a list of nine cases with specifics where he, in fact -- one of these I think he mentioned, but the others, and I would like unanimous consent.
SPECTER: Without objection, they will be made a part of the record.
COBURN: Actually, there's 13 cases.
And I also want to go back and quote from somebody who was a member of CAP, and this is Judge Napolitano. He's a commentator on one of the news shows.
And I'd like his statements put into the record from yesterday, where he clarified what CAP was about and clarified the interest of ROTC at Princeton, and the fact that that was one of the leading reasons that that organization was formed. So I'd like for those to be admitted as well.
As you know, I am not an attorney.
COBURN: Sometimes it's very disadvantageous on this panel, but at times it's advantageous.
So I have this little thing that I have to depend on, and I, kind of, read it for what it says. And as you talk about stare decisis, is that mentioned anywhere in here?
ALITO: It is not expressly mentioned in the Constitution.
COBURN: It's actually a procedure of common English law, correct?
ALITO: That's its origin, yes.
COBURN: That's its origin, and we use that as a tool for working with the Constitution.
Can you recall the number of times that precedents have been reversed by the Supreme Court?
ALITO: I don't know the exact figure, Senator.
COBURN: I think it's around 170-some times, affecting some 225 cases, I believe. That's close. That may not be exactly accurate.
So, in fact, it's a tool used to help us with the law, but our founders didn't say, "You have to use stare decisis in this," did they?
They conferred the judicial power on the judiciary, and I think that contemplated that the federal judiciary would be permitted to proceed in accordance with fundamental judicial procedures as they had been known...
ALITO: ... at the time.
COBURN: And Article III, Section 2 really delineates the scope for the courts in this country.
And what it says is "all cases in law and equity arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority." So that really gives us the scope under Article III, Section 2.
And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law.
COBURN: As a matter of fact, the obligation is to use the United States law, the Constitution and the treaties. And that's exactly what Article III, Section 2, says.
And so there's no reference at all to foreign law in terms of your obligations or your responsibility. And a matter of fact, the absence of it would say that, "Maybe this ought to be what we use and the codified law of the Congress and the treaties rather than foreign law."
So the question I have for you, and I couldn't get Judge Roberts to answer it because of the conflict that might occur afterwards, but I have the feeling that the vast majority of Americans don't think it is proper for the Supreme Court to use foreign law.
And I personally believe that that's an indication of not good behavior by a justice, whether it be a justice at an appellate division or a magistrate or a Supreme Court justice.
And I just wondered if you had any comments on that comment.
ALITO: Well, I don't think that we should look to foreign law to interpret our own Constitution.
I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our Constitution.
I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world.
ALITO: The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time.
They wanted them to have the rights of Americans. And I think we should interpret our Constitution -- we should interpret our Constitution. And I don't think it's appropriate to look to foreign law.
I think that it presents a host of practical problems that have been pointed out. You have to decide which countries you are going to survey. And then it's often difficult to understand exactly what you are to make of foreign court decisions. All countries don't set up their court systems the same way. Foreign courts may have greater authority than the courts of the United States. They may be given a policy-making role. And, therefore, it would be more appropriate for them to weigh in on policy issues.
When our Constitution was being debated, there was a serious proposal to have members of the judiciary sit on a council of revision, where they would have a policy-making role before legislation was passed. And other countries can set up their judiciary in that way. So you'd have to understand the jurisdiction and the authority of the foreign courts.
And then sometimes it's misleading to look to just one narrow provision of foreign law without considering the larger body of law in which it's located. If you focus too narrowly on that, you may distort the big picture.
So for all those reasons, I just don't think that's a useful thing to do.
COBURN: It actually undermines democracy, because you get to pick and choose. And the people of this country don't get to pick and choose that law. People from a different country. So it actually is a violation of the Constitution. And, to me, I very strongly and adamantly feel that it violates the good behavior, which is mentioned as part of the qualifications and the maintenance of that position.
I'm sorry Senator Durbin left. I wanted to razz him a little bit. You've taken quite a bit of criticism on things that you've written and said in 1985.
COBURN: But I want to put forward, for 45 years, Senator Durbin was adamantly pro-life and he wrote multiple, multiple letters expressing that up until 1989. He is a very strong advocate for the abortion stance and a free right to choose. But I think it's important that the American people -- that if he has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put.
And so this is just Senator Durbin. I'm teasing him a little bit. But I think it's important that people recognize people can change their mind.
I continue to believe the Supreme Court's decision in Roe v. Wade should be reversed. There are other members on the other that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position.
So it's hard to be critical of you on something in 1985, have written something, when many of us have backtracked on things that we've said through the years.
And so I think it puts a little bit of perspective into where we're going.
I want to spend just a minute, if I can. Yesterday, during Senator Feinstein's questioning, there was some discussion about the health exception to any regulations pertaining to abortion.
On January 22nd, when Roe was decided, court also decided Doe v. Bolton. In that case, the court ruled that a woman's right to abortion could not be limited by the state if abortion was sought for reasons of maternal health.
COBURN: And, as a practicing physician, I agree with that. I've actually performed abortions on women who were going to die if they did not have an abortion. So the choice was somebody alive versus losing both.
The court defined health as all factors physical, emotion, psychological, familial and the woman's age, relevant to the well- being of the patient. This exception effectively expanded the right to abortion for any reason through all the entire pregnancy.
Since that time, states have been trying to find ways to effectively regulate abortion without intruding on this health exception, but it has proven nearly impossible.
The absence of knowledge is something that Roe v. Wade, which I believe was wrongly decided, has hurt us immensely in this country. And the absence of informed consent on abortion has hurt us immensely.
And Mr. Chairman, I would like to enter into the record a study published -- a 35-year longitudinal study which was just released this January from New Zealand. It followed women, 600 women for 35 years, from the time of abortion, that studied ill health effects.
SPECTER: Without objection, it will be made a part of the record.
COBURN: I would also like to enter into the record a Breast Cancer Institute study, an analysis of a Lancet 3/25/04 article, and also the testimony of Dr. Elizabeth Shadigian, University of Michigan clinical associate professor, Department of Obstetrics and Gynecology as to complications.
SPECTER: All of those documents, without objection, will be made a part of the record.
COBURN: It's amazing what we don't know. And, as I explained in my opening statement, once we go down a path, the complications associated -- the rulings that you make have major impact.
I understand the questions that you cannot answer on things that are going to come before us. And I can't pretend to know what is in your heart about those issues.
But what I do know is you were pretty aggressively approached on positions in terms of Justice O'Connor and executive power.
And there seemed to be a blinding contradiction during some of your questions that were presented by my colleagues yesterday; they raised concerns that you're too close to the executive and too supportive of the executive power. They wanted to be sure that you respect the role of the judiciary and are free from the influences of the political branches.
However, they then argued that you should have the same ideology as Justice O'Connor to maintain the balance on the court.
I have trouble figuring out how they can have it both ways. That's an inherently political desire.
Is there anything in the Constitution, this little document, that says what the ideology ought to be of one Supreme Court justice replacing another one?
ALITO: The Supreme Court simply gives the president the authority to nominate justices of the Supreme Court and other federal judges and gives Congress the advice and consent responsibility and doesn't go further than that.
COBURN: And the president, by being elected -- the only person in this country that's elected by the whole country -- is given that honor and privilege as well as that responsibility. And then we have the responsibility to advise and consent to that. Is that correct?
COBURN: But nowhere in the Constitution, nor by precedent -- as a matter of fact, the precedent's just exactly the opposite of that -- is it stated that somebody has to have the same philosophy as somebody that's coming off the court.
ALITO: I think that every Supreme Court justice is an individual, and I think every nominee is an individual, and no nominee can ever be a duplicate of someone who retires, and particularly when someone retires after such a distinguished career and such a historic career as Justice O'Connor. Nobody can be expected, as a nominee, to fit that mold.
COBURN: So the fact that you have to fit Sandra Day O'Connor mold is really a misapplication. There is no precedent that would say that?
ALITO: If I'm confirmed I'll be myself. I'll be the same person that I was on the Court of Appeals. That's the only thing that I can say in answer to that.
COBURN: Let me repeat some facts that one of my colleagues mentioned yesterday.
Of the 109 justices to sit on the Supreme Court, nearly half had replaced justices appointed by another political party.
President Clinton replaced Justice White, who dissented on Roe v. Wade, with Justice Ginsburg, who argued for a right to abortion. Justice Ginsburg was -- I think, three votes against her in the Senate when she was approached, and she took it completely opposite. But she was well qualified. She had integrity. And she was voted on to the court, even though many people knew that her philosophy was very different than theirs. Isn't that true?
ALITO: The vote was 90-something to a small number; I know that, yes.
COBURN: A lot of times in these hearings you don't get a chance to say why would you want to be a justice of the Supreme Court of the United States?
COBURN: Why would you want that responsibility? Why do you want to go through this process to be able to achieve that position? Can you tell the American people why?
ALITO: I think it's a chance to make a contribution. I think it's a chance to use whatever talent I have in the most productive way that I can think of.
There are a lot of things that I can't do and there are a lot of things that I couldn't do very well if I was given the assignment of doing them.
But I've spent most of my career as an appellate attorney. Well, I spent most of my career before becoming a judge as an appellate attorney. And now I've spent 15 years as an appellate judge. And I think this is what I do best.
And I think this gives me an opportunity to make a contribution to the country and to the society. Because the Supreme Court has a very important role to play, and it's important that it do the things that it's supposed to do well. And I would do my very best to further that.
And it is also important for the Supreme Court, and, for that matter, all of the federal courts, to exercise restraint. And as you were referring to earlier, that has turned out to be the principal check on the way the judiciary does its work on a day-to-day basis. The judiciary is not checked in its day-to-day work in the same way as the Congress and president.
ALITO: The Congress can pass a law -- can pass a bill -- and the president can veto it. One house can pass a bill; the other house may not go along. The president has to propose legislation to Congress if the president wants legislation. Congress can pass laws that the president doesn't like.
There are checks and balances that are worked out in the ordinary processes of government. But when it comes to the judiciary, in deciding constitutional cases, the judiciary is checked on a daily basis primarily by its own discipline, its own self-restraint.
And so it's important for -- the judiciary has these twin responsibilities that are in tension at times, doing what it is supposed to do and doing those things well and vigorously and courageously, if it comes to that, but at the same time, constantly monitoring its own activities and asking, "Are we doing what we are supposed to be doing as judges? Are we functioning as judges? Or are we stepping over the line? Are we turning ourselves into legislators? Are we turning ourselves into members of the executive branch or administrators?"
And the judiciary has to maintain its independence. That's of critical importance. That's an important part of the role. And that also has to be informed by this sense of self-restraint.
During Judge Roberts' hearing, Senator Feinstein tried to get him to talk and speak out of his heart, and I thought it was a great question, so that American people can see your heart.
This booklet's designed to protect the weak, to give equality to those who might not be able to do it themselves, to protect the frail, to make sure that there is equal justice under the law.
You know, I think at times during these hearings you have been unfairly criticized or characterized as that you don't care about the less fortunate, you don't care about the little guy, you don't care about the weak or the innocent.
Can you comment just about Sam Alito, and what he cares about, and let us see a little bit of your heart and what's important to you in life?
ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point.
ALITO: I don't come from an affluent background or a privileged background. My parents were both quite poor when they were growing up.
And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
When I have cases involving children, I can't help but think of my own children and think about my children being treated in the way that children may be treated in the case that's before me.
And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account. When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing -- the barriers that it puts up to them.
So those are some of the experiences that have shaped me as a person.
Mr. Chairman, I think I'll yield back the balance of my time at this time, and if I have additional questions, get them in the next round.
SPECTER: Thank you very much, Senator Coburn.
We'll now proceed to the second round of questioning, with each senator having 20 minutes. And we'll take 20 minutes more, and then we'll take a break.
SPECTER: Is it appropriate for the court to declare acts of Congress unconstitutional because of our, quote, "method of reasoning"? Does the court have some superior insights on a method of reasoning?
Is it appropriate for the court to declare acts of Congress unconstitutional, functioning as a taskmaster to make sure that Congress does its homework?
There have been a series of decisions which have seriously undercut congressional power, where, in my opinion, the court has usurped the authority of Congress. And this moves into the often- criticized range of congressional legislation and judicial legislation in derogation of the congressional power.
We are seeking, Judge Alito, to have an appropriate equilibrium in our system. And the beauty of the American system is that no one has too much power. We call it separation of power, although not specifically mentioned in the Constitution. We call it checks and balances.
We have looked into the issue of tremendous importance -- regrettably, we haven't plumbed it, and only scratched the surface, but our time is limited -- on authority of the president under war powers, Article II, contrasted with Congress' authority to legislate for privacy under the Foreign Intelligence Surveillance Act.
SPECTER: And I want to move into two other analogous areas, Congress versus the court and the court versus Congress, as Congress has taken away the jurisdiction of the court, notably, very recently, by stripping habeas corpus jurisdiction on detainees.
When the Congress legislated to protect women against violence, the Congress did so with a very expansive record. It wasn't like Lopez, which was a revolution, where the court upset 60 years of congressional power under the Commerce Act.
But in the case of U.S. v. Morrison, involving the legislation to protect women against violence, there was a record which included gender bias from task forces in 21 states, five separate reports. And notwithstanding a, quote, "mountain of evidence," as noted by four dissenters, the court declared the act unconstitutional because of our method of reasoning.
Now, you're a judge; you may be a Supreme Court justice. Is there something we're missing? Do you judges have some method of reasoning which is superior to the method of reasoning of the Congress?
ALITO: I think the branches of government are equal and all the officers in all the branches of government take an oath to the same constitution.
SPECTER: Equality on method of reasoning?
ALITO: I would never suggest that judges have superior reasoning power than does Congress.
I think what the court was getting at when it made that statement in Morrison -- and yesterday, I looked at something that I had written and said, "That was not well phrased."
ALITO: I think that what the court was getting at there in Morrison was that it was applying a certain standard, certain legal standard, as to whether something substantially affected commerce. And I think that's what they were getting at.
SPECTER: Hard to figure out what they were getting at. We do know what they said. They said our method of reasoning was defective.
But I take it, from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning?
ALITO: I think that Congress's ability to reason is fully equal to that of the judiciary, and I think that...
SPECTER: And you think that even after appearing here for a day and a half?
ALITO: I have always thought that. And nothing has changed by mind about it.
HATCH: We're starting to worry about you.
That's on Senator Hatch's time.
Let me take up the Americans with Disability Act. On two decisions within a couple of years of each other, one where the Supreme Court declared unconstitutional the Americans with Disabilities Act as it applied to employment, upholding the act as it applied to access to facilities.
And Justice Scalia had a ringing dissent when the court imposed a standard of congruence and proportionality -- a very difficult standard which you wrestled with in the family leave case.
SPECTER: The congruent and proportionate standard came to the court in the Boerne case in 1997, so it is very recent origin, and it has all the earmarks of having been pulled out of the thin air. And Justice Scalia said that it was a thinly veiled invitation to judicial arbitrariness and policy-driven decision making. And Justice Scalia criticized the majority opinion for functioning as a taskmaster to see to it that Congress had done its homework.
And here again there was a voluminous record -- 13 congressional hearings, 30,000 people were surveyed.
Do you think, Judge Alito, that a test like congruence and proportionality is fair notice to the Congress on what we can do by way of legislation? Here we're dealing -- and it maybe worthy just a little explanation.
When Congress legislates on constitutional issues under Article V of the 14th Amendment, the court then makes a comparison to state immunity under the 11th Amendment.
But do you think that's a fair test as to what we're to try to figure out what the Supreme Court is later going to say is congruent and proportionate?
ALITO: Well, like many tests in the law, it is not a mathematical or a scientific formula that can produce a particular result with certainty as it is applied to particular situations.
SPECTER: Well, how about just fair notice? Never mind mathematical certainty.
ALITO: It addresses a difficult problem the court has grappled with over the years, and that is the scope of Congress' authority under Section 5 of the 14th Amendment to pass legislation enforcing the provisions of the 14th Amendment.
One argument that has been made, which would represent a very narrow interpretation of congressional power -- and this is basically the position that Justice Scalia took in the dissent that you mentioned, is that Congress's authority doesn't extend any further than remedying actual violations of the 14th Amendment; that Congress doesn't have additional authority to enact prophylactic measures outside of the area of race, which Justice Scalia would treat differently and recognize broader authority because of the historical origin...
ALITO: ... of the 14th Amendment.
SPECTER: ... what's wrong with the test of Maryland v. Wirtz, and Gonzales v. Raich, as you take a look at power under the commerce clause and to be applicable to our legislation under the Americans With Disability Act?
SPECTER: That test is where the court has gone into some length to say what you have gone into repeatedly: that judges have no expertise. It's up to the Congress to have hearings, up to the Congress to find facts, up to the Congress to find out what goes on in the real world.
And in Wirtz, in 1968, and reaffirmed recently in Gonzales v. Raich, after Morrison, after Lopez, quote, "Where we find the legislators have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce" -- could apply as well to disability -- "our investigation is at an end."
What's wrong with that test? Would you subscribe to that test over the proportionate and congruence test?
ALITO: There are a number of tests that have been used and proposed over the years in this area.
ALITO: And this is the subject I think of continuing litigation in the Supreme Court.
There is the Maryland v. Wirtz approach and then the City of Boerne approach. And you mentioned that the City of Boerne is a relatively recent decision and it has been followed by a number of subsequent decisions.
SPECTER: Where did it come from? Where did the Boerne test on proportionate and congruence come from, if not thin air?
ALITO: I think it was an effort by the majority in that case to identify a standard that would not strictly limit congressional power to remedying established violations of the 14th Amendment without going -- while still in their view retaining the necessary remedial connection to Section 5 of the 14th Amendment.
It is an approach that they have used in a number of cases. And the cases have not come out -- sometimes the results have not been predictable.
You mentioned the contrast between the two decisions under the Americans with Disabilities Act. I think Nevada v. Hibbs was a decision that some people -- that surprised some people based on the court's prior precedents.
So there is, I think, still some ferment in this area. I am sure it is a question that is going to be -- that will come up in future cases.
SPECTER: We're speaking not only to you, Judge Alito, but to the court. The court watches these proceedings. And I think they ought to know what the Congress thinks about making us schoolchildren or challenging our method of reasoning.
SPECTER: We're considering legislation which would give Congress standing to go into the Supreme Court to uphold our cases.
Right now the solicitor general does that. He's in the executive branch. We don't want to derogate the solicitor general in your presence, Judge Alito, but the thinking that we've had was to speak about your decisions and the court's decisions on the floor of the Senate. Nobody pays attention to that. Maybe we would try to come in as amicus. Why do that?
We have the power to grant standing. We could grant standing to ourselves and come into court and fight to uphold constitutionality.
Let me move at this point to the recent legislation which takes away the jurisdiction of the federal bench to hear habeas corpus decisions. It's in the context of the detainees.
Justice O'Connor in Hamdi laid out the law in flat terms. "All agree that, absent suspension, the writ of habeas corpus remains available to every individual detained within United States" -- every individual, not just citizens. And then she spells out the way you suspend the writ, and you do it only by rebellion or invasion.
And then this recent legislation says, "The District of Columbia Court of Appeals shall have the exclusive jurisdiction to determine the validity of any final decision by the Combatant Status Review Tribunal."
SPECTER: If it means what it says, and judges like to look to the statute as opposed to going to congressional intent, if it means what it says that there was exclusive jurisdiction, there's no jurisdiction of the Supreme Court.
This may come before the court. What factors would you consider to be relevant in making the analysis as to, again, maintaining equilibrium between the court and the Congress of our authority to take away federal court jurisdiction on this important item?
ALITO: In the area of habeas corpus, there are a number of important principles that have to be considered in reviewing any legislation that someone contends has altered habeas jurisdiction.
The first is that the courts said in a case called INS v. St. Cyr that if there is an attempt to -- that habeas jurisdiction can't be taken away unless it's clear in the statute that that's what was intended. Habeas jurisdiction is not to be repealed by implication. That's one important principle.
And then in Felker v. Turpin, which involved the Anti-Terrorism and Effective Death Penalty Act of 1996, the Supreme Court considered arguments about whether provisions of that legislation, which restructured federal habeas review, violated the Constitution.
And they found that there wasn't a violation because the essentials of the writ were preserved. And so if other legislation is challenged, it would have to be reviewed under standards like that.
SPECTER: Judge Alito, I want to move now to a subject on efforts to have television in the Supreme Court of the United States, a subject very near and dear to my heart.
SPECTER: I've been pushing it for a long time. I'm personally convinced that it's going to come some day. I'm not sure whether it'll come during my tenure in the Senate. More likely it'd come during the tenure of Chief Justice Roberts in the Supreme Court, or your tenure, if confirmed.
The Supreme Court said in the Richmond newspaper case v. Virginia, quote, "The rights of a public trial belong not just to the accused, but to the public and the press, as well. Such openness has long been recognized as an indispensable attribute in the Anglo-Saxon trial."
There are many other lines of authority, but only a few moments left to set the stage here. But the Supreme Court has the final word.
We can talk about the president's war power under Article II and the congressional authority under the Foreign Intelligence Surveillance Act, but the court makes the decision.
We can talk about taking away habeas corpus jurisdiction, but the court decides whether we can do it or not.
We can talk about the insult of declaring acts of Congress unconstitutional because of our method of reasoning, but the court can do that.
And the court has made these decisions on all of the important subjects. The court decided who would be president of the United States in Bush v. Gore. The court decides who lives on a woman's right to choose, who dies on the right to die, on the death penalty, on every critical decision.
The Congress has the authority to do many things on the administrative level, such as we set the starting date for the court, the first Monday in October. We set what is a quorum of the court, six members. Congress sets the size of the court, effort made by President Roosevelt to increase the number from nine to 15. We put provisions in on speedy trial, time limits on habeas corpus matters.
In recent times, some of those who have objected to televising the court has been on television quite a bit themselves. When Justice Scalia and Justice Breyer come on TV, it's a pretty good show, not much surfing when that happens, like surfing when my turn comes to question.
But this proceeding on confirmation of Supreme Court justices has attracted a lot of attention. As I said to you yesterday, I'm tired of picking up the front page everywhere and seeing your picture on it.
Brit Hume was on Fox News talking about going to a Redskins game in 1991 when Justice Thomas was being confirmed and how he had his ear sets on to listen to the proceedings.
SPECTER: I think Senator Leahy was questioning Professor Hill at that particular time.
But how about it? Why shouldn't the Supreme Court be open to the public with television?
ALITO: Well, I had the opportunity to deal with this issue, actually, in relation to my own court a number of years ago. All the courts of appeals were given the authority to allow their oral arguments to be televised if they wanted.
And we had a debate within our court about whether we should allow television cameras in our court room. And I argued that we should do it. I thought that it would be a useful...
SPECTER: Really? You have taken a position on this issue?
ALITO: Well, I did, and this is one of the matters on which I ended up in dissent in my court.
The majority was fearful that our Nielsen numbers would be in the negative.
SPECTER: Could you promise the same result?
Could you promise the same result, if confirmed, to be a dissenter? Will the court allow TV?
GRASSLEY (?): Be careful how you answer.
SPECTER: Be careful how you answer everything, as you have been.
ALITO: The issue is a little bit different on the Supreme Court. And it would be presumptuous for me to talk about it right now, particularly since, I think, at least one of the justices has said that a television camera would make its way into the Supreme Court room over his dead body.
So I wouldn't want to comment on it...
SPECTER: Justice Souter. But quite a few of his colleagues have been on television. Let me ask you this, Judge Alito -- I know what the answer will be -- with seven seconds left, will you keep an open mind?
ALITO: I will keep an open mind, despite the position I took on the 3rd Circuit.
SPECTER: Thank you, Judge Alito. We'll now take a 15-minute break and we'll reconvene at 11:35.
SPECTER: The hearings will resume.
And, turning to distinguished ranking member, Senator Leahy, for 20 minutes.
LEAHY: Thank you, Mr. Chairman.
And, Judge Alito, welcome back. If the past is any prologue, you probably don't have more than another day or so of this to go through.
But I am concerned -- and I want to state this our right outright -- concerned that you may be retreating from part of your record. And I think that some of the answers, and I have expressed this concern. I mentioned it to the chairman. I'm concerned some of your answers were inconsistent with past statements.
All of us want to know your legal and constitutional philosophy. So, let's go back to the questions I was asking yesterday about checking presidential power.
And we spoke about Justice Jackson's opinion in Youngstown. Justice Jackson, as you know, is a hero of mine. And I point often to the Youngstown case.
But when Congress acts to restrain the president's power, as we did with the anti-torture statutes and the Foreign Intelligence Surveillance Act, I believe the president's power than is at its lowest ebb.
You seemed to be saying yesterday that fell into the second category of Jackson, the "twilight zone." Actually, I believe you were mistaken on that. Justice Jackson spoke of the "twilight zone" area, or as he said, "a zone of twilight," where Congress had not acted.
So, let's go to a landmark decision, Hamdi and Justice O'Connor's decision. That's whether there was due process required, so a U.S. citizen can have a meaningful chance to challenge his detention by the government.
Now, Justice O'Connor wrote that the president does not have a blank check even in time of war. And yesterday, you told Senator Specter that you agreed with Justice O'Connor's general statement.
A very different view was in the dissent. Justice Thomas would have upheld the extreme claims for this all-powerful and essentially unchecked president.
LEAHY: He argued the government's power could not be balanced away by the court and there is no occasion to balance the competing interests.
Which one is right, Justice O'Connor or Justice Thomas? They're quite a bit different.
ALITO: Justice O'Connor wrote the opinion of the court.
The first question that she addressed in Hamdi was whether it was lawful to detain Hamdi, and it was a statutory question, and it was a question whether it was -- whether he was being detained in violation of what is often referred to as the anti-detention statute, which was passed to prevent a repetition of the Japanese internment that occurred during World War II. And she concluded that the authorization for the use of military force constituted an authorization for detention.
And then she went on to the issue of the constitutional procedures that would have to be followed before someone could be detained. And she looked to standard procedural due process law in this area and identified some of the requirements that would have to be followed before someone could be detained.
And now issues have arisen about the identity of the tribunal that is to make a determination about detaining people who are taken into custody during the war on terrorism.
And that's one of the issues that's working its way through the court system.
LEAHY: No, I'm not talking about those things that are working, but just on Hamdi -- that has been decided -- would you say that Justice O'Connor basically applied the Jackson test, not the twilight zone test but the test of where the president's power is at its lowest ebb?
ALITO: In addressing the statutory question, I don't think she had any need to get into Justice Jackson's framework as well.
LEAHY: So would you say it would be consistent with what Justice Jackson said?
ALITO: I think it's certainly consistent with what Justice Jackson said...
LEAHY: Which decision do you personally agree with, hers or the dissent by Justice Thomas?
ALITO: I think that the war powers are divided between the executive branch and the Congress. I think that's a starting point to look at in this area.
The president is the commander in chief, and he has authority in the area of foreign affairs and is recognized in Supreme Court decisions as the sole organ in the country for conducting foreign affairs.
LEAHY: But you're not going to say which of the two decisions you...
ALITO: Well, I'm trying to explain my understanding of the division of authority in this area. And I think that it's divided between the executive and the Congress.
I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.
LEAHY: We all understand that and appreciate that. My understanding, listening to Chief Justice Roberts when he was here same way you are, that he felt that Justice O'Connor's decision most clearly tracked the Jackson standard in Youngstown.
But let's go -- I want to get more into this unitary executive theory, because I really had questions listening to you yesterday. You've said as recently as five years ago that you believe the unitary executive theory best captures the constitutional role of presidential power. You were a sitting judge when you said that.
And do you still adhere to that legal and constitutional view that you were expressing five years ago?
ALITO: I think that the considerations that inform the theory of the unitary executive are still important in determining and deciding separation of powers issues that arise in this area.
ALITO: Of course, when questions come up involving the power of removal, which was the particular power that I was talking about in the talk that you are referring to, those are now governed by a line of precedent from Myers, going through Humphrey's executor and Wiener and Morrison, where the court held 8-1 that the removal restrictions that were placed on an independent counsel under the Independent Counsel Act did not violate separation of powers principles.
So those would be applied. Those would be the governing precedents on the question of removal.
But my point in the talk was that the considerations that underlie this theory are relevant; should inform decision-making in the area, going beyond the narrow question of removal.
LEAHY: But in the past, you criticized Morrison. Are you saying now that you're comfortable with Morrison? Do you accept it?
ALITO: Morrison is a settled precedent -- is a precedent of the court. It was an 8-1 decision. It's entitled to respect under stare decisis. It concerns the Independent Counsel Act, which no longer is in force.
LEAHY: So do you hold today that the independent counsel statute was beyond the congressional authority to authorize?
ALITO: No, I don't think that was ever my view.
Under the theory of unitary executive that you've espoused, what weight and relevance should the Supreme Court give to a presidential signing statement?
I ask that because these are real issues. I mean, we passed the McCain-Warner et al. statute against torture, when the president did a separate -- after he signed it into law -- he didn't veto it -- he had the right and, of course, the ability to veto it. He didn't veto it. He signed it into law and then he wrote a sidebar or a signing statement basically saying that it will not apply to him or those acting under his orders if he doesn't want it to.
Under a unitary theory of government, one could argue that he 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?
ALITO: I don't see any connection between the concept of a unitary executive and the weight that should be given to signing statements in interpreting statutes. I view those as entirely separate questions.
The question of the unitary executive, as I was explaining yesterday, does not concern the scope of executive powers, it concerns who controls whatever power the executive has. You could have an executive with very narrow powers and still have a unitary executive. So those are entirely different questions.
The scope of executive power gets into the question of inherent executive power.
LEAHY: Let me go into that little bit. Because back in the days when I was prosecutor, I was very shocked what happened on the Saturday Night Massacre.
LEAHY: The president orders certain things to be done. The attorney general says, "No, I won't do it." He fires him.
The deputy attorney general -- he said, "OK, you do it." And the deputy attorney general wouldn't, saying it would violate the law. Fires him.
They keep on going down. Finally, they find one person, a person you have praised -- Robert Bork -- who says, "Fine, I'll fire him. I'll do what the president says."
You have criticized Congress for allowing these independent agencies to refine and apply policies passed by Congress. You said that insofar as the president is the chief executive, he should follow their policies, not Congress.
So let's take one for example.
The Federal Election Commission, independent agency. They make policy. Suppose the president, whoever was the president, didn't like the fact they were investigating somebody who had contributed to him. Could he order them to stop that investigation?
ALITO: Senator, I don't think I've ever said that -- I don't think I've ever challenged the constitutionality of independent agencies.
LEAHY: No, but you said -- I want to make sure I -- my understanding is you've chastised Congress for giving so much power to them when the power should be in the president or in the executive.
ALITO: Senator, I don't think I've never said that, either.
I said that I thought that there was merit to the theory of the unitary executive. And I tried to explain how I thought that should play out in the post-Morrison world.
Accepting Morrison as the Supreme Court's latest decision, in a resounding 8-1 decision on the issue of removal, how should the concept of the unitary executive play out in the post-Morrison world?
ALITO: On the issue of removal, my understanding of where the law stands now is that Myers established that there are certain officers of the executive branch whom the president has the authority to remove as he sees fit.
LEAHY: Of course, he could fire his whole Cabinet today if he wanted to. We all accept that.
ALITO: Well, that was the issue that was presented by the Tenure in Office Act that led to the impeachment of the first President Johnson. And in Myers, Chief Justice Taft, although the act -- that controversy was long passed -- Chief Justice Taft opined that the Tenure in Office Act had been unconstitutional.
LEAHY: But let's not go off the subject of these independent agencies that we have set up, using the example of the FEC, the Federal Election Commission. Could the president, if he didn't like somebody they were investigating, a contributor or something, could he order them to stop?
ALITO: What Morrison says is that Congress can place restrictions on the removal of inferior officers, provided that those removal restrictions don't interfere with the president's exercise of executive authority.
So they adopted a functional approach. And that was the court's latest word on this question.
They looked back to Humphrey's Executor and Wiener, which had talked about categories, and they -- categories of quasi-judicial and quasi-legislative officers -- and they reformulated this as a functional approach. And that's the approach that would now be applied.
LEAHY: Do you believe the president has the power to curtail investigations, for example, by the Department of Justice? The Department of Justice is under him.
ALITO: I don't think the president is above the law.
ALITO: And the president is the head of the executive branch. And I've explained my understanding of the removal restrictions that can and cannot be placed on officers of the executive branch.
LEAHY: But could he order them to stop an investigation?
ALITO: Well, you would have to look at the facts of the case and the particular officer that we're talking about.
LEAHY: Could he order the FBI to conduct surveillance in a way not authorized by statute?
ALITO: The president is subject to constitutional restrictions and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution.
LEAHY: I'm speaking now of statute. Could he order our intelligence agencies to do something that was specifically prohibited by statute?
ALITO: Well, my answer to that is the same thing. He has to follow the Constitution and the laws of the United States. He has to take care that the laws are faithfully executed.
If a statute is unconstitutional, then the Constitution would trump the statute. But if a statute is not unconstitutional, then the statute is binding on the president and everyone else.
LEAHY: But does the president have unlimited power just to declare a statute -- especially if it is a statute he had signed into law -- to then declared that unconstitutional, and he's not going to follow it?
ALITO: If the matter is later challenged in court, of course, the president isn't going to have the last word on that question. That's for sure. And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court.
LEAHY: Now, that is an answer I agree with. Thank you.
In other areas, SEC, can he order them to stop an investigation if it's if somebody doesn't want to investigate it?
ALITO: Well, the independent agencies are governed by Humphrey's Executor and cases that followed that. And there has been restrictions placed on the removal of commissioners of the independent agencies and they have been sustained by the Supreme Court.
And that is where the Supreme Court precedent on the issue stands.
LEAHY: Is that settled law?
ALITO: It is a line of precedent that culminated, I would say -- there have been a few additional cases relating to this, the Edmund case and the Freitag case -- but I would look to Morrison, which was an 8-1 decision involving a subject of considerable public controversy, the removal of an independent counsel, removal restrictions on an independent counsel.
LEAHY: I'm still having some difficulty in statements you've made about the unitary form of government and how you would apply it.
You suggested an answer to a question I asked. When people's rights are violated they should have their day in court. The court's are there to protect the rights of individuals. I don't think anybody in this room would disagree with that.
It's the practice we look at.
In PIRG v. Magnesium Elektron, you concluded the Congress didn't have the constitutional authority to authorize citizens to bring a suit against a polluters under the Clean Water Act.
Whether the people had justiciable claims or not, there were a number of people downstream from the Magnesium Elektron. They said the water had been polluted. They brought a suit. You threw it out. Judge Lewis dissented; said it should have gone back to the lower court on the question of facts.
I'll give you a two-part question. One, why did you send that back? And do you accept Laidlaw as being settled law?
ALITO: Well, Magnesium Elektron presented the question of whether we had a case or controversy under Article III -- and that's the fundamental limit on our jurisdiction.
The Supreme Court has said that we do not have a case or controversy before us if we do not have a party that has constitutional standing, which requires injury in fact.
ALITO: And the issue was whether the plaintiffs in that case had established injury in fact.
There was a plant that was discharging certain things into a creek which eventually emptied into the Delaware River. And the plaintiffs in the case alleged that they enjoyed the Delaware River in a variety of ways -- they ate fish from the river, they drank water from the river, they walked along the river -- but there was nothing in the evidence -- and Judge Lewis agreed on this -- Judge Roth wrote the opinion. I agreed with Judge Roth and Judge Lewis with us on this point.
There was nothing in the record...
LEAHY: But didn't Judge Lewis agree with you on the legal point, but he suggested sending it back to the lower court to determine whether there were facts to give standing?
I mean, we all agree, you can't be in a case if you don't have standing. But didn't Judge Lewis say, "Send it back to the lower court so they can determine on the facts whether there might be standing"?
ALITO: The evidence that was before us did not show that there was any standing on the part of the plaintiffs. There was no evidence of harm to the Delaware River in any way from the discharges and that was the basis of Judge Roth's opinion with which I agreed.
As I recall, Judge Lewis's point was that the case should go back to the district court so that the plaintiffs could have an opportunity to present additional evidence.
But as I recall, they were not even arguing before us that they had additional evidence. They were not arguing before us, as I recall, that, "We have additional evidence and we would like the opportunity to go back to the district court to present it."
That's my recollection of the matter.
LEAHY: And the other part of my question is Laidlaw settled law?
ALITO: Well, Laidlaw is a precedent on the Supreme Court. And my answer to the question there is the same: It is entitled to the respect of stare decisis.
SPECTER: Thank you, Senator Leahy.
HATCH: Judge Alito, I just want to clarify a few matters.
In his questioning this morning, Senator Durbin from Illinois, I think apparently misstated what Chief Justice Roberts said during his confirmation hearings.
HATCH: Senator Durbin claimed that the chief justice -- now the chief justice said that Roe was the settled law of the land.
In fact, that exchange that Senator Durbin referred to was made during the confirmation process for Judge Roberts to the Circuit Court of Appeals for the District of Columbia, where he would have to admit that that would be settled law for him in that court. It's beyond question that for a circuit court nominee the Supreme Court's pronouncements on specific questions are binding precedents and will be the settled law of the land.
Moreover, contrary to the distinguished senator from Illinois' suggestion, then-Judge Roberts' testimony, his recent confirmation hearing, and your testimony today and yesterday, you've both been entirely consistent in this particular matter.
I just wanted to clarify that, because there's a difference between a nominee for the circuit court of appeals saying that something is settled law that he or she has to be bound by than by somebody who is a nominee for the Supreme Court. And that's just a matter of clarification that I would like to make at this time.
Now, yesterday, you were asked some 340 questions by 15 senators, and you're getting a bunch today. And I'm told that you felt that you had to decline to answer only about 5 percent of them. That's even lower than previous Supreme Court nominees, by far, in most cases.
Now, this hearing has hopefully provided an opportunity for you to address our concerns and answer some of the criticisms from members of this committee. But, of course, there's always a battle waged outside of this committee room by the special interest groups who are also making charges and launching, really, unfair attacks on you.
Now, these attacks typically go directly across the airwaves or the Internet with hardly a chance to even catch them, let alone address them or rebut them or correct them. So I want to give you a chance to respond to some of these attacks by some of these left-wing groups, many of which are certainly less than responsible, in my view, pretty reprehensible in what they do in these matters.
HATCH: One group says in a press release that in the Chittister case, and at other times in your career on the bench, you go out of your way to rule against workers.
Now, this group claims that what it calls your views and biases are strong evidence that you would, in their words, quote, "rarely rule in favor of those seeking justice in the courts," unquote.
I think that's a good example of how misleading some of these groups can actually be, where they're looking only for results in certain cases rather than upholding of the law itself in those particular cases.
And, in that particular case, they're apparently willing to ignore two things about the cases they discuss. They ignore the facts, they ignore the law, and that's all, just the facts and the law. But they also ignore what you've written, and they ignore what you've said here today.
How about that criticism, Judge? In Chittister did you go out of your way to rule against workers? What were the facts and the law in the case? And why did you think that they required the result that you finally upheld in that case?
ALITO: I thought the result was dictated by Supreme Court precedent, and I wasn't the only one who thought that. That was a unanimous decision of our panel. Judge McKee and I believe Judge Fullum (ph) from the district court in Philadelphia were on that panel. They all agreed.
And it is my recollection that seven other courts of appeals had decided the case the same way. More than 20 court of appeals -- that issue the same way. More than 20 court of appeals judges, including judges appointed by all recent presidents, have reached that decision.
And I think when you look at the law and the facts of the case, it becomes clear why there is so much unanimity on the question.
ALITO: Whether one likes the test or not, the test that we on the lower courts have to apply in this area is the congruence and proportionality test from City of Boerne. And therefore what we had to do was to see whether there was a record of discrimination relating to the particular provision that was at issue in Chittister, which had to do with leave for personal illness.
So there would have to be some evidence that state employers had given more leave for personal illness to men than women, or more leave for personal illness to women than men. And there was no evidence whatsoever on this issue, and that's why all of these courts of appeals reached the conclusion that they did in Chittister.
HATCH: When somebody takes an unfair crack at me, I can come back at them as a member of the United States Senate. But because you're a judge and not a politician, you really don't have the opportunity, really, to address fully these misrepresentations of your views. And there have been plenty of them in this process that you've had to undergo.
So I wanted to give you some opportunity to here. For example, one liberal group sent an e-mail around just yesterday that claimed you were not responsive to a question about whether the president can immunize executive branch officials who directly violate the law.
Now, is it an accurate representation of your views to suggest that you argued that executive branch officials should be fully immunized for their violations of the law?
ALITO: No, it's not a correct expression of my views. The president, like everybody else, has to follow the Constitution and the law. He has to follow the Constitution at all times. And he has to follow all the laws that are enacted consistent with the Constitution. That's clear.
Now in the Mitchell v. Forsyth case which they may be referring to, I was simply saying that a certain argument relating to immunity from civil damages was an argument that had been made before and it was an argument that was being requested by our client in the case, who was being sued in his individual capacity.
ALITO: And I recommended that we not make the argument, but said, "I don't dispute this argument." And that's all that was involved there.
HATCH: Let me say just this: I want to allow you to respond to a tactic that has been used by several of our colleagues here in these hearings.
They observed results in some past cases and then they expressed concerns that entire groups or categories of litigants might not be able to get a fair shake by you in the court.
One of them, yesterday, wondered whether the average citizen, quote, "can get a fair shake from you when the government is a party," end quote.
Another did the same thing this morning. It's one thing to express disagreement with your decisions. And, of course, as I said before, to look only at results and ignore the facts and the law is fundamentally misguided. And it's a misleading way of evaluating judicial decisions.
But let's be clear what is being floating around here with this type of tactic.
Those who say, "Because you ruled this way in the past, litigants cannot get a fair shake in the future," are saying, Judge, that you are biased, that you prejudge these cases, that you are less than fair and impartial -- something that virtually everybody who knows you, including all of the people who testified before the American Bar Association, say is false -- that you prejudge these cases, you're less than fair and impartial.
You know, that's a very serious charge even if it is cloaked in suggestions and innuendo.
Judge, you previously mentioned your oath of office, an oath before God to do equal justice to everyone without regard to who the parties are.
How do you react to this suggestion that the way you've ruled in the past shows or even suggests that you're biased and that entire categories of litigants may not get a fair shake before you?
ALITO: Well, I reject that.
ALITO: I believe very strongly in treating everybody who comes before me absolutely equal.
I take that oath very seriously. And I have tried my very best to abide by that during my 15 years on the bench.
And I don't think a judge should be keeping a scorecard about how many times the judge votes for one category of litigant versus another in particular types of cases. That would be wrong. We're supposed to do justice on an individual basis in the cases that come before us.
But I think that if anybody looks at the cases that I voted on in any of the categories of cases that have been cited, they will see that there are decisions on both sides. In every type of employment discrimination case, for example, there are decisions on both sides.
HATCH: But most employment discrimination cases really are decided at the lower level.
ALITO: Most of them are.
HATCH: And when they get up to your level it's generally decided on technical or a procedural basis. Am I wrong in that?
ALITO: No, that's correct, Senator.
HATCH: And sometimes you have to uphold the law even though you may be uncomfortable with the law yourself.
ALITO: We have to decide the cases on the facts that are in the record and the law that applies.
Well, let me just ask you about a few of your cases. Because, you know, it's easy to cherry-pick these cases and find a sentence here you don't like and a sentence there you don't like and criticize you, in the process, as though you're not being fair, when, in fact, everybody who knows you knows your impeccable reputation for fairness, dignity, decency and honor, and capacity.
And that's why you got the highest rating from the American Bar Association. And deserve it. And you've twice got that. And I know how tough they can be.
But let me just give you a couple illustrations.
HATCH: Zubi v. AT&T. You were the lone dissenter in that case. What did you dissent from?
ALITO: I dissented from a majority decision that held that Mr. Zubi, who was claiming racial discrimination, would not have his day in court because of the statute.
HATCH: You would have given in his day in court, right?
HATCH: If it had been up to you?
HATCH: All right, how about U.S. v. Kithcart? I don't expect you to remember all these cases -- and if you don't, just raise your hand and I'll try and recite them.
But this was a Fourth Amendment case. You held that the Fourth Amendment does not allow police to target drivers because of the color of their skin; is that right?
ALITO: That's right. That was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment.
HATCH: That was even after a police officer received a report that two black men in a black sports car had committed three robberies. And she pulled over the first black man in a black sports car she saw. But you ruled for the defendant and against racial profiling in that case.
HATCH: OK. And Thomas v. Commissioner of Social Security -- just to mention a few of these cases that show that you're going to do what's right, regardless. And sometimes in these employment cases and even other cases, when they get up on appeal, they're fairly technical in nature and you have to do what is right under the law.
But in Thomas v. Commissioner of Social Security -- do you recall that case?
HATCH: What'd you do there?
ALITO: That was a case where I think the Supreme Court thought that my opinion had gone too far in favor of the little guy who was involved there.
HATCH: This was a woman with disabilities, right?
ALITO: That's right. A woman who was trying to get...
HATCH: And she sought Social Security benefits.
ALITO: ... Social Security disability benefits. And in order to be eligible for those, she had to be unable to perform any job that existed in substantial numbers in the national economy.
HATCH: She had a job as an elevator operator if I recall correctly.
As the case was presented to us, the only job that she could perform was her past job, which was as an elevator operator.
And what I said was that you can't deny somebody Social Security benefits because the person is able to do a job that no longer exists in any substantial numbers in the national economy. You can't deny benefits based on a hypothetical job. It has to be based on a real job.
And the Supreme Court didn't see it that way, but it seemed to me that the way that we ruled was consistent with what I thought about it.
HATCH: So in other words, although you stood up for the person seeking rights here, the Supreme Court overruled you.
In the landmark case Fatin v. INS, this involved Iranian women who refused to conform to their government's gender-specific laws and social norms; whether or not they should be granted asylum in America.
How did you rule in that case?
ALITO: I think that was one of the first cases in the federal courts to hold that requiring a woman to be returned to a country where she would have to wear a veil and conform to other practices like that would amount to persecution if that was deeply offensive to her, and that subjecting a woman to persecution in Iran or any other country to which she would be returned based on feminism would be persecution on the basis of political opinion.
HATCH: Well, I've got another nine or 10 cases and perhaps even more that I could go through. But the point is that whenever they deserve to win, they win, regardless of whether they are rich or poor, whether they're powerful or not. You have basically upheld the law in these cases, is that correct?
ALITO: That's what I have tried to do.
HATCH: And where you've been in dissent, you've tried to do it to the best of your abilities.
Let me just mention one other thing. This business of the Vanguard, when you signed that back in 1990, 12 years before the matter for which you are being criticized -- not by anybody who has any ethical, professorial, or other knowledge, not by the American Bar Association, not by the vast majority of lawyers to look at these matters -- that particular statement said will you, during your, quote, "initial service," unquote. It seems to me those are important words.
Now, you haven't tried to hide behind that. You've just honestly explained that basically you made a mistake, which really wasn't a mistake according to all the ethics people and according to the American Bar Association.
And now, instead of the original accusation or the original implication, you're being accused of not being forthcoming because of that our original statement and your application to the committee questionnaire.
HATCH: But the fact of the matter is that, quote, "initial service," doesn't mean 12 years away, does it, when there's no chance in the world that you could ever receive any monetary benefit from Vanguard?
ALITO: Well, I don't think initial service means 12 years away.
HATCH: Neither do I and neither does anybody who cares about justice and what's right in this matter.
So to blow that out of proportion like your adversaries have done is really pretty offensive. I could go on and on, and maybe be stronger on that, but the fact of the matter is I just wanted to make that, "initial service," unquote, pretty clear.
Now, let me just say that sometimes I just can't make sense of what some of your critics are saying. On the one hand, they want to portray you as some sort of a robotic patsy for big government who does not think for himself.
Yesterday, one of my Democratic colleagues even suggested that the Bush administration was trying to manipulate you to give responses favorable to them in this hearing.
Now, you quite rightly said, and I think you were fairly restrained about saying it, that you have been a judge for 15 years and are quite capable of thinking for yourself.
On the other hand, your critics then turn it around and attack you for supposedly dissenting too much, as if you should actually stop doing all that thinking for yourself and just fall in line with the majority in all of your cases.
Now, Judge, I know that appeals court judges, that the appeals court themselves are collegial bodies, but how do you view dissenting from your colleagues?
How you decide when to do it? How did you know how often you dissent from your court, or do you know often you dissent in your court and whether it's out of step with your colleagues?
HATCH: Could you give us some answers there?
I think that it's important for a multi-member court to issue a judgment and to speak clearly to the lower courts and the parties.
And so when I've been in a position where taking an independent position would result in the absence of a judgment, I have gone out of my way to make sure that there was a judgment, that there was a majority opinion.
And an example of that is the Rappa case, where we were really divided three ways and my position was close to Judge Becker's opinion. And Judge Becker had the opinion writing assignment and I issued an opinion saying, "I don't completely agree with the way Judge Becker analyzed this issue, I would analyze it differently, but I'm joining his opinion so that there is a majority opinion, so that there is a clear statement of the law for the guidance of the parties."
I think that's the first principle.
The second is that judges should be respectful of each other's views, and I have tried never to write a dissenting opinion or respond in a majority opinion to a dissenting opinion in a way that was not completely respectful of the views of the other members of the court.
It's useful to dissent if there's a chance that the case may go en banc, and that's happened in a number of cases where I've dissented. It's useful to dissent if there is a chance that the case may go to the Supreme Court and so that the Supreme Court will have the benefit of a different expression of views. And there have been cases...
HATCH: Would it surprise you to know that you've dissented only 79 times in nearly 5,000 cases in which you've participated?
That comes out to about 1.6 percent, which is considerably lower than most others who have been on the appellate courts.
And I would observe that the Washington Post concluded in an editorial that your dissenting opinions, quote, "are the work of a serious and scholarly judge whose arguments deserve respect," unquote.
I certainly agree wholeheartedly with that assessment.
SPECTER: Thank you, Senator Hatch.
The transcript continues in Part II.
Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved
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JANUARY 11, 2005 SPEAKERS: U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
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Memo To Barry: Enough
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For several years now, some of Marion Barry's friends have been concerned that he was back on the stuff. Off and on, they've told him they suspected and begged him to get help. When he spurned their love, some of them decided that the only thing they could do for him was to cut him off, walk away, stop letting him think he could handle it all, stop enabling.
He found himself without work, without his entourage. After the murky 2002 incident in which police found Barry sitting in his Jaguar with a small amount of crack cocaine, the four-time mayor knew well enough to back out of his candidacy for an at-large seat on the D.C. Council. After that, his wife left him and he ended up in a small apartment, alone.
About the best thing you can say about Marion Barry is that although he ran a government that handed out contracts to a whole lot of people who had never before had much money, he never took for himself. When he ran for council from Ward 8 in 2004, he needed the salary.
But when Barry launched that bid to return to elective office, many of those who had always stood by him absented themselves.
Of course, Barry won anyway, because he is a master campaigner, because despite his increasingly frail body, he still had some of the old magic, because a vote for Barry was still a poke in the eye to the powers that be, because Ward 8 in Southeast Washington is still home to thousands of people whose eyes sparkle when they talk about how Barry gave them their first summer job, back in the day.
And now he's gone and disappointed even those people, testing positive for drug use, sources told The Post's Yolanda Woodlee and Carol D. Leonnig. Cocaine, again.
We all know fakers, liars who are so brilliant and so attractive and so good at what they do that we suppress the evidence of their misdeeds and tell ourselves that everything will work out. And then they go and do something stupid and we pretend we didn't know it was coming. I had a friend who was much like Barry in his overwhelming charisma and dazzling mind. Everybody loved David, adored him so much that when he began spiraling into self-destruction, we assured ourselves that he could manage it. And then my friend killed himself, and too many of us made believe it was a surprise.
Now here's one of Barry's good friends, who decided a couple of years ago to separate himself from the man he'd worked with for four decades: "I tried everything. I tried being his friend, I tried being tough with him. I stopped giving him the money I'd been giving. He wouldn't listen. I finally had to admit to myself that staying connected with him was encouraging him to live that double life." Cutting Barry off didn't necessarily push him to face his addiction, but it let this friend carry on knowing that he was no longer enabling the ex-mayor.
In a warped, small way, we are all responsible for Barry's continuing addiction to risk. When we vote for this gaunt old man, when we write news stories about his escapades, when we share jokes about him, we are joining in the fantasy -- the ludicrous notion that he is a superman who can make things happen in this dysfunctional city even while he destroys himself with drugs. We did it again last month, when he staged a little stunt to "save" the D.C. baseball stadium and we hailed the return of the Mayor for Life.
Friends, colleagues, reporters, we've all dutifully listened and repeated his rhetoric about how he's clean now, he's found God, he drinks nutritious fruit juices, he attends his 12-step meetings. And he withered away before our eyes.
But now, even some of those who voted for him more times than they can recall say it's over, enough.
"The only time I was ashamed to say I was from Washington, D.C., was when he got reelected mayor," says Ray Moore, a retired head of the grounds department at Gallaudet University who now lives in one of the city's senior housing complexes, Harvard Towers. "I'm a recovered addict, so I know about what he's going through. But he had his chances -- better chances than anybody else had. He did it to himself. And the people let him get away with so much."
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Marion Barry's star power won him bye after bye, but he has finally disgraced his office one time too many. If a judge needs to help him resign, so be it.
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https://web.archive.org/web/2006011219id_/http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011001167.html
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Teach the 'Good Kids'
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2006011219
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The easiest thing in the world this week is to pile on Marcus Vick, the disgraced Virginia Tech quarterback who was thrown off the team after a series of embarrassing incidents on and off the field.
Even after Virginia Tech President Charles Steger announced last week that Vick was no longer welcome on the team after his eighth and ninth traffic violations since he enrolled and since he stomped on the leg of a Louisville player during the Gator Bowl game Jan. 2, Vick kept finding trouble. This past weekend, it was charges of brandishing a gun at three teenagers in a fast-food shop's parking lot.
So let's all pile on Vick. His response to being thrown off the team was to drop out of school and announce he'd follow his older brother, Michael, the Atlanta Falcons' Pro Bowl quarterback, to the National Football League. His comment on his dismissal from the team put him near the top of the list of athletes sounding arrogant beyond belief: "It's not a big deal. . . . I'll just move to the next level, baby."
And the truth is that if he can play, he'll be welcome at the next level. Professional sports teams don't care if you've been to jail, been stopped a hundred times for traffic violations, stomped on 10 opponents' legs or made profane gestures at opposing fans (which Vick did at least once this season). They care if you can play. Period.
All of which brings us to an issue that goes well beyond the troubles of Marcus Vick. His story reflects a much larger problem at all levels of sports: the existence of a place that we might call, for want of a better term, "The Land of Never Wrong."
This is where truly gifted athletes live. They are given second, third, fourth and 15th chances solely because of their talent. That's why so many of them come to believe that rules and laws, even rules of decent behavior, don't apply to them.
Certainly Virginia Tech deserves no credit for finally cutting the cord with Vick. In addition to his many driving infractions, Vick had twice faced criminal charges during his time at the school. That led to a suspension in 2004, but he was allowed to return in 2005, despite having shown little regret for his infractions. Why? Tech needed a new starting quarterback.
Indeed, until the school learned that he had been charged on Dec. 17 with speeding and driving on a revoked or suspended license, it was planning to suspend him for just two games for the Gator Bowl incident. Vick had claimed that the stomping was an accident, despite clear evidence to the contrary on videotape, repeated endlessly for national TV audiences. Then, the second he was off the football team, Vick dropped out of school. So much for yet another "student-athlete." (He also claimed that he had apologized to Elvis Dumervil, the player he stomped on. Dumervil said he'd never heard from Vick.)
Throughout Vick's time at Virginia Tech, football coach Frank Beamer has maintained that he is "a good kid." They're always good kids when they can play. What Beamer should have done -- long ago -- and what other coaches with talented but troublesome players should do is stop making excuses for such "good kids." If Beamer had suspended Vick when he first began to get in trouble, and told him that next time he'd be gone, Vick might have gotten a different message.
But it's not fair to single out Virginia Tech -- what goes on there isn't unusual. Look at the University of Colorado, where Gary Barnett was kept on as head football coach even after his players were accused of sexually harassing women and hiring prostitutes during recruiting parties. It was only after his team lost its final three games this season, badly, that Barnett was fired. When a University of Virginia player was involved in an incident at Boston College this season that was just as ugly as Vick-Dumervil, it wasn't the school that suspended him for one game but the Atlantic Coast Conference. When Virginia coach Al Groh was asked if he felt badly that his player hadn't called the player he had injured (after the whistle), he was baffled the question was even asked.
The list goes on. And not just in football. Sixteen years ago, John McEnroe, the brilliant but hot-tempered tennis superstar, was thrown out of a match during the Australian Open after he directed a series of profanities at a chair umpire and his supervisor. McEnroe was 30 at the time. A couple of months later, reflecting on his punishment, he said: "If someone had done that to me when I was 18, I honestly think a lot of things would have been different. The message I got early on was that I could get away with just about anything on the court. No one wanted me defaulted. The tournament director didn't want me defaulted; neither did the TV people. But if someone had nailed me, cost me a big tournament, the chances are I would have learned my lesson and not done it again. I mean, I'm not stupid. Tell me where the line is and I won't cross it. The message I got until Australia was that there was no line."
That's the message most star athletes get. If Marcus Vick wished to remain in college, you can bet that even now there would be schools that would take him in a second. Until the people around star athletes stop telling them -- and us -- that they're "good kids," when they're actually behaving very badly, nothing is going to change in The Land of Never Wrong.
The writer is a contributor to The Post. His latest book is "Next Man Up: A Year Behind The Lines in Today's NFL."
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Star athletes like Marcus Vick inhabit The Land of Never Wrong. It's no wonder they behave so badly.
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Alito Leaves Door Open to Reversing 'Roe'
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2006011219
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The once-sluggish confirmation hearings for Supreme Court nominee Samuel A. Alito Jr. turned confrontational yesterday, as the nominee signaled he might be willing to revisit the ruling that legalized abortion nationwide and Democrats pummeled him over his membership in an alumni group that wanted to restrict enrollment of women and minorities.
Tempers flared openly between the Senate Judiciary Committee's Republican chairman and eldest Democrat, and the nominee's wife fled the marbled hearing room in tears before the day ended with Republicans predicting that Alito will win confirmation, although by a slim margin.
VIDEO | Watch excerpts from the second day of the Alito confirmation hearings.
Throughout the day's more than seven hours of questioning, Democratic senators regularly accused Alito of giving incomplete, inconsistent answers. Republicans accused Democrats of being unfair. At one point, Sen. Jon Kyl (R-Ariz.) complained after Sen. Edward M. Kennedy (D-Mass.) read aloud magazine excerpts published in the 1980s by Concerned Alumni of Princeton and espousing views Kyl branded as "very scurrilous."
The drama of the hearings' third day nearly overshadowed the significance of the position Alito staked out on the landmark abortion case, Roe v. Wade . Senators also branched into new territory: Alito's record from 15 years on the Court of Appeals for the 3rd Circuit on cases involving religion, immigrants seeking to prevent deportation, and criminals' rights.
Alito edged closer to suggesting that he might be willing to reconsider Roe if he is confirmed to the high court, refusing, under persistent questioning by Democrats, to say that he regards the 1973 decision as "settled law" that "can't be reexamined." In this way, his answers departed notably from those that Chief Justice John G. Roberts Jr. gave when asked similar questions during his confirmation hearings four months ago.
Yesterday, Alito said that Roe must be treated with respect because it has been reaffirmed by the high court several times in the past three decades.
But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."
During Roberts's confirmation hearings, he, too, was reluctant to disclose how he would vote if asked to overturn Roe . But during the 2003 hearing on his nomination to the Court of Appeals for the D.C. Circuit, he had said he viewed the ruling as settled law.
And during Roberts's hearings to become the nation's chief justice, Judiciary Committee Chairman Arlen Specter (R-Pa.) had asked, "Do you mean settled for you, settled only for your capacity as a circuit judge or settled beyond that?" Roberts replied: "Well, beyond that, it's settled as a precedent of the court."
After his exchange with Alito yesterday, Durbin told reporters: "Sam Alito would not use those same words. It really, I'm afraid, leaves open the possibility that we are considering the nomination of a justice who will change 30 years of law in this country, a dramatic change to the American society."
Sen. Tom Coburn (R-Okla.) suggested that Durbin is ill-suited to challenge Alito's views on abortion because Durbin once opposed abortion rights and changed his mind.
Alito told several senators that he felt constrained from saying whether he regards Roe as settled because abortion remains a live issue in the courts. Sen. Charles E. Schumer (D-N.Y.) reminded Alito that he has willingly said other areas of the law were settled even though they remain in play and that, in a 1985 application for a promotion in the Reagan administration's Justice Department, he had written he did not believe the Constitution protects the right to an abortion.
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The once-sluggish confirmation hearings for Supreme Court nominee Samuel A. Alito Jr. turned confrontational yesterday, as the nominee signaled he might be willing to revisit the ruling that legalized abortion nationwide and Democrats pummeled him over his membership in an alumni group that wanted...
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Alito Disavows Controversial Group
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2006011219
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As a Princeton alumnus and professional basketball player, Bill Bradley in 1973 renounced his membership in Concerned Alumni of Princeton, calling it a "right wing" organization that opposed the admission of women and minorities to the school.
Two years later, another distinguished alumnus and future U.S. senator, Bill Frist, co-wrote a report denouncing the group for "grossly inaccurate" attacks on the school's policies and a "narrow ideological perspective" that had done "a disservice to the university."
Supreme Court nominee Samuel A. Alito Jr.'s membership in this group, which he touted among his conservative credentials in a 1985 application for a political appointment in the Reagan Justice Department, touched off a bruising political battle yesterday during the third day of confirmation hearings.
Sen. Edward M. Kennedy (Mass.) and other Democrats demanded to know why the son of an Italian immigrant would take credit for membership in a "radical" group that opposed increased enrollment of women and minorities, while Republicans and a White House spokesman branded that line of questioning as "pathetic," "scurrilous" and an effort to assign "guilt by association."
The group was founded in 1972 by Princeton alumni who were troubled that the university had recently begun admitting women and who said Princeton had lowered its standards to admit more minorities.
Alito, a 1972 Princeton graduate, testified yesterday that he has no recollection of joining the group, and that he would not have done so if he had known of its writings about women and minorities. "I deplore those statements," he said. "I would never be a member of an organization that took those positions."
He said he assumes he joined only because he supported the return of ROTC to the Princeton campus. As an undergraduate, Alito was a member of Princeton's Army ROTC unit when it was expelled from the campus -- a move that he said "rankled" him because "the attitude seemed to be that the military was a bad institution and that Princeton was too good for the military."
The Army ROTC unit was back on campus by the time Alito wrote his 1985 job application, but he said the Navy and Air Force units were not.
Throughout its existence, the now-defunct group was widely reported in major newspapers and magazines to be against increased admission of minorities and women -- positions advanced in its magazine, fliers and letters to alumni. Republicans released a 1985 newspaper article that said the group also was defending the Army ROTC unit then.
Democrats declared themselves "incredulous" that Alito was unaware of the group's attitudes toward women and minority students, and that his explanations for why he joined the group and mentioned it on an application did not add up. Kennedy read aloud a number of passages from the group's magazine, Prospect, that attacked women, minorities and gays.
One 1983 article, titled "In Defense of Elitism," began: "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."
Alito said he had never seen the article and called the views in it "antithetical" to his beliefs. Republicans released disclaimers from Prospect saying that all articles reflected the opinions of the authors and were not official positions of Concerned Alumni of Princeton.
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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The Democrats' Last Roar, By Way of Princeton
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2006011219
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It looked to be a second dreary day in the confirmation hearings of Supreme Court pick Samuel Alito, as the senators droned and the nominee dodged. Then, just before lunch, the old lion roared.
Actually, it started as a growl. The gray-maned Sen. Edward M. Kennedy (D-Mass.) read quotations published by a conservative Princeton group to which Alito belonged, protesting that blacks, Hispanics and women "don't know their place" and suggesting medical experiments for gay Princeton students.
Paying no heed to Alito's anxious insistence that he was not active in the group, Kennedy then pounced on Judiciary Committee Chairman Arlen Specter (R-Pa.). "Mr. Chairman, if I could have your attention, I think we ought to vote on issuing a subpoena" for the group's records, Kennedy said, his voice rising and his face flushing.
Specter, awakened from a reverie by Kennedy's sudden outburst, protested that this was the first he was hearing of the issue and banged his gavel to indicate that it was time to move on. But this only inflamed Kennedy more. "If I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution."
Specter, now fully appreciating the ambush, hollered back. "Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again," he admonished. "And I'm not going to have you run this committee." He banged the gavel again.
The hearing room was transformed. The nominee's wife, Martha-Ann Alito, sighed. Alito's White House handler, Dan Coats, started working his BlackBerry. The reporters began tapping on their keyboards. Kennedy took a sip of water, flashed a tight smile at Alito, then a broader smile in the direction of the photographers in the pit.
Thus did Democrats take their last stand against Alito. It had become clear that the committee, with unified GOP support, would clear the judge. Surveying the various lines of attack against Alito -- his opposition to abortion, his support for a powerful president, his conflict-of-interest issues -- Democrats concluded that their best hope was in Alito's membership in a group opposed to gains by women and minorities. Clarence Thomas had Anita Hill. Alito would have the Concerned Alumni of Princeton.
Whatever the charge's merits, it drew blood.
As several more Democrats joined Kennedy's assault -- Sen. Joseph R. Biden Jr. (Del.) donned a Princeton baseball cap for the occasion -- Alito's replies grew more frantic. "I disavow them. I deplore them. They represent things that I have always stood against and I can't express too strongly," he told Sen. Lindsey O. Graham (R-S.C.).
"If you don't mind the suspicious nature that I have, it's 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 too good," said Graham, trying to help Alito. "I'm going to be very honest with you," Graham continued. "Are you really a closet bigot?"
Alito's ears turned scarlet. "I'm not any kind of bigot," he said, emotionally. "I'm not."
"Of course you're not," Graham said. Behind him, Martha-Ann Alito had had enough. She stood up, tissue in hand, and rushed to the back of the room, where Capitol Police whisked away the tearful woman. She didn't return for an hour.
The day started well enough for Alito. Sen. Orrin G. Hatch (Utah) continued to lob such softballs -- "Did you go out of your way to rule against workers?" -- that even his GOP colleagues had to smile. The nominee earned chuckles for joking that if court sessions were televised, "our Nielsen numbers would be in the negative."
But Kennedy, armed with a poster showing bigoted remarks by the Princeton group, ended the grins. "I've testified to everything that I can recall," the now-testy nominee said.
Kennedy, participating in his 23rd Supreme Court confirmation, started a schoolyard brawl with the committee chairman, demanding a subpoena of the Princeton documents.
"You and I see each other all the time and you have never mentioned it to me," Specter protested.
Kennedy said he had sent a letter making the request.
"We actually didn't get a letter," the chairman said.
"You did get a letter."
"Now, wait a minute: You don't know what I got."
"Yes, I do, Senator, since I sent it."
The longtime legislators continued to bicker until Specter erupted: "I take umbrage at your telling me what I received. I don't mind your telling me what you mailed. But there's a big difference between what's mailed and what's received. And you know that."
The great postal debate proved moot after lunch, when Specter announced that the custodian of the Princeton papers would turn them over without a subpoena. He scolded Kennedy for starting a "tussle" over nothing. "Senator Kennedy and I frequent the gym at the same time and talk all the time, and he never mentioned it to me," he said.
Kennedy was no longer the lion: "I regret I haven't been down in the gym since before Christmas," he explained. "So I missed you."
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It looked to be a second dreary day in the confirmation hearings of Supreme Court pick Samuel Alito, as the senators droned and the nominee dodged. Then, just before lunch, the old lion roared.
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Taking Three For the Team
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2006011219
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Redskins owner Daniel Snyder is nearing the purchase of three area radio stations as part of a broader plan to expand his media holdings, sources close to Snyder said yesterday.
The stations, which would carry Redskins games starting next season, have signals that are too weak to broadcast across the entire Washington area, but Snyder intends to buy more stations to expand his reach, sources with knowledge of the deal said.
Snyder's intention to buy three stations owned by Florida-based Mega Communications -- WBPS-FM of Warrenton, WBZS-FM of Prince Frederick in Calvert County and WKDL-AM of Alexandria -- will be announced next week. Terms of the prospective deal have not been disclosed.
In addition to the Redskins, Snyder wants other live sports programming for the stations. In recent weeks, he has had discussions with the Washington Nationals, to try to win rights to their games, local broadcasters said. The baseball team, however, is expected to sign with Bonneville Broadcasting, which intends to put Nationals games on two stations, WTWP-AM and FM, that it is programming in conjunction with The Washington Post.
Snyder yesterday moved a step closer to becoming a radio station owner by hiring Bennett Zier, one of the area's leading radio executives, to be chief executive of his newly formed media company, Red Zebra Broadcasting.
Zier, 49, resigned earlier this week as regional vice president of radio giant Clear Channel Communications. He oversaw eight FM and AM stations that broadcast in the Washington area, including sports-talk station WTEM-AM. In all, Zier has had responsibility for 32 Clear Channel stations in an area stretching from Baltimore to Charlottesville.
Snyder's desire to own radio stations follows several developments within his expanding business empire. For the past five seasons, Redskins games have been carried by WJFK-FM, under a $50 million contract that ranked as one of the richest in the radio business. However, WJFK's owner, CBS Radio, lost money on the deal and balked at renewing at a similar or higher price when the contract ran out at the end of the regular season.
Rather than trying to sell broadcast rights in an uncertain market, Snyder began exploring an outright purchase of a local radio station last month.
The Mega-owned stations broadcast Spanish-language pop music. But their signals are relatively weak, especially at night, when the AM station is required under FCC regulations to cut back its transmission power to a mere 25 watts. As configured, the three signals barely reach FedEx Field, the Redskins' home in Landover. They also are all but inaudible in prime Redskins territory -- parts of the District, and Montgomery and Fairfax counties.
Snyder has several options. He could buy more stations, or purchase airtime on a station that would broadcast the games to unserved areas. One local radio executive, who spoke on the condition of anonymity, suggested that a likely candidate for a Redskins "time buy" would be Clear Channel's WTEM.
Apart from the Redskins, Snyder hasn't determined what the stations' format, or formats, will be. Zier will conduct research to figure that out.
In an interview yesterday, Zier offered no programming specifics, but said: "We will have a fully efficient cluster of stations. We will cover the market." Snyder's media group also could include TV stations and Internet ventures, Zier said.
Snyder also sees radio as a promotional vehicle for the Six Flags amusement park chain. As the largest shareholder of the 29-park chain, Snyder won approval from the company's other shareholders to become its chairman in December. He has named an associate, former ESPN executive Mark Shapiro, as Six Flags' chief executive.
Snyder's spokesman, Karl Swanson, yesterday declined to comment on Snyder's media plans.
Zier has been one of the most successful executives in Washington radio, but he leaves a mixed record behind at Clear Channel. His stations -- which include rock giant DC101, soft-rock WASH-FM and country king WMZQ-FM -- have been strong bottom-line performers. But Clear Channel is widely known in the radio business for its tight cost control, and Zier often had to cut back rather than expand his stations' programming initiatives and innovations.
