[Congressional Record Volume 152, Number 5 (Wednesday, January 25, 2006)]
[Senate]
[Pages S37-S58]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                      Judiciary Commmittee Agenda

  Mr. SPECTER. Mr. President, before proceeding to the nomination of 
Judge Alito to the Supreme Court of the United States, I think it 
worthwhile to comment very briefly on some of the scheduling items for 
the Judiciary Committee.
  As we all know, the PATRIOT Act was extended from December 31 until 
February 3. I circulated a letter today among our colleagues, and I ask 
unanimous consent that it be printed in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. It outlines the alternatives which we face at the 
present time. One is to let the act expire on February 3, which I think 
no one would like. Second would be to extend the current bill for a 
period of time. We will be discussing a 4-year extension. Or, third, to 
have cloture imposed on the filibuster which is in effect and then vote 
to utilize the conference report and pass the act. It is always 
possible to take another course of action if there is unanimous 
consent.
  The conference is technically discharged at this point, and the House 
of Representatives has made it emphatically clear that they have gone 
as far as they think it reasonable to go on the compromises.
  There have been very substantial compromises worked out. At one 
juncture, there were three additional requests which we took to the 
House and got all of them, the most important of which was the sunset 
provision changed from 7 years to 4 years. Then additional changes were 
requested, and they could not be accommodated.
  That is where we stand at the present time. I know there are 
discussions underway to try to get some additional changes made. My own 
view is those prospects are somewhere between bleak and nonexistent.
  Mr. LEAHY. Mr. President, will the Senator yield on that point for a 
moment?
  Mr. SPECTER. Certainly.
  Mr. LEAHY. Mr. President, the distinguished senior Senator from 
Pennsylvania has worked as hard on this issue as anybody here. As the 
distinguished Presiding Officer knows, the original PATRIOT Act was 
written by myself, the distinguished Senator from Pennsylvania, and 
others. It was the distinguished Republican leader from Texas, Dick 
Armey, and I who put in the sunset provisions so we would be forced to 
come back and look at different parts of it. Much of the PATRIOT Act is 
permanent law, but we should look at certain parts. Those are the parts 
that are now most in contention because they will expire.
  The distinguished Senator from Pennsylvania and I were at the White 
House on another matter recently and talked briefly about this with the 
President. I know the distinguished Senator from New Hampshire, Mr. 
Sununu, has been working very hard with us. I think the changes that 
still need to be made are relatively minor. I urge parties, especially 
all of us who helped write the original PATRIOT

[[Page S38]]

Act, to make that one last effort. That would include, of course, the 
White House and the other body to do it.
  The chairman of the Judiciary Committee has worked extraordinarily 
hard on this legislation. I, like so many others, am willing to 
continue to work with him. I think with a little nudge from the White 
House--that nudge may have to be a quiet one among the principals in 
both bodies--that can be done. I commend the Senator from New Hampshire 
for the work he is doing on this issue.
  I thank the chairman of the Judiciary Committee for yielding, even 
though it is on his time.
  Mr. SPECTER. Mr. President, I thank the Senator from Vermont for his 
comments. I thank him for the hard work he has done in the past year on 
the Judiciary Committee on many matters, including the PATRIOT Act. I 
think we have set a tone and have been able to agree on almost all 
matters. If there can be some modifications made, agreeable on all 
sides, before February 3, I would be more than willing to be a party to 
that.
  My preference is the bill which passed the Senate, but we have a 
bicameral system, and the House has its own point of view, and I think 
they have been reasonable. We have a good bill, certainly a bill in the 
conference report which is vastly improved with respect to civil rights 
over the current bill. But I am not in favor of having short-term 
extensions. If we have another short-term extension, it will beget 
another short-term extension. I want to fish or cut bait before 
February 3 on that issue.
  The Judiciary Committee, on the second item, is scheduled to hold a 
hearing on the wartime Executive power and NSA's surveillance authority 
on February 6. I think my colleagues will be interested in a letter 
which I have written to the Attorney General dated January 24, 
yesterday, outlining a series of some 15 questions to be addressed in 
advance of the hearing or at the time of the Attorney General's opening 
statement--at least that request--to try to set the parameters and 
issues of that hearing. I ask unanimous consent that the letter to 
Attorney General Gonzalez be printed in the Record at the conclusion of 
my statement today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. A third item of Judiciary Committee scheduling involves 
the asbestos reform bill. The leader has stated his intention to bring 
it up on February 6. As we customarily do, we meet in the afternoon. I 
intend to absent myself from the Judiciary Committee hearing on NSA to 
come make an opening statement. Then we will proceed on that bill.
  Senator Leahy and I sent a letter yesterday to our colleagues asking 
that, if there are amendments to be offered, and I am sure there will 
be, that they be provided to the managers in advance so we can organize 
proceeding on the bill and seek time agreements. That has been a very 
difficult and contentious issue, but it was passed out of the committee 
last year after numerous executive sessions marking up the bill and 
extended debate on a variety of amendments. Many were accepted, some 
were rejected.
  The Supreme Court of the United States has called upon Congress to 
address this issue. It does not lend itself to a solution in the courts 
on class actions. There are thousands of people who are suffering from 
the injuries of asbestos--mesothelioma, which is deadly, and 
asbestosis, and others--who cannot recover because their employers are 
bankrupt. Over 75 companies have gone bankrupt, and more are threatened 
with bankruptcy.
  The bill which we have reported to the floor is the product of 
enormous effort and enormous analysis by the Judiciary Committee and 
beyond. It was voted out of committee 13 to 5. Senator Leahy and I have 
convened meetings, along with the assistance of Judge Becker, a senior 
Federal judge--he had been Chief Judge of the Court of Appeals for the 
Third Circuit--where we have brought in the so-called stakeholders: the 
insurers, the trial lawyers, the AFL/CIO, and the manufacturers. They 
worked through that bill which has festered in the Congress for more 
than two decades. I first saw it when Gary Hart, then-Senator from 
Colorado, brought in Johns Manville, which was a key constituent of 
his, which was having a problem. I believe it is clear that if we are 
not able to act now, it will be decades before this kind of an effort 
can be mustered again.
  I have one additional comment on the scope of the work. After it was 
passed out of committee in late July of 2003, I asked Judge Becker to 
assist as a mediator. We had meetings in his chambers in Philadelphia--
two full days in August. We have had about 50 meetings since, attended 
by sometimes more than 40 or 50 people.
  We are still open for business to consider modifications. We know the 
legislative process is one where, when it comes to the floor, there are 
amendments. There are more ideas. But this is an issue which is of 
tremendous urgency. The President has spoken about it. The President 
wants it enacted. The majority leader is firmly behind legislation by 
the Senate. The Speaker of the House of Representatives has spoken 
about it. But candidly and openly, we face very powerful interests who 
are opposed to any action.
  There are very substantial dollars involved. There is very 
substantial pain and suffering involved. Those of us who have worked on 
the bill--led by the distinguished Senator from Vermont and myself and 
others--have gone to the well and gone to the wall. We still are open 
for business and invite comments. But anybody who has amendments, we 
would like to hear from you as early as possible so we can consider 
them, try to work out time agreements, and try to move the bill ahead 
in a managers' context.

  I am glad to yield to Senator Leahy.
  Mr. LEAHY. Mr. President, again I agree with what the distinguished 
Senator from Pennsylvania has said. This is a bipartisan bill. In fact, 
to emphasize it, he and I have sent a letter to all of our colleagues, 
signed jointly, asking them, if they have amendments which they plan to 
offer, to let us know.
  It should be emphasized that not only did we have hours upon hours of 
hearings, but we had many open meetings in the office of the Senator 
from Pennsylvania, in my office, and the offices of others. We made 
sure that the stakeholders, all the stakeholders were able to come to 
those meetings. We also made sure that the office of every Senator--
everybody who expressed any interest, Republican or Democrat--was 
invited to those meetings. They were wide open. In fact, almost all of 
the Senators on both sides of the aisle either attended those meetings 
or had staff attend those meetings.
  At these meetings that we had, again, every single stakeholder was 
involved. It was open. It was bipartisan. That was made clear by the 
Senator from Pennsylvania from the beginning, that they would have to 
be open and bipartisan. He, as would be expected, kept his commitment 
all the way through.
  I would highlight two things the Senator from Pennsylvania just said 
that were of concern to me. One, if we do not do it now, we lose the 
opportunity. I believe it will be decades before anybody would put 
together the kind of coalition that it has been possible to put 
together. The other thing he said was that it is not just some of the 
powerful financial stakes involved, but it is a powerful amount of 
suffering that is going on by the people who are suffering from 
asbestos poisoning in all the different forms. They are the ones who 
are held in limbo throughout all this time. We can bring some relief to 
them now; not the possibility of relief 10 years from now after a 
series of lawsuits go through, but now.
  We have had members of the Supreme Court, ranging from the late Chief 
Justice William Rehnquist to Justice Ruth Bader Ginsburg--certainly two 
differing philosophies--who have called upon the Congress to bring 
about a legislative solution because our courts are unable to handle 
all the cases that might come up. Let's be clear about that. There are 
some who say we are litigating forever on this, but the fact is our 
courts are unable to handle it. It cries out for a legislative 
solution.
  I urge people to come to this with an open mind, vote it up or down, 
vote the amendments up or down. I have heard some opponents quoted as 
being prepared to demagog this bipartisan bill. This bill did not just 
suddenly spring

[[Page S39]]

out of nowhere; it was worked on in such a way that it is a bipartisan 
bill. And I might say there is pain in it for everybody. Everybody has 
had to give something in this. The Senator from Pennsylvania did not 
get everything he wanted. I did not get everything I wanted. The 
stakeholders who came to the table, virtually all of them openly and 
honestly, they gave up a lot on it. But the people who are suffering 
from asbestos poisoning in whatever form are the ones waiting for us to 
act.
  The time is right to act. We can pass a bipartisan bill. I believe 
the other body would be glad to see such a bill. The President has 
stated publicly and he certainly stated privately to both Senator 
Specter and myself that he is behind taking action. Everybody cries out 
for some bipartisan action around here. This is one of those cases 
where Republicans and Democrats could come together, where the Congress 
and the White House could work together, and actually those who benefit 
will be the people suffering. We ought to get on with it.

                               Exhibit 1


                                                  U.S. Senate,

                                 Washington, DC, January 25, 2006.
       Dear Colleague: The Patriot Act is due to expire on 
     February 3, 2006 after being extended from its prior 
     expiration date of December 31, 2005.
       The Senate is faced with three options:
       1. Invoke cloture on the Conference Report and pass the 
     Conference Report as the House of Representatives has already 
     done;
       2. Extend the present Act for a period of time. The current 
     discussion with the House is to extend it for four years; or
       3. Let the Act expire.
       To my knowledge, no one wants to let the Act expire.
       Technically, the House/Senate Conference has been 
     discharged with the filing of the Conference Report. While it 
     is always possible to take another course of action such as 
     changing the Conference Report if there is unanimous 
     agreement, the House has taken the emphatic position that 
     there will be no more concessions from the Conference Report 
     and the House is very firm in this position.
       Everyone, including those who are urging further House 
     concessions, agrees that the Conference Report is much more 
     protective of civil rights than the current Patriot Act. I am 
     enclosing a side-by-side comparison. While I would have 
     preferred the Senate bill, we do have a Bicameral System and 
     the Conference Report was hammered out after extensive 
     negotiations with significant concessions by the House. 
     Senate proponents for further House concessions had, at one 
     point, stated their willingness to sign the Conference Report 
     if three conditions were met including a change in the sunset 
     date from seven to four years. Those conditions were met and 
     then there was insistence on further concessions.
       I urge the Senate to invoke cloture and pass the Conference 
     Report as the best of the available alternatives.
           Sincerely,
     Arlen Specter.
                                  ____


                        Side-by-Side Comparison

------------------------------------------------------------------------
      Conference report (2006)          Current law (PATRIOT Act 2001)
------------------------------------------------------------------------
    Requests for Business Records (``Library Provision'') Section 215
------------------------------------------------------------------------
Application to the FISA Court for    No requirement of any factual
 an order under Section 215           showing.
 requires a statement of facts.
Records can be obtained only if the  Records can be obtained if the FBI
 FISA Judge finds that the            merely ``specif[ies] that . . .
 statement of facts shows             they are sought for an authorized
 ``reasonable grounds to believe      investigation.''
 that the tangible things sought
 are relevant to an authorized
 investigation''.
May not be used for threat           May be used for threat assessments.
 assessments.
Encourages the FBI to demonstrate a  No analogous incentive for the FBI
 connection to terrorism or           to demonstrate a connection to
 espionage by providing a             terrorism or espionage.
 presumption of relevance if the
 records sought pertain to: (a) a
 foreign power or an agent of a
 foreign power; (b) the activities
 of a suspected agent of a foreign
 power who is the subject of the
 investigation; or (c) an
 individual in contact with, or
 known to, a suspected agent of a
 foreign power who is the subject
 of the investigation.
Requires the use of minimization     No requirement that minimization
 procedures that will limit ``the     procedures be used.
 retention, and prohibit the
 dissemination'' of information
 concerning U.S. persons.
Explicit right of recipients of      No explicit right of recipients of
 Section 215 requests to consult      Section 215 requests to consult
 legal counsel.                       legal counsel.
Explicit right of recipients of      No explicit right of recipients of
 Section 215 requests to challenge    Section 215 requests to challenge
 their legality in court.             their legality in court.
Requirement that the FBI Director,   No special requirements for
 Deputy Directer, or Executive        sensitive documents such as
 Assistant Director personally        library records.
 approve requests for certain
 sensitive documents, including
 library records, medical records,
 educational records, and gun
 records.
Limits the scope of Section 215      No specified limitation on the
 requests to materials that could     scope of Section 215 requests.
 be obtained via grand jury
 subpoena or a similar court order
 for the production of records.
Adds the Senate Judiciary Committee  ``Fully inform[ed]'' reports given
 as a recipient of the ``fully        only to House and Senate
 inform[ed]'' reports.                Intelligence Committees.
Reporting to Congress on the number  No reporting to Congress on Section
 of orders granted, modified, or      215 requests for sensitive
 denied for the production of         documents.
 certain records from libraries and
 bookstores, firearms sales
 records, tax return records,
 educational records, and certain
 medical records.
Public reporting on the total        No public reporting.
 number of applications under
 Section 215 and the total number
 of such orders granted, modified,
 or denied.
Two comprehensive audits by the      No requirement that the Justice
 Justice Department's Inspector       Department's Inspector General
 General regarding the use,           audit the use of Section 215.
 including any improper or illegal
 use, of Section 215. The first
 report will examine the use of
 Section 215 in 2002-04; the second
 report will examine the use of
 Section 215 in 2005-06. The
 reports will examine ``each
 instance'' in which the government
 submitted an application under
 Section 215, and the Conference
 Report provides detailed
 specifications of what the
 investigation should cover.
Four-year sunset...................
------------------------------------------------------------------------
    Delayed-Notice Searches (``Sneak and Peek'' Searches) Section 213
------------------------------------------------------------------------
Notice to the target of the search   Notice to the target of the search
 must be given ``within a             may be given within a
 reasonable period not to exceed 30   ``reasonable'' time; no limitation
 days after the date of its           on the maximum period of delay.
 execution,'' or on a later date
 certain if the facts justify it.
Extensions on the period of delay    Extensions on the period of delay
 only upon ``an updated showing of    may be granted upon mere ``good
 the need for further delay''.        cause shown''.
Extensions are limited to 90 days    No maximum period of extension.
 or less, unless the facts of the
 case justify a longer period.
Notice may not be delayed if the     Notice may be delayed if the court
 only reason for doing so is that     finds reasonable cause to believe
 the court finds reasonable cause     that immediate notification may
 to believe that immediate            result in unduly delaying a trial.
 notification may result in unduly
 delaying a trial.
Public reporting on the number of    No reporting to Congress or the
 applications for delayed-notice      public.
 warrants and extensions; and the
 number of such warrants and
 extensions granted or denied; the
 duration of delays in giving
 notice.
------------------------------------------------------------------------
                      Roving Wiretaps Section 206
------------------------------------------------------------------------
Application requires ``the           Application requires ``the
 identity, if known, or a             identity, if known, or a
 description of the specific          description of the target'' of the
 target'' of the surveillance.        surveillance.
FISA Court's orders must specify     FISA Court's orders must specify
 ``the identity, if known, of the     ``the identity; if known, or a
 specific target'' of the             description of the target'' of the
 surveillance.                        surveillance.
For so-called John Doe roving        For so-called John Doe roving
 wiretaps, requires the FISA Court    wiretaps, requires the FISA Court
 to ``find[], based upon specific     to ``find that the actions of the
 facts provided in the application,   target of the application may have
 that the actions of the target of    the effect of thwarting the
 the application may have the         identification of a specified
 effect of thwarting the              person''.
 identification of a specified
 person''.
Requires that within ten days of     No requirement that FBI notify the
 beginning of surveillance at any     FISA Court when surveillance
 new facility or place, the FBI       begins at any new facility or
 notify the FISA Court of ``facts     place.
 and circumstances'' justifying
 FBI's belief that each new phone
 is being used or is about to be
 used by the target.
Requires ``fully inform[ed]''        No requirement to report to Senate
 reporting to Senate Judiciary        Judiciary Committee.
 Committee.
Existing reports expanded to         Attorney General to inform the
 include the total number of          Congress twice per year of all
 applications for orders and          roving wiretaps under 206.
 extensions of orders approving
 electronic surveillance where the
 nature and location of the
 facility at which the surveillance
 will be directed is unknown.
Four-year sunset...................
------------------------------------------------------------------------
                  National Security Letters (``NSLs'')
------------------------------------------------------------------------
Explicit right of recipients to      No explicit right of recipients to
 consult legal counsel.               consult legal counsel.
Explicit right of recipients to      No explicit right of recipients to
 challenge NSL in court and have it   challenge NSL in court.
 set aside if the court finds that
 compliance would be
 ``unreasonable, oppressive, or
 otherwise unlawful''.
Detailed mechanism for recipients    No explicit right of recipient to
 to challenge the nondisclosure       challenge the nondisclosure
 requirement in court; provision      requirement in court.
 for subsequent challenges in the
 event that initial challenges are
 unsuccessful.
Two comprehensive audits by the      No requirement that the Justice
 Justice Department's Inspector       Department's Inspector General
 General regarding the use,           audit the use of NSLs.
 including any improper or illegal
 use, of NSLs. The first report
 will examine the use of NSLs in
 2003-04; the second report will
 examine the use of NSLs in 2005-
 06. The Conference Report provides
 detailed specifications of what
 the investigation should cover.
Report to Congress by the Attorney   No requirements with respect to the
 General and the Director of          use of minimization procedures in
 National Intelligence regarding      the context of NSLs.
 the feasibility of applying
 minimization procedures in the
 context of NSLs.
Annual public reporting on the       No public reporting.
 total number of each type of NSL.
------------------------------------------------------------------------
                         Additional Protections
------------------------------------------------------------------------
Reporting to Congress on the total   No such reporting.
 number of emergency employments of
 electronic surveillance and the
 total number of subsequent orders
 approving or denying such
 electronic surveillance.

