[Congressional Record Volume 152, Number 6 (Thursday, January 26, 2006)]
[Senate]
[Pages S145-S186]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Schedule

  Mr. DeMINT. Mr. President, today, we resume consideration of the 
nomination of Judge Alito to be an Associate Justice of the Supreme 
Court. The order from yesterday allows the Democrat side to begin 
debate this morning at 10 o'clock and speak for up to 1 hour. Then the 
majority will have the hour from 11 to 12, and we will continue 
alternating 1-hour blocks of time between the two sides throughout the 
day. Members should plan their schedules accordingly to use the 
allocated time to make their statements. We will continue to work 
toward a final time for a vote on the nomination.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The Chair will state that the time from 11 a.m. to 12 p.m. shall be 
under the control of the majority leader or his designee, with each 
hour rotating back and forth in the same manner after that time.
  The Senator is recognized.
  Mr. LEAHY. I thank the distinguished President pro tempore, my friend 
of over 30 years. The debate has worked out well by going back and 
forth, showing the usual comity here in the Senate.
  I began my discussion of Judge Alito's nomination for a lifetime 
appointment to the Nation's highest Court with the same issue I began 
my questions to Judge Alito and, before that, to now Chief Justice 
Roberts: That is the issue of checks and balances on Government power. 
Obviously, the answers given by Chief Justice Roberts I found 
satisfactory. I voted for him. The answers by Judge

[[Page S146]]

Alito, as I will explain further, I did not find satisfactory.
  It is important because we are at a pivotal point in our Nation's 
history. This is a time of unprecedented governmental intrusion into 
the lives of ordinary Americans. The President has attempted to justify 
secret warrantless wiretapping of Americans, the evasion of legal bans 
against torture, and the detention of American citizens without due 
process of law. The Bush administration is making extraordinary claims 
of essentially unlimited power. There are troubling signs that this 
nomination is part of that effort by the President and Vice President 
to uphold Presidential claims of unchecked power and to upset the 
careful balance of our system of government, a system of government 
that was so carefully crafted by the Framers in our national charter, 
the Constitution. I have said I do not believe that Judge Alito would 
be that kind of a careful check and balance against Presidential 
overreaching. Because of that, I said I would not support his 
nomination.
  I don't take this position lightly. There are nine members of the 
Supreme Court, seven of them nominated by Republican Presidents. I have 
voted for eight of those nine, but I will not for this one. I feel that 
the judge's record, his missed opportunities during the hearings to 
answer concerns about his record, leaves me to wonder whether he 
appreciates the role of the Supreme Court as a protector of Americans' 
fundamental rights and liberties. It is a test he failed. The Supreme 
Court has to be a source of justice. It has to be an institution where 
the Bill of Rights and human dignity are honored. It must be an 
institution dedicated to the mission embodied in the words etched in 
Vermont marble above the entrance to the Court where it says ``equal 
justice under the law.'' It must be an institution which carries on the 
spirit enshrined in our Constitution, refined following the Civil War, 
and realized further over the course of landmark decisions in Brown v. 
Board of Education and Baker v. Carr. Judge Alito's record and 
testimony demonstrate that he does not understand the vital role of the 
courts in implementing the constitutional guarantees of equal 
protection and equal dignity for all Americans.
  A stark example of his failing the test took place during his 
confirmation hearing when I asked him a question Senator Specter had 
asked then Justice Rehnquist at his hearing to become the Chief 
Justice. I know; I was at the hearing. The question was a basic one: 
whether the Supreme Court can be stripped of jurisdiction to protect 
fundamental constitutional rights. I asked Judge Alito whether the 
Supreme Court could be stripped of jurisdiction to hear first amendment 
cases involving freedom of the press or freedom of religion or freedom 
of speech. The First Amendment is probably the greatest part of our 
Bill of Rights. I told him Senator Specter had previously insisted on 
an answer from Justice Rehnquist and that Justice Rehnquist had 
answered that it would not be constitutional to strip the Court of its 
jurisdiction, its vital function to protect fundamental rights. Unlike 
the late Chief Justice, Judge Alito responded as though it were merely 
an academic question. He said that there are scholars on both sides. He 
refused to state his view. This is a basic and fundamental issue for 
anybody aspiring to be a member of the Supreme Court. Justice Rehnquist 
got it right. For that matter, Judge Bork got it right. Judge Alito got 
it wrong.
  When he failed to respond to my question, Senator Specter revisited 
it, but Judge Alito still failed the straightforward test. I asked the 
same question with respect to the fourth amendment, the fifth 
amendment, and the sixth amendment. Again, there was no answer. These 
are the constitutional amendments that guarantee our privacy rights, 
our protection against unreasonable searches and seizures, our right to 
due process, our right against self-incrimination, our protection 
against Government takings, and our right to public trial and to 
counsel. These are basic American rights that help to define us as a 
free people. They control the intrusiveness of Government power.
  Judge Alito has shown through his answers that he does not appreciate 
the constitutional role of the Supreme Court as the protector of 
America's fundamental rights. In fact, in our system of checks and 
balances, the Supreme Court has to be the ultimate defender of 
Americans' constitutional rights. Judge Alito's refusal to acknowledge 
that in his answers is more than deeply troubling; it is stunning. It 
is stunning that anybody up for a lifetime appointment to the Supreme 
Court of the United States would not answer such basic questions. 
Suppose if by legislative act we could remove the constitutional right 
to freedom of religion or free speech how quickly we could remove our 
freedoms as Americans. Again, Justice Rehnquist and Judge Bork had it 
right. Judge Alito had it wrong.
  I even gave him a concrete example. I asked whether in the early 
1950s, Congress could have stripped the courts, including the Supreme 
Court, of jurisdiction to hear cases involving racial segregation in 
schools. This historical hypothetical raised the question whether the 
Supreme Court could have been prevented from deciding Brown v. Board of 
Education and enforcing the equal protection clause of the Constitution 
and calling for an end to unconstitutional racial segregation. His 
answer was no better. He was clearly stumped.
  No Senator who truly cares about civil rights, equal rights, freedom 
of religion and speech and the press can have any confidence that Judge 
Alito understands the critical role of the Supreme Court in protecting 
those rights.
  I ask unanimous consent that letters from civil rights organizations 
in opposition to Judge Alito's nomination be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Washington Bureau, National Association for the 
           Advancement of Colored People,
                                      Washington, January 9, 2006.
     Re NAACP urges thorough review of Judge Samuel Alito's 
         troubling record on civil rights & civil liberties during 
         Judiciary Committee hearing