Clear Channel's Washington-area group, for example, has eliminated its local news department. A week before Christmas, Clear Channel shut its public affairs department and dismissed Jerry Phillips, who had produced and hosted community-oriented programs on local radio for 35 years. On Sept. 11, 2001, as the region was gripped with confusion and panic during the terrorist attacks, Clear Channel's local stations resorted to airing the audio portion of WRC-TV's coverage.
On the AM side, Clear Channel's three area stations -- WRC, WTEM and WTNT -- rely heavily on syndicated fare heard across the country, such as Don Imus's morning program. The FM stations have some distinctive personalities, such as Elliot Segal of DC101's "Elliot in the Morning" program. Zier has been instrumental in nationally syndicating some of his hosts, such as Glenn Hollis's "After Hours" program from WASH-FM and Steve Czaban on WTEM.
Zier said yesterday the name Red Zebra was chosen after a 10-minute conversation with Snyder. Zier had suggested "Blue Zebra" -- an old e-mail handle of Zier's -- but Snyder countered that blue was a Dallas Cowboys color. They settled on a more Redskins-friendly shade.
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Integral Director Recounts Turmoil
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2006011219
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The saga began unfolding in March when local investor Bonnie K. Wachtel received what she described as an "unusual" phone call from Integral Systems Inc.'s chief executive, Steven R. Chamberlain, "inviting" her to resign from the board of his Lanham firm as part of what she characterized as a "wide-ranging critique of my personality."
It evolved into a series of clashes between Wachtel and other directors and officers. It continued with what she says was her eventual discovery that Chamberlain had withheld information from board members about misdemeanor sex-offense and assault charges filed against him in June. And it culminated this week when the company made public her detailed written account of internal division at the 24-year-old satellite software firm.
In a series of letters sent to the company since last week and on file with the Securities and Exchange Commission, Wachtel laid out what she contends are a series of poor financial decisions and governance lapses at Integral and called for the company's sale. Wachtel also said she would relinquish her seat on the board, which she has held since 1988, when District-based Wachtel & Co. managed Integral's initial public offering.
The wide-ranging letters offer a glimpse at the politics and corporate-governance issues that can roil a company. In the letter, Wachtel portrays a firm led by a man that she called both "talented" and a "highly unusual personality," who often threatened to quit and ran roughshod over an "overly deferential" five-member board.
Wachtel contended in her correspondence that Chamberlain informed his senior staff of the misdemeanor charges but failed to inform the board because he "took the position that the criminal charges were purely personal."
Integral, which employs 410 workers, denied Wachtel's claims. Thomas L. Gough, a director and president of the company, said the board conducted an independent review of its management in October. The review, led by a former SEC attorney not affiliated with the company, found "no substantial merit to Ms. Wachtel's concerns," Gough wrote in an e-mail. "The company disagrees with the contents of Ms. Wachtel's correspondence."
R. Doss McComas, one of two Integral outside directors Wachtel singled out as deferring too much to Chamberlain, said he respects Wachtel but dismissed her allegations.
"I find it strange that my business judgment has been very acceptable up until issues that started last year," said McComas, an Internet company owner who has served on Integral's board for more than 10 years.
Neither Gough nor McComas would respond to the specific claims raised by Wachtel.
But Wachtel, in the letters, contended that the company's troubles run so deep that its corporate minutes sometimes do not fully reflect meetings and board members are given little time to review decisions as fundamental as those involving executive compensation. She contends in her letters that Chamberlain's failure to inform the board about the sex-offense charges filed against him by Howard County police in June is only symptomatic of a broader set of problems.
"I do not believe the unusual aspects of Mr. Chamberlain's personality reflected in these matters is unrelated to the weak earnings experienced in the company's core business for the preceding three years, or its prospects in the future," Wachtel wrote.
The company reported profit of $6.3 million in fiscal 2005 on revenue of $97.7 million. That profit is down slightly from the previous year, and Wachtel wrote that it is largely the result of better-than-expected performance at a recently acquired subsidiary.
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More Body Armor Is On the Way for U.S. Troops
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2006011219
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The Army announced yesterday that it will soon start producing 230,000 sets of side armor plates and field them over the year to soldiers in Iraq and Afghanistan, after a recently disclosed Pentagon study indicated that such plates could have helped prevent scores of troop deaths since 2003.
The Marine Corps has delivered 9,000 sets of the plates to Iraq, a number that will rise to about 30,000 by April, officials said yesterday. Each set of plates, together with a carrier and soft armor, costs about $450 and weighs about seven pounds, the officials said.
Army and Marine generals in charge of developing and buying equipment defended the pace at which they were getting the new side armor to troops, after a closed-door briefing yesterday on the matter on Capitol Hill. The generals briefed the Senate Armed Services Committee after lawmakers voiced concern over a classified Pentagon forensic study disclosed last week that for the first time linked gaps in upper torso protection to troop fatalities.
The scrutiny of body armor is the latest instance in which Congress has pressured the Pentagon to accelerate the distribution of protective equipment to U.S. troops -- from "uparmored" Humvees and trucks to bulletproof vests. More than 2,200 American troops have died in Iraq since March 2003, 1,741 of them in combat, according to Pentagon figures as of yesterday.
The forensic study of 401 Marines who died in combat in Iraq from March 2003 to June 2005 showed that 21 died primarily from injuries to the side of their torsos. The study, completed in August 2005 by the Office of the Armed Forces Medical Examiner, concluded that those Marines might have benefited from improved protection, such as that offered by the side plates. The findings, if applied to all U.S. combat casualties, suggest that scores of deaths might have been prevented if the new side plates had been worn.
The Marine Corps finalized contracts for the production of the side plates in mid-September and production began six weeks later, with distribution starting in November, said Col. Shawn Reinwald, director for combat equipment at the Marine Corps Systems Command in Quantico, Va. The Marine Corps commandant decided on the need for side plates in June, he said.
The Army also identified a requirement for the side plates in the past year, when Army truck drivers running convoys in Iraq asked for them, Maj. Gen. Jeffrey A. Sorenson, the Army's acquisition chief, told reporters. The Army took a design created by a commander in Iraq, minimized the plates' weight and this week determined the optimal size, according to Maj. Gen. Stephen M. Speakes, director of force development for the Army. "It's a great success," Speakes said.
The generals said the side plates are the most recent in a series of body armor upgrades that have improved the likelihood of survival for U.S. troops. But they stressed that the added armor has drawbacks because it can limit troops' mobility and raise body temperature -- a major consideration, given the 130-degree heat in which forces are fighting.
"We don't want a medieval knight. We are not going to be hoisted onto a horse," Speakes said. "All of this is a very difficult trade-off. How much is adequate?"
As a result, the new armor will be supplied to all troops, but commanders will decide case by case whether the mission requires them to wear it, Army and Marine officials said.
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Into the Oversight Void Step the Inspectors General
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2006011219
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When a Chicago newspaper reported in 2004 that Illinois ranked last in federal disability payments to veterans, the secretary of veterans affairs -- prodded by House Speaker J. Dennis Hastert (R-Ill.) and other influential lawmakers -- turned to his department's inspector general for an explanation.
After four months, 1,900 interviews and a review of 2,100 disability claims, a team of 36 auditors found reasons that veterans in top-ranked New Mexico got an average of $12,004 in annual disability payments while Illinois veterans received $6,961. Their 192-page report made eight recommendations for addressing the inequity, and the Department of Veterans Affairs is implementing many of them.
"It's a really big project," said Michael L. Staley, assistant inspector general for auditing, who led the effort. "Our national reviews generally take about 11 months, and we accomplished this from January to April."
For their labor, Staley and his team recently picked up the Alexander Hamilton Award. The annual honor recognizes the foremost effort by an inspector general to improve the efficiency and effectiveness of executive branch operations.
Created by an act of Congress in 1978, "IGs," as they are known, can trace their roots to the Continental Army, which had an inspector general independently assess the readiness of combat troops. Their modern mission is to foster integrity and efficiency in government through the prevention and detection of waste, fraud and abuse.
Initially Congress created 12 independent audit and investigative offices, and every affected agency opposed them. Over the past 27 years, inspectors general have become a fixture of the bureaucracy. Their ranks have grown to 57 -- more than half appointed by the president -- and their offices employ 11,400 auditors, investigators, inspectors and other professionals.
The role of inspectors general has taken on new prominence, as one-party control of Capitol Hill and the White House has dampened the appetite in Congress for close oversight of the executive branch, analysts say.
"They are becoming the de facto overseers of government," said Paul C. Light, a professor of government at New York University and the author of a book on IGs. "As congressional oversight has declined sharply over the last decade, many IGs are getting into areas that were once reserved for the investigatory committees of Congress. And many, but not all of them, have risen to the challenge. . . . Some of these reports are very hard-hitting."
Clay Johnson III, deputy director of the Office of Management and Budget, agreed that Congress is not "as aggressive as it needs to be," but not because the GOP dominates the levers of power.
"The executive branch pays more attention to whether we spend money on real needs and whether we get what we pay for than Congress does," said Johnson, who heads the President's Council on Integrity and Efficiency, an umbrella group of 29 presidentially appointed inspectors general. "That has nothing to do with which party is in charge of what branch."
In 2004, the most recent year for which figures are available, inspectors general processed 189,500 complaints, identified $18 billion in potential savings through audits, and were instrumental in nearly 6,500 prosecutions that led to convictions or settlements with the Justice Department. They collected $3.5 billion in fines, settlements and voluntary repayments, making the $1.9 billion spent to fund them look like a bargain.
Notable reports last year included a finding by the Transportation Department IG that the Federal Aviation Administration's inspection program had failed to address safety risks posed by airline industry cost-cutting and the rapid growth of budget carriers. A report by the Justice Department IG found that the FBI's failure to detect the Sept. 11, 2001, hijacking plot stemmed in part from "widespread and long-standing deficiencies" in the way the agency handled terrorism and intelligence cases.
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Get the latest US government news on recent federal affairs. Up-to-date information and analysis of federal legislation and contracts. Search for government job openings and career information.
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A Stand Against China's Pollution Tide
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2006011219
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XIANGTAN, China -- Tired and frustrated, Wang Guoxiang and other Xiangtan city officials were slurping a midnight snack of instant noodles last Friday when the anti-pollution chief for Hunan province walked into their crisis room. Immediately, Wang said, he stopped eating and shouted at the visitor.
At the top of his voice, he insisted that something be done to stop the discharge of poisonous metals that had begun three days earlier into the slow, meandering Xiang River, from which Xiangtan, 800 miles south of Beijing, draws its drinking water. As a people's delegate, Wang recalled complaining to the environmental official, he and his allies had been fighting for months for more controls on upstream smelters but had found little support from the provincial authorities.
"You guys pay no attention to the safety of drinking water for our Xiangtan people. If you can't solve the problem this time, your position is in danger," Wang said he told the anti-pollution chief, Jiang Yimin. "And I wasn't kidding," he added.
The late-night confrontation in Xiangtan, a sprawling city of 500,000, was a telling episode in China's latest pollution drama: the accidental release into the Xiang River of heavy doses of cadmium, a likely carcinogen, by a state-owned smelter in an industrial park about 25 miles upstream.
The fouling of the Xiang River attracted wide attention, but it was far from unique as China struggles to reconcile breakneck economic growth with protection of the environment. After more than two decades of swift industrialization, a recent government report found that up to 70 percent of the country's rivers and lakes are seriously polluted.
In reaction, extensive national regulations have been put into place, including a government decision Sunday requiring local officials to immediately notify officials in Beijing of any toxic spills. But on the ground, business owners and Communist Party officials often cooperate closely. Enforcement of environmental rules has often been lax, and the result has been frequent contamination of the waterways that China's 1.3 billion people depend on for drinking water.
At about the same time that Xiangtan faced its pollution crisis, a frozen pipe burst in eastern Henan province, releasing six tons of diesel fuel that floated in a 40-mile-long slick down a branch of the Yellow River. Authorities said 63 water pumps had to be shut down, including some at Jinan, the capital of neighboring Shandong province.
Farther south, Guangdong provincial authorities announced Tuesday that water drawn from the Bei River was safe to drink again three weeks after an unauthorized discharge of cadmium. And the famed Pearl River, which runs through Guangdong into the South China Sea, has turned dangerously saline at its southern end because of low water levels and high tides.
Xie Shaodong, an environmental specialist at Peking University, said China is passing through a stage of economic development in which, as the history of other countries has shown, ecological damage is to be expected. To halt the degradation, he said, China's environmental protection agencies should be granted more power and the news media should be allowed to report more fully on the issue.
Although pollution has long been recognized as a major problem in China, local officials and the government-controlled press have focused particular attention on it recently because of an internationally embarrassing spill in November. In that episode, benzene contamination of the Songhua River forced a cutoff of drinking water in Harbin, a major city 650 miles north of Beijing, and sent toxic waste downstream to cities and towns in the Russian Far East.
Local officials made the Songhua calamity worse by concealing it for several days, leading to complaints from Russia and, ultimately, sanctions from China's central government and the new notification rule issued Sunday. Officials involved in the coverup were dismissed and one committed suicide. But as Wang's experience in Xiangtan showed, the instinctive reaction of many local party and government officials is still to conceal and minimize.
Only hours before Jiang walked into the Xiangtan crisis meeting Friday evening, Wang had learned that the city's Environmental Protection Administration had measured cadmium levels at 25 times the amount considered safe for drinking water. His own measurement, Wang said, showed even higher levels.
Cadmium, a soft element found in metal ores, can cause liver, kidney and bone disease if ingested in large quantities. For most of the year, Wang said, he and two colleagues in the People's Congress, an appointed city council, had been trying to persuade provincial authorities to tighten controls over the smelters upstream from Xiangtan, which he said frequently dump dangerous quantities of cadmium and other elements into the river.
Frustrated by the lack of response at the provincial level, Wang had arranged for Xiangtan's Environmental Protection Administration to test the water every 10 days. When he received Friday's report, "I just couldn't believe my eyes," he said in an interview.
Wang alerted Communist Party officials in the city, who met into the night. Jiang made his appearance about midnight and, before dawn, set in motion a large-scale cleanup operation. Later that day, he and provincial environment officials announced at a news conference that the cadmium would be neutralized with chemicals dumped into the river and diluted with water diverted from upstream reservoirs.
The cadmium entered the Xiang River on Jan. 4 when workers mistakenly diverted river water into two basins used to separate cadmium and other smeltering byproducts, Wang said. The water overwhelmed the basins and washed back into the river, which carried the accumulated poisons downstream.
Jiang, the provincial anti-pollution chief, told reporters that authorities halted the backflow and took other steps that ensured water supplies were safe. "The Hunan provincial authorities properly handled the cadmium spill in the Xiang River," People's Daily, the official party newspaper, concluded in its Monday editions.
Local newspapers and broadcast stations were ordered to limit their reports to Jiang's statement and were barred from reporting about drinking water conditions in Xiangtan and Changsha, the capital of Hunan province farther downstream, during the three days from Jan. 4 until emergency measures were put into place.
As a result, Xiangtan residents appeared unconcerned by the crisis. "If you want to know about pollution, go ask the people at the Environmental Protection Administration," said an elderly man basking in winter sunshine beside the Xiang River.
Provincial propaganda authorities also prohibited reporters from focusing on Wang's earlier efforts to get the smelters to adhere to national environmental standards, local journalists said. Jiang said in a telephone interview Wednesday, however, that his office would now carry out an investigation.
"We will punish those who pollute the Xiang River," he added, "as well as related officials from the local Environmental Protection Administration for their malpractices."
The controlled press, meanwhile, published official assurances that drinking water was safe because of the emergency chemical treatment by Xiangtan's water distribution system. Nevertheless, the news reports said, the river water still contained unhealthy amounts of cadmium.
Researcher Jin Ling contributed to this report.
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XIANGTAN, China -- Tired and frustrated, Wang Guoxiang and other Xiangtan city officials were slurping a midnight snack of instant noodles last Friday when the anti-pollution chief for Hunan province walked into their crisis room. Immediately, Wang said, he stopped eating and shouted at the visitor.
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Man Convicted of Trying to Kill Bush at Georgian Rally
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2006011219
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TBILISI, Georgia, Jan. 11 -- A court sentenced a man to life in prison Wednesday after it convicted him of trying to assassinate President Bush and the leader of Georgia by throwing a grenade at them during a rally last year.
The defendant, Vladimir Arutyunian, was also convicted of killing a policeman in a shootout as authorities tried to arrest him several weeks after the grenade incident at the May 10 rally. Tens of thousands of people attended that event in Tbilisi, the capital of this former Soviet republic.
Bush and Georgian President Mikheil Saakashvili were standing on a stage behind a bulletproof barrier when Arutyunian threw the grenade. It landed about 100 feet from the two leaders. No one was hurt.
The grenade, which was wrapped in a cloth, apparently malfunctioned, investigators said.
The motivation for throwing the grenade was never clear. Arutyunian has been identified as a member of a party that supported Aslan Abashidze, the former leader of the Ajaria region who was an adamant foe of Saakashvili. Abashidze was driven from office during rising protests in the region that echoed the massive demonstrations in late 2003 that helped bring Saakashvili to power.
Arutyunian, 27, has acknowledged that he threw the grenade in the direction of the stage and said he would try again to kill Bush if he had the chance.
He was arrested in July on the outskirts of Tbilisi, after the shootout. In a video broadcast on television, he was shown saying from a hospital bed that he had thrown the grenade high so the bulletproof glass would not block shrapnel.
Bush and Saakashvili learned of the grenade only after the rally.
Arutyunian did not testify during the trial, which began last month. In December, he appeared in court with his mouth sutured shut in what he called a show of solidarity with thousands of Georgian inmates conducting a hunger strike.
FBI agents assisted Georgian authorities in the investigation, helping to question witnesses and examining evidence.
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World news headlines from the Washington Post, including international news and opinion from Africa, North/South America, Asia, Europe and Middle East. Features include world weather, news in Spanish, interactive maps, daily Yomiuri and Iraq coverage.
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Pinnock Helps GW To OT Win
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2006011219
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Saint Louis is the most geographically challenged member of the Atlantic 10, a league that, incongruously, now boasts 14 members. If that seems confusing, consider this; late in the second half last night, the Billikens led defending league champion and 17th-ranked George Washington by four on the Colonials' home court.
By the end of the night, things seemed slightly more normal. League membership notwithstanding, Saint Louis is still in the Midwest. And after an astounding flurry of momentum shifts in the second half and overtime, the Colonials emerged with a 69-64 win, preserving their place atop the league standings.
It was the second straight overtime win for George Washington (11-1, 2-0), the first time that had happened since March 1991. For the second straight game, the Colonials needed a considerable second-half rally even to force overtime; they trailed Marshall by 12 Saturday night, and were down to Atlantic 10 newcomer Saint Louis (7-7, 1-1) by nine.
"They had every reason to lose tonight and they found a way to win," Saint Louis Coach Brad Soderberg said. "That's a sign of a good team."
And for the second straight game, much of the rallying power came from guard Danilo Pinnock. George Washington's leading scorer had scored 16 points in the second half and overtime against Marshall; he had 12 in those sessions last night.
The Colonials led by three midway through overtime; Pinnock then grabbed an offensive rebound and was fouled, making one shot to push the lead to four. After a Saint Louis turnover, George Washington's Maureece Rice missed a long jump shot. Pinnock tipped in the offensive rebound to push the lead to six with less than a minute left, and then blocked a shot on Saint Louis's ensuing possession. He finished with 19 points and 12 rebounds, the first time in his career he had reached double digits in both categories.
"He's really played tremendous, particularly down the stretch," GW Coach Karl Hobbs said.
The Colonials, who were averaging more than 80 points a game, trailed 25-23 at halftime, their second-lowest scoring half of the season. They opened the second half with five fruitless possessions, leading to a nine-point deficit, a timeout and a smattering of boos from an announced crowd of 2,862. Hobbs addressed the crowd on that subject during his postgame interview with the public address announcer, asking for less fickle support.
"I think they tend to forget that every game is going to be like this, we're not going to win every game, we're going to have moments where we're just not going to play well," Hobbs said later. "I think people are over-assessing who we are at this point."
In any case, after that timeout, the game seemed to change. Three GW reserves checked into the game -- Regis Koundjia, Rice and Montrell McDonald -- and the tempo accelerated. Over the next 12 1/2 minutes, George Washington went on a 27-10 run and the game seemed to be in hand.
Then the Billikens, who had already lost top shooter Anthony Drejaj to an ankle injury in the second half, rattled off 12 straight points, including three three-pointers, to go up by four. GW forward Omar Williams scored four consecutive points to tie the game with 22 seconds left, and Saint Louis guard Danny Brown lost the ball as he attempted a last-ditch three-point attempt.
"Everybody ran to the paint and I was wide open," Brown said. "Maybe I got too excited, I don't know."
· FLORIDA STATE 87, VIRGINIA 82: Al Thornton scored 21 points and Alexander Johnson had 16 as the Seminoles won for just the second time in their last 34 ACC road games, winning in overtime in Charlottesville. The Seminoles (11-2, 2-1) scored the last five points in regulation to tie it at 77, then added five of the first six in overtime. Sean Singletary led Virginia (7-6, 1-2) with 27 points.
· BUCKNELL 58, AMERICAN 50: Charles Lee scored 12 points, including eight in the final six minutes, and the Bison pulled away from the Eagles at Bender Arena. Garrison Carr led American (4-11, 0-2 Patriot) with nine points. Bucknell is 11-3, 2-0.
· LEHIGH 65, NAVY 58: Jose Olivero scored 16 points and Mitch Gilgillan added 13 to lead the Mountain Hawks at home. Bryan White contributed 10 points for Lehigh (9-8, 2-0 Patriot), which led 28-25 at the half. Greg Sprink scored 12 points and Carlton Baldwin had 10 for Navy (6-8, 0-2).
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Danilo Pinnock scores seven of his 19 points in overtime Wednesday as No. 17 GW survives a tough battle with St. Louis, 69-64, at Smith Center.
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Career Advice
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2006011219
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Don't let "trick" questions from potential employers stump you during an interview. Stand out from the dozens of other job candidates by making a great first impression.
Vicky Oliver is the author of "301 Smart Answers to Tough Interview Questions" (Sourcebooks). She has written extensively about unemployment, the job search and appeared on the front page of the New York Times Job Market section, Adweek magazine and on Crain's New York Business Web site. Vicky has also worked with more than 5,000 professionals who have e-mailed her for advice on their job hunt and has given seminars on the topic at The Writer's Voice in Manhattan.
Good afternoon! Our guest today is Vicky Oliver, author of "301 Smart Answers to Tough Interview Questions."
Vicky, thank you for joining us. Tell us a little bit about yourself and the book.
Vicky Oliver: Good afternoon. My name is Vicky Oliver, and I'm not a career coach or headhunter. I grew up in the advertising business, which, like many, went entirely freelance in the past few years. At a certain point I felt as if I had been on so many job interviews myself; and on the other end, had hired so many people that I definitely had a book in me. Both the questions in 301 Smart Answers to Tough Interview Questions and the answers are real. They came from discussions with over 5,000 professionals in all walks of life -- full-time working people, freelancers, retirees and people returning to the job market. They shared their stories with me; their stories and mine inform the book.
Alexandria, Va.: Toughest interview question I have gotten is as follows: "If I were to call your former boss and ask him to tell me what he wishes he had known about you before he hired you, what would he say?" This totally caught me off guard!
Vicky Oliver: Right, it's tough because you can bet your life that if asked this question, the company will be calling your former boss to find out the answer! Therefore, be honest, just not brutally so. Look for what you learned from your boss and talk about that. Think of ways to realistically compliment your former boss. Also, provide references from others whom you worked with (colleagues, people at your level) who will sing your praises if your former boss won't. Good luck to you!
Washington, D.C.: Hello, Vicky. I am about to interview for what could potentially be a dream job for the perfect company, for my skills, tomorrow. The position is for a specialist in a certain skill; but the company does the type of business that makes use of all my skills. I put all my relevant skills and experiences in my cover letter and resume for them. I see myself as not just being a good fit for the position but also for the company. My question is, how should I approach the inevitable question of "why I should be hired in this specialty skill area when I am not a specialist" (I have skills in that area, but my experiences have been more as a generalist who can do many things well).
Vicky Oliver: First off, congratulations for landing such a high-powered interview! That's great news. When you are in the meeting, first, discuss your relevant skill sets. Focus on that area and be incredibly lucid about what you can offer the organization. When the specialist question arises, tell them why you wish to evolve into a specialist. Also, follow up with a killer thank you e-mail that further emphasizes your "evolution" to specialist status. Finally, be confident. Sell your strengths with zeal.
Gaithersburg, Md.: My employer is transferring my department to another city and state where I do not wish to move. The company is moving my operation to a small, rural area. I have a lot of equity in my home, want to retire in Maryland and the unemployment rate is low here. Therefore, I am taking the severance package and leaving the company. In an interview how do I respond to the question "why didn't you relocate?"
Vicky Oliver: I think I would talk about home pride, pride in the state of Maryland. You're staying there, the new company that you ultimately will work for will be located there, so any interviewer is bound to respect your decision to stay. I wouldn't mention the unemployment rate, though, or any plans to retire in the future.
Washington, D.C.: If my skills and experience tend to be more of a generalist ("jack of all trades") and the position I am applying for is for a specific skill in which I have experience and skills but not at the level of a specialist, how can I best approach the interview so I am in the running with other candidates who may be specialists?
Vicky Oliver: Yes, I have encountered this exact same situation, personally. On my end, it took a lot of follow up, but I was eventually offered the job. You need to make the case that you have all the same skills as a specialist, but you can bring something new to the company through your general business skills/experience. Being a generalist is terrific experience because it implies that you're a very quick learner. You know how to translate one set of skills to new challenges. Your interviewer needs to feel that, in a sense, you're a specialist plus a genuinely gifted generalist. Also, take care to express your passion for the job at hand. You wish to refine your skills further and become a genuine specialist!
Washington, D.C.: I sued my employer in 1992 for employment discrimination, and have not been able to work in the field where I gained all of my best experience since then.
I am currently unemployed, after having left a position after slightly more than a year of horror.
The details surrounding the lawsuit are as follows:
From early 1981 through 1992, I had been promoted for working hard. I'm not blonde and thin, and I worked 80 hour weeks without paid overtime because I loved what I was doing and I thought I was paid well enough. I was also the first African-American above the level of secretary hired by the firm. In 1992, the CEO (not an attorney) told me the firm's governance structure was being changed and they wanted a new look at the head of my department, which was a profit center. I was overweight, but had not taken a sick day in over seven years at the time of the informal meeting. I asked for clarification, considering a recent review which was excellent. I was told not to burn any bridges and everything would "be alright." So, I helped the firm replace me with someone thinner, blonde and female, 10 years younger than I and with only four years experience managing 12 or fewer people and no experience in the type of law in which the firm specialized.
When I found out that she was offered and accepted $25,000 more per year than I was making doing the same job, plus a $25,000 signing bonus and an assistant making $45,000, I asked what the firm had planned for me. When I found out that I was being demoted and moved to a "closet," I filed a lawsuit. The experience broke my spirit and my pride. I settled out of court just to have it over.
Though both sides signed a non-disclosure pact, my ability to pursue my career has been irreparably damaged, and continues to be. I know the world isn't fair. I'm not naive. But, there should be something positive I can say when I'm searching for a job that requires skills that I honed at that firm, even though I can't get a personal reference. What do I do about 1981 through 1992? Please note that I no longer choose to contribute to the retirement funds of so-called life coaches and employment counselors. Any other suggestions will be greatly appreciated. Thank you.
Vicky Oliver: You worked at your job for over 10 years happily. Then there was a management change, and they changed the criteria for performance. Even though the experience is painful, you should remember that it is only the latter part of the experience that really hurts. To the extent that you can, I would only focus on the positive parts of the job, what you were doing for them when you were working so hard and were gainfully employed. I would try not to discuss the law suit with any potential employers at all. If they ask, disclose. If they don't, just focus on what you did really well there for a really long time.
Anonymous: What is the best way to handle an interviewer who questions your level of experience for a certain job? I have a college degree and about two years of work experience. Although, the longest amount of time I've spent at a job/internship was less than a year. I've been told I do not have enough experience for jobs that were recruiting recent college grads or people with no experience! Thanks.
Vicky Oliver: I think you have to be honest, but you needn't be nervous about it. Talk about the skills that you picked up at the jobs that you held, and also stress that you are looking for a place that will become a "home" for you.
Spotsylvania, Va.: When asked the question "So, tell me about yourself?" do you speak about the things you like to do, or do you speak about something of interest that relates to the job you are interviewing for? About how long do you speak for?
Vicky Oliver: Definitely talk about something of interest that relates to the job you're interviewing for. Remember that interviews are short, maybe 40 minutes long at the most, so you want to use every spare second to politely persuade your interviewer that you are the ideal candidate for the job. In my experience, "so, tell me about yourself" is generally the first question asked, an ice-breaker. You want to relate an anecdote that's short, memorable, and job-focused. 2-3 minutes is the right length.
Greenville, N.C.: I have been an registered nurse for 25 years with a spotless employment record. Recently, I observed and reported inappropriate use of federal research funds, as well as use of untrained staff to perform critical health care on cancer patients. When I reported my findings to management I was told to "go away quietly or I would never work in this town again". While the evidence speaks for itself, the responsible parties continue to provide negative employment references. Nothing is in writing and those reporting the negative comments decline to provide legal testimony. What should I do?
Vicky Oliver: This is a very tricky situation. You did the right thing, and now they're punishing you because you blew the whistle. I rarely suggest this, but I have a feeling that there are only two solutions. 1) consult with a lawyer yourself. 2) try to find a recruiter in your field with whom you can discuss the situation openly. You need to find some people, not in your current field, who are professionally equipped to provide you with the counsel and help that you need. In the meantime, put a line on your resume "references available upon request." Think about if there are any colleagues who will give you great references, rather than the people who were directly responsible for the adverse situation.
Washington, D.C.: When asked what salary you are hoping for, how should one respond? I've heard that the best response is to counter the question with another question, being: "May I ask what your range is? Is this appropriate?Thanks!
Vicky Oliver: Yes, it's appropriate, but you should also make certain that you already know what the range is for the position that you're applying for. Have a range number in your head, but hold it back until you are pretty certain that you're being strongly considered. One tactic that may work: "I hope that you're asking me that because you're interested. Is that true, because I really want to work here!"
Washington, D.C.: I ace most first interviews, but after the second interview I am not offered the job. What am I doing wrong?
Vicky Oliver: Well, this is only a hunch, but it's important to change the answers that you gave in your first interview a bit when you meet with another person at the same company. It's critical to key into the personality too of the second interviewer. It may be a case where the first person you meet with raves about you to the second person, and then, that person is a bit "disappointed" because they already know about all of your key selling strengths. Try thinking about your second interview as a chance to improve on, and expand on your skills. Also: be sure to follow up with letters to both interviewers that essentially recap why you deserve the job, but in markedly different language.
Clinton, Md.: How do you overcome discrimination during an interview process, and a trial probation period for a job when you have a handicap? (Note: You and the employer know you are well-qualified for the position).
Vicky Oliver: Unfortunately, even today, there is still discrimination in certain work environments. While the laws have improved things considerably, they have also made discrimination harder to detect. Because it is illegal, it has gone "underground" where it festers. If you possibly can, I would try to use an executive recruiter to help you with this job situation. Sometimes, recruiters can work miracles because they already have a relationship with the company. Even after you land the job, you could continue the dialogue with your recruiter. Once you get the job, I would also try to befriend the human resources manager of the company. That way if there ever is any kind of a problem, you will have an advocate in the company. Finally, you owe it to yourself to ask: how badly do you want this job? By all means, get the job offer first. Then write yourself a Pro and Con list and decide if you really want to take it.
Alexandria, Va.: When asked why I left a previous job, what should I say if the real answer is that I burned out and was basically in a situation that was unworkable for me?
Vicky Oliver: That's an interesting dilemma. If you are going for a job in a different field, I wouldn't go into too many details. You might try positioning your departure as a recognition that the field wasn't right for you, rather than the particular job. If you're going for a job in the same field, I would focus on what was unworkable about the last situation, without blaming anyone for whom you ever worked. Were the hours grueling? Steer clear of discussing "burn out," even if true. People like to hire high-energy people who will come in with a passion and joie de vivre.
Washington, D.C.: Before each interview I get so nervous that I literally cannot hear the questions the interviewer is asking and I begin to stumble over my answers. Please provide tips on how to relax during an interview and indicate how long my response should be to each question. I really could use the advice.
Vicky Oliver: Fantastic question. First, realize that you are not alone. Thousands of people have this reaction to interviewing! Second, practice makes perfect. One thing that I think really helps is if you can find a "job hunting buddy." Share your anxieties/concerns with a buddy. Offer to do practice sessions with each other. For example, if you didn't score well on a recent interview, write down the questions that the interviewer asked you. Have your job hunting buddy sit down with you and throw you the same questions. Get your spiel down to a place where you are doing great with your job hunting buddy. Then, when you go on your real interviews, recycle some of the great answers that you delivered in your practice sessions. Also, by the way, if you can't hear the questions your interviewer is asking, it's perfectly okay to politely ask him/her to repeat the question. You may even try to lace in some gentle self-deprecating humor: "You know, I really want this job, and whenever I really want something, I sometimes get a tiny bit nervous. Would you forgive me for asking you to repeat the question?" Finally: take a deep breath and resolve not to panic. One last thought: force yourself to STOP studying for the interview 15 hours beforehand. And get some sleep! Interviewees do better when they are well rested. The best-rested candidates get the jobs!
Millersville, Md.: When an interviewer says "tell me a little about yourself," what are they expecting you to say?
Vicky Oliver: They are expecting a story about how you got interested in the field, or (depending on your general age) how your education may have lead you to become interested. In other words, the interviewer is expecting you to draw a line that explains why you are the perfect person for the job. What they don't want: general background information about you that has little to do with the job at hand. Think of a compelling "sound bite" that will capture why you belong in that job in about 2 minutes. There's a lot more about this in my book, but the key thing is: this question is an ice-breaker. You want to tell your interviewer something very interesting about your background/or experience that will entice him or her to ask you more questions about it!
Fairfax, Va.: Often getting to the interview is half the battle. Are there any good books or other resources that will help individuals put together a resume (online or otherwise) that gets noticed?
Vicky Oliver: There are literally thousands of books on the topic, yes. Here are a couple of trends to be aware of right now in resume writing: 1) career highlights rather than a laundry list of every place that you've ever worked 2) depending on how long you've been in the field, you may wish to take the year you graduated from college off your resume (up to you, no law about it) 3) a good, clear objective at the top of your resume, unless you've always been in the same field and your objective is obvious from your experience 4) one page or two? One page for up to 10 years in a field, after that, you may want to go to two pages if all of your experience is in the same area 5) results, results, results over "process!"
Camp Springs, Md.: Does adding your salary requirements really help your job search or is it a turn off to employers?
Vicky Oliver: In my estimation, it's a genuine turn off. Let salary questions naturally arise during the interviewing process. Keep the information off your resume. Eventually, the conversation will turn to salary if the company is intrigued with you!
Laurel, Md.: I will be graduating this May with a BS in medical marketing. My interest is pharmaceutical sales. I am in the process of lining up interviews. As a 23-year-old female, what should I wear to my interviews?
Vicky Oliver: Great question. My thought would be to get online and access the websites of the companies to which you are applying. Often they will have a couple of photographs of some key players at the company. Study what they are wearing and then take care to dress 25% more professionally than you would need to if you already had the job!
Arlington, Va.: What is the best way to honestly answer, "where do you expect to be in five or ten years?"
Vicky Oliver: The generic answer to this question is "right here at this company but promoted to the _____ position." But take care to do your homework on the company, because if they have been laying people off recently, that answer isn't necessarily the best one. Also be sure not to imply that you want your interviewer's job! Here is one thing not to allude to: never say that you'll be out of the field or starting your own business in 10 years.
Burke, Va.: How do you deal with the question "what are your salary requirements?" This is touchy if you indicate a figure too high or too low.
Vicky Oliver: The key thing here is to not let the salary question interfere with your landing the job offer. Salary should be the very last thing discussed in the job interviewing process. If it comes up too early, then you're right, it's tricky. Once the company loves you, they are far more likely to give you an offer that's within shouting distance of your range. However: do your homework. Find out what the typical salary range is for that job. Balance that with what you need to take the job. If the question comes up early, smile and say something like, "I'm really happy that you're asking me that because it shows that you must be interested. Is that true? Because I really want to work here."
Washington, D.C.: I have changed jobs often. Always through no fault of my own. The jobs end, businesses close, etc. A few times I left because there was a huge pay increase involved and I have continually progressed up the ladder. However, I am again becoming bored and find my present job very unchallenging. After just four months, I need another change. I don't want to raise a lot red flags during the interview, but just what is the best way to explain my sudden departure to prospective employers. I have excellent work references and each job has been successively better than the last both in terms of pay and position. The longest I have remained with one employer is two years and the shortest in six months (which my last two jobs have been).
Vicky Oliver: I always believe that having had a lot of jobs means that you are eminently desirable. Remember that as you walk into your interview. All of these people hired you, and you have an excellent track record. What you need to do is to politely explain to your interviewer that you have picked up the skills that you needed every step of the way and that you will bring them forward to your next job. "From this job, I learned how to write killer research reports. From this other job, I learned how to organize my time. From this third job, I mastered leadership skills," etcetera, etcetera.
Ft. Lauderdale, Fla.: Do you have any advice for someone who is probably a 50 percent fit based on a job description? I've been contacted for an interview. Thanks!
Vicky Oliver: This is interesting, I heard almost the same question from someone else in a different part of the country in the past week. For starters, don't unsell yourself. You must believe that you are 110% qualified and have the confidence to explain why you are. Pick your strongest attributes/special skills/experience that will prove that you "fit." Focus on that story. Practice it in advance, but also be aware of the areas where your qualifications and the job don't entirely match. You can always make the case that you are a quick learner!
Washington, D.C.: Why do employers ask "What is your biggest weakness?" Do they really expect an honest answer. What is the real point of this question?
Vicky Oliver: Yes, excellent question! The interviewers are almost asking you to "unsell" yourself. The thing to realize today is that you want to be honest without undermining yourself. I believe that you should not say, for example, that you're a "workaholic." No one will buy it, and if they do, it's going to count as a strength not a weakness. Instead, try pointing out a small weakness, i.e. "I'm impatient." Then show what you've been doing to work on being more patient with your colleagues.
Greenbelt, Md.: Many books on interviewing tips often speak on how to sell yourself by saying you raised production by "X" percent or how you saved your department "Y" amount of dollars. However, I feel that books full of examples such as these are of no help to recent graduates. What books will you recommend for those just entering the workforce? Thanks.
Vicky Oliver: Well, I hate to toot my own horn, but you could probably get a lot out of my book! The critical thing for you is to try to explain how whatever you were doing in college (extra curriculars, class work, etcetera) will help you seamlessly transition to the working world. Try to assess what your competition is likely to come up with too. Remember that as a recent college grad, you cost less money than some of those with whom you may be competing. Talk about your skills, your phenomenally quick learning ability, your passion and your resolve. Go for it.
Washington, D.C.: My response to the weakness question would be delegating, now that I'm a new manager. I seem to have a problem with it. Why? Maybe because it may not get done the way it needs to, or in time. Help, please!
Vicky Oliver: Delegating is difficult sometimes for people who like to maintain control. That's not necessarily a bad thing. And it's great that you're aware of it as a "weakness." Since you sound eager to work on it, try giving your employees a list of benchmarks to reach at the beginning of a project. You'll have the opportunity to assess the progress of each team member's performance that way. Meanwhile, each employee will know what's required. When they do a great job, give them a little more leeway and independence the next time around. Also, if they do a great job, always credit them. That goes a long way towards smooth, working relationships.
Washington, D.C.: Should one ever leave a secure, stable job with the federal government?
I left a prominent Financial Services firm after seven years to join a start up. As a relationship manager I maintained contractual commitments, trained clients on product software and teamed up on future product enhancements. Clients depended on me to research financial industry trends or specific transactions. I joined a dot com to start up their Southeast regional office. Several months later, after September 11, the start up downsized the regional offices, myself included. In Atlanta, I was displaced (away from my network base and industry) -- I spent almost two years unemployed. Finally, I secured an administrative job in the federal government. I am truly grateful for the stable paycheck and every other Monday off. However, I cannot imagine myself in this atmosphere much longer. Since my three-year tenure, I have gained almost 40 pounds and swear I'm going bald.
Am I crazy, should I leave a government job? Or, do you take another chance in the rat race and possibly get downsized again? Maybe the solution is a part-time job?
Vicky Oliver: Excellent question, and it goes to a lot of trends we're seeing now: downsizing, the ability to bounce back, and then, ultimately, being bored/underemployed. I feel that it's important to listen to yourself. If you're gaining weight, don't feel like going into the office, then it's a sign to begin getting serious about your job prospects. Ask yourself: what do you love to do? Then find a way how to segue to that. Maybe you need to take classes. Maybe you need to volunteer. Take baby steps and be brave!
Arlington, Va.: So, I'm a horrible interviewer. I get nervous and flustered and end up looking like I don't know what I'm talking about. I believe I've lost a couple of potential jobs this way. Do you have any suggestions on how I can improve my interviewing skills?
Vicky Oliver: Yes! First: never think of yourself as a "horrible interviewer." Don't let the negative energy get in the way. Resolve instead to practice, practice, practice. Interviewing skills sharpen over time and you will get better. When you have a bad interview, jot down notes about it afterwards, while it's still fresh. What were the stumbling blocks? Practice those questions and your answers to them until you have a spiel that works. I am a huge believer in getting a job hunting buddy to help you. Finally, don't overstudy either because that may be contributing to the anxiety.
Charlotte, N.C.: Thanks for this great chat! Any tips for phone interviews? They are so popular in Charlotte, and they are so difficult. It seems tough to gauge how you're doing since you can't read the interviewer's body language. Any advice would be appreciated.
Vicky Oliver: Yes. Don't give away too much information on a phone interview, even if asked. If someone wants to know your salary requirements, say something vague like "they're typical for someone at my level." Recognize that the phone interview is a pre-screening device. Better to say less and push for a real, live in-person chat.
Finally, time your responses. They should be overly long. It's just a way for the interviewer to figure out if he/she wants to meet you!
Washington, D.C.: What would you suggest as a response to the question "What do you consider as your greatest weaknesses?"
Vicky Oliver: The trick with this question is to give a general weakness that is true but not a terrible weakness. If your job requires you to be organized, for example, you wouldn't want to say that you are disorganized! Personally, I like saying that I'm impatient because it's true, but impatience also correlates to high performers. Whatever small weakness you provide, show ways that you are working to conquer it. I have taken a lot of self-help seminars and have also taken many team leadership classes. Mentioning these helps to take the curse off of my impatience. It's okay to be human, we all are! Just remember that you're working on solving the problem.
Anonymous: When interviewers ask the question, "So tell me about yourself," I immediately hear that as, "I haven't read your resume and I don't know anything about you. So I'm going to give you the job of starting this interview."I think it's a terrible question. I never use it in my own interviews.
Vicky Oliver: It's a little vague, yes. But it's very easy to answer the question! Give an anecdote or talk about a life experience that enamored you to the field. Add some humor and charm. Be engaging. There are worse interview questions out there; you can excel at this one!
Reston, Va.: Do employers look more favorably upon applicants who are currently employed versus those who are unemployed because they just wanted to quit their job and take some time off?
Vicky Oliver: I think as a general rule, those who are employed have a better shot at getting another job, certainly. But sometimes, being unemployed can really help a candidate because it means that he/she can start sooner and is more anxious to come on board. It's all in the way that you position yourself. If you quit to take some time off, try to come up with something very interesting that you were doing during that time. Did you volunteer for a political campaign? Take a class that helped you build your skills? Always look for a way to position whatever you did towards the new job for which you are applying.
Richmond, Va.: I relocated for personal reasons, moving without a job. I have had a few interviews but as the months go by it gets harder to explain this period of unemployment. How do you answer interview questions such as "what have you been doing?" Do employers see a few months of unemployment as a red flag?
Vicky Oliver: A few months of unemployment, no. A few years of unemployment, yes. If your period of unemployment stretches to about a year, it's time to either take a class or volunteer somewhere where you can be working on building your skills. No need to be defensive about it either. As long as you are continuing to grow, a little time off isn't a bad thing!
Atlanta, Ga.: The company for which I work has a contract with a client who we suspect will not renew their contract with us when it expires in June. Because this is highly likely, and I would have to relocate to another state for a similar position with the company (no other open positions are available in my state at this time), I've begun searching for another job in my state. However, how seriously do employers take applicants who "think" they may be out of a job sometime in the future vs. those who are seriously seeking employment?
Vicky Oliver: Too much information can sink your chances for success! Tackle each new interview as "real." You're really looking for that job right now in the present. I wouldn't even mention that there is a possibility that you might not take the job if offered. If that happens, you get the offer and you don't want it, you can always politely turn down the job offer. Meanwhile, don't dilute your enthusiasm for a new job by disclosing how you might not take it.
Washington, D.C.: While offering advice on interviewing, would you please emphasize the point that proper attire is crucial. No: jeans, sweats, hip huggers, platform shoes or other trendy staples of the fashion world should be worn. While a groomed, neat, shaved look with a suit and hair that is tastefully coiffed in less than three colors is desirable. Why is it that some folks don't get this?
Vicky Oliver: I think it's possibly based on two things: ignorance of how corporate America looks at candidates; and a general love affair with the celebrity culture. Celebrities often dress any way they please and have three shades of hair color. That's not going to cut it in most traditional companies today. So yes, for the sake of everyone on this web conference, please, please dress the part. Professional attire is mandatory!
Washington, D.C.: I just have to say that I hate it when interviewers "quiz" me about my college. I graduated eight years ago and have been quite successful since. But in my last interview, they asked me historical questions about my college (when it was founded, what it was called at that time), as well as to name two famous people who graduated from there (not easy; small school) and they also asked an obscure women's basketball question about the school. Not relevant!
Vicky Oliver: I agree, it's completely irrelevant. But remember, sometimes an interviewer is just trying to have a good time during the meeting. And let's face it, sometimes interviewers can be very naive about what is expected of them. If you are asked an off-the-wall question, there are polite ways to turn it around and get back to the business at hand, which is proving why you are the perfect candidate for the job!
Kittery, Maine: When going for an interview, are there any specific tips you would give to a "seasoned worker" applying for a job?
Vicky Oliver: Yes. As a seasoned worker, you will be required to have a lot of experience that you can discuss. I would emphasize that you don't need a lot of hand holding. You're quick at the job and you're the consummate professional. Don't worry about the other people who you may be competing with who are younger, either. They will not have your depth of expertise.
Upper Marlboro, Md.: The toughest interview question I've had is: "tell me about the business decision you made that you have regretted the most." The follow up question was "what should you have done differently." How do you answer a question like that without "unselling" yourself?
Vicky Oliver: This type of question is ideal for anyone who ever tried to be an entrepreneur and then ended up not enjoying the experience. You could talk about why you didn't like it, what you learned from the stint and why you are eager to rejoin an organization. If you have never been an entrepreneur, I would keep the business decision to be something relatively small. Perhaps you had to let a key player go in a company. You had no choice. But you believe that person was incredibly talented. In hindsight, you might have "fought" to keep him/her there longer. Don't discuss any business decision that you regret which cost a company a lot of money. You don't want your interviewer to feel that you are prone to those types of mistakes!
Severn, Md.: I graduated from college one year ago and have not had much luck in the working world. I temped for months, finally got a job offer that turned out to be a bad fit and now I'm back to temping. On one recent job chat someone stated that they do not hire recent graduates for administrative assistant positions because they do not want to waste their time to train someone that will leave. Recent graduates have to start somewhere. Any advice?
Vicky Oliver: You're absolutely right! Recent graduates have to start somewhere. You want to come off in your interviews as someone who is committed to a company for the long haul. Talk about your desire to grow with the organization. Talk about other long term commitments that you have made in the past (perhaps to a hobby area or to a team sport). Above all, really study the company where you are applying. Quick wit, charm and personal resolve go a long way towards getting over the hump of landing your first job. (by the way: when you land your next job, no reason to necessarily keep the first one that you had on your resume).
Bethesda, Md.: What if the reason for leaving a current job is because I don't like it and don't feel like I am getting much from it or feel that I am giving too much? Is it okay to be honest? What if we are interviewing for positions in other sectors?
Vicky Oliver: It's okay to be honest; just don't come off as disgruntled. Try to position your leaving as something that you perceive to be a growth opportunity, rather than highlighting negative aspects of your current job. The thing is: interviewers respond better to optimists rather than pessimists (even if they're pessimists). Be engaging and friendly and "generous" in your descriptions of your company and the people that you work with. You'll score better on your interviews that way.
Fairfax, Va.: I am thinking about applying for a job with a company I left some years back. I would be applying to another department. My old boss is still working there and I suspect he may not give me a favorable recommendation. When I left we did not get along very well. Partially it was my fault, partially his. My personnel file is favorable. What are your thoughts and recommendations should this issue surface during the interview? Thanks.
Vicky Oliver: Gee, if you possibly can, I would try to call up your former boss and take him/her out to lunch and clear the air. I know a lot of people in similar situations, and once a couple of years have gone by, it's all water under the bridge. Speaking of bridges, always try not to burn yours. If you could get that former boss to be in your camp, nothing would prevent you from getting another job offer there.
Fairfax, Va.: I was recently asked to resign from an organization that I had been working at for 10 years. Consequently, it's difficult to answer the question: "why did you leave your current job?" Any pointers on a good response would be appreciated.
Vicky Oliver: If new management came in and forced the change, that's a good angle to pursue. If the criteria for performance were changed, you could also discuss that. The key thing is not to come off as angry or resentful (even if you feel that way). Change happens; you were there and learned a tremendous amount for a very long time. You have a great track record. And you're going to bring all of the great things you learned forward with you into your next job. Much luck!
Anonymous: I may soon be looking for work because I'm not sure how much longer I can last in my current position. The sheer workload in our department is overwhelming, and there is no way that I can do this job well and provide sufficient support to my staff. Any suggestions for how I frame my a response to a "reasons for leaving your current position" question? Thanks in advance.
Vicky Oliver: You just don't want to come across as "overwhelmed." You want to position yourself as supremely confident, and yet, ready for new challenges at a different place. You enjoy supporting your staff and providing leadership and guidance. Put a positive spin on why you are eager to change, rather than discussing how you are dying to leave!
Arlington Va.: How do I handle researching a company when they say very little about themselves on their website beyond the services they offer, their clients, etc. No annual report or corporate "About Us" page is listed online. Googling them yields very little as well except for mentions in their client websites public relations pieces . Thanks.
Vicky Oliver: Great question! Here's the thing, in the absence of information about a company on Google, 1) try other search engines. Vault is often a font of information about particular companies. 2) pick up trade publications from the field and study those. You may be able to learn a lot about a competitor of that company, and then you can weave questions about that company into your interview. 3) Recognize that an interview is also a chance to learn more. You're not just selling yourself. You are also gleaning information about a place and using that to determine if you are the right fit for it. 4) Research trade organizations and try to network.
Boston, Mass.: My husband and I plan to move to the D.C. area this summer. I am available to begin working in mid-August. When should I start applying for jobs if I'd like to start in August? Should I include my available start date on my cover letter, or would that dissuade someone from interviewing me? Also, what are some things that I can do so that human resources takes me seriously since I am applying from out-of-state? What are things that I can do to convince them that I am actually moving? Should I address this in my cover letter?
Vicky Oliver: Start looking for a job now! August is really not as far away as you think. Also: call companies in the DC area and say that you are going to be there and ask if you can meet with someone to discuss openings in the company. Finally, I wouldn't mention your "husband" in your letters. Just say that you are moving to the D.C. area. The reason not to bring him up is because then the company may assume that if he gets transferred again, you'll leave the company.
Washington, D.C.: What's the best way to build a friendly rapport with an interviewer? I feel that with my lack of certain skills, I'll have a better chance of being offered the job if the person hiring likes me. Any tips?
Vicky Oliver: An interview is a productive conversation with someone who is a like-minded individual. You need to possess all of the talents and skills for the job at hand, and beyond that, get into the head of the interviewer a bit so that he/she can "see" you working there for the foreseeable future. 1) If you notice a piece of art in that person's office and you know something about art, you may want to briefly discuss it. The same thing goes for a book that you spot, even an accessory that the interviewer may have on the desk. 2) Don't squander precious interview time talking about trivialities, but expressing an interest in one item that isn't strictly job-related is often a good bonding technique. 3) Follow up after your interviews so that you can have a running dialogue with your interviewer after the meeting is over. 4) But always remember that your key consideration should be to prove why you have the skills and experience for the job.
Washington, D.C.: Do you think there is an advantage to being the first person interviewed for the job or the last person interviewed? Thanks.
Vicky Oliver: Yes, actually, both slots are great positions to be in. If you're first, you set the standard, and if there are a lot of people interviewing, you will be remembered. If you're last, you have to top the best performer. If you know for a fact that the job search is going to be a long one, I would rather be the last person interviewed than the first. But if you're in the middle, it's harder to be remembered.
Philadelphia, Pa.: My most memorable job interview question: The interviewer gave me the scenario that it was my first day on the job, I was alone in the office, and was given five important telephone messages. I was to sort them in the order, and then I would return the calls. As I recall, one was from the governor's office, one was from my boss, one was from my boss's boss and one from a reporter. I don't recall how I answered -- but I didn't get the job. To this day, I have no idea what the "right" answer was.
Vicky Oliver: That's hysterical! I don't know what the right answer is either, but the thing to remember with any subjective question like that one is: any answer is probably okay as long as you can defend your rationale. Confidence and some pluck go a long way in situations like that one.
Vicky Oliver: Okay, folks. This concludes this web conference. It's been amazing meeting you all. I hope that you learned something that you can take with you on your interviews. If you want to contact me directly, my e-mail is: vicky@vickyoliver.com
And happy job hunting and much, much luck! Go land a job, tomorrow.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Vicky Oliver, author of "301 Smart Answers to Tough Interview Questions" (Sourcebooks), will be online to take your questions and discuss her book.
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Dirda on Books
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Each week Dirda's name appears -- in unmistakably big letters -- on page 15 of The Post's Book World section. If he's not reviewing a hefty literary biography or an ambitious new novel, he's likely to be turning out one of his idiosyncratic essays or rediscovering some minor Victorian classic. Although he earned a Ph.D. in comparative literature from Cornell, Dirda has somehow managed to retain a myopic 12-year-old's passion for reading. Heparticularly enjoys comic novels, intellectual history, locked-room mysteries, innovative fiction of all sorts.
These days, Dirda says he still spends inordinate amounts of time mourning his lost youth, listening to music (Glenn Gould, Ella Fitzgerald, Diana Krall, The Tallis Scholars), and daydreaming ("my only real hobby"). He claims that the happiest hours of his week are spent sitting in front of a computer, working. His most recent books include "Readings: Essays and Literary Entertainments" (Indiana hardcover, 2000; Norton paperback, 2003) and his self-portrait of the reader as a young man, "An Open Book: Coming of Age in the Heartland" (Norton, 2003). In the fall of 2004 Norton will bring out a new collection of his essays and reviews. He is currently working on several other book projects, all shrouded in themost complete secrecy.
Dirda joined The Post in 1978, having grown up in the working-class steel town of Lorain, Ohio and graduated with highest honors in English from Oberlin College. His favorite writers are Stendhal, Chekhov, Jane Austen, Montaigne, Evelyn Waugh, T.S. Eliot, Nabokov, John Dickson Carr, Joseph Mitchell, P.G. Wodehouse and Jack Vance. He thinks the greatest novel of all time is either Murasaki Shikubu's "The Tale of Genji" or Proust's "A la recherche du temps perdu." In a just world he would own Watteau's painting "The Embarkation for Cythera." He is a member of the Baker Street Irregulars, The Ghost Story Society, and The Wodehouse Society. He enjoys teaching and was once a visiting professor in the Honors College at the University of Central Florida, which he misses to this day.
Michael Dirda: Sorry to be late--tell you all in a minute. But first a question of two. Anyway welcome to Dirda on Books at this special time, coming to you from the Post's own Book World section.
New Orleans, La.: Just started reading Nicholl's bio of DaVinci and it is fascinating.
Recently read Schama's "Embarrassment of Riches," a very thorough account of Dutch culture in the 15th through 17th centuries. While I was mainly interested in the influences on that golden age of artistic expression, the book's treatment of the Netherlands' "water culture" proved to be particularly timely to my city's current plight.
Michael Dirda: Many thanks. Both are good books. As you may know, I'm a great admirer of Nicholl's The Reckoning, about the death of Christopher Marlowe. His first book, The Achemical Marriage, is about estoeric lore in the renaissance. Schama is, of course, an astonishing writer and historian.
Charm City, Md: Michael -- Thanks for the extensive quotes from the new book of Lytton Strachey's letters. Prompted by your review, my copy is in the mail, perhaps even waiting for me to start on tonight. It makes me think that getting new and much desired books has gotten a lot easier than the time when as a college student on a tight budget I took the bus from Annapolis to D.C. to buy Quentin Bell's new biography of Virginia Woolf. I still remember the excitment of seeing it on the shelf and hurrying back to the Greyhound bus station so I could start reading. Is it just that the books we read and want to read when we are younger make a deeper impression than the books we read and want to read in our middle age?
Michael Dirda: Grahame Greene says at the beginning of his essay, The Lost Childhood, that it's only in our earliest days that reading truly makes a major difference in our lives. Indeed, I've always felt that books provided kids with images of the people they would like to be, or might aspire to be. The Strachey is a lot of fun.
Academia: Dear Michael (and others),
I've just started working in academia, and am interested in reading novels about academia, or set in the academic world (for example, I enjoyed The Emperor of Ocean Park). Do you have any recommendations?
Michael Dirda: I've got a list of them in my Book by Book: Notes on Reading and Life, coming in march from holt. You might try these three to start: Randall Jarrell, Pictures from an Institution, David Lodge, Small World, and Francine Prose, Blue Angel.
Arlington, Va.: Have you paid any attention to the breaking story about the best-seller "A Million Little Pieces"? This book has been consistently presented by its author as a true, non-fictional account of his recovery from a formerly sordid life of unspeakably out-of-control addiction, and the author gained great fame by being selected by Oprah, and repeating his assertions about the book's truth on her show. Now there are apparently credible reports emerging that the author's accounts of jail time and other verifiable incidents cannot, in fact, be verified and appear to be entirely fictional.
I've read his book, and it possesses a certain raw power that derives from its purported personal authority. However, much of it has a truth-is-stranger-than-fiction quality to it that collapses into melodrama if it's just fiction.
Michael Dirda: Yes, this is an interesting point. I've never quite understood why it matters so much, but one needs to know where to place a book. When I learned that much of Bruce Chatwin's The Songlines was, essentially, fictional, it turned a very good travel book into a so-so novel. Autobiographies, in particular, nearly always announce somewhere near the beginning what's called "the autobiographical pact," ie. that they will be telling the truth insofar as they know it. Readers somehow need this assurance. But, as I say, I don't fully understand why. Something psychological, I suspect, and not just esthetic.
New York, NY: I will be traveling to Berlin. Can you recommend a good book, either non-fiction or fiction, to heighten my enthusiasm.
Michael Dirda: Christopher Isherwood's The Berlin Stories. Len Deighton's cold-war thriller, Funeral in Berlin. Or, if you're a real reader, Alfred Doblin's Berlin Alexanderplatz.
Publish or Perish: As I read yet again about another celebrity who is penning a children's book I want to scream. Why are these people not satisfied with their professions of choice? They are talented and established, and in many cases hugely successful musicians, actors, politicians, comedians. Is it really just about the money? Or is it about the glory? Does 'published author' next to one's name somehow provide validation that the title of mere musician, actor, politician, or comedian does not? As a struggling writer, I have defended the publishing industry to friends and colleagues who are in the same boat as I. They bemoan the glut of celebrity tomes. So what to do when you read the latest publishing news: Ted Kennedy as children's book writer. Do we (non celebs) even have a chance? Are we, working writers, so inept or are these celebrities just incredibly gifted multitaskers? Arrgh! If you're not a celebrity what does it take to get published around here? Thanks for letting me vent!! Love your chats.
Michael Dirda: I agree with you. And I feel much the same--I know this is sacrilege--about doctors who write novels (of which there are more than a few). It reeks of hubris, of over-achievement. I know, I know, many great writers trained in medicine. Still. . .
You have to remember that the book industry, more and more, is primarily a way for people and corporations to make money. Not a lot of money, usually, but still. So the publishers have to think about marketability. It helps if you're already famous, or have won an award, or are just startlingly good-looking--people will want to have you on their radio and tv shows, etc. Books will be sold. Money made.
Still, if you write a really good book, editors like to bring out titles that win awards, and they will want your work.
Genre fiction: Two takes on this. There's a difference between entertainment and culture. Both can be fun, both can be escapes, both are worthy endeavors. We know that entertainment is going after smaller goals - reliable fun, not breathtaking or lifechanging. Genre fiction is entertainment (for the most part), not 'culture'.
Also consider that genre fiction is like comfort food. You can't eat pate de fois gras or puffer-fish sushi every day, or drink vintage Burgandy with every meal. But you can eat mashed potatoes 3 times a week, and read a couple chapters of a mystery every night before you go to bed.
It's a difference between comfort and small pleasures, which you can enjoy without devoting lots of attention to them (genre fiction) vs. breathtaking and mind-expanding experiences which require a lot of mental effort (literary fiction). Of course, sometimes meatloaf can be gourmet food, just like "The Left Hand of Darkness" qualifies as truly great literature.
Michael Dirda: These are all good points, but I'm shocked to learn that I shouldn't be drinking Burgundy with every meal. Another illusion shattered.
Genres are real, but genres are also imposed by publishers and booksellers. A genre book is assured of a certain sale; a mainstream book might get many more readers, or many fewer. It's a risk.
Also, some people do aim to write strictly commercial books, though usually trying to do the best work they can. But artists can emerge from any genre, any background: It's a matter of ambition, talent and luck.
Washington, D.C.: Michael, wasn't the discussion today supposed to be about genre books v. literary books?
Michael Dirda: Yes. But I field the questions in the order I come to them on my list.
Michael Dirda: A pause for a moment: It's gloomy and gray here in DC, which is how I feel. A friend I know is undergoing a difficult time, emotionally and physically, and I wish I could be of help but can't; my wife was mugged and her purse stolen; the car was in a fender bender; my kids. . . well, enough of this litany of woe.
Right after the chat I'll be traveling to New York for the annual Baker Street Irregulars banquet--three days of talks, drinking and eating. It's usually a lot of fun, though my heart isn't quite in it just now. Still, I'm looking forward to a quiet three or so hours on the train, when I can lose myself in a book. And when I return I'm going to lose myself in a lot of work. School will be starting soon at McDaniel College.
Anyway, next week we'll be back at the usual time of 2 on Wednesday.
Fairfax, Va.: On the question of genre versus literary fiction I have a few thoughts. First, isn't literary fiction a genre just as much as SF or mystery? Book stores and reviews certainly seem to treat it such. Second, two of the best books I've read recently would probably be regarded as genre books, but really seem to reach beyond those limits - "Mystic River" by Dennis Lehane (shelved as mystery), and "Light" by M. John Harrison (shelved as SF). Why don't these qualify as literary fiction? I think they compare well with (for example) Murakami's literary fiction "Wind-Up Bird Chronicles" and "Wild Sheep Chase," both of which could be shelved as SF but are not.There seems to be a lot of snobbery in deciding what is literary and what is genre - why don't people just read and enjoy, starting with the titles above!
Michael Dirda: Excellent advice and good points.
About Murakami et al. More and more writers under 40 are using genre fiction--especially fantasy, sf and mystery--as a way of revitalizing the novel. There's been a return to story and plot--witness a couple of McSweeney's anthologies--and authors like Jonathan Lethem and Michael Chabon don't hide their allegiance and fondness for science fiction and pulp culture. Meanwhile, Neil Gaiman--a "comic book" writer--emerges as a major literary figure, with fine work in short story, novel, film, etc. I do think that the best writers don't transcend the genres so much as use them for their own purposes.
Austin, Tex: I have yet to start the new novel, "Arthur and George" by British writer Julian Barnes. I have read nothing but high praise about it, but was taken aback by Kakutani's scathing review of it in the New York Times earlier this week. Have you read it, and if so, what's your opinion?
Michael Dirda: I have a review in this Sunday's book world. I enjoyed it a great deal, but don't think it a major work or anything like that. I don't read other people's reviews of books I write about, so don't know what Kakutani said. Maybe she doesn't really like to read.
Bring on the Genre!: Dear, brilliant Dirda,
Let me remind you of your promise to discuss genre literature today. Let us hear your sordid confessions of enjoying a Nora Roberts once upon a time, or your secret addiction to Aubrey/Maturin, or your never to be whispered outside this chat fondness for Louis L'amour. Bring it on!
Michael Dirda: Okay. Georgette Heyer is a wonderful writer, and I love regency romance. Aubrey-Maturin reminds me of Austen, but also, sometimes, of Proust. I've written with obvious fondness about Bernard Cornell's Sharpe novels and George MacDonald Fraser's Flashman. The longest critical pieces I've ever written--7-10,000 words each--have been on John Dickson Carr, master of the locked room mystery; Jack Vance, arguably the greatest living fantasy writer; the witty academic mysteries of Edmund Crispin. I've written about Arthur Conan Doyle's supernatural fiction and praised H.P. Lovecraft, Lord Dunsany and M.R. James in The Weekly Standard. I wrote the introduction to Dunsany's Jorkens stories, volume 3. I wrote the afterword to Signet's Journey to the Center of the Earth. I love ghost stories and P.G. Wodehouse and Max Schulman, crator of Dobie Gillis and . . . Well, enough.
Munich, Germany: The review of Olga Grushin's novel, "The Dream Life of Sukhanov", was quite interesting. It certainly reminded me of Nabakov because of the fact that that Grushin wrote the novel in English and not her mother tongue, Russian.
What other notable authors have written masterpieces, not in their mother tongues? Joseph Conrad comes to mind.
Michael Dirda: Samuel Beckett is the leading contemporary example. He said he chose French because it made it harder for him to write his books.
Annapolis, Md.: I just finished a book that I would like to recommend: "In Lucia's Eyes" by Arthur Japin (reviewed in Book World by Ron Charles a few weeks ago). The basic premise is that Lucia, who is the narrator, was Casanova's first love--not lover--before he embarked on his life of debauchery. It is a literary historical romance and very enjoyable.
Michael Dirda: Yes, you can trust that Charles guy; he's a good reviewer and a good colleague.
Holmes, New York: Dear Mike,what is your favorite sherlock holmes short story? who would you hire s. holmes ,fr. brown, or nero wolfe to solve a mystery or...?Happy New Year.
Michael Dirda: Hmm. A hard call on the Holmes stories. Of the novels The Hound would be my choice. Of the short stories. . . It's probably The Speckled Band, The Final Problem, or the every charming Blue Carbuncle.
Oklahoma City, Okla: I enjoyed your aside last week about your burning desire to be James Coburn in "The Magnificent Seven." During my years as a younf newspaper reporter in the 1970s, I had an occasion to cover a minor in-flight airline emergency that required the plane to land here -- and Mr. Coburn was a passenger. In inerviewed him and found him to be a true gentleman and a genuninely nice man -- and he was carrying a book, though I don't recall the title.
Michael Dirda: What a good story. Yes, Coburn stole The magnificent Seven from McQueen and Brynner.
Millburn, NJ: Now that we are into the NFL playoffs, I was wondering if you can recommend any good books about football. Baseball has so many great books, both fiction and nonfiction, while there seem to be a shortage of football tomes.
Michael Dirda: Paper Lion, by George Plimpton. The books of Dan Jenkins.
On the Road, USA: For the Atlantic City, NJ chatter who last week was seeking American road literature: I recommend Blue Highways by William Least Heat-Moon. Dry in parts but very eloquent in others; he really captures the color of the back roads of rural America. This book inspired me to take a similar back-roads cross country odyssey the summer after I graduated from college.
In last week's chat, you mentioned the James Coburn character in Magnificent Seven. -"Do you remember the James Coburn character in The Magnificent Seven? He's always been rather a model to me."]Surely you meant the Robert Vaughn character as your hero? He was the cowardly gunfighter who re-holstered his guns before breaking in on the bad guys, just to test himself.
Michael Dirda: No, Coburn was always testing himself against himself, with gun or knife. He possesses a serenity, a mastery, an unflappable calm. It is he, among other great moments, who first picks up his guns, determined to ride back to the village: "Nobody takes my guns away from me." Vaughn needed to prove to himself that he wasn't a coward.
Barrington, RI: Reporting back to you and the group a little on Cape Breton literature. Found a delightful book called, "An Underlying Reverance. Stories of Cape Breton" edited by James O. Taylor. Contains a lovely selection of stories from many leading CB authors. I particularly liked Sheldon Currie's "The Glace Bay Miner's Museum" and Joan Clark's "God's Country." Highly recommended. From the Cape Breton University Press.
Also, any thoughts on Ernest Hebert, author of the "Darby" series (5 books) set in New Hampshire? Compared to Faulkner and Davies (perhaps in quality, as well as in subject-a local setting of immense imaginative wealth). Recently wrote _The Old American_, a historical novel which garnered good reviews.
Michael Dirda: Thanks for the leads. I don't know Hebert's work.
McLean, Va.: Mr. Dirda: I've been thinking about the question that was raised last week regarding literature vs. genre books. You've made the point before that categorizing fiction into genres is a convenient device for publishers, booksellers, and even readers. It's all about money and the bottom line. This marketing device is sometimes seen as a judgement on the overall merits of a book in that a book that is tagged as sci-fi, horror, romance, adventure, or mystery--and shelved with other like books in a bookstore--is often viewed as less worthy than all of those books in the general literature section. I've certainly been guilty of this myself.
Truthfully, tho, if many of the books we now view as classics were published today, where would they be shelved using current conventions? Austen and Mitchell would be with the romances, most of Twain would be with the adventure or even children's books, Doyle would be with the mysteries, Poe would be with the horror (or maybe mystery) books next to King, Wells and Verne would be in the sci fi section, and Dickens might be with the mysteries. There are probably better examples, but these are the ones that occur to me right off the bat.
(People might be inclined to dismiss overexposed, popular writers like Grisham, but didn't Dickens fall into that same category in his day? Would Austen today be mocked as chick lit or beach reading?)
My long-winded point is that "genre literature" doesn't automatically fall into the mindless entertainment category. Genre literature can be just as well-written and thought-provoking as other forms of literature. So--don't jump to a negative conclusion when you see someone reading manga, mysteries, or sci fi on the subway. I'm always just happy that people are reading regardless of whether it's poetry, People magazine, or the Washington Post.
Thanks to you and your chatter from last week's discussion for an interesting thought to consider!
Michael Dirda: Good points. I've spent my career urging people to read outside the genres and beyond the best seller list.
Before the 20th century, the notion of genres in fiction were less rigid. Novels would be realistic; romances, in the original sense, could be almost anything.