[[Page S40]]

 
Adds the Senate Judiciary Committee  Reporting to the House and Senate
 as a recipient of these reports.     Intelligence Committees of all
                                      physical searches conducted
                                      pursuant to FISA.
Reporting to Congress on the total   No such reporting.
 number of emergency physical
 searches authorized by the
 Attorney General and the total
 number of subsequent orders
 approving or denying such physical
 searches.
Reporting to Congress on the total   No such reporting.
 number of emergency pen registers
 and trap and trace devices
 authorized by the Attorney General
 and the total number of subsequent
 orders approving or denying the
 installation and use of the same.
Disclosure of the rules of the FISA  No provision requiring disclosure
 Court to the Senate and House        of the rules of the FISA Court to
 Committees on Intelligence and the   Congress.
 Judiciary.
Reporting to the House and Senate    No such reporting.
 Judiciary Committees on good-faith
 emergency disclosures under
 Section 212 of the PATRIOT Act.
Report to Congress on the Justice    No specific provisions concerning
 Department's use of data mining.     data mining.
------------------------------------------------------------------------

                               Exhibit 2

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, January 24, 2006.
     Hon. Alberto R. Gonzales,
     Attorney General, U.S. Department of Justice, Washington, DC.
       Dear Attorney General Gonzales: I write to let you know 
     some of the subjects which I would like you to address in 
     your opening statement on the Judiciary Committee hearing 
     scheduled for February 6, 2006, on ``Wartime Executive Power 
     and the NSA's Surveillance Authority.''
       (1) In interpreting whether Congress intended to amend the 
     Foreign Intelligence Surveillance Act (FISA) by the September 
     14, 2001 Resolution (Resolution), would it be relevant on the 
     issue of Congressional intent that the Administration did not 
     specifically ask for an expansion for Executive powers under 
     FISA? Was it because you thought you couldn't get such an 
     expansion as when you said: ``That was not something that we 
     could likely get?''
       (2) If Congress had intended to amend FISA by the 
     Resolution, wouldn't Congress have specifically acted to as 
     Congress did in passing the Patriot Act giving the Executive 
     expanded powers and greater flexibility in using ``roving'' 
     wiretaps?
       (3) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what is 
     the impact of the rule of statutory construction that repeals 
     or changes by implication are disfavored?
       (4) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what would 
     be the impact of the rule of statutory construction that 
     specific statutory language, like that in FISA, trumps or 
     takes precedence over more general pronouncements like those 
     of the Resolution?
       (5) Why did the Executive not ask for the authority to 
     conduct electronic surveillance when Congress passed the 
     Patriot Act and was predisposed, to the maximum extent 
     likely, to grant the Executive additional powers which the 
     Executive thought necessary?
       (6) Wasn't President Carter's signature on FISA in 1978, 
     together with his signing statement, an explicit renunciation 
     of any claim to inherent Executive authority under Article II 
     of the Constitution to conduct warrantless domestic 
     surveillance when the Act provided the exclusive procedures 
     for such surveillance?
       (7) Why didn't the President seek a warrant from the 
     Foreign Intelligence Surveillance Court authorizing in 
     advance the electronic surveillance in issue? (The FISA Court 
     has the experience and authority to issue such a warrant. The 
     FISA Court has a record establishing its reliability for non-
     disclosure or leaking contrasted with concerns that 
     disclosures to many members of Congress involved a high risk 
     of disclosure or leaking. The FISA Court is a least as 
     reliable, if not more so, that the Executive Branch on 
     avoiding disclosure or leaks.)
       (8) Why did the Executive Branch not seek after-the-fact 
     authorization from the FISA Court within the 72 hours as 
     provided by the Act? At a minimum, shouldn't the Executive 
     have sought authorization from the FISA Court for law 
     enforcement individuals to listen to a reduced number of 
     conversations which were selected out from a large number of 
     conversations from the mechanical surveillance?
       (9) Was consideration given to the dichotomy between 
     conversations by mechanical surveillance from conservations 
     listened to by law enforcement personnel with the contention 
     that the former was non-invasive and only the latter was 
     invasive? Would this distinction have made it practical to 
     obtain Court approval before the conservations were subject 
     to human surveillance or after-the-fact approval within 72 
     hours.
       (10) Would you consider seeking approval from the FISA 
     Court at this time for the ongoing surveillance program at 
     issue?
       (11) How can the Executive justify disclosure to only the 
     so-called ``Gang of Eight'' instead of the full intelligence 
     committees when Title V of the National Security Act of 1947 
     provides:
       Sec. 501. [50 U.S.C. 413] (a)(1) The President shall ensure 
     that the congressional intelligence committees are kept fully 
     and currently informed of the intelligence activities of the 
     United States, including any significant anticipated 
     intelligence activity as required by this title. (Emphasis 
     added)
       (2)(e) Nothing in this Act shall be construed as authority 
     to withhold information from the congressional intelligence 
     committees on the grounds that providing the information to 
     the congressional intelligence committees would constitute 
     the unauthorized disclosure of classified information or 
     information relating to intelligence sources and methods. 
     (Emphasis added)
       (12) To the extent that it can be disclosed in a public 
     hearing (or to be provided in a closed executive session), 
     what are the facts upon which the Executive relies to assert 
     Article II wartime authority over Congress' Article I 
     authority to establish public policy on these issues 
     especially where legislation is approved by the President as 
     contrasted to being enacted over a Presidential veto as was 
     the case with the War Powers Act?
       (13) What case law does the Executive rely upon in 
     asserting Article II powers to conduct the electronic 
     surveillance at issue?
       (14) What academic or export opinions does the Executive 
     rely upon in asserting Article II powers to conduct the 
     electronic surveillance at issue?
       (15) When foreign calls (whether between the caller and the 
     recipient both being on foreign soil or one of the callers or 
     recipients being on foreign soil and the other in the U.S.) 
     were routed through switches which were physically located on 
     U.S. soil, would that constitute a violation of law or 
     regulation restricting NSA from conducting surveillance 
     inside the United States, absent a claim of 
     unconstitutionality on encroaching on Executive powers under 
     Article II?
       This letter will further confirm our staffs' discussions 
     that the Committee will require, at a minimum, the full day 
     on February 6th for your testimony.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Mr. President, I thank my distinguished colleague for 
those comments.
  There is no doubt about the suffering of those who are afflicted with 
mesothelioma and asbestosis and other ailments. There is also no doubt 
about the tremendous impact it has on the economy of the United States. 
It has been estimated that there could be a bigger boost than any kind 
of tax cuts you could have or any sort of economic recovery program you 
could have to be able to deal with the more than 75 companies that have 
gone into bankruptcy and others where bankruptcy is threatened.
  The amount of work that the Senator from Vermont has specified has 
been gigantic. It has been 3 years in process. Senator Hatch took the 
lead with the trust fund concept where the manufacturers and the 
insurers have agreed to put up some $140 billion into the trust fund 
with no government payments and not coming out of the pockets of the 
taxpayers.
  The meetings which have been held and the efforts and the momentum 
which we have had can't be recaptured. I think it is fair to say, 
certainly during my tenure here of 25 years, that I have never seen 
legislation worked on to the extent this legislation has been, with the 
complexity of the problem and the involvement of Senators and staff and 
so-called stakeholders. If it is not now, it is never.
  Mr. SPECTER. Mr. President, I support the nomination by President 
Bush of Circuit Court Judge Samuel A. Alito, Jr., to the Supreme Court 
of the United States because he is qualified.
  In coming to my conclusion, my staff and I have undertaken an 
extensive review of Judge Alito's record and of his some 361 opinions 
in total. We have categorized 238 of those as major decisions while 
serving on the Third Circuit Court of Appeals. We have reviewed 49 of 
the cases that Judge Alito handled during his tenure as U.S. attorney. 
We have made an analysis of 43 speeches and articles Judge Alito 
authorized and evaluations of 38 formal opinions, petitions, and 
Supreme Court briefs which Judge Alito wrote while serving in the 
Department of Justice.
  Additionally, the Judiciary Committee heard testimony of some 30 
hours and 20 minutes where we had 17 hours and 45 minutes of 
questioning of Judge Alito and testimony from 33 outside witnesses.
  It is on the basis of that voluminous record that it is my personal 
view that Judge Alito ought to be confirmed.
  He has a background from a father who was an immigrant from Italy, 
not

[[Page S41]]

born with a silver spoon in his mouth, came up the hard way, had the 
extraordinary academic record at Princeton and the Yale Law School, 
worked as an Assistant U.S. Attorney, then was U.S. Attorney and worked 
in the Department of Justice, and for 15 years has been on the Court of 
Appeals for the Third Circuit.
  I think he answered questions put to him more extensively than any 
other nominee in recent times.
  I ask unanimous consent that the full text of the prepared statement 
be printed in the Record at the conclusion of my remarks, which 
specifies the details of the questions asked and provides analysis of 
many of his cases.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1).
  Mr. SPECTER. Mr. President, Judge Alito came under very extensive 
questioning on the issue of a woman's right to choose because of his 
work on a brief on the Thornburgh case where he advocated not reversal 
of Roe v. Wade but cut back on some of the provisions, and because of a 
statement which he had made in 1985 when applying for a position with 
the Federal Government where he expressed the view that the 
Constitution did not protect the right to an abortion. Judge Alito 
testified at length that he has an open mind on this subject.
  I think it is fair to say that when a comment is made by a lawyer in 
an advocacy capacity that it represents the view of a client on a 
position taken and not a personal view. With respect to the statement 
that he made about his view of the Constitution in 1985, he has since 
gone to great lengths to analyze the Supreme Court's decisions on the 
issue of a woman's right to choose and has made assurances that he has 
an open mind on the subject.
  He was questioned extensively on this issue. I led off with it for 20 
minutes on my first round of questioning. And Judge Alito expressed his 
regard for stare decisis, the Latin expression for let the decision 
stand.
  He commented that he agrees with the position of Chief Justice 
Rehnquist on the Miranda case involving suspects' rights on statements 
and confessions. Chief Justice Rehnquist, earlier in his career, had 
been against Miranda and later changed his view to support Miranda 
once, as the Chief Justice put it, it became embedded in the culture of 
police practices. And Judge Alito stated that he thought there was 
weight to be accorded to cultural changes.
  I think it is fair to have that statement of principle apply on a 
woman's right to choose.
  Judge Alito later testified that he agreed with Justice Harlan's 
dissent in the case of Poe v. Ullman, that the constitution is a living 
document; and that agreed with Justice Carodza in Palko v. Connecticut 
that it reflects the changing values and mores of our society.
  He is not an originalist. He does not look only original intent. He 
does not look only to the static black letter, but he understands the 
importance of evolving values and of evolving reliance.
  I questioned him at length about the reliance factor in Casey v. 
Planned Parenthood. I think Judge Alito went as far as he could go on 
the assurances of maintaining an open mind on this important subject.
  When it came to the issue as to whether he reviewed it and regarded 
it as settled law, his testimony was virtually identical to the 
testimony of Chief Justice Roberts, who testified that it was settled. 
As Chief Justice Roberts put it in his confirmation hearings, it is 
settled beyond that. Chief Justice Roberts left open the unquestionable 
right and duty of the Court to review all cases on the merits when they 
are presented and to afford appropriate weight to stare decisis and to 
precedents, but not to take the position that precedents can never be 
overturned.
  I think a fair reading of the record is that Judge Alito went about 
as far as he could go without answering the question as to how he would 
rule on a specific case, which would be beyond the purview of what a 
nominee ought to do.
  In taking up questions of Executive power, Judge Alito could not 
answer questions posed about the President's authority to go to war 
with Iran. How could a nominee answer a question of that magnitude in a 
nomination proceeding without knowing a lot more about the 
circumstances? And judges make decisions after they have a case and 
controversy, when they have briefs admitted, when they have arguments 
prepared, when they have discussions with their colleagues, and they 
reflect on a matter and come to conclusion, not sitting at a witness 
table in a Judiciary Committee hearing. Judge Alito answered the 
questions as to the considerations which would be involved. Again, he 
went about as far as he could go.

  On the question of congressional power, I questioned him at length on 
concerns I have about what the Supreme Court has had to say about 
declaring acts of Congress unconstitutional because the Supreme Court 
disagrees with our ``method of reasoning.'' The columns of the Senate 
building are lined up exactly with those of the Supreme Court, situated 
across the green. An interesting historical note, in an early draft of 
the Constitution, the Senate was to nominate Supreme Court Justices. 
That would be an interesting process, given the political complexion of 
the Senate today.
  Back to the point. What superior wisdom and what superior method of 
reasoning comes when a person crosses the green to the Supreme Court of 
the United States? Our method of reasoning may not be too good, but it 
is our method of reasoning. To have the Court say that they declare 
acts unconstitutional because they do not like our method of reasoning 
is, candidly stated, highly insulting. Judge Alito said the obvious: 
Our method of reasoning was as good as the Court's.
  Then in the decision on the Americans with Disabilities Act, where 
the Supreme Court has imposed a test of what is proportionate, taking 
it out of thin air in a 1997 decision, what is ``congruent and 
proportionate'' is a test which cannot be applied with any consistency. 
It lends itself to legislation from the bench. Justice Scalia 
characterized it accurately, calling it ``a flabby test,'' where the 
Court was functioning as the taskmaster of Congress to see that we had 
done our homework. Judge Alito's answers showed an appropriate respect 
for separation of powers and congressional authority.
  The decisions of the Supreme Court questioning the constitutionality 
of statutes has led a number of Senators on the committee to prepare 
legislation which would give the Congress standing to go to the Supreme 
Court to argue to uphold our legislation. We thought initially about 
having a Judiciary Committee observe what the Court had done and from 
that, thought about seeking to intervene as amicus curiae, as a friend 
of the court, and took it the final step: Why not go to the Court and 
argue our cases ourselves, through counsel, which is an appropriate 
way. Congress has the authority to grant standing. We can grant 
standing to ourselves to see to it that our views are appropriately 
presented to the Court.
  We respect the Court as the final arbiter of the Constitution. That 
is our system. But the arguments and the considerations and the record 
which Congress amasses ought to be considered by the Court. Now the 
constitutionality of statutes is upheld by the Solicitor General. But 
in cases where there is a conflict between what the Congress has to say 
and what the President has to say, we ought to be in a position to make 
our own submissions to the Court.
  The issue of Executive authority and the current surveillance 
practices came up for discussion in Judge Alito's confirmation 
hearings. Again, he could not say how he would rule on the case if it 
came before him. He would have to read the briefs, hear the arguments, 
consider it. But he responded by giving us the factors and items which 
he would consider.
  Many issues were discussed. Judge Alito approached them with an open 
mind. One subject of particular concern to this Senator is the issue of 
televising the Court, which I think ought to be done. The Supreme Court 
of the United States today makes the final decisions on so many of the 
cutting-edge questions of our time. The American people ought to know 
what is going on. A number of the Justices appear on television 
programs. There is

[[Page S42]]

no reason why the Court proceedings should not be televised. Senator 
Biden and I made that specific request on the case of Bush vs. Gore and 
got a response from Chief Justice Rehnquist denying it; however, they 
released an oral transcript of the proceedings at the end of the day 
and the Court is doing more of that, which is a step forward.
  The Congress has the authority to make decisions on the 
administration of the Court. For example, the Congress decides how many 
Supreme Court Justices there will be. We established the number at 
nine. Remember, in the Roosevelt era there was an effort to pack the 
Court and increase the number to 15. That is a congressional judgment. 
We decide when the Court starts to function: The third Monday in 
October. We decide what is a quorum of the Court: Six. We legislate on 
speedy trial rules. It is within the purview of the Congress to 
legislate, to call for the televising of their proceedings. I recognize 
the ultimate decision would rest with the Court if they decided to 
declare our act unconstitutional. Under separation of powers, that is 
their prerogative. I respect it. We ought to speak to the subject.
  On the subject of television, again, Judge Alito did not give the 
answer I liked to hear--that he is for television in the Court--but he 
said he had an open mind and would consider it. Again, that is about as 
far as he could go.
  One panel of particularly impressive witnesses was seven judges from 
the Court of Appeals from the Third Circuit who had worked with Judge 
Alito. There is precedence for judges testifying. Retired Chief Justice 
Warren Burger came in to testify in the nomination proceedings for 
Judge Bork. That is something for which there is precedent. These 
judges have unique knowledge of Judge Alito because they have worked 
with him in many cases.
  Judge Becker, for example, former Chief Judge of the Third Circuit, 
now on senior status, sat with Judge Alito on more than 1,000 cases. 
Judge Becker has a national reputation as an outstanding jurist. 
Recently, he received the award as the outstanding Federal judge in the 
country. He testified about Judge Alito not having an agenda, not being 
an ideologue and having an open mind.
  Judge Becker is regarded very much as a judge's judge, a centrist 
judge, and pointed out he and Judge Alito have disagreed very few 
times--about 25 times--during the course of considering more than 1,000 
cases.
  After the arguments are concluded, the three judges who sit on the 
panel retire and discuss the case among themselves; no clerks present, 
no secretaries present, just a candid discussion about what went on. 
That is where the judges really let their hair down and talk about the 
cases and get to know what a judge thinks. It is a high testimonial to 
Judge Alito that these judges sang his praises, in terms of openness 
and in terms of studiousness and in terms of not having an agenda.
  One of the witnesses, former Judge Tim Lewis of the Third Circuit, an 
African American, testified about his own dedication to choice for a 
woman's right to choose, his own dedication to civil rights, civil 
liberties, and testified very forcefully on Judge Alito's behalf. He 
said very bluntly he would not be there if he did not have total 
confidence in Judge Alito.
  One further comment: That is on the party-line vote which we seem to 
be coming to. He was voted out of committee, 10 to 8; 10 Republicans 
voting for Judge Alito; 8 Democrats voting against Judge Alito. It is 
unfortunate our Senate is so polarized today. I believe this Senate and 
this body would benefit greatly by more independence in the Senate.
  I have not voted in favor of Judge Alito as a matter of party 
loyalty. If I thought he was not qualified, I would vote no, as I have 
in the past on nominees of my own party from Presidents of my own 
party.
  But we need to move away from the kind of partisanship, which has 
ripped this body in recent times. I think it is important the American 
people have confidence in what the Senate does on the merits and that 
we avoid projecting the appearance of rank politics.
  I believe it is important for Judge Alito to have supporters who 
favor a woman's right to choose so he does not feel in any way beholden 
to or confirmed by people who have one or another idea on some of these 
questions. Without naming names and identifying people, we have more 
than six Republicans who are pro-choice, who support a woman's right to 
choose. So the balance of power will be, if confirmed, not only on one 
side of that issue or another.
  But I think we would do well to reexamine the procedures which we 
utilize in the confirmation process to try to move away from 
partisanship and towards getting an idea of the judge's temperament, 
his background, his jurisprudence, where he stands, without pressing 
him to the wall as to how he stands on any particular issue.
  When we had the nomination of White House Counsel Harriet Miers, she 
was opposed by some because, as one person put it, there was no 
guarantee she would vote to overturn Roe. Well, you cannot get 
guarantees from Supreme Court nominees. I have said before, and I think 
it is worth repeating, guarantees are for used cars and washing 
machines. They are not for nominees to the Supreme Court of the United 
States.
  I think, when we examine temperament and background, including 
jurisprudence, those are the appropriate tests. No one knows with 
certainty how Judge Alito is going to vote. The cases are full of 
surprises. Justice Sandra Day O'Connor was very much opposed to 
abortion rights before she came to the Court. And she has been one of 
the foremost proponents of a woman's right to choose, subject to some 
limitations. Justice Anthony Kennedy spoke very disparagingly about 
abortion rights before coming to the Court, and he has supported Roe v. 
Wade. Justice David Souter, as attorney general for New Hampshire, 
opposed repealing New Hampshire's law banning abortions, even after it 
had been declared unconstitutional by the Supreme Court of the United 
States. The National Organization for Women had a rally on Capitol Hill 
when David Souter was up for confirmation in 1991--I remember it well; 
I was there--with big placards ``Stop Souter or Women Will Die.'' 
Justice Souter, too, has supported Roe v. Wade.
  So no one knows what will happen. President Truman was disappointed 
by his nominees in the famous steel seizure case. Again and again and 
again, there have been surprises. The rule is, there is no rule. So on 
the committee and in the Senate we are left to our best judgment as to 
qualifications without guarantees. The separation of powers entrusts to 
the President the role of making the nominations. It is up to the 
Senate to make an evaluation and then to confirm or not confirm. After 
that, it is up to the Justices to make the decisions on the Court. The 
separation of powers has served us well.
  Those are the facts which have led me to vote Judge Alito out of 
committee affirmatively. And my vote will be cast when the roll is 
called later in this floor debate.

