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CNN Live Event/Special

Alito Hearings Press On; Bush Speaks on Rebuilding New Orleans; Rice Addresses Iran's Nuclear Activities

Aired January 12, 2006 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: To our viewers, you're now 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 approaching noon here in Washington, and Judge Alito's grueling marathon is almost over.

Does he have a lock on the Supreme Court job?

It's calmer in the hearing room today, a day after emotions ran very high. Is the controversy that made Samuel Alito's wife cry now behind him?

And author James Frey speaks out about accusations that his popular memoir is really a million little lies. And Oprah Winfrey is talking about that as well, about the man, about the book she made famous.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

We'll continue our live coverage of the Samuel Alito Hearings in just a moment. First, though, let's get a quick check of some other important news unfolding right now.

Daryn Kagan standing by at the CNN Center in Atlanta.

DARYN KAGAN, CNN ANCHOR: Thank you, Wolf.

It's 12:00 noon in the East.

President Bush is on the Gulf Coast this hour. It's his first visit to the hurricane zone in three months. The White House says the president will trumpet the government's long-term commitment to post- Katrina recovery. And you'll see -- or he will see first hand the progress to this point. Mr. Bush will meet with business executives in New Orleans, then he goes on to a speech in Bay St. Louis, Mississippi.

We have been following a developing story out of Mecca, Saudi Arabia, where about three million Muslim worshippers are taking part in the annual Hajj pilgrimage. The health ministry there has confirmed that a stampede has killed about 345 people. About an additional 300 are also injured. Witnesses say the stampede erupted during the ritual stoning of a symbolic devil. The U.S. citizen held for more than three years as an enemy combatant today pleaded not guilty to criminal charges. Jose Padilla entered his plea in a federal court in Miami.

Padilla is accused of being part of a network that supported violent Muslim extremists worldwide. Padilla was transferred from military to civilian custody last week following a ruling by the Supreme Court.

The author of a best-selling memoir is defending his book from accusations that, well, he made parts of it up. In an exclusive interview on CNN's "LARRY KING LIVE" last night, author James Frey spoke about the book. It's called "A Million Little Pieces." The book describes his life as an alcoholic, drug addict and criminal.

The book became a best-seller after Oprah Winfrey picked it out for her book club. She even called into Larry's show last night.

(BEGIN VIDEO CLIP)

OPRAH WINFREY, TALK SHOW HOST: I feel about "A Million Little Pieces" that although some of the facts have been questioned, and people have a right to question because we live in a country that lets you do that, that the underlying message of redemption in the James Frey's memoir still resonates with me, and I know that it resonates with millions of other people who have read this book and will continue to read this book.

(END VIDEO CLIP)

KAGAN: The Smoking Gun Web site made the accusations against the book following an investigation. And the Web site is partly owned, we should tell you, by Time Warner, CNN's parent company.

You can see a replay of James Frey's interview. It's going to be played again on Saturday night. And you can watch CNN's "LARRY KING LIVE" weeknights at 9:00 p.m. Eastern.

Now take a look at this, a picture of Alaska's Augustine Volcano. The volcano erupted yesterday for the first time in 20 years. And scientists say it could blow again in the very near future. Scientists may collect ash from the volcano's base today.

Looking at a wide shot of the steam coming out, the volcano is located on an uninhabited island. The eruption didn't disrupt air travel, though pilots were warned to stay away from the cloud.

Wolf, apparently this volcano likes years that end in six, because it last erupted in 1976, 1986, and here we are, 2006.

BLITZER: So what does that mean, Daryn, scientifically?

KAGAN: Scientifically, it means maybe you don't want to plan your trip to Alaska on those "six" years.

BLITZER: All right. Well, that's a scientific explanation. Daryn Kagan, thank you very much.

Here in Washington, we are monitoring the hearings of Samuel Alito, the confirmation hearings over at the Senate Judiciary Committee.

Let's bring in our congressional correspondent, Ed Henry. He's doing the same thing.

Ed, it sounds like they are beginning to wrap up, although the chairman, Arlen Specter, is giving these Democrats a lot of flexibility.

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT: That's right. And I think that that has really been the rule all week. And it's probably been a pretty smart strategy from the Republican chairman, because every time the Democrats have asked for more he's given it to them. And he doesn't want to give them an issue where if he were to deny them more questions, the Democrats could say, oh, we had so much more we wanted to do, and that would be an opening for the Democrats.

If you think back to yesterday, that big showdown between Specter and Democratic Senator Edward Kennedy, Kennedy demanding a subpoena of these Concerned Alumni of Princeton records over at the Library of Congress. Rather than stonewall there, Specter finally just called his bluff and said, you know what, we don't need a subpoena, I sent the staff over there during the lunch break to go look at it.

