[Congressional Record Volume 151, Number 152 (Wednesday, November 16, 2005)]
[Senate]
[Pages S12881-S12884]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              SAMUEL ALITO

  Mr. SCHUMER. Mr. President, 1 month ago, I expected to be on the 
Senate floor sometime about now engaged in a debate over the pros and 
cons of President Bush's nominee to the Supreme Court. Of course, I 
thought it would be Harriet Miers we would be debating. But that never 
occurred. As the Senate takes up the nomination of Harriet Miers' 
replacement, Judge Samuel Alito, we should all continually bear in mind 
how we got to this point because recent history goes a long way in 
explaining why the American people want us to examine every portion of 
Judge Alito's record with great care.
  Harriet Miers' nomination was blocked by a cadre of conservative 
critics who lambasted her at every turn. Why? Because they were not 
satisfied that her judicial ideology matched their conservative 
extremism. They were not certain that her legal philosophy squared with 
their political agenda. In the end, Harriet Miers' nomination was 
blocked before she could explain her judicial philosophy, before she 
could have a full and fair hearing to answer the doubters, before she 
could have an up-or-down vote on the Senate floor. She was blocked by 
conservatives and Republicans, not Democrats. She was not given an up-
or-down vote by many of the same people who are clamoring for an up-or-
down vote on Samuel Alito.
  The standards seem to change with the nominee. Many of the very 
people who denied Harriet Miers an up-or-down vote are now saying that 
there is an imperative to give Samuel Alito one. So before we even 
begin examining Judge Alito's record, a natural cause for concern is 
that he was picked to placate a group of vocal and hard-right activists 
who have been lobbying for him for many years. Many of those who now 
call for an up-or-down vote are the same ones who denied that vote to 
Harriet Miers.
  Anyone who thinks that this nomination is a foregone conclusion is 
sadly mistaken. There are too many questions still to be answered, too 
many doubts still to be alleviated to say this nomination is a slam 
dunk. The most important thing we must look at is Judge Alito's 
judicial record. And at least on first perusal, there are reasons to be 
troubled. In case after case after case, Judge Alito gives the 
impression of applying meticulous legal reasoning, but each time he 
happens to reach the most conservative result. That is why he 
apparently dissented more than most judges in his circuit.
  I met with Judge Alito. I found him to be bright and capable and down 
to earth. He has an impressive life story and history of 
accomplishment. And his family story is not unlike mine and that of 
millions of Americans whose families came to these shores in the last 
two generations and, due to this great system of ours, climbed the 
ladder of success. But this is about more than legal achievement. In 
case after case, Judge Alito seems to find a way to rule on the side of 
business over the consumer, on the side of employer over employee, and 
often against civil rights, against workers' rights, against women's 
rights.
  Though any analysis is still preliminary--and, of course, we must all 
wait for the hearings because those will be the most important thing--a 
quick review of some cases reveals a troubling pattern and warrants 
tough questioning at Judge Alito's hearing.

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  Often he stands alone in his decisions, reaching conclusions that 
almost no other judge has reached or would reach. The machine gun case, 
Rybar, is very troubling. Judge Alito alone found that Congress could 
not regulate machine guns, even though the majority ruled that Congress 
could, even though every other circuit to consider the issue ruled the 
other way, and even though courts have held for the last 60 years that 
Congress has such power. Judge Alito was in that case and on that issue 
an outlier.
  This is an issue about which there was and is broad consensus. He 
went out of his way to find a means to reject that law. When I met with 
Judge Alito, he cited three bases for his dissent. He said the most 
important was the lack of specific congressional findings that 
regulation of machine guns affects interstate commerce. I found this 
explanation, in all honesty, unpersuasive, to say the least. The effect 
on commerce is obvious. Congress has passed laws relating to machine 
guns since the 1930s. There has never been any doubt that their 
possession and sale affect commerce. Ninety percent of the crime guns 
in New York come from out of State. So of course it affects interstate 
commerce.
  It seems as if, in certain cases, Judge Alito would want Congress to 
make a finding that the sky is blue before he will give Congress the 
ability to make laws. So this case raises questions. Will Judge Alito 
be unduly cramped in his reading of the Constitution? Will he engage in 
judicial activism to find ways to strike down laws that the American 
people want their elected representatives to pass and that the 
Constitution authorizes? It is too early to tell. But this merits 
serious and tough questioning at the hearing.