                               Exhibit 1


                         alito floor statement

       Mr. President, today the Senate begins the debate on the 
     confirmation of Judge Samuel A. Alito to be an Associate 
     Justice of the United States Supreme Court.
       It has been 86 days, nearly three months, since President 
     Bush announced his choice of Judge Samuel Alito to fill the 
     seat being vacated by Justice Sandra Day O'Connor. During 
     this time, my staff and I have undertaken an extensive review 
     of Judge Alito's record, including an examination of his 238 
     major decisions while serving on the Third Circuit Court of 
     Appeals, a review of 49 of the cases Judge Alito handled 
     during his tenure as a United States Attorney, analyses of 43 
     speeches and articles Judge Alito authored, and evaluations 
     of the 38 formal opinions, petitions, and Supreme Court 
     briefs which Judge Alito wrote while serving in the 
     Department of Justice. Additionally, the Judiciary Committee 
     held 30 hours and 20 minutes of hearings, which included 17 
     hours and 45 minutes of questioning of Judge Alito and 
     testimony from 33 outside witnesses.
       Based on my thorough review of his record, I intend to vote 
     to confirm Judge Alito as the 110th Justice of the United 
     States Supreme Court. I did not reach this decision lightly. 
     As I have said before, except for a declaration of war or its 
     virtual equivalent, a resolution for the use of force, no 
     Senate vote is as important as the confirmation of a Supreme 
     Court justice. And this vote is one that requires Senators to 
     free themselves from the straight-jacket of party loyalty and 
     exercise independent judgment. Under separation of powers, 
     Senators are separate from

[[Page S43]]

     the executive branch and have a full, independent role in 
     staffing the Third Branch of government. I have long adhered 
     to this view, which led me to vote against Judge Bork's 
     confirmation, even though he was nominated by a President of 
     my own party. If I thought Judge Alito should not be 
     confirmed, I would vote no again.
       Judge Alito has sterling academic credentials, having 
     excelled at Princeton University and the Yale Law School. 
     Judge Alito began his lifetime commitment to public service 
     with a prestigious clerkship for Judge Leon I. Garth of the 
     United States Court of Appeals of the Third Circuit. For the 
     next thirteen years, Judge Alito served his country as an 
     Assistant to the U.S. Solicitor General, a Deputy Assistant 
     Attorney General in the Office of Legal Counsel, and as both 
     the United States Attorney for New Jersey and an assistant 
     United States Attorney in that same office. When Judge Alito 
     was appointed to his current position on the Third Circuit 
     Court of Appeals, the ABA unanimously voted to award Judge 
     Alito its highest possible rating, and Judge Alito enjoyed 
     broad bipartisan support, as reflected by the fact that he 
     was confirmed by unanimous consent.
       Judge Alito's achievements are all the more impressive when 
     one realizes that Judge Alito was not born with a silver 
     spoon in his mouth. Judge Alito's father was brought to this 
     country from Italy as an infant and grew up in poverty. 
     Although his father graduated at the top of his high school 
     class, he had no money for college, and he was set to work in 
     a factory. It was only because at the last minute, a kind 
     person arranged for him to receive a $50 scholarship, that he 
     was able to attend college. Despite the discrimination he 
     faced as an Italian immigrant in 1935, Judge Alito's father 
     eventually became a teacher, served in the Pacific during 
     World War II, and held a nonpartisan position for the New 
     Jersey Legislature. Judge Alito put it best when he said:
       ``my parents taught me through the stories of their lives . 
     . . and it is the story, as far as I can see it, about the 
     opportunities that our country offers and also about the need 
     for fairness and about hard work and perseverance and the 
     power of a small good deed.''
       I have participated in the confirmation hearings for the 
     past eleven nominees to the Supreme Court. Although judgments 
     may differ, I think that Judge Alito went farther in 
     answering questions than most Justices in the past. Indeed, 
     Senator Biden commented, ``you have been very gracious. I 
     appreciate you being responsive.'' By one reckoning, Judge 
     Alito was asked 677 questions and answered some 659--97%. 
     That is far more than Justice Ginsburg, who answered only 307 
     out of 384 questions, or 80%, or Justice Breyer, who answered 
     only 291 out of 355 questions, or 82%. Judge Alito did not 
     refuse to respond because a similar case might come before 
     the Court. He ultimately stopped short of making commitments 
     as to how he would vote, as he should. But for each topic 
     that was raised, Judge Alito discussed the relevant 
     constitutional considerations and his judicial philosophy.
       For example, on the topic of a woman's right to choose, 
     Judge Alito agreed that the Constitution creates a right to 
     privacy. I asked Judge Alito whether he agreed with the 
     Supreme Court's holding in Eisenstadt, which established that 
     unmarried women have a constitutional right to contraception 
     and was an underpinning of the Supreme Court's decision in 
     Roe v. Wade. Judge Alito replied directly, ``I do agree with 
     the result in Eisenstadt.'' When Senator Feinstein asked 
     Judge Alito whether the Constitution guarantees a right to 
     privacy, Judge Alito responded: ``The 14th Amendment protects 
     liberty. The Fifth Amendment protects liberty. And I think it 
     is well accepted that this has a substantive component, and 
     that that component includes aspects of privacy that have 
     constitutional protection.''
       Judge Alito also discussed whether Roe v. Wade is so well 
     established that it should not be overturned. Judge Alito 
     stated: ``I agree that in every case in which there is a 
     prior precedent, the first issue is the issue of stare 
     decisis, and the presumption is that the Court will follow 
     its prior precedents. There needs to be a special 
     justification for overruling a prior precedent.''
       Some Members of the Judiciary Committee have argued that 
     Judge Alito was less forthcoming on this issue than Chief 
     Justice Roberts was during his Supreme Court confirmation 
     hearing, when he called Roe v. Wade ``settled law.'' 
     Comparing the testimony of the two nominees, I cannot see a 
     dime's worth of difference between their responses. I asked 
     Chief Justice Roberts what he meant when, as a nominee for 
     the circuit court, he said Roe was settled law. 
     Specifically, I asked him if he meant it was settled for 
     him as a circuit court judge, or if it was settled beyond 
     that, even as a Supreme Court Justice. He answered: 
     ``beyond that, it's settled as a precedent of the Court, 
     entitled to respect under principles of stare decisis.''
       Similarly, Judge Alito testified that ``Roe v. Wade is an 
     important precedent of the Supreme Court'' and that the 
     Court's reaffirmation of that case ``strengthens its value as 
     stare decisis.'' Moreover, both Chief Justice Roberts and 
     Judge Samuel Alito testified that they agreed with the result 
     in Eisenstadt, that unmarried people may not be denied 
     contraception, and with the foundational case of Griswold v. 
     Connecticut, which guaranteed that same right to married 
     couples. Both Chief Justice Roberts and Judge Samuel Alito 
     agreed that with the view that the Constitution's Due Process 
     Clause includes a substantive protection of privacy--the 
     legal view underpinning Roe v. Wade. And both Chief Justice 
     Roberts and Judge Samuel Alito refused to make commitments on 
     how they would vote in abortion cases, including how they 
     would rule if Roe came before the Court again. This is as it 
     should be: no nominee for the Supreme Court or any other 
     Court should be required to commit to how they would rule on 
     a potential case before them.
       I was pleased to hear Judge Alito confirm that he does view 
     the Constitution as a living document. Judge Alito stated, 
     ``I think the Constitution is a living thing in the sense 
     that matters, and that is . . . it sets up a framework of 
     Government and a protection of fundamental rights that we 
     have lived under very successfully for 200 years, and the 
     genius of it is that it is not terribly specific on certain 
     things. It sets out some things are very specific, but it 
     sets out some general principles, and then leaves it for each 
     generation to apply those to the particular factual 
     situations that come up. . . . As times change, new factual 
     situations come up, and the principles have to be applied to 
     those situations. The principles don't change. The 
     Constitution itself doesn't change, but the factual 
     situations change, and as new situations come up, the 
     principles and the rights have to be applied to them.''
       Judge Alito's record confirms that he is not an ideologue 
     on a crusade to curtail Roe v. Wade. He has upheld a woman's 
     right to choose even when he had the discretion to limit 
     abortion rights. For example, in the 1995 case of Elizabeth 
     Blackwell Medical Center for Women v. Knoll, Judge Alito 
     struck down two abortion restrictions by the State of 
     Pennsylvania. The first provided that a woman who became 
     pregnant due to rape or incest could not obtain Medicaid 
     funding for her abortion unless she reported the crime to the 
     police. The second provided that if a woman needed an 
     abortion to save her life, she had to obtain a second opinion 
     from a doctor who had no financial interest in the abortion. 
     The question was whether these laws conflicted with a federal 
     regulation issued by the Secretary of Health and Human 
     Services. The case did not involve a question of 
     constitutional law. There was no binding Supreme Court 
     precedent on point. Judge Alito easily could have upheld the 
     abortion restrictions if he wished to. Indeed, another Third 
     Circuit judge appointed by President Reagan voted to do just 
     that. But Judge Alito voted to strike down both laws in favor 
     of a woman's right to choose. This is not the behavior of 
     someone bent on chipping away at Roe v. Wade. This is the 
     behavior of a moderate jurist who understands the importance 
     of precedent.
       The fact is that, notwithstanding Senators' concerted 
     efforts, it is not possible to predict how Judge Alito will 
     rule on the issue of abortion. If there is a rule on 
     expectations, it is probably one of surprise. Two or three 
     decades ago, no one would have predicted that Justices 
     O'Connor, Kennedy, or Souter would have voted to uphold a 
     woman's right to choose. At her confirmation hearing, Justice 
     O'Connor testified that she personally viewed abortion with 
     ``abhorrence'' and stated, ``my own view in the area of 
     abortion is that I am opposed to it as a matter of birth 
     control or otherwise.'' Yet, roughly 10 years later, she 
     voted to uphold Roe v. Wade and has done so ever since. 
     Justice Kennedy explained that he ``was brought up to think 
     of abortion as a great evil. He once denounced the Roe 
     decision as the Dred Scott of our time, a reference to the 
     infamous 1857 ruling that sanctioned slavery and helped spark 
     the Civil War.'' Yet, in 1992, Justice Kennedy cast the 
     deciding vote in Casey v. Planned Parenthood to uphold Roe v. 
     Wade. When he was New Hampshire Attorney General, Justice 
     Souter filed a brief arguing that tax payer dollars should 
     not be used to fund ``the killing of unborn children'' and 
     defended abortion laws that had already been undermined by 
     Roe v. Wade. During his confirmation hearing, the National 
     Organization for Women organized a rally against his 
     confirmation entitled ``Do or Die Day'' and distributed 
     flyers proclaiming ``Stop Souter or women will die.'' Yet, on 
     the Supreme Court, Justice Souter has consistently voted to 
     uphold a woman's right to choose.
       Similarly, there have been dire predictions about Judge 
     Samuel Alito. The National Organization for Women has 
     released another flyer--this one declaring ``Save Women's 
     Lives. Vote No on Alito.'' The rule is that there is no rule.
       Judge Alito was also questioned extensively on Executive 
     power and whether the resolution for the authorization of use 
     of force gave the President authority to engage in electronic 
     surveillance. When I asked Judge Alito whether he agreed with 
     Justice O'Connor's statement in Hamdi that ``We have long 
     since made clear that a state of war is not a blank check for 
     the President when it comes to the rights of the Nation's 
     citizens,'' Judge Alito responded, ``Absolutely. That's a 
     very important principle. Our Constitution applies in times 
     of peace and in times of war, and it protects the rights of 
     Americans under all circumstances.'' Judge Alito went 
     somewhat beyond the usual practice of answering just as many 
     questions as he needed to in order to be confirmed. While he 
     would not commit to giving answers to hypothetical situations 
     which may come before the Court, he fully explained his 
     methods of reasoning. For example, when questioned by me and 
     other

[[Page S44]]

     Senators about how he would decide questions dealing with the 
     limits of executive power, he responded that he would apply 
     Justice Jackson's framework from the Youngstown Steel case:
       ``[A]s I said, the President has to follow the Constitution 
     and the laws and, in fact, one of the most solemn 
     responsibilities of the President--and it is set out 
     expressly in the Constitution--is that the President is to 
     take care that the laws are faithfully executed, and that 
     means the Constitution, it means statutes, it means treaties, 
     it means all of the laws of the United States.
       ``But what I am saying is that sometimes issues of 
     Executive power arise and they have to be analyzed under the 
     framework that Justice Jackson set out. And you do get cases 
     that are in this twilight zone and it is--they have to be 
     decided when they come up based on the specifics of the 
     situation.''
       When Judge Alito was similarly questioned about the 
     President's power to control the executive branch, he 
     responded by explaining in full:
       ``[A]s to the agencies that are headed by commissions, the 
     members of which are appointed for terms, and there are 
     limitations placed on removal, the precedents--the leading 
     precedent is Humphrey's Executor and that is reinforced, and 
     I would say very dramatically reinforced, by the decision in 
     Morrison, which did not involve such an agency. It involved 
     an officer who was carrying out what I think everyone would 
     agree is a core function of the executive branch, which is 
     the enforcement of the law, taking care that the laws are 
     faithfully executed. . . .
       ``[W]hat I have tried to say is that I regard this as a 
     line of precedent that is very well developed and I have no 
     quarrel with it and it culminates in Morrison, in which the 
     Supreme Court said that even as to an inferior officer who is 
     carrying out the core executive function of taking care that 
     the laws are faithfully executed, it is permissible for 
     Congress to place restrictions on the ability of the 
     President to remove such an officer, provided that in doing 
     so, there is no interference with the President's authority, 
     and they found no interference with that authority there. 
     That is an expression of the Supreme Court's view on an issue 
     where the claim for--where the claim that there should be no 
     removal restrictions imposed is far stronger than it is with 
     respect to an independent agency like the one involved in 
     Humphrey's Executor.''
       I have expressed my concern, for some time now, about the 
     case of United States v. Morrison, where the Supreme Court 
     declared part of the Violence Against Women Act 
     unconstitutional. The majority opinion in that case dismissed 
     lengthy Congressional findings because five justices 
     disagreed with our ``method of reasoning.'' The inference was 
     that they believed the Court has a superior method of 
     reasoning to the Congress. I believe that the Constitutional 
     separation of powers rejects that kind of view and I know 
     that many of my colleagues share this concern.
       I asked Chief Justice Roberts about this during his 
     confirmation hearings and I raised it again with Judge Alito. 
     Judge Alito said that: ``I would never suggest that judges 
     have superior reasoning power than does Congress . . . I 
     think that Congress' ability to reason is fully equal to that 
     of the judiciary.''
       The Judiciary Committee had the rare, but not 
     unprecedented, opportunity to hear from seven of Judge 
     Alito's current and former colleagues on the Third Circuit. 
     These men and women, Democrat and Republican appointees, know 
     his record best. They have heard cases with him and sat in 
     conference with him, they have worked to craft opinions with 
     him. The process that appellate judges go through in 
     rendering decisions is not familiar to many people and it was 
     very instructive to have the insight of these judges.
       Judge Edward Becker, the former Chief Judge of the Third 
     Circuit is one of the most acclaimed jurists of our time. He 
     recently won the coveted Devitt Award as the Outstanding 
     Federal Jurist of the year. I know Judge Becker very well 
     since our college and law school days, so, I take his views 
     seriously.
       Judge Becker has sat on over a thousand cases with Judge 
     Alito and, as he testified, they only disagreed 27 times. In 
     each of those cases, Judge Becker testified, Judge Alito's 
     ``position was closely reasoned and supportable either by the 
     record or by his interpretation of the law, or both.'' Judge 
     Becker testified that he knows Judge Alito approaches judging 
     with no agenda and was not an ideologue. He said, ``The Sam 
     Alito that I have sat with for 15 years is not an ideologue. 
     He is not a movement person. He is a real judge deciding each 
     case on the facts and the law, not on his personal views, 
     whatever they may be. He scrupulously adheres to precedent. I 
     have never seen him exhibit a bias against any class of 
     litigation or litigants.''
       The current Chief Judge of the Third Circuit, Judge Anthony 
     Scirica, confirmed this view of Judge Alito, as did Judge 
     Maryanne Trump Barry, and all the other current and retired 
     judges who testified.
       I thought that the testimony of Judge Timothy Lewis was 
     particularly influential, given his background. He is an 
     African American who described himself at the hearing as 
     ``unapologetically pro-choice'' and as ``a committed human 
     rights and civil rights activist.'' He joked that it was no 
     coincidence that he happened to be sitting at the ``far 
     left'' end of the panel of judges.
       Still, based on his personal knowledge of the kind of judge 
     Judge Alito is, Judge Lewis spoke enthusiastically in his 
     favor. He said: ``having worked with him, I came to respect 
     what I think are the most important qualities for anyone who 
     puts on a robe, no matter what court they will serve on, but 
     in particular the United States Supreme Court, and first and 
     foremost among these is intellectual honesty.''
       He testified that ``I cannot recall one instance during 
     conference or during any other experience that I had with 
     Judge Alito, but in particular during conference, when he 
     exhibited anything remotely resembling an ideological bent. 
     That does not mean that I agreed with him, but he did not 
     come to conference or come to any decision that he made 
     during the time that I worked with him based on what I 
     perceived to be an ideological bent or a result-oriented 
     demeanor or approach. He was intellectually honest, and I 
     would say rigorously so, even with respect to those areas 
     that he and I did not agree.''
       In the area of civil rights, Judge Alito has a strong 
     record. In his tenure as the U.S Attorney for New Jersey, he 
     took steps to diversify the office--hiring and promoting 
     women and minorities. Since taking the bench, he has 
     continued to demonstrate a commitment to civil rights. Of 
     course, when a judge has decided over 4,800 cases, as Judge 
     Alito has, it is possible to select a few of his cases to 
     place him at any and every position on the judicial spectrum. 
     But, on balance, Judge Alito's record in this area is more 
     than satisfactory.
       Again, Judge Lewis's testimony is instructive. He told the 
     Committee that ``[I]f I believed that Sam Alito might be 
     hostile to civil rights as a member of the United States 
     Supreme Court, I can guarantee you that I would not be 
     sitting here today.'' Coming from some one with an 
     unquestioned commitment to civil rights who has worked 
     closely with Judge Alito, that testimony is entitled to 
     considerable weight.
       Judge Lewis' testimony supported my view of Judge Alito 
     from examining his cases. Indeed, I have found many cases 
     where he has defended civil rights and the interests of 
     African Americans. For example:
       In U.S. v. Kithcart, Judge Alito held that the Fourth 
     Amendment does not allow police to target drivers because of 
     the color of their skin. After a police officer received a 
     report that two black men in a black sports car had committed 
     three robberies, she pulled over the first black man in a 
     black sports car she saw. Judge Alito ruled that this 
     violated the Constitution.
       In Brinson v. Vaughn, Judge Alito ruled that the 
     Constitution does not allow prosecutors to exclude African 
     Americans from juries. In that case, the prosecutor had used 
     13 of his 14 ``strikes'' to exclude African-Americans from 
     the jury, but argued that this was not a problem, because he 
     allowed 3 African-Americans onto the jury. Judge Alito 
     explained that the prosecutor could not get around the 
     Constitution by allowing a handful of African-Americans onto 
     the jury.
       In Zubi v. AT&T Corp., Judge Alito authored a lone dissent, 
     opposing the establishment of a stringent limitations period 
     in which civil-rights plaintiffs would have to file a claim. 
     The Supreme Court unanimously vindicated Judge Alito's 
     position four years later.
       In Reynolds v. USX Corporation, Judge Alito ruled in favor 
     of Deborah Reynolds, an African-American woman who was 
     subjected to racial and sexual harassment at work. Her 
     employer claimed that the company shouldn't be liable because 
     the harassment came from her coworkers, rather than 
     supervisors. Alito concluded that her supervisors were aware 
     of the harassment and the company had a duty to end it.
       During Judge Alito's time on the bench he has also 
     demonstrated great sensitivity to the unique challenges faced 
     by people with disabilities. He understands that people with 
     disabilities are still subject to discrimination in our 
     society and that they are entitled to full civil rights. As 
     he testified at his hearing: ``When I have a case involving 
     someone who's been subjected to discrimination because of 
     disability, I have to think of people who I've known and 
     admired very greatly who had disabilities and I've watched 
     them struggle to overcome the barriers that society puts up, 
     often just because it doesn't think of what it's doing, the 
     barriers that it puts up to them.''
       He has issued several important decisions vindicating the 
     rights of people with disabilities. Thomas v. Commissioner of 
     Social Security, which Judge Alito discussed at his hearing, 
     is a good example of this. It is also one of the few cases 
     where Judge Alito was reversed by the Supreme Court--in this 
     instance unanimously--because the Court thought that Judge 
     Alito went too far to protect the ``little guy.''
       In that case, Judge Alito ruled in favor of a woman with 
     disabilities who sought social security benefits. The Social 
     Security Administration concluded that the plaintiff was not 
     entitled to benefits because she could still perform her 
     former job as an elevator operator--even though such jobs no 
     longer exist. Judge Alito thought that such a rigid 
     application of the law ``sets up an artificial roadblock'' to 
     people seeking disability benefits. He saw ``no plausible 
     reason why Congress might have wanted to deny benefits to an 
     otherwise qualified person simply because that person, 
     although unable to perform any job that actually exists in 
     the national economy, could perform a previous job that no 
     longer exists.''

