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.
But go ahead.
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?
ALITO: Yes, Senator.
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...
LEAHY: And enforce it?
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.