In fact, they worked through the night last night, going through four boxes of documents. Senator Specter declaring and announcing at the beginning of this hearing that staff from both the Republican and Democratic side could not find Samuel Alito's name popping up on any of those documents.

So the Republicans feel that it's all but a done deal in terms of that being a controversy. Of course it's going to continue. There will still be questions about it.

But I think overall, if you take a step back, this week started with so much drama. We were talking about the sort of fire and brimstone rhetoric in opening statements from the Democrats on Monday. And day by day, I think the air has been let out of the balloon just a bit each day, and there's so much less drama.

In fact, if there was any doubt about how conservatives feel about how this week has gone, that was cast aside by the rock star welcome that Judge Alito got on Capitol Hill this morning. Cheering conservative activists welcoming him.

He was shaking hands and greeting supporters, brought a smile to his face. Obviously a lot of -- it was a lot more tense yesterday when he was under fire, when his own wife broke down, got emotional. Today, though, you can see him buoyed.

This is his last day of questioning. It's almost -- you know, it's basically the last chance for Democrats, and they still don't really seem to have been able to really pin him down on very many issues.

So he's feeling good. I think White House is feeling good.

And, you know, to wrap it up, Republican Senator John Cornyn a couple of days ago said -- and it was a little early, but he said there was an air of inevitability that there was going to be confirmation. I think that's been borne out right now. Again, barring some major development, he's still -- very smooth sailing for now -- Wolf..

BLITZER: Ed Henry reporting from Capitol Hill.

Ed, thanks very much.

Jeff Toobin, Jeff Greenfield are here in THE SITUATION ROOM with us.

I don't know about you guys, but I've been impressed that the chairman, Arlen Specter, the way he's handled this confirmation hearing. And even now, giving the Democrats, you know, you want another 10 minutes, another 20 minutes, in congressional time in these hearings that's -- he's bending over to say, you know what? Give it your best shot, ask whatever you want, don't complain later.

JEFF GREENFIELD, CNN SR. ANALYST: And the contrast could not be greater with the mood of the Clarence Thomas hearings back in 1990, when Joe Biden, then the chairman, and Orrin Hatch, then the ranking member, I believe, one of the ranking members, were at swords points.

At one point, Joe Biden, I remember -- Hatch had asked for something, and Biden said, Oh, I'll give you that, and then I'm going to cut you off. And the ill will in that room, Arlen Specter calling Anita Hill virtually a perjurer, Clarence Thomas himself denouncing the high-tech lynching.

And I think Ed Henry's right. I mean, why -- why go out of your way to cause any ill will when you can do this? You know, the nominee of your party, who Specter, I'm pretty sure is going to back, is going to be confirmed, and it's much more collegial.

You had that one little -- one little exchange with Ted Kennedy.

BLITZER: Exchange with Ted Kennedy.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: And he has done it promptly, which is unusual for congressional hearings. And he's also asked good questions.

Senator Specter is one of the very few members of this committee who actually knows how to ask a question that elicits real information. You've got Democrats giving hostile speeches, you've got Republicans, for the most part, just, you know, giving tributes to Judge Alito.

But Specter has actually asked a lot of questions that brought whatever information we've learned -- and it hasn't been a lot -- but whatever information we've learned, much of it has come from Specter's questioning. And that's a real success in a hearing like this.

BLITZER: And on a personal note, remember, this is a man who has been very sick in recent years, suffering from cancer, going through chemotherapy and radiation. He now seems to be doing much better. His hair has come back. And -- but he's someone clearly who is relishing every day right now, enjoying this even as he struggles with some health issues.

GREENFIELD: Specter is universally known as one of the smartest people in the Senate. He would never be first in the Mr. Congeniality contest. He sometimes rubs people the wrong way.

But in this case, I think you are absolutely right. This is a -- this is a great moment for any chair of the Senate Judiciary Committee. It's a significant event. And it isn't his fault that most of the senators can't ask questions the way he can, or are determined to make partisan political points, or to satisfy their constituents.

TOOBIN: And you have to like a guy who isn't pandering to the youth vote, because yesterday, here's a guy who referred to a computer letter rather than an e-mail. I thought to myself, wow, you've got to be seriously out of things not to know what an e-mail is.

But, you know, god bless him. He is who he is.

BLITZER: All right. God bless Arlen Specter.

GREENFIELD: Strom Thurmond used to talk about a microphone as a machine. Talk into the machine. So it's a great tradition -- Wolf.

BLITZER: Chuck's Schumer, the Democratic senator from New York State, has started asking questions about wiretaps. Let's go back to the hearings.