[[Page S45]]

       Thomas is only one example of Judge Alito's strong record 
     on disability rights. He has ruled in favor of numerous 
     workers, students, customers, and disability advocacy groups 
     on disability-related claims. Often times, he has reversed 
     the rulings of lower courts to do so. Other examples include:
       Shapiro v. Township of Lakewood, where Judge Alito authored 
     the majority opinion in favor of an EMT technician who became 
     disabled on the job and was denied an interdepartmental 
     transfer to a position as a police dispatcher.
       Fiscus v. Wal-Mart Stores, Inc., where Judge Alito ruled in 
     favor of a victim of disability discrimination who suffered 
     from end-stage renal disease and sought permission from her 
     employer to self-administer dialysis every four to six hours 
     during the workday. Judge Alito voted to reverse the lower 
     courts ruling that kidney failure was not covered by the 
     Americans with Disabilities Act.
       Mondzelweski v. Pathmark Stores Inc., where Judge Alito 
     ruled in favor of a meat cutter who became injured on the job 
     and could no longer lift heavy objects. He overturned the 
     judgment of a lower court that refused to consider his 
     disability in light of his low education and skill level. 
     Judge Alito believe that the impact of a disability had an 
     individual's inability to work must take into account his 
     particular background and skills.
       Shore Regional High School Board of Education v. P.S., 
     where Judge Alito again reversed a lower court to find in 
     favor of a plaintiff with disabilities. The plaintiff in that 
     case was a child with disabilities who had suffered severe 
     harassment from bullies at his school. Because an 
     Administrative Law Judge had found that the student could not 
     get an appropriate education in this environment, Judge Alito 
     ruled that the students' parents should be reimbursed for 
     tuition at a neighboring public high school.
       Pennsylvania Protection & Advocacy, Inc. v. Houstoun, where 
     Judge Alito sided with a group advocating for the rights of 
     the mentally ill and ordered a state hospital to release 
     internal reports on the death of a patient who attempted 
     suicide and later died under hospital care. He rejected the 
     state of Pennsylvania's arguments that these documents were 
     protected from release under state law.
       Judge Alito has authored a number of other important, 
     progressive, opinions, vindicating the rights of the so-
     called ``little guy''. For example, in Fatin v. INS, Judge 
     Alito held that an Iranian woman could establish a basis for 
     asylum if she showed that compliance with Iran's gender 
     specific laws would be deeply abhorrent to her or that the 
     Iranian government would persecute her because of her gender. 
     This is a landmark case that established gender-based 
     discrimination as possible grounds for asylum.
       In Alexander v. University of Pittsburgh Medical Center 
     System, Judge Alito dissented from the court's ruling in 
     favor of a hospital in a medical malpractice case. A young 
     woman had been hospitalized for a rare illness of the liver. 
     Based on advice from several doctors, her parents waited for 
     one and one-half months before ordering a liver transplant. 
     The young girl died, and the parents sued. The jury ruled for 
     the parents and awarded substantial damages. The majority of 
     the Third Circuit reversed the jury's verdict against the 
     doctors, explaining that the trial court judge should have 
     instructed the jurors to consider whether the parents were 
     partly responsible for the young girl's death. Judge Alito 
     dissented, concluding that the fault for any poor decision 
     rested with the defendant doctors, not the parents. Judge 
     Alito wrote: ``Except perhaps in truly extreme cases, it is 
     not negligent for a patient such as Alyssa or her parents to 
     follow the advice of primary care physicians.''
       In Cort v. Director, Judge Alito wrote an opinion ruling 
     for and awarding benefits to a former coal miner under the 
     Black Lung Benefits Act. An Administrative Law Judge had 
     denied the worker's claim, finding that since he was able to 
     obtain work as a wire cutter, he wasn't disabled. Judge Alito 
     found that the statute and associated regulations established 
     a presumption of total disability due to Black Lung when a 
     claimant worked for more than 10 years as a miner and met one 
     of four medical requirements--which the plaintiff satisfied. 
     He reasoned that the statue focused on the source of 
     disability, not its degree.
       These cases are just a few examples from Judge Alito's 
     lengthy record. My staff has identified and analyzed scores 
     of cases where Judge Alito has ruled for minorities, 
     immigrants, people with disabilities, prisoners, and other 
     disadvantaged plaintiffs. It is this record that has won him 
     the enthusiastic support of his fellow judges on the Third 
     Circuit.
       Judge Alito is anything but a ``stealth'' candidate. Those 
     who opposed Chief Justice Roberts' nomination asked for a 
     nominee with a deeper record to analyze. In Judge Alito, they 
     have such a person. The Committee had the opportunity to 
     review literally thousands of decisions and some 461 written 
     opinions. It also had the opportunity to hear directly from 
     Judge Alito as he gave lengthy testimony. In three days of 
     intense questioning in which he spent over 18 hours in the 
     witness chair, Judge Alito was asked roughly 677 questions. 
     By comparison, Justice Ginsburg was asked 384 questions and 
     Justice Breyer was asked only 355 questions. Clearly, Judge 
     Alito's record has been vetted as thoroughly as any nominee's 
     possibly could be.
       It is on the basis of this record that I reached my 
     conclusion to vote aye on the nomination of Judge Alito to be 
     an Associate Justice of the United States Supreme Court.

  I thank the Chair and I now yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank Senator Specter for his 
excellent leadership of the Judiciary Committee during both the Roberts 
and Alito hearings. He squarely addressed the tough issues in the first 
questioning. He made sure every member of the committee had full and 
ample opportunity to ask any question they wanted. We had 30-minute 
rounds. We had opening statements. We had the opportunity to have 
multiple rounds. Basically, I think the people could have asked 
questioned theses nominees for as long as they wanted.
  Of course, both Roberts and Alito were magnificent in their 
testimony, superb in their knowledge of the Constitution and the role 
of a judge in every possible way. That is why they have been favorably 
received by the American public which is why Chief Justice Roberts was 
confirmed, and why Alito will be confirmed.
  We have the greatest legal system in the world. It is the foundation 
of our liberties. It is the foundation of our economic prosperity. But 
the focus and the key ingredient of our legal system is an independent 
judge who makes decisions every day based on the law and the facts, not 
on their personal, political, religious, moral or social views. If we 
descend to that level, if we allow those social, political views to 
affect or infect the decision-making process, justice has been eroded. 
That is contrary to every ideal of the American rule of law.
  What is important today is Judge Alito's legal philosophy. It is not 
his political philosophy that is important. What is his legal 
philosophy? The core of his beliefs as a judge is that a judge should 
be careful, fair, restrained, and honest in analyzing the facts of the 
case and applying the relevant law to those facts. For what purpose? To 
decide that dispute, that discrete issue that is before the Court at 
that time and not to indulge, as he indicated, in great theories. That 
is not what a judge is about.
  So this is what American judges must do for our entire legal system 
to work. That is why I am so proud that President Bush has given us two 
nominees who can explain, articulate that role of a judge in a way 
every American can understand, relate to, and affirm.
  My colleagues, I am afraid, lack a proper understanding of this 
concept. It goes to the core of our differences over judges. They want 
judges, I am afraid, who will impose their own views, their personal 
views, on political issues in the guise of deciding discrete cases 
before them. Oftentimes, these are views that cannot be passed in the 
political, legislative process but can only be imposed by a judge who 
simply redefines or reinterprets the meaning of words in our 
Constitution, and they declare that the Constitution says that same-sex 
marriage must be the law of the land. They just declare that to be so. 
It only takes five unelected, life-time appointed judges to set that 
kind of new standard for America.
  Is there any wonder people are worried about that? It erodes 
democracy at its most fundamental level when political decisions are 
being set by judges with lifetime appointments, unaccountable to the 
public.
  So that is what we are worried about in so many different ways. There 
has been a trend in that regard, no doubt about it, by our courts. I 
think they have abused their authority by taking an extremely hostile 
view toward the expression of religious conviction in public life.
  They have struck down Christmas displays. Our courts have declared 
our Pledge of Allegiance to the Government unconstitutional because it 
has ``under God'' in it. By the way, for those of you who can see the 
words over this door, ``In God We Trust,'' it is part of our heritage, 
written right on the wall of this Chamber.
  This is an extreme interpretation of the separation of church and 
state. It is not consistent with our classical understanding of law in 
America. We had the Supreme Court, in this past year,

[[Page S46]]

redefining the takings clause. The takings clause says you can take 
private property for public use.
  It does not say you can take it for any purpose, like a private mall. 
They redefined the meaning because they thought that was smarter, 
better policy. But we don't appoint judges to set policy. As 
legislators, we have that responsibility. We are the people who will be 
voted out of office if we set bad policy. We are the ones meeting 
people every day and campaigning, trying to understand what the 
American people care about. That is not what judges do, at 80 years 
old, sitting over there reading briefs every day.
  This is an important issue. They declared that illegal aliens, 
despite State laws to the contrary, are entitled to benefits. They 
struck down every partial-birth abortion law. They have declared that 
morality--this is hard to believe but true in recent years--cannot be a 
basis for congressional legislation. Yet they contend that they may 
decide opinions and redefine the meaning of words and the understanding 
of words over hundreds of years based on what they declare to be 
evolving standards of decency.
  Is that a standard or is that just a license for a judge to do 
whatever they feel like doing at a given time? Evolving standards of 
decency, who can define that? Do they have hearings on what these 
standards are?
  These are important issues. The American people are concerned about 
it. President Bush was concerned about it. He promised he would appoint 
judges who show restraint, judges of great ability and integrity but 
who would show restraint and be more modest in the way they handle 
these cases. That is a fair standard. It is a legitimate issue for the 
American people to decide. He talked about it in almost every speech he 
made. That is what he promised to do, and that is what he has done.
  If we were to name judges, there is a legitimate concern that we 
would appoint judges who would promote some conservative agenda. I 
don't favor that; I oppose that. We don't want a judge to promote a 
liberal or a conservative agenda, although the plain fact is, if 
anybody looks at it squarely, they will see that the Court has actually 
been promoting a more liberal agenda. But we are not asking that a 
conservative agenda be promoted. We are asking that the courts maintain 
their role as a neutral umpire to decide cases based on the law passed 
by the legislative branch or State legislatures or passed by the people 
through the adoption of the U.S. Constitution.
  I don't understand the opposition to Judge Alito. He is such a 
fabulous nominee. It does appear, according to the New York Times last 
week, the 19th of January, that our Democratic leader, Senator Harry 
Reid, has urged his colleagues to vote no so they can, for political 
reasons, make it a political issue. We need to be careful about that. I 
am afraid there has been an attempt to change the ground rules of 
confirmations, to set standards we have never set before for nominees. 
That knife cuts both ways. If this is affirmed, then there will be more 
difficulty in the future for Democratic Presidents to have their 
nominees confirmed.
  Judge Alito has a remarkable record. He is the son of immigrants in 
New Jersey. His father was an immigrant to this country. He goes off to 
Princeton, gets his degree with honors, declines to accept an 
invitation to join an eating club that excludes women and others. I 
guess that was beneath the members of that club. He decided while he 
was there that he would just dine with everybody else, the scruff and 
the scrum that you find at Princeton. Then he went to Yale Law School 
where he finished at the top of his class, served as editor of the Yale 
Law Journal, participated in the ROTC at a time when that was not an 
easy thing to do, served in the Army Reserve for 8 years, and was 
offended that Princeton would kick the ROTC from their campus. I am 
sure he was not pleased when the rioters bombed the ROTC building at 
Princeton.
  He is an American. He believes in his country. He was prepared to 
serve his country, go where he was asked to go, if called upon in that 
fashion.
  He was chosen to clerk for the Third Circuit after he graduated, the 
court on which he now sits with Judge Garth. That is quite an honor. 
For 3 years he served as assistant U.S. attorney in that great large 
New Jersey law office for the U.S. attorney where he argued appellate 
cases. He did the appellate work. That is what he will be as a Supreme 
Court judge, an appellate judge, not a trial judge. That is what he did 
when he started out his practice. Then he went to the Solicitor 
General's Office of the Department of Justice, which is often referred 
to as the greatest job for an attorney in the world, to be able to 
stand up in the courts of the United States of America, particularly 
the Supreme Court, and to represent the United States in that court. He 
argued 12 cases before the Supreme Court. Not one-half of 1 percent of 
the lawyers in America have probably argued any case before the Supreme 
Court. He argued 12. That is a reflection of his strength and 
capability.
  Then he became U.S. attorney in New Jersey, which is one of the 
largest U.S. attorney offices in America, where he prosecuted the Mafia 
and drug organizations and was highly successful in that office and won 
great plaudits for his performance. He then was placed, 15 years ago, 
on the Third Circuit Court of Appeals. He has served as a circuit judge 
in the Third Circuit Court of Appeals for 15 years, writing some 350 
opinions and participating in many others.
  He has had his record exposed to the world. What does it look like? 
Without question, it is a record of fairness and decency. Some of us on 
the conservative side have questioned the bar association. They are 
pro-abortion in their positions. They take liberal positions on a lot 
of issues, and some people have criticized them for that. They declare 
their ratings of judges are not based on that. But sometimes they have 
been accused of allowing their personal views to infect that rating 
process.
  How did the American Bar Association rate Judge Alito? They gave him 
their highest possible rating. They found that he was well qualified, 
unanimously, by the 15-member committee that meets to decide that 
issue. They interviewed 300 people, people who have litigated against 
Judge Alito as a private lawyer, people who have been his supervisors, 
people who have worked for him, people who had their cases decided by 
him.
  They go out and talk to these people. They will share with the 
American Bar Association privately what they might not say publicly. So 
they interviewed 300 people, and contacted over 2,000. They concluded 
that Judge Alito has established a record of both proper judicial 
conduct and evenhanded application in seeking to do what is 
fundamentally fair.
  They declare that Judge Alito was held ``in incredibly high regard.'' 
That was said by attorney John Payton, an African American who argued 
the University of Michigan quota case before the U.S. Supreme Court, 
not a rightwinger. He said they found the people they interviewed held 
Judge Alito in incredibly high regard. I asked him if he chose that 
word carefully. He said: I did; yes, sir.
  Judge Alito represents that neutral magistrate that we look for in 
our judges in America. His academic record is superb. His proven 
intelligence is unsurpassed. The experience he brings to the U.S. 
Supreme Court is extraordinary, including 15 years as an appellate 
judge doing in a lower court basically the same thing one would do at 
the Supreme Court level.
  This is what he said at the hearing:
  The PRESIDING OFFICER (Mr. Graham). The majority's time has expired.
  Mr. SESSIONS. Mr. President, I ask unanimous consent for 30 seconds 
to wrap up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I understand our side will also get an additional 30 
seconds.
  Mr. SESSIONS. This is what he said:

       I had the good fortune to begin my legal career as a law 
     clerk for a judge who really epitomized openmindedness and 
     fairness. He read the record in detail in every single case. 
     He insisted on following precedent, both the precedents of 
     the Supreme Court and the decisions of his own court. He 
     taught all of his law clerks that every case had to be 
     decided on an individual basis. He really didn't have much 
     use for grand theories.

  That is what we need on the bench today. I think it would restore the 
public confidence. I am proud to support this nomination.