  There are other cases similarly disturbing. On sex discrimination, 
Judge Alito was again alone in ruling against the plaintiff in a sex-
discrimination suit. Not only was he alone on the original three-judge 
panel, he was alone when the case was reheard by the entire Third 
Circuit. He was alone against 11 of his fellow judges who criticized 
him for raising the bar much too high for a victim of discrimination. 
The Supreme Court declined to hear the case, so there are more 
questions. Will Judge Alito be too quick to dismiss victims of 
discrimination and not give them their day in court?
  On title VII, Judge Alito again was alone on a panel in ruling that a 
civil rights plaintiff had to meet a higher burden to get a trial than 
the law already provided.
  Here is what the majority found extremely troubling. They wrote that 
``title VII would be eviscerated'' if they were to follow Judge Alito's 
analysis--eviscerated, which means victims of discrimination would have 
no recourse.
  In other cases we find the same thing. In Chittester, about the 
Family and Medical Leave Act; in Doe v. Groody, about strip searches, 
he was on the other side of the conservative Michael Chertoff. In Riley 
v. Taylor, he was again alone and the majority criticized him for 
analysis that served to ``minimize the history of discrimination 
against black jurors and defendants.'' And, of course, Judge Alito was 
alone again in Planned Parenthood v. Casey.
  These are just a few of Judge Alito's decisions that raise serious 
concerns and cry out for tough questioning.
  While there is much more reading and reviewing to be done, it is not 
too early to wonder whether there is a troubling pattern in his record. 
Is there an overall consistency in his approach to law or just in the 
result? Does he practice judicial restraint always or only when it 
allows the right outcome? Does he use the guise of legal reasoning to 
turn the clock back, as he appeared to do in the machine gun case? How 
do we resolve some apparent contradictions?
  For instance, sometimes Judge Alito goes out of his way to defer to 
the legislature, as when he wanted to uphold Pennsylvania's spousal 
notification law. But at other times he goes out of his way to strike 
down an act of the legislature, as when he wrote Congress could not ban 
machine guns.
  Sometimes he reads the text narrowly, as when he struck down a 
school's anti-harrassment policy, but at other times he reads the text 
broadly, as when he condoned the strip search of a woman and her 10-
year-old daughter, though there was no such language in the warrant.
  The disclosures this week of his 1985 Justice Department job 
application only raise further concern and increase his burden to 
answer questions fully and forthrightly in the hearing.
  In that application he wrote, among other things, that he was 
``particularly proud'' of his work to advance the position that ``the 
Constitution does not protect the right to an abortion.''
  That statement cannot be dismissed as a ``personal view'' that will 
not affect how Judge Alito will approach the legal issue. It is a flat 
statement of what Judge Alito, at least at one time, believed the 
Constitution, not his personal belief, said. That is not a personal 
view such as stating you are pro-choice or pro-life. It is decidedly a 
legal view which involved judicial philosophy and judicial reasoning. 
If confirmed, his belief about what the Constitution does and does not 
protect will have the power through his decisions to become the law of 
the land.
  Because Judge Alito so firmly and specifically stated his personal 
and legal opinion about this controversial issue while in pursuit of a 
lesser position, he has an obligation to answer questions at his 
confirmation hearing for the highest judicial job in the land. He 
cannot, as previous nominees have done, say, I refuse to answer. Have 
his views changed? Is his mind made up? Was he exaggerating for a 
potential employer? And if he was, how should we view what he says to 
us in the committee as he seeks an even higher position? Is he bent on 
advancing a particular ideological position?
  Past nominees have said they could not discuss these issues for fear 
of creating a perception of bias. Here, unfortunately, the application 
itself creates the perception of bias and it will be essential for 
Judge Alito to address the issue head-on.
  In conclusion, every Supreme Court nominee has a high burden. For 
Judge Alito that burden is triply high: first, because he seems to have 
been picked to placate the extreme rightwing; second, because of his 
past statements suggesting a closed mind on certain controversial 
issues; and, finally, because he is replacing Justice O'Connor, for 25 
years the pivotal swing seat on a divided Supreme Court.
  I hope Judge Alito will be able to meet that burden.
  I yield the floor.
  Mr. HATCH. Mr. President, I rise to address the nomination of Samuel 
Alito to be an Associate Justice of the Supreme Court. Judicial 
nominees should be judged on their qualifications and their judicial 
philosophy. On the first point, there is no question that Judge Alito 
is qualified to sit on the Supreme Court of the United States.
  In 1990, when the first President Bush nominated Judge Alito to the 
U.S. Court of Appeals for the Third Circuit, the American Bar 
Association unanimously gave him its highest ``well qualified'' rating. 