Takoma Park, Md.: Genre vs literary fiction:
I have to agree with the person who cited comfort food as an analogy. I live with someone who devours mysteries (sometimes two a day), focusing on particular types and authors. She re-reads regularly. She has a few other genre authors (Terry Pratchett for one) who are on the In List.
She gets much more reliable pleasure from her reading than I do from my literary fiction and science-nonfiction. But I believe that my pleasures, when I hit a good literary novel, are deeper and fresher than hers.
It's three decent comfort books vs two lousy and one terrific literary book.
You pays yer money (or time, really) and you takes yer choice.
Michael Dirda: Yes. But surely some of her genre books are better than others? And some, like Pratchett, may be regarded as breaking out of the categories? Still, that's where genre fiction hooks you--it's reliable, you know what you're going to get.
For the love of Genre, Maryland: Good Afternoon, I'm having some sparks of thought about my favorite genre novelists. What do you think, Mr. Dirda?
Tepper, radical speculation on women in society
Heinlein, early and late: social theory, exploration of taboo in later books
Card, high space adventure + moral introspection +mormonism
Martin & Jordan: exploration of human condition through intricately plotted political sf.
Bujold: strong theme writer, more human condition
Elliott's Jaran novels: social theory, women, society, marriage, less emphasis on oppression than Tepper
Peter Hamilton: limits of technology to improve human condition. Importance of reason. Speculation on cultural separation.
John Barnes: More culture speculation
Pratt: social satire, sometimes at its very best.
Gabaldon: Historical perspective, meditations on social and personal contracts
Austen: social theory, human interaction
Heyer: Because I love her. Humor, well-drawn characters illuminating tension between social duty and personal desire.
O'Brien & Forester: Alas for the beating of O'Brien, repeatedly administered by the Post! High-seas adventure, plus very sharp character construction.
Michael Dirda: Interesting list, and comments. I've only read about half the people on it, but would agree in those instances.
Greenbelt, Md.: Michael, Sorry to hear of your woos. How can you try and snap yourself out of it? It sounds like you could use a nice cup of hot tea and a book that's completely your choosing, which is likely not possible. However, let's pretend. If you could read anything at all that you wanted to soothe your spirits, what would it be and where? In front of a fireplace? In your bed under the covers? Hopefully, such fantasy will allow for a few seconds of respite from your bad day. Take care of yourself.
Michael Dirda: Let's see. If I'm going to wish, can't I just wish to be 14 again, settling down with a volume of Sherlock Holmes?
For pleasure, if I could manage any pleasure, I'd read John Dickson Carr's Murder in the Submarine Zone, Michael Innes's Stop-Press, and Love on a Branch Line, by John Hadfield.
Silver Spring, Md.: Genre books that transcend genre?
Isn't this just a way of saying that really really good genre books get the honorary title of nearly-literary books?
Maybe there's a literary-novel genre or genres, and they're not recognized because there is more variation within the "genre", and they aren't as reliably successful as good mystery, horror, sea yarn, etc.
Michael Dirda: Nearly literary sounds demeaning; I think they are literary. And, as posters have reminded us, it goes both ways: Cormac McCarthy's Blood Meridian is a cowboy story, albeit a very bloody spaghetti-western style cowboy story.
Germantown, Md.: Your answer to the celebrity author question reminded me of Cory Doctorow remarks on writing today. If you didn't know, he basically gives his books away free on the Internet, or you can buy a real book if you like. He supports himself by selling some books, of course, but also by _speaking_ about his writing and other topics. He says it's a shame that you have to be a good, presentable, speaker to be a successful writer nowadays, but that's life. His take is that we lost a lot of good actors and actresses when we went to talkies, too, but you can't stop the march of time.
Well, he's also a pretty good writer, as you know.
Michael Dirda: Many thanks. I'm a pretty good speaker too, but I don't seem to be making any serious money from it.
Washington, DC: Just a quick thanks for encouraging us to expand our horizons. In the last month I've read Maltese Falcon and Stars My Destination, two books I would never have picked up on my own. They were both delightful. I'm now in the middle of At Swim-Two-Birds and find it very funny, though a bit difficult. Thanks again!
Michael Dirda: There are longueurs in the Flann O'Brien novel; you might check out his newspaper columns, The Best of Myles.
Rockville, Md: OK to the point.
I liked Science Fiction when it was not very popular with the elite. My quote was "This can not be science fiction. It is good."
Is Harry Potter genre? Or a different sort of cat? I rather like the new translations. (Beowulf or Gilgamesh or the others.) Are they literature? Or scholarship?
Michael Dirda: Potter is genre. The B and G translations are literature, not scholarship. They are a little too free to be thought of as scholarly.
Courthouse, Va.: Hi Michael, Happy New Year. Since we've started on a historical note, I have two questions about historical pieces. One: I'm interested in reading a good book on the French Revolution, something I know little about. Also, second, I'm interested in reading a history of food--or something along those lines. Already read Salt and Cod by Kurlansky. If you could make any recommendations, I'd appreciate it. Thanks!
washingtonpost.com: re: history of food, look at "Spice: The History of a Temptation" by Jack Turner and "From Hardtack to Home Fries : An Uncommon History of American Cooks and Meals" by Barbara Haber.
Michael Dirda: Thanks, Kim--I presume--for the food leads. You might also look at the works of Margaret Visser, Much Depends on Dinner, and perhaps M.F.K. Fisher's books.
As for the Revolution: Thomas Carlyle's The French Revolution is a magnificent, wrong-headed work of literature and history. Simon Schama's Citizens is critical of the Revolutoinary spirit. And Claude Manceron has written a multivolume study of the years before and during the Rev.
Clarification: I don't think anyone "look down" on someone reading manga or sci fi. Not at all. But I think it's interesting to think about what each type of book offers. It's not snobbery; it's curiosity.
Michael Dirda: Oh, I don't know. I still find it hard to take most manga seriously, and I admire comics and graphic novels.
Genre Fiction: I wholeheartedly agree with the earlier chatter about the pleasures of genre fiction---like comfort food. That's the perfect analogy. Literary fiction and genre fiction offer distinct gifts. And I think it's -okay- if we admit that literary fiction may offer gifts that may be more rare or precious. (This is the person who posed the question last week, by the way, so I'm probably repeating myself a little.)
I love mysteries, and they are a little repetitive. Then I thought of Ian McEwan and how his novels are kind of repetitive too; his plots and style are recognizably his own. BUT I think the insights he provides within the context of those plots and that style are not repetitive, and the plots are recognizably "McEwanesque" but not really repetitive. The scene in Amsterdam (I think) where one character is writing an orchestral work in the park and has to choose between following the melody that he is just about to grasp and responding to the cries of a woman who is being attacked is so memorable---I still think about it in a way that I think about few scenes from mysteries.
I also like Jennifer Crusie novels (modern romance novels), and she's a good writer. But would I read her if it weren't for the sex scenes? No!
On the other hand, 20 years from now if I could choose to re-read Amsterdam versus Busman's Honeymoon, The Clocks, or Faking It, I might choose the genre fiction. Truth be told, wouldn't all of us rather watch Hitchcock than Orson Wells?
Michael Dirda: I don'tthink Hitchcock and Orson Welles are that different, but I take your point. I do think that as we grow older, we start to return more and more to the books we loved when young--and they are often genre books or even trash. Noel Coward read E.Nesbit children's sotries on his death bed.
They do provide, as you say, comfort.
50 miles of bad road: High Noon, eh? Well, at least you didn't forsake us. I have to buy an Oxford literature companion to complete my man-of-letters makeover. Are they indespensible and should I get English or American (i.e does the English incl. all English language writers)? thanks.
Michael Dirda: Drabble's Oxford companion to English touches on foreign writers, but is primary British. The American is just America, for the most part. You need them both. But if you look around used bookstores, it's relatively easy to find older editions for a few dollars. And they're jsut as good, for all but the most contemporary figures.
Maryland: Does it make any difference in what order the Dido Twite books by Joan Aiken are read? I asked librarians at two different libraries, and they didn't know. They gave me a list of 12 -- they called them The Wolves Chronicles. I started off with The Wolves of Willoughby Chase (which, incidentally, does not have Dido in it) which seems to be the first.
Michael Dirda: Yes, I always mention that Dido first appears in the second Black Hearts in Battersea. If possible, you should read them in order, because the story does develop over time.
Michael Dirda: And that, friends, is it for this week's session of DOB. Now, I must go rush, with heavy suitcase, to catch a train. Good reading till next Wednesay. May we all feel better soon.
Next week: Wednesday at 2.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Lobbygate Deja Vu
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Scandal followed scandal. Gaffe piled on gaffe. The ruling party, utterly invincible in the last election, overnight became the symbol of incompetence and corruption. Carefully launched plans and programs fell flat. Legislators were caught taking bribes in brown envelopes. Meanwhile, the party leader hunkered down in his office, controlling all contacts with the media.
No, I am not talking about the Republicans in 2005 and 2006. I am talking about the British Tory party in 1996 and 1997. True, the rules of politics are different here and there. Also, the Tories had been in charge of Britain for 17 years, longer than the Republicans have controlled Congress, and their crackup was more spectacular. But -- having been a member of the British press corps throughout the prime ministership of John Major, the last Conservative leader of Britain -- I can tell you that the dynamics of these two great political collapses nevertheless feel strangely similar.
Certainly the behavior of politicians in both eras made clear the relationship between perceived electoral invincibility and petty corruption: The longer you've been in office, the less you fear the voters' wrath, the more likely you are to bend the rules. The "cash for questions" scandal of 1995 Britain -- legislators took bribes for presenting questions in Parliament -- in that sense resembles the Jack Abramoff scandal of 2006 Washington. Relatively speaking, huge sums of money weren't involved -- just a few thousand pounds here or a golfing trip there -- but it was enough to make life more bearable for the underpaid career politician, one who thinks his electorate has become too stupid to notice what he does in his spare time. And enough to fall afoul of the law.
Both eras also illustrate the old maxim that political failures always beget more political failures. Only months after John Major made the unfortunate decision to link the British currency to the European exchange rate mechanism -- a predecessor of the common currency -- a clutch of hedge funds (led, incidentally, by George Soros) forced sterling out. Tory economic reliability, once the heart of the party's appeal, never recovered. Among other things, that meant that when the Tories launched a perfectly sensible pension reform, nobody took it seriously.
A White House that acquired a record for incompetence and mismanagement in Iraq, New Orleans and elsewhere will recognize this phenomenon, particularly where it concerns pensions, which we call Social Security on this side of the Atlantic. Once lost, credibility is never regained.
Finally, both eras also tell us a lot about what happens to political ideas, even good ones, in the hands of complacent politicians. At different times, both British and American conservatives have lambasted uncontrolled government spending, unbalanced budgets and the "waste, fraud and abuse" that seem inherent in large government programs. And yet, at different times they appeared to tolerate, even to encourage, all of the above. I'm not sure I've ever understood the psychology of this -- if balanced budgets were so good in the 1990s, why don't they matter in the 2000s? -- but it seems, again, linked to power: The longer you stay in charge, the more tempting it becomes to put things off. Today you've got to build that Alaskan bridge to nowhere or add that drug benefit to Medicare to get reelected. You can always balance the budget tomorrow. Right?
There is, of course, one major difference between Britain in 1997 and America in 2006: So far America has no Tony Blair, the Labor Party leader who stole all of the Tories' best economic and foreign policy ideas, at least on paper, and beat them at their own game. So completely did Blair rout the Tories, and so rapidly did he shift the paradigm -- redefining the Labor Party and thereby forcing a redefinition of the Tory party -- that the Tories lost not one election but three. The British journalist Robert Harris once wrote that when Blair took over it was like an old science fiction movie in which "a mad boffin throws a lever and the poles are reversed. Political matter suddenly became antimatter. Negatives became positives . . . [as if] someone switched the bottles and the Tories became reprogrammed with socialist DNA." Since then they've changed in different ways. Indeed, their recently elected party leader, David Cameron, has just appointed a series of pop stars to advise him on Third World poverty, something Blair would do but something it's hard to imagine any pre-Blair Tory even contemplating. If you can't beat 'em, join 'em.
There is no American Blair at the moment, no Democrat prepared to attack the Republicans from the right, or to blast the Republican Congress for wasteful spending or insufficiently vigorous foreign policy, or even just to change the style of the political debate so rapidly that nobody in either party understands what's happened until it's too late. But there could be. Everyone's forgotten this now, but Blair himself was a fluke, becoming Labor leader after his immediate predecessor, John Smith, had a heart attack. And should a similar deus ex machina take place in the United States -- then, perhaps, we'll learn how head-swirlingly fast an apparently invincible political party can unravel here too.
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Scandal followed scandal. Gaffe piled on gaffe. The ruling party, utterly invincible in the last election, overnight became the symbol of incompetence and corruption. Carefully launched plans and programs fell flat. Legislators were caught taking bribes in brown envelopes. Meanwhile, the party...
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Alito Replies Don't Rock Status Quo
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On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.
Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary's role as a check on presidents who overstep their constitutional authority.
"The Bill of Rights applies at all times," he told the committee. "And it's particularly important that we adhere to the Bill of Rights in times of national crisis because that's when there's the greatest temptation to depart from them."
In an otherwise low-key performance, Alito seemed to bristle only once, when Sen. Russell Feingold (D-Wis.) asked if Bush administration officials had helped sculpt his answers about the White House's use of the National Security Agency to eavesdrop on some communications inside the United States.
"Nobody has told me what to say," Alito snapped.
But, like nominees before him, Alito was short on specifics, refusing to explain how he would rule on issues that might come before the court.
The nominee had to walk a fine line: He could not renounce his past opinions; he could not openly agree with Democratic critics of the president who appointed him; and yet he had to show that, on the court, he would not merely act as a rubber stamp for the president.
The discussion of executive authority reflected the changed political landscape since Oct. 31, when President Bush nominated Alito, 55, to succeed retiring Justice Sandra Day O'Connor. Initially, it appeared the battle over his nomination would shape up as a contest mainly over abortion, on which O'Connor has long held the balance of power within the court.
Instead, Alito finds himself campaigning for the job of wartime justice, a position in which he will be called upon not only to decide domestic social issues, but also to weigh momentous questions such as the scope of the president's authority as commander in chief, or the balance of power between the executive and legislative branches.
This has happened because the disclosure that Bush ordered NSA wiretapping, without prior judicial approval, has dominated headlines and fueled public debate about some of the steps Bush has taken in the fight against al Qaeda.
Alito's own generally pro-law enforcement record on the bench coupled with documents from his time as a young lawyer in the Reagan administration -- in which he appeared to endorse a robust view of the president's power against the other branches -- have created an opportunity for Democrats to suggest that he would be an unreliable guardian of liberty.
In seeking to dispel that notion, Alito emphasized cases from his 15 years on the U.S. Court of Appeals for the 3rd Circuit in which he ruled against law enforcement, citing repeatedly the example of a ruling in which he had upheld a black motorist's suit against police for racial profiling.
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On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.
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For Democrats, A Most Tender Roast of Alito
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2006011119
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It was beginning to look as if the Democrats had shown up to a knife fight without a knife yesterday.
It was beginning to look as if they'd just been woofing when it came to the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr. That they'd written a check full of bluster that a lackluster series of questions couldn't cash.
There were some deft jabs, for sure, and Democrats did visit the territories they had promised -- from abortion rights to executive power to issues of discrimination and the appellate judge's ethics. But the Dems didn't rampage, didn't storm the barricades as all their tough talk had promised.
In fact, most of the day was so quiet that by mid-afternoon you had Republicans such as Texas's John Cornyn going before reporters and essentially declaring victory.
That's hard to take when Americans have been promised a smackdown. This is a reality TV nation, a WWF kinda country, where we like to see a fight even when we know it isn't real, even when we know the stakes might just be a bag of Cheetos.
So when it's the Supreme Court, well, that's when the sparks are supposed to fly. That's what Democrats had promised in the Alito hearings. The New Jersey judge with humble roots would replace the all-important swing seat of Sandra Day O'Connor, they said. Abortion rights are at stake. The issue of executive power is on the table like never before in light of the president's recent wiretapping episodes. Alito is a guy who may be an extremist posing as a moderate.
They certainly talked a good game. After all, wasn't it last week that New York's Charles E. Schumer said Alito should not try to pull the same duck-and-dodge as John Roberts? Schumer even spoke of the possibility of a filibuster. And wasn't it Massachusetts's legendary lion Ted Kennedy who said Alito worried him because he seemed incapable of ruling against the government or big corporations in favor of the little guy? This is the seat that will push the court to the right, the argument went, the seat that matters more than replacing Chief Justice William Rehnquist with Roberts.
Unless you were paying really close attention early yesterday, it would have been hard to figure out whether what you were looking at was more than a garden-variety spat.
Yes, Patrick Leahy tried to press Alito on executive power.
Yes, Kennedy tried to grill Alito on his Vanguard mutual fund and said again that the judge was just too deferential to the president.
And Democratic senators pressed the judge on his membership in the Concerned Alumni of Princeton University, or CAP, which challenged the admission of women and minorities.
"They were hostile to what they felt were people that did not fit Princeton's traditional mold: women and minorities," Leahy said, noting that Sen. Bill Frist of Tennessee and former New Jersey senator Bill Bradley had criticized the organization and dropped their membership but that Alito had touted it in a job application in 1985.
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It was beginning to look as if the Democrats had shown up to a knife fight without a knife yesterday.
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After WHO Request, China Reports Two More Bird Flu Deaths
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2006011119
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BEIJING, Jan. 11 -- The World Health Organization identified China's latest bird flu victims Wednesday as a 10-year-old student and a 35-year-old street vendor who succumbed to the H5N1 strain of the virus last month in different parts of the country.
Roy Wadia, the WHO spokesman in Beijing, said the Chinese government reported the deaths during the past 48 hours in response to the agency's request for updated data on bird flu. The man died Dec. 30 in Jiangxi province in eastern China and the girl Dec. 16 in southern Guanxi province, he said.
The new deaths increased to five the number of people in China who have succumbed to the virus.
The Health Ministry's spokesman, Mao Qunan, spoke at length about bird flu at a news conference Tuesday but did not mention the additional deaths. Mao's omission and the delay in reporting the deaths to WHO fed concerns about the reliability of official information on the extent of bird flu among China's 1.3 billion residents.
International officials have complained that they fear they are not getting official data fast enough from the Chinese government. Wadia refrained from criticism of the latest delay, but suspicions are easily aroused because of China's record. The government sought to conceal the 2003 outbreak of severe acute respiratory syndrome, or SARS, and Chinese officials have long been reluctant to share information with outsiders.
Since the SARS controversy, the government has pledged to deal squarely with health information. But in addition to the complaints from international health officials, Chinese reporters have said they are frequently forced to seek information about China's bird flu situation from WHO or foreign publications because China's official sources refuse to provide it.
"News about the virus often takes a detour to reach domestic audiences," Hu Shuli wrote in the Oct. 31 issue of Caijing business magazine. "It is first covered by foreign media, and then picked up by the domestic press. Journalists sent to infected areas also say local officials have not been cooperative enough."
At his news conference, Mao said the outlook on bird flu in China is "not optimistic" because the country's rural health care system is ill-equipped to identify the H5N1 strain and guarantee swift treatment.
Mao said 66 percent of China's township-level hospitals and 90 percent of its county-level hospitals are part of the country's reporting system for infectious diseases. That leaves thousands of hospitals outside the loop, meaning ministry officials might not learn of bird flu infections until long after they break out in remote areas.
Twenty-eight outbreaks of bird flu and eight cases of human infection have been reported across the country since October. The Agriculture Ministry on Tuesday reported a new outbreak killed 16,000 quails during the first week of this month on a farm in Guizhou province in south-central China.
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World news headlines from the Washington Post, including international news and opinion from Africa, North/South America, Asia, Europe and Middle East. Features include world weather, news in Spanish, interactive maps, daily Yomiuri and Iraq coverage.
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Kim Jong Il Said to Reach Shanghai by Plane
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2006011119
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SEOUL, Jan. 11 -- North Korean leader Kim Jong Il toured Shanghai on Wednesday after reportedly arriving on a direct flight from the North Korean capital in what would mark the reclusive ruler's first overseas trip by plane, according to South Korea's semi-official Yonhap news service.
Quoting unnamed diplomatic sources, Yonhap said Kim was on a three-day trip to China's business hub, which he last visited in 2001 to see the city's vast economic expansion. Kim reportedly fears flying, and news agencies in Japan and South Korea said earlier that he had arrived in China aboard his private train and was perhaps en route to Russia.
But Yonhap said Kim had landed in Shanghai after a direct flight from Pyongyang and was likely to stop in Beijing for meetings with President Hu Jintao and other Chinese leaders before returning to North Korea.
South Korean officials could not immediately confirm Yonhap's report and North Korea's official media did not comment on the visit.
If the report is true, analysts said that Kim's visit could represent an effort to win China's support for lifting U.S. economic sanctions imposed late last year against North Korean companies believed to have ties to illicit activities, including currency counterfeiting. North Korea has said it would not return to six-nation talks aimed at dismantling its nuclear weapons program until those sanctions were lifted.
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World news headlines from the Washington Post, including international news and opinion from Africa, North/South America, Asia, Europe and Middle East. Features include world weather, news in Spanish, interactive maps, daily Yomiuri and Iraq coverage.
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Desktop Dining - washingtonpost.com
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2006011119
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You probably eat lunch at your desk. A sandwich, a wrap, a cup of soup. Perhaps a salad bolted down while reading e-mail. The food may be quickly forgotten, but crumbs and drippings linger, taking root in the crevices of your keyboard.
You're not alone. Most working Americans, managers as well as staff, eat lunch at their desks. Bonnie Taub-Dix of the American Dietetic Association reports that 75 percent of office workers eat lunch at their desks two or three times a week.
Blame it on the difficulty of juggling work and family, the speeded-up business cycle, the unintended consequence of technology or pervasive economic anxiety. Whatever the reason, lunch routinely eaten with colleagues or friends outside the office has gone the way of defined benefit pensions and other workplace dinosaurs. Few have the time. In America, says University of Pennsylvania psychologist Paul Rozin, lunch is not a meal. "It's a fueling."
"People are working longer and harder," says Ian Simmons, a partner at the law firm of O'Melveny & Myers in Washington, who more often than not dashes out to grab a sandwich and then works as he eats. With 12- and 14-hour workdays his norm and two young children he would like to see before bedtime, lunch is expendable unless it has a purpose. For Simmons, that means lunching with clients or associates.
The question is, do we lose something valuable when we eat alone at our desks?
Nutritionally, says dietitian Taub-Dix, there's not much difference between a piece of chicken, brown rice and a vegetable on a plate in a restaurant and a chicken sandwich on whole-grain bread with lettuce and tomato at your desk: "You can make healthy choices wherever you eat." What's at risk is enjoyment of your meal, she says, without which desk diners may be more vulnerable to the siren song of junk food.
Disease-causing germs are another problem. The typical desk has 100 times as much bacteria as the typical kitchen table, according to a study by University of Arizona researchers. Keyboards and telephones tend to be even dirtier than desks. "You have to clean these surfaces regularly," says Taub-Dix. "You wouldn't eat lunch at a restaurant that didn't wash its tablecloths, would you?"
What's at risk personally may be more profound -- the chance to connect with colleagues and staff. "Tremendous creativity can be released when people solving common or related problems get together and schmooze," says Jordan Goodman, chairman of the department of physics at the University of Maryland. "That's why contemporary research centers, including the physical science center we are building here at College Park, are designed with on-site lunchrooms and cafes."
Managers also may be losing opportunities to interact with their staff. As online management columnist Jill Geisler recently wrote: When managers "talk about helping people grow, or resolving conflicts or giving better feedback, or improved collaboration with colleagues across the organization, they often come up with a simple thought, 'You know, I should take them to lunch and get to know them better.' "
Even so, few people give lunching outside the office a high priority. "Lunch is energy," says Newt Pendleton, a Falls Church financial adviser. Between appointments, Pendleton dashes out to the nearby Whole Foods Market, where he fills a medium soup container -- to control weight, he limits his portion size -- with a mound of white rice topped with pork teriyaki. Like a lot of people who eat at their desks, Pendleton says he gets on "food jags" where he eats the same thing day after day. (Not a good thing do to, say dietitians; a varied diet is better.) Though he is close to the other partners in his firm, he generally eats alone.
Margaret Polski, an adviser in the Africa bureau of the U.S. Agency for International Development, says she often eats at her desk. "By the time I think about lunch, I have missed it," she says. Often it is 2 p.m. before she races downstairs, picks up a tuna sandwich and returns to her desk to eat.
Melina Afzal, a self-employed social work consultant in the District, skips the midday meal entirely. Adrenaline is her appetite suppressant. "I have 101 things to do that are going to help me with my income," she says. "If I slow down, I will fall behind."
Professionals who bill for their time have another reason to eat at their desks. Delia Jones and Jennifer Downey work at ICF, a downtown consulting firm. "In consulting, we bill in half-hour increments. You can't bill lunch, so you want to keep it short," Jones says.
Jones and Downey do leave their offices to pick up some lunch. Running out gives them a few minutes for socializing, providing them with a compressed version of what eating together used to offer.
Even if they eat at their desks, most office workers spend upwards of $5 a day on lunch. Firehook Bakery and Coffee House owner and co-founder Pierre Abushacra says that at his eight stores (which sell sandwiches, soups and salads), most customers spend $9 to $10 for midday takeout.
You might think the high cost would encourage office workers to brown-bag it. "Not so," says Harry Balzer, vice president of the Chicago-based NPD Group, which studies where, what and how Americans eat. "Nationwide, we're seeing a clear trend at lunchtime away from sandwiches made at home."
Most days, Jeff Donahoe, director of fundraising communications at Georgetown University, runs out to Whole Foods or Safeway to pick up lunch -- typically, soup, salad or maybe a burrito that he heats in the office microwave. At the microwave, Donahoe enjoys the chance to chat. But then he retreats to the privacy of his own office, where his computer is his lunchtime companion.
He discourages visitors. "I leave my door open, but if people stop by I ask them to come back in half an hour," he says.
Freelance writer Michaele Weissman last wrote for Food about the sweets of Ramadan.
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You probably eat lunch at your desk. A sandwich, a wrap, a cup of soup. Perhaps a salad bolted down while reading e-mail. The food may be quickly forgotten, but crumbs and drippings linger, taking root in the crevices of your keyboard.
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'Bueller, Bueller' Edition Almost Saves 'Ferris'
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2006011119
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"I don't know that there's ever been a happier movie."
So says Ben Stein, the former Nixon speechwriter whose droning delivery of the perpetually quoted line "Bueller? Bueller?" provides the title for this special edition DVD of "Ferris Bueller's Day Off." Stein, speaking during one of several featurettes included on this single disc, may be exaggerating a bit. But after revisiting the world of the charming high school con artist, played memorably by Matthew Broderick, it's tempting to agree. The John Hughes classic stands as one of those rare comedies that is very much of its time -- the mid-1980s, as demonstrated by Ferris's synthesizer and Sigue Sigue Sputnik on the soundtrack -- yet delightfully, hysterically timeless.
This DVD marks the first time that one of Hughes's teen comedies has been released with an acceptable number of extra features. Unlike versions of "16 Candles," "Pretty in Pink" and "The Breakfast Club" that have been slapped onto DVD with neither bells nor whistles, "Ferris" comes with a series of extremely entertaining mini-documentaries, nearly all of which include behind-the-scenes footage from the set and recent interviews with members of the cast.
Unfortunately, all the fun featurettes only whet one's appetite for more bonus material. Surely there must be outtakes and deleted scenes in Paramount's vault. And why is Hughes's commentary track -- the one measly extra included on the "Bueller" DVD released in 1999 -- not included?
Speaking of Hughes, he appears only in 20-year-old interviews, sporting a spiked mullet that looked semi-ridiculous even by '80s standards. Not including more up-to-date analysis from the director, who surely would have plenty to say about this comedy's staying power, stands as a striking omission.
I'm happy that the people at Paramount Home Entertainment have finally saved Ferris by putting out this respectable special edition. But I feel compelled to remind them and the folks at Universal, the studio responsible for several lackluster Hughes releases, that life moves pretty fast. If they don't add more bonus features to the DVDs of these teen classics, we aging John Hughes fans could miss them.
Best Bonus Point: All of the featurettes are worth watching, but "Getting the Class Together: The Cast of 'Ferris Bueller's Day Off'" delivers the most interesting tidbits. Who knew that the line "They think he's a righteous dude" was actually invented by actress Edie McClurg, who improvised it during her audition for the role of Principal Rooney's secretary? It's even sweeter to hear the actors who played Mr. and Mrs Bueller -- Lyman Ward and Cindy Pickett -- discuss the fact that they're happily married in real life.
Winning Ben Stein Bonus Points: Ironically, the guy who played the most boring teacher on Earth provides some of the most engaging, heartfelt comments on this DVD. He tells amusing stories about meetings with Nirvana's Kurt Cobain and President George W. Bush, recounts filming his crucial classroom scene (all of which was improvised) and confesses "I've said to my wife repeatedly, I just want on my gravestone, 'He loved dogs' and 'Bueller, Bueller.'"
Also New on DVD This Week: "The Constant Gardener," "Red Eye," and "Hustle & Flow."
If you have feedback about "Bonus Points" or want to suggest a DVD for review, e-mail Jen Chaney.
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Search Washington, DC area movie listings, reviews and locations from the Washington Post. Features DC, Virginia and Maryland entertainment listings for movies and movie guide. Visit http://eg.washingtonpost.com/section/movies today.
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North Korean Leader Said On Trip to China, Russia
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2006011119
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BEIJING, Jan. 10 -- The reclusive leader of North Korea, Kim Jong Il, was reported to be traveling in China and perhaps Russia on Tuesday, after his government refused again to return to six-nation talks on dismantling its nuclear weapons program unless the United States stops targeting its finances.
The Chinese government and the North Korean Embassy here declined to confirm Kim's visit, maintaining the secrecy that has marked his three previous trips to China. But an official in the border city of Dandong said a special train from North Korea carrying Kim crossed into the country under high security on Monday.
News agencies in South Korea and Japan, citing diplomatic and intelligence sources in Seoul and Beijing, also reported Kim's visit, adding that he was expected to spend four to five days in China and meet with President Hu Jintao to discuss the stalled nuclear talks and bilateral economic cooperation.
But the Reuters news agency said Kim's train passed through China on Tuesday en route to Russia. Kim did not meet with any Chinese leaders, but might do so on his way back, the report said, citing an unnamed source.
In Moscow, a Russian Foreign Ministry source said reports that Kim was en route to Russia "don't have any grounds," the Interfax news agency said Tuesday.
The trip, apparently Kim's first journey abroad since a visit to Beijing in April 2004, comes only three months after Hu traveled to North Korea in October. Diplomats and other analysts said another summit between the two leaders so soon would be unusual and suggest a sense of urgency, adding that Kim may be seeking Hu's support in the nuclear standoff.
North Korea has refused to return to the six-party talks, scheduled to resume in Beijing early this year, unless the United States lifts restrictions on firms the Bush administration says are involved in counterfeiting, money-laundering and drug-trafficking by the North Korean government.
"The U.S. is applying financial sanctions against the DPRK in an effort to destroy the system in the DPRK by stopping its blood from running," a spokesman for North Korea's Foreign Ministry said in a statement Monday, referring to the country by the initials of its official name, the Democratic People's Republic of Korea. "Is there any need to have talks under the situation where the U.S. is enforcing such a policy?"
The timing of the statement, on the eve of a rare trip abroad by Kim, suggests the Communist leader may be threatening to abandon the six-party talks over the issue.
The talks, which are hosted by China and include the United States, Japan, Russia and the two Koreas, began in 2003 and resulted in a general agreement in September in which North Korea promised to disarm in exchange for aid, diplomatic recognition and security guarantees. So far, negotiators have not worked out a plan to implement the deal.
Correspondent Peter Finn in Moscow contributed to this report.
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BEIJING, Jan. 10 -- The reclusive leader of North Korea, Kim Jong Il, was reported to be traveling in China and perhaps Russia on Tuesday, after his government refused again to return to six-nation talks on dismantling its nuclear weapons program unless the United States stops targeting its...
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Bedeviled by Rest of ACC, Terps in Blue Heaven vs. Rival
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2006011119
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When Duke's Lee Melchionni examined game tape of Maryland, he studied tendencies of players but ignored specific results because he knew what the Blue Devils would see tonight at Cameron Indoor Stadium: the Terrapins at their very best.
Over the past 22 months, Maryland is a combined 0-5 against Clemson and Miami, two programs that are national afterthoughts. But during that same span, the Terps have dominated Duke as much as any program could dream, winning all three meetings.
"You can't explain it sometimes why you play well against some teams and not against other teams," Maryland Coach Gary Williams said. "I think we've really hit it sometimes when we've played against Duke. We've played probably the best we can play."
Maryland has beaten Duke at home, on the road, on a neutral court.
The team beat Duke in 2004, when Maryland failed to make it out of the second round of the NCAA tournament and the Blue Devils reached the Final Four. It twice beat Duke in 2005, when Maryland failed to reach the NCAA tournament and the Blue Devils earned a No. 1 seed in the NCAAs.
Since March 14, 2004, when Maryland earned a 95-87 overtime victory against Duke in the ACC tournament final, the Terps have won just six of 17 games against ACC teams other than the Blue Devils. Conversely, since that ACC tournament loss, Duke is 16-3 against ACC teams other than Maryland but winless against the Terps.
No ACC team has won three straight against Duke since North Carolina won seven straight and Wake Forest won nine in a row in the mid-1990s. Even during Maryland's most successful seasons, when the Terps reached consecutive Final Fours and won the 2002 national title, they were 2-4 against Duke.
"They are not intimidated of us; they are not scared of us," Melchionni said. "It's a reflection of their coach: He is very intense, and they carry that on the floor. Coming into Cameron can be a scary place to play, and you just don't sense that with those guys."
The Terrapins' tendency to play to the level of competition has been as much a flaw as a strength. They admitted to not playing with maximum effort after several losses last season, and Williams said a lack of effort was one reason for the surprising 84-70 loss at Miami on Saturday.
There is no shortage of motivation tonight for the 23rd-ranked Terrapins (11-3, 1-1 ACC). Three weeks ago, Nik Caner-Medley said he hoped Maryland would have the chance to hand the top-ranked Duke (14-0, 2-0) their first loss.
"Normally when we play a team, they play better against us than most people. It just happens," Duke Coach Mike Krzyzewski said. "It's a celebrated game. Kids from other schools think, 'We get a chance to beat Duke.' . . . We have teams that come in here and think that they can win. They want that environment and look at it in that sense. Maryland has certainly done that."
The Maryland player who most embodied that sentiment is no longer with the team. Former point guard John Gilchrist may have disrupted team chemistry, but he averaged 18 points in the past three victories over Duke and brought a toughness and swagger into big games.
"John liked that" big stage, Williams said. "You need guys like that, that come to play."
Another key has been the defense of Maryland's Chris McCray, who for the better part of 78 minutes shadowed Duke all-American J.J. Redick in last season's two victories. McCray helped force Redick into making a combined 12 of 40 field goal attempts.
Wake Forest Coach Skip Prosser, whose Demon Deacons lost to Duke on Sunday, opted at times to double-team Redick and got burned. The senior still scored 32 points, and the extra attention opened up shots for his teammates, Sean Dockery and Melchionni, who combined to make seven three-pointers.
That Maryland possesses a player who is capable of spending a night snaking around screens is a significant bonus because Melchionni said Redick is in "marathon-runner shape."
"You try to limit his touches, but they screen for him so well," Prosser said. "He has a seemingly endless reserve of energy. He plays 35-40 minutes a night, is constantly in motion, sort of Reggie Miller-ish, if you will."
Very little evidence this season suggests Maryland has a strong chance tonight, which probably means the Terps are in prime position.
"We know we can" win there, Williams said. "But that's not going to help us in terms of the scoreboard."
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Maryland goes to Cameron Indoor Stadium on Wednesday with a chance to win its fourth straight game against top-ranked Duke.
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PBS Frontline: 'Country Boys'
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2006011119
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Filmmaker David Sutherland was online Wednesday, Jan. 11, at 11 a.m. ET to discuss the PBS film "Country Boys," about two boys coming of age in Eastern Kentucky's Appalachian hills and the challenges they face in overcoming poverty and differences and their path to adulthood.
"Country Boys" airs Jan. 9, 10, and 11, 2006 from 9 to 11 P.M. ET (check local listings).
washingtonpost.com: Watch Country Boys online here
Paducah, Ky.: So much is said about Appalachia. I was wondering what Chris/Cody think of their homeland, of the Nature that surrounds them... How does Cody respond to the environment of the city when he is in Lexington? What positive or negative changes do Chris/Cody foresee for their hometown?
David Sutherland: Both Chris and Cody love Eastern Kentucky, with all its problems and issues.
David Sutherland: Cody lived in Lexington with his grandparents for awhile after his father's death, so he is used to city life, to a degree. But he has bad memories there. Regarding Kentucky, Cody once said on the school bus that he wanted to settle in KY, and "get one of those portable toilets where I could just sit in my rocker and never have to move".
Chris has passed through some cities... when we end the film, he takes off and he went through some cities on his way to Florida. he wasn't crazy about it. He's told me many times that he doesn't want to leave KY.
They both have said that cities aren't bad, but given the choice they prefer Kentucky.
Silver Spring, Md.: Hi, how did y'all do it? How did you get in so close? I don't see that any of the film crew could have been in the room too often. This is important work. Thank you.
David Sutherland: Getting close has a lot to do with my personality, and there aren't any rules for that. Even though I'm in a different place from my subjects, I have a lot in common with them. I'm rebellious, and as they both have said publicly, I'm crazier than they are. Maybe I never grew up. But I always say no matter how different you are, you have to find commonality between you and your subjects and adapt your personality to the situation. I'm not reverent with them, I'm not formal with them. I deal with them as real people.
As far as the film crew goes, often the only person in a room they'd see would be the cameraman be cause of our wireless radio microphones, the rest of the crew would be outside where the scene took place. When there are tense situations going on, after awhile, everyone gets used to you being there, and you become invisible.
Centreville, Va.: I've only seen 3 of the 6 hours so far, but I'm riveted. Oh, man, Chris is breaking my heart. He's been dealt a terrible hand.
I have to say that while their intentions may be good, The David School doesn't seem to be very impressive. It's clear that Chris needs a lot of support, but they seem to keep setting him up to fail. He has ideas for the newspaper and choir, but then he's left to do it on his own. Where was the music teacher in starting the choir? Do they have any counseling services? It seems like it's the same old story: the kids who really need help get the worst teachers.
David Sutherland: The one thing that I want people to have watching this film is to have an open mind. And I say that to kids that have worked on my crew that are 25 years old as well as to people that are much much older. Nothing, for me, is black and white. everything is grey areas. So maybe one teacher may not be as supportive as another, but then there are some, like Mitzi, who might be legions above somebody else. Or you might get somebody in the film like Danny, who is looking for any resource to help the kids sometimes. But the teachers are willing to do home visits, personal counseling, and one teacher in part 3 even lets Chris live in her garage apartment for free. Nothing is ever going to be prefect.
Angola, Ind.: Hello. I will watch the remaining episode of Country Boys tonight. It is a very touching story indeed. Where are the boys today & what are they doing? Thanks.
David Sutherland: Cody is finishing up his degree in heating and cooling technology, living with Jessica, and working. He and Jessica were married in 2004 and live in a trailer near Liz. Chris returned from Florida and moved in with his friend Jay. He still lives there today, working odd jobs and wrestling. Although he still hopes to attend college, he is currently pursuing a career in the coal mines
David, Ky.: David, I was a student at the David School when you was filming all this. As a matter a fact you used one of my poems in the series of Country Boys. My name is Dustin Burchett if you remember me. I am doing great now--I am a PFC in the Army. What are your thoughts on how we run things in Floyd County compared to how things are run where you're from? I think that was Boston, Mass.
David Sutherland: Hi Dustin -
I think that because you lived in a smaller town the problems are more obviously on the surface. And where I live (Boston, you're right) because there are larger numbers of people and all of that, it's easier for the politicians to put smokescreens up and hide many of the problems that are there. One big difference, though, is that there are many more support services that we take for granted in Boston that are available to help kids that you don't have there. For example, YMCA... there are many colleges here that use their support services to help people and kids that are needy.
I hope you're well and I loved your poem. :)
Charlottesville, Va.: As a native of Southwest Virginia's coalfields, I have made a successful life for myself after graduating from college and moving out of the area. I am involved in public affairs for a large company. However, I miss my roots and have an inferiority complex because I grew up so poor and my family that remained in the area is still living in squalid conditions, many of them on disability and welfare. These are intelligent people, yet they do not seem to want to work (or at least to work in the jobs that are available). They give up easily, facing insurmountable odds and deciding to opt out of the rat race. I love my family, but dread going home to visit. Why is it that many of these intelligent people seem to want to live off government assistance instead of getting a job? Is it the lack of money for a vehicle to get to work, have insurance on the vehicle, affordable childcare, etc.? Is the lack of proper housing, a local infrastructure and opportunity too much to overcome for those who remain in the area?
David Sutherland: I don't think there's any choice sometimes except government assistance... there aren't a lot of opportunities there, no public transit, and there aren't a lot of support services. A lot of government programs that helped the area have been cut back and have disappeared over the years. However, people your age do have the resource of the computer. I found kids in WV who were as adept at using the computer as kids in the cities. So I see that as the great equalizer. I basically think that with all the outsourcing that's going on, where people from India are working for American companies, that I think somebody could really tap into that great resource of technically proficient youth in your area. And you should love West Virginia, I think it's the most beautiful state in the country and almost did this film there. Good luck, David
Gulfport, Miss.: I have also watched "The Farmer's Wife" and I thought like "Country Boys" it is a very moving story, and I was wondering what brings you to want to document the stories of people struggling in rural areas.
David Sutherland: I guess I just love those places. I've traveled all over the country and lived in a lot of places when I was younger. I did the Farmer's Wife because I sold agricultural tires over the phone in Great Falls Montana to farmers all through the Midwest. I love those people, and they thought I was different but funny and accepted me as one of them. that's how I got the money to buy my first house. That got me to do, years later, two films (Out of Sight and TFW) and people thinking that the Buschkoetters in TFW didn't look poor was what brought me to Appalachia. But I've lived in rural poverty now, for 12 straight years.
Morehead, Ky.: This film is a disgrace.
It it a film that just shows the stereotypical Eastern Ky. hick, that most of America thinks is the standard of this area.
My father grew up in this same area in the 40s and 50s, his father was a coal miner (with a 4th grade education) and his mother (with a 6th grade education) who raised the seven kids. They did not get SSI or any other government checks, and all but one child graduated from Collage, two with MA's.
If you want to show Eastern Ky. show all of it not just one side. You should be ashamed of yourself for helping to instill the stereotype.
David Sutherland: I'm sorry you think it's a disgrace, but I think you're too sensitive and can't look beyond your nose. I'm not saying that Cody and Chris "represent" every kid and everybody in Eastern KY. I'm not showing them as ignorant, I'm showing them as 2 kids that have a lot in common with teenagers everywhere. They're as hip as kids anywhere, they use the Internet, and kids all over the country are from broken homes or deal with alcoholism. But these kids have possibilities to amount to something great, and if you keep watching the film, open your mind and realize how intelligent they are. Cody's message is "don't judge a book by its cover", and if you can open your mind to him, he might be the most evolved person of any age you'll ever meet in your life.
As far as Chris goes, he's from a family living in deep "Appalachian Poverty", but he certainly speaks better than any teacher I ever had in Boston. When it comes down to it, he can do the work of 3 people, given the chance. By the end of the film, he does succeed, and you leave knowing that even though he could fall between the cracks, but he could also become governor. he's certainly smart enough too.
If I were you, I would try and look at both these kids for who they are, not by the trappings of their humble roots.
Virginia Beach, Va.: How much of the dialog is scripted and how much is spontaneous? To what degree is "Country Boys" a work of fact versus a work of fiction?
David Sutherland: none of the film is scripted, so to speak. The scenes you see are real as they happened. When Chris and Cody sometimes narrate their feelings after a scene happens, I might ask them a question like "what's going on with you" and in that situation they might stumble and I might have to ask the question a few more times. I promised them that all their narration pieces would be clear and understandable. Because for me, a "sync scene" motivates comment, when the boys are willing to do it. Obviously, to cut down the show, I have to take scenes out and shorten scenes, but I never change the gist of a scene as it gets cut down.
Shreveport, La.: Thanks so much for doing this -- you have done a beautiful, moving job and inspired me to get off my butt and start pursuing my own documentary career. About how many hours of footage did you have before you started editing? How difficult was that process?
David Sutherland: I edited while I was shooting, but the end total amounts to about 1000 hours of footage. Editing was like chasing two white whales, meaning, it took forever. We had so many audio tracks that to separate them so that they didn't echo or phase was really a chore. it's not a process that I would recommend to most young filmmakers. But remember, I'm a portraitist without an agenda. My goal is to make you feel like you're living in the skin of these boys, so that even somebody who might not like them will have to live with them, so to speak, and keep an open mind as they go through some of the emotionally grueling situations.
New York, N.Y.: Hi David - great episode last night, had us in tears at the end. I wish though the preview for the conclusion hadn't shown us their graduation!
I have to tell you how riveting the film is - gritty reality is very difficult to stomach, but this is beautifully done and you end up really caring about the people.
It's curious though - this is consistently called a film rather than a documentary - a conscious decision?
David Sutherland: as far as I'm concerned, I don't do the publicity, but if I had my druthers it could be called a portrait. I don't think it really is documentary in the traditional sense. Although I do document what's going on, I don't have an agenda and most documentaries do. You can call it what you want, for me, I'm just doing the portrait of these kids and I want it to be as accurate as it can be, like a painting.
Murray, Ky.: How is Jessica's father doing? I was wondering if he received any interest from music execs for his singing.
David Sutherland: Jessica's dad, Ray Riddle, is doing much better. there sure are a lot of email from a lot of people praising him. His Web site is http://www.rayriddle.com/, and we've gotten a lot of email from that site. If you know of any record execs, shoot him a line.
Bloomingdale, Mich.: To what extent do you believe poverty is a choice (beyond being born into it)?
David Sutherland: why don't I say this: no-one chooses to stay in poverty, it's just that some of us have more resources to get out of it than others. It takes mentors, role models, all of that. From what I've observed over the last 12 years, it's really difficult to pull yourself out of it, but many people perform that Herculean feat. These days there are less government services available to enable these people to pull themselves out. But don't misunderstand, everyone in poverty has dignity, and many people I've met living in rural poverty understand the human condition better than many intellectuals who study it in our universities.
Thank you for the great program. Question: Near the end of yesterday's program, Mitzi announced to the David School students that she resigned. Where is she now and what is she doing? Thank you.
David Sutherland: thanks, I'm glad you liked the show. You could get in touch with the David School and they could give you information as to how to reach Mitzi Crisp (now Crum - she's married.) They're listed off our Web site here
St. Paul, Minn.: If Chris is reading this, I hope he knows there are lots of people out there rooting for him. He's clearly a bright young man, one who had to be son and parent. Also found "The Farmer's Wife" very moving. Can you tell us how Juanita and Darrel have fared? They, too, were people who inspired viewers to care about them.
David Sutherland: Juanita and Darrel have divorced, but both have remarried and at happy in their lives. The girls see both parents often. Darrell is still farming.
David Sutherland: Juanita and Darrel have divorced, but both have remarried and at happy in their lives. The girls see both parents often, and the two oldest girls are in college. Juanita is managing crop insurance, and Darrell still has the farm going. Right now, they all seem much happier. Juanita called me the night before the film aired to wish me luck and make sure I'm as crazy as ever.
Evanston, Ill.: Your documentary certainly portrays these boys in a realistic, non-judgmental way. I am from the area, Logan County, W. Va., now in Chicago. I am always surprised by the lack of knowledge and understanding urbanites have about Appalachia, and by the often condescending attitudes.
David Sutherland: I think that your perception about the misunderstandings of Appalachia by the outside world is much more than it was when I was a kid. Because at least in those days the media used to cover Appalachia. in today's world I have found that many college kids don't even know about Appalachia. throughout Appalachia, because of the Internet, many kids are more aware of the outside world than the outside world is of them.
New York, N.Y.: Hi David. What has the reaction of Cody and Chris and their families been to the show? Obviously a lot of the people in their lives don't come out looking too good - what have they said?
David Sutherland: I could answer this later, because right now the screening of the film is a work in progress. You can write me via my Web site at http://www.davidsutherland.com/. If you email me in three weeks, I could answer better.
I'm enjoying the series very much. It reminds me a bit of "Stevie," directed by Steve James, and focusing on similar problems in a similar region (southern Illinois). In that film, the director becomes personally involved with his subject. Were you ever tempted to do that with Cody and Chris? What shape will your future relationship with them take, if any? Thanks.
David Sutherland: Actually, I know Steve James, and he's a terrific filmmaker. I do my best not to get too involved with my subjects when I'm filming. I'm not their friend, but they can trust me to show up, and I have to trust them to let me continue filming them until, in this case, they graduate high school. sometimes it's hard to do this, especially when kids are teenagers and living in tough situations. It's easier to do this as I get older because I get more cantankerous. But after the film's done, I usually can and do become friends with my subjects. I'm still in touch with everybody that I've ever done a film about.
Palos Verdes, Calif.: I caught the end last night, and was instantly absorbed in the present and future for each of them. Are you planning to film a follow up?
David Sutherland: I never do follow-ups. let somebody else do it. when I complete my film portrait, that's the painting so to speak.
Port St. Lucie, Fla.: Hi David,Thank you for another wonderful Indie Film. What's next for you?
David Sutherland: What's next for me? I don't know if I'll do another film, I haven't decided. But I am looking for a younger woman to support me.
Lexington, Ky.: I have really enjoyed watching the first two series so far. As a filmmaker, what are your personal goals for filming. Do you plan to continue to shoot films such as "Country Boys"? Do you have any expectations about what may occur after the airing of "Country Boys"?
David Sutherland: if I do another film, which I might have to do because at this point in my life I have much less money than I've ever had in years, so I'm gonna have to do something... and I don't teach because I don't have a teaching degree. Getting funding for long-form films like this can be very difficult. as far as post broadcast, I never know what's going to appear for the kids. I hope some opportunities might come their way. I am sure about one thing - whatever effect this film has on both these kids, they both have more self-esteem, and the fact is that they deserve it, because they are special people and have the possibility to do amazing things.
San Francisco, Calif.: Were the number of shots of religious references on local signage (stores, etc) to reflect the influence of local religion on Cody, or to make a broader point about the importance of religion in local life?
David Sutherland: The purpose of the signs had more to do with cody, but they also do represent what I saw throughout the area. I also use the signs for another purpose - they usually have moving vehicles in the frame. the purpose of that is to take you to the next scene. It's a subconscious element that I use.
Washington, D.C.: Regarding the "yellowjacket" incident -- if the young man had apparently been falsely accused of given the drugs to the female student who was subsequently hospitalized, why did he (to appease his mother?) accept responsibility if staying in school was a requirement for receiving the SSI check? In other words, if he was innocent, would that not have kept him in school and not jeopardized his SSI privileges?
David Sutherland: As far as I understand it, it appears that Chris' mother might have thought that if he admits to anything (because he had already admitted to something) that the school might be more likely to let him stay in school and the SSI check could continue until graduation. If he cops to something, I guess I mean. If he had continued to profess his innocence, they might just think "ok, I can't work with this kid"
Currituck, N.C.: How do you find individuals willing to be so public with their private lives? You have done an amazing job showing the life of Chris and Cody.
David Sutherland: in dealing with my subjects, I show them all of me. For example, I'll let you know something about me. I'm dyslexic, I type 8 words a minute, I can't cook and I can't dance (I would tango if I could). I'm a lot of work for anyone but I think I'm worth it.
Pittsburgh, Pa.: I was wondering if Cody and Chris have been paid any money for the film or any other type of payment.....
David Sutherland: I never pay my subjects, although I hope that the film will bring them notoriety, good fortune, etc. After "The Farmer's Wife", a viewed bought Juanita braces, so anything can happen
David Sutherland: I never pay my subjects, although I hope that the film will bring them notoriety, good fortune, etc. After "The Farmer's Wife", a viewer bought Juanita braces, so anything can happen.
Munich, Germany: During the 2004 election, I became aware for the first time that there was a thing in the U.S. called the Blue-Red divide. In the meantime, the more I read, the more it seems that the American heartland is headed in a divergent direction from Europe.
What places, events and experiences would you recommend to a person who has lived in Europe for a while, who wants to understand the people in Kentucky a little better?
David Sutherland: My answer would be just to go there. follow the Appalachian mountains from New York state to the deep south. It would be an interesting trip for you, and quite beautiful to boot.
Gaithersburg, Md.: This is an excellent show, and has given me a lot to think about.
One question that does not seem to have been answered on the Web site or in parts one and two--did Cody ever get an accounting of the money? Was his unofficial guardian getting any support for him?
David Sutherland: Cody did get an accounting for the money. You'll see in part 3 what he does with that money. Liz got no compensation from the government or otherwise. She covered his living expenses, and as he says in part three, she is a great lady.
New Orleans, La.: I would love it if your next project would be to get down here to the Gulf Coast and do your next film about the victims of Katrina & tell the real story about the poverty & people trying to recover. You could do a great job.
David Sutherland: my 10 closest friends actually live in NO, and I have donated money to victims of Katrina. I lived in Abita Springs, LA right after I got kicked out of film school. I wrote screenplays there. We'll see... maybe I'm too close to the situation there, I don't know. But I do love it down there, and I love the food too.
Cincinnati, Ohio: Mr. Sutherland, your film touched me in a way that no other documentary ever has. I left Floyd Co. 50 years ago because of the lack of opportunity for young people. I went to Berea College and graduated from Eastern Ky. University because of my father's mentoring. My question is how did you come to hear about the David School and the two young men in your film?
Here is some of your answer, and if you check back on my Web site (http://www.davidsutherland.com/), I will post more. It's too long a story to tell in this venue!
Shasta Lake, Calif.: Does Cody have a relationship with his grandmother, aunt and other family members?
David Sutherland: we'll see what happens after the airing of the show... I assume you're talking about his paternal grandparents. As far as his maternal grandparents, who we meet in part 3, he definitely has a relationship with them.
Nashville, Tenn.: Such an inspiring story. How is Chris' father, or does that get answered in part three? Will there be a soundtrack to the film? The music is great!
David Sutherland: that does get answered in part three...
as of now there are no plans and no money to make a soundtrack for the film. But you can to to Ray Riddle's Web page (http://www.rayriddle.com/) to listen to some of his music.
Fayetteville, Ark.: First of all, I have been riveted by your documentary, and I think it is tremendous that focus is being placed on rural poverty. I grew up in a trailer that looks remarkably like Chris's in a family nearly as poor. Though I did manage to attend college, the struggle to stay in due to financial restrictions was overwhelming. It is one thing to say that Chris should go to college, but would a kid from his circumstances even consider something like a university remotely available to him?
David Sutherland: Alice Lloyd and Berea colleges offer great opportunities to help kids like Chris, or any kid living there.
Hoboken, N.J.: Hello, Mr. Sutherland. I have watched both nights of Country Boys and plan to watch the last part tonight. Thank you for your examination of rural poverty. I wanted to know if The David School is a public school. The school's science teacher's personal endorsement of creationism really bothered me last night. She seemed to counter every point about evolution with her own personal religious beliefs. If it is a public school, she should not be teaching creationism. For obvious reasons, the vast majority of young people in that community have turned to religion. However, it is unconstitutional for the science teacher to teach anything but the theory of evolution in her science class (that is, if the school receives public funding). Thanks for your time and for your wonderful program.
David Sutherland: As far as I'm concerned, I don't have an agenda in terms of what is right or wrong, and I'm only documenting what's happening in the class. it's a tricky situation for me. Many times I film scenes where my politics might be different, but I have an open mind, even if I radically disagree with someone's point of view, as long as they really believe what they're saying and they're not using it to make political stock. But I also think you should take that Cody says to the kids in part three: "don't adopt your parents' point of view - you should make up your own mind about things"
Were there any times when either Chris or Cody asked you to stop filming?
David Sutherland: There were a few times when they or their parents didn't want me there filming.
Boston, Mass.: How did you come to film this particular community? What process did you go through to decide to focus on Chris and Cody? I love the series -- I have an 18 year old son getting ready to leave home and it's quite an emotional thing for me to watch your show.
David Sutherland: I have two kids that are much older than Chris and Cody, and there were many crises in my house, but that's part of being a parent. As long as you're supportive of these kids at that age and have an open mind to listen to them, then they'll get through it and you'll get through it, knowing you did the best you did to help them.
Washington, D.C.: My roommates and I have been riveted the past two nights. Thank you for documenting this.
Is the David school private or an alternative extension of public school? I was surprised by the science class discussions, particularly the evolution lesson.
David Sutherland: you can to to the Web site of the David school
Aylmer, Ontario: Did you shoot on film or video? How much time did you spend in the community before you started recording? There is such an ease about your presence, it's as if you aren't even noticed. Some remarkable access to their lives.
David Sutherland: I shot on video (DV and Beta SP). I was there three times for about 10 days each time before I started filming.
Gallatin, Tenn.: What happened to Chris' father and mother?
David Sutherland: You'll see that at the end of part 3
Syracuse, N.Y.: Is Cody still active in the church?
David Sutherland: Cody, at the present time, isn't affiliated with a particular church. His church closed and his pastor moved back to Wisconsin. However, he is still a deep believer and has a strong message that he communicates through his music and the way he lives. He is still committed to performing some special service for God.
Aylmer, Ontario: In episode two, Cody and another student are on the bus and there is a brief discussion about homosexuality and their attitudes, including the view that a lot of people are "going gay". Later, Cody talks about a friend who is now gay, as if he has made a choice. Did you encounter any more progressive attitudes regarding sexual orientation or is this typical?
David Sutherland: Cody is an extraordinary person. His views on sexuality aren't really typical of the area, but he has an enormous amount of compassion and the ability to see past things like sexuality or skin
David Sutherland: Cody is an extraordinary person. His views on sexuality aren't really typical of the area, but he has an enormous amount of compassion and the ability to see past things like sexuality. Cody is still close friends with that kid Ricky and his boyfriend.
Los Angeles, Calif.: A style question -- Were the boy's narrations just from interviews? They almost sound like they're reading from a diary or letters at times.
David Sutherland: yes - only from interviews. One of my criteria for selecting these subjects was that they needed to be able to speak deeply about their feelings. I think that both boys did a great job of that
David Sutherland: Yes - narration was only from interviews. One of my criteria for selecting these subjects was that they needed to be able to speak deeply about their feelings about some of the scenes that we witnessed so that the viewer can understand what is going on in their heads. This is an ongoing process throughout the filming process. But usually a sync scene motivates comment from them.
Blue Mountain, Miss.: How, if it all, did the filming of "Country Boys" impact you emotionally? Did you find yourself being empathetic towards the two young boys?
David Sutherland: The fact is that while I'm making the film, I appear to my crew to be cool and fairly clinical. then when I'm back in the editing room, I sometimes let my opinions out. However, over the course of time, and in this case it was seven years, as much physical wear and damage that my body took, I find that the process of witnessing some of the heartwrenching scenes while filming deeply affects me. It sometimes is hard to recover from, which is why I don't know if I'll do another film of this type. (long form, third person extremely close up documentary)
Ramsey, N.J.: David, what an achievement! I am looking forward to tonight's closing segment. My question is: what was the rhythm/process for incorporating the characters' life events into the production? i.e. was Chris' mom's leaving re-enacted or did you film it in real time? If it was re-enacted, how did you ensure the authenticity and if it was real time, how did you ensure/respect their privacy?
David Sutherland: I filmed everything in real time. The fact is that when Chris' mom left, I had damaged footage in part of that scene. But nothing is re-enacted.
Greensboro, N.C.: Do you think the fact that the boys knew you were making a film about them affected the decisions they made about their lives? Did it make Chris more driven to get his diploma?
David Sutherland: Getting that much attention has to have an effect on your subjects. Perhaps sometimes they see themselves as having more responsibility to rise up. But in many of the emotional scenes, like when Chris is fighting with his mother about not getting up in the morning (in part 2), they're all so mad at each other that we have no effect on them whatsoever. That's what always happens in most of the scenes. In large decisions about their lives, our filming had now effect. When Chris gets his diploma, it's not because he's rising up for a film audience. We weren't even there when he made that decision. He had run out of options.
washingtonpost.com: Thank you all for joining us today.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Filmmaker David Sutherland discusses the PBS film "Country Boys," about two boys coming of age in Eastern Kentucky's Appalachian hills and the challenges they face.
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Career Advice
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2006011119
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Everyone can use a little expert career advice. To learn more about topics including interviewing to continuing education to becoming a manager, tune in this week to Mega Jobs for a variety of discussions led by experts in the field of work.
Deborah R. Russell is the director for economic security at AARP, an advocacy group for individuals over 50. Among its initiatives are programs that work to help older workers find suitable opportunities in today's workplace, as well as other consumer-related and financial matters.
Deborah developed Best Employers for Workers Over 50 , an annual awards program that identifies employers that offer the best opportunities to aging workers.
Deborah was online to take questions about workplace issues facing older Americans.
Deborah R. Russell: Hi I'm Deborah Russell, AARP's Director of workforce issues. I'm happy to be here this morning to discuss career options for 50+ job seekers.
AARP has found a major shift is taking place in the U.S. workforce. It is aging rapidly...Our goal is to expand employment opportunities for older workers, helping both workers and employers in the process.
Jamaica, N.Y.: I am over 50 years of age, and have been out of work for almost three years. I have 25 years of banking experience, which includes 11 years as a supervisor. I have been unable to get a job interview. I have taken computer classes to update my skills, but nothing has been working. The only response I am able to get is you do not have the right kind of work experience. What can I do to get past this roadblock?
Deborah R. Russell: The most important tactic when searching for a job is doing your homework about the company your are interested in. Employers are interested in knowing what value you can bring to their workplace and how your skills match the job. It's not enough to just list the jobs you've had and the titles you've held. They want to know about innovation, creativity, enthusiasm and how you can contribute to their "bottom line." The Careers section of the AARP website has information to help you address this issue and plan for a successful interview.
Harrisburg, Pa.: Are companies becoming increasingly more flexible with older workers who are dealing with caregiving issues?
Deborah R. Russell: Companies that are smart are realizing that employees who are in caregiving roles affect their bottom line. Billions of dollars are lost each year as a result of lost productivity of staff who are dealing with eldercare issues. When businesses recognize this and provide needed support to their employees, they reap benefits in employee morale and employee retention and most of all increased productivity. Some workplace policies to be considered: flexible work hours, telecommuting, job sharing, flexible leave, enhanced benefit packages to include eldercare services through flexible spending accounts, even on-site eldercare assistance.
Philadelphia, Pa.: I am a 58 year old case manager for a small non-profit social service agency. I have 23 years experience in this field. I have a degree but no Master's. I am afraid that if funding dries up for my program I'll lose my job. Is it worthwhile, at my age, to go back to school to get my Master's in Social Work? I foresee working until I'm at least 67 years old. Thank you for your insights.
Deborah R. Russell: It's never too late to go back to school. If you feel going back and getting a Master's will give you a competitive edge in your field, by all means, go back to school.
Cincinnati, Ohio: Since June of 2005, I have been out of work. The company I was with was bought by another company and no longer needed me. I am 54 years old and have been in sales 20 years. I have a college education and years of experience, but I am finding it extremely difficult finding a job. After these months out of work, I have become depressed and feel inadequate in jobs I've tried. Any suggestions?
Deborah R. Russell: AARP has a program that matches individual jobseekers with jobs. The "Featured Employers" program currently matches 23 national employers. You can access this information by going to: www.aarp.org.
Washington, D.C.: Can you talk about good places in the D.C. area for over 50s to work?
Deborah R. Russell: AARP has a program that recognizes employers for their exemplary policies and practices for 50+ workers. In 2005, we had several winners from the DC area including:
In addition, AARP has a program that matches individual jobseekers with jobs. Our "Featured Employers" program currently has 23 national employers represented. You can access this information by going to: www.aarp.org.
Boston, Mass.: How common is phased retirement? Do you think it will be routinely offered in the future as a benefit?
Deborah R. Russell: This phenomenon has not yet been extensively studied, but AARP's research shows that phased retirement may become increasingly common and important as the workforce continues to age. Some employees are able to adjust their full-time work schedules in some way in order to "phase down" as they approach retirement, but the number is relatively small. In addition, there are regulatory restrictions that make it difficult for employers to hire back retired workers into a phased retirement arrangement. As a result, these regulations are being reviewed by the federal government and we hope to see some changes this year that will alleviate this challenge.
Takoma Park, Md.: I am almost 57 years old, single and have worked for the same company for eleven years. I would love to retire before I turn 65. I have a 401(k), IRA and enough money for living expenses if I retire early. However, the barrier is health insurance. My employer does not provide any kind of health insurance for retirees, so I'd be on my own until Medicare kicks in at 65. I also have a chronic medical condition. My medical problems are under control, so I am healthy, but my medical expenses are very high. Any advice?
Deborah R. Russell: With the high cost of health care today, it could very well drain your savings. Since your employer does not offer retiree medical and you can't collect Medicare until the age of 65, you might want to consider delaying your retirement until 65. Maybe going work part-time is an option. Make sure you can still retain your healthcare benefits.
Denver, Colo.: How to answer the question: "How long do you plan to work?" I never had this question until I passed the age of 60. Some replies have been "I will never retire," "I will always work" and proposed answer for the next joker who asks is: "Until I get those magic six numbers in the lottery."
Deborah R. Russell: How long you plan on working is a personal choice however, if you've had a history of this question being asked, you might want to consider the following answer:
"I plan on working as long as I feel I can make a contribution in the workplace."
Chicago, Ill.: Boomers are individualistic and entrepreneurial. Are there realistic opportunities for those who want to be self-employed in their retirement years?
Deborah R. Russell: AARP's research shows that while self-employment is generally on the wane, the rate of self-employment is consistently higher among older adults. In 2002, 5.6 million workers over the age of 50 were self-employed, making up 40 percent of the self-employed population. The boomer generation is used to tackling new challenges and succeeding. We can expect that number to spike in the future, especially as the boomers reach retirement age.
Long Beach, Calif.: I will have to work into my 60s. Is there a way I can ease into retirement?
Deborah R. Russell: There are no guarantees, but a Cornell University study showed that nearly three quarters of employers would consider allowing workers to scale back their hours en route to retirement. Workers should discuss the possibilities for phased retirement with their supervisors or human resources department. However, it is important for employees to keep in mind any consequences for their pension benefits or health care coverage.
Vienna, Va.: Which work fields will offer the best opportunities? Is it realistic for baby boomers to look for physically demanding work?
Deborah R. Russell: Health care, education, energy are among the fields already in need. Given the pending retirements among federal employees, the federal government also offers opportunities If individual workers are fit and capable, they should be able to handle demanding jobs. But the fact is that the percentage of physically-demanding jobs has declined dramatically, and we are well into the knowledge economy.
Austin, Texas: Are older workers at a disadvantage compared to other workers who have grown up in the age of technology and computers?
Deborah R. Russell: Employers sometimes have real concerns about the technological competence of older workers and their ability to learn new skills. Older workers often are not given access to training, even though they want that training. And the evidence strongly indicates that older workers do have the ability to learn new technology well into their retirement years. Research also shows that older workers are increasingly technologically savvy.
Pasco, Ill.: Boomers are just reaching 60 now, providing a potentially huge pool of older workers. Do many of these workers expect to work beyond retirement?
Deborah R. Russell: AARP surveys show that 80 percent of boomers do plan to work into retirement, and many say that they do not want to stop working at all. Boomers are expecting to remain productive and engaged later in life. They say that they plan to continue to work in part for interest and enjoyment sake, but also for the needed income that employment provides.
Falls Church, Va.: I consider myself to be very fortunate. I am 57 and seem to be outpacing those much younger than I in the IT field. I hold security clearances that are extraordinarily difficult to come by and I suppose that has a lot to do with it. It's difficult to replace cleared, skilled workers. I have heard horror stories of over 50 crowd being replaced by younger, less expensive people. Is the cleared IT field immune to this? I see people in my workplace who are working into their early 70s with no one batting an eyelash. As long as you are productive and able to meet the job requirements you are encouraged to remain on the job and in fact can quite easily still change companies.
Deborah R. Russell: Security clearances are a valuable asset, and some employers value the ability and experience of older workers. You are fortunate to work for an employer who recognizes the value of older workers.
Vista, Calif.: What are some of the main reasons employers' representatives discriminate against older Americans?
Deborah R. Russell: Prejudices based on unfounded, sometime entrenched stereotypes about older workers.
Everett, Wash. : I have just been released from a job and feel age had something to do with it. Who can I contact concerning this. I am 57 years old.
Deborah R. Russell: You can contact the federal Equal Employment Opportunity Commission or your state fair employment practices agency. Such an agency is often called the Human Rights Commission. When you do contact them, please be prepared to provide all the reasons why you believe you have been discriminated against.
Washington, D.C. : How does one know when they have been victimized by age discrimination when you do on-line applications? I believe your credentials are all well and good, but the fact of the matter is I am 54 with a master's degree and considerable work experience. None of the online companies, like Monster etc don't call me. My daughter who is 37 on the other hand is getting calls for interviews left and right. I feel very victimized right now.
Deborah R. Russell: While age discrimination is a possible explanation for your experience, the reasons for your getting no response are unfortunately almost impossible to determine without knowing many more facts. Review your resume to ensure it reflect the skills that you bring to a potential employer. Practice interviewing with someone, have them pose difficult questions to prepare you for the actual interview. For more assistance, go to the AARP website at: www.aarp.org/careers.
Northport, Ala. : Is the comments, made during a job interview, that the candidate is "showing his/her age" and "When someone is showing his/her age, one can't help but wonder just how productive he/she can be" legitimate, and legal, concern for an employer, or is it simply age discrimination?
Deborah R. Russell: While attributes such as ability, education and experience are always legitimate considerations, age never is. The comments you mention may indicate entrenched age bias on the part of employer or simply an insensitive interviewer.
Hollywood, Fla.: I am trying to return to the world of employment after a five+ year hiatus due to health problems and taking are of my now deceased parents. I have a professional degree and 20 years experience but my resume does not reflect the years of absence. Since I have had no luck in finding employment in my field, I am trying other avenues. I was considering taking a very low-paying job for which I was overqualified. Although they seemed very interested in hiring me, they did not even have the courtesy of a return phone call or letter informing me of their decision. I am looking for some advice about how to handle my situation. I am losing self-confidence and wondering if I am doing something wrong.
Deborah R. Russell: Gone are the days where an employee is willing to dedicate their career to one employer. Therefore, your gap in employment should not pose a problem. As you have indicated, the last job you considered, you felt you were overqualified for the job. Perhaps that was the concern on the part of the hiring manager. With your qualifications, perhaps they were concerned that you would leave the first chance a better opportunity presented itself. If this scenario is happening on a frequent basis, you might want to consider addressing the issue during the interview. Let them know that you are aware of what the job pays but that you're committed to the goals of the company/organization and describe what you can offer by way of your skills and experience.