[[Page S47]]

  Mr. President, I respect Senator Leahy. He is an excellent advocate 
for the Democratic side. I was pleased he supported Judge Roberts, and 
I am not as thrilled he is not supporting Judge Alito. It was a process 
that was a bit rough at times, but fundamentally I think the judge was 
able to have his day in court.
  I yield the floor.
  Mr. LEAHY. Mr. President, I ask unanimous consent that we may go a 
couple of minutes beyond 12 o'clock.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I appreciate the compliment of the Senator 
from Alabama. I have spent 31 years in the Senate. I take my role in 
the Senate very seriously. I believe we should be the conscience of the 
Nation. As I have said many times, only 18 people get to publicly ask 
questions of the Supreme Court nominees. They are the 18 Members of the 
Senate Judiciary Committee. We are asking those questions on behalf of 
almost 300 million Americans, and then 100 of us get a chance to vote 
on it.
  While the Senator from Alabama is still on the floor, I note that 
there seem to be talking points going around that the Democratic 
leader, Senator Reid, has been lobbying to make this a party-line vote. 
I don't know where those talking points came from. I have heard them in 
different places. The Democratic leader was asked about that yesterday 
by the press in open session. He said it is absolutely not so. I am the 
ranking member of the Senate Judiciary Committee. Just as nobody from 
leadership has lobbied me on now-Chief Justice Roberts when I voted for 
him, nobody has lobbied me on Judge Alito; nor have I lobbied anybody 
else, and nor have I heard of anybody who has been lobbied.
  What the distinguished senior Senator from Nevada, the Democratic 
leader, has said over and over again is that this is a vote of 
conscience. Every Senator has to search his or her own conscience. In 
fact, I was also concerned when the distinguished Republican leader 
opened the debate on this nomination by complaining that those opposing 
Judge Alito are smearing a decent and honorable man. Mr. President, 
again, out of almost 300 million Americans, only 100 of us get a chance 
to say whether this man will go on the Supreme Court, where he can sit 
there for years, decades even, and where he is supposed to be the 
ultimate check and balance and guardian of our rights. To say that by 
opposing him is smearing him, that is not so.
  Senator Specter and I held a fair and open hearing on him. Democrats 
had substantive and probing questions to try to learn more about Judge 
Alito, and some Republicans did the same. These complaints about the 
treatment of Judge Alito ring hollow after President Bush was forced by 
an extreme faction of his own Republican Party to withdraw his first 
choice for the vacancy, Harriet Miers. It was a humiliation of the 
President by an extreme faction in his party. Within hours of the time 
he nominated her, many groups on the far right criticized the 
nomination, and a number of Republican Senators raised serious concerns 
calling for a thorough hearing and a probing inquiry in light of their 
concerns about her record.
  The same groups on the right immediately embraced Samuel Alito after 
they had forced Harriet Miers to be withdrawn. The same Republican 
Senators who said they needed to learn more about Harriet Miers' 
judicial philosophy before they could vote to confirm her are now doing 
an about face and criticizing Democrats for saying they want to do the 
same type of inquiry for Judge Alito. President Bush buckled to 
pressure and withdrew the nomination for Harriet Miers because she 
didn't pass the litmus test and because there were those who said they 
were not sure how they would vote.
  The third nomination--Judge Alito's--people applauded, implying that 
here we have somebody who we know how he will vote, so he is fine.
  Democratic Senators are taking their constitutional duties seriously. 
We have a single fundamental question: Will the Senate serve its 
constitutional role and preserve the Supreme Court as a constitutional 
check on the expansion of presidential power?
  A nominee's views on Executive power and the checks and balances 
built by the Founders into our constitutional framework should always 
weigh heavily in hearings for those nominated to the Supreme Court. 
Executive power issues were the first issues I raised with Chief 
Justice Roberts at his confirmation hearing, and they were the first 
issues I raised with Judge Alito.
  The reason presidential power issues have come to dominate this 
confirmation process is that we have clearly arrived now at a crucial 
juncture in our Nation, and on our highest court, over the question of 
whether a President of the United States is above the law. The Framers 
knew that unchecked power leads to abuses and corruption, and the 
Supreme Court is the ultimate check and balance in our system. Vibrant 
checks and balances are instruments in protecting both the security and 
the liberty of the American people.
  This is a nomination that I fear threatens the fundamental rights and 
liberties of all Americans, now and for generations to come. One need 
only look to the White House to see the practical effects of such an 
erosion of those rights and liberties. This President is prone to 
unilateralism and assertions of Executive power that extend all the way 
to illegal spying on Americans.
  This President is in the midst of a radical realignment of the powers 
of the Government and its intrusiveness into the private lives of all 
Americans, Republicans and Democrats. Frankly, this nomination is part 
of that plan for the intrusion into our private lives. I am concerned 
that if we confirm this nominee, it will further erode checks and 
balances that have protected our constitutional rights for more than 
200 years. It is not overstating the case to say this is a critical 
nomination. It is one that can tip the balance on the Supreme Court 
radically away from the constitutional checks and balances and the 
protection of Americans' fundamental rights.
  This past week, I introduced a resolution to clarify what we all 
know, that the congressional authorization for the use of military 
force against Osama bin Laden did not authorize warrantless spying on 
Americans, as the administration has now claimed. I thought--we all 
thought--that when we as Democrats joined in the bipartisan 
authorization of military action against Osama bin Laden more than 4 
years ago, our action would have been more effective and that we would 
have by now succeeded in ridding the world of that terrorist leader. We 
gave the President all the authority he needed to go after Osama bin 
Laden, and we thought with the great power of this country he would 
have gone out and caught him. He didn't. They averted our special 
forces out of Afghanistan and into Iraq before we even announced we 
were going to go to war against Iraq. We lost the opportunity to catch 
Osama bin Laden, the man who did order the attacks on America.
  Now we find the administration, instead of saying sorry we didn't 
catch Osama bin Laden, even though you gave us the authority, we now 
want to use that authority as legal justification for a covert, illegal 
spying program on Americans.
  As Justice O'Connor underscored very recently, even war ``is not a 
blank check for the President when it comes to the rights of the 
Nation's citizens.''
  Now that the illegal spying on Americans has become public, the Bush 
administration's lawyers are contending that Congress authorized it. 
The September 2001 authorization to use military force did no such 
thing. It did not authorize illegal spying on Americans. Republican 
Senators know it, and some have been courageous to say so publicly. The 
fact is, we all know it. The liberties and rights that define us as 
Americans and the system of checks and balances that serve to preserve 
them should not be sacrificed to threats of terrorism or to the 
expanding power of the Government. Security and liberty are not 
mutually exclusive values in America. We should have both, and we can 
have both, so long as we have adequate checks and balances and with the 
extra effort it takes to chart the right course to preserve our 
liberties as we preserve our security.
  We are constantly reminded of what Benjamin Franklin said: People who 
give up their liberties for security deserve neither. The terrorists 
win if they frighten us into sacrificing our

[[Page S48]]

freedoms--something I said in the days following 9/11, and I believe it 
just as strongly today.
  Just after 9/11, I joined with Republicans and Democrats--I was at 
that time chairman of the Judiciary Committee, in round-the-clock 
efforts to update and adapt our law enforcement powers, and we did. The 
law became known as the USA PATRIOT Act. It is obvious they missed a 
lot of the signals that were out there. It is obvious they had ignored 
the evidence that was before them that might have stopped the 
terrorists from striking us, but we didn't make those accusations, we 
didn't say then--let's find out all the things you did wrong that 
allowed us to be hit on your watch. Instead, during those days, we 
asked the Bush administration, what do you need, tell us what you need 
so it doesn't happen again, whether it is on your watch or anybody 
else's.
  In answering that question, they never asked us to amend the Foreign 
Intelligence Surveillance Act to accommodate spying on Americans they 
now say they will undertake, even though the law doesn't allow it. The 
law does contain an expressed reservation for the 15 days following a 
declaration of war. But neither Attorney General Ashcroft nor anyone 
else in the Bush administration at that time or any time afterward 
sought congressional authorization for this illegal NSA spying program.
  Actually, Attorney General Gonzales admitted in a recent press 
conference that the Bush administration did not seek legal 
authorization for this kind of spying on Americans because ``it was not 
something we could likely get.'' We don't know; he never asked. But 
consider that damning admission. It is utterly inconsistent with the 
Bush administration's current argument that Congress authorized 
warrantless spying on Americans, when they now are saying they didn't 
ask for it because they couldn't get it. They can't have it both ways, 
although Lord knows they are trying as hard as they can to have it both 
ways.
  The Bush administration's after-the-fact claims about the breadth of 
that 2001 resolution are the latest in a long line of manipulations and 
another affront to the rule of law, American values, and traditions. We 
have also seen such overreaching in the Justice Department's twisted 
interpretation of the torture statute, in the detention of suspects 
without charges, the denial of access to counsel, and in the 
misapplication of the material witness statute as a sort of general 
preventive detention law. Such abuses serve to harm our national 
security as well as our civil liberties. In fact, sources at the FBI 
reportedly say that much of what was forwarded to them to investigate 
from the NSA spying program was worthless and led to dead ends. That is 
a dangerous diversion of our investigative resources.
  When they talk about thousands of al-Qaida conversations they have to 
monitor going to Americans--thousands? Interesting. So how many people 
have been arrested because of those thousands? Two thousand people? 
Fifteen hundred people? One thousand? Five hundred? Four hundred? Three 
hundred? Thirteen? Seven? Five, three, four, two, one? Or none?
  A central question, therefore, during the hearings of this nomination 
was whether Judge Alito would serve as an effective constitutional 
check on the Presidency. Preventing Government intrusions into the 
personal privacy and freedoms of Americans is one of the hallmarks of 
the Supreme Court. They are not supposed to be in the pocket of any 
administration. After all, this Senate, when it was overwhelmingly 
Democrat, under Democratic control--one of the most popular Democrats 
in my lifetime was President Franklin Roosevelt. When he wanted to pack 
the Supreme Court, when he wanted to manipulate the Court, it was the 
Democrats who stood up and said no because they felt the Court should 
be a check and balance. Here there is no assurance that Judge Alito 
will serve as an effective check and balance on Government intrusions 
into the lives of Americans. In fact, his record suggests otherwise.
  We know that Samuel Alito sought to justify absolute immunity for 
President Nixon's Attorney General John Mitchell from lawsuits for 
wiretapping Americans, among other violations of their privacy. He was 
asking for immunity even if the Attorney General acted willfully to 
violate people's rights. This is the man who is going to be a check and 
balance on our rights?
  We know that as a judge, Samuel Alito was willing to go further than 
even Michael Chertoff, the former head of the Ashcroft Justice 
Department's Criminal Division and the current Secretary of the 
Department of Homeland Security, in excusing Government agents for 
searches not authorized by judicial warrants. This is the man who is 
going to be a check and balance?
  We know Judge Alito would have excused a strip search of a 10-year-
old girl, even though the search warrant did not authorize this. This 
is a man who is going to be a check and balance?

  In both Doe v. Groody and Baker v. Monroe Township, Judge Alito 
dissented and would have allowed invasive searches beyond the scope of 
warrants. This is a man who is going to be there as a check and 
balance?
  I was a prosecutor for eight years, and I am keenly aware of the 
difficulties faced by police officers in the course of their duties. I 
support vigorous law enforcement tools. But I am also mindful of the 
careful balance that must be struck in order to preserve our individual 
liberties. One of the most important Fourth Amendment protections we 
have for our privacy is the requirement that a judicial officer ensure 
that the Government's intrusion on citizens' privacy is based on 
probable cause and that it is reasonable. It is the judge who 
determines whether to authorize the search and the extent of the search 
to be permitted. The officer's affidavit and the warrant are not mirror 
images of each other. The magistrate is not a rubber stamp. The role of 
the magistrate in issuing warrants, a role Judge Alito has too easily 
cast aside on the bench, is a crucial check in maintaining the right 
balance so that all Americans can have both security and liberty.
  It is worth taking a few moments to recount the facts of these cases, 
because I am concerned that Judge Alito has too little regard for the 
consequences arising from allowing these kinds of invasive searches 
beyond those authorized by warrants.
  In the Doe case, the 10-year-old girl and her mother were subjected 
to what the Third Circuit termed an ``intrusive'' strip search, even 
though they were not suspected of nor charged with any wrongdoing. The 
warrant that the Government agents had obtained from a judicial officer 
authorized a search for a man living at a certain address. Yet when 
they arrived at the address they encountered only the 10-year-old and 
her mother and proceeded to strip search them. There was no contention 
that they posed a risk to the agents.
  Similarly, in Baker v. Monroe Township, a mother and her three teen-
aged children were detained and searched as they arrived at the home of 
the mother's adult son. The woman and her teen-aged children did not 
live at the house, were not suspected of any wrongdoing, were not named 
in the warrant, and were not even inside the premises when the officers 
arrived on the scene. They were nevertheless all ordered at gunpoint to 
lie on the ground. They were subsequently handcuffed, taken into the 
house, further detained, and their property and persons were searched.
  In both cases, the Third Circuit held that the Government agents had 
acted inappropriately and had violated the Fourth Amendment when they 
conducted these invasive searches of innocent persons who were not 
named in the search warrants. When I asked him why he, in contrast, 
looked beyond the ``four corners'' of the warrant that was actually 
signed by the magistrate in Doe, Judge Alito replied that the issue was 
a ``technical'' one. Repeatedly when pressed about this case, Judge 
Alito insisted that the issue was merely ``technical.''
  The illegal strip search was not ``technical'' for the 10-year-old 
girl. Then-Judge Chertoff understood that this issue is far from 
technical, but, rather, embedded in the core protections of our 
individual privacy and dignity from governmental intrusion. In the 
court's opinion, rejecting the rationale of Judge Alito's dissent, 
Judge Chertoff wrote: ``This is not an arcane or legalistic 
distinction, but a difference that goes to the heart of the 
constitutional requirement that judges, and not police, authorize 
warrants.''

[[Page S49]]

  Judge Alito tried to find ``technical'' ways to excuse the 
illegality. Judge Alito's dissent relied on the affidavit accompanying 
the warrant. To the extent the affidavit had requested a search of 
``all occupants'' of the home, it did so based on a concern about 
concealment of drugs by ``frequent visitors that purchase [drugs]'' or 
by ``persons who do not actually reside or own/rent the premises''--not 
by a 10-year-old girl living in the home. Judge Alito ignored this 
language in the affidavit, in order to misconstrue the affidavit more 
broadly and to then substitute it for the magistrate's warrant.
  Judge Alito's rationale was that because the officers' initial 
request was broad, it could be assumed that the magistrate intended to 
grant broader search authority than that set forth in the warrant. The 
Supreme Court had specifically rejected this type of reasoning in the 
case of Ramirez v. Groh, which was decided a month before Judge Alito 
dissented in Doe. In Groh, the Supreme Court held a search warrant 
invalid, citing the sharp distinction the law draws between what is 
authorized in a warrant, and what was requested. Judge Alito went to 
great lengths in a futile and hyper-technical attempt to distinguish 
the Supreme Court's decision in Groh.
  Similarly, in Baker v. Monroe Township, Judge Alito saw the facts in 
the light most favorable to the Government, rather than to the mother 
and her children. That is directly contrary to the standard that should 
be used when reviewing an order granting summary judgment against a 
party. In his dissent, Judge Alito found that although the warrant in 
question did not describe any persons to be searched, it nevertheless 
was appropriate for officers to search and handcuff a mother and her 
three teen-aged children as they approached a relative's home. Judge 
Alito stated in his dissent that even though the mother and her three 
children were not named in the warrant and there was no reason to 
suspect them of any wrongdoing, ``to [his] mind'' the warrant had 
been intended to authorize a search of ``any persons found on the 
premises.'' Judge Alito went so far as to excuse the officers' failure 
to request or obtain a warrant permitting the search of persons on the 
premises as sloppiness.

  The Third Circuit disagreed with Judge Alito, holding that because 
the search warrant did not authorize the search, it was unlawful and in 
violation of the Fourth Amendment. The other judges hearing the case 
found fault with Judge Alito's willingness to look beyond the warrant 
to excuse the unauthorized and unlawful searches. In Baker, Judge Alito 
inserted himself into the case in an active attempt to excuse 
misconduct when the warrant did not authorize the Government intrusion.
  Unfortunately, Doe and Baker are not outliers in Judge Alito's 
record. As troubling as his dissents are in those two cases, they are 
only part of a broader pattern of deference to the Government that 
shows far too little concern for individual liberties and rights, which 
find their ultimate protection in the Supreme Court.
  Judge Alito's record on the use of excessive force is also troubling. 
It goes back at least as far as his time in the Meese Justice 
Department. I find particularly troubling a 1984 memorandum he wrote to 
the Solicitor General regarding a case called Tennessee & Memphis 
Police Department v. Garner. In a long memo in which he repeatedly 
wrote in the first person proclaiming his own beliefs, Samuel Alito 
argued that there were no constitutional problems with a police officer 
shooting and killing an unarmed teenager who was fleeing after 
apparently stealing $10 from a home. A year later, the Supreme Court 
ruled 6-3 against Judge Alito's position in that case and reiterated 
the law against use of ``deadly force'' if a suspect presents no 
danger. In contrast to Justice O'Connor's dissent on federalism 
grounds, Samuel Alito's memo makes no mention of the human tragedy of 
the events nor did he think the Constitution even applied since he 
argued that the unjustified shooting was not technically a ``seizure.'' 
Most troubling is Judge Alito's statement in his legal memo endorsing 
``the general principle that the state is justified in using whatever 
force is necessary to enforce its laws.'' I fear that this deference to 
the Government, which he has continued on the bench, makes him ill-
suited to be an effective check on the Government or protector of 
individual liberties and rights.
  The Supreme Court is the ultimate check and balance in our system. 
The independence of the Court and its members is crucial to our 
democracy and way of life. The Senate should never be allowed to become 
a rubberstamp, and neither should the Supreme Court.
  And so we owe it to the American people of today, and the Americans 
of generations to come, to ask and answer several essential questions: 
Can this President, or any President, order illegal spying on 
Americans? Can this President, or any President, authorize torture, in 
defiance of our criminal statutes and our international agreements? Can 
this President, or any President, defy our laws and Constitution to 
hold American citizens in custody indefinitely without any court 
review? Can this President, or any President, choose which laws he will 
follow and which he will not, by quietly writing a side statement when 
he signs a bill into law? These are some of the most vital questions of 
our era, and these are among the most vital questions that confront the 
Senate in considering this nomination to our highest court. Judge 
Alito's record, and his responses--and his failure to adequately answer 
questions about these issues--are deeply troubling.
  No President should be allowed to pack the courts, and especially the 
Supreme Court, with nominees selected to enshrine presidential claims 
of government power. Our system was designed to ensure a balance and to 
protect against overreaching by any branch.
  A Democratic Senate stood up to one of the most popular and powerful 
Democratic Presidents of all time when it rejected President Franklin 
Roosevelt's court packing scheme. The Senate should not be a rubber 
stamp to this President's effort to pack the court with those who would 
give him unfettered leeway. I will not lend my support to an effort by 
this President to move the Supreme Court and the law radically to the 
right and to remove the final check within our democracy.
  I voted for President Reagan's nomination of Justice Sandra Day 
O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, 
for President Bush's nomination of Justice Souter, and for this 
President's recent nomination of Chief Justice Roberts. I cannot vote 
for this nomination.
  At a time when the President is seizing unprecedented power, the 
Supreme Court needs to act as a check and to provide balance. Based on 
the hearing and his record, I have no confidence that Judge Alito would 
provide that crucial check and balance.
  I see the distinguished senior Senator from Massachusetts in the 
Chamber. I am prepared at this point to yield to the distinguished 
Senator and former chairman of the Judiciary Committee and one whose 
protection of the civil liberties of all of us is unparalleled in the 
history of this body.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank my friend and colleague, the 
Senator from Vermont. Again, we do many important things in the 
Judiciary Committee, but none are more important than the selection of 
our Supreme Court Justices. I again thank the Senator from Vermont for 
his leadership in ensuring we're going to have a fair, open, 
appropriate, and a prodding, probing hearing and for the leadership he 
provides for our committee on so many different matters of importance 
to the American people.
  The stakes in this nomination could not be higher. This is the vote 
of a generation. If confirmed, Judge Alito will have enormous impact on 
our basic rights and liberties for decades to come. After all, the 
Supreme Court is the guardian of our most cherished rights and 
freedoms, and they are symbolized in the four eloquent words inscribed 
above the entrance of the Supreme Court of the United States: ``Equal 
justice under law.''

  Those words are meant to guarantee our courts will be an independent 
check on abuses of power by the other two branches of Government. They 
are a commitment that our courts will always be a place where the poor 
and the powerless can stand on equal footing with the wealthy and the 
privileged.