This body confirmed him at that time without dissent.
  Regarding judicial philosophy, the most important principle is that 
judges are not politicians. When we hear someone talk only about the 
results of a judge's decisions, chances are they are applying a 
political rather than a judicial standard. This is what we heard today 
on this floor from my Democratic colleagues.
  The description of Judge Alito's record by the Senator from New York, 
Mr. Schumer, was all about results. This is how he put it: In case 
after case, Judge Alito seems to find a way to rule on the side of 
business over the consumer; on the side of employer over employee; and 
often against civil rights, against workers' rights, against women's 
rights.
  It would be tough to present a more distorted picture of what judges 
actually do. Judges do not decide for or against the rights of groups. 
Judges do not take the side of one group against another. To suggest, 
as the Senator from New York did, that Judge Alito is actually biased 
toward certain parties, that he intends to take a particular side, that 
he, in the Senator's words, seems to find a way to rule a certain way, 
is just beyond the pale.
  Perhaps my Democratic colleagues could provide a list of the side 
that judges are supposed to take in this case or that. Perhaps they 
could give us a rundown of the groups whose rights judges are supposed 
to favor, regardless

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of the facts. It might be something like a rate card or perhaps just a 
big piece of litmus paper. That would make this confirmation process a 
whole lot easier for all of us. Nominees could just check boxes and get 
a confirmation score.
  Are you for big business or are you for the little guy? Are you for 
this or are you for that? The facts do not make any difference, no 
matter how right the big guy might be or the little guy might be.
  Politicians take sides. Politicians promote political interests. 
Politicians pursue agendas. Judges are not politicians. Judges settle 
legal disputes between specific parties by applying the law to specific 
facts. Without talking about the facts and the law, it is impossible to 
properly evaluate judicial decisions.
  It is not enough, as we heard this morning, to toss in words like 
``troubling'' since all that means is that the person using that label 
does not like the result. It is not enough to observe that Judge Alito 
was alone in dissent or that the Supreme Court declined to review a 
particular decision. Those would be marks of distinction of judicial 
courage if the Senator from New York liked the result.
  If such results-oriented litmus tests are appropriate, Judge Alito's 
long record contains results to fit every political taste.
  Judge Alito has voted on the pro-choice side in some of his abortion-
related cases. He has voted for civil rights plaintiffs, against 
prosecutors, and even in favor of death row inmates desiring to file 
habeas corpus petitions. Imagine that. Judge Alito will likely get no 
credit from my liberal friends for these votes, but he should.
  As I said, we must apply a judicial rather than a political standard 
to evaluate a judicial rather than a political record.
  This morning, the minority leader, Senator Reid, also spoke about the 
Alito nomination. I would like to respond to a few of his points. 
First, he said the nomination was not, as he put it, ``the product of 
consultation with Senate Democrats as envisioned by the Founding 
Fathers.''
  America's Founders envisioned no such thing but actually advised 
against it. The Founders gave the power to nominate and appoint 
exclusively to the President. The Senate's role is to advise the 
President whether he should appoint someone he has already nominated, 
expressing that advice through an up-or-down vote.
  Some of my Democratic colleagues are fond of taking jabs at President 
Bush by saying that this is the third nomination to replace Justice 
Sandra Day O'Connor. If that is true, then he should get credit for 
consulting with more than 70 Senators, more than any President has ever 
done regarding a Supreme Court nominee.
  The idea that consultations for the same position must begin all over 
again when the first nominee is appointed elsewhere is absurd.
  I hope this will be a fair, honest, and thorough process that results 
in an up-or-down confirmation vote. I applaud the minority leader for 
saying this morning that every judicial nominee is entitled to an up-
or-down vote. In the 108th Congress, of course, he had a different 
attitude, leading filibusters against 10 different appeals court 
nominees, along with Senator Daschle.
  While the minority leader, this morning, lamented the fact that Judge 
Alito is not Hispanic, one of the filibusters he led in 2003 targeted 
Miguel Estrada, a highly qualified nominee to the Federal appeals 
bench. Perhaps race only matters some of the time.
  Until Democratic Senators began filibustering judicial nominees in 
2003 with partisan, leader-led filibusters, it has been Senate 
tradition that judicial nominees reaching the floor received up-or-down 
votes. While I hope the minority leader will help us return to that 
tradition, and I believe he may, he may have a bit of a challenge on 
his hands.