Anonymous: I have a comment: I'm 50 years of age and have had a difficult time getting employment. I'm an AARP member. If possible could someone please assist me and let me know what I may be doing wrong? I have some computer and retail skills but prefer a management position. I have skills as a receptionist and a clerk, but have limited funds to look for work.
Deborah R. Russell: Moving into a management position requires experience. It appears that your experience has been limited to administrative and clerical types of jobs. I would review the kinds of management positions you're looking for. Do you have the skills to match what they're looking for? If not, you may consider enrolling in courses to gain that experience. For immediate job search assistance AARP established the Featured Employers program. This program matches jobseekers with available jobs through an arrangement we have with national employers. We currently have 23 employers listed as a Featured Employer. For more information, please go to: http://www.aarp.org/money/careers/findingajob/featuredemployers/info.html.
Fredericksburg, Va. : I'm 55 year old nurse who wants to retire, but still work part-time. What do you recommend as a new career change, utilizing the nursing experience I now have? Thank you.
Deborah R. Russell: The health care industry is in dire need of experienced nurses. AARP hosts an annual awards program that honors companies with exemplary policies and practices for the 50+ workforce. Over the past five years, the healthcare industry has dominated the list. What we have found is that innovation in flexible work opportunities are being led by healthcare. It's worth having a conversation with your employer to see what flexible work arrangements they're willing to make for you. In addition, ask them about phased retirement. This allows you to gradually retire, working in a part-time environment. Assuming they offer such a program, make sure you know the conditions of the program. If you're thinking longer term employment, phased retirement might not work for you.
Hyattsville, Md.: Hi Deborah, Yikes! At 54, female and divorced, I have just finished a Master's in Business Communication/Leadership and Influence and have no clue about anything other than the fact that my student loan repayments start in six months -- yikes again! I have a small pension, but not nearly enough to keep me in the black for very much longer. I would love to have a job making at least $30-$40,000 annually but I'm lost without experience. Every job I've applied for requires it and I am becoming negatively pessimistic about my future and wondering if my education was a waste of time, effort and money. I deeply desire doing something beneficial to help underprivileged children. My dream is starting a nonprofit to house, nurture and strengthen poor children who've been discarded by society.
Deborah R. Russell: Pursuing an education is never a waste of time. Clearly you have goals regarding the kind of employment you desire and how much you want to make doing it. There are many nonprofit organizations focused on disadvantaged youths, that's one place to start. Perhaps there's an opportunity to volunteer with one of the organizations so you can get to know how it works, the kinds of positions that are available, what skills are required, etc. Clearly, this isn't going to pay the bills which means you may have to take another kind of job to help pay the bills that is within your current skill-set. Don't lose focus on your ultimate goal however, it's just going to take a bit of time for you to gain that experience. Another route would be to set up an informational interview with key influencers within the organization. They can give you guidance both in terms of the skills you need as well as how to start your own nonprofit.
Auburn, Va.: What suggestions would you offer a female wishing to obtain a college/university professorship? Approaching age 60, with limited teaching experience but a recently conferred a doctorate, how may I best package and market myself?
Deborah R. Russell: What skills and experience are needed to obtain a college/university professorship? Do you currently possess those skills? If not, what kind of training is needed to gain those skills? Regardless of the type of employment you seek, having the needed skills and experience is what employers are looking for. Perhaps the first step is to look at community colleges which may be more open to hiring a less experienced teacher. Another route is to conduct an informational interview with a professor currently on staff at a college or university that might give you some guidance around meeting your goals.
Falls Church, Va. : I had run my own business from 1993 to 2003 when I had to liquidate it due to overwhelming competition. Since then I have had four jobs that were not a good fit for me and I am presently unemployed. How do I make sure the next one will be a good fit? I do not have the resources to open a business at the moment.
Deborah R. Russell: Assessing your personal values and skills in advance is key to identifying employment that fits you and who you are. There are many good online tools, please visit Monster.com to begin your assessment. Once you've identified what you value in a job, identifying the right fit will be easier.
Gaithersburg, Md. : Please discuss the whole issue of part-time work for older employees. My co-workers and I -- and we are AARP-eligible -- prefer to work part-time. (We need time to go to doctors and dentists, do errands and perhaps take care of a spouse, who may need some help.)
Deborah R. Russell: AARP research shows that many 50+ workers are seeking part-time employment opportunities. However, they seek these opportunities with benefits which many part-time jobs do not offer. As part of AARP's education strategy to inform employers about the needs of 50+ workers, we discuss the need to provide good benefits even to part-time workers. Home Depot for example, recently added benefits for their part-time employees.
Washington, D.C. : What policy changes at the federal level would encourage older adults to work longer?
Deborah R. Russell: AARP research has found that many boomers intend to work past traditional retirement age. However, they are seeking more flexibility in how they do their work. Phased retirement is one area of interest. This allows a pre-retiree to gradually exit the workplace in a part-time arrangement. Employers face challenges, particularly with retired workers seeking to re-enter the workplace in accommodating their ability to draw a pension as well as a paycheck. The IRS issued proposed regulations that would alleviate this issue for employers.
Laurel, Md. : I am 55 and looking to change careers to something with less stress. What is the best resource to determine what I am qualified for?
Deborah R. Russell: There are many good assessment tools available for you to determine what skills you currently possess that might translate into new career opportunities. More importantly, what kind of job are you looking for? What do you like to do? These are important questions to consider when identifying new career options. AARP has partnered with Monster.com who has an assessment tool that that should be useful in meeting your needs.
Arlington, Va.: AARP is always beating the drums for older workers because they are your members, but why would employers want to hire them?
Deborah R. Russell: Older workers are a solid investment for employers. Studies -- including AARP's new "Business Case for Workers Age 50+" report -- show that older workers are productive and in many instances, more engaged in their work and the success of the company than their younger counterparts. Our research with the global professional service firm Towers Perrin shows that it is a myth that older workers just "check out" as they get older and near retirement.
Washington, D.C.: How can a 50+ worker compete for a new job? How do they go back to selling themselves?
Deborah R. Russell: The most important tactic when searching for a job is doing your homework about the company you are interested in. Employers are interested in knowing what value you can bring to their workplace and how your skills match the job. It's not enough to just list the jobs you've had and the titles you've held. They want to know about innovation, creativity, enthusiasm and how you can contribute to their "bottom line." The Careers section of the AARP website has information to help you address this issue and plan for a successful interview.
Rockville, Md.: Where does a 50+ worker who wants to change careers, is displaced or wants to reduce their work hours, start the search for a new job? Can AARP help?
Deborah R. Russell: Searching for jobs using the internet is becoming more commonplace. Get comfortable with searching for jobs using this method. AARP has online resources for the 50+ jobseeker that includes job search, resume writing and interviewing techniques and practices. You can access this information by going to: http://www.aarp.org/careers In addition, AARP has partnered with Monster.com, so job seekers can get direct access to Monster job search tools through AARP's job site, plus Monster's site has additional information on interviewing and resume writing.
New York, N.Y.: I just turned 65, and have not yet elected to receive Social Security (OASDI), since, to receive the highest amount, I would have to be 65 and seven months. I am about to take on a full-time job (for which I will get a W-2, instead of 1099s, which I have been receiving for consulting work). I have heard that I may hold down a full-time job and receive OASDI checks, with no money withheld from my OASDI checks (I understand that working people under 65 receiving Social Security checks may earn $12K, but after that, one of every two dollars earned is deducted).
The reason I have elected not to receive OASDI yet, is that I wish to contribute to it, so that the monthly payout -- when I do get it -- will be higher. My question is this: Now that I am returning to work, and am 65, may I receive my OASDI check and contribute 7.65% of my salary to Social Security? Will my employer also contribute its 7.65% on my behalf?
Thank you for answering this.
Deborah R. Russell: Thank you for asking. Yes, you can receive Social Security benefits while you are working. Both you and your employer will be required to pay the payroll tax that supports both Social Security and Medicare (of the 7.65% payroll tax that each pays, 6.2% is for Social Security and 1.45% is for Medicare). There is a higher limit on earnings before your benefits will be reduced during the year that you reach normal retirement age (in your case, 65 years and eight months if you were born in 1941). This year that limit is $33,240, or $2,770 per month.
Sarasota, Fla.: With more Baby Boomers wanting to retire early, what do you think that will do to the prospects of new job possibilities that allow for more work and life balance for these folks still wanting to stay involved on a less than full time work schedule?
Deborah R. Russell: AARP studies of the boomer population has found quite the opposite. In a recent study 69% of boomers indicated they plan to work past traditional retirement age. In addition, we've learned from our Best Employers for Workers Over 50 program that more employers are offering programs that meet the needs of this demographic such as caregiving, flexible work opportunities and phased retirement.
Sarasota, Fla.: which industries are the best right now for older workers?
Deborah R. Russell: There are many industries that are good for older workers. AARP's Best Employers program recognizes companies for their good policies and practices for 50+ workers. Healthcare and Retail are two areas worth exploring.
Landover, Md.: As a general rule, do older workers cost firms more in health care and other benefits than younger workers?
Deborah R. Russell: The new AARP/Towers Perrin report, "The Business Case for Workers Age 50+", showed that the extra per-employee cost of retention and attraction of 50+ workers ranges from negligible to three percent or less in key industries. In addition, the human resources community is beginning to examine other mitigating circumstances that have an impact on the rising cost of health care including, obesity, smoking, high blood pressure and cholesterol. Many of these symptoms are not associated with age but behavior and lifestyle. Employers are beginning to adopt programs that encourage healthy behaviors to address these concerns. Research also shows that worker motivation is highly correlated with engagement, and that both engagement and motivation increase with age. And there is a strong relationship between employee engagement and financial performance, showing that companies with higher levels of employee engagement tend to outperform those with lower levels of engagement. Also on a dollar and cents basis, any extra per-employee cost for health care is offset by the turnover and training-related costs of replacing veteran employees.
Arlington, Va.: I had the opportunity to serve as a delegate to the White House Conference on Aging in December. For the first time, the Conference (held about every 10 years) paid serious attention to the aging workforce. One of the items to receive some attention was Senator Herb Kohl's Older Worker Opportunity Act that provides tax credits to business, extends COBRA coverage for older workers, provides a tax credit for eldercare and provides older workers greater access to employment and training services. Is AARP taking a strong position in support of this and other legislation to support business and older workers?
Deborah R. Russell: AARP agrees with the idea of a comprehensive approach to encouraging employers to hire older workers. There are many avenues for doing this and Senator Kohl has some good ideas.
His bill includes creating a Federal interagency task force on older workers which we think is a good idea.
Kittery, Maine: Older women seem to be more at risk for needing supplemental retirement income; however, they are often the ones that stayed home to raise children and such. How would you counsel this group to begin the job search?
Deborah R. Russell: AARP understands the difficulty older women face in retirement and their need for adequate income because they live longer.
AARP has a wealth of information regarding re-entering the job market. We have several programs that might be of assistance:
1) AARP's Featured Employers program that connects individual jobseekers with jobs. Go to: www.aarp.org/featuredemployers
2) AARP Senior Community Service Employment Program (SCSEP) however this is a program for low income individuals.
New York, N.Y.: I'm 65 and still working. I have an "S" corporation that grosses about $230,000.00 a year. My wife works and earns about $140,000.00 a year. Our gross income after my expenses will be around $300,000.00 for the year 2006. I'll be eligible for Social Security in July. Should I start drawing social security this year? If I do draw from social security, is there any sense to pay payroll taxes? (As an owner of an "S" corporation I can determine the level of my salary vs. my K1 profits)
Deborah R. Russell: As long as you continue in the workforce, you must pay payroll taxes.
If you collect Social Security benefits, they could be taxable because of your current income. However, it is possible for people over the age of 65 to continue to work and collect Social Security benefits. Rules may be different for the "S" corporation and you should contact the Social Security office because you may be considered self-employed.
Fairfax, Va.: I am so amazed these days how little the younger workforce knows in terms of problem solving or alternate solutions. I am a fifty-year-old who does not understand how people, when confronted with a problem or challenge, simply do not have the creativity or capacity to come up with an alternative solution. An example might be that a printer quits working and a woker cannot get a report done. He or she does not think about putting the document on the server and go to another computer and print it there or e-mail to a co-worker and have them print the document, then address the printer not working after the dead line. Yesterday I replaced all the seats and washers in my bath tub facet and my 20-year-old asked me how did I knew how to make the repair. I simply told him I took my time, evaluated how the parts were assembled then replaced the worn out parts. He was amazed and I saved $250. Moreover, I am always amazed when I talk to my teenage boy's friends, both boys and girls, how little they know in terms of checking their oil, other fluids, tire pressure or changing a flat tire, etc. My point, you will more than likely find more 50-plus-year-olds out there more skilled in providing solutions and alternatives to daily problems then their younger counterparts and yet they are looked at by personnel departments as having no value. I apologize for the lengthy response. Thank you.
Deborah R. Russell: AARP recently published a report that looked at the business case for 50+ workers. Some interesting findings include the fact that older workers are more engaged as they approach retirement. We encourage employers to examine age diversity in the workplace and seek ways to educate managers about balancing multiple generations in the workplace.
Sarasota, Fla: What can older workers themselves do to be sure they don't fall victim to ageism in the work place?
Deborah R. Russell: We encourage 50+ workers to keep their skills up to date and make sure they remain relevant in the workplace. You can accomplish this by taking advantage of any training opportunities your employer offers.
Windsor, Conn.: I work for a temporary agency. Twice, during interviews for temporary positions the agency has sent me to, I have been told to fill out a form so they can do a background check. The form includes my social security number and date of birth. After completing the form, I did not get the temporary position. Is this practice widespread? Is it a way to screen candidates' age? How should I respond?
Deborah R. Russell: While background checks are standard practice, you should be concerned about potential age discrimination and the frustration of not getting temporary positions.
Unfortunately there's no way of knowing if that information influenced their hiring decision.
Stevensville, Md.: In spite of a degree from a top five law school and stellar work experience, I found myself at 55 a general counsel of a corporation going out of business. I've done contract attorney work, making a decent living, but can't find work in the permanent job market. My friends are retiring, hence they are not good for job leads, and we seem not to need experienced workers -- even in law. What to do?
Deborah R. Russell: AARP continues to be committed to advocating for 50+ workers' ability to continue to work for as long as they wish. Many of our programs look for ways to connect employers with 50+ jobseekers. For information related to resumes, interviewing skills, please go to our Careers web site at: www.aarp.org/careers.
Foggy Bottom, D.C.: I'm interested in proposing to my employer that I remain as a part-timer after I retire. I need to know how much I can earn before losing Social Security benefits.
Deborah R. Russell: It depends on your age. If you are under 65 there is an annual limit of around $13,000 (check with SSA).
If you exceed that limit you would lose $1 in Social Security benefits for every $2 of extra earnings.
There's a different rule that applies when you turn 65 but have not reached the age for collecting unreduced benefits. This limit is much more generous and benefits are reduced $1 for every $3 of extra earnings.
AARP fought hard and Congress adopted a provision that allows you to earn as much as you want once you've reached the age for collecting unreduced Social Security benefits.
Somersworth, N.H.: Thanks for all the great information, Deborah! Is AARP partnering with the others, like the US Chamber of Commerce, to get the word out to businesses and employers about the aging of the workforce, and also what these "seasoned workers" can offer?
Deborah R. Russell: Yes! AARP has many partnerships with organizations to champion the contributions of 50+ workers in the workplace. AARP established the Best Employers for Workers Over 50 program that honors companies annually with exemplary policies and practices for 50+ workers. In addition, we have a program that connects individual jobseekers with jobs. Our Featured Employers program currently partners with 23 national employers. For more information regarding work AARP is doing related to the 50+ workforce, go to: www.aarp.org
We are also working to educate policymakers about the importance of adopting incentives that will make older workers even more attractive than they are today.
Washington, D.C.: I work in my company's human resources department; how can I get a copy of the AARP/Towers report you mentioned?
Deborah R. Russell: AARP recently released a study that looked at the business case for 50+ workers. You can access a copy of the study by going to www.aarp.org. Type "Towers Perrin" in the search engine.
Arlington, Va.: The Towers Perrin study on the Business Case for Workers Age 50+ was an excellent start to research on the true relative cost of older workers. Is AARP planning to sponsor more research to include the medium and small companies, which is where most jobs are and where the issues are going to be more complex?
Deborah R. Russell: Yes, AARP continues to conduct research that addresses the needs of all employers, including the medium and small ones.
Sarasota, Fla.: The question from Windsor, Conn. raises a question in my mind: what kind of legal protection do we as older workers have from discrimination based on age?
Deborah R. Russell: You can contact the federal Equal Employment Opportunity Commission or your state fair employment practices agency. Such an agency is often called the Human Rights Commission. When you do contact them, please be prepared to provide all the reasons why you believe you have been discriminated against.
New York, N.Y.: Hi Deborah, I am the 65-year-old who will be returning to full-time employment and had the question about receiving Social Security (OASDI) benefits while working. Thank you for answering my question (above).
I understand (from your response) that the first $33,240 I earn at my job would be exempt from any reduction of Social Security benefits. Is that correct? Since I will be earning more than that amount, I would like to find a table of limits on earnings, amount of reduction of benefits, etc., so that I can judge whether to apply for my OASDI benefits this year or wait till 2007? I have not seen such a table on the Social Security Website.
Deborah R. Russell: You will have to estimate what your earnings will be and how much they will exceed the limit. If they exceed the limit by substantial amounts, it could wipe out all of your Social Security. However, if you don't collect Social Security, your benefits are increased somewhat since you will have delayed receiving them.
Also, remember that if you collect Social Security benefits and you exceed certain thresholds, your benefits will be subject to Federal income tax.
There is no simple table that lays this out for you.
College Park, Md.: We all know that age discrimination is rampant in this country. It's difficult to accept and more difficult to change. What is AARP doing to change the attitude of the country toward aging and the obstacles that have brought many of us to the brink of financial collapse because of circumstances beyond our control? What about awareness campaigns? AARP tends to talk about us as a society apart from the mainstream.
Deborah R. Russell: AARP is aware of the impact of an aging society in all areas. We're working in a variety of ways, campaigns, educational efforts, coalitions, partnerships with employers to promote a positive image of aging and the benefits an aging society has for all of us.
Jamaica, N.Y.: What are the best companies to work for in the New York City area? How do I prepare for a job interview when an agency deals with the company?
Deborah R. Russell: AARP has two programs you might refer to. AARP Best Employers for Workers Over 50 honors companies with exemplary policies and practices for 50+ workers. In addition, we have a program that connects individual jobseekers with jobs. You can get additional information about both of these programs by going to: www.aarp.org/bestemployers and www.aarp.org/featuredemployers.
You can also go to our Careers web site to get information and guidance around interviewing skills by going to: www.aarp.org/careers
Sarasota, Fla.: Does AARP have a job posting site or message boards or some place for older workers to go when they are looking for a job?
Deborah R. Russell: Yes. You can find information about job search by going to: www.aarp.org/featuredemployers.
Potomac, Md.: AARP advocates for people who choose to work into their 80s, but what about those of us who must work into their 80s? What is AARP suggesting for us?
Deborah R. Russell: In recent studies, we have found that more and more older workers plan to work past traditional retirement age. The top two reasons included access to health insurance and the need for income. We recognize that many older Americans will have to work and that many have not adequately saved for retirement. A good retirement plan that includes saving and investing for the future is a good start (if you haven't already done so).
Alexandria, Va.: I retired from the Federal Government at 55, with 32 years of service, under the old Civil Service Retirement System, so I have a decent income. However, I'd like an interesting part-time job to bring in a little income and give my life some structure. I've figured out that if I'm paid $8/hour for an eight hour day, after taxes and social security (which as a retired federal worker I'll never see), I would clear maybe $50/day, which just isn't worth it. Do you have tips for finding higher-paying part-time jobs?
Deborah R. Russell: One avenue to explore is through AARP's Featured Employers program. This program was established to connect individual jobseekers with jobs. Many of the employers represented offer part-time job opportunities. For more information, go to: www.aarp.org/featuredemployers
Columbia, Md.: Recruiters say I am perfect for a job. Though, once my application is forwarded to a prospective employer, I do not get a return call. If this is age discrimination, can anything be done about it?
Deborah R. Russell: AARP has a wealth of information regarding successful resumes and interviewing techniques. Perhaps you should evaluate these two areas.
However, if you feel you've been discriminated based on age you can contact the Federal Equal Employment Opportunity Commission or your Human Rights Commission.
Deborah R. Russell: Thank you all for your great questions. I wish I could have gotten to all of them.
The workforce is aging and attitudes are changing. Today's workers reaching age 50 say they will likely work into their retirement years, and many employers are taking new approaches to recruiting and retaining these valued workers. AARP will continue to work to expand employment opportunities for older workers by honoring Best Employers for Workers Over 50 and collaborating with our Featured Employers, and advocating for the qualities and benefits that workers tell us they want in a job. I encourage you to take advantage of information on AARP's website about all these endeavors. Go to: www.aarp.org/research/work/employment/workers_fifty_plus.html as well as our Careers site at www.aarp.org/careers
Thanks again. Have a great day.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Deborah R. Russell with AARP will be online to discuss the workplace issues facing aging Americans.
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Rollins Live (Updated 1.12.06)
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Actor, musician and spoken word performer Henry Rollins was online Wednesday, Jan. 11, at 2 p.m. ET to discuss his career, pop culture, the news and anything that's on your mind.
Rollins has come a long way since growing up in D.C. He first made a name for himself as lead singer of '80s punk band Black Flag. Then, with his own Rollins Band and as an actor with appearances in movies ("Johnny Mnemonic", "Dogtown and Z-Boys") and TV. In the past decade, though, Rollins really hit his stride performing one-man spoken word shows -- addressing topics ranging from politics to the environment to sexuality to his own neuroses. He's also host of "Full Metal Challenge" on the Learning Channel and the upcoming (April 1) "Henry Rollins Show" on the Independent Film Channel. Since the beginning of the war in Iraq, Rollins has also toured with the USO to perform for troops in the Gulf.
Washington, D.C.: You clearly know the difference between supporting a war, and supporting the people who have no choice but to fight in that war. What's your take on why so many Americans don't understand that you can support the troops without supporting the actual war ?
Henry Rollins: I think the president has done a very good job. Fox News has done a very good job and a lot of conservatives have done a very good job in blurring those lines. I think there was a concerted effort to make people who ask questions about the war seem unpatriotic. Which is completely offensive to me. Because you can't rationally attack someone who has a conflicting point of view any other way on this topic.
Two things: First, I wanted to thank you for something not mentioned in your introductory write-up, the fantastic stuff you've done with 2.13.61 publishing -- not only bringing us your words, but important works from writers ranging from Nick Cave to Joe Cole, from Iggy Pop to Hubert Selby.
Secondly, to get a little more irreverent, how did you wind up recording with the almighty Shatner, and what are your thoughts on the results?
Henry Rollins: The Shatner project was a request from Ben Folds, who is a great musician. He was producing an album for Shatner and asked if I would take part and I said life is too short -- and said sure.
What was interesting is that we had no song. We just went into the studio and recorded what happened. The result was great and I've spent a few evenings at the Shatner home since and it's been great. He's a very nice man.
Washington, D.C.: Hi Henry,I'm curious about your thoughts on satellite radio and other avenues, such as blogging, that are now allowing us to exercise our right of free speech.
Henry Rollins: Satellite radio I think remains to be seen how well that's going to work. In theory I like it. I just don't know if people are going to dump traditional radio for it.
As far as blogging, I think it's great. Perhaps it'll teach Americans how to write, and form a sentence. And I think having an opinion is a very healthy thing and blogging gives people a chance to articulate without impacting much else on someone else's life.
Arlington, Va.: I really enjoy your spoken word shows. I enjoyed the story of your train trip across Russia. My favorite was your story of going to see Kiss live.
I would give you a hug for all of your USO work.
The Question:Were you a vegetarian at one point? Did you give it up ? If so why?
Henry Rollins: I am basically a vegetarian who will sometimes eat red meat when there's no other protein option. For example, in the middle of nowhere on a USO tour. Past that, I'm a vegetable and fish guy.
Potomac Falls, Va.: How do you stay so healthy and train when your schedule calls for so much travel -- is it just finding a way to pump some weight, do cardio, stretch and eat well?
Henry Rollins: Eating well is becoming easier on the road as more places are health conscious. Gyms are easy to find anywhere there's electricity and traffic. Time is the hard part, but I do my best and I learned a long time ago that without recuperative sleep, good nutrition and constant exercise, this high stress lifestyle of traveling, etc., quickly takes a toll.
And how do I do it? I just see it as a very important thing and make sure I get it done.
How has the experience of growing up in the DC area affected your music/acting (i.e. are you more politically aware than if you grown up in Kansas)?
Where in Arlington did you live?
Henry Rollins: Growing up in D.C. affected me musically by nature of being in the D.C. music scene and having people like Ian Mackeye be such a heavy influence on me. My mother spent her whole career working in the government, basically trying to help Johnny to learn to read, so politics was always around me.
As far as my acting, I'm just trying to get through that day, so where I came from will not help or hinder. Fear of failure gets me over that wall.
In Arlington, I lived right behind right behind the Marriott on Pierce Street. The apartment building has apparently been leveled.
We all left home and migrated across the Key Bridge. I became an Arlingtonian. It was finances. I worked for $3.50 an hour in 1979.
Arlington, Va.: Will a version of the Rollins Band tour again? When?
Henry Rollins: I hope so. And I am working towards that.
Anonymous: Can you lift more than Joe Piscapo?
Henry Rollins: I doubt it and who cares.
Sacramento, Calif.: How do you adapt your spoken word shows to international audiences? Do they get the stuff about Walmart or do you talk about the things that have more mass appeal (like your trip in Siberia)?
Henry Rollins: Good question. I do a lot of shows internationally. I am very aware of losing impact if I tell a story with too many "inside" references. So when in Germany, I leave out the Fox News names because I'm going to leave them behind if I talk about O'Reilly or Hannity. That is not to say that I dumb down the message, because the audience isn't stupid. But there's a way to have impact with an audience and concentrate on broader themes and that's where the travel stories come in marvelously.
Silver Spring, Md.: Can you share with us one of your fondest memories from your childhood/teenagerhood with Ian MacKaye?
Henry Rollins: I think my fondest memory would just be having Ian as my friend for over 30 years and there's been so many good times, it'd be hard to pick out one. It is one of the good fortunes of my life to have him as my friend. He's truly inspirational to me. I often ask 'What would Ian do?' and he's been a great help to me.
Washington, D.C.: Dear Henry,Why should we listen to you? What is your aim in adding your voice to the public discourse. Money, fame, responsibility or something else. I'm not saying that you're not intelligent and articulate but I'm thinking in more general terms. With the constant spin and occasional bald lying that are thrown around in today's public discourse why should we believe that you are not infected by the same insane bias and underlying agenda.
Henry Rollins: There's a great possibility I am somewhat infected. And I would never assume to be so important than anyone should stop what they're doing and listen to me. I do think I tell a pretty good story. Past that, your point is absolutely valid as far as could I be as corrupt as anyone I say I am against. Absolutely. But money or fame or an agenda are really not part of my agenda.
Freedom of speech and expression is what I'm after.
Silver Spring, Md.: I just started reading "Devil's Knot : The True Story of the West Memphis Three" by Mara Leveritt. Are you still involved with the defendants? Has any progress been made in freeing the boys or obtaining retrials?
Henry Rollins: Yes, I'm still involved. There was today an alarming news byte where state governor Huckabee (of Arkansas) says in his opinion there has been no new info brought to light that would make the case in any way compelling to be retried. In light of the fact that DNA evidence from the crime scene was processed and from what I know the results are waiting to be analyzed, I don't know how he can say that. Those who find themselves interested in this case can go to the WM3.org Web site. Or read Mara Leveritt's very fine book.
I have seen several of your spoken word shows and really enjoy hearing about your travel adventures (I cannot enter an airport without thinking of your "standing in line" rant). What are your top three favorite places to visit and why?
Henry Rollins: Afghanistan, because while dangerous it is unbelievably fascinating to me -- historically and geographically. I have been there twice with the military via a USO tour, but given the opportunity, would love to stay for an extended period to learn more.
Parts of Africa I have visited have made me very curious and inspired and made me want to explore more.
The other very interesting place: Russia, where I visited five times and find the people, culture and history fascinating.
Los Angeles, Calif.: While in Iraq did you perform classic Black Flag songs such as "Revenge," "No Values," and "Damaged"? And do you think you might become the next Bob Hope?
Henry Rollins: On USO tours I go on my own in what is called a handshake tour. Much like what Brad Pitt and George Clooney do -- you hang out, tell stories, crack them up, etc. No music has been performed as of yet.
As far as being the next Hope, we'll leave that to Wayne Newton's very capable dyed black coif.
Silver Spring, Md.: Because you have been doing your spoken word tours for so long,you've covered numerous topics. Is there anything you regret saying or any major ideas or beliefs that you have completely changed on?
Henry Rollins: No. Not as far as spoken word. As far as life experience, the more laps you take around the track, hopefully your mind changes as you go. As a young man, I had a fairly narrow scope -- which is one of the great things of youth. As a middle aged man, I see a slightly bigger picture.
And those changes have always been aired on stage.
In light of his recent passing, I was wondering if you could comment on Richard Pryor's standup and how it has perhaps influenced what you've tried to do with your spoken word shows.
Henry Rollins: There can't be enough accolades laid on Pryor as far as his bravery and what he did for the genre of comedy. As a young person, I remember those early records and he perhaps helped white America understand black America through comedy better than a lot of other attempts to bring Americans together.
Henry Rollins: His bravery is not lost upon me.
USO Shows: Are you allowed to say what you want on your USO shows, or do they ask that you keep your political (e.g. anti-war) views quiet? I hope the troops out there understand how many people are like us: supporting the troops and hating the politicians who put them in harm's way.
Henry Rollins: Great question. Believe it or not, never once have I been told to cool it or to not say exactly what I want. And I have. I also go out of my way to let these brave men and women know that no matter who Americans voted for, about 99.999 percent of America supports the troops. That no matter what an American's take on the war is, support for their safe arrival back home is absolute.
What is distressing is how many soldiers did not understand that and think they are hated at home.
Silver Spring, Md.: Hi Henry,
What kind of music have you been listening to lately? How do you usually come across new music?
Henry Rollins: The first half of the question is way too broad. I like what I like and that seems to take in every genre of music I can think of -- even country western and techno -- where I'm not all that conversant.
How do I get music? Curiosity makes me buy CDs by the pound. Recommendations from people and things people very graciously send me. Basically, I am open to anything where the musicians have given their all to the piece.
Just got through reading Fanatic! and am psyched to hear that Harmony in my Head is back on the air. For those of us poor working stiffs on the East Coast who can't listen to the show live, are there any plans to archive the new shows so we can listen to them later? (The last one I can find online is Nov. 2004)
Really enjoyed the Birchmere show last fall, and look forward to seeing you again when you're next in town.
Henry Rollins: Yes. At http://www.rollins-archive.com/, started by a fan, she archives every show -- including last night's and you sleepy people can download the music.
Also, those who are curious, please go check out harmonyinmyhead.com for annotated notes of the songs and streaming information. I get letters from people all over the world who listen to the show.
Washington, D.C.: I have been a big fan of yours for years -- I saw you with Black Flag, saw you again with the Henry Rollins Band (it was heaven seeing you and the Butthole Surfers back-to-back on the original Lollapalooza tour!), and have managed to catch a few of your spoken-word shows as well. I would like to know what inspired your move into the realm of spoken-word performance -- was it something that was always there inside you or did you have any sudden inspiration or "aha!" moment?
Henry Rollins: As a young person, there was always a premium put on being able to tell a great story. Amongst my friends being able to imitate everyone else and crack everyone up put you high up on the teen food chain. Of course, this is not unique, but I never lost my love of storytelling, imitating others, etc.
As a scrawny, Ritalin-addled youth in HS, which was all boys, I learned to stave off the beating, by making the gorilla laugh before geometry class. Hence, the opportunity to go on stage without a band, tell stories and express attitude, was extremely attractive to me when first offered in 1983.
Aldie, Va.: Henry, in all your shows, books, music, you act like an angry guy and don't hesitate to say you are one. But you seem like such a nice guy, and would be willing to help anyone if you could. How do you reconcile the two personalities?
Henry Rollins: I don't think being helpful or nice doesn't allow you to be really pissed off. My anger is mostly a civically oriented one. I am tired of the little guy getting bullied by the rich, the mean and the opportunistic. This sentiment, of course, is not unique, so... anger is good when directed in a positive way and so, yes, on occasion I am a pretty nice guy, but I hold my anger in high regard. If it ever goes away I will know I have lost the plot.
Ectomel, IA: Hi Henry. We share a common favorite band; Black Sabbath circa 1974. (How incredibly cool was it to be a supporting player in the genesis of that reunion?!)
I know you have been on close terms with Sharon and Ozzy, so what I wanna know is this; I have always read between the lines of Ozzy's seeming addle-headedness and thought that he was actually pretty smart and damned funny, too. What's your take? Is the Ozzy that you see on TV what you get, or is he crazy like a fox?
Henry Rollins: First question about how cool was it? Are you kidding?! It was very cool to be with Black Sabbath for their reunion shows in Birmingham, England.
As far as Ozzy. He is easily one of the most what you see is what you get people I've met. He's not putting on an act. Ozzy is Ozzy 24 hours a day. He is extremely childlike in that he has not lost his enthusiasm for music and life and he is tremendously big-hearted, which adds to his appeal to me and lots of other people.
Hence, his seemingly endless appeal decade after decade.
So, no, I don't think he's putting on an act.
York, Pa.: Do you feel let down by the apathy displayed by the younger generation in the face of war, America's ever declining worldwide reputation and heightening governmental invasion of privacy?
Henry Rollins: Those are three different topics.
Apathy. I think we are curing that problem. I think our newest crop of teenagers may be the most energized and politically aware young people we've had for quite some time. And that is why I am optimistic for the future of America.
America's reputation. President Bush has set America, in my opinion, on a very dangerous course. We are drawing lines in the sand and appearing as bullies in places where people will push back. Everyone knows this. The only thing that lifts my spirits in this depressing situation is our young people and their desire to turn things around and seek a better, peaceful and more rockin' situation.
Privacy. Good question. I don't know exactly where I sit on that, being someone with nothing to hide. If national security is at stake, I think extraordinary measures must be employed. What bugs me about Bush and his wiretaps is that he could have done it legally and chose not to.
Any of those wiretaps he sought, he could've gotten those warrants perhaps overnight, but his administration's arrogance and seeming attitude of "the rules do not apply" makes me pretty angry.
You always thank Mitch Bury of Adams, Mass., on your liner notes. I used to live in Adams, Mass. Who is he? I always thought he was a voice coach to help you with your singing, but I know there has to be a better story. So what is it?
Henry Rollins: Mitch Bury was Black Flag's road manager and very close friend of the band and myself. His family still lives on Crandall Street and I've just had a long friendship with Mitch Bury and to this day still see him, keep in contact with him and keep up my tradition of thanking Mitch Bury from Adams, Mass., on everything I put out.
Washington, D.C.: I'm in my early 30s and I'm pretty angry too. Do you think it has more to do with your personal make up or do you think it has to do with this issues of today? If it's the later, has your angry grown worse or stayed the same?
Henry Rollins: I think in my case at least it is a combination of both. I was an angry kid, an angry adolescent and am now an angry adult. Many factors have probably been a part of this. Washington, D.C., was an intense place to be young person in the '70s and '80s. As a child in the '60s, watching the riots, it had a profound effect on me. In my opinion, to be a conscientious American, you should be pretty damn angry.
Until things are perfect, we need to keep working. Anger and dissatisfaction are great fuel for change and betterment.
Henry Rollins: Yes, and my anger grows daily.
Anonymous: Since the White House staff is known to read these discussions, what would be your reaction should the Defense Department decide not to invite you back on another tour?
Henry Rollins: That would be sad and patently un-American.
Kensington, Md.: I saw you doing a MTV video countdown years back and when you had to introduce a video from U2, you rolled your eyes in apparent sarcasm as you talked about the band. As a U2 fan, I always thought that was hilarious. Did you just never get them or their music?
Henry Rollins: While I applaud Bono's humanitarian efforts with great admiration, I think the music is for those who have lost their will to rock.
Arlington, Tex.: Henry, enjoyed watching you speak when you came through Texas.
Do you think invention of online music stores is good for the artists?
I think you should look into using the Internet to get your masses more talking shows. It would remove any middle men that want to get in the way. The Pearl Jam guys have devised a great system to get bootleg music to their fans. Check it out.
Henry Rollins: I think the Internet has been great for musicians as far as bringing people to their music cheaply and efficiently. Hopefully, getting people who would would have never heard the music to hear it... which is what music is all about. Music wants to be heard. I do have a whole line of CDs that I sell from my Web site that never go to retail, which are extremely cheap and $1 from each sale goes to different charities.
So, dear writer, I do check it out and I thank you.
Do you keep up at all with the DC music scene? Have you heard our radio lately? It's horrible....
What cities have the best radio for progressive/alternative rock that you've heard, and do any of those stations stream online??
Henry Rollins: Okay. Yes, I keep up with the local DC music scene as best I can. Being a semi-frequent visitor to my beloved hometown, I go to as many gigs as I can. I will confess I do not listen to much radio, preferring my own record collection to that of a radio station. All I know is the music's always good on my show and the station I'm on does stream -- Indie 103.1.
As to what any other station is doing, I'm unaware.
Crete, Ill.: Henry, how did the idea come together for your film critiquing show on IFC?
Henry Rollins: The idea was that of Swift River Productions. Although they will not admit it, I know I was not their first choice. They came to me and pitched what basically became the show, since I love film, have an opinion on why I like and dislike them, and have done quite a bit of acting in film, they thought this might be interesting to me. It was, we made a pilot, IFC liked it, we made a season, they asked for another season, which we're already in pre-production on now.
And so far it has been really great. The name of the show has changed from "Henry's Film Corner" to the "Henry Rollins Show" and will now be weekly instead of monthly. There will be live music, some of the acts like Sleater-Keaney and John Doe, they're performances already in the can. Slayer and other acts are imminent.
Henry Rollins: I can't thank you enough for all of your questions, your enthusiasm, your interest. It may sound cheesy, but I mean every word of that.
Also, being stranded out here in LA, it is very nice to see the names of the towns these letters are coming from (Arlington, etc.), cuz I really miss that part of the world every day I'm not there.
Herndon, Va.: Your "Tom Waits Story" remains one of my most prized MP3's of all time. It's truly one of the funniest and best told stories I've ever heard. My Question is have you ever considered re-labelling what you do and using the More accessible term "stand up comedy" rather than the off-putting (to some anyway) "spoken word"?
Hnery Rollins: I have never liked that term either. I sure didn't come up with it! If I saw "An evening of spoken word with . . ." on a flyer I would run the other way in fear of being bored to death. That being said, I admire stand-up comedy and am a fan of the good ones but wouldn't want to have to make people laugh all the time. There's some stuff that's just not funny and I want to address that stuff without having to make light of it. Also, that circuit seems pretty intense in a way that's unappealing to me. Even a guy like George Carlin who's a pal and someone I greatly admire, must feel some pressure to keep the laughs going. I don't think I would fare well in that environment.
Los Angeles, Calif.: Do you think soldiers might be mistaken about America's support for the troops as a result of broadcasters such as Rush Limbaugh, who equate any dissent with treason and loathing for our soldiers? Where else would they get that wrong impression?
Henry Rollins: I definitely think that sentiment is propagated by those who are for one reason or another, in favor of what's happening in Iraq. I don't know how much of America is swayed by radio and television pundits and their opinions. I think the Bush Administration has done a lot of work, with evident success, to weld 9/11 to Iraq, Osama to Saddam, the response to the September attacks to preemptively strike Baghdad. If you don't diligently follow the spin and look at the real information, you could think anyone critical of the efforts in Iraq to be a negative influence. I am not saying though, that the TV/Radio right don't have an effect. They do. Your Hannity's are very forceful and their narrowness of scope often works to their advantage in attacking large topics. If you can fit it on a bumper sticker, it's not a reason to go to war. Novak left CNN and went to Fox! What a surprise!
Detroit, Mich.: I'm watching the Supreme Court nominations, while reading this online interview/blog -- and a question came to mind. Do you feel that the administration, as a whole, has done so much damage that it cannot be undone, or do you believe with a shift in power and a change in those who have it will lead to an eventual rebirth in American politics in which people, again, have a voice in their own government. And I commend you on your work with the USO. You're doing the individuals and the country a great service.
Henry Rollins: Only my opinion here but I think the Bush Administration has put us on an aggressive and dangerous course in South and Central America and the Middle East and parts of Asia most certainly. To me, they demonstrate the actions of men who have not been in many or any fights. They either don't understand or seem to care that there's always someone who will hit back or at least take their best shot at whom they consider to be the schoolyard bully. I'm not saying we should hug a terrorist today but we should definitely do something in an attempt to understand where all this anger comes from and go to that as one of our measures against further terrorist attacks. It's hard enough fighting an enemy that doesn't mind dying. I am however, hopeful. My hope comes from all the young people I meet. The level headed, energized people I meet who really want to address the hard questions and do something. I think we are headed for a dramatic and historic turning of the tide in our life time. That is to say, something's gonna give.
Portland Ore.: Henry, I've been a fan of yours since about 1991 when your spoken word helped me get through boarding school and broke me of my angst. I no longer blamed other people for my problems and looked toward myself. I can tell that the problems in this world bug you. They bug me too. Every time you come to Portland, inevitably someone yells that you should run for president. My question is this: Why don't you run for an elected office? You're intelligent, you relate to people and you kick ass. Isn't it time that you step up and live to YOUR full potential? I think Washington could use a little more punk rock than just the 9:30 club.
Henry Rollins: Damn do I love your city. I had a great time there the other night. I appreciate your confidence. I am however in no way cut out for office. I am of highschool education and I don't think I could do anyone any favors in that arena. Also, I really think I get some good things done being on the street and on the move. I think there's a lot more latitude out here than in an elected office. As far as living up to my potential, well, I'm not sleeping on that front, I assure you. Thanks.
McLean, Va.: I would like to thank you from the bottom of my heart for all your work with the USO and your efforts to bridge the gap of misunderstanding that has been created (and exploited) regarding the difference between supporting the troops and supporting the war. I have had numerous "discussions" with people who, because of my open opposition to the war and to the Bush administration, have accused me of not supporting the troops and even of being a traitor to my country. These discussions often end soon after I inform them that I served for four years with the U.S. Army Special Forces. While it is handy to have this trump card available, it saddens and angers me that it is even necessary to play it. I served and fought for freedom of expression, freedom of thought, freedom of association, and the freedom to dissent -- much of what you seem to be fighting for in your way. I think you are doing an excellent job and I wish more power to you.
Henry Rollins: Thank you and thank you for your service. Yeah, it's too bad you have to pull out your SF card. To me, being a traitor is having a party and cracking open the champagne whenever there's U.S. fatalities or blowing up something here at home. I don't know anyone who is remotely like that. Quite the opposite. When we lost that Black Hawk the other day, it's a year ruiner as far as I'm concerned. As far as being critical of an Administration, someone better be, even the ones who voted it into office. How else will we learn, be safe, not repeat mistakes, etc. Again, thank you.
California: Would you describe Bukowski as a Slurred Word Artist? Also, if anger is properly channeled, such as in your case, is it still anger, or something else?
Henry Rollins: Those Bukowski books were fun to read when I was in my 20's. A great ride. Good question about the anger. It is perhaps something else, an awareness, a catalyst. All I know is, when everything seems to be going well, it feels like a scam!
Washington, D.C.: Henry, I have long been a fan of yours, and you have certainly inspired me to be the independent person I am. Unfortunately life does not always allow this luxury. How do you cope with situations where individuality is not easily welcomed, i.e. politically or socially?
Henry Rollins: I guess it is a luxury come to think of it. When I encounter a confrontational situation, I usually run right at it. Where are you living? China, Arkansas?
Rockville, Md.: Hi Henry -- why everytime I see you do you have a black shirt? How many of those you own?
Henry Rollins: I wear a black one onstage because it hides the sweat but most of the time I wear a gray t shirt. It matches my hair. It's my way of going with it.
Santa Fe, N.M.: A case can be made that the Beatles played a major role in the fall of the Soviet bloc, do you think this a true and if so do you feel that any of today's music could cause change in the Middle East?
Henry Rollins: A case can be made that adult diapers played a major role in the fall of the Soviet bloc. I don't think it was the Beatles. I like that idea though. I think it was a lot of people wanting what their neighbors in the West have had for so long and all the stuff that comes with it. Mafia, corruption, MTV, all the good stuff. I have always maintained that if we dropped tons of Ramones CDs on Israel and Palastine perhaps we could get somewhere. I am more than willing to use music to cool out the Middle East. Let's send in George Clinton and the P-Funk Allstars as the first wave, wait for the smoke to clear and then we come over the hill with Sabbath. Or, you could assault them with Britney Spears and they might just freak out and lose it completely. Honestly, I don't think music can do much to change anything. If it could, then it would have happened with all those great Dylan and Marley songs.
Detroit, Mich.: As many others, Black Flag made some of the most powerful music I ever listened to. Are you still at all in touch with Greg Ginn?
Henry Rollins: I saw Greg in 1989. I guess that's a long time ago. He wrote some of the best songs I have ever heard. I don't really know what he's up to now.
Washington, D.C.: What was it like being interviwed by Stacy Peralta for the Dogtown documentary?
Henry Rollins: That was an all time great experience. I had not seen him in a long time and it was so cool to have him over at my office. He's a 100 percent great guy and someone I have admired since I was a teenager. I think I met him in the late 70's the first time and over the years would run into him here and there. It was great to be part of that documentary. Ian MacKaye and I got a credit on the film as contributors of some of the Jay Adams footage you see in Dogtown as we shot that stuff on my Super-8 camera many years ago.
Washington, D.C.: I know that there are some books describing your role in the history of the D.C. Punk scene, but have you written your own memoirs of those days?
Henry Rollins: I have written about some of those times here and there in books I have done but not in one concentrated effort. I have taken a lot of notes, trying to remember everything I could as those were some of the best times I have ever had. I still remember those days with a great deal of fondness.
Anonymous: Is there a release date for "Feast"?
Henry Rollins: Quite honestly, I have no idea. After I am done with a film, I never look back. I am only there for the work. What happens to it after I'm done is not really all that Important to me as there's nothing I can do about it and usually I am of such low level in a film, no one tells me anything. I don't get invited to the premier most of the time.
Silver Spring, Md.: Henry, do you still skate?
Henry Rollins: No. I wish I had the knees left to but I don't.
Washington, D.C.: Henry, Thanks for doing this chat. These are always a lot of fun and they get me through the work day. I read somewhere that you were in that terrible movie, St. Elmo's Fire, as a guy behind the counter at Haagen Daaz. Is this at all true? Were you simply behind the counter as they were filming? Is this a complete figment of my imagination?
Henry Rollins: Thanks. No. I was never in that film. You have a vivid imagination though. Had they asked me to be in it, I would have done it. I am always seeking gainful employment.
Northern Virginia: During your lifetime technology and the Internet have changed radically in ways that impact all of the work you've done (music, writing, movies). Having heard Ian on a roundtable discussion last year, I'm curious to hear what your feelings are about music piracy and the like. Also, have you noticed these things have taken a bite out of your income stream? Also, do you have an iPod (or similar device)? If yes, what's on it?
Henry Rollins: I do not lose any sleep about anyone downloading anything I have done. I am told by young people that they download my talking records for free all the time. They sometimes apologize and ask if I am going to attack them. I always say to them what I will say to you: There have always been mechanisms in place to keep the artist from his or her pay. Be it the club owner, agent, manager or record company. Now, it's the fans too. Why should they be left out?! The bottom line is, I would rather be heard than paid and no, I willl not chase you down the street for my 35 cents. Unfortunately, some of the records that people download of mine have part of the money made going to charities so in a way, they're working negatively against some organizations they would probably really dig. And, I'm not the only one in the band so they are also taking from others, some of them with kids. As far as what money all that takes from me, I don't make much money from records and I don't really check to see what I make on them and I am certainly not going to go after someone for a few bucks. I would have loved to have heard what Ian had to say about all that. He always has an interesting take on things. I have three ipods for different places and they are full of all kinds of music. I have the 60 gig ones so I can take a lot of music out with me on the road. They are a great thing.
Washington, D.C.: Henry, I love your writing and spoken word work. How much time on average do you spend every day writing?
Henry Rollins: Thanks. It depends on what I am doing. If I am doing a movie or TV thing, not much as the 12-14 hour day will be enough to drop me. The USO tours are hard to write on because of the exhaustion factor at the end of the day. On a good day, up to 8+ hours on and off. Most of the time, at least three. There are days at a time when I don't get anything done because of obligations and schedules. I have been writing a lot lately. More than usual.
Sterling, Va.: Henry, I recently read Roomanitarian and loved it. Do you plan on appearing in more films this year?
Henry Rollins: You liked that book?! What are ya, a nut?! Thanks. I have no film plans for this year so far but something might come up in the summer as I will be in LA a lot working on stuff. It's not anything I persue all that hard. There are two films that I was in that are to come out at some point this year. Feast and Alibi.
Bethesda, Md.: Hi Henry, I was wonder if you have noticed any differences in either the troops you see or the condition of the Iraq people and country in your multiple visits. Do you think it's getting worse or better? Certainly it has to be tough on the many troops who are doing their second on even third tours of Iraq.
Henry Rollins: I have only been to Iraq once. I have been to Afghanistan and Kyrgyzstan twice so far. When I was in Iraq, I met people who were two months in country and 14 months in country. The year-plus ones were the ones Rumsfeld held back for an unspecified period. They were angry. A lot of them had children they had not met yet. The ones who were in a couple of months were very focused and wired. I know at this point, there are people going into their third rotation there. I don't know what their morale will be like. Probably good. These are highly trained, highly motivated people. I am continually amazed at how great the troops are. It's very inspiring to be around them. As far as Iraq, I was told, when I was there at least, that there's more electricity in a lot of regions than ever before. That was the only progress report I was told about. That being said. I have seen a lot of reports that say exactly the opposite of what I was told so I don't know the answer to that one. Some parts of Iraq I saw were beautiful. I hope the place comes back all the way.
Bethesda, Md.: Henry I read somewhere that you attended Bullis HS and a teacher there was very instrumental in your decision to pursue an artistic career. Can you tell us about that? My kids attend Bullis and love it, but I wonder why I haven't heard your name mentioned there. Have they ever asked you back for anything?
Henry Rollins: I did go there. I had an English teacher who was very cool to me. I would write stories about blowing the school up and burning it to the ground and give them to him and he would help me with the sentences but told me to never show them to others. He said creative writing was good. I was very frustrated in that place. A good school but I didn't have a good time. I was asked many times to come on campus and speak over the years. I always politely declined and some years ago, they got the message. I have never been back since the day I graduated in 1834. It was a long time ago.
Washington, D.C.: So now that you are a big time Hollywood guy, when are they going to make you a U.N. Goodwill Ambassador?
Henry Rollins: As soon as I get a show on Scare America the home of Aggressive Talk Radio.
KC: Have you read any good books lately?
Henry Rollins: I really learned a lot from Ahmed Rashid's book "Taliban." I just finished reading Bulgakov's "Master and Margarita" again. Those were great.
Chicago, Ill.: I was really excited when you started 2.13.61 because it looked like you were going to reissue some old records worth listening to. I got the 30 seconds over DC comp, Trouble Funk live joint, and recently picked up the Negative Trend EP, do you have any other old gems in the works? Also which spoken word CD is your favorite?
Henry Rollins: I have some old stuff lined up but I am still working out the deals on them so it will take a while to get it all together. Best thing to do is check in on the site now and then or get on our mailing list and we'll let you know about releases if you like. 21361.com is the address. A favorite talking record of mine? I don't know. I make them and then make the next one. I don't really think about them as far as favorites.
Raleigh, N.C.: Hiya Henry! What's your take on the separation of Church and State? Rock on!
Henry Rollins: I hope they stay well away from each other for the sake of all sane people in America.
Woodbridge, Va.: With the recent revelations of the JT Leroy and James Frey being frauds, do you feel the literary world is fast becoming like the art world of the 1980's? Do people prefer entertainment to the truth? Or are JT Leroy and Mr. Frey using the tools of the culture against its ambassadors (Oprah, noted journalists, magazines, celebrity friends, etc...)? Consumer culture will purchase their products regardless.
Henry Rollins: If James Frey, a former drug addict made up some things in his book, anyone who would be surprised should maybe get a reality check. As far as books like that, if you liked it, got something from it, who cares if it's true? If you have to watch Oprah Winfrey to get your reading list, you deserve any literary hardships that come your way. A lot of people prefer fantasy to the truth. Wait until the upcoming State of the Union Address!
Washington, D.C.: Do you believe Nick Zedd's work has proved influential to your own? And if so, in what way? Do you plan any co-projects with Zedd. Additionally I was surprised to hear that you were on the Stern show. How was that and what precipitated your appearance?
Henry Rollins: Nick is great but quite honestly, the only thing I have ever gotten through was his book. I have never been able to hang all the way through the films. I tried but couldn't do it. So, I don't think there's been any influence and I certainly have no plans to do anything with him. I have been on Stern's show twice and always found him to be alright to me. They asked and I went. I'd go again. I don't mind Howard. His thing with women at first bugged me but now I see he's just infantile on that front and not misogynistic. I didn't get that at first. I think he'd be the first to admit that. I like the guy.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Join live discussions from the Washington Post. Feature topics include national, world and DC area news, politics, elections, campaigns, government policy, tech regulation, travel, entertainment, cars, and real estate.
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'Hearts and Minds' in Iraq
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2006011019
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Once again we are confronted with stories about how the Pentagon and its ubiquitous private contractors are undermining free inquiry in Iraq. "Muslim Scholars Were Paid to Aid U.S. Propaganda," reports the New York Times. Journalists, intellectuals or clerics taking money from Uncle Sam or, in this case, a Washington-based public relations company, is seen as morally troubling and counterproductive. Sensible Muslims obviously would not want to listen to the advice of an American-paid consultant; anti-insurgent Sunni clerics can now all be slurred as corrupt stooges.
There is one big problem with this baleful version of events. Historically, it doesn't make much sense. The United States ran enormous covert and not-so-covert operations known as "CA" activities throughout the Cold War. With the CIA usually in the lead, Washington spent hundreds of millions of dollars on book publishing, magazines, newspapers, radios, union organizing, women's and youth groups, scholarships, academic foundations, intellectual salons and societies, and direct cash payments to individuals (usually scholars, public intellectuals and journalists) who believed in ideas that America thought worthy of support.
It's difficult to assess the influence of these covert-action programs. But when an important Third World political leader writes that a well-known liberal Western book had an enormous impact on his intellectual evolution -- a book that, unbeknownst to him was translated and distributed in his country at CIA expense -- then it's clear that the program had value. It shouldn't be that hard for educated Americans to support such activity, even though one often can't gauge its effectiveness.
Nor should it be so hard to support even more aggressive clandestine action in developing democracies such as Iraq. Let us make a Cold War parallel. As is well known, the CIA for years financially maintained the British journal Encounter. This magazine, which was perhaps the most important English-language outlet for anti-communist U.S. and European writers, influenced debates among the Western intelligentsia from the 1950s through the '70s. By bang-for-the-buck calculation, it may be the most effective nonmilitary highbrow covert action the United States has funded.
Does anyone seriously believe that the French intellectual giant Raymond Aron was compromised by regularly writing for this publication or for French magazines also funded by the CIA? Regardless of whether Aron or others at Encounter might have suspected that their checks were cut by the U.S. taxpayer, are their insights and reporting any less relevant and true?
A historian looking at Radio Free Europe-Radio Liberty when it was subsumed within the CIA would probably find it hard to suggest that it was less truthful or more subject to political manipulation than today's Radio Liberty, which operates under the oversight of the politicized and idiosyncratic Board of Broadcasting Governors. RFE-RL was probably the most successful "soft power" expenditure that Washington ever made. East European and Soviet dissidents didn't have a problem with the CIA backing. The issue with them, as it is today with Uzbeks listening to Radio Liberty or Muslims elsewhere reading or listening to U.S.-supported material, is whether the content echoes the reality that they know.
Contrary to what is commonly believed, CIA funding of intellectual "propaganda" projects -- including direct cash payments to American and foreign journalists -- has usually been done with the lightest touch. In my direct experience, and in reading files covering CA activity in Europe and the Middle East, I never saw an instance in which agency officers manipulated the final product. What was regrettable was that CIA officials often didn't have the linguistic skill or education to match the countries they covered and had no real grasp of what their CA assets were writing.
Why did the United States spend so much covert-action money in Western Europe after World War II? Washington was unsure of Western Europe's commitment to democracy and its resolve to oppose the Soviet Union and its proxy European communist parties. The programs had to be clandestine: The foreigners involved usually could not have operated with open U.S. funding without jeopardizing their lives, their families or their reputations. Did these CA projects retard or damage the growth of a free press and free inquiry in Western Europe after World War II? I think an honest historical assessment would conclude that U.S. covert aid advanced both.
Surely democracy in Iraq is at least as shaky as it was in Western Europe after the defeat of Hitler. The real complaint that ought to be made against the Bush administration is that it has allowed such important work to be contracted to a public relations firm (in the case cited above, the Lincoln Group) that has done a poor job of protecting anonymity. Nevertheless, one has to give the Pentagon credit: It seems to be the only government agency that is at least trying to develop Iraqi cadres to wage the "hearts and minds" campaign. The CIA seems to have all but abandoned its historical mission in this area.
The Bush administration shouldn't flinch from increasing its covert "propaganda" efforts in Iraq and elsewhere in the Middle East. The history in the last great war of ideas is firmly on its side.
The writer, a former CIA case officer, is a resident fellow at the American Enterprise Institute. He will answer questions about this column today at 3:30 p.m. on www.washingtonpost.com.
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The Bush administration shouldn't flinch from increasing its covert "propaganda" efforts in Iraq and elsewhere in the Middle East. History is on its side.
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For the House GOP, A Belated Evolution
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2006011019
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Before evolution produced creatures of our perfection, there was a three-ton dinosaur, the stegosaurus, so neurologically sluggish that when its tail was injured, significant time elapsed before news of the trauma meandered up its long spine to its walnut-size brain. This primitive beast, not the dignified elephant, should be the symbol of House Republicans.
Yes, one should not taint all of them because of the behavior of most of them. Why, perhaps half a dozen of the 231 Republican representatives authored none of the transportation bill's 6,371 earmarks -- pork projects. And now among House Republicans there are Darwinian stirrings, prompted by concerns about survival.
In Washington, such concerns often are confused with and substitute for moral epiphanies. Tom DeLay will not return as leader of House Republicans, whose new fastidiousness is not yet so severe that they are impatient with Ohio Rep. Bob Ney's continuing chairmanship of the Committee on House Administration, in spite of services he rendered to Jack Abramoff. Ney has explained, by way of extenuation -- yes, extenuation -- that he did not know what he was doing.
Anyway, catalyzed by DeLay's decision to recede, House Republicans, perhaps emboldened by the examples of Afghanistan and Iraq, are going to risk elections. When they elect their leaders, they should consider the following:
The national pastime is no longer baseball, it is rent-seeking -- bending public power for private advantage. There are two reasons why rent-seeking has become so lurid, but those reasons for today's dystopian politics are reasons why most suggested cures seem utopian.
The first reason is big government -- the regulatory state. This year Washington will disperse $2.6 trillion, which is a small portion of Washington's economic consequences, considering the costs and benefits distributed by incessant fiddling with the tax code, and by government's regulatory fidgets.
Second, House Republicans, after 40 years in the minority, have, since 1994, wallowed in the pleasures of power. They have practiced DeLayism, or "K Street conservatism." This involves exuberantly serving rent-seekers, who hire K Street lobbyists as helpers. For House Republicans the aim of the game is to build political support. But Republicans shed their conservatism in the process of securing their seats in the service, they say, of conservatism.
Liberals practice "K Street liberalism" with an easy conscience because they believe government should do as much as possible for as many interests as possible. But "K Street conservatism" compounds unseemliness with hypocrisy. Until the Bush administration, with its incontinent spending, unleashed an especially conscienceless Republican control of both political branches, conservatives pretended to believe in limited government. The past five years, during which the number of registered lobbyists more than doubled, have proved that, for some Republicans, conservative virtue was merely the absence of opportunity for vice.
The way to reduce rent-seeking is to reduce the government's role in the allocation of wealth and opportunity. People serious about reducing the role of money in politics should be serious about reducing the role of politics in distributing money. But those most eager to do the former -- liberals, generally -- are the least eager to do the latter.
A surgical reform would be congressional term limits, which would end careerism, thereby changing the incentives for entering politics and for becoming, when in office, an enabler of rent-seekers in exchange for their help in retaining office forever. The movement for limits -- a Madisonian reform to alter the dynamic of interestedness that inevitably animates politics -- was surging until four months after Republicans took control of the House. In May 1995 the Supreme Court ruled 5 to 4 that congressional terms could not be limited by states' statutes. Hence a constitutional amendment is necessary. Hence Congress must initiate limits on itself. That will never happen.
Although bribery already is a crime and lobbying is constitutionally protected (the First Amendment right "to petition the government for a redress of grievances"), a few institutional reforms milder than term limits might be useful. But none will be more than marginally important, absent the philosophical renewal of conservatism. To which end, whom should Republicans elect?
Roy Blunt of Missouri, the man who was selected, not elected, to replace DeLay, is a champion of earmarks as a form of constituent service. If, as one member says, "the problem is not just DeLay but 'DeLay Inc.' " Blunt is not the solution. So far -- the field may expand -- the choice for majority leader is between Blunt and John Boehner of Ohio. A salient fact: In 15 years in the House, Boehner has never put an earmark in an appropriations or transportation bill.
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Until the Bush administration, Republicans pretended to believe in limited government. Now, they practice "K Street conservatism," which compounds unseemliness with hypocrisy.
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U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
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2006011019
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Read below the text of the first period of questioning, ending with the lunch recess. Part II picks up from that point.
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
NOMINATED TO BE AN ASSOCIATE JUSTICE OF
SPECTER: The Judiciary Committee will now proceed with the confirmation hearing of Judge Alito for the Supreme Court.
Before beginning the first round of questioning, just a little review as to our procedure. As announced, there will be a 30-minute allocation for each senator, but we intend to work rather late this afternoon, perhaps into the early evening. I don't know that it's possible to complete the first round of questioning today. That would be a good objective. We'll see how it goes.
Judge Alito, you are free to let us know whenever you want a break. We will take a couple of breaks at the midpoint of the morning and the afternoon. But there are 18 of us and only one of you, so when you would like a break, your schedule takes precedence over ours.
Before beginning the opening round, let me yield to my colleague, Senator Leahy, to see if he has some initial comments.
LEAHY: I thank you, Mr. Chairman. I also appreciate the fact we have kept to the clock. I think it has been helpful, and I would hope that Judge Alito would bear with us on that. We will have a lot of questions. I think to take the time to get them all -- you've always been accommodating to that. And I think that it requires cooperation on both sides of the -- both sides of the dais.
We do have the advantage, Mr. Chairman, that we didn't have with Judge Roberts hearings that we're not in session. We're not going to be interrupted by votes. And we have the time to do it. I would hope that we don't go into a marathon for both his sake and us older guys' sake.
But I do appreciate you. You've run this with fairness and equal- handedness. I appreciate that.
SPECTER: Well, since there are no older guys involved or gals, we can consider the marathon. But we'll keep it within bounds.
OK. You can start the clock. I will maintain the clock meticulously as we have maintained timing in our Judiciary Committee practice.
Judge Alito, you'll be faced with many, many questions on many topics. I'm going to start today with a woman's right to choose and move to executive power and, hopefully, within the 30 minutes pick up congressional power.
Starting with the woman's right to choose, Judge Alito, do you accept the legal principles articulated in Griswold v. Connecticut that the liberty clause in the Constitution carries with it the right to privacy?
ALITO: Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
SPECTER: Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that.
ALITO: I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment.
SPECTER: Would you agree, also with Eisenstat, which carried forward Griswold to single people?
ALITO: I do agree also with the result in Eisenstat.
SPECTER: Let me move now directly into Casey v. Planned Parenthood, and picking up the gravamem of Casey as it has applied Roe on the woman's right to choose, originating from the privacy clause, with Griswold being its antecedent. And I want to take you through some of the specific language of Casey to see what your views are and what weight you would ascribe to this rationale as you would view the woman's right to choose.
In Casey, the joint opinion said, quote, "People have ordered their thinking and lives around Roe. To eliminate the issue of reliance would be detrimental. For two decades of economic and social development, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail." Pretty earthy language, but that's the Supreme Court's language.
And the court went on to say, quote, "The ability of women to participate equally in the economic and social life of the nation has become facilitated by their ability to control their reproductive lives."
Now, that states, in specific terms, the principle of reliance, which is one of the mainstays, if not the mainstay, of stare decisis precedent to follow tradition.
SPECTER: How would you weigh that consideration on the woman's right to choose?
ALITO: Well, I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system.
And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions.
It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
SPECTER: How do you come to grips with the specifics where the court in the joint opinion spoke of reliance on the availability of abortion in the event contraception should fail -- on that specific concept of reliance?
ALITO: Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.
And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.
SPECTER: Let me move on to another important quotation out of Casey.
Quote: "A terrible price would be paid for overruling Casey -- or overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. And to overrule Roe under fire would subvert the court's legitimacy."
Do you see the legitimacy of the court being involved in the precedent of Casey?
ALITO: Well, I think that the court and all the courts -- the Supreme Court, my court, all of the federal courts -- should be insulated from public opinion. They should do what the law requires in all instances.
That's why the members of the judiciary are not elected. We have a basically democratic form of government, but the judiciary is not elected. And that's the reason: so that they don't do anything under fire. They do what the law requires.
SPECTER: But do you think there is as fundamental a concern as legitimacy of the court would be involved if Roe were to be overturned?
ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.
SPECTER: Let me move to just a final quotation that I intend to raise from Casey.
SPECTER: And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding."
That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.
How would you weigh that consideration were this issue to come before you, if confirmed?
ALITO: Well, I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.
Let me turn to an analogous situation. And that is Chief Justice Rehnquist's change of heart on the Miranda ruling.
In 1974, in the case of Michigan v. Tucker, he was then Justice Rehnquist, who wrote an opinion severely limiting Miranda. He, in effect, said he didn't like it.
Then, in the year 2000, in the case of the United States v. Dickerson, Chief Justice Rehnquist wrote an opinion upholding Miranda. And he did that because, quote, "Miranda was embedded in the routine police practices to a point where the warnings have become a part of our national culture," close quote.
SPECTER: Now, there has been an analogy made from what Chief Justice Rehnquist said on the Miranda issue to the Roe issue.
How would you evaluate the consideration of Roe's being embedded in the culture of our society?
ALITO: I think that Chief Justice Rehnquist there was getting at a very important point.
SPECTER: Do you think he was right?
ALITO: I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.
I think what he's talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions...
SPECTER: Judge Alito, let me move to the dissenting opinion by Justice Harlan in Poe v. Ullman where he discusses the constitutional concept of liberty and says, quote, "The traditions from which liberty developed, that tradition is a living thing."
SPECTER: Would you agree with Justice Harlan that the Constitution embodies the concept of a living thing?
ALITO: I think the Constitution is a living thing in the sense that matters, and that is that it is -- it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years. And the genius of it is that it is not terribly specific on certain things. It sets out -- some things are very specific, but it sets out some general principles and then leaves it for each generation to apply those to the particular factual situations that come up.
SPECTER: Would you agree with Cardozo in Palco that it represents the values of a changing society?
ALITO: The liberty component of the Fifth Amendment and the 14th Amendment, which I was talking about earlier, embody the deeply-rooted traditions of a country. And it's up to each -- those traditions and those rights apply to new factual situations that come up. As times change, new factual situations come up, and the principles have to be applied to those situations.
The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
SPECTER: Judge Alito, the commentators have characterized Casey as a super-precedent.
SPECTER: Judge Luttig, in the case of Richmond Medical Center, called the Casey decision "super stare decisis."
And, in quoting from Casey, Judge Luttig pointed out the essential holding of Roe v. Wade should be retained and, once again, reaffirmed.
And then, in support of Judge Luttig's conclusion that Casey was super stare decisis, he refers to Stenberg v. Carhart and quotes the Supreme Court, saying, "We shall not revisit these legal principles."
Now, that's a pretty strong statement for the court to make that we shall not revisit the principles upon which Roe was founded.
And the concept of super stare decisis or super-precedent arises, as the commentators have characterized it, by a number of different justices appointed by a number of different judges over a considerable period of time.
Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said?
ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any...
SPECTER: Did you say super-duper?
SPECTER: Good. I like that.
ALITO: Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket.
ALITO: I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent. And when the Supreme Court says that we are not going...
SPECTER: How about being reaffirmed 38 times?
ALITO: Well, I think that when a precedent is reaffirmed, each time it's reaffirmed that is a factor that should be taken into account in making the judgment about stare decisis.
And when a precedent is reaffirmed on the ground that stare decisis precludes or counsels against reexamination of the merits of the precedent, then I agree that that is a precedent on precedent.
Now, I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not. But it is a judgment that has to be based -- taking into account all the factors that are relevant and that are set out in the Supreme Court's cases.
SPECTER: Judge Alito, during the confirmation hearing of Chief Justice Roberts, I displayed a chart. I don't ordinarily like charts but this one I think has a lot of weight because it lists all 38 cases which have been decided since Roe where the Supreme Court of the United States had the opportunity to -- Senator Hatch is in the picture now.
It's a good photo op for Senator Hatch. Senator Leahy's complaining...
LEAHY: We can just balance it on Orrin's head.
SPECTER: Well, I think the point of it is that there have been so many cases, so many cases: 15 after your statement in 1985 that I'm about to come to, and eight after Casey v. Planned Parenthood, which is why it has a special significance.
SPECTER: And I'm not going to press the point about super- precedent. I'm glad I didn't have to mention super-duper; that you did.
Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?
ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.
Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's 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.
SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?
ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role.
And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.
SPECTER: Well, Judge Alito, coming to the role you had in the solicitor general's office where you wrote the memorandum in the Thornburg case urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge.
But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a promotion, within the federal government. So there's a little difference between the 1985 statement and your advocacy role in the Thornburg memorandum, isn't there?
ALITO: Well, there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice.
I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration.
SPECTER: And would you state your views, the difference, as you see it, between what you did as an advocate in the Solicitor General's Office to what your responsibilities are on the 3rd Circuit or what they would be on court if confirmed in a judicial capacity?
ALITO: Well, an advocate has the goal of achieving the result that the client wants within the bounds of professional responsibility.
ALITO: That's what an advocate is supposed to do. And that's what I attempted to do during my years as an advocate for the federal government.
Now, a judge doesn't have a client, as I said yesterday. And a judge doesn't have an agenda. And a judge has to follow the law. An important part of the law in this area, as we look at it in 2006, is the law of stare decisis.
SPECTER: Judge Alito, you have written some 361 opinions, and I'd like to have the time to discuss quite a few of them with you, but I'm only going to pick up one in the first round, and that is an opinion you wrote in the Elizabeth Blackwell Health Center for Women v. Knoll.