[[Page S50]]

Each of us in the Senate has a constitutional duty to ensure that 
anyone confirmed to the Court will uphold that clear ideal.
  Contrary to what a number of my Republican colleagues have argued, 
the Senate's role is not limited to ensuring that the nominee is 
ethical and possesses a certain level of legal skill and professional 
experience. To end the inquiry there would be a shameful abdication of 
our historic responsibility. The selection of a Supreme Court Justice 
is of great importance to every man and woman in America because the 
decisions rendered by the Court affect their lives every day. Because 
of the enormous authority a successful nominee to the High Court will 
have for decades to come, it is the responsibility of the Senate to 
determine what constitutional values the nominee holds before he or she 
is confirmed.
  Has the nominee learned the great lessons of our Nation's history? 
Will the nominee be fair and openminded or will his judgments be 
tainted by rigid ideology? Is he genuinely committed to the principles 
of equal justice under law?
  The American people will have no second chance to decide whether this 
person should be trusted with such awesome responsibility. As their 
representatives, it is our responsibility to ask the tough questions 
and demand meaningful answers.
  For the Senate to become a rubberstamp for the judicial nominees of 
any President would be a betrayal of our sworn duty to the American 
people. Taking our responsibility seriously and doing the job we were 
sent here to do is not being partisan, as some Republicans have 
charged. In fact, it is those Republicans who are being partisan by 
defending a nominee's right to remain silent when Senators ask him 
highly relevant questions about his constitutional values. To ask a 
nominee for a candid statement of his current belief about what a 
provision of the Constitution means is not asking for a guarantee of 
how he will rule in the future. It is every bit as appropriate as 
reading a Law Review article or a case he wrote last year or a speech 
he gave as a judge.
  Unfortunately, on issue after issue, instead of answering candidly, 
Judge Alito merely recited the existing law but never disclosed his 
view of major constitutional issues. That is a disservice to the 
American people, and Senators on both sides of the aisle should find 
his evasiveness unacceptable. The confirmation process should not be 
reduced to a game of hide the ball. The stakes for our country are too 
high.
  One of the most important of all responsibilities of the Supreme 
Court is to enforce constitutional limitations on Presidential power. A 
Justice must have the courage and the wisdom to speak truth to power, 
to tell even the President he has gone too far. Chief Justice John 
Marshall was that kind of Justice when he told President Jefferson he 
had exceeded his war-making powers under the Constitution. Justice 
Robert Jackson was that kind of Justice when he told President Truman 
he could not misuse the Korean war as an excuse to take over the 
Nation's steel mills. Chief Justice Warren Burger was that kind of 
Justice when he told President Nixon to turn over the White House tapes 
on Watergate. Justice Sandra Day O'Connor was that kind of Justice when 
she told President Bush that ``a state of war is not a blank check for 
the President when it comes to the rights of the Nation's citizens.''
  We need that kind of Justice on the Court more than ever. It is our 
duty to ensure that only that kind of Justice is confirmed.
  Today, we have a President who believes torture can be an acceptable 
practice despite laws and treaties that explicitly prohibit it. We have 
a President who claims the power to arrest American citizens on 
American soil and jail them for years without access to counsel or the 
courts. We have a President who claims he has the authority to spy on 
Americans without the court order required by law.
  The record demonstrates we cannot count on Judge Alito to blow the 
whistle when the President is out of bounds. He is a longstanding 
advocate of expanding Executive power even at the expense of core 
individual liberties.
  One thing is clear: Judge Alito's view of the balance of powers is 
inconsistent with the Supreme Court's historic role of enforcing 
constitutional limits on Presidential power.
  His consistent advocacy of what he calls the gospel of the unitary 
executive is troubling. As Steven Calabresi, one of the originators of 
the unitary executive theory, has said, ``The practical consequence of 
this theory is dramatic: It renders unconstitutional independent 
agencies and counsels to the extent that they exercise discretionary 
executive power.''
  But this bizarre theory goes much further. Its supporters concede 
that without the unitary executive as a foundation, the Bush 
administration cannot even hope to justify its constitutional abuses in 
the name of fighting terrorism.
  Judge Alito refused to discuss his current view of the constitutional 
limits on Presidential power. But in a speech Judge Alito gave in 2004 
to the Federalist Society, he stated that he believed ``the theory of 
the unitary executive best captures the meaning of the Constitution's 
text and structure.'' Under this radical view, all current independent 
agencies would be subject to the President's control. This would 
destroy the independence of agencies such as the Federal Election 
Commission, the Securities and Exchange Commission, the Consumer 
Product Safety Commission, and the Federal Reserve Board.
  He strongly criticized the Supreme Court's ruling rejecting the 
theory of unitary executive and outlined a strategy for bypassing it.
  When Judge Alito made that speech, he had already been serving as 
appellate judge for 10 years, and he was describing his own view of the 
Constitution.
  Similarly, Judge Alito had written earlier that ``the President's 
understanding of a bill should be just as important as that of 
Congress,'' and that Presidents should issue signing statements 
announcing their own legal interpretations in the hope of influencing 
the way the courts would construe the law.
  On Executive power, ``Protective of the Executive Branch, the 
issuance of interpretative signing statements would have two chief 
advantages. First, it would increase the power of the executive to 
shape the law.''
  This is his view. But as Justice Hugo Black wrote in the steel 
seizure case, ``the President's power to see that the laws are 
faithfully executed refutes the idea that he is to be a lawmaker. The 
Constitution limits his functions in the lawmaking process to the 
recommending of laws he thinks wise and the vetoing of laws he thinks 
bad.''
  This is not just a theoretical case. As we all now know, President 
Bush issued such signing statements on a bill that contained Senator 
McCain's ban on torture. In that statement, the President reserved the 
right to ignore the McCain requirements and even asserted that in 
certain circumstances his actions are beyond the reach of the courts.
  I think many of us remember that meeting Senator McCain had with the 
President down in the White House, and the Senator from Arizona thanked 
the President for working out the language that would be included in 
the Defense appropriations bill and the President thanked him for his 
help and assistance in working that out. They both shook hands. This 
picture was on all three networks that night.
  Four or five days later, the President signed the bill, and he issued 
an executive signing statement that said he continued to retain all of 
his constitutional power, and that he was effectively taking any 
question of his Executive power out of the hands of any courts in this 
country. That is a complete reversal to what was agreed to, a complete 
reversal to what was said, a complete reversal to the understanding of 
the Senator from Arizona. The Senator from Arizona has spoken about it. 
That is Executive power.

  We learned in high school there are two branches of Government, the 
House and the Senate. They pass the law, the President signs it. It is 
the law. If he vetoes it, it is not the law. That is not Judge Alito's 
view. He believes the President, by signing it, has an independent 
voice and that voice is a voice that should be listened to and heard, a 
very bizarre view of Executive authority and Executive power.
  In cases involving claims of privacy and freedom from unjustified 
searches

[[Page S51]]

and seizures under the Bill of Rights, Judge Alito has consistently 
deferred to the Government at the expense of core individual rights. In 
the Doe v. Groody case, Judge Alito issued a dissent defending the 
strip search of a 10-year-old girl without authorization from a 
warrant. In his majority opinion, Michael Chertoff, former head of the 
criminal division in the Department of Justice, who is now President 
Bush's Secretary for Homeland Security, sharply criticized Judge 
Alito's view as threatening to turn the requirement of a search warrant 
into little more than a rubberstamp. This is not Democrats saying this; 
this is President Bush's Secretary of Homeland Security saying this. He 
was a judge on that circuit, criticizing this kind of action, extension 
of a search warrant, because of the inclusion of some kind of other 
document into the search warrant. We understand what Michael Chertoff 
was saying, and Judge Alito issued the dissent.
  In Mellott v. Heemer, Judge Alito reported it was reasonable for 
marshals to pump a sawed-off shotgun at a family sitting in their 
living room. The family committed no crime. Seven marshals had detained 
and terrorized a family and friends, ransacked their home while 
carrying out an unresisted civil eviction. Yet Judge Alito's decision 
meant the family never got a trial before a jury of their peers.
  Judge Alito's record in cases involving civil and individual rights 
shows a judge who repeatedly rules against individuals seeking justices 
for wrongs by the powerful. In Bray v. Marriott Hotels, a hotel worker 
claimed she was denied a promotion because she was an African American. 
The Third Circuit held she was entitled to a trial because the employer 
falsely stated she was unqualified and had evaluated her qualifications 
differently compared to White applicants. Judge Alito would have denied 
her the chance to prove her case. His colleagues on the court--not the 
Democrats on the committee--his colleagues on the court wrote that his 
dissent would have eviscerated key provisions of the landmark Civil 
Rights Act of 1964.
  His record in other areas of civil rights is also troubling. In the 
case in which a disabled person sought physical access to a medical 
school under the Rehabilitation Act of 1973, the court's majority wrote 
that few, if any, Rehabilitation Act cases would survive if Judge 
Alito's view prevailed. That is the majority, not Members of the 
Democratic Party. That is the majority of the court members, looking at 
his view.
  There it is--issues on race, issues on disability, individual rights 
and liberties, those individuals, farmers, and others in a home 
involving a civil action, who committed no crime, where marshals used 
gestapo-like tactics. They were denied an opportunity for a court to 
give a hearing. Judge Alito said no. That is why many Members wonder 
what kind of an opportunity the average American is going to have.
  Does Judge Alito tip more to the powerful and the entrenched 
interests and the Executive authority? Does he give those individuals--
women, minorities, disabled workers--a fair shake?
  Judge Alito said, let's look at the record. We have looked at the 
record. We looked at primarily the dissents, as pointed out in the 
previous discussions.
  Ruth Bader Ginsburg, who is considered to be a more progressive 
figure on the Court, Judge Bork, a conservative figure who was proposed 
for the court, agreed 91 percent of the time. It is in the dissent that 
we understand whether an individual and individual rights are 
protected. Those are the indicators. As we have seen from studies--not 
just from the members of the Judiciary Committee but by independent 
sources--Knight Ridder, Yale Law School Study Group, even the 
Washington Post, Cass Sunstein, a distinguished authority and 
thoughtful individual about constitutional law--all have reached a very 
similar conclusion that I have outlined here. We will hear on the other 
side: Well, they are only finding a few cases. We have suggested and 
included in the record of the Judiciary Committee this happens to be 
the prevailing position of the nominee.
  In another case, a jury ruled a woman had provided enough evidence to 
show that she had wrongly lost her job because of sex discrimination. 
Ten members of the Third Circuit who heard the case on appeal agreed. 
Only Judge Alito argued that she had not provided adequate proof of 
discrimination. Who is out of step? Who is out of step? Who is out of 
the mainstream?
  In the Riley v. Taylor case, Judge Alito dissented from a ruling 
prohibiting the removal of African-American jurors because of their 
race. It is unbelievable in today's America, in a case involving a 
minority defendant, that he was willing to ignore the overwhelming 
evidence that the Government insisted on an all-White jury for a Black 
defendant. He found no problem with that and with their inclusion for 
the death penalty. Eventually, that case was overturned, as it should 
have been. What was going on in the mind? We talk of equal justice 
under law. We see what has happened to individuals. We see what has 
happened in this extremely important judicial proceeding.
  Many of Judge Alito's other decisions demonstrate a similar tendency 
against the individual. In Rouse v. Plantier, a group of diabetic 
inmates sued prison officials for being deliberately insensitive to 
medical needs. The trial court held there was enough evidence for the 
jury to decide whether the inmates' constitutional rights had been 
violated. Judge Alito refused to allow the jury to decide whether the 
Government was responsible for a broad systematic failure to provide 
the necessary medical group. These inmates had diabetes. We know the 
dangers of diabetes. One out of four of our Medicare dollars is spent 
on diabetes. One out of 10 of all health dollars is spent on diabetes. 
It can be devastating, leading to blindness, or the losing of a limb, 
more often the leg. They need attention and treatment.
  This is a serious problem that is increasing in our society. There 
was a systematic failure in terms of providing for that. They thought 
it should go to the jury. Was it or was it not a factual issue? The 
lower court said they ought to be able to go, but not Judge Alito. He 
reached a different conclusion.
  In case after case, Judge Alito's decisions demonstrate a systematic 
tilt toward powerful institutions and against individuals attempting to 
vindicate their rights. He cites instances where he has decided for the 
little guy, but they are few and far between. We have an independent 
duty to evaluate Supreme Court nominees to determine whether their 
confirmation is in the best interests of our Nation. That is the test. 
It is a test with which Judge Alito himself seems to agree. He said we 
should look at his record and decide whether he should be confirmed. I 
have done so. I have compared the challenges the Court will face in the 
future with Judge Alito's record and I cannot support his nomination.
  In this new century, the Court will undoubtedly consider sweeping new 
claims to expand Executive power at the expense of core individual 
rights, including detention of Americans on American soil without 
access to counsel or the court, and eavesdropping on Americans in 
violation of Federal law.

  The Court will decide new issues in America's struggle against 
prejudice and discrimination. It must remain a fair and impartial 
decisionmaker for ordinary Americans seeking justice.
  Justice Alito's record shows he should not be entrusted with these 
vital decisions facing our Nation's Court, and I urge my colleagues to 
join me in opposing Judge Alito's nomination.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Thank you, Mr. President. I thank my colleague from the 
Commonwealth of Massachusetts for his statement.
  Those who are following this debate--my colleagues and those in the 
audience--should know this is a historic moment in the Senate. It is 
rare that Members of the Senate are given an opportunity to review a 
Justice to the Supreme Court. It has been 11 years. Recently, we have 
had two. Chief Justice John Roberts came before the Senate, and today 
we consider the nomination of Judge Sam Alito to fill the vacancy of 
Sandra Day O'Connor on the Supreme Court.
  I take this very seriously. As Senator Kennedy said yesterday in 
another meeting: Next to a vote on war, there is nothing more serious 
than this decision. The man or woman whom we choose to serve on the 
Supreme Court

[[Page S52]]

is there for the rest of their natural life. For 10, 20, or 30 years, 
that person will be making critical decisions on the highest Court in 
the land, the Court which is the refuge for our freedoms and our 
liberties.
  That Court, across the street from this Capitol Building, has made 
momentous and historic decisions which have literally changed America. 
In the 1950s, nine members of the Supreme Court made the decision that 
we would no longer have segregated public education in America. It was 
not the leadership of a President or the Congress, but it was the 
Court.
  Similarly, that same Court, in the 1960s, established a new right 
under our Constitution, a word which you cannot find within the 
confines of that document, the right of privacy. That Court--nine 
Justices across the street--said that when it came to the most personal 
and basic decisions in our lives, they were reserved to us as 
individuals, not to the Government. That was not a finding by a 
President. It was not a law passed by Congress. It was a decision of 
the Supreme Court.
  And time and again, whether we are speaking of the rights of 
minorities in America, women in America, those who are disabled, that 
Court and the nine Justices who sit on the bench make decisions which 
change America for generations to come. That is why the selection of a 
nominee to the Supreme Court is so important and so historic. It is 
made even more so by the fact that the vacancy we are filling on the 
Supreme Court is not another run-of-the-mill vacancy, it is the vacancy 
of Sandra Day O'Connor, the first woman ever appointed to the U.S. 
Supreme Court.
  As important as her gender is, the fact is, she brought unique 
leadership to the Court. You see, over the last 10 years, there have 
been 193 decisions in that Court that were decided 5 to 4. One 
Justice's vote made the difference. If one Justice had voted the other 
way, the decision would have been the opposite--193 times in 10 years. 
And in 148 of 193 cases, Justice Sandra Day O'Connor was the deciding 
vote.
  So we are not only faced with a historic and constitutional challenge 
in filling this vacancy, we have a special responsibility because the 
vacancy that is being filled is a vacancy that will tip the scales of 
justice in America one way or the other way.
  What kind of cases did Sandra Day O'Connor provide the decisive vote 
on? Cases which safeguarded Americans' right to privacy in the area of 
reproductive freedom, the rights of women; cases that required 
courtrooms to be accessible to people with disabilities, decided 5 to 
4; preserving the rights of universities to use affirmative action 
programs, decided 5 to 4; affirming the right of State legislatures to 
protect the voting rights of minorities in America, decided 5 to 4; 
upholding State laws giving individuals the right to a second doctor's 
opinion if their HMO denied them treatment, decided 5 to 4; reaffirming 
the Federal Government's authority to protect the environment that we 
live in, a 5-to-4 case; and reaffirming America's time-honored 
principle of the separation of church and State, 5 to 4.

  In every single case, the fifth vote was Sandra Day O'Connor. And now 
she leaves, after many years of service to America, with an 
extraordinary record of public service. Many of us are listening, 
watching, and reading to make certain the person replacing her can rise 
to the challenge, and not only the challenge of serving in the Court 
but the challenge of fighting for the same values she fought for. 
Sandra Day O'Connor came to the Supreme Court with the support of Barry 
Goldwater, the preeminent conservative in American politics in the 
1960s and beyond. Many expected her to be of the same stripe, that she 
would follow his basic philosophy. In many ways, she did because if you 
measure Barry Goldwater's contribution to American politics, you will 
find him starting in a very conservative position and, over the years, 
moving to a more libertarian position, a position that valued personal 
freedom more.
  The same thing happened to Sandra Day O'Connor. Starting as a 
conservative, over the years she moved toward a more libertarian 
position, a position which, in many instances, was critical for 
protecting our basic rights.
  It has been said she was the most important woman in America. And it 
is easy to see why. Time and again, Sandra Day O'Connor was the crucial 
fifth vote on civil rights, human rights, women's rights, and workers' 
rights. That is why we have looked so closely and so carefully at Judge 
Sam Alito.
  And there is more. His was not the first name to be suggested by the 
President for this vacancy. The first name was the President's personal 
attorney in the White House, Harriet Miers, a person he obviously 
respects very much. Do you recall what happened to her nomination? Her 
name was brought forward, and there was a firestorm of criticism about 
Harriet Miers' nomination. Did it come from the Democrats? Did it come 
from liberals? No. It came from the other side. Time and again, the 
most rightwing on the American political scene said Harriet Miers was 
not acceptable, and they raised questions about whether she could be 
trusted to be on the Supreme Court to advance their rightwing agenda.
  Their opposition to her nomination grew to a level and reached a 
point people did not think would happen. President Bush withdrew 
Harriet Miers' name as a nominee. In the wake of withdrawing Harriet 
Miers' name, in sailed Judge Sam Alito--not the best circumstance for 
someone who is coming to this position arguing they have no political 
agenda.
  Well, we looked carefully to see what the same rightwing 
organizations would say about Sam Alito. They had rejected Harriet 
Miers. They gave Harriet Miers the back of a hand. They gave Sam Alito 
their blessing. They said: He is fine. We support him. He is the right 
person for the job.
  Now, does that raise a question in your mind as to whether Judge 
Alito will come to this position without an agenda, without professing 
some allegiance to extreme views these organizations hold? Will it 
raise the question in the minds of many of us?
  And then, during the course of his nomination, there emerged a 
document, a document he had personally written. In 1985, Sam Alito 
wrote a document to the Justice Department of the Reagan 
administration, then headed by Attorney General Ed Meese, looking for a 
job. In the course of that document he was supposed to lay out why he, 
Sam Alito, was in step with the Reagan administration's thinking and 
philosophy. And, in 1985, that memo was explicit. It went through page 
after page of the things he felt qualified him to serve in that 
administration.
  Some have said: Wait a minute, that was 20 years ago. People change. 
And it is true. I have changed my positions on some issues. It is well 
known and documented. It happens. But to say it was a document given 
without conviction overlooks the obvious. Sam Alito, at that moment in 
1985, was 10 years out of Yale Law School. He had served in the 
military. He served a year as a clerk to a Federal judge. He had served 
4 years as an assistant U.S. attorney, prosecuting cases, and 4 years 
as an assistant to the Solicitor General of the United States.
  So rather than suggesting that document reflected the casual 
observations of someone looking for a job at a very early age, I think 
that document told us much more.
  What it told us was that he questioned some very fundamental things 
about law in America. In his essay, he wrote that ``the Constitution 
does not protect a right to an abortion.'' He said he was proud of his 
work in the Justice Department, fighting abortion rights and 
affirmative action. He wrote that he was skeptical of Warren court 
decisions which embraced the principle of ``one person, one vote'' and 
the separation of church and state. And he pointed with pride to his 
membership in two very conservative organizations: The Federalist 
Society and the Concerned Alumni of Princeton.
  His listing of the Concerned Alumni of Princeton, of which he was a 
graduate, was troubling because that organization was once dedicated to 
establishing a quota at Princeton that each year they would accept no 
fewer than 800 men, and the Concerned Alumni of Princeton wanted to 
stop what they considered to be the infiltration of the Princeton 
student body by women and minorities. Some of the things they wrote and 
said were outrageous. In fairness, Judge Alito at the hearing

[[Page S53]]

said he would not associate himself with their remarks, but it is 
interesting that he would identify this organization as one of his 
memberships that would qualify him to serve in the Justice Department.
  As an examination of Judge Alito's 15-year track record on the U.S. 
Court of Appeals evidences, there are other elements that suggest a 
very conservative judge. University of Chicago law professor Cass 
Sunstein examined his dissenting opinions over 15 years and concluded:

       When they touch on issues that split people along political 
     lines, Alito's dissents show a remarkable pattern: They are 
     almost uniformly conservative.

