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Sessions, Leahy on Alito Hearings: Part II

MICHELE NORRIS, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

ROBERT SIEGEL, host:

And I'm Robert Siegel.

We're hearing from two members of the Senate Judiciary Committee now, Republican Jeff Sessions of Alabama, and we'll hear more from Senator Patrick Leahy, Democrat of Vermont.

Senator Sessions, your Democratic counterpart here, Senator Leahy, is very concerned about the nominee's view of executive power and that indeed it seems to permit the president not to enforce some laws if then it can be shown the law was unconstitutional. Are you all right with that, or do you believe that you're looking at someone who would be too partial to the executive branch at the expense of the body that you sit in?

Senator JEFF SESSIONS (Republican, Alabama): He's been in the judicial branch for 15 years now, been far separated from the executive branch. And I think he brings a rich insight constitutionally into this, and I was impressed with his answers. He made reference to the fact that presidents--President Bush and, I think, other former presidents--have issued signing statements at the time that they sign a bill. Their signature is necessary for it to become law, and they make a statement concerning how they think some of the provisions should be defined. If Congress is unhappy with that, then they could pass additional legislation to clarify any ambiguity they're unhappy with. He also suggested pretty strongly that he didn't think they deserved much weight, that the meaning of the words...

SIEGEL: The signing statements. The sign...

Sen. SESSIONS: Yes, those signing statements are of very little value.

SIEGEL: Well, there's a specific case--there was a specific case that was raised in the questioning today of the language the Senate adopted, Senator McCain's language banning torture. It was tacked onto a bill that was passed and President Bush signed. Does the president have the authority to exempt some interrogations from that rule right now or, no matter what his signing statement was, is he bound by the letter of that ban?

Sen. SESSIONS: He's bound by the law and--unless that law is unconstitutional, certainly.

SIEGEL: But is it up to him now...

Sen. SESSIONS: So I mean--but he may express right up front that he thinks the law only covers A and B and not C, and he's not--he didn't mean to commit to doing C, so therefore that gives Congress notice, if they're unhappy, they can pass a law that requires him to do C.

SIEGEL: But if he signed the law, isn't there a presumption that he thought it was constitutional?

Sen. SESSIONS: Well, perhaps not--perhaps it's how it's interpreted, Robert. You know, maybe there are some areas within it that are unclear, and he defines how he interprets it at that time. I think it's probably a healthy thing to do.

SIEGEL: Senator Leahy, how do you read that particular case...

Senator PATRICK LEAHY (Democrat, Vermont): I have a total dis...

SIEGEL: ...of the torture language? Yeah.

Sen. LEAHY: I totally disagree with my friend Jeff Sessions on this. One, presidents don't do it all the time. The--using the phrase `unitary executive,' as President Bush did, President Reagan did it once; former President Bush did it six times; President Clinton did it not at all. And this president's done it 110 times. A president doesn't get to pick and choose which part of the law he intends to obey. He can--if he doesn't like the law or if he thinks it's unconstitutional or there's parts of it he doesn't like, then veto it, send it back to the Congress, tell them to do it again, especially when you've got a Republican-controlled House and Republican-controlled Senate. They're not going to override his veto.

You can't pick and choose--sort of like you doing down the road, you're going 90 miles an hour, you get pulled over for speeding and you say to the trooper, `Well, you know, I think the law in the side streets is right. I think the speed limit downtown is right. But I chose to disregard it here on the interstate.' As they'd lead you off in handcuffs, you can imagine how far you'd get.

SIEGEL: But...

Sen. LEAHY: That's basically what the president is doing...

SIEGEL: I...

Sen. LEAHY: ...is saying, `I'll pick and choose.' If he doesn't like the law, veto it. If he doesn't like the torture amendment that he negotiated with Senator McCain, then veto it. But don't write on the side, `I'm going to sign the law, but I don't have to follow it.'

SIEGEL: Senator Sessions?

Sen. SESSIONS: Well, I don't think that any--he can remove himself from the clear mandate of the law, and that's what Judge Alito said. Judge Alito indicated that the plain language of the law is what counts. There could be instances in which congressional debate and congressional insight into the law might impact how it gets defined, and sometimes the presidential statement might impact how it would be defined. But fundamentally, the law stands as it's written.

SIEGEL: Senator Sessions, when the nominee is asked, `Do you agree still with the statement you made in 1985 that the Constitution doesn't contain a woman's right to an abortion?' why can't we just get an answer from him that says `Yes,' `No' or `I'm not going to answer that question'?

Sen. SESSIONS: Well, I think it may go pretty clearly to a case that might come before him, and he was an advocate for an administration that clearly believed that Roe vs. Wade was wrongly decided. So now this case may come before him.

SIEGEL: But Senator Feinstein--yeah.

Sen. SESSIONS: As a judge, he is obligated to give those litigants a fair hearing and consider their arguments, which he's never completely done before as a judge. So I think they can move to recuse him even if he said--made a firm opinion one way or the other on Roe vs. Wade.

SIEGEL: But Senator Feinstein of California pointed out to me as he, if confirmed, would face four cases that involve one man, one vote, and he said he believes in the principle of one man, one vote. What's the difference?

Sen. SESSIONS: Well, the general principle of one man, one vote, is something that's so clearly established, it's not really under any serious challenge to that. There still remains challenges to Roe vs. Wade.

SIEGEL: Senator Leahy, it would appear that you had a couple of rounds of questions to ask Judge Alito everything you could ask him. It sounds like the answers don't get that much different from one round to the next. What's the point of another round of questioning here?

Sen. LEAHY: Well, you know, I have to make up my mind whether I'm going to vote for or against him. I asked several rounds of questions with John Roberts, and I ended up voting for John Roberts. There's almost 300 million Americans; only 18 of us actually get the chance to ask questions of somebody who's up for a lifetime appointment to the most powerful court in the land. I think we owe a duty to the American people to actually ask questions, not to sit there and toss softballs to him, and not to sit there and read questions written out by the White House, but to actually ask real question. He has taken different positions on this area of unitary executive. I think it is going to become a major factor in upcoming years, especially if you have presidents, whether Republican or Democratic, who choose to do what President Bush has, time and again, more than a hundred times, say, `I'm not going to follow different parts of this law that I'm signing'...

SIEGEL: Well, Senator Leahy--yeah.

Sen. LEAHY: ...or `I reserve the judgment not to.'

SIEGEL: Yeah.

Sen. LEAHY: So I'll keep asking the question until I get an answer.

SIEGEL: Well, on that note, thank you very much, Senator Patrick Leahy, Democrat of Vermont, and Senator Jeff Sessions, Republican of Alabama, for talking about the confirmation hearings of Judge Samuel Alito.

And there is more on the Alito confirmation process at our Web site, npr.org.

This is NPR, National Public Radio. Transcript provided by NPR, Copyright NPR.