[Wolf Blitzer, Cnn Anchor:] And to our viewers, you're in THE SITUATION ROOM, where new pictures and information from around the world are arriving all the time. Happening now, our special coverage of the Samuel Alito confirmation hearings. It's 11:00 a.m. here in Washington, and Democrats are trying again to get more out of Judge Alito. Are they looking for answers or for the Supreme Court nominee to stumble? Also this hour, the stage is set for President Bush to defend his Iraq strategy again. Is there anything more he can say to bolster support for the mission and Republicans in this year's congressional elections? And thousands of acres ablaze right now in Colorado. It's 9:00 p.m. 9:00 a.m., that is, outside of Denver, where strong winds are pushing the wildfire into danger closer to the city. I'm Wolf Blitzer, and you're in THE SITUATION ROOM. We're going to take you right back to the Alito hearings here in Washington. But first, let's go to Daryn Kagan at the CNN Center in Atlanta for a closer look at some other stories "Now in the News."
[Daryn Kagan, Cnn Anchor:] Hello, Wolf. And here at the top of the hour we're going to go ahead and start with international news. We just have received an update on the status of Israeli Prime Minister Ariel Sharon. Doctors at a Jerusalem hospital say that neurological tests show a slight improvement in Mr. Sharon's condition. He still is on a very low dose of anesthesia. Doctors have planned to remove him from all remaining sedatives today. Doctors say the prime minister is no longer in immediate danger, but it's expected to be days until the full extent of the stroke's damage is known. Residents on the outskirts of Denver are being allowed back home this hour as firefighters keep battling a wildfire. Authorities now say half the fire is contained and two roads that were closed are now reopening. The fire has burned more than 2,400 acres. That fire started, by the way, on 10 acres yesterday evening, but exploded overnight due to wind and gusts up to 60 miles an hour. Now to Virginia, where police in Manassas have one bank robbery suspect in custody, but they're still out there looking for another one or perhaps two. The holdup started about three and a half hours ago, when police say that one suspect remained in the bank with an employee, one or two other suspects left. Police say they were able to talk the remaining suspect into surrendering. The employee who was being held was not harmed. A suspected bank robber was shot dead, another is in custody this morning following a 10-hour standoff in Florida. Authorities say the pair held four people hostage at the Mercantile Bank in Disney World. They had let three people go when talks stalled, and police finally just blasted their way in. The suspects tried to escape but police chased them down. Authorities say they shot one suspect. The other surrendered, and the final hostage was then rescued. Now take a look at this, the store surveillance video. But watch it carefully. A mother and her two daughters, they are expected to recover. They were hit by that car yesterday outside of a food market in Wasco, California. Sheriff's deputies say the 79-year-old driver lost control while turning into the parking lot, and then she fled on foot, but later surrendered. She is charged with felony hit and run. A report out today says former D.C. Mayor Marion Barry tested positive for cocaine last fall. "The Washington Post" says that Barry took a court-ordered drug test after pleading guilty to misdemeanor tax charges. Barry spent six months in jail back in 1991 on drug charges. He's now a member of the D.C. Council. "The Post" says he has started drug treatment. Wolf, back to you.
[Blitzer:] All right, Daryn. Thank you very much. And we're going to go back to the Senate confirmation hearings of Samuel Alito. The chairman, Arlen Specter, starting the second round of questioning, 20 minutes for each senator. He is now asking Alito questions about executive authority, presidential power versus that of Congress.
[U.s. Senator Arlen Specter , Chairman:] ... try to figure out what the Supreme Court is later going to say is congruent and proportionate?
[Judge Samuel Alito, Supreme Court Nominee:] 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...
[Specter:] Judge Alito...
[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? 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. 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. 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." 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. 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. 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.
[Specter:] Could you promise the same result?
[Unidentified Male:] 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.
[Blitzer:] And as the committee recesses for 15 minutes to let everyone take a little break, we're going to continue our special coverage of the Samuel Alito hearings. Jeff Greenfield and Jeff Toobin, a quick assessment midterm through this morning Jeff.
[Jeff Greenfield, Cnn Sr. Analyst:] Well, you've only heard from Republicans because they outnumber the Democrats 10 to eight.
[Blitzer:] We did hear from Senator Durbin.
[Greenfield:] I'm sorry. At the end of in the second round we've only that's right, we've heard from three straight Republicans. And basically, the if you want to call them the only rough waters he encountered was was Senator Durbin trying to say to him, I don't get this distinction you're making between the birth control and school segregation cases where you're fine with that even though the court might have been a little activist there, or a lot, and abortion. The other thing is Ed Gillespie did make clear that when Senator Durbin said John Roberts said abortion was set in law, he didn't say it as a prospective Supreme Court chief. He said it as a candidate for a lower federal court, all of whose numbers are bound by the Supreme Court. So, in that sense, the spread between Roberts and Alito is a lot less than it might have looked like. Other than that, I well, I'll stop there.
[Jeffrey Toobin, Cnn Sr. Legal Analyst:] Moments ago we actually learned something new. I mean which was sort of startling to me, that Judge Alito supported cameras in the courtroom on the 3rd Circuit, which is actually somewhat unusual for federal judges. As he indicated, he lost his battle in the 3rd Circuit, but the Supreme Court, cameras in the courtroom, I think Chairman Specter is right, it will probably come in somebody whose lives now lifetime perhaps not his. But it would be it suggests that there may be a force for cameras in the courtroom. He may be confirmed, and that would that's just that's a startling fact.
[Blitzer:] And we learned also learned another startling fact. He likes Bruce Springsteen. A son of New Jersey, and he likes Bruce Springsteen. Almost endorsed "Born to Run" as the state's song.
[Greenfield:] As the state's song, yes. I think an attack on Bruce Springsteen might well have put him outside the mainstream, even among a lot of Republicans. So on that one he was willing to commit himself.
[Blitzer:] We'll take a quick break. We're going to continue our coverage here in Washington in THE SITUATION ROOM. They're in a break, the Senate Judiciary Committee. We'll check all the day's other important news unfolding right now. We'll be right back.