JUDGE SAMUEL ALITO, SUPREME COURT NOMINEE: And 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.

SEN. CHUCK SCHUMER (D), NEW YORK: 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.

SCHUMER: Thank you.

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.

SCHUMER: In both cases.

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.

SCHUMER: Employer or employee?

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.

SCHUMER: OK. 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.

Am I right?

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?

ALITO: Yes, it was.

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."

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?

ALITO: Yes, Senator.

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?

ALITO: Absolutely.

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.

And my position on...

SCHUMER: I understand your explanation. I'm not sure I agree with it, but let me go on to another...

BLITZER: Senator Schumer is continuing to question Samuel Alito right now. We're going to briefly go away from this hearing.

Jeff Toobin and Jeff Greenfield are here in THE SITUATION ROOM with us.

He's asking sensitive questions on surveillance, the -- this was expected to be a big issue given the aftermath of the disclosure last month that the president secretly authorized warrantless surveillance eavesdropping on American citizens making overseas phone calls. And it didn't seem to pan out.

TOOBIN: It was the top issue in the opening statements of the Democrats leading into these hearings. You know, executive power, warrantless wiretaps. And every time a senator has tried to raise that issue with Judge Alito, the judge has managed to -- and, you know, I think in good conscience -- talk about, well, I'd need to know the facts of the case, I can't -- I can't analyze those issues in the abstract. And the issue has just not really galvanized the hearings.

Now, it may be that he turns out to be a big supporter of executive power as a justice in some ways that the Democrats won't like. But they have not really succeeded in making him answer questions that give them much of a hook to talk about in a debate.

GREENFIELD: Even now what Senator Schumer's trying to do is saying, you know, when the government screws something up, you give them another chance. When the individual screws up, you don't. And that proves you are a big government, too much power kind of guy.

I'm not sure this is -- I'm not sure this is about Samuel Alito nearly as much as it is about their notion, which could well be wrong, that this is a potent political issue for the fall.

BLITZER: We are going to take another quick break.

Remember, go to CNN.com if you want to watch all of these hearings uninterrupted. Our new Pipeline service is available for you, live coverage without commercial interruption, or any interruption, for that matter, of the hearings -- CNN.com.

We are going to check all the day's other news coming up after this. We'll go back to the hearing. These confirmation hearings are continuing. (COMMERCIAL BREAK)

SCHUMER: ... that that kind of statute would be constitutional?

ALITO: Well, Senator, on issues that can come before me in litigation, I need to apply the same standard that previous nominees have applied, and that's no hints and no previews. And they may turn out to be easy issues, they may turn out to be hard issues. But I can't opine on them here off the cuff. I would have to go through the process of...

SCHUMER: Just make the argument. You don't even have to tell us how you decide. What imaginable argument could there be for a statute that Congress could deny the citizenship to those born in the United States, say, on the grounds that their parents were illegal aliens?

Is there any constitutional argument that you can see off the top of your head?

ALITO: Well, Senator, I don't want to say anything that -- could I answer the question, Senator?

I don't want to say anything that anybody will characterize as an argument that I am making on one side of this question or on the other side of the question.

I know that an argument is being made by people who favor this kind of legislation based on the language under the jurisdiction of the United States. And I don't know whether that will turn out -- I don't know whether it will come before me. I don't know whether, when it's analyzed, it will turn out to be a compelling argument or a frivolous argument or something in between. And I wouldn't express an opinion.

SCHUMER: Judge, I simply ask you to give us an interpretation of one of the most direct and clear provisions in the United States Constitution. And if you can't give us an answer on a very, it seems to me, clear-cut question like that, I find, and I think many of us find, make it difficult to make an assessment of how to vote on your nomination.

ALITO: Senator, my answer is that it is inappropriate for a sitting judge or for a nominee to a judicial position to offer opinions on constitutional questions that are percolating at that time and may well come before that judge or that nominee.

It may turn out to be a very simple question; it may turn out to be a complicated question.

Without studying the question, I don't know. And even if I had an initial impression, I wouldn't voice it here. I would have to go through the whole judicial decision-making process before reaching a conclusion that I would be willing to...

SCHUMER: I want to move on now to the commerce clause and Rybar. As you know, after you ruled on Rybar, Gonzales v. Raich was decided, and Justice Stevens wrote for the majority the following: "Our understanding of the reach of the commerce clause as well as Congress' assertion of the authority thereunder has evolved over time."

Do you agree with that statement? Has our understanding of the scope of that clause evolved over time? And is it appropriate for our understanding to evolve?

ALITO: I think our understanding of the reach of the commerce clause has evolved as the commercial activity of the country has developed. Commerce in the United States at the time of the adoption of the Constitution was entirely different from commerce in the United States today.