  Although the minority leader claimed this morning that not a single 
Democrat has talked about filibustering the Alito nomination, the 
Senator from California, Mrs. Boxer, told the Associated Press on 
November 1 that ``the filibuster is on the table.''
  According to the Baltimore Sun on November 2, the Senator from Iowa, 
Mr. Harkin, said ``I believe Democrats will filibuster this nominee.''
  The Associated Press reported on November 3 that Democrats have, in 
fact, raised the possibility of a filibuster. Yes, Democrats are 
already talking filibuster, and I hope the minority leader meant what 
he said this morning and urges them to take a deep breath.
  I urge my colleagues, the media, and the American people to apply the 
right standard to this and to all judicial nominations. It must be a 
judicial rather than a political standard when we decide these matters. 
It must examine the law and the facts of cases as well as the results, 
and it must be fair to this highly qualified and honorable nominee.
  I have been kind of tough on my colleagues on the other side, but I 
believe everything I said is true. I believe it is time to get rid of 
the populism and start talking about what we can do to help America. 
One of the best things we can do is to confirm Judge Alito to the U.S. 
Supreme Court.
  I yield the floor.
  Mr. KENNEDY. Mr. President, many Members have serious reservations 
about the Alito nomination to the Supreme Court.
  It is obvious that Judge Alito was chosen because the right wing of 
the Republican Party felt Harriet Miers did not meet their litmus test 
for Federal judges, a test of right-wing philosophy that was laid out 
in great detail by the Justice Department itself when Ed Meese was 
Attorney General in the 1980s. The right wing flexed its muscle and 
rebelled even when George Bush said, in effect: Trust me--she will be 
your kind of justice.
  Well before Judge Alito was nominated, these core supporters of the 
President were aware of the President's dwindling public support, and 
knew he would be highly unlikely to cross them again. They were certain 
that Judge Alito passed their ideological test. They embraced him 
immediately, then moved in lock step with the White House to support 
and defend him.
  The reasons for that immediate endorsement by the right are obvious. 
On key issues of equal rights, fairness, and access to justice, he has 
repeatedly found ways to keep people from vindicating their rights, 
obtaining remedies, and protecting themselves from government invasions 
of their privacy.
  He supported a warrantless strip search of a 10-year-old girl, the 
elimination of black jurors despite a black defendant's objection, the 
dismissal of a case against an industrial polluter who had 150 water 
quality violations, the power of a state to intrude in personal medical 
decisions of women in Pennsylvania, and people who wanted to make 
machine guns in their homes.
  On Tuesday, the Reagan Presidential Library made public his 1985 
application for a promotion in the Meese Justice Department, in which 
he pledged his allegiance to the right wing views that Attorney General 
Meese stood for. In the application, he stated, ``I am and always have 
been . . . an adherent to'' these views.
  He traced his views back to Barry Goldwater's 1964 campaign, which 
featured strong opposition to civil rights at a time when the growing 
national support for such rights had just accomplished the landmark 
Civil Rights Acts of 1964 banning racial discrimination in public 
accommodations.
  As far back as college, he said, his view of constitutional law had 
been ``motivated in large part by disagreement with the Warren Court 
decisions,'' particularly the historic decisions supporting basic 
fairness in the criminal justice system, separation of church and 
state, and fair districting for legislative elections. In short, for 
all 20 years of his prior political activity, he had been a dedicated 
right wing advocate, especially on the major issues that led to the 
posting of the ``Impeach Earl Warren'' billboards on highways at the 
time.
  We have also learned of his failure to recuse himself in a case 
involving the Vanguard mutual funds, in which he had a personal 
investment of hundreds of thousands of dollars.
  A different justification was tried out each time his participation 
was challenged in recent weeks, even though he had specifically pledged 
to the Senate Judiciary Committee not to sit on ``any cases involving 
the Vanguard companies,'' regardless of whether he was technically 
required to recuse himself.
  It appears that either the Judge or the White House is desperately 
running

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new explanations up the flagpole to see if anyone salutes them.
  When I saw him yesterday, he dismissed the blunt ideological 
commitments in his application to the Meese Justice Department as 
simply part of the job application process, and told me, in essence, 
that it shouldn't be taken seriously. But now he is applying for a job 
on the Supreme Court.
  Should we take his assurances about ignoring ideology as a judge any 
more seriously now?
  The American people have a right to better answers about the record 
of any nominee to the Nation's highest Court. Certainly, in the 
hearings to come, Senators will learn a great deal more about whether 
Judge Alito has the basic commitment to core constitutional rights 
essential to our Nation, and I look forward to those hearings.

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