  People say to me: If he was found ``well qualified'' by the American 
Bar Association, what is wrong with that? Why don't you just go ahead 
and approve the man? The bar association is an important part of this 
process, but they only look to three main things. They look to whether 
he has legal skills. That is important. They look to whether he is an 
honest person. That is equally important. And they look to his 
temperament. They said he is well qualified by those three standards. 
But the American Bar Association doesn't look to his values. It doesn't 
look to his philosophy, how he is likely to rule in critical cases for 
America.
  I wanted to ask Judge Alito at the hearing: Where is your heart? What 
do you feel about the power you will have as a Supreme Court Justice? I 
asked him an obvious question in the lead-up to my inquiry: I asked if 
he was a fan of Bruce Springsteen. You might wonder why that would come 
up in this case. Judge Alito is from New Jersey, as is Bruce 
Springsteen. He said to me in his answer:

       I am--to some degree.

  That is a qualified answer, but I took it and went on. The reason I 
raised it was this: Many people have asked Bruce Springsteen, Where do 
you come up with the stories in your songs? How do you talk about all 
these people who are struggling in America? He answered:

       I have a familiarity with the crushing hand of fate.

  The reason I asked that question was to go to some specific cases 
Judge Alito had decided and ask him about the crushing hand of fate. 
Senator Kennedy just mentioned one of them.
  An African American, charged with murder, facing the possibility of 
the death penalty, argues on appeal that his verdict was unfair because 
the prosecutor went out of his way to exclude every African American 
from the jury so that it was an all-White jury judging a Black man. He 
presented his evidence that in three other murder trials, one involving 
an African American, the other two White defendants, the prosecutor had 
done the same thing--kept the Blacks off the jury systematically. The 
Third Circuit Court on which Judge Alito served said that defendant was 
right; that is not something we accept in America; we are going to send 
this case back to be retried by a jury of this defendant's peers. They 
saw the importance of a justice system that is blind to race.
  But not Judge Alito. He said establishing the fact that four murder 
trials came before the same prosecutor with all White juries is like 
establishing that five out of six of the last Presidents were left 
handed. I thought that was a rather casual dismissal of an important 
case and an important principle. When I asked Judge Alito about it, he 
seemed more committed to the principles of statistics than the 
principles of racial justice which the majority in his court applied.
  Another case involved an individual who was the subject of harassment 
in the workplace. This person had been assaulted by fellow employees. 
He was a mentally retarded individual. He was so brutally assaulted in 
a physical manner that I did not read into the record of the hearing, 
nor will I today, the details. Trust me, they are gruesome and grisly. 
His case was dismissed by a trial court, and it came before Judge Alito 
to decide whether to give him a chance to take his case to a jury. 
Judge Alito said no, the man should not have a day in court. Why? Not 
because he didn't have a case to argue, but Judge Alito believed that 
his attorney had written a poorly prepared legal document before his 
court. Was there justice in that decision? Did the crushing hand of 
fate come down on an individual who was looking for a day in court who 
happened to have an attorney without the appropriate skills?
  When it came to health and safety questions involving coal mines, a 
topic we see in the news every day, Judge Alito was the sole dissenter 
in a case as to whether a coal mining operation would be subject to 
Federal mine and safety inspection. He argued in the committee hearing 
that he just read the law a little differently.

  What we find in all these cases is a consistent pattern. Time and 
again, it is the poor person, the dispossessed person, the one who is 
powerless who has finally made it to his court, who is shown the door. 
That troubles me. It troubles me because what we are looking for in a 
Justice is wisdom.
  If you are a student of the Bible--and I am not--you know this: The 
person who embodies the virtue of wisdom was a man named Solomon. In 
the Bible, the Lord came to Solomon and said: I will give you a gift. 
What gift would you have? And Solomon said: I want a caring heart. He 
didn't ask for riches or knowledge; he asked for a caring heart. This 
wise man wanted that as part of who he was.
  That is what I looked for with Judge Alito. Sadly, in case after 
case, I couldn't find it. I worry that if Judge Alito goes to the 
Highest Court in the land for a lifetime appointment, he will tip the 
balance of the scales of justice. He will tip the balance against 
protecting our basic privacy and personal freedoms. He will tip the 
balance in favor of Presidential power, even when it violates the law. 
He will tip the balance when it comes to recognizing the rights of the 
powerful over the powerless. He will tip the balance on workers' rights 
and civil rights and human rights and women's rights and protecting the 
environment. That is why I cannot support his nomination.
  I call on the President to send to us a conservative like Sandra Day 
O'Connor. She was a woman who demonstrated, in a lifetime of service, 
that she understands the values of this country and committed her life 
to protecting them. I am sorry that Judge Sam Alito does not live up to 
her standard.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Texas.
  Mr. CORNYN. Madam President, before I make the remarks I have 
prepared about Judge Alito, I extend my gratitude to members of my 
staff who, as a member of the Judiciary Committee, have been so 
instrumental in my ability to prepare for this confirmation process.
  In particular, I note the contribution of Brian Fitzpatrick, who has 
been a member of my staff and worked on both the Roberts and Alito 
Supreme Court nominations. He is leaving next week after Judge Alito is 
confirmed to the U.S. Supreme Court, as he will be, to go teach at NYU, 
New York University. NYU's gain is our loss. I certainly wish Brian 
well in his new career. I put him on notice that the next vacancy that 
President Bush gets to the U.S. Supreme Court, I am going to be calling 
him and asking him to come back for another gig.
  Madam President, I rise today to explain why I intend to vote to 
confirm Judge Alito to the U.S. Supreme Court. Those who were just 
listening to the eloquent words of the distinguished Democratic whip 
might wonder how in the world anybody could ever vote for this nominee; 
how Judge Alito survived for the last 15 years serving as a member of 
the circuit court of appeals in Philadelphia without getting impeached; 
how in the world his former law clerks, the people who have worked most 
closely with the judge, and who happened to be Democrats and have a 
different political view, a different world view, a different agenda, 
could come in as they did before the Senate Judiciary Committee and 
extol the qualifications and temperament of this fine public servant 
and this fine human being; or how, possibly, in listening to the 
criticisms we have heard of this nominee and of the President for 
having the temerity to nominate him, you can reconcile that impression 
with the fact that we heard on the Senate Judiciary Committee virtually 
all of the current and former members of the Third Circuit Court of 
Appeals who have worked closely with Judge Alito day in and day out, 
who to a person

[[Page S54]]

came in and said this is exactly the kind of judge we would want and we 
think the American people would have a right to expect, and urged us to 
favorably vote on his confirmation.
  It is clear to me, though, during the course of the confirmation 
process, that the reason I support Judge Alito his philosophy of 
judicial restraint is exactly the reason his detractors oppose his 
nomination. The sad fact is that there are some in this country who 
don't want judges who respect the legislative choices made by the 
American people. Rather, they want judges who will substitute their own 
personal ideological or political agenda for those choices made in the 
Halls of Congress by the elected representatives of the American 
people.
  There are some in this country who have views that are so out of the 
mainstream that they don't have any chance to persuade the American 
people to accept them. For example, there are some who want to end 
traditional marriage between one man and one woman. There are some who 
want to continue the barbaric practice of partial-birth abortion. Some 
even want to abolish the Pledge of Allegiance. But they know if they 
brought some of those issues to the floor of the Senate and to the 
floor of the U.S. House of Representatives, these are not the views 
that would be expressed through the elected representatives of the 
American people because the American people themselves don't agree with 
these far left, out-of-the-mainstream views.
  For these advocates of these out-of-the-mainstream views, the only 
way they will ever see their views enacted into law is to circumvent 
the American people and pack the courts with judges who will impose 
their agenda on the American people. They believe in judicial activism 
because judicial activism is all they have.
  Of course, Judge Alito's detractors will never say they believe in 
judicial activism. They know the American people don't favor it. They 
know the American people believe fervently in democracy and self-
determination, and they don't want unelected judges making the laws of 
this country. So Judge Alito's detractors are forced to oppose his 
nomination on the basis of certain pretexts. They are forced to grasp 
for any means they can to try to defeat his nomination. As one of Judge 
Alito's detractors put it, ``you name it, we will do it'' to defeat 
Judge Alito.
  One of their favorite pretexts--and we have heard some of it this 
morning--is that Judge Alito embraces this view of an omnipotent 
executive branch; that he believes the President's powers are without 
limitation. This pretext is a complete canard. It is based on the claim 
that Judge Alito once endorsed an academic theory called the unitary 
executive. But a unitary executive is not the same as an all-powerful 
executive. It is, after all, a theory that says there are three coequal 
branches of Government--executive, legislative, and judicial. And each 
official within that each branch is accountable to the people for the 
power they exercise and is delegated to them by the Constitution and 
laws of the country.
  But to show how misplaced this criticism is, according to Judge 
Alito's opponents, the father of the unitary executive theory is 
Justice Scalia on the U.S. Supreme Court. The problem they have is that 
the facts show that Justice Scalia does not favor an all-powerful 
President. No one does. We know this in particular from the decision he 
wrote in the Hamdi case 2 years ago. This was a case where the 
detention status of some of the terrorists who are kept at Guantanamo 
Bay was being reviewed by the Supreme Court. In that case, in the 
opinion written by Justice Sandra Day O'Connor, the Supreme Court held 
that the President had the power as Commander in Chief, during a time 
of war, to indefinitely detain even American citizens who were 
suspected of terrorism without filing criminal charges against them. 
Justice Scalia, perhaps one of the most conservative members of the 
Court, dissented from that, saying the President had no such power; 
that it was unconstitutional for him to do so. His views did not carry 
the day, but indeed of all of the Justices, Justice Scalia, the father 
of this unitary executive theory, was least deferential to the powers 
of the President. Judge Alito doesn't believe the President's powers 
are unlimited any more than Justice Scalia does.
  Now, one of the witnesses we had during the course of the hearing--I 
mentioned several former and current members of the Third Circuit Court 
of Appeals. One of them who testified interestingly and relevant to the 
point was Judge John Gibbons who has since left the judiciary and has a 
law practice where he represents the detainees at Guantanamo Bay. He 
said:

       The committee members should not think for a moment that I 
     support Judge Alito's nomination because I am a dedicated 
     defender of the Bush administration. On the contrary, I and 
     my firm have been litigating with that administration over 
     its treatment of detainees held at Guantanamo Bay.

  He said:

       I am confident that as an able legal scholar and a fair-
     minded justice, Judge Alito will give the arguments, legal 
     and factual, that may be presented on behalf of our clients 
     careful and thoughtful consideration, without any 
     predisposition in favor of the position of the executive 
     branch.

  That is another example of how those who know this man best simply 
believe that he will be a fair-minded judge and he will not be unduly 
deferential to the President, the executive branch, or anyone else for 
that matter, and that he will faithfully discharge his responsibilities 
under the Constitution and laws.
  Another favorite pretext of the opponents of this nomination is that 
as a replacement for Justice O'Connor, this nominee, Judge Alito, will 
shift the Supreme Court radically to the right. But in order to believe 
this or support this supposed theory, they have to radically rewrite 
history. It requires them to paint Justice O'Connor as some sort of 
liberal.
  But the truth is far different. For example, according to the Harvard 
Law Review, over the last decade, the Justice on the Court with whom 
Justice O'Connor agreed most frequently--over 80 percent of the time--
was former Chief Justice William Rehnquist.
  I think we will all acknowledge that Chief Justice Rehnquist was no 
liberal. Yet Sandra Day O'Connor and Chief Justice William Rehnquist 
agreed with each other more than 80 percent of the time.
  Indeed, in subject matter after subject matter, Justice O'Connor sees 
eye to eye with what Judge Alito has demonstrated on the bench and said 
how he will approach his job on the Supreme Court. Both believe in 
federalism, that Congress is not above the law and its powers are not 
unlimited but, rather, they are, under the Constitution, limited and 
enumerated, and that some powers are still reserved to the States and 
the people.
  That is not an out-of-the-mainstream view. Justice O'Connor shares 
that view. The Founders of this country shared that view, and I believe 
the American people believe that the people have retained some rights 
and the States have retained some rights against an all-powerful 
Federal Government. Judge Alito happens to believe that as well.
  Justice O'Connor and Judge Alito both struck down some affirmative 
action programs that resulted in reverse discrimination based on strict 
numerical quotas. And yes, both have even criticized Roe v. Wade. The 
truth is that if Justice O'Connor were the nominee today, she would 
meet with just as much opposition as Judge Alito has. The confirmation 
process has simply become a no-win situation.
  Another favorite pretext of the opponents of this nominee is that he 
is somehow biased against the mythical little guy. That he always rules 
against the little guy in favor of the big guy. The basis for this 
pretext is a litany of cases his opponents cite where Judge Alito has 
sided against a sympathetic plaintiff. This pretext suffers from a 
number of flaws.
  The first flaw is a selective reading of Judge Alito's record. Judge 
Alito has been a judge for 15 years. He has decided plenty of cases in 
favor of consumers, medical malpractice victims, employment 
discrimination victims, and other plaintiffs. In other words, he has 
decided plenty of cases for the little guy. But his opponents ignore 
all of these cases and focus only on the cases where he has decided 
against a sympathetic plaintiff. Anyone who has looked at his entire 
record has found the claim of bias to be completely without merit, 
indeed, including the Washington Post. The Washington Post did an 
analysis of

[[Page S55]]

Judge Alito's entire record and found he is no more likely than the 
average appeals court judge to rule for businesses, for example, over 
individuals. And, yes, I said the Washington Post and not the Wall 
Street Journal.
  Moreover, any notion that Judge Alito has a special bias against 
victims of racial discrimination is as false as it is demeaning. The 
people who know Judge Alito best testified at length that he applies 
the law in a fair and evenhanded manner without fear or favor. Indeed, 
perhaps most instructive is the evidence from the late Judge Leon 
Higginbotham. He has passed on, but his comments are part of the 
record.
  Judge Higginbotham was something of a civil rights hero, as many 
people know. He was president of the Philadelphia chapter of the NAACP, 
was awarded the Presidential Medal of Freedom, and was appointed to the 
U.S. Civil Rights Commission by President Clinton. This is what he had 
to say about Judge Alito:

       Sam Alito is my favorite judge to sit with on this court. 
     He is a wonderful judge and a terrific human being. Sam Alito 
     is my kind of conservative. He is intellectually honest. He 
     doesn't have an agenda. He is not an ideologue.

  Judge Higginbotham, a hero to the civil rights movement in this 
country, would never have made such glowing remarks if he believed for 
an instant that Sam Alito was guilty of some of the false charges being 
made against him.
  More fundamentally, however, the claims that Judge Alito is biased 
against the little guy are based on a misconception of how judges are 
supposed to behave. Judges are not supposed to decide cases on 
sympathy. Just as we ask jurors when they come into our courtrooms all 
across this great country to put aside their sympathies, biases, and 
prejudices and decide the cases based on the evidence they hear in 
court and the law as given to them by the judges--and they do it, day 
in and day out, faithfully and to really an exceptional degree--of 
course, we expect judges not to decide cases on sympathy. The kind of 
arguments we are hearing suggest that judges ought to pick out the 
party they like best, the most sympathetic, and rule in their favor 
without regard to the facts and without regard to the law.
  One would not know by listening to some of Judge Alito's opponents 
that he is a fairminded judge. In the America of his opponents, no 
plaintiff ever loses a case; no entrepreneur ever wins no matter how 
frivolous the claim of employment discrimination; police departments 
never win a case no matter how desperate the claim of a criminal 
defendant; Government agencies, including the Environmental Protection 
Agency and the Social Security Administration, could never win a case 
no matter how outlandish the request for Government benefits. In their 
utopia, the economy is wrecked by frivolous litigation, criminals run 
free on technicalities, and the public Treasury is plundered.
  This admittedly, and thankfully, is not Judge Alito's America. He 
believes that no one is above the law--not the President, not the 
Congress, not even the little guy. That is why Lady Justice has always 
been blindfolded.
  America is a nation of laws, not of men and women, not of little 
guys, not of big guys, but a nation of laws. It should not matter who 
you are, how you pronounce your last name, what your country of origin 
is, your race, or any other extraneous consideration when you enter the 
halls of justice. We are all guaranteed, under the words that are 
etched over the marble leading into the Supreme Court, ``equal justice 
under the law.''
  Everything in his record shows that these extraneous considerations 
don't matter to Judge Alito. This is why people of good faith from all 
across the political spectrum have testified and given testimonials in 
support of his work as a judge and on behalf of his nomination to the 
Supreme Court. This is also why I believe he will be confirmed by the 
Senate.
  Madam President, I could not be happier to throw my support behind 
this good man, this good judge, and this public servant.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Madam President, I rise to echo and add to the remarks of 
the Senator from Texas, Mr. Cornyn. On this first day of debate, I rise 
to express my strong support for the confirmation of Judge Samuel Alito 
to be a Justice on the Supreme Court of the United States of America.
  There has been much discussion, advertising on the radio, in 
newspapers, and on television. There has been commentary about Judge 
Alito, and that is fine. That is the way it should be. Federal judges 
are appointed for life. This is the only time that the people's 
representatives--those of us in the Senate--have an opportunity to 
scrutinize an individual who has been nominated for the Federal bench 
in a lifetime appointment. So that scrutiny is appropriate. I am 
hopeful that this scrutiny and this discussion will be of a civil 
nature. Sometimes it has not been, over the last several years in this 
body.
  I do believe, though, that all nominees who are reported out of a 
committee, whether the Judiciary Committee--for that matter, any 
committee--Foreign Relations, or other committees, ought to be accorded 
the fairness of an up-or-down vote at the end of this gauntlet. If you 
are going to make someone go through all of this, have all these slings 
and arrows, some relevant, some tangential, and some completely 
irrelevant. If they are going to go through all of this, they ought to 
be accorded the fairness of an up-or-down vote.
  I believe if the approaches taken over the last several years for 
certain nominees continue, as a threat or as an actual practical 
impediment to someone receiving a vote, it will make it much more 
difficult for any President to be able to recruit from the private 
sector qualified men and women who have the experience, the 
personality, the insight, the leadership, and the ability to serve our 
Government. That might be in a variety of different fields. That is why 
I think it is important that we as Senators change and stop this 
practice of holding up nominees and not according them the fairness of 
an up-or-down vote.
  With John Roberts to be Chief Justice of the Supreme Court, we 
allowed a lot of commentary and a vote. I hope the same will occur for 
Judge Alito.
  There have been indications from those on the other side of the aisle 
that they are reserving the right to filibuster, or require a 60-vote 
majority to have a vote on the confirmation of Judge Alito. My reaction 
is if they move forward with such a filibuster, ``make my day.'' We 
will enjoy pulling the constitutional trigger to allow Judge Alito a 
fair or up-or-down vote.
  I don't think it is too much to ask Senators to come here when the 
nomination is called forth to get off these cushy seats, stand up 
straight, and vote yes or vote no. That is a matter of fairness. It is 
also our constitutional responsibility in advise and consent.
  When analyzing or determining whether I am going to support a 
particular judicial nominee, what matters most to me for these lifetime 
appointments is trying to discern that nominee's judicial philosophy. 
Trying to determine whether they believe what they are saying as to 
what they think the proper role of a judge will be.
  We have seen through the years that certain individuals get appointed 
for a lifetime appointment, and they end up being completely different 
than what they have said in the hearings, in interviews with the 
President, or interviews with the Senators. Past performance is, in my 
view, usually a reliable indicator of future action.
  In my view, regarding this particular nomination of Judge Alito, the 
best way to determine what kind of Justice Samuel Alito will be on the 
Supreme Court is to look at his 15 years of services as a circuit court 
judge. In his years on the bench, he has embodied the philosophy I like 
to see in judges. I believe the proper role of a judge is to apply the 
law, not invent the law. Judges are to uphold the Constitution, not 
amend it by judicial decree.
  The proper role of a judge is to protect and indeed defend our God-
given rights, not to create or deny rights out of thin air. They are 
not to act as a legislator.
  In Judge Alito's case, no matter the issue, whether or not they are 
politically charged issues in the realm of electoral politics, he 
seems, from my reading and review, to have followed a