SCHUMER: I think most people would agree with that. Maybe...

ALITO: As a matter of looking at the development of case law, certainly, the case law has developed. The pre-New Deal case law was fundamentally different from the post-New Deal case law -- with which I don't have any quarrel.

SCHUMER: Right. Good.

Here I'm going to read you two views on the commerce clause.

One: Congress' authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws directed against economic activity that have a substantial effect on interstate commerce.

SCHUMER: Where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.

Then there's another view.

Under the commerce clause, Congress may regulate interstate commerce, not activities that substantially affect interstate commerce.

Those are pretty diametrical. I'm not asking for an absolute here, but which one is closer to your view of the commerce clause?

ALITO: Well, the second view is contrary to Supreme Court precedent. It is contrary to even Lopez and Morrison, which says that Congress may regulate activities that substantially affect interstate commerce.

SCHUMER: All right.

And the first actually was Justice Scalia's concurrence in Raich, and the second -- even though it may be contrary to precedent; we've talked about precedent before -- was actually Justice Thomas's dissent in Raich. So it is obviously a view that has some currency on the court. I'm glad to see you favor the first one.

Now, I asked you a question when we met. I asked you -- as you know because we talked about it, I was troubled by your decision in Rybar -- and Mr. Chairman, I just don't want to try -- could I get permission for an additional five minutes? That's all I will need.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY SENATE COMMITTEE: Yes. I couldn't be very forceful about it, but yes.

(LAUGHTER)

SCHUMER: Thank you, Mr. Chairman. I'll take it any way you give it.

I asked you in Rybar, when we had met, if you would have decided the case differently after Raich, which is quite different than Rybar. And at that point, you said you wanted to think about it and I told you that I'd ask you here.

So I guess you've thought about it now.

So my question is, does the recent Supreme Court decision in Raich, joined by Justice Scalia, whose opinion you said was closer to your view than the other, affect your thinking? More specifically, had Raich been decided before you got Rybar, do you think you would have decided it differently?

ALITO: Well, Senator, I don't recall making a promise that I would reach a definitive conclusion on the issue...

SCHUMER: I asked you to think about it; you said you would. That's all.

ALITO: And I have thought about it. But what I can say is that I certainly would have thought about Rybar differently had I had Raich available at that time.

My effort in Rybar was to follow Supreme Court precedent. And at the time, Lopez was the latest expression of the Supreme Court's view of this question. And if it were -- if the chronology had been different and I had the benefit of Raich, I would have taken that into account.

BLITZER: All right, we're going to break away from the hearing once again. Jeff Toobin and Jeff Greenfield are here in THE SITUATION ROOM with us.

Jeff Toobin, explain in English what they're talking about. The commerce clause, Rybar. It sounds like a very important issue and I know it is an important issue. But when these lawyers get together and discuss these issues, it seems to go over the heads of a lot of us.

TOOBIN: Most of what Congress does when it regulates anything, it does under the authority granted in the Constitution under the commerce clause. The Constitution says Congress can regulate interstate Congress, (sic) and the courts historically have defined what interstate commerce is very broadly. When Judge Alito was on the Third Circuit, he had a case about whether Congress could outlaw the possession of machine guns. In a two-to-one case he was in the majority. The -- Judge -- he was in the minority. I'm sorry. Judge Alito dissented and said, you know, this is outside Congress's power. Congress just simply does not have the power to regulate machine guns in this way.

What Chuck -- Congressman -- Senator Schumer is doing is he's saying, isn't this view of the commerce clause too narrow? And isn't it inconsistent with subsequent interpretations of the commerce clause by the Supreme Court? And Judge Alito is saying, well, you know, the -- I can't make judgments based on what the Supreme Court did after I wrote my opinion. Of course I would consider that when I went back to the decision, you know, if I came back to this issue.

But it's really about Congress's power and what the Democrats are worried is that Alito has too narrow a sense of where the government can regulate. And he's saying, I'm just following the Constitution.

GREENFIELD: What makes this potent is that after decades of the Supreme Court letting the Congress regulate almost anything under that clause, suddenly a few years -- about a decade or so ago, in a couple of cases, the Supreme Court -- and Justices Thomas, I think, and Scalia were big on this -- said, no, no, it doesn't reach that far. You can't prohibit the violence against women act. That's a state matter. And you can't stop gun sales within a certain amount of distance from schools.

And it was a shock because it was the first time since the old New Deal fight that the court had said Congress doesn't have limitless power. The Democrats are worried about a movement to pull back the power, which they see as a way of ultimately leading to less regulation of the economy, more of a free market philosophy. And I think that's the underlying issue that Senator Schumer was going for.