And that was the case where there was a challenge between a Pennsylvania statute which required as a prerequisite to a woman getting Medicaid that she would have had to have reported a rape or an incest to the police; and secondly, a requirement that there be a second opinion from a doctor that she needed an abortion to save her life. And that statutory requirement, those two provisions, conflicted with a regulation by the Department of Health and Human Services.
And you were on the 3rd Circuit, which held that the Pennsylvania statute should be stricken in deference to the rule of the Health and Human Services Department. And Judge Nygard entered a very forceful dissent, saying that this was an interpretive rule and it was inappropriate to have that kind of an interpretive rule by a department countervail a statute.
SPECTER: What was your thinking in that case? Had you been predisposed to take a tough line on a woman's right to choose or on Medicaid support for someone who had been raped, you would have upheld the statute? What was your thinking on that case?
ALITO: What you said is correct, Senator. I cast the deciding vote there to strike down the Pennsylvania statute. And I did it because that's what I thought the law required. I thought the law required that we defer to the interpretation of the federal statute that had been made by the Department of Health and Human Services.
If I had had an agenda to strike down any -- I'm sorry to uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with Judge Nygard in that case, and that would have turned the decision the other way.
I've sat on three abortion cases on 3rd Circuit. In one of them, that was the Casey case, I voted to uphold regulations of abortion. And in the other two, the Elizabeth Blackwell case and Planned Parenthood v. Farmer, I voted to strike them down. And, in each instance, I did it because that's what I thought the law required.
SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson's concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn't answer every question that comes up in this area, but it provides a very useful way of looking at them.
SPECTER: Do you agree with Justice O'Connor's statement quoted frequently yesterday from Hamdi that, quote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens," when she was citing the Youngstown case? Do you agree with that?
ALITO: Absolutely. That's a very important principle. Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.
SPECTER: You made a speech at Pepperdine where you said, in commenting about the decision of the Supreme Court in ex parte Milligan, that, quote, "the Constitution applies even in an extreme emergency." The government made a, quote, "broad and unwise argument that the Bill of Rights simply don't apply during wartime."
Do you stand by that statement?
ALITO: I certainly do, Senator.
The Bill of Rights applies at all times. And it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that's when there's the greatest temptation to depart from them.
SPECTER: Steering clear, Judge Alito, of asking you how you would decide a specific case, I think it is very important to find out your jurisprudential approach in interpreting whether the September 14th, 2001 congressional resolution authorizing the use of force constituted congressional authorization for the National Security Agency to engage in electronic surveillance where one party to the conversation was in the United States.
Let me take just a moment to lay out the factual and legal considerations.
The Foreign Intelligence Surveillance Act of 1978 provides, quote, "It shall be the exclusive means by which electronic surveillance shall be conducted in the interpretation of domestic, wire, oral and electronic communications may be conducted."
The government contends that the Foreign Intelligence Surveillance Act clause, quote, "Except as authorized by statute, opens the door to interpreting that resolution to authorize the surveillance."
Let me give you a series of questions. I don't like to put more than one on the table at a time, but I think they're necessary in this situation to give the structure as to where I'm going.
First, in interpreting whether Congress intended to amend FISA by that resolution, would it be relevant that Attorney General Gonzales said, we were advised that, quote, "That was not something we could likely get," close quote?
Second, if Congress had intended to amend FISA by the resolution, wouldn't Congress have specifically said so, as Congress did in passing the Patriot Act, giving the executive greater flexibility in using roving wiretaps?
SPECTER: Third, in interpreting statutory construction on whether Congress intended to amend FISA by the resolution, what would the relevance be of rules of statutory construction that repeal or change by implication that changes by, or makes a repeal, by implication or disfavor and specific statutory language trumps more general pronouncements?
How would you weigh and evaluate the president's war powers under Article II to engage in electronic surveillance with the warrant required by congressional authority under Article I in legislating under the Foreign Intelligence Surveillance Act?
And let me start with the with the broader principles. In approaching an issue as to whether the president would have Article II powers, inherent constitutional authority to conduct electronic surveillance without a wiretap (sic) when you have the Foreign Intelligence Surveillance Act on the books making that the exclusive means, what factors would you weigh in that format?
ALITO: Well, probably the first consideration would be to evaluate the statutory question. And you outlined some of the factors and the issues that would arise in interpreting the statute, what is meant by the provision of FISA that you quoted regarding FISA, the Foreign Intelligence Surveillance Act, being the exclusive means for conducting surveillance.
ALITO: And then, depending on how one worked through that statutory question, then I think one might look to Justice Jackson's framework. And he said that he divided cases in this area into three categories: where the president acts with explicit or implicit congressional approval; where the president acts and Congress has not expressed its view on the matter one way or the other; and the final category, where the president exercises executive power and Congress -- and that is in the face of an explicit or implicit congressional opposition to it.
And depending on how one works through the statutory issue, then the case might fall into one of those three areas.
But these questions that you pose are obviously very difficult and important and complicated questions that are quite likely to arise in litigation perhaps before my own court or before the Supreme Court.
SPECTER: Before pursuing that further -- and we'll have a second round -- I want to broach one other issue with you; my time is almost up.
And that is, in the memorandum you wrote back on February 5th, 1986, about the president's power to put a signing statement on to influence interpretation of the legislation, you wrote this: "Since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress."
SPECTER: Is that really true when you say the president's views are as important as Congress?
The president can express his views by a veto, and then gives Congress the option of overriding a veto, which Congress does not have if the president makes a signing declaration and seeks to avoid the terms of the statute.
And we have the authority from the Supreme Court that the president cannot impound funds, can't pick and choose on an appropriation. We have a line-item veto case, where the president cannot strike a provision even when authorized by Congress.
Well, I have got 10 seconds left. I guess when my red light goes on, it doesn't affect you. You can respond.
I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."
That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
SPECTER: My red light went on.
LEAHY: Hello, Judge, and good morning.
LEAHY: So glad you survived yesterday listening to us. Now we have a chance to listen to you.
I'll have further questions on the memo that Senator Specter spoke of, but it gets beyond theoretical.
LEAHY: I mean, the last few weeks, we've seen it well played out in the press, where the president and Senator John McCain negotiated rather publicly in a memo, which passed overwhelmingly in the House and the Senate, outlawing the use of torture by United States officers, yet the president, in his signing statement, implies that it will not apply to him or to those under his command as commander in chief.
Doesn't that get well beyond the theoretical issue there?
ALITO: It is. And I think I said, in answering the chairman that there are theoretical issues, but they have considerable practical importance.
But the theoretical issues really have to be explored and resolved. I don't believe the Supreme Court has done that up to this point.
I have not had occasion in my 15-plus years on the 3rd Circuit to come to grips with the question of what is the significance of a presidential signing statement in interpreting a statute.
LEAHY: Well, let me follow on sort of a related thing. The Supreme Court -- I feel one of the most important functions of the court is to stop our government from intruding into Americans' privacy or our freedom or our personal decisions.
In my state of Vermont, we value our privacy very, very much. I think most Americans do, automatically. And many times they have to go to the courts to make sure that a government doesn't -- whatever the government is, whatever administration it might be, that they don't overreach in going into that privacy.
LEAHY: Now, three years ago, the Office of Legal Counsel at the Justice Department -- and you're familiar with that; you worked there years ago -- they issued a legal opinion, which they kept very secret, in which it concluded that the president of the United States had the power to override domestic and international laws outlawing torture. So the president could override these laws outlawing torture.
They tried to redefine torture, and they asserted, I quote, "that the president enjoys complete authority over the conduct of war," close quote.
And they went on further to say that if Congress passed criminal law prohibiting torture, quote, "in a manner that interferes with the president's direction of such core matters as detention and interrogation of enemy combatants, that would be unconstitutional." They seem to say that the president could immunize people from any prosecution if they violated our laws on torture.
And that stated as what was the legal basis in this administration until somebody, apparently at the Justice Department, leaked it to the press. It became public.
Once it became public -- the obvious reaction of Republicans, Democrats, everybody saying this is outrageous; it's beyond the pale -- the administration withdrew that as its position. The attorney general even said in his confirmation that this no longer -- no longer -- represented Bush administration policy.
LEAHY: What is your view now? And I ask this because the memo has been withdrawn. It's not going to come before you. What is your view of the legal contention in that memo that the president can override the laws and immunize illegal conduct?
ALITO: Well, I think the first thing that has to be said is what I said yesterday, and that is that no person in this country is above the law. And that 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.
Now, there can be -- there are questions that arise concerning executive powers. And those specific questions have to be resolved, I think, by looking to that framework that Justice Jackson set out, that I mentioned earlier.
LEAHY: Well, let's go into one of those specifics.
Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate, these laws passed by Congress?
ALITO: Well, if we were in -- if a question came up of that nature, then I think you'd be in -- where the president is exercising executive power in the face of a contrary expression of congressional will through a statute or even an implicit expression of congressional will, you'd be in what Justice Jackson called the twilight zone, where the president's power is at its lowest point.
ALITO: And I think you'd have to look at the specifics of the situation. 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.
LEAHY: But, Judge, I'm a little bit troubled by this because you said yesterday -- and I completely agreed with what you said -- that no one's above the law; no one's beneath the law. You're not above the law. I'm not. The president's not.
But are you saying that there are chances where the president not only could be above the law passed by Congress but could immunize others, thus putting them above the law?
I mean, listen to what I am speaking to specifically. We pass a law outlawing certain conduct. The president, this Bybee memo -- which has now been withdrawn -- was saying, "But that won't apply to me or people that I authorize."
Doesn't that place not only the president but anybody he wants above the law?
ALITO: Senator, as I said, the president has to follow the Constitution and the laws. And, in fact, one of the most solemn responsibilities of the president -- and it's set out expressly in the Constitution -- is that the president is to take care that the laws are faithfully executed, and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.
But what I am saying is that sometimes issues of executive power arise, and they have to be analyzed under the framework that Justice Jackson set out. And you do get cases that are in this twilight zone, and they have to be decided when they come up based on the specifics of the situation.
LEAHY: But is that saying that there could be instances where the president could not only ignore the law but authorize others to ignore the law?
ALITO: Well, Senator, if you're in that situation, you may have a question about the constitutionality of a congressional enactment. You have to know the specifics.
LEAHY: Let's assume there's not a question of the constitutionality of an enactment. Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody, either from the intelligence agency or elsewhere, to go out and murder somebody and escape prosecution or immunize the person from prosecution, absent a presidential pardon?
ALITO: Neither the president nor anybody else, I think, can authorize someone to -- can override a statute that is constitutional. And I think you're in this area -- when you're in the third category, under Justice Jackson, that's the issue that you're grappling with.
LEAHY: But why wouldn't it be constitutional for the -- or wouldn't it be constitutional for the Congress to outlaw Americans from using torture?
ALITO: And Congress has done that, and it is certainly -- it is certainly an expression of the very deep value of our country.
LEAHY: And if the president were to authorize somebody or say they would immunize somebody from doing that, he wouldn't have that power, would he?
ALITO: Well, Senator, I think that the important points are that the president has to follow Constitution and the laws, and it is up to Congress to exercise its legislative power.
But as to specific issues that might come up, I really need to know the specifics. I need to know what was done and why it was done and hear the arguments of the issue.
LEAHY: Let's go to some specifics. Senator Specter mentioned FISA. And you're well aware of FISA, the Foreign Intelligence Surveillance Act. Certainly, you had to be involved with it, appropriately so, when you were a U.S. attorney.
This came in after the abuses of the '60s and '70s. We had had the President Nixon's enemies list, with breaking into doctors' offices and wiretapping of innocent Americans and so on. And after that, the Congress, in a strong bipartisan effort, passed the FISA legislation. We had that court that they can handle applications in secret for wiretaps or surveillance if necessary for national security.
LEAHY: Now, we just learned that the president has chosen to ignore the FISA law and the FISA court. He's issued secret orders, and according to the press and the president's own press conference, time after time after time, secret orders for domestically spying on American citizens without obtaining a warrant.
Do you believe the president can circumvent the FISA law and bypass the FISA court to conduct warrant-less spying on Americans?
ALITO: The president has to comply with the Fourth Amendment and the president has to comply with the statutes that are passed.
This is an issue I was speaking about with Chairman Specter that I think is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court. And there may be statutory issues involved: the meaning of the provision of FISA that you mentioned; the meaning, certainly, of the authorization for the use of military force. And those would have to be resolved.
And in order to resolve them, I would have to know the arguments that are made by the contending parties. On what basis is it claimed that there's a violation? On what basis would the president claim that what occurred fell within the authorization for the use of military force?
And then, if you got beyond that, there could be constitutional questions about the Fourth Amendment, whether it was a violation of the Fourth Amendment, whether it was a valid exercise of executive power.
LEAHY: But wouldn't the burden be on the government to prove that it wasn't a violation of Fourth Amendment if you're spying on Americans without a warrant? Especially when you have courts set up -- in this case, the FISA Court, which sets up a very easy procedure to get the warrant -- wouldn't the burden be on the government in that case?
ALITO: Well, Senator, I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful. I think that's correct.
LEAHY: Let me ask you another.
How does anybody even -- you talk about this may come before the 3rd Circuit or come before the Supreme Court, and I'll accept that. But how does somebody even get there? If you're having illegal secret spying on a person, how are they even going to know? Where are they going to get the standing to sue?
ALITO: Certainly if someone is the subject of a search, and they claim that the search violates a statute or it violates the Constitution, then they would have standing to sue. And they could sue in any court -- in the federal court that had jurisdiction.
LEAHY: Well, and I'm not asking these as hypothetical questions, Judge. People are getting very concerned about this.
We just found out -- again, not because the government told us, but because the press found out about it. And thank God that we do have a free press, because so much of the stuff that is supposed to be reported to Congress never is, and we, of course, hear about it when it's in the press.
But we found out that the Department of Defense was going around -- this makes me think of COINTELPRO during the Vietnam War.
LEAHY: They're going around the war, photographing and spying on people who are protesting the war in Iraq. They went, according to the press, and spied on Quakers in Vermont.
Now, I don't know why they spent all that money to do that. If they wanted to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time.
But I know some of these Quakers. I mean, in the Quaker tradition, they have been protesting war throughout this country's history.
Now, I worry about this culture we're getting. And I just want to make sure the courts -- the Congress is not going to stand up and say no. And the administration certainly is authorizing this. I want to make sure that the courts -- that the courts are going to say, "We'll respect your privacy. We'll respect your Fourth Amendment rights."
You know, if you ask somebody who's been spied on -- more on the spying -- would you agree -- and I think you did, but I want to make sure I am right on this -- do you agree they should have a day in court?
ALITO: Certainly. If someone has been the subject of illegal law enforcement activities, they should have a day in court.
And that's what the courts are there for, to protect the rights of individuals against the government or anyone else who violates their rights.
And they have to be absolutely independent and treat everybody equally.
LEAHY: And those Fourth Amendment rights are pretty significant, are they not?
ALITO: They are very significant.
LEAHY: I think they set us apart from most other countries in the world, to our betterment. And you were a prosecutor. I was a prosecutor. I think we could agree even in our past professions, it protects us.
ALITO: I agree, Senator. I tried to follow what the Fourth Amendment required when I was a prosecutor, and I regarded it as very important.
LEAHY: Well, let me go back to the last time we saw government excesses like this before FISA. When you worked in the Reagan administration, you argued to the Supreme Court that President Nixon's attorney general should have absolute immunity for domestic spying without a warrant given a case of willful misconduct.
In your memo, you said, "I do not question that the attorney general should have the immunity but, for tactical reasons, I would not raise the issue here."
Do you believe today that the attorney general would be absolutely immune from civil liability for authorizing warrantless wiretaps?
ALITO: No, he would not. That was settled in that case. The Supreme Court held that the attorney general does not have...
LEAHY: But you did believe that then?
ALITO: Actually, I recommended that that argument not be made. It was made, and I think it's important to understand the context of that. First of all...
LEAHY: You did say in the memo, "I do not question that the attorney general should have this immunity."
ALITO: That's correct. And the background of that, if I could just explain...
ALITO: ... very briefly, is that there we were not just representing the government. We were representing former Attorney General Mitchell in his individual capacity. He was being sued for damages, and we were in a sense acting as his private attorney.
And this was an argument that he wanted to make. This was an argument that had been made several times previously by the Department of Justice, during the Carter administration, and then just a couple of years earlier in Harlow v. Fitzgerald in the Reagan administration.
And I said I didn't think it was a good idea to make the argument in this case, but I didn't dispute that it was an argument that was there.
LEAHY: You don't have any question that the judiciary has a role to play here and there can be judicial checks on such things?
ALITO: No, absolutely, it is the job of the judiciary to enforce the Constitution.
LEAHY: Let's go on to a couple search cases. And I think we've indicated to you we'd bring these up. Doe v. Groody, Baker v. Monroe Township, those are unauthorized searches.
In Doe, the police officer had a warrant for a man at a certain address. When they arrived, they found his wife and 10-year-old daughter. They were not in the warrant. They posed no threat. But the officers detained them and strip-searched them, wife and the 10- year-old -- the 10-year-old girl.
Baker, a mother and three teenage children were detained and searched when they arrived at the home of the mother's adult son. They didn't live there. They weren't in the home. They were outside. hthey didn't pose a threat to the police, but they were ordered at gun point to lie on the ground, they were handcuffed, they were taken into the house and they were searched.
LEAHY: Doe, the strip search case of a 10-year-old girl, the officers didn't ask for permission to search anybody beyond the man they were looking for. In fact, the magistrate didn't give search warrant for anybody else.
But you went beyond that. You said that they were justified in strip-searching this 10-year-old and the mother. You went beyond the four corners of the search warrant the magistrate gave.
And one of your members of the 3rd Circuit, Judge Chertoff, who is now the head of Homeland Security and a former prosecutor, criticized your reasoning. He said that it would allow it to come dangerously close to displacing the critical role of the independent magistrate.
Do you continue to hold the position you took in your opinion, or do you now agree with the majority? They're right and you're wrong?
ALITO: Well, Senator, I haven't had occasion to think that what I said in that case was correct. But let me just explain what was going on there.
ALITO: The issue there was whether -- the first issue was whether the warrant authorized the search of people who were on the premises, and that was the disagreement between me and the majority. And it was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for the purposes of saying who could be searched.
ALITO: And I thought that it was. And I thought that it was quite clear that the magistrate had authorized a search for people who were on the premises. That was the point of disagreement.
I was not pleased that a young girl was searched in that case, and I said so in my opinion. That was an undesirable thing. But the issue wasn't whether there should be some sort of rule of Fourth Amendment law that a minor can never be searched. And I think if we were to...
LEAHY: But we both agree on that, Judge.
The only reason I bring up these two cases, it seems in both of them you went beyond the four corners of the search warrant, and you settled all issues in a light most favorable -- the majority in the opinion didn't, but you did -- in a light most favorable to law enforcement. In fact, in Baker, the majority said that.
And I worry about this, because I always worry that the courts must be there to protect individuals against an overreaching government. In this case, your position in the minority was that you protected what the majority felt was an overreaching government.
Am I putting too strong analysis on that?
ALITO: I do think you are, Senator.
ALITO: I think you need to take into account what was going on here.
The police officers prepared an affidavit. And they said, "We have probable cause to believe that this drug dealer hides drugs on people who are on the premises. And therefore, when we search, we want authorization not just to search him but to search everybody who's found on the premises, because we have reason to believe he hides drugs there."
ALITO: And the magistrate who issued the warrant said that the affidavit was incorporated into the warrant for the purpose of establishing probable cause.
And we're supposed to read warrants in a common-sense fashion because they're prepared by police officers for the most part, not by lawyers, and they're often prepared under a lot of time pressure. And it seemed to me that reading this in a common-sense fashion, what the magistrate intended to do was to say, "Yes, you have authorization to do what you asked us to do."
But even beyond that, the issue there was whether these police officers could be sued for damages. And they couldn't be sued for damages if a reasonable officer could have believed that that's what the magistrate intended to authorize. And I thought that surely a reasonable officer could view it that way.
Now, Judge Chertoff looked at it differently. And there are cases where reasonable people disagree. And that's all that was going on.
LEAHY: I know. You look at reasonable things -- I spent eight years in law enforcement. I don't know where any reasonable officer under those circumstances would feel they could strip-search a 10- year-old girl.
Let me go into another area. It's one that touched me in your statement yesterday.
You spoke eloquently of your father's experience, when he came to this country. The reason it touched me -- I was thinking, my maternal grandparents emigrated to America to Vermont speaking only Italian, coming from Italy to a new country.
LEAHY: And I know some of the problems they faced, these people speaking their strange language; my mother, as a child, learning English when she went to school -- "Why don't they speak like us? Why are they different than us?" -- and some of the obstacles that they faced.
And my father's case, my paternal grandfather, whom I never knew, named Patrick Leahy, died as a stonecutter in Very (ph), Vermont. My father was a young teen and had to go to work to support his mother, my grandmother, whom I also never knew. And the signs then were "No Irish need apply," or, "No Catholics need apply."
And I think you and I would be in total agreement that we're now in a different world, at least most of our country. And that we're better -- we're better people because we've done away with that.
We both understand, I think, in our core, I would hope, what happens if you have either ethnic prejudice or religious prejudice. In my case, my father, a self-taught historian, but he never was able to finish high school. I was the first Leahy to get a college degree; my sister the next one.
So with that in mind, there was something in your background that I was very troubled with. That's the Concerned Alumni of Princeton University, CAP.
LEAHY: This is a group that received attention because it was put together but it resisted the admission of women and minorities to Princeton. They were hostile to what they felt where people that did not fit Princeton's traditional mold: women and minorities.
Now, two prominent Princetonians -- one, Bill Frist, who is now the majority leader of the United States Senate -- in a committee roundly criticized CAP; Bill Bradley, who had joined it and then found out what it was, left it and roundly criticized it.
And yet you proudly, in 1985, well after -- well after the criticisms of this -- in your job application proudly put that you were a member of it, a member of Concerned Alumni of Princeton University, a conservative alumni group.
Why in heaven's name, Judge, with your background and what your father faced, why in heaven's name were you proud of being part of CAP?
ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.
ALITO: But since I put it down on that statement, then I certainly must have been a member at that time.
But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don't.
And I have tried to think of what might have caused me to sign up for membership. And if I did, it must have been around that time.
And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong. I had a lot of friends who were against the war in Vietnam, and I respected their opinions, but I didn't think that it was right to oppose the military for that reason.
And the issue -- although the Army unit was eventually brought back, the Navy and the Air Force units did not come back, and the issue kept coming up. And there were people who were strongly opposed to having any unit on campus.
And the attitude seemed to be that the military was the bad institution, and that Princeton was too good for the military, and that Princeton would somehow be sullied if people in uniform were walking around the campus, that the courses didn't merit getting credit, that the instructors shouldn't be viewed as part of the faculty.
And that was the issue that bothered me about that.
LEAHY: But, Judge, with all due respect, CAP was most noted for the fact that they were worried that too many women and too many minorities were going to Princeton.
In 1985, when everybody knew that's what they stood for, when a prominent Republican like Bill Frist and a prominent Democrat like Bill Bradley both had condemned it, you, in your job application, proudly stated this as one of your credentials.
Now, you strike me as a very cautious and careful person. And I say that with admiration, because a judge should be. But I can't believe that at 35, when you're applying for a job, that you're going to be anything less than careful in putting together such a job application.
LEAHY: And, frankly, I don't know why that was a matter of pride for you at that time.
My time is up. We'll come back to this. I have other questions.
ALITO: Well, Senator, as you said, from what I now know about the group, it seemed to be dedicated to the idea of bringing back the Princeton that existed at a prior point in time. And as you said, somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.
LEAHY: Or my background either, Judge -- or my background either.
SPECTER: Thank you, Senator Leahy.
HATCH: Welcome, Judge Alito. We appreciate you and the service that you have given. But much has been made about your membership in an organization called the Concerned Alumni of Princeton.
You mentioned this organization in your 1985 job application for a position in President Reagan's administration. And you've told us what you felt you know about your membership in that organization. So is it fair to say that you were not a founding member?
ALITO: I certainly was not a founding member.
HATCH: You were not a board member?
ALITO: I was not a board member.
HATCH: Or for that matter, you were not even an active member of the organization, to the best of your recollection?
ALITO: I don't believe I did anything that was active in relation to this organization.
HATCH: Well, some have suggested, as my friend from Massachusetts did yesterday, that by your membership in this organization, you were somehow against the rights of women and minorities attending colleges.
So let me just ask you directly, on the record, are you against women and minorities attending colleges?
ALITO: Absolutely not, Senator. No.
HATCH: You know, I felt that that would be your answer. I really did.
That's a good question, though. It's one that kind of overcomes the implications that you were.
ALITO: Senator, I had never attended a non-coeducational school until I went to Princeton. And after I was there a short time, I realized the benefits of attending a coeducational school.
HATCH: I'm glad that you mentioned in your opening statement yesterday that a decade earlier a person like yourself, and by this I assume you meant someone of Italian ancestry...
ALITO: I did, Senator. And someone not from any sort of exalted economic status.
HATCH: Modest background. Son of an immigrant father and a person who had gone to public schooling might not have been fully welcomed sometimes at Princeton at that time.
Now, people like me are not even sure what an eating club is, but it sure as heck does not sound like a cafeteria.
ALITO: No, it's something like a fraternity, except it's just a facility, it's a private facility where students eat. Traditionally, they were selective. They had a process like "bicker" and they chose people that they thought fit in with the group.
And I didn't choose to belong to an eating club. I belonged to a university facility called Stevenson Hall, which was named after Adlai Stevenson, and it was one of the most coeducational facilities on the campus.
ALITO: It was not selective. It was attractive to me because a lot of faculty members went there for lunch. There was a master who lived on the facility with his family. And it was an opportunity to have dinner and lunch to talk to faculty members.
HATCH: Well, much has been written about the just and egalitarian changes that took place at Princeton and other elite institutions in the 1960's, making them more welcoming to persons without an elite background.
It has been alleged by some -- most prominently, I might add, by a Democratic witness who was withdrawn at the last minute because of some politically embarrassing comments that he made -- that your membership in this group demonstrates your desire to maintain some old boy's network to the detriment of women and minorities.
Could you comment on that particular suggestion?
ALITO: I certainly had no such desire. And I think that what I did when I was a student at Princeton and my activities since then illustrate that.
As I said, when I was at Princeton, I was a member of this university facility, and it was open to everybody, and it was one of the most coeducational facilities on the campus.
And since graduating, I have actually been involved in a way in the admissions process. I was on the school's committee for a number of years and interviewed applicants to Princeton. And I think that shows my attitude toward the general way in which the university has been run.
HATCH: Well, ROTC programs, sir, are an excellent opportunity for young men and women to attend college and serve their country through service in the armed forces.
Now, there are actually more military officers who were ROTC students than went to West Point, the Naval Academy or the Air Force Academy. Now, that includes the eminent Colin Powell.
HATCH: You were a member of the ROTC; is that true?
HATCH: You were a proud member of the ROTC.
HATCH: Did you enjoy your time in the ROTC and in the Army afterward?
ALITO: I was proud to be a member. And the unit was thrown off the campus after -- well, the decision was made shortly after I joined the ROTC, and so I attended the ROTC classes on the campus during my junior year. But during my senior year, the unit had been expelled from the campus, and I had to go to Trenton State College occasionally to finish up my ROTC work.
HATCH: I heard a report yesterday that the ROTC building on the Princeton campus was actually firebombed at about the same time that American servicemen of college age were fighting in Vietnam. Is that accurate?
ALITO: That's correct. It was very extensively damaged.
ALITO: I don't recall that anybody was injured, but certainly there's a serious risk of injury whenever an arson takes place.
HATCH: Now, Judge Alito, some senators and left-wing activist groups have focused on one case involving the Vanguard Company, claiming that your consideration of that case amounts to some kind of ethical lapse.
Now, I would observe that the universal opinion is that you have unquestioned integrity and a record that is above reproach. I know we will hear from the American Bar Association later this week, but I know their highest rating includes the highest marks for integrity.
In fact, I have a copy of their recommendations here.
HATCH: On the issue of integrity, it says, "The man of integrity is self-defining. A nominee's character and general reputation in the legal community are investigated, as are his or her industry and diligence.
"Judge Alito enjoys an excellent reputation for integrity and character, notwithstanding a widespread awareness of the Vanguard and Smith Barney recusal issues.
"During his personal interview with us, Judge Alito was asked about the recusal matter in detail, and he acknowledged at length that he takes the matter of recusal very seriously and that the cases had, quote, 'slipped through,' unquote, the court screening process."
I won't read the whole matter, but let me just go toward the end: "Judge Alito explained to the satisfaction of the standing committee the special circumstances that resulted in the screen not working or otherwise not being applied in these limited matters," that is, the screening of cases, "and he further accepted responsibility for the errors. We accept his explanation and do not believe these matters reflect adversely on him."
"To the contrary, consistent and virtually unanimous comments from those interviewed include, quote, 'He has the utmost integrity.' 'He is a straight shooter, very honest and calls them as he sees them.' 'His reputation is impeccable.' 'You can find no one with better integrity.' 'His integrity and character are the highest caliber.' 'He is completely forthright and honest.' 'His integrity is absolutely unquestionable.' 'He is a man of great integrity.'
"On the basis of our interviews with Judge Alito with well over 300 judges, lawyers and members of the legal community nationwide, all of whom know Judge Alito professionally, the standing committee concluded that Judge Alito is an individual of excellent integrity."
Now, the reason I want to go into this is to, kind of, get rid of this problem that I think's as phony as anything I've ever seen in my time around here. Like I say, this case has been written about or reported on for weeks in bits and pieces, so that getting a clear picture of the facts is, indeed, a challenge, let alone getting a clear picture of the ethical issues involved, as well.
HATCH: And I know you've not had a chance to respond to any of it publicly, so I want to give you that chance now. Please take a few minutes and briefly describe the facts of the case, and then I have a few questions on the issues that are raised by the case.
And I appreciate the opportunity to address this, because a lot's been said about it, and very little by me.
And I think that once the facts are set out, I think that everybody will realize that in this instance I not only complied with the ethical rules that are binding on federal judges -- and they're very strict -- but also that I did what I've tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.
And is a case that came up in 2002, 12 years after I took the bench, and I acknowledged that if I had to do it over again, there are things that I would have done differently. And it's not because I violated any ethical standard, but it's because when this case first came before me, I did not focus on the issue of recusal and apply my own personal standard, which is to go beyond what the code of conduct for judges requires.
This was a pro se case, and we take our pro se cases very seriously.
ALITO: It's a case where the plaintiff was not represented by a lawyer. She was representing...
HATCH: She was paying for her own counsel and represented herself.
ALITO: She represented herself initially, and we take those very seriously. We give those just as much consideration, in fact more consideration in many respects than we do with the cases without lawyers because we take into account that somebody who is representing himself or herself can't be expected to comply with all the legal technicalities.
But, for whatever reason, our court system for handling the monitoring of recusals in these pro se cases is different from the system that we use in the cases with lawyers, and maybe that's because recusal issues don't come up very often in pro se cases.
But in any event, in a case with a lawyer, before the case is ever sent to us, we receive what are known as clearance sheets, and those are -- it's a sheet of -- it's a stack of papers, and it lists all the cases that the clerk's office is thinking of sending to us. It lists the parties in each case, and it lists the lawyers in each case, and it says, "Do you need to recuse yourself in any of these cases?"
And this is the time when the judges -- and this is the time when I focus on the issue of recusal. And I look at each case, I look at the parties, I look at the lawyers, and I ask myself, "Is there a reason why I should not participate in the case?"
Now, because this case, the Monga case, was a pro se case, it didn't come to me with clearance sheets. I just received the briefs, and it had been through our staff attorney's office.
They take a first look at the pro se cases, and they try to make sure -- they try to translate the pro se arguments into the sort of legal arguments that lawyers would make, to help the pro se litigants. And they give us a recommended disposition and a draft opinion.
And when this came to me, I just didn't focus on the issue of recusal. And I sat on the initial appeal in the case.
ALITO: And then after the case was decided, I received a recusal motion. And I was quite concerned because I take my ethical responsibilities very seriously.
So I looked into the question of whether I was required, under the code, because I just wanted to see where the law was on this. Was I required, under the code of conduct, to recuse myself in this case?
And it seemed to me that I was not. And a number of legal experts, experts on legal ethics, have now looked into this question, and their conclusion is: No, I was not required to recuse. But I didn't stand on that because of my own personal policy of going beyond what the code requires.
So, I did recuse myself. And, not only that, I asked that the original decision in the case be vacated -- that is, wiped off the books -- and that the losing party in the case, the appellant, Ms. Monga, be given an entirely new appeal before an entirely new panel.
And that was done. And I wanted to make sure she did not go away from this case with the impression that she had gotten anything less than an absolutely fair hearing.
And then, beyond that, I realized that the fact that this had slipped through in a pro se case pointed to a bigger problem, and that was the absence of clearance sheets.
So, since that time, I have developed my own forms that I use in my own chambers. And, for pro se cases now, there's -- I have a red sheet of paper printed up, and it's red so nobody misses it. And when a pro se case comes in, it initially goes to my law clerks. And they prepare a clearance sheet for me in that case and then they do an initial check to see whether they spot any recusal problem.
And if they don't, then there's a space at the bottom where they initial it. And then it comes to me, and there's a space at the bottom for me to initial to make sure that I focus on the recusal problem.
And in very bold print at the bottom of the sheet, for my secretary, it says: No vote is to be sent in in this case unless this form is completely filled out.
ALITO: So there are a number of internal checks now in my own office to make sure that I follow my own policy of going beyond what the code requires.
HATCH: In other words, there was never any possibility of you benefiting financially, no matter how that case came out, is that right?
ALITO: There was absolutely no chance and...
HATCH: You actually did recuse yourself when the question was eventually raised, even though you didn't have to?
HATCH: Did you genuinely feel you were either legally or ethically required to recuse under those circumstances?
ALITO: I did not think the code required me...
HATCH: You were just going beyond, which has been your philosophy...
HATCH: ... and your personal ethical approach to it.
Well, your own conclusion certainly is supported by the independent ethics experts that you mentioned, who have recently examined this case. I know one of them is Professor Geoffery Hazard from the University of Pennsylvania.
Now, that name stuck out in particular because I remember when a financial conflict-of-interest issue arose in connection with the nomination of Supreme Court Justice Stephen Breyer. In 1994, Senator Kennedy and I -- we strongly defended the Breyer nomination. I did, too.
And during the hearing, Senator Kennedy highlighted a letter from Professor Geoffery Hazard to answer Justice Breyer's critics.
Well, Professor Hazard, he has examined this matter and concluded that you, Judge Alito, handled it, in his words, "quite properly."
Now, Mr. Chairman, I'd like to put not only Professor Hazard's letter into the record, but the letter of Stephen Lubet, Thomas Morgan and Professor Ronald Rotunda, all of whom found that you made no ethical mistakes.
SPECTER: Without objection, all will be made a part of the record.
And let me just observe that these are all top ethics experts in our country today. And, you know, I have to say that Morgan of the George Washington University Law School, he happens to be the co- author of the nation's most widely read ethics textbook. Now, he was blunt in his assessment, saying that there was simply no basis for suggesting that you did anything improper.
So I'm glad to put those in the record.
Now, you actually did more than simply recusing yourself in this case. As you have explained, you have even set up a special system to make sure that this -- you know, that there never is going to be a question about this. And so you went farther than you were legally or ethically mandated to do.
ALITO: I did, Senator. And that is what I have tried to do throughout my time on the bench.
HATCH: When the new panel of judges looked at this case, how did they rule?
ALITO: They ruled the same way that we had, and we had ruled the same way that the district court did.
So let me just clarify this one more time, and you tell me if this accurately describes the situation.
You did not believe that you were ethically or legally required to recuse yourself in this case. All the ethics experts agree with you. Yet you recused yourself anyway when the issue was raised.
The party raising the issue got an entirely new hearing before a new and different panel of judges, who ruled the same way that you did originally.
Does that about sum it up?
HATCH: Well, I have to say, Judge, that you went above and beyond your ethical duties here. And I think you're to be applauded, not to be criticized, for your rigorous attention to judicial impartiality and integrity.
Now, let me just go into another matter here before I finish here.
HATCH: Some Supreme Court nominees have had legislative experience. The justice you will replace, Justice O'Connor, served in the Arizona State Senate. Justice Breyer was chief counsel to Senator Kennedy when he chaired this committee. I have tremendous respect for both of them.
Judge Alito, you have had no legislative experience, and there are those of us who are concerned that your many years of experience in the executive branch may have biased you in favor of executive power. Clearly, some feel that way, that that's a possibility.
Yesterday, one of my Democratic colleagues claimed that your instincts are to defer to the executive, to grant prosecutors whatever power they seek -- that sort of thing. And I suppose that in 15 years on the appeals court, that you have participated in what I would estimate nearly 5,000 cases.
You have had many opportunities to review challenges to executive power. Is that correct?
HATCH: Well, I am thinking of cases such as the United States v. Kithcart, where you reversed a criminal conviction because the police lacked probable cause for a search; or Bolton v. Southeastern Pennsylvania Transportation Authority, where you ruled for a former maintenance custodian for a public transportation agency, concluding that the Fourth Amendment barred a suspicionless drug test.
I want to make it clear that simply giving such examples of results on the other side of the ledger does not by itself prove that you are a good judge or a bad judge. Without also talking about the facts and the law in each case, merely tabulating winners and losers does not offer much.
But since my colleagues on the other side occasionally have their tally sheets, and actually some have even claimed that you may be biased when certain results seem to suit them, could you give me some more examples of cases where you voted against executive powers?
ALITO: Yes, certainly, Senator. Brinson v. Vaughn is an example of that. That was a habeas case involving a murder conviction. And I concluded, and my panel concluded, and I wrote the opinion, saying that there had been racial discrimination or enough to have a hearing on the possibility of racial discrimination in the selection of the jury in that case. And, therefore, we reversed the decision of the district court.
Williams v. Price is another example. There, we found -- and that was another murder case. And so what's involved here in these cases is really the most important thing that is litigated on the criminal side in the federal courts. That was a case where the district court had denied the writ of habeas corpus and we reversed, because we found that there had been an error in excluding testimony that showed racial bias on the part of the jurors.
There was another murder case, United States v. Murray. This was a federal prosecution, and we had to reverse there because we concluded, and I wrote the opinion there, that the prosecutors had introduced evidence...
HATCH: You could go on and on, but my point is that in approximately 5,000 cases, you can find just about anything you want to to pluck out and say, oh he didn't do right here, or he did right here.
I mean, the fact of the matter is that you, as far as I can see, have always done your utmost to live up to your responsibilities as a federal court judge, and that you have done so throughout your 15 years on the bench, even though members of this illustrious body, the United States Senate, might differ with you on occasion, and others might also.
HATCH: But I don't know a judge alive who's been on the bench 15 years that doesn't have cases that some of our illustrious members disagree with. So that's the point I am trying to make.
Let me just shift here for a second. I am interested in exploring the kind of judge you are. As you can see, some of these questions have all been directed toward what kind of a judge you are.
But I am interested in what is often referred to as a judicial philosophy, which means how you understand the role the judges play in our system of government, in general, and how judges should go about deciding cases, in particular.
I would like to explore this by giving you a chance to expand on a few things that you have said or written.
In your hearing in April 1990, which my friend, Senator Kennedy chaired, he asked you: What qualities are most important for an appellate judge?
You listed open-mindness to litigants' arguments, close attention to the particular facts and law in the case and trying not to import a judge's own view of the law that should be applied in the case.
Now, in your statement yesterday, you said that your experience on the appeals court has taught you a lot about, as you put it, quote, "the way in which a judge should go about the work of judging."
What has that experience taught you? How has it shaped the answer you gave before you went on the bench?
ALITO: My general philosophy is that the judiciary has a very important role to play. And, in speaking with Senator Leahy, I highlighted some of that.
But the judiciary has to protect rights. And it should be vigorous in doing that. And it should be vigorous in enforcing the law and in interpreting the law in accordance with what it really means and enforcing the law even if that's unpopular.
But, although the judiciary has a very important role to play, it's a limited role. It is not -- it should always be asking itself whether it is straying over the bounds, whether it's invading the authority of the legislature, for example, whether it is making policy judgments rather than interpreting the law.
ALITO: And that has to be a constant process of reexamination on the part of the judges. And that's the role that the judiciary should play.
Now, my experience on the bench has really reinforced for me the importance of the appellate process and the judicial process. And I described it yesterday.
And that is the process of really engaging the arguments that are made, reading the briefs, and approaching it with an open mind, always with the possibility of changing your mind based on the arguments and based on the facts of the particular case.
HATCH: Well, another context in which you discussed your judicial philosophy is the questionnaire that you received from this committee, which asked for your views on judicial activism.
Now, the very first words of your answer were as given here today, "that the Constitution sets forth the limited role for the judicial branch."
Now, to hear some of my colleagues describe it yesterday, judges have virtually unlimited power to right all wrongs, protect everyone from everything and make sure that government officials everywhere behave themselves.
As an appeals court judge, the decisions of the Supreme Court add to the limitations or constraints you must observe, in my opinion.
I'm wondering whether you believe this notion of limited judicial power applies also to the Supreme Court; and if so, how it applies when there is no higher court than the Supreme Court.
HATCH: Does that mean that the Supreme Court should perhaps be even more cautious, even more self-restrained, since there is no appeal from any errors that they might make?
ALITO: I think that's a solemn responsibility that they have. When you know that you are the court of last resort, you have to make sure that you get it right.
It is not true, in my judgment, that the Supreme Court is free to do anything that it wants. It has to follow the Constitution and it has to follow the laws.
Stare decisis, which I was talking about earlier, is an important limitation on what the Supreme Court does. And although the Supreme Court has the power to overrule a prior precedent, it uses that power sparingly, and rightfully so. It should be limited in what it does.
HATCH: Another place in which you have written about what might be called judicial philosophy is in your opinions; not that you've spent much time opining about such matters in the abstract. Nevertheless, I would like you to expand a little on a few of the things you have written in this regard.
For instance, in New Jersey Payphone Association v. Town of West New York -- this was a 2002 case -- for example, you wrote the following. Quote, "It is well established that when possible federal courts should generally base their decisions on nonconstitutional rather than constitutional grounds. The rationale behind the doctrine of avoiding constitutional questions except as a last resort are grounded in fundamental constitutional principles," unquote.
Can you explain those fundamental principles and whether you think the Supreme Court, as well as the appeals court, should follow this imperative to avoid constitutional decisions?
ALITO: I do. I think that's a very important principle.
As I recall, Justice Brandeis, in the Ashwander case, was the one who articulated it most eloquently.
ALITO: And it's, therefore, an important reason. Because a constitutional decision of the Supreme Court has a permanency that a decision on an issue of statutory interpretation doesn't have.
So if a case is decided on statutory grounds, there's a possibility of Congress amending the statute to correct the decision if it's perceived that the decision is incorrect or it's producing undesirable results.
I think that my philosophy of the way I approached issues is to try to make sure that I get right what I decide. And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don't have to be decided, and not going to broader grounds for a decision when a narrower ground is available.
HATCH: You've addressed issues such as abortion at different points in your career. You addressed it when you worked for the solicitor general. You might have addressed it in several cases on the appeals court.
It might be tempting to say that if you came to one conclusion while in one role, you will necessarily come to the same conclusion on the issue while in a different role.
Now, I think you've explained it pretty well, but let me just ask one other question: Could you please explain how judges address issues differently than advocates? And how does the requirement of the case or a controversy or a limitations such as a particular standard of review shape how judges address these issues?
ALITO: The standards of review are very important, and often they are prescribed by Congress. Congress gives us authority, jurisdiction to decide certain questions, but it says that you don't have the authority to go back and do what you would have done if you were the trial judge or if you were the administrative state. You have a limited authority of review.
And I think it's very important for us to stay within the bounds of the authority that Congress gives us. And I think that's a very important part of our function.
SPECTER: Thank you, Senator Hatch.
We will now take a 15-minute break and reconvene at 11:20.
SPECTER: We will resume the hearing for Judge Alito on confirmation to the Supreme Court of the United States.
And we now turn in sequence to Senator Kennedy.
Let's not forget to start the clock.
KENNEDY: Thank you very much, Mr. Chairman.
There was one interesting omission between the exchange of yourself and Senator Hatch on the whole Vanguard issue in question, and that was the promise and pledge that you gave to this committee when you were up for the circuit court. I have it right here.
It said, "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings Loan of Rochester, New York."
You remember that response. That was a pledge and promise to the committee that you would recuse yourself. Did you not?
ALITO: Yes, it was, Senator.
And as I said in answering Senator Hatch's question, if I had it to do over again, I would have handled this case differently. There were some oversights.
KENNEDY: I'm sure you might have. We've had a number of different explanations for this.
I'd like to ask the clerk if they would take down and show the judge, if you'd like to be refreshed about the number of times the name "Vanguard" appears on the brief and the number of times "Vanguard" appears on the opinion, which I believe you authored.
Would you like to -- if I could get a clerk to show those two documents.
ALITO: Senator, I am familiar with that. I do not really need to see the document.
ALITO: Senator, the name "Vanguard" certainly appears on the briefs. And it appeared in the draft opinion that was sent to us by the staff attorney's office.
I just did not focus on the issue of recusal when it came up. That was an oversight on my part, because it didn't give me the opportunity to apply my personal policy of going beyond what the code requires.
KENNEDY: So the individuals that responded on the ethical issues that were involved in this case, did they know that you had pledged and promised to this committee that you would recuse yourself?
ALITO: I believe that they did. I believe that some of them at least addressed that specifically in...
KENNEDY: Do you know specifically whether they did or not?
ALITO: I believe they addressed it in their letters, so they must have been aware of it.
KENNEDY: They understood that you had promised this committee that you would recuse yourself? Your testimony now is that those that made a comment upon your ethical behavior knew as a matter of fact that you had pledged to this committee that he would recuse yourself from the Vanguard cases?
ALITO: Professor Hazard I know addressed that directly in his letter. I think Professor Rotunda addressed it in his letter. So, obviously, if the letters addressed the issue, they were aware of what was said on the Senate questionnaire.
KENNEDY: And the final answer -- we'll move on -- is that you saw the name "Vanguard" on the briefs and you obviously saw them on the opinion. You're the author of the opinion. But your testimony here now is even though you saw the names on that, it did not come to mind at that moment that you had made the pledge and promised to this committee that you would recuse yourself?
ALITO: I did not focus on the issue of recusal, I think, because 12 years had gone by and the issue of a Vanguard recusal hadn't come up.
And one of the reasons why judges tend to invest in mutual funds is because they generally do not present recusal problems. And pro se cases in particular generally don't present recusal problems.
ALITO: And so no light went off. That's all I can say. I didn't focus on the issue of recusal.
KENNEDY: Well, this is important, when the lights do go on, and when the lights do go off. Because actually the accumulation of value of Vanguard had increased dramatically during this period of time, had it not?
ALITO: It had, Senator, but I had nothing to gain financially by...
KENNEDY: No, I'm not asking to get on to the questions of gain or loss or whatever.
I'm just asking about the pledge to the committee which you had given and the fact that the Vanguard was so obvious both in the brief and in the opinion which you wrote, and the fact that during this period of time there had been a sizable increase in the total value of Vanguard. And as all of us know, if you're dealing with a case dealing with IBM, you can't have even a single share in that.
The point about all of this is, is that so that interested parties that come before the courts are going to believe, not only in reality, but in appearance, that they're going to get a fair shake.
And that, you have said, was certainly your desire. And I certainly commend you for at least that desire. But in this case, this was something we'd recognize is extremely important.
Judge, in just the past month, Americans have learned that the president instructed the National Security Agency to spy on them at home.
KENNEDY: And they've seen an intense public debate over when the FBI can look at their library records.
And they've heard the president announce that he has accepted the McCain amendment barring torture. But then just days later, as he signed it into law, the president's decided he still could order torture whenever he believed it was necessary: no check, no balance, no independent oversight.
So, Judge, we all want to protect our communities from terrorists. But we don't want our children and grandchildren to live in an America that accepts torture and eavesdropping on American citizens as a way of life.
We need an independent and vigilant Supreme Court to keep that from happening, to enforce the constitutional boundaries on presidential power and blow the whistle when the president goes too far.
Congress passes laws, but this president says that he has the sole power to decide whether or not he has to obey those laws. Is that proper? I don't think so.
But we need justices who can examine this issue objectively, independently and fairly. And that's what our founders intended and what the American people deserve.
So, Judge, we must know whether you can be a justice who understands how to strike that proper balance between protecting our liberties and protecting our security, a justice who will check even the president of United States when he has gone too far.
Chief Justice Marshall was that kind of justice when he told president Jefferson that he had exceed his war-making powers under the Constitution.
KENNEDY: Justice Jackson was that kind of president (sic) when he told President Truman that he could not use the Korean War as an excuse to take over the nation's steel mills.
Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes. And Justice O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens.
So I have serious doubts that you'd be that kind of justice. The record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials.
And your record shows that, even over the strong objections of other federal judges -- other federal judges -- you bend over backward to find even the most aggressive exercise of executive power reasonable.
But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of powers on the rights and liberties of individual citizens.
And so, Judge Alito, we need to know whether the average citizen can get a fair shake from you when the government is a party, and whether you will stand up to a president -- any president who ignores the Constitution and uses arguments of national security to expand executive power at the expense of individual liberty; whether you will ever be able to conclude that the president has gone too far.
Now, in 1985, in your job application to the Justice Department, you wrote, "I believe very strongly in the supremacy of the elected branches of government." Those are your words, am I right?
ALITO: They are and that's a very inapt phrase.
ALITO: It's an inapt phrase, and I certainly didn't mean that literally at the time, and I wouldn't say that today.
The branches of government are equal. They have different responsibilities, but they are all equal and no branch is supreme to the other branches.
KENNEDY: So you've changed your mind?
ALITO: No, I haven't changed my mind, Senator, but the phrasing there is very misleading and incorrect.
What I was getting at is the fact that our Constitution gives the judiciary a particular role and there are instances in which it can override the judgments that are made by Congress and by the executive. But for the most part, our Constitution leaves it to the elected branches of government to make the policy decisions for our country.
KENNEDY: All right. I want to move on.
Mr. Chairman, the clock is off. There are a number of points I want to cover and be timely, so I leave it up to the chair...
SPECTER: Senator Kennedy, you're correct. We have a timer over here. We're trying to get the timer fixed.
KENNEDY: If I would know when I have 10 minutes left...
SPECTER: Let us see if we can't get that clock in the view of Senator Kennedy so he can see it when he's questioning the witness.
KENNEDY: Thank you. Thank the chair.
SPECTER: And give Senator Kennedy two more minutes.
KENNEDY: There you go. There you go.
KENNEDY: Be quiet over there.
Judge, quite frankly, your record shows you still believe in the supremacy of the executive branch, Judge Alito. I believe there is a larger pattern in your writings and speeches and cases that show an excess of almost single-minded deference to the executive power without showing a balanced consideration of the individual rights of people.
So let's discuss some of your opinions. These cases deal specifically with one form or another of executive power, the power of authorities to intrude in homes, search people who were not even suspected of committing a crime.
KENNEDY: The Mellot v. Hemer (ph), where the U.S. Marshal Service forcibly evicted a family of dairy farmers from their home and their farm. These farmers had no criminal record and were suspected of no crime.
But after they fell on very hard times, the property was sold at a public auction. U.S. marshals were sent to evict them.
Remember, the marshals were sent to carry out a civil action, not a criminal action, a civil action. These farmers had committed no crime.
Now, I respect the U.S. marshals. They have a tough job and they do it with great professionalism. But in this case, the marshals entered the house with loaded guns. The family was unarmed, did not resist, but still the marshals pointed loaded guns at their heads, chests and backs.
One marshal chambered a cartridge in his gun. Twice, they pushed the wife into her chair.
The trial judge held there was enough evidence in this case to have a jury review the facts, hear the testimony and decide whether the marshals used too much force to evict these farmers.
But that did not sit well with you, Judge Alito. You grabbed the case away from the jury. You wouldn't let them hear the testimony or make up their own mind about whether the marshals had gone too far.
No, you simply substituted your judgment for the jury's and decided that the marshals' conduct was as a matter of all objectively reasonable. Judgment for the marshals, no jury of their peers for the farmers.
Why, Judge Alito? Your colleague on the 3rd Circuit, Judge Rendell, called the marshals' conduct Gestapo-like -- Gestapo-like. She said seven marshals detained, terrorized the family and friends, ransacked a home while carrying out an unresisted civil eviction. The trial judge thought the decision should be made by the jury. Why didn't you let the jury exercise an independent check on the marshals' actions?
ALITO: There was some additional information regarding these people that was important, and that was that they had threatened other people, as I recall. And there was evidence about the possession of weapons and evidence that they would be dangerous. That was the basis on which the marshals acted the way they did.
This was a case in which the marshals were sued for civil damages. And they asserted what's called the qualified immunity defense, and that means that if a reasonable person could have thought there was a basis for doing what they did, then they are entitled not to be tried. That is the law. I didn't make up that law.
SPECTER: Let him finish, Senator Kennedy.
ALITO: That's not a legal standard that I made up, and that was the way I saw the case, and that's the way the other judge who was in the majority saw the case.
Now, these cases involve difficult line-drawing arguments at times, and I respect Judge Rendell's view of this very much, but reasonable people will view these things differently.
KENNEDY: Well, the issue then was the actions of the marshals, whether it was reasonable -- whether it was reasonable. And here you have a judge, Judge Rendell, saying it was Gestapo-like to talk about terrorizing a family and ransacking a home while carrying out an unresisted civil eviction.
Aren't juries there to make a judgment and determination whether it was reasonable or not reasonable? And didn't your action take that away because you ruled as a matter of law that their conduct was reasonable?
ALITO: The Supreme Court has told us how we have to handle this issue, and it is for the judiciary to decide in the first place whether a reasonable officer could have thought that what the officer was doing was consistent with the Fourth Amendment. We have to make that decision.
Now, if we decide that there's an issue of fact, if there's a dispute in the testimony about the evidence that the marshals had or about what these individuals were doing at the time when the search was taking place or what the marshals did, then certainly those factual issues have to be resolved by the jury.
KENNEDY: That's, I think, certainly the view of Judge Rendell.
Let me move on, if I could, to the Doe v. Groody. And I know that you have -- Senator Leahy has talked about this and gone over the factual situation about the strip-searching of a 10-year-old girl.
KENNEDY: This case, the police got a warrant to search the house. They found the suspect outside, marched him inside, where they encountered the wife and 10-year-old.
The police took the wife and daughter upstairs, told them to remove their clothing, physically searched them, not as a protective frisk or search for weapons but in the hopes of finding contraband.
And that is when Judge Chertoff, the formal chief federal prosecutor for New Jersey, the former head of the Criminal Division in the Justice Department, President Bush's current secretary of homeland security, held that the police went too far.
As Judge Chertoff said, a search warrant for a premise does not constitute a license to search everyone inside. You differed. You differed.
And you've reviewed with us your reasoning for it: the fact that you felt that the affidavit which had been filed by the police should be included in the search warrant.
Judge Chertoff takes strong exception to that, as does the Fourth Amendment -- as does the Fourth Amendment.
As you mentioned yourself, the affidavit represents the police's view about the situation. But the search warrant is what is approved by the judge. Those are two different items that come up every time, in many, many instances.
Why did you feel that, under these circumstances -- under these circumstances -- that that affidavit should be included, the result of which we have the strip-searching of a 10-year-old -- a 10-year-old that will bear the scars of that kind of activity probably for the rest of her life?
The Fourth Amendment is clear. We want to protect the innocents. We want to have a search warrant that is precise, so that the police understand it and the person that it's being served to understands it.
KENNEDY: That was all spelled out in the judgment.
But you went further than that. You said, "Well, in this case, we're going to include the affidavit." And as a result of your judgment in this case and the inclusion of the Affidavit, we have the kind of conduct against this 10-year-old which she will never forget.
ALITO: Senator, I wasn't happy that a 10-year-old was searched.
Now, there wasn't any claim in this case that the search was carried out in any sort of an abusive fashion. It was carried out by a female officer. And that wasn't the issue in the case.
And I don't think there should be a Fourth Amendment rule -- but, of course, it's not up to me to decide -- that minors can never be searched. Because if we had a rule like that, then where would drug dealers hide their drugs? That would lead to greater abuse of minors.
The technical issue in the case was really not whether a warrant can incorporate an affidavit. There's no dispute that a judge or a magistrate issuing a warrant can say that the affidavit is incorporated. And that was done here.
The issue was whether -- and it was a very technical issue -- was it incorporated only on the issue of probable cause, or was it also incorporated on the issue of who would be searched?
If the magistrate had said in the warrant, "This warrant is incorporated as to the people who may be searched" and then in the affidavit it said -- and it did say this very clearly -- "We want authorization to search anybody who's on the premises," then there'd be no problem whatsoever.
ALITO: The warrant said it was incorporated on the issue of probable cause. And I thought that reading it in a common-sense fashion, which is what we're supposed to do, that necessarily meant that the magistrate said, "There was probable cause to search anybody who's found on the premises, and that's what I'm authorizing you to do."
KENNEDY: And that is what Judge Chertoff took strong exception in a very eloquent statement in talking about the protections and the reasons for the strict interpretation for the warrant.
Judge Alito, your 3rd Circuit decisions don't exist in a vacuum.
Mr. Chairman, at this point, since there has been some questions about whether we are flyspecking these cases, I'd like to include in the appropriate place in the record the Knight Ridder studies that concluded that Judge Alito never found a government search unconstitutional; the Yale Law School professors -- the rule for government is almost -- every case reviewed, this was their conclusion; The Washington Post stories with regard to the cases; and also Professor Cass Sunstein's conclusions that -- the studies that Judge Alito rules against individuals in 84 percent of the time.
SPECTER: In accordance with our practices, if you want them in the record they will be there, without objection.
So just looking at your writings and speeches, Judge Alito, you have endorsed the supremacy of the elected branch of government. You've clarified that today.
KENNEDY: You argued that the attorney general should have the absolute immunity, even for actions that he knows to be unlawful or unconstitutional; suggested that the court should give a president's signing statement great deference in determining the meaning and the intent of the law; and argued, as a matter of your own political and judicial philosophy, for an almost all-powerful presidency.
Time and again, even in routine matters involving average Americans, you give enormous, almost total, deference to the exercise of governmental powers.
So I want to ask you about some of the possible abuses of the executive power and infringement on individual rights that we're facing in the country today.
Judge Alito, just a few weeks ago, by a vote of 90-9, the Senate passed a resolution sponsored by Senator John McCain to ban the torture, whether it be here at home or abroad. As a former POW in Vietnam, John McCain knows a thing or two about torture.
For a long time, the White House threatened to veto the legislation, and finally Senator McCain met with the president and convinced him to approve the anti-torture law.
Two weeks after that, the president issued a signing statement -- no publicity, no press release, no photo-op -- where he quietly gutted his commitment to enforce the law banning torture. The president stated, in essence, that whenever the law of the land might be, whatever Congress might have written, the executive branch has the right to authorize torture without fear of judicial review.
Now, I raise this issue with you, Judge -- I raise this with you because you were among the early advocates of the so-called presidential signing statements when you were a Justice Department official.
You urged President Reagan to use the signing statements to limit the scope of laws passed by Congress, even though Article I of the Constitution vests all legislative powers in the Congress.
You urged the president to adopt what you described as a "novel proposal" to issue statements aimed at undermining the courts use of legislative history as a guide to the meaning of the law.
KENNEDY: You wrote these words: "The president's understanding of the bill should be just as important as that of Congress."
With respect to the statement issued by President Bush reserving his right to order torture, is that what you had in mind when you wrote "the president's understanding of the bill should be just as important as that of Congress"?
ALITO: When I interpret statutes -- and that's something that I do with some frequency on the Court of Appeals -- where I start and often where I end is with the text of the statute. And if you do that, I think you eliminate a lot of problems involving legislative history and also with signing statements.
So I think that's the first point that I would make.
Now, I don't say I'm never going to look at legislative history. And the role of signing statements in the interpretation of statutes is, I think, a territory that's been unexplored by the Supreme Court. And it certainly is not something that I have dealt with as a judge.
This memo was a memo that resulted from a working group meeting that I attended. The attorney general had already decided that, as a matter of policy, the Reagan administration would issue signing statements for interpretive purposes and had made an arrangement with the West Publishing Company to have those published.
And my task from this meeting was to summarize where the working group was going and where it had been. And I said at the beginning of the memo that this was a rough first effort to outline what the administration was planning to do. And I was a lawyer for the administration at the time.
And then I had a big section of that memo saying "and these are the theoretical problems." And some of them are the ones that you mentioned.
ALITO: And that's why I left it. And all of that would need to be explored to go any further.
KENNEDY: Judge Alito, in the same signing statement undermining the McCain anti-torture law, the president referred to his authority to supervise the unitary executive branch.
That is an unfamiliar term to most Americans, but the Wall Street Journal describes it as the foundation of the Bush administration's assertion of power to determine the fate of enemy prisoners, jailing U.S. citizens as enemy combatants without charging them.
President Bush has referred to this doctrine at least 110 times, while Ronald Reagan and the first President Bush combined used the term only seven times. President Clinton never used it.
Judge Alito, The Wall Street Journal reports that officials of the Bush administration are concerned that current judges are not buying into its unitary executive theory. So they're appointing new judges more sympathetic to their executive power claims. We need to know whether you're one of those judges.
In the year 2000, in a speech soon after the election, you referred to the unitary executive theory as the gospel and affirmed your belief in it.
So, Judge Alito, the president is saying he can ignore the ban on torture passed by Congress, that the courts cannot review his conduct.
In light of your lengthy record on the issues of executive power, deferring to the conduct of law enforcement officials even when they are engaged in conduct that your judicial colleagues condemn -- Judge Chertoff, Judge Rendell -- subscribing to the theory of unitary executive which gives the president complete power over the independent agencies, the independent agencies that protect our health and safety, believing that the true independent special prosecutors investigate wrongdoing are unconstitutional, referring to the supremacy of the elected branches over the judicial branch, and arguing that the court should give equal weight to a president's view about the meaning of the laws that Congress has passed, why should we believe that you'll act as an independent check on the president when he claims the power to ignore the laws passed by Congress?
ALITO: Well, Senator, let me explain what I understand the idea of the unitary executive to be. And I think there has been some misunderstanding, at least as to what I understand this concept to mean.
I think it is important to draw a distinction between two very different ideas. One is the scope of executive power. Often presidents -- or occasionally presidents -- have asserted inherent executive powers not set out in the Constitution. We might think of that as, you know, how big is this table, the extent of executive power.
The second question is: When you have the power that is within the prerogative of the executive, who controls the executive?
Those are separate questions. The issue of, to my mind, the concept of the unitary executive, does not have to do with the scope of executive power. It has to do with who within the executive branch controls the exercise of executive power. The theory is the Constitution says the executive power is conferred on the president.
ALITO: Now, the power that I was addressing in that speech was the power to take care that the laws are faithfully executed, not some inherent power but a power that is explicitly set out in the Constitution.
KENNEDY: Would that have any affect or impact on independent agencies?
ALITO: The status of independent agencies I think is now settled in the case law.
This was addressed in Humphrey's Executor way back in 1935 when the Supreme Court said that the structure of the Federal Trade Commission didn't violate the separation of powers and that it was revisited and reaffirmed in Wiener v. the United States in 1958.
KENNEDY: So your understanding of any unitary presidency, that they do not therefore have any kind of additional kind of control over the independent agencies than has been agreed to by the Congress and signed into law at the prior time?
ALITO: I think that Humphrey's Executor is a well-settled precedent.
What the unitary executive I think means now, we would look to Morrison I think for the best expression of it. And it is that things cannot be arranged in such a way that interfere with the president's exercise of his power on a functional -- taking a functional approach.
KENNEDY: I want to just mention this signing of the executive understanding of the legislation that we passed banning torture, what the president signed on to.
"The executive branch shall construe the Title X and Division A relating to detainees in a matter with the constitutional authority of the president to supervise the unitary executive branch as the commander in chief and consistent with the constitutional limitations on judicial power."
KENNEDY: Therefore, it's the warning that the courts are not going to be able to override the judgments and decisions. That's certainly my understanding of those words, which will assist in achieving the shared objective of the Congress and the president.
That statement there, in terms of what was agreed to by Congress, 19-0, by John McCain, by President Bush, and then we have this signing document which effectively just undermines all of that -- it is something that we have to ask ourselves, whether this is the way that we understand the way that laws are to be made.
It was very clear in the Constitution who makes the laws. The executive -- Congress and the Senate makes it. The president signs it. And that's the law. That's the law.
These signing statements, and recognizing the signing statements and giving these value in order to basically undermine that whole process is a matter of enormous concern.
SPECTER: Judge Alito, Senator Kennedy had noted that there were substantial gains, as he put it, in the Vanguard stock, or the Vanguard the asset, during the period of time that you held them. But he did not give you an opportunity to answer that. I don't like to interrupt in the midst of a series of questions, but you can respond to that if you care to do so at this time.
ALITO: Well, Mr. Chairman, I had additional holdings in Vanguard during my period of service. But I think the important point as far as that is concerned is that nobody has claimed that I had anything to gain financially from participating in this case. And I certainly did not.
GRASSLEY: Well, I have a much more positive view of you than has just been expressed.
And I can't be cynical about your judging. In fact, maybe from what I have criticized the Supreme Court in a long period of time, I might feel you're too cautious, too willing to follow precedent.
But I think in regard to Vanguard, the point ought to be made that you did nothing wrong. You didn't violate any law or any ethics rule.
And the point's being made that maybe you did not remember a promise you had made to this committee -- well, let me assure you, don't lose any sleep over that. If senators kept every word they made to their constituents, there wouldn't be any senators left.
And so there's always shortness of memory, and without ill intent, whether it's on the part of a senator or whether it's on the part of Judge Alito.
I hope the viewing public is impressed by your intellect and your legal capabilities and your judicial record. Clearly, they're seeing that you have the kind of background and practical experience that it takes to be a Supreme Court justice.
In addition, I think you've demonstrated now, after five or six of us asking your questions, that you're very candid in answering questions so far and being honest with our committee.
These nomination hearings that we're holding are, of course, a unique opportunity for all of us, senators and the public, to explore more in-depth how Supreme Court nominees view the roles of justice, how a nominee approaches constitutional interpretation and precedent, as well as a nominee's appreciation of the separate branches of government.
GRASSLEY: And you've been involved in all of those discussions already this morning.
It's unfortunate that some extreme liberal groups have attacked your commitment to the law, as well as your honesty and integrity. But now you're doing your best, and I think doing a good job of setting the record straight.
So before I ask you some questions, I want to bring up some of these issues that have been brought up against you. And you do not necessarily have to respond in any way. I just think it's points that ought to be made as I see you. And I'm only one senator, but I think I've had a good opportunity to study you and particularly your cases.
I would like to address these ethics charges that we have seen generated by some of the left-wing liberal interest groups and even my colleagues on the other side of the aisle. These allegations are just plain absurd.
And you're going to see some charts that hopefully will be held up that I'm not going to point to, but bring up some of these charges. Because I think that we want to prove that these allegations are absurd.
It is puzzling to me that anyone would actually believe these claims, especially when people who know Judge Alito the best, people who have known him for a long period of time and who've worked closely with him, better than any of our senators would know you, they all say you're a man of honor, integrity and principle. They have no question about that.
The fact is that the ABA looks at issues such as integrity and ethics when it evaluates a judicial nominee. And it found you, Judge Alito, to be unanimously well qualified, a rating that Democrats have always claimed to be a gold standard. The ABA didn't find a problem with Judge Alito's record.
GRASSLEY: Moreover, several leading ethicists from across the political spectrum reviewed these allegations and they all agreed that you, Judge Alito, acted properly and that none of these charges have merit.
It says, in a letter from George Mason University president law professor Robert Rotunda, already referred to by members and in a letter to Chairman Specter, quote, "Neither federal statute nor federal rules nor model code of judicial conduct of the American Bar Association provide that a judge should disqualify himself in any case involving a mutual fund company" -- and they give as examples Vanguard, Fidelity, T. Rowe Price -- "simply because a judge owns mutual funds that the company manages and holds in trust for a judge," end of quote.
So, basically, according to law, Judge Alito was not required to recuse himself in the Vanguard case, but he did it anyway.
So let me repeat, five leading ethicists all say Judge Alito did nothing wrong. Professor Thomas Morgan, quote: "In my opinion, Judge Alito's participation in the Vanguard case was in no way improper nor does it give any reason to doubt that he would fully comply with his ethical responsibilities if confirmed."
And Professor Stephen Lubet and David McGowan wrote: "You do not need to be a fan of Alito's jurisprudence to recognize that he is a man of integrity. Other judges and justices would do well to follow this example," end of quote.
GRASSLEY: In addition, no complaint filed against Judge Alito has ever been validated. And to top it off, we've heard glowing statement after glowing statement from folks closest to the judge -- your law clerks, Republicans and Democrats alike, as well as lawyers and judges who practice before and worked with the judge on a daily basis.
These people know this nominee best, and they all say that he's a man of humility, a man of principle, and they don't have any question about the judge's integrity.
So it is patently unfair that some folks intent on torpedoing this nomination are trying to give these allegations weight that they don't deserve. It should be clear to everyone that this is a blatant tactic to tar Judge Alito's honorable and distinguished judicial record. And I hope this puts to rest these outrageous claims that Judge Alito doesn't have the integrity to be a Supreme Court justice. It's outlandish and should be rejected.
I'm now getting to a question that I want to ask you about executive power.
Some of your critics have questioned your ability -- and we've just heard it recently -- to be independent from the executive branch. They pointed principally to your work as a lawyer for the Department of Justice 20 years ago, suggesting that you would just rubber-stamp administration policy. I'd like to give you an opportunity to address.
So, Judge Alito, do you believe that the executive branch should have unchecked authority?
GRASSLEY: Judge Alito, you do understand that under the doctrine of separation of powers, the Supreme Court has an obligation to make sure that each branch of government does not co-opt authority reserved to the coordinate branch?
GRASSLEY: And do you understand that when constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights?
ALITO: I certainly do, Senator. Each branch has very important individual responsibilities, and they should all perform their responsibilities.
GRASSLEY: And so clarify for me: Do you believe that the president of the United States is above the law and the Constitution?
ALITO: Nobody in this country is above the law, and that includes the president.
GRASSLEY: Judge Alito, would you have any difficulty ruling against the executive branch or the federal government if it were to overstep its authority in the Constitution?
ALITO: I would not, Senator. I would judge the cases as they come up. And I believe very strongly in the independence of the judiciary. I've been a member of the judiciary now for the past 15.5 years and I understand the role that the judiciary has to play.
And one of its most important roles is to stand up and defend the rights of people when they are violated.
GRASSLEY: This first question is very general. It's a new area. I'd like to explore in detail what you understand to be the proper role of a judge in democratic society. So could you generally give me what your views are on this approach?
ALITO: Yes. Our Constitution sets up a system of government that is democratic. So the basic policy decisions are made by people who are elected by the people, so that the people can control their own destiny.