[[Page S56]]

consistent, thoughtful, deliberative process to decide cases.
  This is what judges are supposed to do. They are not supposed to be 
issuing cases based on predetermined ideology, or an eye toward future 
confirmation hearings. They should faithfully apply the law. They ought 
to apply the evidence before the court to the law in that particular 
case before the court.
  As he stated in his opening statement before the Judiciary Committee, 
Judge Alito recognized a judge's only obligation is to the rule of law. 
And in every single case, the judge has to do what the law requires. In 
my opinion, that is the essence of the fair adjudication of disputes. 
There is credibility, there is reliability, and there is integrity in 
that approach. Judge Alito has exemplary, scholarly, and experienced 
qualifications--and especially the proper judicial philosophy--to serve 
honorably as a Justice on the Supreme Court of the United States.
  In Judge Alito's 15 years on the Third Circuit Court of Appeals, he 
has demonstrated his understanding of the proper role of a judge in our 
constitutional system of Government, and will apply the law fairly and 
equally.
  Judge Alito, in my view, genuinely respects the rule of law in our 
representative democracy. In recognition of Judge Alito's outstanding 
service on the Federal bench, the American Bar Association has given 
him their highest rating of well qualified. The American Bar 
Association's criteria for their evaluation are integrity, 
professionalism, competence, and judicial temperament.
  Let me share with my colleagues what Stephen Tober, the chairman of 
the American Bar Association Standing Committee, had to say.
  He said:

       On The Federal Judiciary: ``Needless to say, to merit an 
     evaluation of well-qualified, the nominee must possess 
     professional qualifications and achievements of the highest 
     standing. . . . We are ultimately persuaded that Judge Alito 
     has, throughout his 15 years on the Federal Bench, 
     established a record of both proper judicial conduct and 
     even-handed application in seeking to do what is 
     fundamentally fair. . . . His integrity, his professional 
     competence and his judicial temperament are, indeed, found to 
     be of the highest standard.''

  That came from Chairman Tober on January 12 of this year.
  Judge Alito also provided to all of us an indication of his 
temperament and qualifications during his confirmation hearings, which 
went on for several days and many hours of hearings. He answered over 
700 questions, explaining his thought processes, judicial philosophy, 
and I think very credibly dispelling some of the misstatements about 
his record of service.
  Judge Alito was even forced to defend the statements of others when 
he was questioned about the Concerned Alumni of Princeton. That is a 
group that apparently Judge Alito joined when he was a member of the 
Armed Services because he didn't agree with the way the military was 
treated on the Princeton campus. As a result, some of the Democratic 
Senators tried to diminish Judge Alito. The Wall Street Journal had an 
editorial on January 12 of this year where they said they are trying to 
find him guilty by ``ancient association.'' Let me quote from the Wall 
Street Journal editorial page of that date.

       They can't touch him on credentials or his mastery of 
     jurisprudence, so they're trying to get him on guilt by 
     ancient association. Senators Ted Kennedy and Chuck Schumer 
     did their best yesterday to imply that Judge Alito was racist 
     and sexist by linking the nominee with the views of some 
     members of Concerned Alumni of Princeton, which back in the 
     1970s and 1980s took issue with university policies on 
     coeducation and affirmative action.

  Of course, Judge Alito said he didn't agree with any of that. He was 
concerned about fair access for our military recruiters on campus.
  The closing lines in the Wall Street Journal editorial stated:

       As for Judge Alito's prospects, if this irrelevant arcania 
     is the most his opponents have, he can start measuring his 
     new judicial robes.

  Another comment made by some members of the Judiciary Committee is 
they don't have the assurance that the judge firmly believes in 
precedent. They criticize him for apparently having an open mind.
  What some Senators choose to do is not recognize that there are times 
where precedent should be overturned such as the Court overruling 
Plessy v. Ferguson and Korematsu v. United States.
  Also, as time changes and our country develops, the case law that 
comes before the Supreme Court also changes, to recognize the advances 
in technology and science.
  In Roe v. Wade, Justice Blackmun recognized that advancements in 
medical science will impact the trimester standard for when the State's 
interest in life begins.
  As constitutional jurisprudence moves forward, Judge Alito, with his 
understanding that stare decisis is not an ``inexorable command,'' 
makes a great deal of sense. We have seen that throughout the history 
of our country.
  There were some comments made during his confirmation process by the 
groups objecting to the nomination of Judge Alito that they disagree 
with the conclusion he reached after an independent review of the facts 
of a particular case. While these groups, and all Americans, have an 
important role in a free society and deserve to state their view, they 
also in some cases are distorting the proper role of a judge. On the 
bench, Judge Alito has not been a partisan activist. To the contrary, 
there have been no substantive claims that any litigant before Judge 
Alito did not have a fair and impartial hearing of their case. Factors 
whether a President should be overturned, or modified--there are many 
factors, such as the nature of the original decision, whether that 
precedent has been changed, or there is a desire on the part of the 
people who are the owners of the Government to change it. Another 
factor could be whether the precedent has been undermined by subsequent 
decisions or new facts or new laws.

  Court decisions have been changed over the years because they have 
proven to be unworkable. The Court has overruled many decisions. Of 
course, Brown v. Board of Education overruling Plessy v. Ferguson is 
probably the prime example and illustrates that no precedent is 
untouchable. The Court should not be required to stick to bad law--in 
that case, separate but equal.
  Judges do not run for office. They cannot and should not make 
campaign promises that are, in fact, prohibited. They are prohibited 
from doing so by the Code of Judicial Conduct of the American Bar 
Association. They also should not be judged on the basis of statements 
they made when working for elected public servants in the legislative 
or executive branches of Government. They should be judged by their 
record of service.
  Again, with Judge Alito, we see a person with 15 years of judicial 
experience. We have seen, in too many cases, with the lifetime-
appointed Federal judges, a complete disregard for the will of the 
people and their elected representatives who are supposed to be making 
the laws reflecting the will and the values of the people in particular 
States or maybe the Nation in our representative democracy.
  People wonder: Why do we care about the activist judges? Why does 
judicial philosophy matter? I will go through recent decisions by 
activist judges who forget their role is to apply the law, not invent 
the law.
  In California, certain counties thought it was a good idea to have 
children in schools say the Pledge of Allegiance. When I was Governor 
of Virginia, we passed such a law. But someone out there in the Ninth 
Circuit thought, no, we cannot have the Pledge of Allegiance in public 
schools in California because of the words ``under God.'' That is an 
example of judges completely ignoring the will of the people in those 
regions of California and striking down the Pledge of Allegiance 
because of the words ``under God.'' This is a ludicrous decision.
  We also see judges ignoring the will of the people in a variety of 
other ways. They struck down some laws in Virginia within the last 2 
years because of international standards. Friends, colleagues, we make 
the laws. We represent the people of this country. It is our 
Constitution. It is not the U.N. constitution or various 
conglomerations or what confederations of other countries may think our 
laws should be. The laws are made by the people of this country.
  A continuing debate has to do with parental notification. People in 
Virginia, when I was Governor, and other

[[Page S57]]

States thought, if an unwed minor daughter is going through the 
surgery, the trauma of an abortion, and is 17 years old or younger, a 
parent ought to be involved. After all, if a child is going to get a 
tattoo or their ears pierced, they need parental consent. So the laws 
are passed by various States, there is one in contention dealing with 
New Hampshire. Federal judges, ignoring the will of the people in 
various States, strike down and allow those laws to be overturned.
  Last year, in the summer, the Supreme Court got involved in a case 
that created a great deal of concern because the city of New London, 
CT, the city council, acting akin to commissars, decided they were 
going to take people's homes, the American dream, and condemn those 
homes, take them not for a school, not for a road or any such public 
purpose, but rather they wanted to derive more tax revenue off of that 
property. This is part of the Bill of Rights, the fifth amendment. The 
Supreme Court, in a very narrow decision, allowed New London, CT, in 
the Kelo case, to take away people's homes. This is an example of 
Supreme Court Justices, Federal judges, selected and serving for life, 
amending our Bill of Rights, the Constitution--the Bill of Rights is 
the most important part of all the Constitution--by judicial decree. 
That is wrong. This is why it is important we have men and women 
serving on the Federal bench that understand their role is to apply the 
law and not take away our God-given rights enshrined in the Bill of 
Rights and in our Constitution.
  I met with Judge Alito in my office and discussed with him my 
concerns about this troubling trend of judges who ignore the will of 
the people and start inventing laws themselves. I was actually very 
encouraged by his scholarship, his knowledge, and what I feel was a 
very genuine, sincere understanding that we need a respectful, 
restrained judiciary. And also his ability to cite examples from his 
very distinguished career of cases where he was presented with 
decisions where he put aside his personal view and followed the law.
  I asked: What do you do if you do not like a law? He said: You have 
to apply the law, but it may be appropriate after the decision is made, 
for a judge or panel of judges to communicate with the legislature and 
advise them they may wish to revisit a certain issue. However, when it 
came to issuing a decision, he felt very strongly that judges would 
follow their duty and should incorporate the law as written.
  Another quality of Judge Alito is his deep knowledge of the law and 
his sincere and deep commitment of being a student of our Constitution. 
When I asked Judge Alito about his role, his view of the role of the 
State to pass laws, he gave a thoughtful answer. He had a considered 
analysis of the dormant commerce clause. It was similar to being back 
in law school, learning some of these things again. His answer shows 
most importantly a deep understanding not only of the Constitution but 
also a commitment to the fundamental principles upon which this country 
was founded, that Government power should remain closest to the people.
  In our system of government, it is essential the people in the States 
be free to experiment in public policy and that Washington, the Federal 
Government, should not dictate policy through the use of Federal funds 
in areas reserved to the States or to the people.
  Opponents of this nomination have referenced half a dozen cases out 
of the more than 1,500 he has been involved in while serving on the 
Third Circuit Court of Appeals. The fact is, no matter how Judge Alito 
answered the questions posed to him, his detractors would continue to 
oppose his nomination. On the particularly important charge that he 
favors an expansive view of the Executive power, Judge Alito reiterated 
his view that no branch of Government has more power and that no person 
in this country, no matter how high or powerful, is above the law; no 
person in this country is beneath the law.
  Aside from this very unambiguous answer, one can point to a litany of 
cases where Judge Alito came down against the authority of the 
Government, or for the little guy as some people like to call it.
  Another criticism of this nomination has been that Judge Alito, if 
confirmed, will replace a moderate on the Court, retiring Justice 
Sandra Day O'Connor. Sandra Day O'Connor by the way, in Kelo v. New 
London, CT, ``commissar taking of homes'' case, ruled on the side of 
the Constitution, so there will be no change there. We will need to get 
another Justice if the States are not able to rein in such takings of 
homes.
  Justice O'Connor is a person for whom I have a great deal of respect. 
She served with great distinction on the Court for many years and has a 
compelling, interesting life story. The fact that President Reagan 
appointed her as the first woman on the Supreme Court of the United 
States as a pioneer in so many ways has been an inspiration to many 
young people, regardless of gender. Particularly many young women who 
think, There is a future for me in the law. We have seen a great 
increase in the number of young women interested in studying in our law 
schools.
  They will say that we have to have someone who has the exact same 
philosophy as whoever was being replaced. We ought to remember the 
Founders, in drafting article III of the Constitution that creates the 
Supreme Court, provides no requirement there must be an ideological 
balance on the Court. For over 200 years, the Senate has respected the 
prerogative of the President and performed their advice-and-consent 
function and ultimately voted for qualified judges, despite their 
political orientation.
  So, therefore, let me conclude in this statement to my colleagues 
that if you look at Judge Alito's 15 years of exemplary judicial 
experience, his incredible, well-reasoned answers in the confirmation 
hearings. If you look at this individual, who has the qualifications, 
the judicial philosophy, the knowledge of the law, the respect for the 
law and, indeed, the respect for the people, the owners of this 
Government, and those of us in the Senate and the House of 
Representatives, and other bodies, Judge Alito is a perfect person to 
be an Associate Justice on the Supreme Court of the United States. I 
respectfully urge my colleagues to vote affirmatively for Judge Alito 
to serve this country on the Supreme Court.
  I thank you for your attention, Madam President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Madam President, I also rise today to express my 
support for the confirmation of Judge Samuel Alito as an Associate 
Justice of the U.S. Supreme Court.
  The Constitution demands that the President's nominees to the Supreme 
Court receive the advice and consent of a majority of Senators. The 
standard to be used is not spelled out in the Constitution, but 200 
years of tradition offers a guide. That guide, that standard, applied 
to nominees throughout our history, is the very same standard we should 
apply today to Judge Samuel Alito. By that standard, Judge Alito is 
well qualified.
  Since graduating from Yale Law School in 1975, Judge Alito has had an 
exemplary legal career, serving as U.S. attorney, Assistant U.S. 
Solicitor General, and 15 years as a member of the Third Circuit Court 
of Appeals. During that lengthy tenure in court, we have had the 
benefit of seeing Judge Alito's commitment to the rule of law and his 
commitment to an impartial review of the law and the facts of any given 
case.
  As Alexander Hamilton noted in Federalist No. 78, if the courts are 
to be truly independent, judges cannot substitute their own preferences 
to the ``constitutional intentions of the [legislative branch].''
  Judge Alito clearly expressed during his confirmation hearings, and 
his judicial career attests to the fact, that he would not impose his 
personal views over the demands of the law and precedent. I find that 
refreshing, I find that encouraging, and I find that a strong reason 
for supporting the nomination of Judge Alito.
  I take great comfort in the fact that Judge Alito has received the 
unanimous approval of the American Bar Association's committee that 
reviews judicial candidates. This is a committee that is greatly 
respected by the legal profession, as well as the general public, for 
their impartiality and demand and insistence on and careful watch over 
a quality judiciary. The American

[[Page S58]]

Bar Association's committee that reviews judicial candidates is 
interested and committed to a quality judiciary.
  Judge Alito not only received their unanimous approval, but he 
received their most qualified rating. That means each and every one of 
the members of that committee gave Judge Alito their highest, most 
qualified rating. This should weigh heavily in favor of the 
confirmation of Judge Alito.
  What we know--after the confirmation hearings, after extensive 
interaction with Members of the Senate, after 3 days of testimony 
before the Judiciary Committee, and responses to a wide range of 
written questions by Senators after the hearings--is that Judge Alito 
is a humble and dispassionate judge, with a deep understanding and 
modest view of his judicial role in the governance of our Nation and 
respect for the limitations of precedent.
  He has an awareness of the dangers of looking to foreign 
jurisdictions for guidance in shaping the laws of our land and a 
commitment to respecting the proper role of the courts in the 
interpretation of the law.
  I am persuaded that Judge Alito will look to establish precedents, be 
respectful of the doctrine of stare decisis, and will use the 
Constitution and the law as his guideposts as opposed to any personal 
whim or political agenda.
  There are those who would say they are troubled by what they 
perceive, that Judge Alito would not side with the ``little guy'' when 
deciding cases. Let my tell you, I am someone who, for 25 years, took 
clients' matters to court, more often than not representing the little 
guy. But even with that experience, I am more committed than ever to 
the belief I had when I took a client to court, whether a little guy or 
a big guy. My hope, my prayer, was that my client would find an 
impartial judge.

  It is unthinkable to me to suggest this standard today should be that 
we should look for whether a judge will purposely lean in favor of one 
side of the litigation or another before selecting who our judges ought 
to be. Our judges must be impartial. Our judges must not be there for 
the little guy or for the big guy. Judges need to take the facts and 
the law, interpret them and utilize them to reach a fair and just 
verdict, as dictated by the laws of our Nation, not because they favor 
a little guy, not because they favor a big guy. If the law and the 
facts happen to be on the side of the little guy, the little guy should 
prevail. If the law and the facts happen to be on the side of the big 
guy, then our system of justice demands that the big guy should 
prevail.
  I love the analogy that Chief Justice Roberts used during the course 
of his confirmation. In selecting a Justice to the Supreme Court, he 
said we are looking for an umpire. We are not looking for a pitcher. We 
are not looking for a batter. We are looking for the umpire--the guy 
who will call the balls and the strikes fairly and impartially to all 
litigants before the Court.
  Our long-held traditions in our system of justice demand fairness, 
demand integrity, demand judicial temperament. Judge Alito fulfills all 
of those requirements amply, and I am satisfied he will make an 
exceptional Justice of the Supreme Court.
  Judge Alito has made it abundantly clear that his personal views have 
absolutely no place in performing his judicial role in our 
constitutional structure. Rather, the Constitution, statutes, and 
controlling prior decisions, as applied to the facts of the case at 
hand, are the sole basis for his judicial determinations. I find that, 
as it should be, the correct standard to apply to a judicial nominee 
for determining his fitness for this high office.
  At the end of the day, we know that elections have consequences. The 
fact that the voters have placed President Bush in the office of 
President now for a second term has also been an indication that 
President Bush deserves and should be allowed to have his pick for the 
Court.
  It is our tradition that Presidents nominate, select, and fill 
vacancies to the Court, while the Senate's role is one of advice and 
consent. We simply do not have the prerogative of deciding who it is we 
would prefer to see on the Court or who it is we might find more 
philosophically suitable to us or more to our liking. Our role as 
Senators is to provide the President with the advice and consent on the 
qualifications of those he seeks to put in this high office.
  I see an evolving new standard before us. I heard from the members of 
the Judiciary Committee who did not support this nominee the setting of 
a brand new standard, and it is no longer qualifications, but it is now 
whether they philosophically will judge this person to be the kind of 
person they would want based on their political philosophy. That, I 
would suggest, is wrong. It has never been the standard applied or 
utilized by our Nation as we have sought to confirm Justices to our 
Court for over 200 years. I would say it is absolutely wrong to begin 
that new standard and leave it unchallenged as we seek the confirmation 
of one more Justice to the Supreme Court.
  My advice and consent is that Judge Alito is one of the select few 
Hamilton had in mind as having the character, intelligence, and 
temperament to guard the liberties secured by our Constitution. I 
strongly urge my colleagues to support his nomination to the Supreme 
Court.
  Thank you, Madam President. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.