TOOBIN: But it's not easy to understand. And I think this is a problem the Democrats have had is making this abstract issue into something real. Because it is important.

BLITZER: And one issue that has virtually gone away completely today is the whole issue of his involvement in the Concerned Alumni at Princeton University. None of the Democrats are raising that issue anymore after the chairman, our Arlen Specter, came out this morning and said, we went through all the documents, there's no -- there.

GREENFIELD: Want to bet it comes up during in the floor debate?

BLITZER: In the floor debate. Well, I'm talking about these hearings. But they're not pressing him. They're not asking him. Maybe some of them are afraid his wife will start to cry again. They don't want to be accused of doing anything along those lines as well.

All right, we'll take another quick break. Much more of our coverage of the Samuel Alito hearings right after this.

(COMMERCIAL BERAK) BLITZER: Welcome back. We're going to continue our coverage of the Samuel Alito confirmation hearings at the Senate, but first, let's get a quick check of some other important news. Daryn Kagan's standing by at the CNN Center in Atlanta.

KAGAN: Hello, Wolf.

Let's go ahead and start with this developing story. Dramatic live pictures we're watching from north of New York City. It's taking place in Greenburgh, New York. As we take a look at that video -- this is a trench collapse. This was work that was taking place in a private backyard, a privately owned home, when this trench collapsed earlier today.

Apparently as the trench collapsed, there is still one worker who was stuck down there with dirt up to his chest. So you can see a number of rescue workers in the backyard of this house, frantically working trying to free this man. Now we've seen a number of equipment. We're seeing people bringing stretchers and doing as much as they can to move away the dirt and debris and get this man out.

What his condition is, we're not sure at this time and how long it's going to take. But they are working frantically in Greenburgh, New York, in the backyard of this private home. More on that as it becomes available.

Also in the news today. President Bush heads to New Orleans this hour in his first visit to the hurricane zone in three months. The White House says the president is reasserting the government's long- term commitment to post-Katrina recovery and seeing firsthand the progress that's been made. After meeting with business executives in New Orleans, Mr. Bush will deliver a speech in Bay, St. Louis, Mississippi.

Some New Orleans residents fear that the plans to rebuild will squeeze them out of the city's future. They are outraged by a proposed four-month moratorium on issuing new building permits. A neighborhood could also be denied permits if the city concludes that not enough residents will return to rebuild. Supporters say it will prevent gaping, undeveloped holes in the new community. But earlier on CNN's AMERICAN MORNING, former mayors of the city explained the concerns they have.

(BEGIN VIDEO CLIP)

MARC MORIAL, FMR. NEW ORLEANS MAYOR: I think the plan is a massive redlining plan wrapped around a land grab. By that I mean, in effect, it shuts off about two-thirds of the city and shifts the burden to residents who have lost everything, who have been devastated by a hurricane, to somehow, quote, unquote, "prove" that their neighborhoods are viable. It's not a helping hand in any way, shape or form.

SIDNEY BARTHELEMY, FMR. NEW ORLEANS MAYOR: In a sense, this plan punishes those who want to come back. The people who have been the greatest victims are being punished by having to provide their own utilities, which is insane. The city's responsible, the government is responsible for doing that. Not the neighborhood people.

(END VIDEO CLIP)

KAGAN: Tune in to CNN's "AMERICAN MORNING" for newsmakers of the day. That is weekday beginning at 6:00 a.m. Eastern. 3:00 Pacific. Leads up to us, "CNN LIVE TODAY," at 10:00 a.m. Eastern.

In world news, Israeli Prime Minister Ariel Sharon is having another brain scan today. Doctors say that Sharon has been showing slight improvements since he had a massive stroke last week. They say his heart rhythm is normal and they continue to scale down the medications that have kept him in a coma. One of his doctors stressed that he cannot say that Mr. Sharon is out of danger at this time.

If you can believe it, it's a quarter century after he shot Pope John Paul II and now the man who did that, Mehmet Ali Agca, walked out of prison this morning. Turkish officials say the government will review his release. Pope John Paul II was gravely wounded in that attack. He had already given public forgiveness. A group of supporters teared his release and showered his car.

And another escaped inmate is back in custody in Florida. Police say that Rodney Buckles eventually surrendered when authorities caught up with him in the Miami area. Buckles allegedly scaled the fence on Tuesday that same maximum security facility that a suspected serial rapist broke out of last month. In that previous case, Reynaldo Rapallo was recaptured six days after authorities say he rapelled down a wall using tied-up bed sheets. Clearly, they will be looking into the security situation at that Florida prison.

For now, though, back to THE SITUATION ROOM's special coverage of the Alito hearings and Wolf.