ALITO: But the Constitution establishes certain principles that can't be violated by the executive branch or by the legislative branch. It sets up a structure of government that everybody has to follow and it protects fundamental rights.
And it is the job of the judiciary to enforce the provisions of the Constitution and to enforce the laws that are enacted by Congress in accordance with the meaning that Congress attached to those laws; not to try to change the Constitution, not to try to change the laws, but to be vigilant in enforcing the Constitution and in enforcing the laws.
GRASSLEY: What do you think about judges allowing their own political and philosophical views to impact on any jurisprudence?
And, secondly, do you believe that there is any room for a judge's own value or personal beliefs when he or she interprets the Constitution?
ALITO: Judges have to be careful not to inject their own views into the interpretation of the Constitution and, for that matter, into the interpretation of statutes. That's not the job that we are given. That's not authority that we are given.
Congress has the lawmaking authority. You have the authority to make the policy decisions. And it's the job of the judiciary to carry out the policy decisions that are made by Congress when it's enacting statutes.
GRASSLEY: Further explanation on that point, three subparts.
Do you believe that justices should consider political dimensions of controversial cases?
Do you believe that when faced with hard cases the Supreme Court should look at pleasing the home crowd or splitting the baby?
And what is the proper role of the Supreme Court in deciding highly charged cases, meaning most -- I suppose in most cases we'd be talking about politically charged cases?
ALITO: The framers of the Constitution made a basic decision when they set up the federal judiciary the way they set it up.
And there's a reason why they gave federal judges life tenure, and that is so that they will be insulated from all of the things that you mentioned; they will not decide cases based on the way the wind is blowing at a particular time; that in a time of crisis, for example, when people may lose sight of fundamental rights, the judiciary stands up for fundamental rights; that it is not reluctant to stand up for the unpopular and for what the court termed insular minorities; that the judiciary and enforces the Constitution and laws in a steadfast way, and not in accordance with the way the wind is blowing.
GRASSLEY: Let us look at the Bill of Rights and many other amendments that are often phrased in broad, spacious terms.
If a judge was so inclined, he or she could expand on the interpretation, use and effect of many provisions of the Constitution.
Do you agree with the school of thought that takes the position that when Congress and the executive branch are slow or do not act in a particular manner -- act at all, let's say -- then the Supreme Court would have a license to create solutions based on some of the broad wording contained in the Constitution?
Do you think that this is a proper role for the Supreme Court or do you take the position that judges have a duty to respect constitutional restraints?
ALITO: Judges have to respect constitutional restraints. They have to exercise what's called judicial self-restraint, because there aren't very many external checks on the judiciary on a day-to-day basis.
So the judiciary has to restrain itself and engage in a constant process of asking itself, "Is this something that we are supposed to be doing, or are we stepping over the line and invading the area that is left to the legislative branch?" for example.
The judiciary has to engage in that on a constant basis.
GRASSLEY: Well, just suppose that Congress had not even acted in a certain area, and there are people that are bringing cases before the court that would give an opportunity to fill in on something that Congress didn't do. What about it?
ALITO: The judiciary is not a lawmaking body. Congress is the lawmaking body.
Congress has the legislative power. And the judiciary has to perform its own role and not try to perform the role of Congress or the executive.
GRASSLEY: I don't know whether you've ever had a case where you're dealing with problems that the framers, maybe in broad ways in the Constitution, couldn't have provided for. But how would you apply the words of the Constitution, then, to problems that the framers could not have foreseen?
ALITO: There are very important provisions of the Constitution that are not cast in specific terms, and I think for a good reason. They set out a principle. And then it is up to the judiciary to apply that principle to the facts that rise during different periods in the history of our country.
ALITO: And the example that I like to cite here is the prohibition against unreasonable searches and seizures in the Fourth Amendment.
Now this goes all went back to the adoption of the Fourth Amendment at the end of the 18th century, and most of the types of searches that come up today are things that the framers never could have anticipated. They couldn't foresee automobiles or telephones or cell phones or the Internet or any of the other means of communication that have presented new search and seizure issues.
But they set out a good principle. And the principle is that searches can't be carried out unless they're reasonable. And generally there has to be a warrant issued by a neutral and detached magistrate before a search can be carried out.
And so as these new types of searches have arisen, new means of communication have come into practice, the judiciary has applied this principle and the legislative branch has applied the principle -- in statues like the wiretapping statute -- to the new situations that have come up.
GRASSLEY: What factors, if any -- and there may not be any -- but what factors, if any, are there which can affect a judge's interpretation of the text of the Constitution? Can these factors be determined and applied without involving personal bias of judges?
ALITO: I think they can. There would be no, I think, basis for judges to exercise the power of judicial review if they were doing nothing different from what the legislature does in passing statutes.
ALITO: So judges have to look to objective things.
And if it is a question of absolutely first impression -- and they're aren't that many constitutional issues that arise at this point in our history that are completely issues of first impression -- you would look to the text of the Constitution and you would look to anything that would shed light on the way in which the provision would have been understood by people reading it at the time.
You certainly would look to precedent, which is an objective factor. And most of the issues that come up in constitutional law now fall within an area in which there is a rich and often very complex body of doctrine that's worked out.
Search and seizure is an example. Most of the issues that arise concerning freedom of speech is another example. There is a whole body of doctrine dealing with that. And that's objective. And you would look to that and you would reason by analogy from the precedents that are in existence.
GRASSLEY: Let me bring up the tension between majority rule and individual freedoms.
This involves the tensions between the American ideal of democratic rule and the concept of individual liberties, where neither the majority nor the minority can be fully trusted to define the proper spheres of our democratic authority and liberty.
I assume that you agree that there is tension that has to be resolved.
ALITO: There is tension because our system of government is fundamentally a democratic system. As I said, the authority to make the basic policy decisions that affect people's lives, most of those decisions are to be made by the legislature and by the executive in carrying out the law.
But the judiciary has the responsibility to exercise the power of judicial review. And so if something comes up that violates the Constitution that has been established now going all the way back to Marbury v. Madison, if that comes up in a case, it is the duty of the judiciary to say what the law is and to enforce the law in that decision.
And if that means saying that something that another branch of government has done is unconstitutional, then that's what the judiciary has to do.
GRASSLEY: How would you go about your duties as a justice in determining where the right of the silent majority ends and where the right of the individual begins? What principles of constitutional interpretation help you to begin your analysis of whether a particular statute infringes upon some individual right?
ALITO: I would look to the text of the provision. I would look to anything that sheds light on what that would have been understood to mean. I would look to precedent.
And as I mentioned a minute ago, I think that in most of the areas now where constitutional issues come up with some frequency, there is a body of precedent. And that shapes the decision. That's generally what is going to dictate the outcome in the case.
And if it's a new question, then usually the judiciary will see where it fits into the body of precedent and reason by analogy from prior precedents.
GRASSLEY: Some judges and scholars believe that in resolving this dilemma, the court's obligation to the intent of the Constitution are so generalized and remote that judges are free to create a Constitution that they think best fits today's changing society.
What do you think of such an approach?
ALITO: Judges don't have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn't change.
It does contain some important general principles that have to be applied to new factual situations that come up. But, in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary.
GRASSLEY: I think you heard in opening comments of some of the members of this committee that they view the courts as a place taking the lead in creating a more just society. Is that a role for the courts? And -- I don't know whether you want to call this judicial activism, but I would -- is it ever justified?
ALITO: Well, I think that if the courts do the job that they're supposed to do, they will, we will produce a more just society. I think if you take the position as a federal judge, you have to have faith that if you do your job then you will be helping to create a more just society. The Constitution and the constitutional system that we have is designed to produce a just society.
ALITO: It gives different responsibilities to different people. You could think of a football team or you could think of an orchestra where everybody has a different part to play, and the whole system won't work if people start playing performing the role of someone else.
Everyone in the system has to perform their role, and I think you have to have faith, and I think it's a well-grounded faith that if you do that, if the judiciary does what it is supposed to do, the whole system will work toward producing a more just society.
GRASSLEY: I want to go back and expand on a point I referred to as maybe Congress not acting sometime and what the court should do about that. This is a line of questioning that I also asked Chief Justice Roberts when he was before us. At that time, I referred to the confirmation of Justice Souter, and Justice Souter responded to my questions regarding the interpretation of statutory law by speaking about the courts filling vacuums in law left by Congress.
Do you believe that the Supreme Court should fill in vacuums in the law left by Congress or is this a way for justices to take an activist role in that they get to decide how to fill in generalities and resolve contradictions in law?
If you are confirmed to the Senate, do you believe that your job is to fill in vacuums?
ALITO: Well, I don't know exactly what Justice Souter was referring to when he said that. But just speaking for myself, I think that it is our job to interpret and to enforce the statutes that Congress passes and not to add to those statutes and not to take away from those statutes.
GRASSLEY: Further, on judicial restraint, are there any situations where you believe it is appropriate for the Supreme Court justice to depart from the issue at hand and announce broad, sweeping constitutional doctrine?
GRASSLEY: And if you do, could you please describe in detail what those circumstances might be?
ALITO: I think judges should decide the case that is before them. I think it's hard enough to do that and get it right.
And if judges begin to go further and announce and decide questions that aren't before them or issue opinions or statements about questions that aren't before them, from my personal experience, what happens when you do that is that you magnify the chances of getting something wrong.
When you have an actual, concrete case or controversy before you, you focus on that, it improves your ability to think through the issue and it focuses your thinking on the issue. And it makes for a better decision if you just focus on the matter that is at hand and what you have to decide and not speak more broadly.
If you speak more broadly, I think there's a real chance of saying something that you don't mean to say or suggesting something that you don't mean to say and deciding questions before they've been fully presented to you, before you've heard all the arguments about this other question that isn't really central to the case that is before you.
GRASSLEY: You might sometime be faced with what people might call a bad law or some unpopular law, which, nonetheless, might be constitutional. Do you believe that -- I guess the question should be what do you believe the court's role in that instance?
GRASSLEY: Is the court ever justified in correcting what might be a problem out there, presumably created by a law Congress passed?
ALITO: The courts do not have the authority to repeal statutes or to amend statutes. And so once a court has determined what a statute means, then it's the obligation of the courts to enforce that statute.
Now, sometimes when a case of statutory interpretation comes before a court and your first look at the statute seems to produce an absurd result, let's say, or a very unjust result, then I think the judiciary has the obligation to go back and say, "Well, is this really what the statute means? Because the legislature generally is not going to want to produce a result like that, so maybe our first look at this statute has produced an interpretation that it's an incorrect statute."
So I think we have to do that.
And occasionally, a statute will come along or an administrative regulation will come along, and the way it's applied in a particular case shows that there's a problem with the statute or the regulation that maybe Congress didn't anticipate or the administrative agency didn't anticipate.
And in those instances, while I think it is the obligation of the judiciary to apply the statute that is before the judiciary, I think it's proper for us to say, "Look, this shows how this statute or this regulation plays out in the real world in this situation. And maybe you didn't think about that. And maybe that's something that you want to take into account if you're going to revise the statute or issue a new regulation."
I think those are proper roles for us.
GRASSLEY: What is your position regarding results-oriented jurisprudence, where the rationale is made secondary to the actual result reached? When, if ever, is results-oriented jurisprudence justified?
ALITO: Results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy-makers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.
GRASSLEY: In the past few decades, certain interest groups and legal scholars and even some members of Congress have tried to convert the Supreme Court from a legal institution into political, social and cultural ones.
Because of this, the court has morphed in that direction, I believe, becoming a battlefield for warring interests groups who are raising and spending millions of dollars on disinformation campaigns and Web site blogs. There are even blogs going on all the time about this hearing.
Do you think it's because the Supreme Court has injected itself into policy issues better left to the elected branches of government? Or has the Supreme Court tried to act as, kind of, a roving commission attempting to solve perceived societal problems? Or maybe it's none of the above.
What do you think can be done to restore the sense of constitutional balance between the Supreme Court and the executive and legislative branches of government, understanding all are coequal?
ALITO: Well, I think the branches are coequal. And I think that the judiciary as a whole, including the Supreme Court, must always be mindful of the role that it is supposed to play in our system of government.
It has an important role to play, but it's a limited role. And it has to do what it is supposed to do vigilantly, but it also has to be equally vigilant about not stepping over the bounds and invading the authority of Congress or invading the authority of the executive or other government officials whose actions may be challenged.
I think the challenge for the judiciary.
GRASSLEY: Thank you, Judge Alito.
SPECTER: Thank you, Senator Grassley.
BIDEN: Thank you, Mr. Chairman.
I understand, Judge, I'm the only one standing between you and lunch, so I'll try to make this painless.
Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent.
I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches.
They wonder, when you -- granted, it's back in '85 or '84 when you wrote, "I do not question the attorney general should have this immunity as absolute immunity but, for tactical reasons," et cetera.
So people are puzzled -- at least some are puzzled. And so I don't want you to read any of this as -- at least from my perspective, as I've read it so far -- that people think that this is a bad guy.
BIDEN: I mean, what people are puzzled about with the recusal issue was, under oath you said, "I will recuse myself on anything relating to...," and then a case comes up. So they're looking for an explanation.
So it's not about whether you are profiting or whether you are, you know, all of this malarkey about whether you broke judicial ethics. It's, you know, a simple kind of thing. You under oath said: I promise if this ever comes up, I'll recuse myself. And then you gave an explanation. It slipped, you forgot, it had been years earlier, et cetera.
So don't read it as this is one of these things where we know where you are. The people I've spoken to on your court -- and it's my circuit -- have a very high regard for you. And I think you're a man of integrity. The question is, sometimes some of the things you have said and done puzzle -- at least, puzzle me.
And one of the things -- this is not part of a line of questioning I wanted to ask -- but I did ask you when you were kind enough to come to my office about the Concerned Alumni of Princeton. Were you aware of some of the other things they were saying that had nothing to do with ROTC? Because there was a great deal of controversy.
I mean, I can remember -- I can remember this. My son was -- well, anyway, he ended up going to that other university, University of Pennsylvania.
But I remember at Princeton, I had spoken on campus in the early '70s. This was a big thing up at Princeton at the Woodrow Wilson School. And I remember -- I didn't remember Bill Frist, but I remember that there was this disavowing, that Bill Bradley, this great basketball star, and now United States senator, was disassociating himself with this outfit, that there was a magazine called Prospect. I remember the magazine.
And all I want to ask you is: Were you aware of the other things that this outfit was talking about? Were you aware of this controversy going on in...
ALITO: Senator, I don't believe that I was.
ALITO: And when it was mentioned that Senator Bradley had withdrawn from the magazine, that didn't ring any bells for me. I did not recall anything like that.
BIDEN: Well, it was a pretty outrageous group. I mean, I believe you that you were unaware of it. But here I was, University of Delaware graduate, a sitting United States senator, I was aware of it because I was up there on the campus. I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well.
And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, "I am a member" -- they had restored ROTC. ROTC was back on the campus.
But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton...
I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had.
I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen.
But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time.
The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here.
BIDEN: The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy.
But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court.
Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen?
No, I'm not being facetious. What's the best or worst?
If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist.
So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual.
So her focus on the impact on individuals was sometimes criticized and praised.
BIDEN: It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another.
And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling.
Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it.
Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary.
And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago.
And employees don't say any more, you know, "We don't like blacks in this company," or, "We don't want women here."
BIDEN: They say things like, "Well, they wouldn't fit in," or, "You know, they tend to be too emotional" or "a little high-strung."
I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world.
What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists.
And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, "I was denied that job because I'm a black woman."
And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray.
Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here.
And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said "No, I don't think she should," and you set out a standard, as best I can understand it. I want to talk to you about it.
And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus.
BIDEN: They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job.
But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury.
Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, "This comes down to subjective business judgment" -- and discrimination? You said, "Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate."
What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination.
ALITO: Well, this case was one of quite a few that we get that are on the line. And when you think about the nature of the appellate system, it stands to reason that it's going to work out that way. The really strong cases tend to settle; the really weak cases are either dismissed and not appealed or they settle for a modest amount. So the ones that are hotly contested on appeal tend to be the ones that are close to the line, whatever the legal standard is.
ALITO: Now, four federal judges looked at the facts in this case. One was Judge Maryanne Trump Barry, who was then the district court judge and is now one of my colleagues on the 3rd Circuit. I was one. And we thought the evidence was not quite sufficient.
And then my colleague Theodore McKee and Judge Greene, a district court judge from Philadelphia, fine district court judge sitting by designation, thought that the evidence was sufficient.
And I think that division illustrates this was a factual case on which reasonable people would disagree. This was a case in which there was no direct evidence of discrimination. And I could not agree with you more that we can't stop there. There are subtle forms of discrimination and the judicial process has to be attentive to the fact that discrimination exists and, today, a lot of it's driven underground.
But all there was in this case were -- all that the plaintiff could point to, to show that there were facts from which you could infer discrimination, were a very -- what looked like a really minor violation of the company's internal practices.
They had a policy under which if somebody was being considered for a promotion, they would interview that person and they would decide, "We're going to promote or we're not going to promote." And if they decided we're not going to promote, then they were supposed to tell that person, "We've decide we're not going to promote you," before they go on to interviewing the next person.
And in this instance, it appeared that they interviewed Ms. Bray and they decided they weren't going to promote her, and then they interviewed the other candidate, Ms. Reel (ph), before they told Ms. Bray that they weren't going to promote her. They had nothing to gain by doing that. So it's a fact to be considered.
BIDEN: Judge, could I -- I don't mean to interrupt; I'm not sure I understand.
I think the reason for that policy is that that's the way people do discriminate. For example, you get somebody in -- a woman, a black, Hispanic, whomever -- who's qualified, but you do not want to hire them.
And if you say, in your mind, "OK, I'm going to keep looking until I find somebody's who more qualified so that I don't have to hire" -- I mean, just so we both understand, that's why that rule is there. It is not just a little deal, it's the real world. That's how people work.
People don't say anymore, "I'm not going to hire that man over there because he is black or he is Jewish or she is a woman." They don't do that anymore.
What they do is, they look around and they keep looking until they find someone -- "Ah-ha, I've got one here who's a Rhodes Scholar, I've got one here who's a white male who happened to have experience doing it." That's why they had that rule.
So again, I'm not questioning your commitment to civil rights. What I do wonder about is, whether or not -- it's presumptuous of me to say this -- whether you fully appreciate how discrimination does work today.
That's why the corporation set that rule up: "Interview the one inside the company, that was our practice to hire inside; tell them they had the job or not," so that the supervisor, who may not want to work with a black woman, doesn't get a chance to go, "I'm going to keep looking. Fine me somebody who has some experience somewhere else."
That's why they had the rule, right?
ALITO: I think you make a good point, Senator.
But in this instance, my recollection is -- in fact, I'm quite sure of this -- these were both people who were from the inside.
ALITO: They were both Marriott employees. And I think they were both being considered for the position at the time. So, it wasn't an instance in which they interviewed Ms. Bray and then they said, well, she's qualified but we really don't want to hire her; let's keep looking.
If there had been evidence to that effect, then I would certainly think, for the reasons that you have outlined, that you could draw a pretty substantial inference of an intent to discriminate from that.
But nothing like that was presented to us in that case as I remember it.
BIDEN: Weren't the facts in that case also that there was a Mr. Joston (ph) who had held the very job -- he was leaving the job -- that's the job being filled -- he said, in my opinion, which I let be known. I beg your pardon, it wasn't Mr. Joston (ph).
The person who was giving up the job said, in my opinion, I let it be known to the Mr. Joston (ph), the guy doing the hiring and which Mr. Joston (ph) was aware that (inaudible) was more than qualified to take over my positions as director of services of Park Ridge. To this day -- this is a quote -- "I cannot understand why she was not offered the position."
That was in the record. It was in the record that Joston (ph) had said in the deposition under oath, "She's not qualified," when she clearly was qualified.
I mean, I guess what I'm curious about is why, in a close case like this, wouldn't you let the jury decide it?
Why did you become essentially the trier of fact? I mean, what was your thinking?
ALITO: Well, my thinking was that the standard we were to apply was, could a reasonable jury find that discrimination was proven here. And it was my view and it was the view of the district judge that a reasonable jury couldn't find that.
When the district actually looked at the qualifications of the two candidates and said, this isn't even close. Ms. Reel (ph) is much better qualified than Ms. Bray.
ALITO: Now I didn't say that and I didn't think that. And I thought that they had somewhat different qualifications, and a reasonable person could view it either way. But it just wasn't anything that I saw that a reasonable person could point to as a basis for a reasonable inference of an intent to discriminate.
BIDEN: Well, again, I'm puzzled by this, just trying to understand your reasoning, because as you accurately point out, you didn't say the one was more qualified, you said they were equally qualified. And that's what puzzled me.
And what really got my attention in the case was you have a pretty collegial court, the 3rd Circuit. I mean, that's my observation. I don't follow it quite as closely as the man who's appointed about everybody on that court, our chairman, but I follow it very closely.
And I thought it's pretty strong language that a majority of your panel said that your standard would eviscerate the Ninth Amendment. That, in 3rd Circuit language, is a pretty strong statement.
But let me move on to another case, if I may: the Sheridan case, another discrimination case. Again, a little puzzling to me. This is a case where you were the only judge in this circumstance, out of the 11 judges on your circuit who heard the appeal, who ruled that a jury trial should have been overruled -- a jury verdict would have been overruled.
In this case, the woman alleged that she was constructively discharged; for the nonlawyers listening to this, it means she basically was demoted to the point where she was, as a practical matter, forced to quit.
And this woman alleged that she was constructively discharged. And she argued that it occurred after she had brought a discrimination claim, and where the records show that her employer said, "I'm going to hound you like a dog."
BIDEN: It was in the record -- "I'm going to hound you like a dog" for bringing this discrimination claim.
And there were more than one issue. One was whether this was an vindictive -- I forget the proper phrase -- or whether or not she should have been promoted. The third was whether she was constructively discharged.
And the jury heard the case and said we conclude she was constructively discharged -- i.e., she was basically forced out -- and she was forced out because she was being discriminated against. And 10 out of your colleagues reached that same conclusion.
But you said -- and this is what I want you to explain to me -- you said an employer may not wish to disclose his real reasons for taking punitive action against someone or not hiring someone or for his animosity toward someone. And you went on to say the reason for the animosity on the part of the employer might be based on sheer personal antipathy, which is OK.
Now, again, this is a matter of real world versus theoretically. Can you tell me how you can tell the difference when an employer is saying, "Ms. Feinstein, I am not going to hire you because the person seeking the job has a Rhodes scholarship and I like him better," and it turns out they weren't a Rhodes scholar? The real reason is, "I just don't like your glasses. I do not like the way you look." And I'm not being facetious...
BIDEN: For the record, I'm a fan of the woman from California.
BIDEN: But all kidding aside, I mean, that's how it read to me; that sheer personal antipathy is OK, even when the employer's reason for not hiring the person toward whom they showed sheer personal antipathy weren't true.
How do you distinguish that from discrimination, subtle discrimination? That's tough for me.
ALITO: Well, this case concerned an issue that had really divided the Courts of Appeals at the time when our court addressed it.
And the courts of appeals -- this gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case.
But to put it in simple terms, the courts of appeals had divided into three camps on this. There was the pretext plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext only camp, which was the camp that was most favorable to employees. And there was the middle camp.
And my position was in the middle camp. And when the issue went to the Supreme Court -- and it did a couple of years later -- in Reeves v. Sanderson Plumbing, Justice O'Connor wrote the opinion for the Supreme Court and she agreed with my analysis of this legal issue; that, in most instances, pretext is sufficient.
In fact, in the vast majority of instances, if the plaintiff can show or create -- point to enough evidence to show that the reason given by the employer is a pretext is incorrect, then that's enough to go to the jury.
ALITO: In the vast majority of cases, that's sufficient, but not in every case. And that's what I said in Sheridan, and that's what Justice O'Connor said when she wrote the opinion for the Supreme Court in Reeves v. Sanderson Plumbing.
BIDEN: Well, I went back and read Reeves, and I looked at O'Connor's statements. And with all due respect, you could argue she used the same standard, but it's clear to me she would reached a different conclusion. She would have been with your 10 colleagues.
Here's what she said. She said in the Reeves case that she would not send a case to the jury if, and I'm quoting, "one, the record conclusively revealed some other nondiscriminatory reason for the employer's decision."
I fail to see how the record conclusively showed that, and I doubt whether she would have seen that.
"Or, two" -- continuing to quote -- "if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and" -- and -- "there was abundant uncontroverted evidence that no discrimination had occurred."
It seems to me she's much more prepared to give the benefit of the doubt to the employee in that situation and you're much more prepared to give the benefit of the doubt to the employer.
I mean, by her own language, I find it hard to figure how she would have reached the same substantive conclusion that you did, that a jury trial wasn't appropriate, notwithstanding the fact, I think you make a good point, that the test, she said, was more like the test, you said, but the real world outcome, I think, she would have been -- presumptuous of me to say it -- I think it would have been 11-1 and not 10-2 had she been on the court. But who knows?
ALITO: Well, Senator, I think the vote on my court was a reflection of the standard that they applied, and they did not apply the Reeves v. Sanderson Plumbing standard. Of course, Reeves hadn't been decided at that point.
But they applied the standard that said if the plaintiff can create a fact issue as to whether it was pretextual, then that alone is sufficient. So they didn't get into an evaluation of the sort of evidentiary points that you were mentioning.
BIDEN: Well, they kind of did talk -- you'd know better than I, Judge. I don't mean to suggest I'm correcting you. But as I read the case, they did get into the minutiae...
BIDEN: ... the factual minutiae. And in the Reeves case, O'Connor, not that it's -- because there were two different cases we're talking about here. We're talking about a similar rule, two different cases. O'Connor reversed the 5th Circuit decision.
And here's what she said when she reversed it. She said reverse the lower court because, quote, "it proceeded from the assumption that a prima facie case of discrimination combined with sufficient evidence for the trier of fact to disbelieve the defendant's legitimate nondiscriminatory reason for its decision is insufficient as a matter of law to sustain the jury finding of intentional discrimination."
It seems to me that's what you did. In my view, that's what you did. That's the conclusion you reached in the Sheridan case. She overruled in Reeves, as I read it. But at any rate, as someone once said, it's your day job, and we do this part time. We have other things like wars and foreign policy to deal with, so I'm not presuming to be as knowledgeable about this as you do.
Let me move on to a third case, very quickly. I only have two and a half minutes left. And it's the Casey case, Planned Parenthood. And I don't care what your position is on abortion. This is not about your abortion position. It's about your reasoning here.
As a matter of fact, with two minutes and 30 seconds, I probably can't get into the case. Maybe I should do it in a second round.
BIDEN: But I should tell you now, I want to talk to you about, again, the real world here and, kind of, the effects test.
And so for me, Judge, where I still remaining somewhat puzzled is on whether or not you, whether it's applying the unitary executive standard and what you mean by that or whether it is the assertions made relative to how to look at discrimination cases, which are difficult, you seem to come down -- I'm not associating myself with the studies done -- I don't know enough to know whether they're correct or not -- by Cass Sunstein and others; I don't disagree with them.
But as I've tried diligently to look at your record, you seem to come down more often and give the benefit of the doubt to the outfit against whom discrimination is being alleged. You seem to lean -- in close cases, you lean to the state versus the individual.
Now, again, a lot of constitutional scholars would argue that's perfectly correct. All I'm suggesting is if I'm right -- and we'll get a chance to do this again -- if I'm right, that would be a change that will occur, more than subtle, on the bench, on this court, on a closely divided court, which would take it in a direction that I am not as comfortable with as others may be.
But at any rate, you've been very gracious. I appreciate you being responsive.
And I thank the chair. And I want to note for maybe the first time in history, Biden's 40 seconds under his time.
SPECTER: Thank you very much, Senator Biden.
SPECTER: We greatly appreciate it.
We're going to stay in session for just 10 more minutes.
And I call now on Senator Kyl.
KYL: Thank you, Mr. Chairman.
Mr. Chairman, let me begin by just asking the witness if you'd like to comment again on the unitary executive. I have this specifically in mind because, while I think I understood your explanation of it, Senator Biden just referred to it. And I thought maybe it would be useful to draw the distinction that I heard you draw with respect to your discussion of the unitary executive power, if you could do that please.
As I understand the concept, it is the concept that the president is the head of the executive branch. The Constitution says that the president is given the executive power.
And the idea of the unitary executive is that the president should be able to control the executive branch, however big it is or however small it is, whether it's as small as it was when George Washington was president or whether it's big as it is today or even bigger.
It has to do with control of whatever the executive is doing. It doesn't have to do with the scope of executive power. It does not have to do with whether the executive power that the president is given includes a lot of unnamed powers or what's often called inherent powers.
So it's the difference between scope and control. And as I understand the idea of the unitary executive, it goes just to the question of control; it doesn't go to the question of scope.
KYL: Of who, eventually, has the last say about executive power, which would be the president.
Now, I want to also ask you a question which was asked of Judge Bork in his confirmation hearing. And his answer, as I understand it, was not well accepted by some members of the Senate; was expressed as one of the reasons for their opposition to him. So it's more than just a mundane question, although it's a simple question.
By accepting the president's nomination, you've obviously expressed a willingness to serve on the United States Supreme Court. My question is, why would you want to serve on the United States Supreme Court?
ALITO: I think it's an opportunity for me to serve the country using whatever talent I have. I think that the courts have a very important role to play, but it's a limited role. So it's important for them to do a good job of doing what they're supposed to do, but also not to try to do somebody else's job.
And I think that this is a way in which I can make a contribution to the country and to society. I've tried to do that on the court of appeals, and I would continue to do that if I'm confirmed for the Supreme Court.
Now, let me now ask you a question that I also asked now-Chief Justice John Roberts. And it's obvious from my question that I do not support the use of foreign law as authority in United States court opinions.
I mentioned to him the 2005 case of Roper v. Simmons, in which the Supreme Court spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Nigeria and China. And I reminded the committee of Justice Breyer's 1999 dissent from denial of cert in Knight v. Florida, in which he relied on the legal opinions of Zimbabwe, India, Jamaica and Canada in arguing that a delay caused by a convicted murderer's repeated appeals -- appeals brought by the convict -- should be considered cruel and unusual punishment.
KYL: I expressed my view that reliance on foreign law is contrary to our constitutional traditions, it undermines democratic self-government and it's utterly impractical, given the diversity of legal viewpoints worldwide. And would add that it's needlessly disrespectful of the American people as seen through the widespread public criticism of the trend.
Now, with my cards on the table, I turn to you. What is the proper role, in your view, of foreign law in U.S. Supreme Court decisions? And when, if ever, is citation to or reliance on these foreign laws appropriate?
ALITO: I don't think that foreign law is helpful in interpreting the Constitution.
Our Constitution does two basic things. It sets out the structure of our government and it protects fundamental rights.
The structure of our government is unique to our country, and so I don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to the structure of our government.
As for the protection of individual rights, I think that we should look to our own Constitution and our own precedents.
Our country has been the leader in protecting individual rights. If you look at what the world looked like at the time of the adoption of the Bill of Rights, there were not many that protected human -- in fact, I don't think there were any that protected human rights the way our Bill of Rights did.
ALITO: We have our own law. We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution.
There are other legal issues that come up in which I think it's legitimate to look to foreign law. For example, if a question comes up concerning the interpretation of a treaty that's been entered into by many countries, I don't see anything wrong with seeing the way the treaty has been interpreted in other countries. I wouldn't say that that's controlling, but it's something that is useful to look to.
In private litigation, it's often the case -- I've had cases like this -- in which the rule of decision is based on foreign law. There may be a contract between parties and the parties will say, "This contract is to be governed by the laws of New Zealand or wherever." Of course, there, you have to look to the law of New Zealand or whatever the country is.
So there are situations in litigation that come up in federal court when it is legitimate to look to foreign law, but I don't think it's helpful in interpreting our Constitution.
Now, let me close with this question.
In the Judiciary Committee's questionnaire to you, you were asked about your views of judicial activism. And as part of your answer, you said something intriguing to me. You said, "Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations."
How does one determine that a constitutional violation is deeply rooted? And can you elaborate on what you meant by that and when federal courts should be especially aggressive in their use of equitable powers?
ALITO: What I was referring to were the efforts of lower federal court judges in the South during the days after the decision in Brown v. Board of Education to try to implement that historic decision despite enormous public resistance at times.
ALITO: But this was an example of the federal judiciary not swaying in the wind of public opinion. There was a lot of opposition. And I'm sure that it didn't make them popular.
I've read a number of books concerning the situation in which they found themselves. But, on the whole, they did what a federal judge is supposed to do, which is that they enforced the decision of the Supreme Court of the United States that, after a long delay, vindicated what the equal protection clause of the 14th Amendment was supposed to mean, which was to guarantee equal rights to people of all races.
KYL: Are there other examples that come to your mind of that same application of power? It seems counterintuitive, but when you think about it, it's absolutely essential for the courts sometimes to buck public opinion and enforce what may be considered unpopular laws.
ALITO: Well, there were some examples cited earlier today when the courts said that the executive had overstepped the bounds of its authority. The Youngstown Steel case was cited. And that is certainly an example where President Truman thought that it was necessary to seize the steel mills so as not to interfere with the war effort in Korea, but the Supreme Court said that this was an overstepping of the bounds of executive authority.
There was a reference to United States v. Nixon, where the Supreme Court said that the president of the United States had to comply with a subpoena, with a grand jury subpoena, for documents. And they stood up for what they understood the law to mean, despite the fact that there must have been great pressure against them in another direction.
ALITO: So when situations like that come up, it is the responsibility of the judiciary to hold fast.
KYL: Mr. Chairman, since there are just about 30 seconds left here, rather than ask another question, let me just close with quoting three sentences from the letter sent by the American Bar Association to you dated January 9th. I thought that was especially interesting in view of the subjects that they dealt with, the integrity of the nominee, as well as his abilities and character.
They said, "Fifty years ago, a Supreme Court justice wrote of the traits of character necessary to serve well on the Supreme Court. He referred to the ability to put one's passion behind one's judgment instead of in front of it and to demonstrate what he called dominating humility. It is the belief of the Standing Committee Judge Samuel Alito possesses those same qualities."
I think that's quite a testament to your character and your integrity, and I'm sure you appreciate the Bar Association reaching that conclusion. Thank you very much, Senator.
SPECTER: We will now recess until 2:15, at which time Senator Kyl will be recognized for 20 minutes, which is the balance of his 30- minute first round. Recess until 2:15.
Continue to Part II of the transcript.
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Read below the text of the first period of questioning, ending with the lunch recess. Part II picks up from that point.
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Abroad Comedy
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2006011019
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The audience applauded, the lights came up, and John Podesta, distinguished head of a liberal Washington think tank, stood before the crowd to praise the film they had all just seen -- "a wonderful movie," he said, that will "teach us something about ourselves."
The director, also present, responded with a plea for "human-to-human contact" between Americans and people elsewhere in the world. "Most people in societies really like each other," he observed.
Sen. John Kerry, too, attended the advance screening, which was hosted Sunday afternoon by Podesta's Center for American Progress, and added his own thumbs-up. "I think it's a very creative and challenging concept," the 2004 Democratic presidential nominee told a reporter as the crowd ambled out of the Regal Gallery Place theater. "It really opens a lot of different conversations."
One moment, please. All of this earnest uplift and official Washington approbation for . . . an Albert Brooks movie?
Albert Brooks, the Brillo-haired satirist of self-absorbed baby boomer angst? The court jester of Hollywood, whose movie scripts and comedy albums have, for more than three decades, exposed and ridiculed the customs and hypocrisies of the entertainment business? The sweaty schnook substitute anchorman of "Broadcast News"? That guy has wandered into the saintly realm of goo-goo public service?
Yes and no. It's the same man, all right, and for the first time he's confronting subjects that dominate the news. But he's doing it in a peculiarly Albert Brooks way. His film, opening Jan. 20, is called "Looking for Comedy in the Muslim World."
"The truth is, I wanted to grab my own career by the [private parts] again," Brooks says, "and I wanted to do something that I was scared to do."
Over lunch Friday, he was discussing the genesis of the new film, the seventh he has directed and written (or co-written). He has starred in all of them, always playing some version of himself -- a petty, worried, flummoxed version. He is not reluctant to portray himself thus: "I know what my comic character is," he says.
In "Looking for Comedy," there is less distance than ever between the man and his role. He plays, as indeed he is, a Los Angeles comedian named Albert Brooks, and there are facetious references to his roles in "The In-Laws" and "Finding Nemo," both of which are on the real Brooks's résumé. A character in the film mentions a previous Brooks movie, "Lost in America," and offhandedly critiques it: "I thought the ending was tacked on, a little bit."
This almost-Brooks is summoned to Washington by a fictitious federal commission led by former senator Fred Dalton Thompson (playing himself). The panel wants the comedian to undertake a month-long mission to India and Pakistan, where, in an effort to help America better understand Muslims, he will try to find out what makes them laugh. Then he will turn in a report -- 500 pages, please, because anything less would be a waste of the commission's money.
Why me, among all of America's comedians, Brooks wants to know. "Quite frankly," Thompson replies, "our first few choices were working."
Brooks is unsure until Thompson suggests an ignoble, selfish motive, typically Brooksian: "I would think that the Medal of Freedom would do wonders for your acting price."
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Get style news headlines from The Washington Post, including entertainment news, comics, horoscopes, crossword, TV, Dear Abby. arts/theater, Sunday Source and weekend section. Washington Post columnists, movie/book reviews, Carolyn Hax, Tom Shales.
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Sen. Arlen Specter, Back in Top Form
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2006011019
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Sen. Arlen Specter is a serious man, occupied with serious matters, like yesterday's confirmation hearings for Supreme Court nominee Samuel Alito and, beyond that, the specter of hearings on domestic spying.
And before that, the Harriet Miers nomination fiasco, and the John Roberts hearings, and the near-Armageddon over judicial filibusters, and . . . and . . .
"I think what I'm going to be most remembered for is having my hair grow back," says Specter, sighing. Yes, most of his hair has grown back after he lost it during treatments last year for Hodgkin's lymphoma.
"With all the weightier issues I've been involved with . . ." His voice trails off. And then back on: "I get more comments about my hair than I do about any of the substantive issues I've been involved with."
The Pennsylvania Republican waited 24 years to become chairman of the Judiciary Committee. Enough already on the hair, or the lymphoma. He's feeling fine, he says. Plays squash every morning, doesn't feel sluggish, works a full schedule.
And yes, okay, the hair's back! Combed neatly to the right yesterday -- as opposed to curly, back when he was opposing the Supreme Court nomination of Robert Bork in 1987 (earning the ire and perhaps irreversible distrust of conservatives) and fiercely questioning Anita Hill in 1991 (earning the ire and perhaps irreversible distrust of women's groups).
Specter began the first day of the Alito hearings in his Georgetown condo, just before 5 a.m. He slept like a baby ("cried all night," he jokes), took two sips of coffee, ate a banana and a bowl of cereal -- All-Bran, Shredded Wheat and Raisin Bran mixed together.
He arrives at his office in the Hart Building at 8 a.m., after his squash game. He answers, sighing, a reporter's question about what he had for breakfast.
Then, en route to an interview with ABC's "World News Tonight" in the Judiciary Committee room, he speaks of how he would pay close attention to both Alito's "words" and "music" when the nominee testifies. By "music" he means demeanor, which becomes a hallway soliloquy from Specter on former chief justice William Rehnquist's position on Miranda rights. Rehnquist was against Miranda in 1974, but for it in 2000. "He said it had become embedded in the culture of police work," Specter says, waxing substantive.
He intends to ask Alito what he thinks about "embedded in the culture" as a legal principle. And whether the notion could be applied to a woman's right to an abortion -- which Specter strongly favors.
A few minutes later, he sits down to an interview with Elizabeth Vargas, the new co-anchor of "World News Tonight." He wears a gray suit, crisp purple tie. She asks him about his health (he mentions, again, how often he plays squash). He says he carries a tissue around because his eyes tend to get watery.
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Continuing coverage of the Supreme Court nomination and confirmation process from The Washington Post.
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Document Portal Sticks on Funding
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2006011019
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Think of it as a giant electronic file cabinet, open for the public to rummage through the drawers and pull out any federal rulemaking, check the supporting documents and comment on them.
Since 2003, the Bush administration has been working on rolling out this kind of electronic docket, called the Federal Docket Management System . The http://www.regulations.gov Web site is designed to eventually house the documents of some 150 federal agencies. So far, about 15,000 documents have been posted.
The e-rulemaking initiative began with a simple portal on the Internet that allowed anyone to read and comment on proposed rules. Last fall, the system was enhanced to allow electronic retrieving and viewing of all the regulatory proceedings of some 30 agencies, a step that was viewed as having the potential to revolutionize a rulemaking process traditionally dominated by special interests.
The system was built by committee, with the involvement of many federal agencies under the leadership of the Environmental Protection Agency . Lockheed Martin Corp. was awarded a seven-year, $98 million contract in 2003 to coordinate the technology and make sure agencies could use the new system without losing functions they had on their individual rulemaking dockets.
The goal was to complete the project in 2005. But Congress has been complaining about the funding mechanism, and the completion date has been pushed back to 2007.
After squabbling with the Office of Management and Budget for several years, a House Appropriations subcommittee with jurisdiction over the White House office shut off the spigot. It said in a report that the OMB couldn't require agencies to contribute toward building the Web site until it submitted an "operating plan" detailing the funding for some 24 government-wide electronic initiatives, including the e-rulemaking site.
"Many aspects of this initiative are fundamentally flawed, contradict underlying program statutory requirements and have stifled innovation by forcing conformity to an arbitrary government standard," the report said. The subcommittee said the initiative "forced" agencies to transfer funds into projects that appropriators hadn't specifically approved.
"We have always been skeptical of it," said John Scofield , spokesman for the full Appropriations Committee, speaking of "e-government" in general. "You are standardizing and imposing a one-size-fits-all [system] on agencies that have vastly different missions and objectives."
Just before Christmas, the EPA and the OMB told the agencies that beginning in January, the system was going into a maintenance mode, supporting only the agencies already on the new system.
The OMB said it sent a detailed report to the subcommittee on Friday but has not yet received approval to spend any more money on the program.
Cary Coglianese , chairman of the Regulatory Policy Program at Harvard University , supports the project in principle. But he and other academics have cautioned that it will deliver its promise only if it is built the right way with sufficient funding.
"Lacking clear authority, a strong institutional base and adequate funding, an effort to unify regulatory dockets across dozens of major agencies is bound to be difficult, if not come up quite short," Coglianese said.
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Fasting Chaplain Declares Victory
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2006011019
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A Navy chaplain who had been on an 18-day hunger strike resumed eating Saturday and reported for duty yesterday at the base chapel in Norfolk, saying he had finally wrung from the Navy the right to pray publicly in the name of Jesus.
But a spokesman for the Navy maintained that the chaplain, Lt. Gordon James Klingenschmitt, had been tilting at windmills all along. The Navy has no regulation against praying to Jesus and "has always encouraged every chaplain to pray according to his own individual faith during worship services," said the spokesman, Lt. William Marks.
Between those two accounts lies the story of an aggrieved clergyman who believed his military career was about to end because of his insistence on preaching a fire-and-brimstone kind of evangelical Christianity -- and who managed to enlist more than 70 members of Congress and a who's who of conservative Christian leaders to pressure the White House on his behalf.
According to Klingenschmitt, his troubles began a few years ago when he preached about hell at a sailor's funeral, protested the Navy's failure to meet a Jewish sailor's request for kosher meals and led a group of Navy personnel who refused to attend a church service led by a gay minister during Fleet Week.
His commander aboard the cruiser USS Anzio recommended that the Navy not retain him when his three-year contract expired Dec. 31. Klingenschmitt, 37, fought back with formal complaints accusing both the commander and the Navy's chief of chaplains of violating a federal law that says military chaplains "may conduct public worship according to the manner and forms of the church" to which they belong.
As the end-of-year termination date drew closer, Klingenschmitt launched the hunger strike in front of the White House. He hoped to wear his dress uniform and to pray publicly to Jesus. But a superior officer warned him that regulations forbid the wearing of a uniform during political protests.
On Dec. 22, two days after he stopped eating, the Navy notified Klingenschmitt that he could stay on "indefinitely" in the chaplain corps. But Klingenschmitt vowed that he would not eat "until the president gives me back my uniform and let's me pray in the name of Jesus."
Sixteen days later -- and 14 pounds lighter -- Klingenschmitt declared victory after the commanding officer of the Norfolk Naval Station, where he is now assigned, said in writing that he could wear his uniform if he was conducting a "bona fide worship service" in front of the White House. His first bite was a Communion wafer.
Marks, the Navy spokesman, said "nothing has changed" in Navy policy. He said chaplains are free to pray as they wish in any military chapel or worship service. But in other settings that are essentially secular in nature, such as a retirement or memorial ceremony attended by personnel of many faiths, "we ask -- ask -- that they be inclusive" and offer nonsectarian prayers, he said.
"If a chaplain can't do that, he doesn't have to. We won't force him to," Marks said.
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A Navy chaplain who had been on an 18-day hunger strike resumed eating Saturday and reported for duty yesterday at the base chapel in Norfolk, saying he had finally wrung from the Navy the right to pray publicly in the name of Jesus.
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Pressure Rises as Wal-Mart Vote Nears
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2006011019
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Eyes across the nation will be on Annapolis this week as Maryland lawmakers determine the fate of a bill that would force Wal-Mart to spend more on employee health care.
Both the retailing giant and national labor unions have been airing radio ads on the issue. Legislatures in 30 other states are considering following Maryland's lead. And John Edwards, the Democrats' 2004 vice presidential nominee, offered words of encouragement for bill supporters during an appearance last week at a fundraiser in the state.
The outcome, however, will ultimately be decided by a few members of the House of Delegates who are being heavily lobbied by both sides.
"I'm feeling a little bruised," said Del. Sue Kullen (D-Calvert), one of those who have heard from a parade of health care activists and labor leaders supporting the bill and from Wal-Mart lobbyists and big-business representatives opposing it.
At issue is whether to override Gov. Robert L. Ehrlich Jr.'s spring veto of the bill, which requires three-fifths votes from both chambers.
The Senate met that threshold when it passed the legislation last year and is expected to override Ehrlich (R) on Thursday, the day after the General Assembly's 90-day session opens.
The real battle is shaping up in the House, which fell one vote short of a veto-proof margin last spring, although a few delegates sympathetic to the bill were absent. Bill supporters say they are cautiously optimistic that they will have enough support to prevail in a vote expected Friday. "But I won't be certain until we get everyone down here," House Speaker Michael E. Busch (D-Anne Arundel) said. "It will be very close."
The legislation would require private companies with more than 10,000 employees in Maryland to spend at least 8 percent of payroll on employee health benefits or make a contribution to the state's insurance program for the poor. Wal-Mart is the only known employer that does not meet that requirement.
The legislation has resonated in Maryland and beyond in part because it is a relatively easy way for lawmakers to expand access to health care and because Wal-Mart, a company with a reputation for stingy benefits, is considered an easy target. Democrats are also seeking to appeal to working-class families, a key segment of the electorate for the party.
Labor unions raised the stakes yesterday, with the chapter of the AFL-CIO that operates in Maryland and the District announcing that it will not support the reelection of any lawmaker who does not vote to override Ehrlich's veto. "The failure to stand with us means we will not be standing with you in the elections of 2006," said Fred D. Mason, the group's president.
And at competing news conferences yesterday, both sides claimed the backing of small businesses.
Maryland's chapter of the National Federation of Independent Business, which bills itself as the state's largest small-business organization, presented several business owners who expressed fears that the so-called Wal-Mart bill is only a first step.
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Eyes across the nation will be on Annapolis this week as Maryland lawmakers determine the fate of a bill that would force Wal-Mart to spend more on employee health care.
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Doors, Windows Battered At 22 Pr. George's Homes
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2006011019
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Paul Drake had fallen asleep watching football on the living room sofa when a loud thud woke him. It was followed by a series of thuds as vandals charged his front door with what he believes was a battering ram, splitting the door frame and leaving Drake struggling to keep them out.
"Let the dog out! Let the dog out!" he recalled hollering to his wife as the vandals fled.
The incident, at 1:45 a.m. Sunday in Suitland, was part of a three-hour spree that left doors and windows smashed in at least 22 Prince George's County homes, police said yesterday. The vandals injured no one and took nothing from the houses and apartments as they moved undeterred across a 10-mile swath from District Heights to the Lake Arbor section of Mitchellville, police said.
"In each of the cases, they never gained entry. They simply ran off," said an investigative supervisor in the county police District III Station in Landover.
Police said yesterday afternoon that they had made no arrests but that several residents had provided partial descriptions of the vandals or vehicles. Authorities suspect that the crimes involved teenage boys, possibly under the influence of drugs or alcohol. Officers said they did not know whether the damage was done with battering rams or by kicking. They could not recall any similar spate.
Vernon Herron, the Prince George's public safety director, said police are taking the "senseless crimes" seriously. He said that patrols would be stepped up in the affected areas and that officers would be watching for similar incidents, which could be prosecuted as vandalism, destruction of property or breaking and entering.
"We want parents to understand that if their children are involved in this malicious activity, they will be prosecuted to the fullest extent of the law," Herron said. "Residents deserve the right to have their property and homes protected and free from vandalism.
"These were senseless acts committed by people with too much time on their hands," he added.
He said the vandals easily could have been injured, particularly because several of the residents were awakened in the incidents.
"With all the home invasion crimes in the Washington region, people are very uneasy when it comes to people coming to their doors," Herron said. "What could have started as a prank could have ended tragically. These people need to understand that in today's times, when you enter a person's home or property, people are very fearful, and they try to protect themselves. . . . Doing something like this is dangerous."
Law enforcement officials warned that the use of deadly force by a resident against an intruder may sometimes be legally permissible.
The Drakes echoed the concern over the brazenness of the crimes. At the time of the incident, the family had lights on inside and outside the home. The front yard, where the vandals were, was illuminated by a streetlight.
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Paul Drake had fallen asleep watching football on the living room sofa when a loud thud woke him. It was followed by a series of thuds as vandals charged his front door with what he believes was a battering ram, splitting the door frame and leaving Drake struggling to keep them out.
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Marcus Vick Arrested On Firearm Charges
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2006011019
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One day after he declared his intention to enter the NFL draft, former Virginia Tech quarterback Marcus Vick allegedly found trouble again near his mother's home in Suffolk, Va.
Vick, 21, turned himself in to the Suffolk magistrate's office yesterday after three warrants were issued for his arrest. He is accused of waving a firearm at three teenagers during an altercation in the parking lot of a McDonald's restaurant Sunday night. Suffolk police said the parents of a 17-year-old boy reported that Vick pointed a handgun at their son and two others.
A person close to Vick said last night that the teenagers were taunting him, and that Vick showed the gun to scare the boys.
"There was some type of altercation between Mr. Vick and the victims," Lt. Debbie George of the Suffolk Police Department said last night. "It was a verbal altercation, not a physical one."
Vick, the younger brother of former Virginia Tech all-American and current Atlanta Falcons quarterback Michael Vick, was charged with three misdemeanor counts of brandishing a firearm. He briefly was held at Western Tidewater Regional Jail yesterday and was released around 2 p.m. on $10,000 bond, according to Magistrate Lisa Noel. George said police hadn't located a gun.
When contacted on his cell phone yesterday, Larry Woodward, Vick's attorney, only would confirm that he is representing Vick and that Vick is scheduled to appear Thursday in Suffolk General District Court. If convicted of all three counts, Vick could be sentenced to three years in prison and face a $7,500 fine, George said.
Attempts to reach Vick and his mother, Brenda Boddie, were unsuccessful last night.
Vick was dismissed from the Hokies football team Friday "due to a cumulative effect of legal infractions and unsportsmanlike play," according to Virginia Tech President Charles Steger. Vick had faced a two-game suspension at the beginning of the 2006 season as punishment for stomping the leg of Louisville defensive end Elvis Dumervil during the Hokies' 35-24 victory over the Cardinals in the Gator Bowl on Jan. 2 in Jacksonville, Fla.
But Virginia Tech officials dismissed Vick from the team after learning he had been cited Dec. 17 in Hampton, Va., for driving with a suspended or revoked driver's license and speeding -- the eighth and ninth traffic offenses since he enrolled at Virginia Tech in 2002. Vick is scheduled to appear in Hampton District Court on Jan. 17 for the traffic charges.
Virginia Tech officials declined to comment yesterday about Vick's latest arrest.
Vick, an all-ACC choice this past season, his first season as a starter, on Saturday announced he would enter April's NFL draft. Vick's status in the NFL draft was considered tenuous at best because of his history of off-the-field problems and his inexperience at quarterback.
Vick played in 11 games as a freshman backup in 2003, was suspended the next season after he was charged with crimes in two incidents, then started all 13 games this past season. He threw for 2,393 yards, 17 touchdowns and 10 interceptions and ran for 380 yards and six scores, but struggled in Virginia Tech's biggest games, a 27-7 loss to Miami on Nov. 5 and 27-22 loss to unranked Florida State in the inaugural ACC championship game on Dec. 3.
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Former Virginia Tech quarterback Marcus Vick turns himself into the Suffolk Magistrate's Office in Suffolk, Va., this afternoon after three warrants were issued for his arrest for waving a firearm at three men in the parking lot of a McDonald's restaurant on Sunday night.
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Critiquing the Press
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2006010919
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Howard Kurtz was online Monday, Jan. 9, at noon ET to discuss the press and his latest columns.
Was the Media's Credibility Buried? , ( Post, Jan. 9, 2006 )
Arlington, Va.: Isn't the media's rush to report unfounded rumor in the mine disaster just an especially acute repeat of what happened under Katrina? At the time of the hurricane, the press reported all sorts of unconfirmed rumors that have since been discredited: There weren't 25,000 dead, and there weren't rape gangs in the Superdome. The dead were not disproportionately poor or minority. People weren't really shooting at helicopters. Aaron Broussard's story of an old woman dying while awaiting rescue turned out to have happened before the hurricane, not after.
Isn't the erroneous story of mining survivors just more of the same?
Howard Kurtz: Yes, it very much reminds me of Katrina, which is why I made the comparison in today's column. Journalists ran with stories about rapes and murders in the Superdome because they were quoting officials who didn't know what they were talking about. The hurricane, like the mining disaster, produced a chaotic situation with all kinds of rumors and misinformation floating around. On the Broussard story, though, he gave that account on Meet the Press -- Tim Russert obviously had no way of knowing the details, and had Broussard back to discuss the misrepresentations.
I cringed yesterday when I heard, I think Joe Johns say that hearing a Congressman confirm the information that the miners were alive was good enough for him! Unbelievable! What every happened to primary sources and true investigative reporting??? Was anybody asking, or trying to find out from those in a position to know how they knew for a fact the miners were alive, had they actually talked to any of them, seen them, etc., what shape they were in. I mean, North Korean TV could have done what these guys did!
Howard Kurtz: CNN's Joe Johns indeed made the comment on Reliable Sources, and I can see where reporters on deadline might say to themselves, well, if Rep. Shelly Moore Capito says the miners are alive, it must be true. What the reporters did not do, apparently, is say, "Congresswoman, how do you know this? What first-hand knowledge do you have?" Elected officials can make the same mistakes as journalists in time of crisis.
Arlington, Va.: I'm a bit confused as to why you're reporting on mine safety statistics in a column about the press, but shouldn't you also point out the statistics that make the opposite case? Under the current administration, mining deaths have continued their long decrease. The mining injury rate has dropped since 2000. Criminal prosecutions may be down, but safety citations have risen since 2000.
Moreover, who is to say what it means that criminal prosecutions are down: is that because of less enforcement or less criminality? Put another way, if criminal prosecutions had gone up in the past five years, isn't it likely that the press would be equally critical of authorities for allowing a crime wave to flourish?
Howard Kurtz: My point was there had been almost no examination of the mine safety agency's record, good and bad, by the major media. I focused on enforcement because of the now-widely reported fact that the Sago mine had been cited for 273 violations but received no substantial penalties. The Post had a piece yesterday examining the matter, which noted the decline in the number of deaths as well as the shift in enforcement strategy from the Clinton years. I continue to wonder why a mine safety agency official wasn't made available for yesterday's Post article, rather than having the agency hide behind a prepared statement.
Annandale, Va.: Howard--What's with this new Washington Post radio project? As I understand it, a new station will be broadcasting on 1500 AM using content developed by The Post. Have any background on this?
Howard Kurtz: I don't think anyone has quite figured out how Washington Post Radio will work. But the executives involved were quoted by the paper last week as saying that "the stations will be the 'long-form' version of WTOP's shorter news reports, with interviews, commentary and news provided by The Post's journalists."
Fairfax, Va.: Why does The Post allot so much space and headlines to the personal biography of Judge Alito and relatively little ink to the impact his decisions have had socially and economically on say, corporate interests versus worker's interests? After all, Supreme Court justices have a tremendous impact on numerous areas of our country's political and economic life.
Howard Kurtz: I think that's a bum rap. The Post has published many, many articles about Alito's rulings, past writings as a Reagan administration official, judicial philosophy and so on--probably more than most readers have an appetite to digest. The two-part profile that ended today was designed to be a look at who this man is and the forces that shaped him.
Arlington, Va.: I agree with Jon Stewart...why can't The Media leave people alone in their time of grief and tragedy? Why are the family members of victims of all sorts of tragedy interviewed? Why do we need to know how they "feel"? And is it really national news when some poor guy painting the inside of a water tower falls down and gets hurt? Or is it just news because CNN has access to a helicopter hovering overhead which can't even really see anything because the guy is INSIDE the water tower?
Howard Kurtz: I've been in that situation a number of times in my career. I've always treaded very carefully, and I believe most (but hardly all) journalists do as well. What I've found is that some people definitely don't want to talk, and after a polite inquiry I apologize for bothering them at a difficult time. But many people do want to talk -- either to vent their grief or to ensure, in some small way, that their loved one is remembered.
Regarding the media coverage of the Sago mine disaster:
In the future, do you think the media will be overly meticulous in confirming all aspects of what they are reporting, will they get it "just right," or will the pressure to be first to break the story trump any circumspection resulting from this tragedy?
Howard Kurtz: Since most journalists are saying they did nothing wrong, I can only assume that they would do the same thing in a similar situation in the future. What, exactly, would be wrong with saying: "We're hearing conflicting reports, but the facts are unclear and nothing has been confirmed"?
New York, N.Y.: "There are no Democrats who took money from Jack Abramoff, not one, not one single Democrat. Every person named in this scandal is a Republican. Every person under investigation is a Republican. Every person indicted is a Republican. This is a Republican finance scandal. There is no evidence that Jack Abramoff ever gave any Democrat any money. And we've looked through all of those FEC reports to make sure that's true."
This is what Howard Dean told your CNN colleague Wolf Blitzer this weekend (according to the CNN transcript). If what Dean says is true, why are the media insisting, along with the RNC, that this is an equal opportunity scandal?
Howard Kurtz: I don't believe the media are saying this is an equal opportunity scandal. It is a scandal about a Republican lobbyist and fundraiser and friend of Tom DeLay, that has already implicated another GOP congressman (Bob Ney), and most of those who are nervous are Republicans. The coverage, in my view, has fairly reflected that. However, it's also true that Abramoff, in the process of ripping off his clients, steered contributions to some Democrats as well as Republicans, and some of these Dems have since returned the money or donated it to charity.
Seven Corners, Va.: Mr. Kurtz, thank you very much for noting that at times, our national media can be very slow to admit error, or very quick to deflect it onto bad sources of information. (Like say, believing Iraq had WMD?) Do you think anyone's giggling at the White House watching all these media outlets who demand Bush to admit his mistakes not living up to that in their own professional lives?
Howard Kurtz: Given the sadness of the subject, it's probably no laughing matter, but I'm sure the deflection of blame hasn't gone unnoticed. When Howell Raines had to resign from the NYT over the Jayson Blair debacle, some former Clinton officials, who resented the harsh criticism by Raines's editorial page when they were in the White House, were downright happy.
Emmitsburg, Md.: Not to take away from the Republican failings in the Abramoff scandal, but this would seem to be the perfect opportunity for a multipart series of articles on how the lobbying, donation, influence peddling thing really works on the Hill. Instead we just have gotcha journalism and partisan snipping. It reminds me when we had lots of articles on Cheney's energy task force and how industry was writing legislation, but based on my experience over half of all non appropriation bills introduced by members of Congress are written by industry or special interests. Exposing the standard process would do more to clean up the system then pointing out the extremes.
Howard Kurtz: An excellent idea. The Post, I should note, has led the pack in reporting on Abramoff's illegal conduct. But a much broader piece (or pieces) is needed. I sometimes wonder whether Washington reporters get too inured to a system in which lobbyists can send lawmakers on golfing trips to Scotland or arrange basketball skyboxes for their fundraisers -- often winning legislative favors for clients in the process -- and it's all perfectly legal.
Washington, D.C.: Post Radio: I heard an ad on WTOP characterizing it as "WTOP will interview Washington Post reporters." As opposed to just reading the morning Post all day?
I'm getting tired of reporters talking to other reporters (your column exempted b/c that's part of the point). It's gotten out of control on NPR since the dumping of Bob Edwards. On Morning Edition a few months ago, Renee introduced Steve who was interviewing a NYT reporter in Baghdad. If he had a story to report, then just report it! And NPR has its own correspondents in Baghdad. They're not good enough?
Sad. And I can't hear WGMS very well anymore.
Howard Kurtz: Well, why don't we wait until it's actually on the air until we slam it. Since The Post is a full business partner in this new station, it makes sense that its reporters and columnists would contribute to the programming.
Bethesda, Md.: Regarding reporting on and speaking with those affected by the tragedy.
It seems to me that if reporters don't even try to get these stories, they would likely be accused of not caring and not being there when this awful thing happened. What's the line between interfering and ignoring what is obviously newsworthy, though tragic for some?
Howard Kurtz: You have to go there and pursue the story, and part of the story is the impact on the townspeople and family members. The problem is that given the gargantuan size of today's media, this can feel like an invasion to folks who live in the affected place, especially if it's a small town.
Fairfax Station, Va.: Why isn't Howard Stern's new radio show under the rules of the FCC?
Howard Kurtz: The Federal Communications Commission has no jurisdiction over satellite radio because people pay for it and it's not part of the limited airwaves spectrum that is licensed by the government in the public interest. So Stern can say whatever the #@**&! he wants. In his debut this morning, there were barely any forbidden words, although there was some raunchy content.
Re: Fairfax: I don't know about the Alito press, but I think this is a major problem of the press in general. Events and situations tend to be reported in the context of political fallout or gains, rather than how they will actually affect people's lives.
I've seen scads of reporting on how the conduct of the Iraq war is affecting Bush's "political capital," but few to none about how the Iraq war has cost the government so much that nearly every federal agency has been left in a funding crunch.
I've seen the articles about how Delay's issues are affecting the perception of the GOP, but how about some articles on how corruption at the highest levels of government, and all the ensuing time parsing their stance, picking a new leader, and defending oneself in court actually affects American GOVERNANCE?
I suppose culling projections and analyses from anonymous talking heads is easier, but I personally would prefer the longer, more tangible, more real-world view.
Howard Kurtz: That's a fair point. The press does sometimes have a scorecard mentality.
Herndon, Va.: If The Post's editor truly thinks that "the media's performance here was fine under the circumstances" you are in worse shape than I thought. Can he not see the lack of reporting and fact checking by his and other reporters contributed to the publishing of an inaccurate and unsourced story? The lack of attribution in the story makes the facts written in The Post the responsibility of the paper; his failure to understand and acknowledge this makes the damage to The Post's reputation only worse.
Howard Kurtz: In my view, it might have been better if the paper had run an editor's note, or something like that, to explain how the erroneous front-page story came to be published. USA Today ran such a note and apologized to its readers. You can argue whether such an apology is necessary, but addressing the issue the next day seems like a good way to deal with readers' concerns.
Bristow, Va.: I'm a little confused on your article today. First, you underline how Mr. Amoss have forfeited neutrality and advocated for the City of New Orleans. then you write: "Whether the Newhouse paper can thrive in a shrunken city is very much an open question. So is whether Amoss and his staff have forfeited their neutrality in their zeal to help the region." Didn't you already establish that Amoss's activism was not an "open question"?
Howard Kurtz: Jim Amoss, as editor of the New Orleans paper, has chosen to take an activist role on federal aid to the city -- so he probably has forfeited his neutrality -- but that doesn't necessarily apply to all the editors and reporters who work for him.
Oklahoma City, Okla.: On Friday The Post had three major stories,penned by four reporters, on Abramoff. Meanwhile, Hillary Clinton's campaign committee was fined for some fairly blatant fund raising violations -- and The Post carried only the AP story, tucked away inside. A proportion problem, perhaps?
Howard Kurtz: It didn't bother me. The fundraising group for Hillary agreed to a $35,000 fine for underreporting hundreds of thousands of dollars spent on a Hollywood fundraiser in 2000. You don't get a medal for that, but it's a fairly common fundraising violation that was the subject of past articles in the paper. The FEC says her campaign didn't violate the law, unlike Abramoff, who admits he had taken kickbacks and was trying to bribe members of Congress. The Hollywood fundraiser involved in Clinton's case was tried for lying to the FEC, but he was acquitted.
Washington, D.C.: This is a pretty small issue, and I'm young and pretty liberal, but is it too much to ask reporters in the field to wear a tie, or at least a decent coat, when doing a national news segment? I guess I understand casual dress in a place like post-Katrina New Orleans or post-tsunami Indonesia, but what was that NBC correspondent doing broadcasting from West Virginia in a bright yellow and black Columbia jacket? Is West Virginia too "gritty" to put on a trench coat and scarf? I know it's cold, but where is the professionalism? I know this is a small issue, but yeesh--you're on national TV. Comb your hair at least.
Howard Kurtz: I agree with the hair-combing part. But I'm afraid I don't agree that reporters in the field -- if they're at a coal mine or some other disaster scene -- have to wear a corporate uniform.
Post Radio Idea: Maybe you'll be able to rebroadcast "Reliable Sources" on the radio later in the day? (I wish CNN would do that, since you're on at the same time as Russert and Schieffer.)
Howard Kurtz: What, you don't own a VCR? Yes, it's a competitive time period (although our first half hour, in D.C., is before Meet the Press or Face the Nation comes on).
re: Washington Post Radio: I'd like to hear some sort of version of washingtonpost.com's Live Online. Maybe a schedule of the day's programming could be posted on the Internet, and listeners/readers/chatters could e-mail in comments before or during the show for comments.
I don't know if it would work, but it would be more productive (popular?) than call-in shows, or some sort of scaled back version of NPR, that's for sure.
Howard Kurtz: Not sure why it'd be more productive than a call-in show, since it eliminates the interaction between host and caller, but e-mail could certainly be an element. Cable TV tends to use e-mails more than radio.
Re: Interviewing Grief-Stricken People: While I do think it is ghoulish the way the media seem to pounce on these people, THEY CAN ALWAYS DECLINE TO BE INTERVIEWED. I am constantly amazed that people allow themselves to be televised under such trying circumstances.
Howard Kurtz: Well, as I said, some want to be, some definitely do not. You usually don't see, or read about, all the people who decline.
Dulles, Va.: Regarding last week's comments on journalists being overpaid: I think that in my cases, especially in specialties like business reporting, journalists are way underpaid relative to the market.
I know a number of highly talented people who left journalism because they could get 50-100% more than jobs at even top tier papers like The Post.
These were people who knew the ins-and-outs of statistics and the markets.
Howard Kurtz: I have no doubt that most of the people who work here could make significantly more in public relations or other fields. But there is something about journalism that drew them to the business, with full knowledge that it was not the highest-paying career option.
Washington, D.C.: Howard Stern built his show on two things: a very big audience where he would say ever more shocking things to anger the public authorities. Today he has neither the audience nor the authorities to rebel against. He's has lost everything that made his style of humor so interesting.
Howard Kurtz: Well, since he debuted on satellite five hours ago, isn't it a little premature to make that judgment? Sirius now has 3.3 million subscribers, compared to under 1 million when Stern's deal was announced. Certainly he will ultimately be reaching a smaller audience than on free radio, but he told me, and other interviewers, that the creative freedom was more important to him (not to mention the truckload of money that Sirius has dumped on him).
Re: Oklahoma City, Okla.: I think OK City was trying to say that instead of having four reporters write three overlapping stories on the same subject, perhaps one could have written about the Clinton fundraising fine - not all of us readers have the background information you provided burned into our memories. the lobbyist story is big, but when you overkill it you tend to miss other important stories.
Howard Kurtz: Fair enough. But as overkill-type stories go, I think Abramoff is a worthy subject. In fact, he's on the cover of the new Time magazine: "The Man Who Bought Washington."
McLean, Va.: Howard, how big of an influence on the story does the media pack-mentality effect the news that is reported? For instance, with the mining story--it would seem that because of the race to get the story first, reporters and media organizations aren't researching as thoroughly. And once one media organization goes with a story, the pressure is immense on the others to jump out there with the same information so they don't look like they are too slow. How can the news media solve this problem, or can they?
Howard Kurtz: I don't think in this case it's only the race to be first, but the race to avoid being last. In other words, CNN or Fox has to wonder if they can be reporting "fate unknown" while MSNBC is declaring the miners alive, or vice versa. In the case of East Coast newspapers, they weren't beating anyone -- they wouldn't hit front porches and newsstands for an hour -- but were facing their final deadlines around midnight and had to discern the situation as best they could.
Norwich, Conn.: Howard: As a law student and avid court-watcher, I have failed to glean any useful information from The Post's extensive series of articles on Alito's background, especially those that reach back into his college days. We all know that such historical trivia invites exaggerated speculation and is rarely predictive of any specific case. Why not instead have legal reporters focus their energies on the Court itself, the state of its jurisprudence at the close of the Rehnquist era, and what the addition of Roberts and Alito may do to the status quo?
Howard Kurtz: But as I noted earlier, we have done exactly that. I've lost count of how many stories the paper has published on Alito's jurisprudence. Since he would be one of nine Supreme Court justices, and since most Americans had never heard of him before, isn't there a place for stories that tell us who this man is? And wouldn't his upbringing and life experience likely have some impact on his role as a judge?
Kettering, Ohio: I have a layperson's question about editorials.
Is there a sliding standard for an editorial page regarding advocacy and outright huckstering. I have no problem with the New Orleans editor advocating for his hometown. On the other hand, I think some papers have contributed to a growing awareness that some papers and other media have an agenda that is political rather than civic. Dan Rather clearly had an agenda that ultimately led him across a line of credibility which made continuing as a commentator impossible, even in a newsroom like that of CBS. I would guess there is a scale, somewhat like that for porn, that makes some advocacy fine, and indeed expected. While there may be another line where credibility trumps advocacy.
Thanks for your time and consideration!
Howard Kurtz: Newspaper editorial pages are allowed to have an agenda -- political, cultural or otherwise -- because it's the one place in the paper where you're supposed to get unvarnished opinion. In the case of Jim Amoss at the Times Picayune, he not only oversees the editorial page but the news coverage as well as the paper's top editor. As for Rather, he stepped down in the midst of an investigation in which he and CBS News made serious mistakes, but it was not an investigation of his political leanings.