     Members,
     U.S. Senate, Committee on the Judiciary, Washington, DC.
       Dear Senator: As you are aware from earlier correspondence, 
     the NAACP is opposed to the nomination of Judge Samuel Alito 
     to the United States Supreme Court based on our thorough 
     review of his dismal record on upholding civil rights and 
     civil liberties protections. As such, we would urge you, as a 
     member of the Senate Judiciary Committee, to use your 
     position and your Constitutionally-mandated responsibility to 
     thoroughly review Judge Alito's record on civil rights and 
     civil liberties and to try to determine the extent to which 
     Judge Alito is likely to preserve the civil rights of 
     Americans if he is confirmed to our Nation's highest court.
       The Supreme Court is, in many cases, the last opportunity 
     for many Americans to assert their rights and ensure the 
     protection of their liberties. Many of the civil rights gains 
     that have been made over the past 50 years are a result of 
     Supreme Court rulings. Thus, the NAACP feels that it is of 
     the utmost importance that any nominee to the Court is clear 
     about his or her intentions to protect the civil rights gains 
     that have been made over the past 5 decades and have always 
     been promised to us by the US Constitution.
       Of specific concern to us from Judge Alito's past history 
     is:
       In a 1985 job application for a position with the Reagan 
     Administration, Judge Alito disagreed in writing with the 
     Warren Court's reapportionment decisions now known as ``one 
     man, one vote'', which are among the Court's most widely 
     accepted decisions on civil rights and equal representation. 
     The ``one man, one vote'' theory is also one of the basic 
     tenets of Voting Rights that the NAACP has fought for;
       In the 1993 case Grant v. Shalala Judge Alito ruled against 
     a class action alleging racial and other bias by an 
     Administrative Law Judge when determining Social Security 
     benefits, arguing that the Court of Appeals lacked the 
     authority to conduct a trial and make independent findings on 
     actions taken by an Administrative Law Judge for the Social 
     Security Agency. In a strongly worded dissent to the Alito 
     ruling, Judge Leon Higginbotham said that the decisions is 
     ``. . . effectively have courts take a back seat to 
     bureaucratic agencies in protecting constitutional liberties. 
     This . . . is a radical and unwise redefinition of the 
     relationship between federal courts and federal agencies.''
       In the 1997 case Bray v. Marriot Hotels, Judge Alito 
     strongly dissented from a Third Circuit ruling and made it 
     clear that he supports impossibly high barriers for victims 
     of discrimination to have their cases heard;
       In a separate 1997 case, Riley v. Taylor, Judge Alito held 
     that a prosecutor was not motivated by race in striking all 
     African Americans from the jury of a death-penalty case 
     involving an African American defendant. When the defendant 
     produced statistical evidence showing the prosecution 
     repeatedly