BLITZER: Thanks very much, Daryn.

We're going to go back to the Alito hearings momentarily. We will take a quick break though. Right now, they seem to be wrapping up, or getting close to wrapping up the final questions for Samuel Alito.

This is the last chance for senators, Democrats and Republicans, to ask any questions they want. And then they'll move on to the next phase.

We'll take a quick break. We'll be right back.

(COMMERCIAL BREAK)

BLITZER: The Republican senator, Jeff Sessions of Alabama, is asking questions about presidential power right now to the nominee for the U.S. Supreme Court, Samuel Alito.

ALITO: ... discuss that that when they came before the committee. That's not something I've ever addressed in any writing, nor is it something that I've studied, other than to read some of the authorities who have addressed the question. I did mention that I had given a speech expressing the idea that I thought that it was not a good policy idea. I can understand the motivation, but I don't think that it's good, as a matter of policy, to proceed in that fashion.

And I don't know what the argument would be, as I sit here, in favor of taking away jurisdiction over an entire class of cases. That would raise some serious constitutional questions.

SEN. JEFF SESSIONS (R), ALABAMA: I would just say to you: I think we ought not to confront that question if we can avoid it. And that's why I have not joined in legislation, some of which has been filed in this Congress, to take jurisdiction away.

But I do believe that is some power that's been given to the Congress; hopefully will not have to be used, hopefully that sword will never be drawn because the court will show restraint and remain within the constitutional powers that they have.

With regard to the unitary executive, there are just three branches of government in our Constitution. That's correct, is it not?

ALITO: That's all I see in it.

(LAUGHTER)

SESSIONS: Well, does every agency and department have to be within one or the other?

ALITO: I think they do.

That doesn't say that they can't be structured in ways that differ from each other depending on their function. And that doesn't address the issue of the separate issues of appointment or removal or whether -- well, let me just leave it there with appointment and removal.

But I think that the Constitution sets up three branches and everything has to be within one of those branches.

SESSIONS: One of the things that I learned as United States attorney is these agencies think they're independent entities. They think they're almost like nations. When they get together -- you probably had this experience -- they sign memorandums of understanding. Wouldn't you agree they sometimes look awfully like treaties?

ALITO: Yes, they do look like treaties between federal law- enforcement agencies and state law-enforcement agencies.

SESSIONS: But, of course, the federal government is one. They can't take two positions in a lawsuit, that's for certain.

With regard to interstate commerce, there is a limit to that, to the power of the government, I believe. In the Hobbs Act, in the racketeering act that Senator Schumer mentioned, doesn't it say within those acts that the extortion or the pattern of racketeering has to affect interstate commerce and that is an element the prosecutor must prove before a conviction can be obtained?

ALITO: Yes, that's right.

And the federal criminal statutes that I'm familiar with, almost without exception, have jurisdictional elements in them. That's the traditional way of casting them.

There are a few areas where that's not feasible, such as drugs, but most of the statutes have jurisdictional elements right in them.

SESSIONS: And that's basically the Lopez holding, was it not? And in your opinion in Rybar, you specifically said all the Congress needed to do was to put in an interstate commerce nexus that would be proved to the jury, which -- I agree with you, having prosecuted hundreds of drug cases -- it's not ever been a problem in those cases to prove.

That would have solved the problem, isn't that correct?

ALITO: That's right. In firearms cases, that's just not a problem.

SESSIONS: Well, I think you've testified extremely well here. You have been most forthcoming. I disagree with the recent comment that you haven't been forthcoming.

I would say, and I think Senator Biden indicated, that we have not had a witness more forthcoming, more willing to discuss the issues than you have.

Thank you.

SPECTER: Make you, Senator Sessions.

I thought we were going to get to that light at the end of the tunnel before 1:00. It looks like we're going to be a little later than that. But we don't want to take a break now, so to the extent we could move ahead rapidly, it would be appreciated.

Senator Durbin, you had originally asked for 10 minutes, but I understand you want more time. How much would you like?

SEN. DICK DURBIN (D), ILLINOIS: Senator, I will do it as close to 10 minutes as I can. But I might need a few extra; I want to reach the end of that same tunnel.

SPECTER: Let's set the clock at 10 with flexibility to exceed that.

DURBIN: Thank you very much.

Thank you, Judge Alito. Thanks to your family for putting up with this endurance test. And I appreciate your patience throughout. First, let me address the issue of court stripping that was mentioned by my friend from the state of Alabama. I really hope that Congress will never draw that sword. We heard about it during the Schiavo case. If we are going to have a truly independent judiciary ...