Washington, D.C.: Stern has done well for himself since the day I first heard him on DC101 in 1980. He called City Hall on his first day to ask the Mayor if he would hold a parade to greet him, and Stern almost exploded when he learned that the Mayor was a man whose first name was Marion.
Howard Kurtz: And that was years BEFORE Marion Barry's crack arrest.
Thanks for the chat, folks.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Join live discussions from the Washington Post. Feature topics include national, world and DC area news, politics, elections, campaigns, government policy, tech regulation, travel, entertainment, cars, and real estate.
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Questioning Judge Alito
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2006010919
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MUCH RIDES on the Senate hearings that begin today on the nomination of Judge Samuel A. Alito Jr. to serve on the Supreme Court. Judge Alito is not well known in Washington, having spent the past 15 years on an appellate court elsewhere. So for the nominee, the hearings are a chance -- his only chance, really -- to allay Democratic hostility toward his nomination, which has been stoked both by legitimate concerns about his record and by no small amount of fevered and unfair political rhetoric. For senators, meanwhile, it is a chance to try to tease out whether Judge Alito is a traditional conservative of the type who ought to be confirmed or an outlier or extremist who ought to be rejected. The stakes are high, as they always are with Supreme Court nominations and because in this particular instance, Judge Alito would be replacing one of the court's swing voters.
At the same time, the hearings are unlikely to provide big surprises. Judge Alito, in any formal sense, is obviously well qualified -- as the American Bar Association recently recognized. Allegations of impropriety on his part seem trivial, and the ideological questions about him are well known: Does he have too limited a view of congressional power and too robust a view of states' rights? Will he respect privacy and abortion rights? Does he consider affirmative action programs presumptively unconstitutional? How broadly does he see presidential powers, particularly in wartime? What does he think now about the "one man, one vote" principle he appeared to question in the 1980s? Has he read civil rights statutes too narrowly? And perhaps most important, what are his views concerning how readily settled precedent should be disturbed?
All these questions will undoubtedly be probed -- as they should. And Judge Alito, just as surely, will not answer the questions -- at least not in the only sense in which the partisans care about answers. That is to say, he will not -- and should not -- tell Americans how he will vote on hotly contested issues. Judge Alito will seek to be reassuring yet noncommittal.
This is the same task that Chief Justice John G. Roberts Jr. faced, yet Judge Alito's job is harder. The chief justice, after all, was a widely known figure in Washington legal circles who had been on the bench only briefly, had run a completely non-ideological appellate practice and had many Democratic admirers in the bar. Judge Alito, by contrast, has been cloistered on the bench, building a strongly conservative record. In the modern Catch-22 of judicial confirmations, the only way to escape the charge of being a "stealth" nominee is to offer up a long history of writing for opponents to pick at. Judge Alito has done this, and there's a lot of picking to do.
It is quite clear already that Judge Alito would be a conservative justice. The question is whether he will emerge in these hearings as one energetically committed to remaking federal law to restrain congressional power, expand presidential authority and read individual constitutional rights narrowly or as a cautious judge who is mindful of the limits of judicial power. Both judicial personalities show up in his writings at times. The question for the Senate will be: Which is the real Samuel Alito?
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The question is whether Samuel Alito will emerge in these hearings as energetically committed to remaking federal law or as a cautious judge who is mindful of the limits of judicial power.
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Majority of Americans Favor Alito Nomination
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2006010919
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A majority of Americans favor the confirmation of federal appeals court judge Samuel A. Alito Jr. to the U.S. Supreme Court and an even larger proportion believe Alito would not vote to overturn Roe v. Wade, the 1973 high court ruling that legalized abortion, according to the latest Washington Post-ABC News poll.
As hearings begin today in the Senate on his nomination, the survey found that 53 percent of the public says Alito should be confirmed to serve on the court--virtually identical to the proportion that supported John Roberts' confirmation as chief justice four months ago. One in four--27 percent--say Alito should be rejected by the Senate.
But one in five Americans remain undecided about the nominee, who is expected to face tough questioning this week by Democrats on the Senate Judiciary Committee over his past writings on abortion, affirmative action, and the constitutional limits on presidential power.
The survey also found that most Americans expect Alito, if confirmed, would not vote to strike down Roe v. Wade. In the weeks since he was appointed by Bush, abortion rights advocates have grown increasingly vocal in their opposition to Alito. They fear he may be the fifth and decisive vote on the court to overturn Roe--a decision that would instantly inflame national debate over an issue that already is one of the most divisive in American politics.
Instead, the survey suggests that the public expects Alito to follow a middle course on the court.
According to the poll, 38 percent predict Alito will vote on abortion issues in ways that do not significantly alter Roe. Another 26 percent said they expect Alito to favor greater restrictions on abortion but not to strike down the ruling. Slightly fewer than one in five--18 percent--say they believe he would vote to overturn the decision.
Taken together, the results suggest Alito enters today's Senate hearings on his nomination with the support of most Americans and no clear obstacles to confirmation. While his work as a White House staffer in the 1980s has raised concerns among abortion rights supporters, his writings on abortion have yet to raise similar doubts among the public.
The Alito nomination has yet to galvanize opposition among Democratic rank-and-file, the survey found. Democrats remain split over Alito, with 40 percent supporting the appointment while 39 percent oppose it. Even among liberals, those who oppose him (44 percent) narrowly outnumber supporters (38 percent).
Three in four Republicans--76 percent--favor confirmation while slightly fewer than half of all self-described political independents say Alito should be approved.
A total of 1,001 randomly selected Americans were interviewed Jan. 5-8 for this survey. Margin of sampling error for the overall results is plus or minus 3 percentage points.
Additional results of this Post-ABC News poll will be available on washingtonpost.com at 5 p.m.
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A majority of Americans favor the confirmation of federal appeals court judge Samuel A. Alito Jr. to the U.S. Supreme Court and an even larger proportion believe Alito would not vote to overturn Roe v. Wade, the 1973 high court ruling that legalized abortion, according to the latest Washington...
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The Alito Briefing
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As the confirmation hearings for U.S. Supreme Court nominee Samuel A. Alito Jr. get underway, a two-day profile by Washington Post reporters Jo Becker and Dale Russakoff traces his life from jungle gym to judge's chambers. What they found was a sharp intellectual who lived to follow the rules. Becker and Russakoff were online on Monday, Jan. 9, at 11 a.m. ET to respond to questions about their stories and the man who could replace Justice Sandra Day O'Connor.
Dale Russakoff: Good morning and welcome to washingtonpost.com. Thanks for joining us and we look forward to an interesting and lively discussion about the Alito nomination.
Jo Becker: And thanks for joining us. We're looking forward to taking your questions.
Philadelphia, Pa.: In your profile, you describe how Judge Garth "once rated Alito 16 1/2 out of 10 as a clerk". Being unfamiliar with the clerk rating system, I would appreciate you please describing how the rating scale works and whether that is an unusual score.
Dale Russakoff: There is no official rating system. It was his informal way of saying that, in his view, Alito was off the charts.
Jo Becker: There is no formal "clerk rating system." Judge Garth wrote to support Alito's nomination to become U.S. Attorney, and later, a judge on the 3rd circuit court of appeals, where Judge Garth sits and Alito clerked after law school. He said that on a scale of one to 10, Alito was a "16 1/2." Judge Garth and a number of 3rd circuit judges with whom Alito worked are now supporting his nomination to the Supreme Court. Some are planning to testify at the hearings, which is quite unusual. Federal judges are often loath to wade into nomination battles because they are so political.
Walkersville, Maryland: What are both sides of the CAP issue?
Dale Russakoff: When it was founded in 1972, CAP said it wanted to provide another voice in the Princeton community as social changes swept the country and the university. Former Sen. Bill Bradley, a 1965 graduate, joined CAP's advisory board based on that premise, but resigned a couple of months later in protest. He wrote in a letter to the group that he felt that rather than providing balance, it "prefers to present the right wing view within the Princeton community." In letters, fliers and magazines sent to alumni, the group was extremely critical of Princeton's newly adopted polices of co-education and increasing minority admissions. Its co-founder and chief bankroller, Shelby Cullom Davis '30, was described in the Daily Princetonian as "a strong traditionalist, firmly opposed to the many of the new directions Princeton was taking, including coeducation." Davis wrote in CAP's magazine, "Prospect:" "May I recall, and with some nostalgia, my father's 50th reunion, a body of men, relatively homogenous in interests and backgrounds, who had known and liked each other over the years during which they had contributed much in spirit and substance to the greatness of Princeton. . . I cannot envisage a similar happening in the future, with an undergraduate student population of approximately 40% women and minorities, such as the Administration has proposed."
Those actively involved in CAP, which died out in the early 1980s, said they do not remember Alito being involved and one said he vaguely remembered him sending in a contribution to join the group. I read every magazine the group published in its 12 years and saw mention of Alito anywhere. Alito himself has told the Judiciary Committee that he has no recollection of having belonged to CAP even though he listed it among his affiliations -- as evidence of his conservative convictions--when applying for a political appointment in the Reagan Justice Department.
By the way, CAP stands for Concerned Alumni of Princeton
Fairfax County, Va.: I'm sure I'm not the only Princeton graduate in Wash., D.C. who was interested in the nitty gritty details of Mr. Alito's undergrad experience.
But you left out the biggest thing in any Princeton senior's life: his thesis topic. P.U. requires a senior thesis to graduate and even has seniors take fewer courses to get the work done. What did he write about? What did his thesis advisor remember about his work? Procrastinator or plan-aheader? Just curious...
P.S. Even as a pro-choice leftie, I can tell you Concerned Alumni of Princeton was not the worst thing in the world--just a group that got upset when Princeton began admitting women in 1970 and the world as they knew it came to an end. Going coed was a huge change, and of course some schools (mostly women's schools) remain one-gender to this day. But most of the old guard came around once they had daughters to send there.
Dale Russakoff: Yes, that section hit the cutting room floor as we tried to get our stories down to a reasonable length. Alito wrote a 137-page thesis advised by Prof. Walter Murphy on the Italian Constitutional Court, which is the closest thing to the Supreme Court in Italy. Murphy said it was one of the best undergraduate theses he ever advised, and one of the few he saved. It's a good thing he did because the thesis disappeared years ago from the Mudd Library and professor Murphy made his copy available. It's longest chapter analyzes the way Italy's constitutional court wrestled with the church-state issue in the 1960s. Read the thesis here: http://library.princeton.edu/about/news.php?date=2005-12
See above answer regarding CAP (Concerned Alumni of Princeton)
Washington, D.C.: John Roberts appeared to be dull, maybe the dullest man in town, to hear him speak. Does the Administration think they are getting a tactical advantage by nominating people that most people couldn't pick out of a lineup?
Jo Becker: Interesting point of view, Washington. I'm not going to weigh in on whether the nominees are dull or not. But I can tell you that both ended up with a far more extensive public paper trail than some within the administration had anticipated - both from their days in the Reagan Administration. Judge Alito had been a court of appeals court judge for far longer than Judge Roberts, so he had a copious record of opinions to be analyzed. But in terms of his personal views, the Reagan-era documents proved to be quite interesting. In an application to become a political appointment, for instance, Alito said he was "particularly" proud of the work he had done to help the administration in its quest to end certain affirmative action programs and convince the Supreme Court that no right to abortion exists in the Constitution. Another Reagan-era document from his days in the Solicitor General's office outlined his strategy for eventually overturning Roe v. Wade and in the meantime "mitigating" its effects. Solicitor General documents are typically not public, but they were released under a Freedom of Information request made by media organizations because the documents had been sent to others outside of that office. Similarly, the public learned about many of Justice Roberts' views, at least as a young lawyer in the administration, from documents requested by media organizations.
Rockville, Md.: Could someone please explain the "one man, one vote" issue that keeps coming up? How could Judge Alito or anyone else be opposed to it?
Jo Becker: Thanks for your question, Rockville.
Prior to a series of 1960s era rulings, the court did not wade into what some have called the "political thicket" of legislative redistricting. Drawing district lines was left up to lawmakers' themselves. This often resulted in a concentration of power in less populated rural areas. The one-man one vote principle said that districts had to be roughly equal in population. The decision was lauded by some because it shifted power to urban areas, and that helped solve the issue of minority disenfranchisement. But it was criticized in other quarters as the judicial branch meddling in an area where it did not belong. Critics said that the Constitution says nothing about "one-man, one vote." They argued that the Framers never contemplated such a thing, given that they created a U.S. Senate where small states and large states are each given just two senators. Today, however, the decision is far more accepted. Judge Alito wrote in 1985 that he disagreed with the 1960s-era decisions on reapportionment, though in meetings with senators he has said that he believes one-man one-vote is a "bedrock principle." An interesting aside: Judge Alito's father worked for the NJ Legislature and was tasked with redrawing that state's maps in the wake of the one-man one-vote decision.
Chicago, Ill.: There seem to be a lot of stories proclaiming that Alito is funny, but there are a dearth of anecdotes showing this. Putting girls with their hair dyed in campaign posters in middle school and putting pink flamingos in front of his office do not show a sense of humor. Instead of taking people's word for it, can reporters actually get some anecdotes showing this? Or is all of the actual evidence that he is funny of the "you had to be there" variety?
I guess funny is in the eyes of the beholder. But those who know Judge Alito well say he has quite a dry wit. Colleagues from his days as a US Attorney, for instance, recall his comedic sense of timing when he gave speeches at office parties, something they said was pretty unexpected in a guy as serious as Alito.
Dale Russakoff: Chicago, I think you're right that his wit is of the "you had to be there" variety. he's apparently very dry and funny in the moment, but not so much in the retelling. After hearing everyone testify to his sense of humor, I made a point of asking at least half the people I interviewed for an example. The only one that came close to translating was a story about him and his law school roommate Mark Dwyer. Alito was annoyed by Dwyer's pipe smoking (interesting because Alito's father was a pipe smoker) and Dwyer was annoyed by Alito's drinking of scotch. Alito once cut up rubber bands and put them in Dwyer's tobacco pouch so that when Dwyer lit up he found himself smoking burning rubber. Dwyer retaliated by putting salt in the ice cubes in their refrigerator so that Alito wound up drinking salty scotch.... Okay, I agree, it's not hilarious, but that's the best I can do.
Also, Alito's former Princeton roommate Ken Burns, now a lawyer in SF, said he visits Alito when work brings him to the Newark/Philadelphia area where Alito sits. Once Alito told him he had a case dealing with a Tennessee walking horse. Burns said, "Sam, I didn't know Tennessee was in the 3d circuit. How did you end up with a Tennessee Walking Horse in your court?" Alito responded, "This one wandered into Pennsylvania."
By the way, the student council campaign about the hair dye was not Alito's idea. It was proposed by his friend Jim Castranova, whose father ran a beauty supply business and happened to have a lot of extra posters of women having their hair colored. Castranova was Alito's campaign manager and was worried that he might lose because he knew very few of the "non-academic kids." So he came up with this campaign theme to get their attention and put the posters up in the home ec room, the shop class, the automotive class, etc. He said Sam loved it, but it wasn't his idea.
Towson, Md.: Any chance Justice Kennedy moves to the left/center on the big issues (mostly the social ones) with Alito coming to the court? There has been a history of some justices doing so over time and Justice Kennedy has already shown this propensity with some of the big cases.
Jo Becker: That is an important question, Towson. Justice Kennedy will certainly be a pivotal vote on a number of key issues. It's hard to predict what will happen, though. Any thoughts out there?
Rockville, Md.: I am confused on the relevance of CAP. Lots of people join organizations in college that are just part of the college exp. At UMCP there are lots of organizations that would be considered loco by the average person. Isn't this just part of being in college? I could see relevance if after graduation he formed or joined similar groups but that does not seem to be the case.
Dale Russakoff: Alito joined CAP after graduating. We do not know exactly when he joined--only that he listed it among his affiliations in 1985. As an undergraduate, by contrast, he joined no conservative organizations.
Jo Becker: Judge Alito, in his answers to the Senate, said that other than the job application he filled out in 1985, he had no recollection of being a member of the group. Look for Democrats on the Judiciary Committee to press him on this question.
Washington, D.C.: Can you put the Bork thing in perspective? What does that really say about this guy?
Dale Russakoff: An excellent question that the Judiciary Committee probably will explore with Judge Alito. It shows that Judge Alito in 1988 viewed the constitution in much the same way that Judge Bork did. Bork said at the time that the Constitution protected only those rights intended by the Framers--as reflected in their precise words. He saw no basis for a right to privacy or abortion or for the Supreme Court's one man, one vote rulings. He also said that Brown v. Board of Education and other landmark desegregation rulings were not based on the constitution but on the egalitarian views of individual justices. This is not to say that Alito has these views today. Fellow judges say that his 15 years on the appellate bench are sure to have affected the views he had when he arrived. Still, Alito's record reveals that he believes strongly in a much more limited role for the judiciary than in the days of the Warren Court, which produced the decisions mentioned above.
Concord, N.H.: Does it make sense to think of Judge Alito as John Roberts with a longer list of rulings but without the D.C. polish? Or are there fundamental jurisprudential ways in which they ought not to be lumped together?
Jo Becker: Thank you for your question, Concord. Certainly I think that Judge Alito was less cautious in certain Reagan-era memos than Justice Roberts. But it may be too early to tell how alike they are. Justice Roberts just recently became chief justice. If confirmed, Judge Alito will for the first time be unbound from the need to follow Supreme Court precedent. A good portion of the hearing will focus on Judge Alito's views on stare decisis, a Latin term that refers to how much weight he will give the court's prior rulings.
Fairfax, Virginia: Have Alito's rulings generally been more pro corporate interests than pro worker's rights? Why is there so much in The Post about Alito's biography rather than the impact of his rulings in terms of economic winners and losers in our society?
Dale Russakoff: The Post published an extensive analysis last weekend of Alito's judicial record that answers this question. Here is a link that will get you to the article as well as a number of interactive aids that help you see how his record compares to that of other appellate judges.
One reason to look carefully at a judge's life experiences is that no matter how carefully judges try to stick to the letter of the constitution and the law, they all emphasize that they are human beings and no two of them see the laws exactly the same way. Understanding the human being doesn't tell you everything, but neither does his record. Issues will come up during his tenure on the Supreme Court, if he is confirmed, that haven't even taken shape yet. For that reason, it's helpful to know the "whole person" who will be sitting in judgment on such issues 10, 20 or more years down the road.
Kansas City: Alito's comment on Hank Aaron seems idiotic rather than great. Isn't the point of affirmative action to get people into position rather than impact outcomes?
Also if his 1985 job application statements should be viewed as just that, words designed to get a job rather than actual viewpoints, what does that say about the people running the Reagan Justice Department?
Jo Becker: Thanks for your question, Kansas City.
Alito's comments on Hank Aaron were praised by then Solicitor General Charles Fried. But they were criticized by others, who pointed out that there was no suggestion in the Wygant v. Jackson case that minority teachers were held to lower standards than white teachers. The Reagan administration felt that affirmative action programs should be limited only to individuals who could prove they were personally discriminated against. Their opponents felt that the whole point of affirmative action was to address a history of inequities that had left women and minorities behind their white male counterparts, whether they had personally experienced discrimination or not.
Dale Russakoff: For an in-depth look at the Wygant case--the affirmative action case for which Alito wrote the brief mentioning Hank Aaron--see The Tenth Justice, a book by Lincoln Caplan. Here is how he critiqued the Hank Aaron reference:
"It implied that affirmative action in the case of a Henry Aaron would mean moving in the fences, as if minority teachers in the schools were permitted to impart less knowledge to their students than other teachers. For the analogy to work, however, it had to describe how a black athlete like Aaron might realistically benefit from affirmative action-how he might get a special chance to prove his talents as a ballplayer and earn a job as a major leaguer. A minority teacher hired through affirmative action in Jackson [Michigan] was expected to perform in the classroom at the same level as his colleagues. Similarly, once an athlete stepped up to the plate, he would face the same pitcher and have to hit a home run over the same fence as anyone else."
Birmingham, Ala.: Don't Alito's "explanations" of various positions taken in job applications as contextual undermine his supposed qualifications for having a judicial temperament (e.g. Roe v. Wade is legally unsupportable? Women should not be admitted to Princeton?) Either he believed those things or he didn't when he wrote them, either he was part of "CAP" or he wasn't. If he was admit it. If he wasn't, admit he lied to get a job. Can we expect Alito to be called to give a straight answer to these questions in what is also a job application process?
Jo Becker: Hi Birmingham. This is an area that Democrats have promised to explore during the hearings beginning today, so we'll have to watch to see what Judge Alito has to say.
Arlington, Va.: What's with you people putting Alito's belief in Robert Bork's qualifications high in the story, like that's an indictable offense? Like it should make him unconfirmable? Do you believe that Robert Bork's legal career since 1987 shows that he couldn't be trusted for the court?
We viewed it not as indictable but as interesting. People have different views on Judge Bork, as was evident in his 1987 confirmation hearings. To some, his views that the only principled way to interpret the Constitution is to look at the actual words that the Framers used and what they were understood to mean at that time is a principled one. This camp believes that the judicial branch too often sees rights within the constitution that aren't there, and that if the people want rights like the right to abortion, they should vote to amend the Constitution. But to Judge Bork's critics, his is a frozen view that would wipe away many existing protections. This camp believes that the Constitution ought to be adaptable to changing times and societal mores. It might have been acceptable to execute a 17-year old in the 1700s, they argue, but not today.
Washington, D.C.: Isn't much of the hype about Alito overturning Roe just that, hype? Isn't there still a five-member pro-Roe majority?
Jo Becker: Thanks, Washington. You are correct that Justice Kennedy has voted with the more liberal members of the court in this area. The question most legal observers are focused on is whether there is a five-vote majority to reject certain abortion restrictions, such as parental consent laws and the like.
Austin, Tex.: It's always seemed to me that one of the most fundamental ways in which the world divides is between people who like/need lots of order and hierarchy in their lives, and those who don't.
I really think this explains a lot. Hierarchy people, for instance, are more likely to be attracted to the military. Non-hierarchy people, regardless of political attitudes, are more likely to appreciate the more anarchic aspects of the sixties. (Sometimes I even think this explains whether people prefer dogs or cats.)
I don't have a specific question, except to ask your thoughts on this broader issue, and why you think Alito came down on the side he did.
Dale Russakoff: Hello Austin. That's an very interesting thought. Alito came of age in an era --the 60s and 70s--when the "old order" was breaking down in many ways. As we pointed out, he went to universities where students overwhelmingly embraced the changes sweeping their society, but he ended up looking instead for order amid the chaos. The study of law his vehicle. His sister, Rosemary, an attorney who is very close to him, told us is that "he's a person who thinks carefully and who want things to proceed in an orderly fashion." It seems to have been something that was true of him from a very early age. To say why, we'd need a lot more information!
Jo Becker: We're out of time, but thanks so much for your interest and for joining us today. We've enjoyed it, and we hope you have too.
Dale Russakoff: Thanks so much to everyone for your interest. There's lots more information on www.washingtonpost.com. Check it out!
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Washington Post staff writers Jo Becker and Dale Russakoff discuss their two-part profile of Supreme Court nominee Samuel A. Alito Jr.
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12 Killed In Crash Of Copter In N. Iraq
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BAGHDAD, Jan. 8 -- An Army helicopter crashed in bad weather in northern Iraq shortly before midnight Saturday, killing all 12 Americans aboard, military authorities reported Sunday, and five Marines were killed in action in separate incidents over the past two days.
The UH-60 Black Hawk helicopter was flying between bases with another helicopter when communications were lost, the military said in a statement. A search mission located the wreckage at noon Sunday in a sparsely populated area about seven miles east of the city of Tall Afar, near the Syrian border.
Army Lt. Col. Edward Loomis, the spokesman for the 101st Airborne, said there were eight U.S. service members and four civilians aboard the helicopter.
The crash was the deadliest for the military since January 2005, when 31 troops were killed when a transport helicopter went down, also near the Syrian border.
Capt. Bill Roberts, a military spokesman in Baghdad, said that the cause of the helicopter crash Saturday was under investigation but emphasized that the craft went down during a night mission while encountering severe weather. Roberts said there were thunderstorms and high winds in the desert near Tall Afar at the time of the crash.
Bad weather and sandstorms have played roles in previous U.S. helicopter crashes in Iraq, including the January 2005 accident. Swirling sand can disorient helicopter pilots, especially when they are operating in the dark and using night-vision goggles. Military experts have said such storms can lead crews to momentarily lose their ability to distinguish up from down.
The military said the helicopter that crashed Saturday had been flying in support of Task Force Band of Brothers, a unit that is largely made up of troops from the 101st Airborne Division, based at Fort Campbell, Ky. Maj. Tom Bryant, a spokesman for the division's 3rd Brigade, said the helicopter was not from Fort Campbell but could not say to which unit it belonged or whether any soldiers from the Band of Brothers task force were aboard, the Associated Press reported.
The task force's area of operations is northern Iraq, where Tall Afar has been a major focus of U.S. military operations in recent months. American military commanders see it as one of the main bases of communication and support for the insurgency, dominated by Sunni Arabs.
"Our prayers are with the families of the aircraft crew and passengers," spokesman Loomis said in an e-mail.
The five Marines were killed in several attacks in central Iraq, the military reported. Three of them were killed by gunfire Sunday morning in separate attacks in the city of Fallujah, about 35 miles west of Baghdad, the military reported. The two others were killed when their vehicles were hit by roadside bombs Saturday in the towns of Karmah and Ferris, both of which are near Fallujah, the military reported.
Military authorities would not release the names of any of the 17 Americans killed, or provide more details on the circumstances of their deaths, until their relatives could be notified.
In Baghdad, efforts to form a national government continued following parliamentary elections held Dec. 15. In the latest move, a coalition of Kurdish parties announced Sunday that it would nominate Jalal Talabani, the country's president, to a new term.
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World news headlines from the Washington Post, including international news and opinion from Africa, North/South America, Asia, Europe and Middle East. Features include world weather, news in Spanish, interactive maps, daily Yomiuri and Iraq coverage.
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Israeli Doctors Preparing to Bring Sharon Out of Coma
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JERUSALEM, Jan. 8 -- Doctors plan to begin the delicate process of reviving Israeli Prime Minister Ariel Sharon from a medically induced coma Monday and start assessing the scope of any brain damage he might have suffered during a massive stroke last week.
Sharon, 77, underwent a scheduled brain scan Sunday so doctors could measure intracranial pressure and look for new bleeding. The results showed the condition of his brain had improved slightly, a determination consistent with two previous scans taken since the last emergency surgery to stop hemorrhaging.
The director of Hadassah-Ein Kerem Hospital, where Sharon is being treated, said the most recent test showed that the level of swelling in Sharon's brain had declined overnight. His overall condition remains critical but stable.
"In light of all these factors, the panel of experts decided to start the process of taking him out of the sedation" Monday morning, said the director, Shlomo Mor-Yosef. "This all depends, of course, on whether the prime minister makes it until tomorrow without any significant incidents."
The announcement came as Sharon's cabinet convened for its first regular meeting since the prime minister was taken to the hospital Wednesday evening complaining of chest pain. He suffered what doctors described as a severe stroke, followed by extensive bleeding in the right half of his brain that took surgeons three rounds of emergency surgery to stanch.
His doctors said the left side of his brain, which controls speech and other important faculties in right-handed people such as Sharon, may not have suffered damage from the hemorrhage-induced swelling, as they had originally feared.
Ehud Olmert, the deputy prime minister who has temporarily assumed authority of the government, ran the cabinet meeting from his regular chair. Beside him was the larger seat usually occupied by his longtime political ally.
"Israeli democracy is strong and all institutions are functioning in a stable, serious and responsible manner," Olmert said. "This is how it should be and this is how it will continue."
Olmert, a former Jerusalem mayor and longtime hawk, is a leading candidate to succeed Sharon as head of the Kadima party should the prime minister be unable to return to politics.
Many doctors and politicians say they believe that will be the case.
Olmert endorsed Sharon's evacuation of 8,500 Jewish settlers from the Gaza Strip last year, an operation that divided their hawkish Likud Party. He then joined Sharon in Kadima, the new centrist movement that the prime minister forged to push for a final settlement with the Palestinians, most likely on his terms.
With national elections set for March 28, decisions about Kadima's future have been largely frozen during Sharon's health crisis. The party, cobbled together mainly from defectors from Likud and the rival Labor Party, has not selected a candidate list for the elections.
Party unity appeared to receive a boost Sunday when Shimon Peres, the onetime Labor leader and former prime minister, ended his silence about whether he would continue with Kadima or return to his old party by telling Israel Radio that he supported Olmert.
Doctors said Sharon would be roused in carefully monitored phases. He has been kept unconscious to give his brain time to heal from the hemorrhaging and subsequent surgeries.
Doctors not directly involved in the case said his physicians would likely keep him awake just long enough to administer the first tests. Mor-Yosef said doctors would be looking for "some sort of response" after Sharon gains consciousness.
"If there is no response," he told reporters, "that would be bad news."
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JERUSALEM, Jan. 8 -- Doctors plan to begin the delicate process of reviving Israeli Prime Minister Ariel Sharon from a medically induced coma Monday and start assessing the scope of any brain damage he might have suffered during a massive stroke last week.
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The Steelers Carry On
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CINCINNATI, Jan. 8 -- Cincinnati Bengals Coach Marvin Lewis said last week his team was "going into an alley" with the Pittsburgh Steelers in the opening round of the playoffs, "and only one of us gets to come out."
Little could he know that the first victim of this rumble at Paul Brown Stadium on Sunday would be his own Pro Bowl quarterback, Carson Palmer.
Moments after launching a 66-yard completion to wide receiver Chris Henry on the Bengals' second offensive play of the game, Palmer tore ligaments in his left knee, a season-ending injury, when 300-pound defensive end Kimo von Oelhoffen was blocked into him from the quarterback's blind side by guard Eric Steinbach. Palmer crumpled on the field, writhing in pain, and had to be carted to the locker room as backup Jon Kitna trotted in to replace him.
Kitna, the Bengals' starter two years ago, led his emotionally charged team to early 10-0 and 17-7 leads, but the loss of Palmer and, four plays later, Henry, also with a knee injury, eventually was too much to overcome for Cincinnati. Playing in their first postseason game in 15 years, the Bengals unraveled in the second half as Pittsburgh's defense began dominating and Steelers second-year quarterback Ben Roethlisberger, using a dazzling trick play for one 43-yard touchdown pass, rallied his team to a 31-17 victory in front of 65,870.
The Steelers' fifth straight triumph, and second win in this stadium this season, advanced them to a second-round game on the road against the AFC's top seed, the 14-2 Indianapolis Colts, on Sunday.
"I knew right away it was bad," Palmer said. "I felt my whole knee pop. It was just a sickening feeling because I knew what it was and I knew my season was over."
Lewis refused to blame Palmer's injury for the Bengals' loss.
"It's over," he said. "It's not devastating. Carson has an injury. He'll be back. We as a football team need to learn from this.
"We came here as a team and we have to leave here as a team. We need to understand it's about working through the tough times. . . . Keep your eye on the target. Do your job."
Bengals tackle Willie Anderson said Palmer's injury "raised our awareness in the huddle. Guys were ticked off, mad. We knew we didn't have our usual gunslinger in there. . . . You immediately thought it was a dirty hit. But I know Kimo. He's not a dirty player. He's a good guy and he plays hard. He was immediately remorseful. It's just an unfortunate play."
The Steelers came into the game with an 0-3 record in playoff road games under Coach Bill Cowher, who is now 8-2 in opening-round postseason games over his 14-year tenure. Roethlisberger threw three touchdown passes, matching his career high, and the Steelers, sending wave upon wave of blitzers, shut out the Bengals' struggling offense in the second half and intercepted two of Kitna's throws.
"I feel very badly about Carson Palmer," Cowher said. "It's an unfortunate accident. You hate to see someone's season end like that. . . . What happened was nothing that was intentional and I don't think anyone would interpret it that way."
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Pittsburgh knocks out Carson Palmer on his first passing attempt but still must come from behind for a 31-17 win over Cincinnati.
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On Heels Of Ehrlich, GOP Plans Md. Ascent
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2006010919
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When longtime state Sen. Robert H. Kittleman died in 2004, he left behind blueprints for turning Maryland into a Republican stronghold. They were found clipped to political maps and census data on a shelf in his Howard County farmhouse.
Kittleman's son says his father knew these were fanciful plans -- that it could take generations to turn Maryland from one of the nation's most reliably Democratic states to one where Republicans compete on equal footing for political power.
But this year, as Robert L. Ehrlich Jr. becomes the first Republican governor in half a century to seek a second term, top party leaders are dusting off Kittleman's dreams. True party realignment remains a distant goal, they say, but the political season that begins as the General Assembly convenes Wednesday will be guided by their desire for lasting influence in state affairs.
"We've been in the desert for 36 years," said John Kane, the state GOP chairman. "The governor has given us a toehold. Now we'll see if we can become truly relevant."
Maryland Republicans say the model for what's possible sits just across the Potomac River. In Virginia, GOP leaders toiled for decades to climb from the back benches of power to ultimately control both legislative chambers.
A similar effort in Maryland faces significant obstacles. An election defeat for Ehrlich this year, first and foremost, would set back any attempt to gain Republican footing. Demographics also pose a challenge. Unlike Virginia, this is a state where Democrats outnumber Republicans nearly 2 to 1 on voter rolls. And in the state's three largest jurisdictions -- Montgomery, Prince George's and Baltimore -- Democrats have widened that advantage in recent years.
But top Republican officials said the party is borrowing many of the ideas that started Virginia down the path to realignment three decades ago.
In addition to their focus on the Maryland governor's race, they believe the bid by Lt. Gov. Michael S. Steele (R) to capture an open U.S. Senate seat could provide inroads into the state's most reliable Democratic voters: African Americans. The GOP is targeting the state's populous blue-collar suburbs and fast-growing exurbs, where party leaders hope to pick up as many as 14 seats in the House of Delegates and seven in the Senate this November.
And they're already contemplating 2010, when a win in the governor's column could give them control over redistricting and crack open a state where, just a few years ago, Republicans felt like foreigners.
Richard E. Hug, the fundraising muscle behind Ehrlich's 2002 and 2006 campaigns, still remembers how he felt shortly after the 1994 election, when Republican Ellen R. Sauerbrey narrowly lost to Parris N. Glendening. Not long after, Hug was at dinner with James S. Gilmore III, who was then Virginia attorney general and went on to become governor.
"I was bemoaning the fact that, you know, we lost, whereas these guys in Virginia had done such a good job, and I asked him, 'How did you guys do that?' " Hug recalled. "He said, 'Dick, it just takes time, patience, and a lot of hard work. You guys can do the same thing.' "
Twenty years ago, most greeted the notion of political realignment in Virginia as a harebrained idea, said S. Vance Wilkins Jr., the former House speaker who is largely credited with orchestrating the Republican takeover there.
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When longtime state Sen. Robert H. Kittleman died in 2004, he left behind blueprints for turning Maryland into a Republican stronghold. They were found clipped to political maps and census data on a shelf in his Howard County farmhouse.
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Despite Predictions, Charitable Donors Just Keep Giving
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2006010919
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For weeks, many nonprofit organizations have been predicting that the billions of dollars that Americans poured into relief funds last year to help the victims of epic disasters -- the South Asia tsunami, Hurricane Katrina and the Pakistan earthquake -- would result in "donor fatigue." Donors would grow weary of charitable giving after contributing to disaster-relief groups and desert their regular causes, the theory went.
But as checks are counted and online donations tallied, it turns out that 2005 was very good to many nonprofit organizations in the Washington area and elsewhere.
"People have heard that it's important to help the victims of the hurricane but that it's also important to help everyone else," said Anthony De Cristofaro, executive director of the Combined Federal Campaign of the National Capital Area, the annual fundraising drive among local federal employees. He said he expects the fund drive, which will conclude at the end of the month, to comfortably top last year's total of $56 million.
The Jewish Federation of Greater Washington had an exceptional year, said chief executive Misha Galperin. Gifts to the federation's endowment fund doubled to $18.3 million, contributions to its annual fundraising drive climbed by $2 million to $24 million and the federation raised $1.6 million for tsunami and Katrina relief funds, he said. Galperin attributed the growth to the Washington area's strong economy and the federation's initiative to reach out to more Jews in the area.
The news is also good nationally.
"I think it's going to be a banner year," said Stacy Palmer, editor of the Chronicle of Philanthropy. In a recent survey, the publication found that many of the nation's biggest charities are raising as much or more than they did in the late 1990s, when the strong economy and booming stock market boosted charitable donations a startling 50 percent from 1996 to 2000.
"It's so logical to think that there would be this donor fatigue, but there's not much evidence of it," said Eugene Tempel, executive director of the Center on Philanthropy at Indiana University, who studied 40 years of charitable donation data and found that growth in personal income is the most important factor in the overall level of giving.
Surveys find that individuals, foundations and corporations that contribute to disaster-relief funds do so in addition to their regular donations to non-disaster charities.
Tempel pointed out that disaster giving actually makes up a small slice of overall charitable donations in the United States. Nationally, charitable giving is about $245 billion a year, of which total donations to Katrina and the tsunami -- about $5 billion -- constituted 2 percent, according to tallies by the Center on Philanthropy.
Some charities not connected to disaster-relief efforts said last week that last year's catastrophes, particularly Hurricane Katrina, actually helped their fundraising efforts because they heightened awareness of nonprofit groups that aid the needy.
Cultural institutions in the Washington area also reported solid growth in fundraising.
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Complete Coverage on Hurricane Katrina and Rita including video, photos and blogs. Get up-to-date news on the aftermath of Hurricane Katrina and Rita, news from New Orleans and more.
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Mine Disaster's Terrible Irony: A Failure to Look Deeper
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2006010919
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It was the most heart-rending and humiliating botch of a life-and-death story in modern memory, yet most journalists, naturally, aren't blaming themselves.
It was everyone else's fault, they say. We just published and broadcast what we were told, and it turned out to be wrong.
Tragically wrong, as in the Washington Post headline in Wednesday's late editions: "12 Found Alive in W.Va. Coal Mine." Or USA Today's banner: " 'Alive!' Miners Beat the Odds." Or the Atlanta Journal-Constitution: "12 Miners Alive." Or Newsday: "Miracle in the Mine."
All the cable news networks got it wrong as well, such as MSNBC's Rita Cosby: "We have some stunning news. NBC News and the Associated Press have just confirmed information that the 12 miners, remember 12 were missing, that they are alive. This is incredible news."
Hours later came the chilling confirmation that all but one were dead.
AP Managing Editor Mike Silverman offered a typical response: "AP was reporting accurately the information that we were provided by credible sources -- family members and the governor."
But the "credible sources" were simply misinformed, just as the New Orleans police chief erroneously declared after Hurricane Katrina that people had been raped and murdered in the Superdome. In this case, a misunderstood or misspoken message from rescuers in the mine was relayed to a command center and then to anxious family members, who told reporters. While the mining company's refusal to correct the misinformation for hours is inexplicable, the situation was exacerbated by the journalistic reluctance to say the facts are unconfirmed and we just don't know. Experienced journalists should have understood that early, fragmentary information in times of crisis is often wrong.
Washington Post Executive Editor Leonard Downie says the only thing he would change "would be to attribute the lead, as opposed to The Washington Post saying it flatly. That would have been an accurate story, that people were saying [the miners] were alive and jumping around joyously. Obviously, everybody believed they were alive. . . . I think the media's performance here was fine under the circumstances."
The larger issue is that much of the press has abandoned reporting on health and safety regulation until disaster strikes. How many reporters have dug into the Labor Department's Mine Safety and Health Administration, which under the Bush administration was run by a former Utah mine manager until last year? About as many as did pieces, before Hurricane Katrina, on why a former Arabian horse official was running the dysfunctional bureaucracy of the Federal Emergency Management Agency. Heck of a job.
"I have tried to get the general press interested," says Ellen Smith, owner of the trade publication Mine Safety and Health News. "I just kind of gave up."
The mine agency has received scant coverage, even as it has changed -- critics say softened -- the Clinton administration's enforcement approach. Since 2001, according to a database search, The Post has published three staff-written stories on mine safety not related to a specific accident; the New York Times, two; Wall Street Journal, one; Chicago Tribune, one; and Los Angeles Times and USA Today, none. "60 Minutes" did one segment on a mine safety whistle-blower.
Perhaps the most persistent reporter has been Ken Ward of West Virginia's Charleston Gazette, who says that under the Bush administration, the mine safety agency "started clamping down on folks like me" and "people we dealt with all the time were all of a sudden instructed not to talk." Ward says the agency didn't tell the Gazette of a media conference call last week: "It's pretty amazing that a federal agency would hold a briefing on the biggest mining disaster in West Virginia in 40 years and exclude the biggest paper in the state."
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It was the most heart-rending and humiliating botch of a life-and-death story in modern memory, yet most journalists, naturally, aren't blaming themselves. In his 15 years as editor of the New Orleans Times-Picayune, Jim Amoss never shed his journalistic objectivity -- until now. He has become......
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The Family Reunion Trip: It's All Relatives
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2006010919
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Regina Belle raised her velvety voice and belted out a gospel tune that left the Atlanta Hilton ballroom in awed silence. For the Grammy-winning recording artist, the song may not have been as snazzy as "Baby Come to Me," "A Whole New World" or her other smash hits. But the audience -- a biennial gathering of 165 cousins, uncles, aunts and other relatives -- made the performance unforgettably poignant.
"In here, I am not a star. I am one member of an extraordinary family," she said. "And this is no regular meeting. It's an extraordinary reunion."
Was it ever. The three-day Fisher Family Reunion 2005, held Labor Day weekend, included three gospel performances, two moving speeches (including a resounding tribute to the institution of family), a sightseeing excursion, a gourmet candlelight dinner and a Saturday night R&B dance that jammed into Sunday morning.
Spectacular? For sure. Unique? Not really. During the same weekend, 21 other major African American family shindigs were taking place around the Peachtree City, according to the Atlanta Convention & Visitors Bureau.
For African Americans, reunions are the next big thing. The general population may be drawn to increasingly popular couples-only resorts and other venues designed to escape the din of relatives, but African Americans' travel tastes are shifting in the opposite direction. Destination reunions are in. Solo getaways are out.
"The tide of mega-gatherings among African American families is high and rising," said Stephen Criswell, a University of South Carolina professor who has researched the sociology of African American get-togethers. "The more threats that are posed to families by dislocation and other social issues, the stronger the effort to preserve certain rituals like reunions." The gatherings have also evolved from small folksy get-togethers to full scale, carefully orchestrated celebrations.
And the pageantry of African American reunions is flourishing, too, according to Edith Wagner, editor of Reunions Magazine. "The men often sport tuxedos. The woman get dolled up in sorority dresses. And everybody is decked out in fabulous hats. Now I call that an event."
As part of an Oklahoma-based mini-African American dynasty that includes five brothers, four sisters and dozens of uncles, aunts, cousins, nieces and nephews, I am more than familiar with the reunions ritual. Still, I wondered why African Americans will drive halfway across the country to commune with second and third cousins once removed when folks from other cultures want to bolt out the back door when their relatives pull up in the driveway.
What makes African Americans place reunions at the exalted level of weddings and funerals? And how does someone with little experience successfully execute a multi-generational gathering of a clan with all of the branches, factions and issues that most families have?
For answers, I took a close-up look at one family's gathering: the Fishers, a clan with a strong Georgia contingent whose history closely tracks that of many African American families. They are the descendants, by blood or marriage, of Orange and Berry Fisher, two brothers born in the late 1800s in Lancaster County, S.C. Both took up cotton and potato farming and, between them, fathered 16 children. In the late 1940s and '50s, the grandchildren began to migrate to New Jersey and other parts north in search of better jobs. The two brothers died in the 1950s. Their descendants have been meeting every two years since the late 1990s.
Now the Fishers were rolling in, steering everything from Chevys to Land Rovers into the driveway of the Atlanta Hilton. The organizing committee expected between 150 and 200 family members to attend, including several dozen from around Atlanta. The 40-person-strong South Carolina contingent had chartered a bus for the trip. Others had flown in from Washington, Denver and other parts. At the registration desk, they traded hugs and picked up their green-and-gold reunion T-shirts (blue for organizers) and the program for the three-day event.
The kickoff was low-key -- a reception in the Hilton ballroom, followed by a buffet supper of fried chicken, potato salad and baked beans served on paper plates -- but emotions rolled through the room like a strong breeze on a summer morning. Sammy Fisher, 68, and his cousin Frank Cauthen, also in his sixties, embraced until their eyes welled up. Ellen Fisher and Sue Hopkins, cousins with the same infectious guffaw, fell into each other's arms and did a jig. And no wonder: Many attendees hadn't seen one another since the 2003 reunion in Charlotte. "It's like two years of feelings just come tumbling out," Etta explained.
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For African Americans, reunions are the next big thing and according to one scholar, "the tide of mega-gatherings . . . is high and rising."
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Bird Flu Appears to Spread West
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2006010919
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JAKARTA, Indonesia, Jan. 9 -- Two children and an adult from a town near the Turkish capital tested positive Sunday for a lethal strain of bird flu as the virus continued to spread west from its source in East Asia toward Europe.
The preliminary test results, which must still be confirmed by the World Health Organization, came days after a teenage brother and sister from a village in the far east of Turkey died from the H5N1 strain of bird flu in the first confirmed human cases of the disease outside Southeast Asia and China. Bird flu was also suspected in the death of a third sibling, but test results remain inconclusive.
Turkish medical authorities reported Sunday that as many as 10 Turks have been infected.
Some of these cases have appeared in family clusters, raising concern that the disease might have begun spreading more easily among people. But international health experts said they find it more likely that the human cases in Turkey were caused by contact with infected birds, when children were playing with slaughtered chickens or crawling into henhouses, for example.
Influenza experts have said they suspect that in Thailand, Indonesia and Vietnam, the virus has already demonstrated the ability to be transmitted among humans. In each of these instances, however, the disease only infected members of an immediate family and did not spread further. That would indicate that the ability of the virus to spread among people remains limited.
If it develops into a form easily transmitted from one person to another, international experts warn the virus could spark a global pandemic and kill tens of millions of people.
Turkish doctors reported that two of the newest cases were in children, ages 5 and 2, who had been playing with dead wild birds near their home in Beypazari, about 60 miles west of Ankara, the capital. Tests on their parents were negative. A 60-year-old man had also been diagnosed with the disease.
All three are now being treated in an Ankara hospital. Turkish officials said they have ordered a mass slaughter of birds in the capital region to stem the further spread of the disease.
Turkey's Anatolia news agency reported Sunday that the epidemic in birds had already reached the west of the country, where infected chickens had been found in the area of Bursa, about 200 miles from Ankara. Sick poultry have now been identified in 15 locations, including Istanbul, agriculture officials said.
Initial tests conducted at a British laboratory on samples taken from infected poultry in Turkey indicated that the strain of bird flu remains similar to the one that infected birds last year across a broad swath of Eurasia running from western China and Mongolia across Russia to Ukraine and Romania, said Maria Cheng, a WHO spokeswoman.
Experts are awaiting results from additional tests at a separate British laboratory on human samples from Turkey, she added. Scientists are eager to see the outcome of detailed genetic sequencing that could show how the highly changeable bird flu virus has evolved since it spread from East Asia, where it has infected more than 140 people since 2003.
WHO has dispatched two teams to investigative the Turkish outbreak, Cheng said. After delays caused by poor weather, one arrived Sunday in the eastern Van region, where the initial cases were identified, more than 500 miles from Ankara. A second team remains in the capital.
Iran, which borders eastern Turkey, has closed its frontier in response to the outbreak, turning back Turks who had hoped to visit this week for a major Muslim festival.
Russia's chief state epidemiologist, Gennady Onishchenko, was quoted by the Interfax news agency as urging Russians to refrain from traveling to Turkey, especially the eastern region hardest hit by the outbreak. Eastern Turkey is a popular tourist destination for Russians.
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JAKARTA, Indonesia, Jan. 9 -- Two children and an adult from a town near the Turkish capital tested positive Sunday for a lethal strain of bird flu as the virus continued to spread west from its source in East Asia toward Europe.
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A Bittersweet 'Champagne of Maine'
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2006010919
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PORTLAND, Maine -- The dark-brown liquid that some people call "the champagne of Maine" tastes, to the uninitiated, like equal parts alcohol, sugar and coffee-pot slag. It puckers the cheeks, coats the tongue with syrupy sweetness and leaves a mouthwash feeling on the lips.
This is coffee-flavored brandy. It is one of the odder stories of American imbibing, the number-one-for-20-years-running liquor obsession of Maine.
The caffeine-infused spirit, largely unknown outside New England, is a staple at house parties, mill town bars and urban street corners here -- popular enough that a Bangor newspaperman once suggested putting it on the back of Maine's state quarter.
On the other hand: "I've thought, in more than one case, that you can put it on someone's headstone," said Erik Steele, an emergency-room physician who works at four hospitals in rural Maine.
In this state, it turns out, everything that is both fun and tragic about alcohol is embodied in the same intensely bittersweet drink.
"People are addicted to coffee brandy here," said Barbara Dacri, executive director of a Portland-based treatment center called Crossroads for Women.
Compared with those of other states, Maine's totals of chronic and binge drinkers are not terrifically high. But officials say alcohol remains this state's most readily available and widely destructive drug, cited by 59 percent of those seeking substance-abuse treatment here.
And in Maine, officials say you can't talk about alcohol for long without talking about one particular brand: At last tally, the best-selling bottle of hard liquor in the state was the roughly half-gallon container of Allen's Coffee Flavored Brandy. The No. 2 seller was . . . the liter-size bottle of Allen's.
According to the state, Allen's sells 98,000 cases of its 60-proof spirit a year -- more than double the second-best-selling spirit. It has been Maine's favorite for two decades.
"We're very grateful to the consumers of Maine," said Gary Shaw, a vice president at M.S. Walker Inc., which makes Allen's by combining coffee extracts with "neutral brandy" at its plant in a Boston suburb.
At Raena's Pub in the northern city of Bangor, bartender Carrie Smith said she can easily spot the brandy drinkers.
"Bleached-blonde, teased hair. . . . They always play the 'Redneck Woman' song" on the jukebox, she said, describing the typical drinker who orders a "sombrero," or Allen's mixed with milk. Smith said she once saw a woman dump her cocktail on the head of a beer-drinking man who referred to the drink by its nickname, "fat ass in a glass."
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PORTLAND, Maine -- The dark-brown liquid that some people call "the champagne of Maine" tastes, to the uninitiated, like equal parts alcohol, sugar and coffee-pot slag. It puckers the cheeks, coats the tongue with syrupy sweetness and leaves a mouthwash feeling on the lips.
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Hussein-Era Symbols Disappear Under Edict
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2006010919
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BAGHDAD -- The fountain shaped like a ship was stripped bare and reduced to a pile of crumbled marble and concrete in Museum Circle. Other sculptures, of a helmeted soldier, a sheaf of wheat and a cluster of people holding up sunflowers -- all erected as symbols of prosperity and power under Saddam Hussein -- were removed.
On Palestine Street, the statue of an Iraqi soldier, his arms tied between two vehicles pulling them out of their sockets, was taken down, too. The monument was dedicated to prisoners of the eight-year Iran-Iraq war, and while Hussein's Baath Party was in power, all Iraqi schools observed a moment of silence every Dec. 1 to commemorate the horror it depicted.
In a decision in October that has polarized residents of the capital, the officially sanctioned Debaathification Committee ordered the removal of memorials and monuments it deemed offensive. The move has brought a sensitive issue into sharp focus: How much of the era of Hussein, now on trial for crimes against humanity, should be preserved for posterity?
The committee, which also vets former members of the Hussein government for inclusion in the current government, drew up the edict on the monuments, labeled Document 900, in secret. It has never been made public. The list of memorials to be removed throughout the country has not been disclosed.
"Our task is to take down the symbols of the former regime that remind people of the bloody era of the former regime," said Khalid Shami, general manager of the committee's educational and cultural section, who acknowledged in an interview that the decision had been made. "Anything connected to the Baath Party is going down."
Shami said the Baath Party monument in Museum Circle was the first to be removed as an obvious symbol of Hussein and his rule. The memorial to prisoners of the Iran-Iraq war was taken down, he said, because it "represented huge propaganda for a lie Saddam Hussein passed to people."
But many people here have been appalled by the destruction of the monuments, as well as the stealth with which the committee has gone about its work. There was no public consultation on the decision to tear down the statues, and residents learned of it only after they began noticing that pieces of statues were missing.
Nidhal Mawsawi, a columnist at Azzaman newspaper, compared the committee's actions to removing American monuments to the Holocaust or the Civil War -- painful periods in history that are nonetheless worthy of memorialization.
"These monuments and statues should not be removed completely," Mawsawi said. "Only the parts that represented the crimes of the former regime should be removed and put in a museum, just like the museums in Germany. These statues represent a period of time in the Iraqi history, even if it was not good. I think this is the reason behind the disappointment of the people."
Shami said the committee had divided the effort into phases. The first called for the removal of the Baath Party monument and others related to Hussein. Next, the committee will remove less significant tributes, including paintings, pictures and the small statues from the decades-long Hussein era that remain in public buildings. Last, the committee will erase the graffiti and slogans of the former government on walls and buildings around the country.
When Iraqi residents first noticed pieces of the monuments disappearing in October and learned through Iraqi newspapers that this was official policy, the news created an uproar. Even many Shiite Muslims and Iraqi Kurds, who were persecuted under Hussein and the Baath Party, called on the government to stop removing the monuments, arguing that they were necessary reminders of their suffering and an important part of the country's history.
One of the most staunch critics of the decision was the mayor of Baghdad, Sabir Isawi, a religiously conservative Shiite Muslim from the Sadr City neighborhood whose ornate office is adorned with a tall, wooden lattice of the Baath Party symbol, an eight-pointed star. In an interview, Isawi said only parts of the monuments should have been removed.
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BAGHDAD -- The fountain shaped like a ship was stripped bare and reduced to a pile of crumbled marble and concrete in Museum Circle. Other sculptures, of a helmeted soldier, a sheaf of wheat and a cluster of people holding up sunflowers -- all erected as symbols of prosperity and power under Saddam...
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Taylor Not Likely to Be Suspended
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2006010919
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Gene Upshaw, executive director of the NFL Players Association, said he has contacted league officials regarding the ejection of Redskins safety Sean Taylor from Saturday's playoff victory in Tampa Bay and is certain Taylor will not be suspended for Saturday's NFC semifinal game at Seattle. Game officials said that Taylor spit in the face of Buccaneers running back Michael Pittman, issued Taylor a 15-yard penalty and ejection, and did not penalize Pittman for a retaliatory slap to Taylor's head.
Upshaw said yesterday that he has discussed the matter with NFL Commissioner Paul Tagliabue, and will speak to him again today after the league investigates the incident internally. Taylor, who has declined to discuss the ejection with the media and has incurred several fines during his brief career, told teammates and coaches that he did not spit on Pittman. But Upshaw said, "I don't think it's alleged," and expects the NFL to levy a significant fine.
"I know Paul does not want to take a player off the field in the playoffs," Upshaw said. "I know Paul, and I'm confident he won't do that. In fact, I know he won't do that. But I also know he'll hit him with a stiff fine, and we'll also have to look at his past history. I can certainly tell you the league office is aware of that."
Greg Aiello, the NFL's vice president of public relations, said the league had no comment yesterday but plans to address the matter this week.
A league source familiar with the case, speaking on the condition of anonymity because the matter remains under consideration, said that Taylor likely faces a significant fine, but probably will not be suspended. Nothing is certain because the deliberations are not complete, but league officials do not seem to feel the circumstances of the case warrant a suspension, the source said.
Taylor already has a reputation as a vicious hitter and premier playmaker. He has been in disciplinary trouble since being drafted fifth overall out of the University of Miami in April 2004. He was fined $25,000 for missing part of a mandatory rookie symposium that summer, accrued $17,500 in fines for unnecessary roughness penalties on consecutive weekends, suffered repeated fines for violating the league's uniform standards and was accused of spitting by Cincinnati wide receiver T.J. Houshmandzadeh, but the league found insufficient evidence to punish him for that.
Taylor was arrested for driving under the influence as a rookie -- he was later acquitted -- and faces a Jan. 17 trial date on felony weapons charges for allegedly pulling a gun on individuals he believed stole two all-terrain vehicles from him in Miami.
"I'll be arguing that he hasn't done this before, or at least it hasn't been proven that he has," said Upshaw, who will also represent Pittman's interests in the matter. "I'll be saying, 'He's done some crazy [stuff] before, but not this crazy [stuff].' I've got nothing else I can argue. He's going to get a fine. There's no doubt about that. There's no room for that in the game. But he won't get taken off the field."
Redskins Coach Joe Gibbs said that if Taylor did indeed spit, then "we can understand someone getting kicked out of the game." Several players said they are optimistic Taylor will face a fine, rather than a suspension, but the risks of such actions are too high with so much at stake.
"I think that's a lesson most of the guys need to learn for the playoffs," cornerback Shawn Springs said. "Right now I don't think we're deep enough on offense or defense where we can afford to lose any of our best players. We just can't do it. . . . I hope he doesn't get suspended or anything."
Maske reported from East Rutherford, N.J.
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Gene Upshaw, executive director of the NFL Players Association, says he is certain Sean Taylor will not be suspended for next week's game against Seattle after spitting at a Bucs player.
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Opinion: Military Use of Propaganda in Iraq
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2006010919
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Read more: 'Hearts and Minds' in Iraq , ( Post, Jan. 10, 2006 )
Studio City, Calif.: Your op-ed conflates several issues, thus obfuscating and dodging the real ethical questions raised by the Pentagon's use of propaganda in Iraq. As the LA Times initially reported on 11/30/05, the U.S. military was "secretly paying Iraqi newspapers to publish stories written by American troops" and presenting them as "unbiased news accounts written and reported by independent journalists." This is far different from helping to support a newspaper without its editors' knowledge and certainly a far cry from translating a pre-existing book and distributing it (you fail to disclose the book or the leader). Parse the specifics if you wish, but for instance, when I hear Robert Novak speak, I expect a particular political slant but I do not expect to hear that he was paid money by an outside entity to espouse a specific view, as was the case this for Armstrong Williams, several thinktank writers (for Abramoff), and apparently, those that wrote for the Pentagon. Advocacy is far different than propaganda but I'm sure you know this. You touch on this briefly when you state that in past programs the CIA had not "manipulated the final product." This cannot realistically be said of the Pentagon.
While I (and other readers, I'm sure) appreciate a thoughtful, contrarian piece, as of yet you've only provided an interesting sidebar to the real issues. The use of propaganda raises profound ethical issues, especially given our stated goal of spreading democracy in Iraq. The other key issue is, is it effective? You write that one can't gauge the full effective of covert operations, but you suggest they have been highly useful in the past. Have you read -any- (independent) source in Iraq in the Middle East that has praised or defended this use of propaganda? It makes us look, very, very bad, and further undercuts our credibility. Your chief objection to the current operation is that it was botched. Do you really think an Iraqi family still without steady electricity, clean water, or income is going to be swayed by reading an upbeat newspaper article? Do you really think, even -before- the propaganda revelation, such articles were not suspect to Iraqis, who are accustomed to state-controlled news? (Read Morley's world news blog.) If we really want to win "hearts and minds," our energy would be better served focused on performance, not PR.
Reuel Marc Gerecht: You bring up several questions. I'll just answer a few. First, I don't think it is ethically or professionally wise for US officials to masquerade as journalists, if that is in fact what happened. I have no problem at all with the US government paying Iraqis, overtly or covertly, to start newspapers that promote democracy. I have no problem with the US government paying Iraqi intellectuals and scholars to write about post-Saddam Iraq and the merits of an open society. I don't see US covert sponsorship as necessarily corrupting---if so, then you have damned an amazing number of the best Western minds of the twentieth century. An examination of Cold War history I think leads one to the opposite conclusion: that covert US aid helped Europeans to establish a free and vigorous civil society. Is this work effective? This is an excellent question. When looking at the enormous range of CA projects in the Cold War, I certainly can't answer that question case by case. These things are cumulative. The evil of Soviet communism certainly by itself was the best teacher, but if we recall, the number of people, particularly on the left, who did not see this evil, who recoiled from appending the word to the USSR and its satellites, was astonishing. Even in the 1980s, when the nature of the regimes should have been evident to the blind, deaf, and dumb. The debates that the CIA helped provoke--the platforms that it covertly funded--unquestionably, I think, helped to expose this villany and the weaknesses in the arguments on the other side---particularly in the 1950s and 1960s. Best, RMG
Washington, D.C.: I look forward to published responses to Mr. Gerecht's article. His Cold War analogies, to the extent that they point to anything other than conjecture, seem inapposite to me: in this age of Internet and satellite communications nothing stays covert for long. And once the US propaganda becomes public knowledge, as it has and as it will, isn't it just one more weapon to be used against our interests?
Reuel Marc Gerecht: Actually, Internet and satellite communications don't change at all the basic rules of running covert operations. Some covert operations will become pubic. That was true in the 1950s, and thereafter. Most didn't however. And even when they do, their achievements are not necessarily compromised. Encounter, for example. Organizing and funding anti-communist socialist labor movements in Western Europe would be another. There are many more. Best, RMG
Wichita Falls, Tex.: I don't think you addressed the main criticism of the Lincoln Group program: that its anti-free press nature damages our efforts to create a democratic society. When we don't practice what we preach, we look like hypocrites with ulterior motives. All of the CIA programs you mention--RFE/RL, book distribution, and funding of opposition press--were rooted in the idea of and worked to spread free speech. Covert or not, they were honest. The Lincoln Group program, however, puts a false name on our own content. It tells Iraqis that we're willing to lie to them to win them over. Doesn't this run counter to our goals to establish democracy in Iraq?
Reuel Marc Gerecht: The vast majority of CIA programs during the Cold War were covert and in that sense falsely labelled. The historical case for these programs aiding the growth of free speech and free inquiry in post-war Europe is pretty strong. I don't ethically or professionally see why the case should be different in Iraq. I would, however, stop using the Lincoln Group and force Langlety to again develop the expertise necessary to conduct covert operations in Iraq, and elsewhere in the Middle East. Best, RMG
Alexandria, Va.: Why did the CIA move away from propaganda operations? And how can it move back in to that field of work?
Reuel Marc Gerecht: Within the clandestine service of the CIA, there was from birth tension between the covert-side of the house and the practitioners of espionage. To make a very long story unacceptably short, espionage won and covert action passed into desuetude after the Reagan years. Best, RMG
Washington, D.C.: Have you ever been affiliated in any way, shape, or form with the Lincoln Group, yourself, as has your colleague Michael Rubin? If so, have you ever been compensated in any way, shape, or form for any work or consultation you've done for them?
Washington, D.C.: I read your article and couldn't help but think that the comparison between Iraq and Western Europe is a difficult one to sell. Western Europeans after World War II were not nearly as suspicious of American ambitions in the region as Arabs tend to be today. More to the point, it appears that the taint of American influence really does have the undesired effect of discrediting those who may, for their own reasons, agree with our policies.
Reuel Marc Gerecht: I would argue that the objective of American "propaganda" in the region is not to go out and find "pro-American" idealists; the objective is to create platforms and support individuals who oppose the dictatorships in the region and can advance arguments against bin Ladinism. The practical result of this will often be anti-American (as will the growth of democracy in the region--think of the experience in Latin America as it democratized, and then amplify the effect several times). Given the enormous dissatisfaction and anger in the region against the regimes in place, finding individuals who will, either knowingly or not, advance our goals properly understood shouldn't be that hard. The reverse would probably true. Best, RMG
St. Petersburg, Fla.: Re: "Nevertheless, one has to give the Pentagon credit: It seems to be the only government agency that is at least trying to develop Iraqi cadres to wage the "hearts and minds" campaign."
Yes, DOD has been given the funds to wage a "hearts and minds" campaign and the State department has not. Why? What does it say about American political culture that engaging the world in a battle of ideas -- once seen as political struggle -- now is seen as a function of war?
Reuel Marc Gerecht: The State Department also has funds for public diplomacy and other hearts-and-minds grass roots efforts in Iraq and elsewhere in the Middle East. In principle, there is nothing wrong at all with State doing this work. However, what I was talking about in the piece is covert-action support. In many areas of the Middle East, covert action can be a good vehicle--often the only vehicle--for supporting those fighting for greater political freedom. State can't handle that (the once, back in the 1940s it tried), does not want to handle this. Neither really can the Pentagon. However, the CIA is missing in action. Best, RMG
Toronto, Canada: Care to comment on Doug Feith's misinformation efforts?
Reuel Marc Gerecht: I'll allow Mr. Feith in his forthcoming book to discuss his successes and failures. Best, RMG
Bloomington, Ill.: Is it possible that some of the money paid for pro-American stories wound up in the hands of terrorists who later used the money to support insurgent activities?
Reuel Marc Gerecht: Ask the Lincoln group. Mechanically, the flow of funds, which doesn't appear to be large, wouldn't seem particularly swift or guaranteed. Regrettably, I don't think the insurgency or the holy warriors are hurting for funds. Best, RMG
I read your op-ed with great interest today, and I agree that covert and non-covert propaganda is an often overlooked factor in historical analysis of the end of the Cold War. We know from former Eastern European and Soviet dissidents that the messages about human rights and the sanctity of the individual carried through radio, print, scholarly and other exchanges, etc., resonated behind the Iron Curtain. Part of the success Americanization strategies in Europe is attributable to the shared Judeo-Christian heritage of Western countries (and I include the former Soviet Union in that construct). Liberal notions of limited government, natural rights, the social compact that are at the base of the American system grew from Locke, French philosophers, and others who questioned absolutism and the divine rights of kings. These ideas influenced Russian revolutionaries, such as Aleksander Herzen, in the 19th century as well.
Central to Liberalism are the ideas that government exist only with consent of the government and that if government abuses its power, the people have a right/responsibility to call for change. In this philosophy democracy is the creation of popular will, that grows organically from a shared need for the state to protect human's natural rights to life, liberty, and property. It's fallacious to assume that an outside third party can use military power to impose democracy (or any other system of government) on people who have not asked for it. What, if any effect, can post-war, CIA or even USIA overt propaganda have when the U.S. is seen as an invader, not a liberator?
Reuel Marc Gerecht: I'm not so sure the Germans and the Japanese viewed the Americans as liberators.
North Haven, Conn.: Since covert CIA propaganda is such a force for good in promoting U.S. policy, do you advocate it for the home territory? Why or why not?
Reuel Marc Gerecht: We have the New York Times at home. Best, RMG
I'd like to ensure that the discussion clearly delineates between the typical purveyors of propaganda, i.e., psyops or special forces, which is fully expected, and the newer practice of using the news media to spread propaganda. As a former Army public affairs officer and the former director of public affairs for all U.S. and coalition troops in Afghanistan, I am fully against the use of the news media to spread propaganda. The U.S. government, and as an extension its military, must maintain a credible and truthful relationship with the news media. People must continue to believe that when a commander or public affairs officer speaks through the media, he/she is telling the truth.
And in our global information society, using the excuse that only local media are being used for propaganda purposes is no longer valid. Anything published in the news media can find its way to U.S. media, thereby serving to "propagandize" Americans, which is clearly forbidden by U.S. law and DOD regulations.
Reuel Marc Gerecht: I don't think the US military should be involved with founding newspapers or academic foundations or funding journalists. It isn't wise. Best, RMG
Pasadena, Calif.: I think an integral part of democracy is a free press. Don't you feel you interfere with democracy when you interfere with a free press? Doesn't "free" mean free from government interference?
Reuel Marc Gerecht: Iraq isn't the United States. Neither was France, Germany, and Italy after WWII. The objective is to nourish those who want to advance political freedom. As the Cold War should have taught us all, these things do not happen in a vacuum. We countered the Soviet Union in Western Europe; I see no moral reason why we shouldn't counter are enemies in Iraq. Best, RMG
Denver, Colo.: Underneath Reuel Marc Gerecht's opinion piece about covert communication is the marginalization of a serious moral debate. Certainly the U.S. government has used propaganda in the past, as have other governments throughout history, but is this what we want our government to be doing today?
Reuel Marc Gerecht: Do you think US support to a wide variety of anti-communist liberal and socialist organizations in Western Europe was wrong? Do you think CIA efforts to support the anti-communist socialist labor movement in Western Europe was wrong? Best, RMG
West Orange, N.J.: Who or what finances Iraq's SCIRI, AMS, and other religious parties or fronts? Do they have substantial budgets, or are they shoe string?
Is there any site that translates to English the most widely-read or watched opinion leaders in the Middle East? I am aware of MEMRI, but some say it highlights extremists.
Has the U.S. intervention in Iraq increased or decreased stability and the threat of terrorism?
Was it a mistake to disband the Iraqi army? Can a new "national" army or police exist? Or will sectarian militia dominate?
Will the U.S. presence help squelch the insurgency, or will an insurgency last as long as the U.S. occupation persists?
Can the U.S. intelligence services recruit and retain competent linguists? Or are do the security clearance, limited career prospects (high danger, low pay), and pro-Israel U.S. policies make this impossible?
Reuel Marc Gerecht: Quick responses:
1. Many groups in Iraq, particularly SCIRI, have had substantial outside funding (in SCIRI's case Iran)
2. MEMRI is good. Unfortunately, there is good service outside of the government. Inside the USG, there is FBIS, the overt monitoring wing of the CIA. It can be quite good; too often it is not. You need the languages.
3. This is an empirical question, answerable only in time. If I had to guess now, I'd say the terrorist threat has gone down, not up with the invasion of Iraq. What is most surprising post-invasion is how few holy warriors have come to Iraq. Compared to Afghanistan, the performance so far isn't impressive. The Muslim Brotherhood for the most part has sat this one out. Why?
4. The Iraqi Army was disbanded before Bremer officially disbanded the officer corps. Amb. Bremer has the stronger argument here.
5. The US presence is essential to defeating the insurgency.
washingtonpost.com: Thank you all for joining us today.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Analysis: Kaiser on Alito Hearings
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washingtonpost.com: Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Robert G. Kaiser: Hello to all. The first day of the Alito confirmation hearings was not exactly high drama, but I thought it was interesting, first because it allowed us to hear, for the first time, from Alito himself, and also because several of the Democrats indicated that they have a clear line of attack they will pursue against Alito when the questioning begins tomorrow morning.
Alito himself gave an opening statement about his own humble origins, and delivered it persuasively, I thought. We've seen many of his colleagues and pals refer to him as a nerd in recent months; I thought I saw a touch of that in his presentation today. This is no John Roberts--Alito is neither as slick or as charming as the new Chief Justice.
But he may well be just as smart, again judging by what we know of his academic and legal careers. I will take this opportunity to advise all of you who haven't yet done so to read the remarkable two articles printed in The Post yesterday and today by Dale Russakoff and Jo Becker. They will give you a strong sense of who Alito is and where he is coming from. Here are the links to the articles: A Search for Order, an Answer in the Law ran on Sunday, and Proving His Mettle in the Reagan Justice Dept. ran today.
Bloomington, Ill.: Liberals seem most concerned that Judge Alito might help overturn Roe v. Wade if he is selected for the Supreme Court. Under what circumstances might that happen if Roe v. Wade is generally accepted (even by Chief Justice Roberts) as the law of the land?
Robert G. Kaiser: This is a good question. Sen. Specter seems to assume that Roe v. Wade is safe, because he has interpreted comments made by Chief Justice Roberts as evidence that he is unlikely to vote to overturn it. But the Democrats will demonstrate their anxiety on this point tomorrow, I'm confident.