BLITZER: We are going to break away briefly from the hearing. President Bush is in New Orleans right now, attending a meeting with small business operators and owners. The mayor, Ray Nagin, is there as well talking about recovery in New Orleans and the Gulf.

Let's listen in.

(JOINED IN PROGRESS)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: And to this end, I've got a couple things. One, I appointed my friend, Don Powell, to be down here to help implement the strategy developed by the mayor, and the governor and the lieutenant governor.

In other words, I believe the best strategy for the rebuilding of New Orleans and the revitalization of the parishes around New Orleans is for the local folks to design the strategy, and to have the federal government become a partner. And I want to thank you for putting a committee together. I know really were mentioned (ph). Powell's job is to come down and help interface and interact.

I told the people down here that the federal government has got a major role to play. So far we've appropriated or made available $85 billion for reconstruction and relief along the Gulf coast. About $25 billion of that has been spent. There are $60 billion in the pipeline thanks to the good work of the Congress and the United States Senate.

One issue I do want to touch on is the levees. The mayor made it very clear to me that we need a federal policy -- a strong federal policy on the levees in order to encourage investors and investment in New Orleans. In other words, if there's any doubt about levees, people wouldn't be willing to reinvest in the city.

If we couldn't get people to reinvest in the city, the recovery wouldn't be as strong as we hope it to be. Working with the Corps of Engineers, we put forth a plan that said that the levee system will be stronger and better than the previous levee system. And we put a request in for $3.1 billion, plus money to study how possibly to make this system even better.

Unfortunately, at the very last minute in the appropriations process, some members of Congress moved $1.4 billion of that $3.1 billion to projects not directly related to New Orleans and its surrounding area. And so in order to make sure that this city gets the money necessary to make sure the levees are stronger and better, Congress needs to restore that $1.4 billion directly into projects for New Orleans and the surrounding parishes. I'm looking forward to working with the members of the Congress to make sure that that money is restored. Secondly, I understand that one of the keys to success is going to be private sector initiatives. That's why we've got the small business owners here, and the man responsible for making sure that New Orleans is well presented to the rest of the country, and there's Steven (ph) who's in charge of changes (ph).

One way to make sure that the private sector leads to recovery for New Orleans is to make sure that tax laws encourage investment. And I want to thank the members of Congress for passing the go zone legislation, which is -- encourages investment. And that will be helpful for folks here.

And finally, I know housing is a particularly difficult issue and an important issue. You can't have a revitalized New Orleans unless people have a place to live. And we want to -- we look forward to working with the mayor and the state on implementing their vision, but want to remind people that in the new appropriations bill I signed, there's $11.5 billion of CDBG money.

Now, in Mississippi the governor tends to use that money for uninsured houses to pay for the uninsured folks who didn't have flood insurance. And the law is written so that the state, in working in conjunction with the local authorities, can spend that money in a way to help the recovery.

Well, where are the issues here? I'm looking forward to hearing more from you all about how we can continue to work together. I will tell you, the contrast between when it was last year and today, Steven, is pretty dramatic. It may be hard for you to see, but from when I first came here to today, New Orleans is reminding me of the city I used to come to visit.

It's a heck of a place to bring your family. It's a great place to find some of the greatest food in the world, and some wonderful fun. And I'm glad you got your infrastructure back on its feet.

I know you are beginning to welcome citizens from all around the country here to New Orleans. And folks around the country who are looking for a great place to have a convention or a great place to visit, I'd suggest coming here to the great New Orleans. Anyway, thank you all very much.

BLITZER: The president speaking to New Orleans residents, New Orleans small business leaders. We saw the mayor of New Orleans, Ray Nagin. There on the other side of the president was the lieutenant governor of Louisiana, Mitch Landrieu. The president making a big pitch for New Orleans, recommending conventions start coming back to New Orleans as soon as possible.

We'll continue to watch the president. He's heading over to Bay St. Louis in Mississippi from New Orleans. Later tonight, he'll be in Palm Beach, Florida at a Republican Party fund raiser.

We are also watching the confirmation hearings continuing -- Samuel Alito's confirmation hearings -- before the Senate Judiciary Committee. Those hearings are getting ready to wrap up. We are going to take a quick break. We'll go back to the hearings right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back. We are going to go back to the Samuel Alito hearings right now, but I want to also just point out to our viewers that the secretary of state, Condoleezza Rice, is about to have a news conference at the State Department. We expect her to discuss the latest issue involving Iran and its nuclear ambitions.

Earlier today, the foreign ministers of France, Germany and Britain announced they've reached a dead end with Iran on the nuclear program. And they are suggesting this issue now be referred to the United Nations Security Council for consideration.

Earlier today you saw the defense secretary, Donald Rumsfeld, at the Pentagon here on CNN, who declined to discuss this issue, preferring to let others in the administration discuss it. We assume the secretary of state is that person who will be discussing the U.S. response to reports, suggestions, that Iran may be moving towards developing a nuclear bomb, reports the Iranian government denies.

And this is an important note to our viewers as well. Our Christiane Amanpour is on the scene in Iran right now. Coming up later today in THE SITUATION ROOM we'll have the latest from Christiane on the scene in Iran.

Let's go back to the confirmation hearings right now. Samuel Alito continuing to answer questions, questions now being posed by Dick Durbin of Illinois.

DURBIN: ... cases that you ruled in -- this -- seven of those eight, I should say, yours was the minority position. So my question to you is, do you appreciate the observation made by Judge Posner about the terrible state of affairs when it comes to the immigration judges and the decisions they are sending for you to review?

And why did you more of less consistently -- in those contested cases, consistently rule on the government's side?

ALITO: Well, Senator ...

BLITZER: Now, let's go the State Department right now. The secretary of state is speaking.

CONDOLEEZZA RICE, SECRETARY OF STATE: France and Germany and by E.U. Council Secretary and President Solana. We agree that the Iranian regime's defiant resumption of uranium enrichment work leaves the E.U. with no choice but to request an emergency meeting of the IAEA Board of Governors. That meeting would be to report Iran's non- compliance with its safeguards obligations to the U.S. Security Council.

We also agree that the removal of seals by the Iranian government in defiance of numerous IAEA Board resolutions demonstrates that it has chosen confrontation with the international community over cooperation and negotiation. As the EU3 and E.U. have declared, these provocative actions by the Iranian regime have shattered the basis for negotiation.

We join the European Union and many other members of the international community in condemning the Iranian government's deliberate escalation of this issue. There is simple -- simply no peaceful rationale for the Iranian regime to resume uranium enrichment.

We're gravely concerned by Iran's long history of hiding sensitive nuclear activities from the IAEA, in violation of its obligations; its refusal to cooperate with the IAEA's investigation; its rejection of diplomatic initiatives offered by the E.U. and Russia, and now its dangerous defiance of the entire international community.

The Iranian regime's actions have only made worse the, quote unquote, "confidence deficit" that IAEA director general Mr. ElBaradei has previously described.

As a result, the IAEA board of governors must go forward with a report to the U.N. Security Council so that the council can add its weight in support of the ongoing IAEA investigation. The council should call for the Iranian regime to step away from its nuclear weapons ambitions. The United States will encourage the Security Council to achieve this end.

We will continue to consult closely with the EU3, and the E.U., with Russia, China, and many other members of the international community in the coming days and weeks, as this new diplomatic phase begins and proceeds.

We continue to encourage a peaceful diplomatic solution to this issue, which spares the world from the threat posed by a nuclear armed Iran, and which benefits the Iranian people with the possibility of renewed relations and integration with the international community.

Now, I'm happy to take your questions -- Ann.

QUESTION: As you alluded to there's a pretty wild international course for going to the U.N. Security Council. Here's a yes or no for you. Once there, are you confident, do you have assurances that you have the votes for the Security Council to impose sanctions or take some other meaningful action?

RICE: Well, the first step is to refer this matter to the Security Council, and I think there will be an extraordinary meeting, and I believe that that step will be taken.

There are a variety of options, a variety of tools at the disposal of the international community, once it has been referred to the Security Council, and I think that we will -- we will, at a time of our choosing in the international system, begin to actually apply those various means.

But I think the first thing to focus on today is the extraordinary outcry from the international system for Iran's defiance, a very strong course of support for further action by the international system, and I think beyond that, we will continue to consult -- Saul (ph).

QUESTION: ... Security Council. How much support do you have from Russia and China? Are they willing to vote yes to refer Iran to the Security Council?

RICE: Well, I'm not going to speak for other countries, but I would just note that there have been many representations to the Iranian government prior to their taking this action, including representations by other governments you mentioned, that they should not take such an action in defiance of the international community. There have also been statements since the Iranians broke the seals from all of these countries, saying to them that this was a very serious matter.

I would note even today, the foreign minister of Russia saying that this kind of activity, and I'm paraphrasing here, could cost Iran Moscow's support. And so I think it's very clear that everybody believes that a very important threshold has been crossed here, but I don't want to speak for other countries. That's what consultation is for -- Barbara.

QUESTION: How do you go about punishing the Iranian regime without punishing the Iranian people? Can you give us some sense of...

BLITZER: All right. We're going to break away from the secretary of state, Condoleezza Rice. Clearly a new chapter beginning right now in the confrontation with the Iranian government over its nuclear program.

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