Personally I don't expect the court--even a court that includes Alito in the chair of Sandra Day O'Connor-- to overturn Roe because of the fact that for more than 30 years now, Americans have taken a right to abortion as a given. Much more likely is a series of decisions further restricting the right to abortion without eliminating it, I would guess.
But to try to answer your question, the Court can, at any time, take a case involving abortion and issue a new ruling or reinterpretation of Roe. Only the doctrine of STARE DECISIS -- literally, to stand by things already decided -- protects Roe. It is an important legal doctrine, but not a binding one; the Supreme Court can, and occasionally does, contradict itself.
New York, N.Y.: Just a comment: Judge Alito sounds good and should be approved. My guess is 65-35 when it is put to a final vote whenever that might take place. I sure hope Mr. Schumer shows a change in his tone he has already decided to vote against its obvious and it shows his own lack of integrity.
Robert G. Kaiser: Thanks for posting. There will be no votes, for sure; your guess of 35 isn't a bad one, but the number could be either higher or lower, I think, depending on how these hearings go.
Washington, D.C.: Thanks for doing these chats, especially just after the event.
Schumer raised the point that Alito can't dodge questions he's already judged about on the grounds that it wouldn't prejudge a future case but illustrate a past one. Is this logic going to be sufficient to get Alito to answer the questions?
Robert G. Kaiser: I don't know. A lot will depend, I suspect, on how well the Democrats word their questions. They are not a great bunch of wordsmiths in my experience, but they all have good staff who ought to be able to draft questions for Alito about his own past decisions that will be hard for him to avoid answering without looking silly. Or so it seems to me now.
We'll know a much better answer to your question by 10:30 tomorrow morning, when we'll have seen and heard Alito's first answers to questions from Sens. Specter and Leahy, I bet.
Hawkins, Tex.: Only eleven Catholics have ever served on the Supreme Court. One of the three Catholic Chief Justices is Roberts. If Alito is confirmed, five of the 11 Catholics were have been nominated by just Reagan and the two Bushes. I believe that a majority of Catholic Conservative men bodes ill for the separation of church and state. The authoritarian, theocratic designs of the Far Right will be accomplished with Alito on the Court.
Robert G. Kaiser: I publish this question with some trepidation, because it includes a prejudiced assumption about Catholics that is unwarranted. Sen. Kennedy, a Catholic, is likely to provide some of the most spirited criticism of Alito in these hearings. Sen. Durbin, another Catholic, will be right behind Kennedy, I would expect. Being a Catholic does not pre-ordain anyone's positions on legal issues, does it?
Nevertheless, a Supreme Court with five Catholic members, which is what we will have if Alito is confirmed, is an historic first, and an interesting demonstration of how American society has changed. This would have been unthinkable a generation ago. And it does offer some evidence for the proposition that Catholics (I think for example of William F. Buckley Jr.) have provided a lot of the intellectual firepower for the modern conservative movement.
Baltimore, Md.: With the recent information coming to light regarding questionable wiretaps, etc. without warrant authorized by Bush, will the role of the executive branch in relation to cases overshadow the issue of Roe?
Robert G. Kaiser: You could tell from today's opening statements from Senators, starting with Sen. Specter's, that executive power will be a very big topic in these hearings.
Los Angeles, Calif.: It appears that the recent revelation that citizens are being wiretapped without warrants has made presidential authority to conduct such wiretaps just as controversial an issue as a woman's right to choose. Senators will clearly want to know what Alito's views are on this issue, especially in light of the consistent pattern in his judicial opinions of deferring to executive authority. At the same time, it is clear that Alito, like Roberts and Ginsburg before him, will refuse to answer questions on matters likely to come before the Court. Well, the extent to which Presidents can authorize warrantless wiretapping of citizens in times of "war" is an issue certain to come before the Court, probably in this term or the next. What sort of answer do you think Alito will give to this question, if asked, and what sort of answer should he, in your view, give?
Robert G. Kaiser: Another, similar question, but a better challenge to me at the end. I do not know what Alito will reply to this inevitable question, but because he has made his own strong opinions about executive power clear, I would hope that senators will be able to draw him out somewhat. But he won't deal with the specific question of Bush's wiretapping, because he knows it is certain to reach the court before too long. I don't endorse this view that such matters cannot be discussed in advance, but I fear the precedent is now clearly established.
Reston, Va.: What did you think of the video reported in today's Post story -- the one in which Alito is shown defending Bork's credentials? Is it explosive or not?
Robert G. Kaiser: I never know what is going to prove to be "explosive." This is just a congenital weakness of mine.
Houston, Tex.: When did the shift of very partisan judicial bias become so widespread? It does not seem as though judicial nominees have always been scrutinized for every piece of their background. Does it not seem obvious a conservative president would chose a more conservative nominee; why such a big saga over the fact that he holds conservative values?
Robert G. Kaiser: Excellent question. This is quite new, really. Republicans did not make any serious attempt to block Ruth Bader Ginsburg or Steven Breyer on ideological grounds when Bill Clinton nominated them to the Court in his first term. The Bork nomination is the one earlier case of an ideological battle, but in the end even some Republicans voted against Bork. Nevertheless, his rejection I think planted the seeds of the ideological battles of today, and inspired many conservatives to fight for the chance they now see to install a conservative majority on the court.
Of course you're right that the opponents to Alito now face some historical facts that they can't evade: President Bush won two successive presidential elections, and Republicans hold a clear majority in the Senate.
Lexington, Ky.: Senator Kennedy's column in The Post Saturday raised some interesting points, specifically regarding what is an unusual issue for a Supreme Court nominee: credibility. Also a fair question is that Judge Alito has never, from what I know, represented a private individual or client; his career being solely as a government lawyer. To what extent, if any, would you anticipate these issues being raised during the hearings or debate?
Robert G. Kaiser: I think we'll hear a lot about the Vanguard mutual funds issue, about which I have I think, and hope, an open mind today. I look forward to how Alito will answer it. Briefly, Alito pledged when he became an appeals court judge fifteen years ago to recuse himself in all matters affecting Vanguard, where he had invested his own money. Then he participated in a case affecting Vanguard. Was that important? Why did he do it? Those questions will be pursued tomorrow, by Kennedy and perhaps others.
Seattle, Wash.: Senator Biden seemed to attempt to indicate a willingness to discuss recent (i.e. past 30 years or so) controversial cases, and furthermore seemed to imply that these past decisions were not entirely settled. Do you think that he is serious and that Democrats are perhaps beginning to distance themselves from poorly reasoned, in my opinion, Court decisions? Or do you think that he is merely trying to get Judge Alito to state his views on Roe v. Wade and other more or less poorly reasoned past Supreme Court decisions?
Robert G. Kaiser: Most likely it is the latter of your proposed explanations, I think.
Gastonia, N.C.: Why should we believe anything you say about Alito, when we have proof of The Post's willingness to lie on any subject in order to benefit the liberal Democrats? Today's proof being the lies of Carol Leonnig in the article about the congressional report on the NSA spying. Anyone who reads the report- link at Instapundit- will see for themselves the fact that the article is full of lies, and misinterpretations. Typical of The Post these days!
Robert G. Kaiser: Isn't it fun to live in a world of political discourse that features thoughtful, well-reasoned comments like this one? Well, no, it isn't.
What planet do you live on, Gastonia? What was wrong with Carol's story, a straight report on the conclusions of the Congressional Research Service? I suspect I know what you found wrong with it; you didn't like the findings of the CRS.
As I've said here often before, people like Gastonia who live in a totally ideological world seem to me unable to understand people like Carol Leonnig and me who are not always looking for ideological enemies and ideological explanations, but prefer to deal with the world that exists.
Long Island, N.Y.: I am confused by the emphasis on "overturning" Roe v. Wade. The Supreme Court cannot review law without a case being brought and I don't know what kind of case could bring the entire precedent down. I was around when Roe was decided and it seems that abortion rights have gone beyond what was in that decision. Shouldn't Senators instead by concentrating on how Alito might vote to restrict abortion, rather than end it?
Robert G. Kaiser: As indicated in an earlier answer above, I agree with you, but repeat that it is at least theoretically possible that a future court could reject Roe entirely. It has happened before that one court repeals the decision for another; that's what Brown v. Board of Education was all about. But I will not be holding my breath waiting for it to happen to Roe now.
Washington, D.C.: Many of those opposed to Alito oppose him on the grounds that Roe will gradually be eroded, and that any erosion is tantamount to a full-scale assault on the right to an abortion is a whole. But what about speech? The Court has said, in effect, that you can't yell "fire!" in a crowded movie theater and no one is too incensed over that. What's the difference?
Robert G. Kaiser: I guess the difference is in the practical realm. Few of us consider it important to be able to shout "Fire!" in a crowded theater, but millions of American women have wanted to have, and have had, abortions since Roe. Restrictions that might be held constitutional by a future Supreme Court could conceivably make abortion much harder to get for some people. Alito himself, for example, favored, in his court of appeals decision in the Casey case, allowing husbands, in effect, to veto the preference of a wife who wanted an abortion. That would have been a real, practical limitation of the right to an abortion, I think. The Supreme court disagreed with Alito on that one, however.
Long Island, N.Y.: Senator Schumer's tone seemed to be accusatory and well, not very artful. Could this gain public sympathy for Alito?
Robert G. Kaiser: I think it could. Schumer's manner is not his strongest asset.
Denver, Colo.: The introductory comments by each Senator laid out a line of questioning to follow. Is this something new? Grandstanding?
Robert G. Kaiser: Actually, I thought we got a clearer sense of what is coming later in the week from today's comments than we often get from this first round of pontifications. Having said that, I quickly add that if I were emperor, I would ban these opening rounds altogether. They are essentially useless blather, don't you think?
Franklin, Mass.: Overturning Roe does not automatically make abortion illegal. It sends the issue back to the states, where most likely, ballot referendums would decide. Why is this not reported?
Robert G. Kaiser: Oy I have reported this in these chats numerous times. But I thank you for reminding us all of the fact. Indeed, Roe said states could not ban abortion; without Roe, states could ban or permit abortion, as they were doing before that case came down. Polls suggest that in most of the most populous states, abortion would remain legal in a world without Roe.
Yorktown, Va.: In addition to the abortion issue, how do you feel he will address the issues on which he appears to have been less than forthright in his responses to date, e.g.: his promise to the Senate during his confirmation hearings for his current position to recuse himself on any issues in which he had a personal interest, only to violate that oath when a case came up; a record that indicates his belief that the Executive office operates above the law with oversight by neither the courts or Congress; his past that indicates he said one thing to get a job in the Reagan administration, then denied now that this was his belief; his decisions and dissents that show a disturbing tendency to take an extremely narrow and restrictive view of laws passed by Congress; and his past record on civil rights, including his membership a group of Princeton alumni that opposed admission of women and affirmative action, a membership he now says he "can't recall."
Robert G. Kaiser: Well, I think I've read your question before, in materials sent to me by People for the American Way and other anti-Alito groups. In my view yours is a pretty tendentious summary of the points that will indeed provoke the most difficult questions for Alito. You're sure that you know how to interpret all of these somewhat ambiguous or complicated points; I do not share your confidence.
Fremont, Calif.: OK, I will be nicer, since I don't think you will answer my earlier incendiary question. Will the Democrats filibuster Alito? If they do, will the Republicans go "nuke-lar"?
Robert G. Kaiser: Don't remember your earlier question, but do remember what I say to questions like yours: I make lousy predictions, so lousy that I have generally sworn off making them at all.
Merida, Mexico: Isn't there a cognitive dissonance among the Republican senatorial contingent when half of them stated that the hearings should not be about specific issues or Alito's views on them, and the other half (Brownback, et al.) spent most of their statements on lurid descriptions of abortions and how that issue trumps everything else at these hearings? Or is this a carefully calculated Republican strategy to have it both ways?
Robert G. Kaiser: The Republicans are deeply divided on the social issues, one reason they are having political problems these days. The committee chairman, Arlen Specter, is staunchly pro-choice; Brownback and Coburn are leading members of the anti-abortion bloc. There's no conspiracy here.
Washington, D.C.: Following up on the speech v. abortion question: There are all kinds of limitations on speech -- what constitutes libel and slander, what constitutes pornography, who can buy pornography, V-chips, movie ratings and who can see them, etc. There are any number of limitations on speech that fit the more practical realm that you define. Surely this is a chink in the armour of those who oppose Alito, no?
Robert G. Kaiser: Thanks for the comment. I don't think I agree with you, but I'm not certain I understand you either. If you're saying that senators who accept some limitations on free speech must, therefore, also accept limitations on the right to abortion, then I don't follow your logic. Aren't we all free to reach our own conclusions about how far we think any particular "right" must extend? Even most staunch proponents of abortion rights accept some limitations on abortion. The relevant question is how many restrictions, how applied, to what effect, don't you think?
Morristown, N.J.: Just a comment -- I find the biased statement from Texas about Catholics to be offensive. I thought we were past that, but clearly not.
Robert G. Kaiser: No, we're not past any of those ugly old antis--anti-black racism, anti-semitism, anti-Catholicism, which is probably why I decided to post the comment. I think we kid ourselves often about how tolerant we have become, though I also celebrate how tolerant we HAVE become--which is a helluva lot more tolerant than we were when I first came to work at The Post in 1963.
Long Island, N.Y.: The press has been reporting that interest groups have been spending millions for and against Alito's nomination but the public is unusually unfazed either way, The Post showing about 53% support for him. May the rhetoric in the Judiciary Committee just be "spinning their wheels" to posture for the Senator's constituencies?
Robert G. Kaiser: You bet.
Denver, Colo.: Re: introductory comments... Agree on useless blather, but I always thought the most dangerous place on the planet was to place yourself between a U.S. Senator and a TV camera... they can't help themselves!!
Robert G. Kaiser: Quite right.
Washington, D.C.: This morning The Post published a poll suggesting a majority favor Alito's confirmation. I did an archive search and found a majority opposed Robert Bork's confirmation in 1987, meaning his opponents were on safe ground by voting him down. A filibuster against Alito would probably help fire up the Democratic base (not that they aren't already) but would it go against the public at large?
Robert G. Kaiser: As of today I think it would, but this is the wrong day to come to a conclusion. Let's see what happens for the rest of the week.
Austin, Texas: Who are the people sitting behind the senators during the
PS Isn't Senator Specter's hair growing back nicely?
Robert G. Kaiser: Those are Senate staff members. And yes, Specter looks a thousand percent better with hair! I hope this is a sign that he is recovering nicely from his cancer.
Ashland, Mo.: It is only in relatively recent times that the Senate has engaged in prolonged questioning of persons nominated to the Supreme Court. Is there any evidence this procedure has improved the quality of those being confirmed as compared to those confirmed without such questioning?
Robert G. Kaiser: Good question. I do think today's court is intellectually stronger than many earlier versions from our history, but I can't argue that this is related to the number of questions asked in confirmation hearings.
Dayton, Ohio: I am curious as to what we really want from a Supreme Court Justice. It seems to me Alito is the type of judge I would want; one that interprets law and does so narrowly. I want someone that will appreciate a good logical argument and rule on the merits of that argument, not one that has an "agenda", be it either conservative or liberal.
By the way, the two articles on Alito in The Post were superb.
Robert G. Kaiser: Glad you liked those articles. I think something akin to your reasoning explains why Alito is not very controversial so far, and enjoys a majority of support in polls.
Washington, D.C.: A follow up to the Bork question. What was his undoing the political ads against him or his testimony, or both? We don't know how Alito's testimony will pan out, but have the same type of ads been run against Alito? If not, is it too late to run them?
Robert G. Kaiser: Bork was a disastrously bad witness; without his fumbling testimony, the ads would never have gotten him defeated, in my opinion. Ads against Alito are running already, and having no evident effect so far.
Fairfax, Va.: When the deal was cut to retire the filibuster's use against judicial nominees it was billed as a compromise. With Alito's nomination looking to be a filibuster-free event following the installation of one conservative judge after another, how can this "compromise" be fairly called anything but a Democratic cave-in to conservative one-party rule?
Robert G. Kaiser: Hey, the Republicans CONTROL the Senate; they have a bigger majority now than they did before the 2004 election. The Democrats can, if they remain united, sustain a filibuster in this Senate, but when's the last time you saw them united on an issue like this one?
Yorktown, Va.: You answered a question about the possibility that the court could overturn Roe v. Wade, in which case the issue would revert to the states, which could individually interpret and decide whether to permit abortion and under what terms. Isn't this exactly the problem faced prior to Roe v. Wade, which placed some women desperate to obtain an abortion in the position of having to travel to another state in order to obtain a legal abortion? This had a disparate impact on poor women who did not have the meant to do this. The whole point of Roe v. Wade was to ensure that abortion was equally accessible to any woman who chose to have an abortion, without having to worry about where they lived.
Robert G. Kaiser: Thanks for posting.
Arlington, Va.: Do you think such confirmation hearing would be more useful if there was a rule that questions had to be 50 words or less and answers had to be 50 words or more ?
Chicago, Ill.: Mr. Kaiser, thank you for your time. You posted that "Alito himself, for example, favored, in his court of appeals decision in the Casey case, allowing husbands, in effect, to veto the preference of a wife who wanted an abortion."
Do you really find that a fair statement of Alito's opinion, given than the Pennsylvania law required only "notice," and not "consent"?
Robert G. Kaiser: You're absolutely right, and my wording was poor. Thank you for catching it. I hope my larger point remains accurate: that Alito was willing then to support a significant limitation on the right to abortion--one the Supreme Court later rejected, in an opinion written by Sandra Day O'Connor.
Robert G. Kaiser: Thanks to all for taking part. I'll be back tomorrow, Tuesday, at 5 p.m. EST for another discussion. The hearings will still be going on, but by then we should have a pretty good idea of how they're going.
We'll continue to discuss the confirmation hearings all week. On Wednesday my colleague David Von Drehle will be the discussant. Later I hope Dan Balz will take a turn.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Join live discussions from the Washington Post. Feature topics include national, world and DC area news, politics, elections, campaigns, government policy, tech regulation, travel, entertainment, cars, and real estate.
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Apartment Life Live
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2006010619
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Welcome to Apartment Life, an online discussion of the Washington area rental market, featuring Post columnist Sara Gebhardt.
In her monthly exchanges with the audience, Gebhardt discusses rental issues and lifestyle matters.
Sara Gebhardt: Happy New Year to all my readers. I hope 2006 treats all of you well in and out of your rented space. Let's jump into the questions!
Virginia: I'm separated. Where can I find an apartment where my kids can visit me (in Northern Va.)? Thank you.
Sara Gebhardt: Look for an apartment that you like and that will have enough space for your kids when they visit. Beyond that, the sky's the limit, since landlords are not supposed to discriminate against people with kids. If you are asking about specific attributes of communities that will be good for kids, then make sure to look for apartments that are kid-friendly -- that is, they might have a playroom, other child residents, a park or museum nearby, etc. Feel free to ask prospective landlords and neighbors about options for children.
Washington, D.C.: Hello, Sara. Thank you for taking my question. I'm in the process of moving into my fiance's apartment in a large managed building in the District. She has lived there for a while and is currently paying month-to-month. I know we need to tell the rental company about my presence in the apartment. Can they raise the rent or force us into a lease because of this change?
Sara Gebhardt: Yes. But your fiance's landlord can raise the rent anyway (within limits if it's under rent control) since she has a month-to-month agreement. A landlord would probably want to at least amend the lease to reflect a different occupancy, too, but if your fiance has good stature at her building, she should discuss all options and try to negotiate to keep her month-to-month status (if that's important) or her same rent price.
Louisville, Ky.: Thanks for taking my question. I currently live in an apartment with my boyfriend and feline friend. The apartment next door, which is 10 times better than ours, just became available and we informed our landlord we would like to finish our lease in that apartment. Our landlord denied our request on the grounds that we have a cat (who hasn't done any damage to our current apartment). We offered to pay a pet deposit and/or pay for cleaning the rugs upon moving out and he still isn't budging. I would understand it if our cat was destructive and smelly and had a lot of black hair, but he isn't and doesn't! Any suggestions on how to deal with a narrow-minded landlord?
Sara Gebhardt: It seems like you've done what you can to make a case to your landlord for moving in to the apartment. Other than giving up your precious cat, you might be out of luck. Your lease agreement is for the apartment you're living in, not for the one next door, so your landlord is entitled to deny your request to move next door. Besides more attempts to persuade him or letter-writing campaigns on behalf of your feline friend, you may just be out of luck.
Gaithersburg, Md.: Hi! I've been reading your columns about pet rent with quite some interest, as I have two cats who literally don't do much but prance around my apartment. Yet, I am paying the same pet rent that my neighbor with a big, rambunctious dog pays. I don't really believe what the property managers say about cats causing the same amount of damage as dogs. What do you think?
Sara Gebhardt: The pet issues is a hot topic right now. As the property managers I've interviewed have told me, cats cause damage and wear and tear just as dogs do. Landlords say there's a lot of work to rid all evidence of cat residence once people (and their cats) move out. They also admit that responsible pet owners often are affected by those who are irresponsible, which means better pet/owner behavior might help those of you who want to change landlord's opinions about applying pet rent equally to cats and dogs.
Las Vegas, Nev.: When is a good time to move? I've been living in my apartment for years and my friends have moved all over the city.
Sara Gebhardt: A good time to move is when you are ready to move. You need not move just because those around you are doing so, unless of course, you want to.
Rockville, Md.: Hi, Sara. I just got my gas bill, and wow it's really high! I know the cost of gas has increased but my bill has increased three times as much. I keep my thermostat really low and wear sweaters inside, so I'm surprised at the bill. The gas company wasn't very helpful and my apartment complex will send someone to look at the meter (hopefully it will work out in my favor). Has anyone else had a situation like this? I was hoping to get some other ideas on what it could be.
Sara Gebhardt: Your instinct to check the meter is a good one. If it turns out it is functioning well and you think you're not using that much gas, ask your landlord to check the insulation of your apartment and for gaps and leaks of air through doors and windows. Remember, too, that gas prices have increased by 30 to 60 percent this winter.
Baltimore, Md.: Happy New Year, Sara! Thanks for the chat. What can I do about a noisy upstairs neighbor? She is excessively noisy (stomping at 5:30 a.m., loud t.v. at all hours. I can hear it well enough to tell what show she is watching, comes home at 1 a.m. with the stomping), but she says that it's because the building is old. But I manage to make a lot less noise and I can hear the difference in her walking and the walking of others in her apartment. I am surprised she hasn't fractured an ankle! And when she has guests, the t.v. isn't as loud. I don't want to complain about her. Is there any such thing as soundproofing her from inside my apartment?
Sara Gebhardt: Happy New Year to you too. How do you know she hasn't fractured an ankle? Technically, soundproofing your apartment would cost a lot of money and would require your landlord's approval, so beyond that, you can try moving around your furniture to better absorb noise. Usually, the bigger furniture pieces you have around walls does a natural job at soundproofing, although apartment buildings are notorious for allowing sound travel no matter the barriers.
RE: Pet rent: Risking the ire of the cat people, I've lived in apartments that had cats in them before and that smell NEVER quite goes away. Cat smell in the carpet just lingers. Doesn't seem to happen with dogs.
Sara Gebhardt: Yes, this is a big risk, and this is also exactly what property owners tell me.
Alexandria, Va.: Thank you for these chats. They are very informative. The one consistent question you seem to receive is how to deal with noisy neighbors. I would like to suggest that it isn't always just the neighbors who may have to make a change.
I used to have my bed up against the adjoining wall. At times, I could hear them and they could hear me. It wasn't really noisy or all that aggravating but we had different schedules and sometimes even a t.v. or alarm clock made a noise that was frustrating to the other person. So rather than demanding change or creating conflict, we each moved our beds. My neighbor was against an outside wall and I was up against my living room wall. No more problems.
If you aren't willing to compromise or make a small change then I can't see why the neighbors should be expected to do so.
Sara Gebhardt: Here's a tip for dealing with noise. Thanks!
Springfield, Va.: If they can put a man on the moon, then why can't they create a soundproof material that can be applied like paint. Can you imagine the market for that?
Sara Gebhardt: I'm sure we can all imagine the market for that. Inventors, get working.
New Haven, Conn.: Hi, Sara. I'm a student and I effectively live in a library reading room, although I suppose it doesn't quite count as an apartment. One of my sort-of-roommates has a tendency to take off his shoes and socks while studying, and I can't concentrate because I'm so disgusted by him picking at his feet. I live off-campus with no roommates, so I'm not used to dealing with these sorts of issues. If this were an apartment and he were actually my roommate, would it be appropriate for me to ask him to stop picking his feet? Or should I just call library security?
Sara Gebhardt: Hi, New Haven. I hope your apartment is a lot nicer than the reading room. Public and private etiquette tend to differ, but I guess, if you did have a roommate who picked his feet, you'd want to avoid calling the landlord (aka "library security") for help on this matter. You'd want to take this matter up with him directly and remind him of what it means to share living spaces. Since what it means is essentially compromise, come up with a plan to make sure neither of you disgusts the other with his/her personal habits.
Miami, Fla.: How do you deal with a roommate who doesn't clean or do his share of the work? My roommate will wash dishes (only when they are piled on top of each other), and does not ever clean the floor or bathroom. I've been living with this guy for three years and through repeated attempts to get him to put his fair share of work around, I still am left doing most of the work. My attempts to tell him about the work get met with "I don't have time." Meanwhile, he sits on his butt night after night watching t.v. For what it's worth -- this guy is pushing 30. Oh, and then I have to bug him to pay the bill that I give him for the cable, etc. I feel like I am living with an 18 year old -- help!
Sara Gebhardt: From a foot-picker to a slob -- apartment life never has a dull moment! In the spirit of tough love, I say, move on and move out. You don't need a 30-year-old roommate who makes your life uncomfortable, angst-ridden and potentially unsanitary. With roommate trouble, you need to openly communicate and set rules that both of you follow.
D.C.: So my landlord wants to raise the rent by $50! It's not that I can't afford it, I just don't want to pay it. How can I ask him to consider lowering it without having a good reason? Should I make one up?
Sara Gebhardt: Make one up? I don't support liars, so I'd say you should tell him the truth -- that you plan to look for a better deal and move before paying an extra $50 each month.
RE: Why no spray for soundproofing like paint?: Ummm ... because it violates the laws of physics? Sound is energy. Energy can't be destroyed, only transformed. Soundproofing converts sound into (small amounts of) heat. It takes a certain amount of stuff (that's a technical term) to do that. There's no "stuff" out there that can transmute sound well enough with a coating that is one hundredth of an inch thick.
Sara Gebhardt: Take this for whatever it's worth. I'm definitely not a physicist (or engineer).
Arlington, Va.: I live in a high-rise and our dishwasher malfunctioned and subsequently leaked water everywhere to the point it soiled our carpet. I notified the building managers and the maintenance crew fixed it. They mentioned that they "did clean the carpet," however, the stain of our carpet is now about four times the size of the original and looks like a urine stain though it looked this color prior to the "cleaning." Is it my responsibility to get this professionally cleaned or should our building take care of it?
Sara Gebhardt: First of all, make sure you have proof that the stain is from your broken dishwasher. You want to protect your security deposit. It sounds like your building manager should fix the carpet, unless your actions caused the dishwasher to malfunction. Ask your manager again to clean your carpet, and explain why an extra cleaning is necessary.
Arlington, Va.: Hi, Sara. I live in a building that's probably 50-years-old or so and the front door simply won't shut properly. I've brought this to the property manager's attention several times. Also call the maintenance hotline every time I see the door is open. Occasionally, it gets fixed, but the "fix" never lasts long. The property manager has been receptive, friendly, and apologetic -- but frankly, I'm just ready to live in a secure building. Is it time to go over her head and contact her corporate bosses? Or, is a locked and secure building not a legal responsibility for the complex and its owners?
Sara Gebhardt: Since the property manager has been receptive, before you go above her head to complain, make sure she knows you are doing so. It's important to keep property managers on your side, especially when you have problems like these. Just mention you think there must be a more long term solution to the door problem, that you feel unsafe, and that you are going to take it up with the corporate managers. It's a fair request.
Arlington, Va.: I live in an apartment community that offers to feed your pets while you're on vacation. The last community where I lived the service was also offered and they did a great job of feeding my cats. They would also leave a notice each time they entered to feed the cats.
I had them feed my cats one long weekend recently and it seemed as though they didn't come in all three days and they didn't give them water, even though I specifically listed it in the instructions.
They do leave notices when they change filters, inspect toilets, etc, and so I was surprised that they didn't leave a notice when they fed the cats and they didn't give them water in addition to the food.
Since this is a service and not a required function of a landlord, do I have any recourse? One of the reasons I moved here was for my kitties to get fed when I'm out of town occasionally. If they're not going to come in each day or give water, though, I'm going to have to hire a pet sitter. I don't know if I trust them enough to try again.
Sara Gebhardt: You're right. These pet-feeding, plant-watering services are extra services. Yet, since they are a big reason you are living in the building, you need to talk to whomever failed to take care of your cat while you were away. As for relying on your apartment workers the next time, perhaps it was a one-time foul-up and they deserve another chance (but make sure you get a friend to check in on your cats if you do test your apartment management in this area again).
I'm not sure what can be done about this, but my boyfriend owns a condo. There is a person underneath his unit who moved in and she smokes. The smoke is getting into his apartment. Obviously this is a ventilation problem, but is there anything he can do to stop this madness? Should he speak to the management company of the buildings? But what could they actually do if it is the ventilation? I worry about his health. Thanks!
Sara Gebhardt: Since he's an owner, he should speak to the condo board about this issue. There are ways to curb atleast some of the smoke's travel, by sealing gaps, cracks and other points that he may share with his downstairs neighbor.
Annapolis, Md.: Soundproofing material exists. Recording studios are an example of an application.
Sara Gebhardt: Thanks for this insight. Clearly soundproofing material exists, but it is expensive and therefore not widely used in apartment buildings. The previous poster was commenting that there must be an easier way to apply soundproofing after a building has gone up.
Sara Gebhardt: Alas, time is up for us today. Thanks for the spirited discussion today. I look forward to our next, the first Thursday of February, same time, same place. If I didn't get to your question or you have any comments or questions, feel free to e-mail me at aptlife@gmail.com.
Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.
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Welcome to Apartment Life, an online discussion of the Washington area rental market. Post columnist Sara Gebhardt discusses rental issues and lifestyle matters.
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After 44 Hours, Hope Showed Its Cruel Side
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2006010619
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SAGO, W.Va. -- The storm kicked up sometime before dawn Monday, sweeping across the scabbed mountains and bare winter woods with enough ferocity to jolt people awake in this Appalachian hamlet. County Commissioner Donnie Tenney felt his blue farmhouse rattle. Thunder, he thought. The phone roused him again. It was his sister. Someone from her prayer chain had told her there had been an explosion at the Sago Mine. Men were trapped.
Six miles away in Buckhannon, Upshur County's only incorporated town, tiny St. Joseph's Hospital prepared for multiple casualties. At the small Baptist church down the muddy road from the mine, anxious families slowly gathered. Nineteen men had entered the coal mine that morning. Only six had escaped.
"With each hour that passes, the likelihood of a successful outcome diminishes," reported Bennett K. Hatfield, president of International Coal Group Inc., which owns the mine. The tiny hollow was soon a jumble of network satellite trucks, emergency vehicles and the black cars of state officials.
For 44 heart-wrenching hours, an extraordinary drama would unfold before a watching nation, a tragedy made cruel not because hope was abandoned, but because it was embraced. Jubilation would evaporate into blind rage, prayers would become curses and uncertainty would swell into terrible accusation.
Twelve bodies would eventually be pulled from the Sago Mine.
But the toll was much greater than that.
The first day passed in a blur of uncertainty. Upshur County was once dominated by coal, but now the mines were scattered and few. It was still considered good work in a depressed region, and some of the miners drove an hour or more to work at Sago. It wasn't uncommon to find fathers and sons, uncles and brothers following one another into the deep tunnels.
Now, even after a new generation found work in the small businesses or big retail chains that have come to dominate the landscape, the community suddenly found itself pulled to the mines again. Quietly, efficiently, the rituals of comfort and solace were set in motion. At Sago Baptist Church, the Red Cross appeared with cots and blankets and headache medicine. Women arrived at the church with baked hams and potato salad and homemade cakes. Counselors and preachers circulated among the distraught family members.
Sago Mine had been cited for scores of safety violations, but officials from International Coal, which took ownership and began running the mine in November, said none posed the immediate threat to miners' lives that would have prompted mining regulators to close it down.
After the explosion, it took 24 hours for rescuers to create a road for drilling equipment, pinpoint the location and complete the hole that gave them their first glimpse into the area where they believed the miners were located.
The mine was shaped like a backward capital F, with the stem two miles long. Rescuers were guessing that the miners were in the farthest corner from the entrance; they established a fresh-air base half a mile from that spot. Teams with oxygen gear would communicate by hand-held radio to the fresh-air base, which in turn would use a crude phone to report to a command center above ground where Hatfield and other officials waited.
The mining officials trekked to the church and the media site for occasional briefings. The initial news was grim: Carbon monoxide levels in the mine far exceeded the level that would allow human survival. A microphone was lowered into the earth, and rescuers pounded away 260 feet above, hoping survivors might hear, but there were no sounds in response. "We are clearly in the situation where we need a miracle," Hatfield told reporters Tuesday afternoon, "but miracles happen."
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Get Washington DC, Virginia, Maryland and national news. Get the latest/breaking news, featuring national security, science and courts. Read news headlines from the nation and from The Washington Post. Visit www.washingtonpost.com/nation today.
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Chief Among the Silliness
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2006010619
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The University of Illinois must soon decide whether, and if so how, to fight an exceedingly silly edict from the NCAA. That organization's primary function is to require college athletics to be no more crassly exploitative and commercial than is absolutely necessary. But now the NCAA is going to police cultural sensitivity, as it understands that. Hence the decision to declare Chief Illiniwek "hostile and abusive" to Native Americans.
Censorship -- e.g., campus speech codes -- often is academic liberalism's preferred instrument of social improvement, and now the NCAA's censors say: The Chief must go, as must the university's logo of a Native American in feathered headdress. Otherwise the NCAA will not allow the university to host any postseason tournaments or events.
This story of progress, as progressives understand that, began during halftime of a football game in 1926, when an undergraduate studying Indian culture performed a dance dressed as a chief. Since then, a student has always served as Chief Illiniwek, who has become the symbol of the university that serves a state named after the Illini confederation of about a half-dozen tribes that were virtually annihilated in the 1760s by rival tribes.
In 1930 the student then portraying Chief Illiniwek traveled to South Dakota to receive authentic raiment from the Oglala Sioux. In 1967 and 1982, representatives of the Sioux, who had not yet discovered that they were supposed to feel abused, came to the Urbana-Champaign campus to augment the outfits Chief Illiniwek wears at football and basketball games.
But grievance groups have multiplied, seeking reparations for historical wrongs and regulations to assuage current injuries inflicted by "insensitivity." One of America's booming businesses is the indignation industry, which manufactures the synthetic outrage needed to fuel identity politics.
The NCAA is allowing Florida State University and the University of Utah to continue calling their teams Seminoles and Utes, respectively, because those two tribes approve of the tradition. The Saginaw Chippewa tribe starchily denounces any "outside entity" -- that would be you, NCAA -- that would disrupt the tribe's "rich relationship" with Central Michigan University and its teams, the Chippewas. The University of North Carolina at Pembroke can continue calling its teams the Braves. Bravery is a virtue, so perhaps the 21 percent of the school's students who are Native Americans consider the name a compliment.
The University of North Dakota's Fighting Sioux may have to find another nickname because the various Sioux tribes cannot agree about whether they are insulted. But the only remnant of the Illini confederation, the Peoria tribe, is now in Oklahoma. Under its chief, John Froman, the tribe is too busy running a casino and golf course to care about Chief Illiniwek. The NCAA ethicists probably reason that the Chief must go because no portion of the Illini confederation remains to defend him.
Or to be offended by him, but never mind that, or this: In 1995 the Office of Civil Rights in President Bill Clinton's Education Department, a nest of sensitivity-mongers, rejected the claim that the Chief and the name Fighting Illini created for anyone a "hostile environment" on campus.
In 2002 Sports Illustrated published a poll of 351 Native Americans, 217 living on reservations, 134 living off. Eighty-one percent said high school and college teams should not stop using Indian nicknames.
But in any case, why should anyone's disapproval of a nickname doom it? When, in the multiplication of entitlements, did we produce an entitlement for everyone to go through life without being annoyed by anything, even a team's nickname? If some Irish or Scots were to take offense at Notre Dame's Fighting Irish or the Fighting Scots of Monmouth College, what rule of morality would require the rest of us to care? Civilization depends on, and civility often requires, the willingness to say, "What you are doing is none of my business" and "What I am doing is none of your business."
But this is an age when being an offended busybody is considered evidence of advanced thinking and an exquisite sensibility. So, People for the Ethical Treatment of Animals has demanded that the University of South Carolina's teams not be called Gamecocks because cockfighting is cruel. It also is illegal in South Carolina.
In 1972 the University of Massachusetts at Amherst replaced the nickname Redmen with Minutemen. White men carrying guns? If some advanced thinkers are made miserable by this, will the NCAA's censors offer relief? Scottsdale Community College in Arizona was wise to adopt the nickname "Fighting Artichokes." There is no grievance group representing the lacerated feelings of artichokes. Yet.
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Scottsdale Community College was wise to adopt the nickname "Fighting Artichokes." There is no grievance group representing the lacerated feelings of artichokes. Yet.
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Bush to Give Up $6,000 In Abramoff Contributions
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2006010619
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Republican Party officials said yesterday that President Bush will give up $6,000 in campaign contributions connected to disgraced lobbyist Jack Abramoff, joining an expansive list of politicians who have shed more than half a million dollars in tainted campaign cash.
The announcement came as Abramoff pleaded guilty in a second criminal case, acknowledging that he conspired to defraud lenders in the purchase of a fleet of Florida casino boats five years ago. The court appearance in Miami came a day after Abramoff pleaded guilty before a federal judge in Washington to defrauding Indian tribe clients of millions of dollars, conspiring to bribe members of Congress and evading taxes.
Under plea agreements negotiated in the two federal cases, the once-powerful lobbyist promised to provide evidence and testimony in a wide-ranging Justice Department investigation of the lobbying of Congress and of federal agencies.
Fearful of the adverse political fallout from the expanding corruption investigation, Republicans in both houses of Congress moved forward with face-saving legislation to tighten lobbying regulations and to discourage dealings between lawmakers and influence-peddlers.
Rep. Jeff Flake (R-Ariz.) called again for a limit on "pork-barrel" projects in annual spending bills, which Abramoff himself has called "favor factories."
And the conservative National Review -- a staunch defender of Rep. Tom DeLay (R-Tex.) in his fight against campaign finance charges in his home state -- urged the lawmaker to give up his bid to return to the GOP leadership, citing his close connections to Abramoff.
Republican leaders in Washington hope the legislative moves and campaign refunds will insulate their party as Abramoff begins cooperating with one of the largest congressional corruption investigations in decades.
"The problem is that power corrupts, and we simply have too much of it," Flake said.
White House press secretary Scott McClellan said that Bush does not know Abramoff personally, although the two may have met at holiday receptions.
Abramoff raised more than $100,000 for the Bush-Cheney reelection campaign, making him an honorary Bush "Pioneer." But the campaign is giving up only $6,000, which came directly from Abramoff, his wife and one of the Indian tribes the lobbyist represented. The money will be donated to the American Heart Association.
The gesture was criticized by the watchdog group Public Citizen, which called for an accounting of all the money that Abramoff had raised for the campaign.
"President Bush needs to . . . reveal just how much money Abramoff raised for him and who that money came from," said Frank Clemente, director of Public Citizen's Congress Watch.
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Republican Party officials said yesterday that President Bush will give up $6,000 in campaign contributions connected to disgraced lobbyist Jack Abramoff, joining an expansive list of politicians who have shed more than half a million dollars in tainted campaign cash.
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When a Firebrand Burns His Bridges
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2006010619
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The fiery phrases and righteous anger were straight out of 1994. But this time, Newt Gingrich was turning his famous indignation on fellow Republicans:
"Indifference to right and wrong!"
A day after former GOP lobbyist Jack Abramoff's first guilty plea, the former House speaker was in the Hotel Washington yesterday, telling a group of Rotarians how rotten the capital has become -- and warning that the Republican Revolution is being betrayed.
"There are a series of behaviors, a series of attitudes, a series of crony-like activities that are not defensible, and no Republican should try to defend them," Gingrich fumed.
The ex-speaker is an imperfect messenger on such matters (he had to pay $300,000 in 1997 to settle ethics violations). But Republicans who remember how Gingrich vanquished the Democrats in 1994 with charges of corruption have reason to worry: His charge of cronyism echoes one of the Democrats' campaign slogans this year.
"It's very important to understand this is not one person doing one bad thing," he advised. "You can't have a corrupt lobbyist unless you have a corrupt member or a corrupt staff. . . . This was a team effort."
But will his former colleagues hear his warning? Gingrich's venue yesterday was decidedly second-tier. Vice President Cheney had booked the Heritage Foundation, so Gingrich joined the little-known Rotary Club of Washington, D.C., in the basement of the down-at-the-heels Hotel Washington in a ballroom scented strongly by pot roast and decorated with felt Rotary banners and balloons from a previous party.
The former speaker found himself in a meeting reminiscent of Fred Flintstone's gatherings at the Water Buffaloes Lodge. After the ringing of a bell, Gingrich was compelled to join hands in "the sacred Rotary wheel" and join in a Native American benediction praying to the "Great Spirit" for the "return of robins and other creatures." He declined to join Rotarians in singing "Hail to the Redskins," though he could not avoid drawing the raffle winner at the end.
It was an incongruous setting for the dire alarm the former speaker sounded, calling the scandal "central to the survival of the United States" and "a serious, profound challenge" to our system of government. "The Abramoff scandal has to be seen as part of a much larger and deeper problem," what the Founders would see as "a system of corruption," Gingrich said.
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The fiery phrases and righteous anger were straight out of 1994. But this time, Newt Gingrich was turning his famous indignation on fellow Republicans:
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Surveillance Court Is Seeking Answers
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2006010619
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The members of a secret federal court that oversees government surveillance in espionage and terrorism cases are scheduled to receive a classified briefing Monday from top Justice Department and intelligence officials about a controversial warrantless-eavesdropping program, according to sources familiar with the arrangements.
Several judges on the Foreign Intelligence Surveillance Court said they want to hear directly from administration officials why President Bush believed he had the authority to order, without the court's permission, wiretapping of some phone calls and e-mails after the Sept. 11, 2001, attacks. Of serious concern to several judges is whether any information gleaned from intercepts by the National Security Agency was later used to gain their permission for wiretaps without the source being disclosed.
The court is made up of 11 judges who, on a rotating basis, hear government applications for surveillance warrants. But only the presiding judge, currently Colleen Kollar-Kotelly, was notified of the government eavesdropping program. One judge, James Robertson, who also serves on the federal bench in Washington, resigned his seat on the surveillance court in protest shortly after the wiretapping was revealed by the New York Times in mid-December.
Kollar-Kotelly began pressing for a closed government briefing for the remaining members of the court on Dec. 19, the day she learned of Robertson's concerns. Other judges wanted to know, as Robertson had, whether the administration had misled their court about its sources of information on possible terrorism suspects.
Kollar-Kotelly had privately raised concerns in 2004 about the risk that the government could taint the integrity of the court's work by using information it gained via wiretapping to obtain warrants from judges under the Foreign Intelligence Surveillance Act.
On Friday, an attorney for Seifullah Chapman, one of the men convicted as part of the "Virginia jihad network," formally asked federal prosecutors in Virginia to determine whether warrantless NSA wiretaps were used to gain information about his client. Chapman, who is serving a 65-year sentence for conspiring to provide material support to a foreign terrorist group, was the subject of a secret FISA warrant.
"My feeling is they are a very professional organization. They would be equally concerned that my client's rights are protected, and they'll want to find out themselves," said John Zwerling, Chapman's attorney.
Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense.
Yesterday, Rep. Jane Harman (Calif.), the ranking Democrat on the House intelligence committee, sent a letter to Bush charging that the limited nature of congressional briefings on the monitoring program violated the National Security Act. The White House informed the chairmen of the House and Senate intelligence oversight committees and the two ranking Democrats about the program.
The National Security Act requires the president to keep all members of the two committees fully informed of intelligence activities with the exception of those conducted covertly overseas. "In my view, failure to provide briefings to the full congressional intelligence committees is a continuing violation of the National Security Act," Harman wrote.
Staff writer Dafna Linzer contributed to this report.
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The members of a secret federal court that oversees government surveillance in espionage and terrorism cases are scheduled to receive a classified briefing Monday from top Justice Department and intelligence officials about a controversial warrantless-eavesdropping program, according to sources...
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Cheney Cites Justifications For Domestic Eavesdropping
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2006010619
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Vice President Cheney said yesterday that the Sept. 11, 2001, terrorist attacks might have been prevented if the Bush administration had had the power to secretly monitor conversations involving two of the hijackers without court orders.
As part of an effort to sell Americans on the administration's recently disclosed program to eavesdrop on telephone and e-mail communications between the United States and people overseas without a warrant, Cheney told a small group of conservatives at the Heritage Foundation that instead of being able to "pick up" on the terrorist plot "we didn't know they were here plotting until it was too late."
But Cheney did not mention that the government had compiled significant information on the two suspects before the attacks and that bureaucratic problems -- not a lack of information -- were primary reasons for the security breakdown, according to congressional investigators and the Sept. 11 commission. Moreover, the administration had the power to eavesdrop on their calls and e-mails, as long as it sought permission from a secret court that oversees clandestine surveillance in the United States.
The bigger problem was that the FBI and other agencies did not know where the two suspects -- Cheney's office confirmed that he was referring to Nawaf Alhazmi and Khalid Almihdhar -- were living in the United States and had missed numerous opportunities to track them down in the 20 months before the attacks, according to the Sept. 11 commission and other sources.
In his speech, scheduled as part of a White House offensive to defend the recently disclosed surveillance program, Cheney painted an ominous portrait of U.S. security without the controversial practice. Critics said the surveillance has been unconstitutional, carried out without explicit congressional approval or court oversight. The administration said it gained broad powers from a congressional resolution after Sept. 11.
Cheney said the National Security Agency program, combined with the expanded surveillance powers authorized by the USA Patriot Act, has saved lives -- and thwarted terrorist attacks.
"No one can guarantee that we won't be hit again, but neither should anyone say that the relative safety of the last four years came as an accident," Cheney said. "America has been protected not by luck but by sensible policy decisions."
Under a secret order signed by President Bush after Sept. 11, the NSA was freed from its normal restraints and allowed to eavesdrop on the international communications of U.S. citizens and residents. Bush and other administration officials have said the spying has been limited to cases involving suspected al Qaeda associates here or overseas. "This wartime measure is limited in scope to surveillance associated with terrorists," Cheney said.
A few hours earlier, Bush met with Defense Secretary Donald H. Rumsfeld and other top officials at the Pentagon and offered an optimistic appraisal of progress in Iraq and the broader terrorism fight. Bush highlighted the recent decision to slightly reduce troop levels in Iraq and suggested that additional withdrawals could come this year.
"Later this year, if Iraqis continue to make progress on the security and political sides that we expect, we can discuss further possible adjustments with the leaders of a new government in Iraq," Bush said. The White House is planning speeches in the next few weeks to highlight progress in Iraq and defend the spying program, which has come under heavy criticism from Democrats and some Republicans. The program is expected to be scrutinized in hearings later this month.
Cheney said if the administration had the power "before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon."
Even without the warrantless domestic spying program, however, the NSA and other U.S. intelligence agencies had important clues about the Sept. 11 plot and the hijackers before the attacks, according to media reports and findings by Congress and the commission.
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Latest politics news headlines from Washington DC. Follow 2006 elections, campaigns, Democrats, Republicans, political cartoons, opinions from The Washington Post. Features government policy, government tech, political analysis and reports.
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Spending for 2004 Was Up 5 Percent
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2006010619
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We're nearing federal budget season again, when President Bush will propose his fiscal year 2007 spending plan and Congress will dispose of it as it sees fit.
But the final numbers have only just come in for fiscal year 2004, detailed in the efficiently named "Consolidated Federal Funds Report for Fiscal Year 2004." Perusing the 110-page document, released last week by the U.S. Census Bureau, a number of fun facts emerge.
Overall, the federal government spent $2.2 trillion in 2004, an increase of 5 percent from 2003. The growth was slower than the 6 percent to 8 percent increases seen over the past several years, officials say. (Inflation during fiscal 2004 was about 2.32 percent.)
Nearly half of the 2004 spending -- more than $1 trillion -- was on Social Security, Medicare and Medicaid, popular entitlement programs whose costs are growing annually.
Medicare, in particular, is about to get a lot more expensive. On Jan. 1, the federal health insurance program for the elderly began to cover some prescription drug costs for as many as 41 million eligible participants. The government expects to spend about $724 billion on the benefit over the next 10 years.
Other costs loom, too. The leading edge of the baby-boom generation turns 60 this year. At 62, some of them will decide to start collecting their Social Security benefits, fueling big increases in the cost of that very popular but fiscally uncertain program.
Entitlement programs are not the only areas of federal spending, of course -- just the ones public officials tend to talk about the most. The government in 2004 also laid out $226 billion for salaries and wages, $360 billion for procurement contracts, and $229 billion in guaranteed or insured loans.
Some states captured a lot more federal dollars than others.
In fact, five states received one-third of all federal funds in 2004. They were California, New York, Texas, Florida and Pennsylvania. That's not surprising. All five are big, populous states, so it stands to reason that a lot of federal money would flow in their direction.
More interesting is how states fared in per capita federal spending -- the amount of federal money spent per person. The national average was $7,223 per person.
The top five states were Alaska ($12,885), Virginia ($12,150), Maryland ($11,645), New Mexico ($10,437) and Hawaii ($9,651). The bottom five were Nevada ($5,469), Minnesota ($5,644), Wisconsin ($5,728), Utah ($5,728) and Michigan ($5,981).
Virginia and Maryland can thank the presence of many federal agencies and programs for their prominent spots on the list. Per capita spending in Washington, D.C., was a whopping $67,982, but also unsurprising since it is the nation's capital and the seat of the federal government.
Similarly, the list of counties and municipalities that have the most federal spending per capita include two Virginia cities (Falls Church and Fairfax City) and one county (Arlington) in the top five. Their high rankings reflect the influence of the Defense Department. The Pentagon is in Arlington County, and the two cities are home to defense contractors who rake in hundreds of millions of dollars annually in federal money.
Some figures cannot be found in the report: spending on foreign aid, international affairs or interest payments on the national debt, which totaled about $200 billion in 2004. Nor does it list spending by the Central Intelligence Agency, the National Security Agency and the Defense Intelligence Agency because budgets for those agencies are classified.
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Report Faults TSA Security Contracting
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2006010619
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Transportation Security Administration officials rushing to hire airport passenger screeners after Sept. 11, 2001, may have violated contracting regulations by failing to track spending while telling a contractor to "do whatever was necessary" to meet congressional deadlines, according to a new government report.
Soon after awarding a $104 million contract in February 2002 to hire 30,000 screeners, the under-staffed agency demanded significant changes to the contract that would eventually push the price of the deal to more than $741 million. TSA officials then moved forward with no planning "or adequate cost control," the report said, and they ignored warnings from contractor NCS Pearson Inc. that project costs had far exceeded the budget approved by Congress.
"Generally, legislative deadlines, rather than detailed requirements or cost analyses, drove TSA's management decisions," said the report, which was prepared by the Office of Inspector General at the Homeland Security Department.
The 32-page report is set to be released next week. A Pearson spokeswoman declined to comment on the report, saying she had not seen it. A TSA spokeswoman also said she had not seen the report and could not comment.
The report's findings are based largely on the work of the Defense Contract Audit Agency, which called into question $303 million of the government's spending on the screener contract. The DCAA's audit, obtained in June by The Washington Post, documented in detail how TSA officials and contractor NCS Pearson had lost control of spending at 150 temporary assessment centers set up at hotels and resorts across the country.
The new report attributed large increases in the screener contract to the TSA's decision to place the assessment centers at the hotels and resorts instead of using the contractor's facilities.
"TSA acknowledged that it performed no cost-benefit analyses to support the establishment of temporary assessment centers," the report said, adding, "TSA acknowledged it did not properly manage the assessment centers and the contract."
Although Pearson had originally estimated it would need to assess fewer than seven people to hire each screener, it ended up reviewing more than 29 people for each person hired, the report said. The company eventually assessed more than 328,000 candidates in 2002.
The report said an assessment center in Topeka, Kan., tested 73 candidates and hired just four screeners, at an average cost of $143,432 per screener. At a center in Barrow, Alaska, 35 candidates were assessed and just two were hired, at a cost of $128,368 apiece.
Spending at the resorts under the contract included thousands of dollars in unsupported cash withdrawals by contractors and hundreds of thousands of dollars in charges for valet parking, telephone calls and beverages at undiscounted hotel rates. The chief executive of a start-up "event logistics" firm hired to help manage the assessment centers paid herself a $5.4 million salary for nine months' work. Sites for the assessment centers included lavish resorts in St. Croix, the Virgin Islands, and Duck Key, Fla.
The report said TSA officials "expressed no concern regarding the use of resorts and other high cost temporary assessment center locations." The TSA told auditors that oversight of Pearson and the contract costs was "impeded by NCS Pearson's failure to provide sufficient documentation for the costs."
The report credited the TSA with surmounting "a formidable challenge" in successfully recruiting more than 56,000 airport screeners by the congressional deadline. But the Homeland Security Department inspector general's auditors said the agency did not have adequate staff for management oversight, and they faulted the TSA for failing to fully analyze the impact of its decisions on the contract.
The report said the agency had only one contracting officer at the time the Pearson contract was awarded.
The TSA has since taken steps to improve, including increasing the staff in its contracting office to 73 by early last year, the report said. But the inspector general's office concluded that the agency still needs to do a better job with its acquisition policies and procedures.
The Homeland Security Department's inspector general began looking into the matter three years ago at the request of Sens. Ron Wyden (D-Ore.) and Byron L. Dorgan (D-N.D.), who publicly complained about reports of excessive spending in a screener-hiring center set up at the Wyndham Peaks Resort and Golden Door Spa in Telluride, Colo.
Last summer, the report was delivered to TSA Administrator Edmund S. "Kip" Hawley. An official at the inspector general's office said yesterday that it won't be publicly released until next week.
In a statement yesterday, Wyden said he was concerned that the report had pointed out a "systemic problem" with homeland-security contracting. He said Pearson was "behaving like a kid in a candy store" while the government behaved "like a negligent parent, failing to pay attention to how the money was being spent."
Wyden added, "This kind of waste and abuse of taxpayer money, especially in a time of tight budgets and ballooning deficits, is unacceptable."
Dorgan said, "The people in the agency didn't care where the money was spent. . . . It's an unbelievable waste of money."
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Transportation Security Administration officials rushing to hire airport passenger screeners after Sept. 11, 2001, may have violated contracting regulations by failing to track spending while telling a contractor to "do whatever was necessary" to meet congressional deadlines.
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Z-104 Silenced; Post Radio To Debut in Station Shuffle
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2006010619
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Radio broadcaster Bonneville International Corp. shook up Washington's airwaves yesterday by moving its all-news station WTOP and classical outlet WGMS-FM to new frequencies, eliminating pop music station Z-104 and announcing plans for a news-and-talk station it will program with The Washington Post.
The moves involve three local stations that occupy six slices of the AM and FM bands. By reshuffling its station lineup, Bonneville is attempting to place its most popular and lucrative programming -- news -- on the frequencies that have the strongest broadcast signals. At the same time, it essentially is backing out of the music field, eliminating airplay of contemporary recordings and consigning classical to one of its weakest signals.
With only a perfunctory on-air announcement, the Utah-based broadcasting giant at noon yesterday triggered the local radio version of musical chairs. It abruptly knocked WGMS off of 103.5 FM and moved WTOP into that slot. WGMS, in turn, moved to 104.1 and 103.9 -- the former homes of the pop station Z-104, which immediately disappeared. In a flash Z-104's listeners went from hearing upbeat deejays and adult-contemporary singles to a dulcet-toned announcer introducing a Rachmaninoff piano concerto.
On March 30, two of WTOP's frequencies (1500 AM and 107.7 FM) will switch to Washington Post Radio, news and talk programming that Bonneville will produce with The Post, which owned WTOP from 1949 to 1978. Bonneville will continue to own the stations under a new trademark and content-licensing agreement.
Although details of the Post-programmed stations are being worked out, the stations -- likely to be called WTWP, sources said -- are expected to become the home of Washington Nationals broadcasts. Bonneville is close to finalizing an agreement to carry the baseball club's games this season, sources said yesterday. Bonneville Senior Vice President Joel Oxley said the company would like to land the rights to Redskins games. The team's contract with WJFK-FM expired with Sunday's final regular-season game.
Bonneville's repositioning of its stations will strengthen WTOP by expanding its reach, local radio executives said. Broadcasting at 103.5, WTOP's news, weather, sports and traffic reports will blanket the region with one signal instead of the three relatively weaker ones (two AMs and an FM) the station has used.
In addition, the station will extend its signal by broadcasting in a monaural format instead of sonically cleaner but less pervasive stereo. Station officials said WTOP's signal would be the most powerful in the region, with a "footprint" stretching from south of Fredericksburg to north of Baltimore and incorporating parts of Maryland's Eastern Shore.
"We'll reach people all over the place," said Jim Farley, WTOP's vice president of news and programming, at a news conference in the station's broadcast studio. "If you're working at home, if you're in the car downtown, we'll be your nonstop news source."
WTOP, which usually ranks among the area's top five stations in audience share, is the market leader in advertising sales. It generated about $41 million in revenue in 2004, according to BIA Financial Network, a media consulting and research firm based in Chantilly. The station's success reflects not just the size of its audience but also its attractive demographics; news consumers are generally perceived by advertisers to be among the best educated, to have relatively high incomes and to pay closer attention to the radio than those who listen to music stations. WTOP is the area's only all-news commercial station.
Classical music fans, particularly in the District and Montgomery County, will find it harder to get a clear signal for WGMS at its new frequencies. The station's broadcast towers are in Waldorf and Frederick, and the potential for interference or lost signals could drive away some listeners, an executive at a rival radio company said yesterday.
Yesterday's announcements underscored the changing nature -- and to some extent, the slow shrinking -- of radio as a music medium. Although radio airs many kinds of music, direct competition among genres is rare. Washington, for example, was left with only one contemporary rock station (DC101, WWDC-FM) after WHFS-FM switched to a Spanish-language pop music format last January, and with one major classical station (WGMS) after WETA-FM switched to news and talk in March.
Z-104 (WWZZ) promoted its format as "modern music" -- a mix of Green Day, Kelly Clarkson, Nickelback and other pop hitmakers -- and competed for much of the same audience and advertisers as rivals Mix 107.3 (WRQX-FM) and Hot 99.5 (WIHT-FM).
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Washington, DC, Virginia, Maryland business news headlines with stock portfolio and market news, economy, government/tech policy, mutual funds, personal finance. Dow Jones, S&P 500, NASDAQ quotes. Features top DC, VA, MD businesses, company research tools
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Ebony On the Runway
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2006010619
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Ebony Fashion Fair is the perfect confluence of popular culture, racial uplift, community pride, tantalizing entertainment and good business. The elaborate roadshow, which is in its 48th year and travels to 179 cities, celebrates style, glamour and the fervent belief that dressing up and dressing well are good for the soul. A fashion show is not church, but there can be something redemptive in a piece of well-chosen finery.
At the production's most recent stop at the Kennedy Center, a moment of earnest prayer interrupts the pre-show, red-punch reception. "Loorrd, we are here today," begins the faithful speaker with a breathless quiver of emotion that lets the room know, yes, Lord, we are going to be here with our heads bowed for quite a long time. There is so much for which to be thankful.
Fashion Fair models spin coats and fur-trimmed capes over their head like disks of flying pizza dough, catching them gracefully and positioning them just so around their slender shoulders. They pirouette center stage like exotic birds with flamboyant plumage. These ready-to-wear pyrotechnics are part of the show's appeal, for the audience knows that when a model canters out clutching a demure shawl around her shoulders, something enticing lies below which will be revealed with the kind of fanfare trademarked by Diana Ross in "Mahogany."
The show's pair of muscular young men are charged with flirting with the ladies of the front row. No matter if those ladies are old enough to be their grandmothers, the lively come-ons are innocent, as raunchiness is not part of the Fashion Fair legacy. Still, the gentlemen take every opportunity to be topless, serving up their pectorals like so much grade-A beef and on occasion, making their chest muscles dance like marionettes.
"This is one smooth show," says John Syphax, a psychologist from Washington dressed in a cocoa-colored suit with metallic buttons, who is an audience regular because his Aunt Ethel always corrals him into buying a ticket.
Fashion Fair highlights the Ebony brand while funneling readers to the magazine. It raises money for local charities, especially those that focus on education. Ebony is an institution that, like W.E.B. Du Bois, believes in uplifting the race. It is committed to showing black women -- and men -- in the most flattering, golden light.
Sometimes, the best light is high-wattage klieg, shining on a Las Vegas-style spectacle.
Fashion Fair was developed by Eunice Johnson, who along with her husband, John, founded Johnson Publishing Co. John Johnson died in 2005 and left behind a legacy that includes not only the fashion extravaganza and Ebony magazine, but also Jet magazine and Fashion Fair Cosmetics.
The couple's daughter, Linda Johnson Rice, 47, is president and CEO of the company, which is headquartered in Chicago. And it falls to her to usher Ebony Fashion Fair into the future. Rice says the show is too potent a branding device to let fall into disrepair.
Over the years, Fashion Fair has matured into a cultural institution that has raised more than $52 million for local and national charities and has helped Ebony magazine reach a circulation of 1.7 million. The Washington chapter of the Continental Societies Inc. has hosted the show for 42 years; the group regularly raises about $30,000 for its outreach work with disadvantaged children.
Fashion Fair is an exemplar of corporate synergy, but it also is showing the effects of age. Its audience no longer is filled with the kind of young men and women who once vamped in their own designer duds, giving the show its heady aura. The show's arrival in a city no longer generates the anticipation it once did. How can it, when cable television now provides a steady loop of runway footage? Celebrities do not flock to the show.
"We had the creme de la creme ," says Audrey Smaltz, who once served as Fashion Fair's onstage commentator. "Sidney Poitier came to the show. Bill Cosby came to the show. Muhammad Ali came to the show. They were coming for the girls. It was an event. Every show, people got dressed up. They had on gowns and suits."
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Ebony Fashion Fair is the perfect confluence of popular culture, racial uplift, community pride, tantalizing entertainment and good business. The elaborate roadshow, which is in its 48th year and travels to 179 cities, celebrates style, glamour and the fervent belief that dressing up and... One......
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Ted Koppel and 'Nightline' Crew Turn Down HBO For Discovery Deal
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2006010619
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The turning point in his decision to join Discovery Networks, Ted Koppel said yesterday, was when executives showed him part of a documentary on China on a big-screen monitor in the conference room of their Silver Spring headquarters.
"It's exquisitely shot, it's beautiful, but it isn't going to ruffle any feathers in Beijing," the former ABC newsman said. So he posed the question: "What if we were to do a real documentary in China in which its legal system and human rights record is questioned?"
Billy Campbell, president of Discovery Networks U.S., said he had no problem if it was accurate, and Liberty Media President John Malone, whom Koppel described as "the 900-pound gorilla" on Discovery's board, later told him: "I guess that's one that wouldn't be shown in China."
Once he determined that Discovery wouldn't shy away from controversy, Koppel decided, along with his executive producer Tom Bettag and eight former producers at "Nightline," to walk away from a nearly completed deal with HBO and sign with the Maryland company, which reaches 1.2 billion viewers in 160 countries and territories.
Koppel praised HBO but said, "Theirs is essentially an entertainment company and we would have been, I suspect, something of an appendage there," while Discovery is "a better fit."
The Koppel unit will produce six to 10 programs a year, which will include long-planned documentaries, town meetings and breaking-news specials within days of a major event. Such programs could run from one to three hours and be repeated several times.
The venture is a departure for a high-toned operation that runs such networks as the flagship Discovery Channel, the Learning Channel, Animal Planet, Discovery Kids and the Travel Channel, and whose programs include "Trading Spaces," "What Not to Wear," "Total Family Health," "Mythbusters" and "Monster Garage." But Campbell, noting Discovery's partnerships with BBC America and the New York Times and some ventures with former NBC anchor Tom Brokaw, said the 20-year-old company has always valued fact-based reporting.
" 'Nightline' doesn't have a whole hell of a lot in common with 'Desperate Housewives,' either," Koppel said, referring to the hit ABC show.
Koppel, 65, decided early last year to leave "Nightline," the program he anchored since its 1980 debut, after ABC News President David Westin insisted that he do the 11:30 p.m. show live every night rather than tape in advance. Koppel, who will hold the title of managing editor at Discovery, would not discuss compensation but said the company had given him and his team "a very generous arrangement."
The first contact came on Dec. 1, the week after Koppel's last "Nightline" broadcast, when Don Baer, a Discovery executive vice president who previously worked in the Clinton White House, e-mailed and then called Bettag. After a series of phone conversations, Koppel had a 90-minute cup of coffee with Campbell on Dec. 9 and all four men held a conference call on Dec. 16. The deal was essentially sealed after Koppel spoke to Malone over the Christmas holidays. Koppel had set a Dec. 31 deadline for Discovery because otherwise his producers, who had resigned from ABC along with Koppel, would be without paychecks.
"Our entire company is just thrilled," Campbell said. Discovery is jointly owned by Liberty Media, Cox Communications, Advance/Newhouse Communications and founder and chairman John Hendricks.
Koppel said he was approached by 10 or so media organizations but did not negotiate with any of the cable news networks. He said they had a tendency "to be in a desperate race to be first with the obvious, to pay attention to what is recent rather than what is important." He said CNN, where his daughter, Andrea, is a reporter, "does some really fine documentaries" but tends to "bury them on a Sunday."
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Washington, DC, Virginia, Maryland business news headlines with stock portfolio and market news, economy, government/tech policy, mutual funds, personal finance. Dow Jones, S&P 500, NASDAQ quotes. Features top DC, VA, MD businesses, company research tools
| 15.294118 | 0.411765 | 0.411765 |
low
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low
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abstractive
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http://www.washingtonpost.com/wp-dyn/content/linkset/2005/10/12/LI2005101201295.html
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https://web.archive.org/web/2006010619id_/http://www.washingtonpost.com/wp-dyn/content/linkset/2005/10/12/LI2005101201295.html
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After Katrina: Starting Over
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2006010619
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Follow Todd Larche on his journey home to confront the destruction Hurricane Katrina left behind and to try to salvage what he can for his family.
Todd Larche sits inside the D.C. Superior Court room. When he doesn't hear his name, he shifts, nervously crossing his legs. He is waiting to hear what will happen with his case, his job, his life.
Long after the school day ended, Todd Larche was sitting in Washington's 7th District police station being fingerprinted and charged with misdemeanor assault for striking a student.
Almost two weeks ago, the Larches left their infant son and 5-year-old daughter with Michele's sister in Silver Spring and drove back to their house in east New Orleans to meet an insurance adjuster.
One of the hardest things for Todd Larche at his brand-new teaching job has turned out to be the commute home.
Todd Larche says pining for New Orleans helped make him sick. But he said he can't keep doing that to his family.
Michele can scarcely believe the things people have done for her family since Katrina. "It's just amazing," she says. She has been moved to tears, even though she hasn't gotten to her thank-you cards yet. You know, things have just been kind of hard.
Michele and Todd Larche want to put a roof -- hopefully (hopefully!) a New Orleans roof -- over their heads and settle their elderly parents with them or nearby. They want to get back to work; he's a special-ed teacher, she's a doctor. They want stability for themselves, their baby son and 5-year-old daughter. They want answers.
Todd Larche had been coasting on the rush of adrenaline and anticipation from the day he had fled New Orleans for Silver Spring after Hurricane Katrina until the birth of Todd Jr. last Tuesday. He spent three nights at Washington Hospital Center with his wife, Michele, and then the baby. And whenever he had to vomit, he'd turn on the shower to hide the sounds of his retching.
The Larches welcome a son, Todd Michael Larche Jr., into the world even as they struggle to rebuild their own.
Shortly before her baby shower is set to begin, Michele Larche rifles through her sister Cassandra's closet for something to wear over her light-pink maternity blouse. She pulls out a long black sweater but worries it doesn't look right. She remembers all the beautiful new maternity clothes left behind when she and her family fled New Orleans for her sister's Silver Spring home, and she wills herself not to go there again.
A few hours before he's supposed to meet Cardinal Theodore McCarrick, archbishop of Washington, Todd Larche has popped open a beer and is finishing off a cigarette.
On the drive to New Orleans, Todd Larche ordered two dozen roses, yellow and red, friendship and love, for his wife. Michele had called him as he headed down Interstate 95 last week, needing him to understand how badly she wanted to make the trip, how upset she was that she couldn't because of the baby. Needing him to get that she aches, physically aches, for all the things she had back home.
Exactly one month after Hurricane Katrina chased him out of New Orleans, Todd Larche is driving back. He has an ax and a box cutter and gallons of water in his pickup. He has bleach and rubber gloves. He doesn't know whether he'll be allowed back in, but he's packed everything he can think of to hedge his bets against what he might find.
When Michele Larche told her 5-year-old that her daddy was going back to New Orleans to check on the house, Kristen had just one urgent question. "Is Daddy going to be dead from the flood?"
It's past noon but Michele Larche is still wearing the blue pajamas she bought with her Red Cross debit card, and folding baby clothes donated by strangers. She pauses to hold up an outfit, trying to figure out what might fit her baby -- a boy due mid-October. Just back from Sunday Mass, her husband, Todd, looks on. Their conversation veers, taking them from the Silver Spring living room of Michele's sister and brother in-law, where Hurricane Katrina chased their family of five 3 1/2 weeks ago, to Louisiana and Texas, where Hurricane Rita got after the rest of their folks Saturday.
Todd Larche has big hugs for all the family members who've come to celebrate his brother-in-law's 58th birthday. He and Ronald Wallace have grown closer since Larche and his extended family evacuated New Orleans and took refuge in the Wallaces' Silver Spring home.
It's not like Todd Larche meant for his cheery yellow shirt to match the director's office at the D.C. Alternative Learning Academy in Southeast Washington. But then, he didn't mean for a lot of things to happen the way they have. Larche is on his first job interview since fleeing Hurricane Katrina.
It's shortly before noon and Todd Larche is on hold. Again. It's his fourth call this morning, and an automated message says a Social Security operator will be with him in seven minutes. He waits.
There have been endless tears since Hurricane Katrina two weeks ago. Since Larche, his physician wife, Michele, 39, their teenage nephew and two elderly parents fled New Orleans the day after the storm.
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A series chronicling the Larches of New Orleans as they rebuild their lives in the Washington area.
| 59 | 0.777778 | 1.555556 |
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low
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mixed
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