[[Page S147]]

     striking African Americans from juries, Judge Alito contended 
     that this was irrelevant and likened it to a study showing 
     that a disproportionate number of recent Presidents have been 
     left-handed.
       In a 2004 case, Doe v. Grady, Judge Alito dissented from a 
     ruling against police officers who had strip-searched a woman 
     and her 10-year-old daughter while executing a search warrant 
     authorizing the search of her husband and their home.
       In short, during the course of the NAACP's investigation 
     into Judge Alito's past we became convinced that he is unfit 
     to sit on the United States Supreme Court because race and 
     gender are still a real problem in the United States; a fact 
     he appears to neither recognize nor appreciate.
       Accordingly, as I said earlier, I hope you will ask tough 
     questions, and demand thorough answers, during the hearings 
     that begin today on Judge Alito to try to determine even 
     further the extent to which he is, or is not, committed to 
     upholding and protecting the civil rights and civil liberties 
     of all Americans. On behalf of the NAACP, I would also like 
     to further express our strong opposition to the nomination 
     and our hope that you urge your Senate colleagues to oppose 
     and defeat Judge Samuel Alito's nomination. Please contact 
     me, or my Bureau Counsel, Crispian Kirk, at (202) 463-2940 
     soon to let me know your position on this matter, and to let 
     me know what I can do to work with you to ensure that 
     President Bush nominates, and the Senate confirms, moderate, 
     not extremist, judicial candidates to the federal bench.
           Sincerely,
                                                Hilary O. Shelton,
     Director.
                                  ____



                                        National Urban League,

                                                 January 10, 2006.
     Senate Committee on the Judiciary,
     Dirksen Senate Office Building,
     Washington, DC.
       Dear Senators: As you know, the National Urban League, Inc. 
     (``Urban League'') is the oldest community-based civil rights 
     organization in the country. Through our 102 professionally-
     staffed affiliates, located in 34 states and in the District 
     of Columbia, the Urban League works to ensure, in a non-
     partisan way, economic and social parity and full civil 
     rights for African-Americans and other people of color.
       Nominations to the United States Supreme Court are of 
     particular concern to the Urban League Movement because of 
     the high Court's tremendous power and impact on the issues 
     relevant to our mission of securing civil rights and economic 
     empowerment for African Americans. Since the President 
     nominated Judge Samuel Alito, Jr. to be an Associate Justice 
     of the United States Supreme Court, the National Urban League 
     has carefully and exhaustively reviewed his judicial record, 
     judicial philosophy, and professional qualifications. Our 
     study found that Judge Alito has a long and unambiguous 
     history of opposition to critical and established voting 
     rights protections, civil rights remedies and social justice 
     guarantees. Our examination also established that Judge Alito 
     frequently injects this philosophy into his judicial 
     decision-making, often in direct contravention of well-
     settled law. A copy of our report is attached.
       Based upon this review, it is our conclusion that Judge 
     Alito's stated opposition to reasonable and established civil 
     rights remedies and voting rights protections, and his 
     consistent record of injecting these views into his decision-
     making to the degree that it undermines basic civil rights 
     protections make him unsuitable for a seat on our nation's 
     highest court.
       Therefore, we urge the Senate Judiciary Committee to reject 
     the nomination of Judge Alito to be a Supreme Court Justice 
     and look forward to working with you to ensure the nomination 
     and confirmation of judges who will uphold fundamental civil 
     rights protections.
           Respectfully,
                                                   Marc H. Morial,
     President and CEO.
                                  ____


           NAACP Legal Defense Fund Opposes Alito Nomination


Report details hostility to civil rights and warns of tipped balance on 
                               High Court

       On December 15, 2005, the NAACP Legal Defense and 
     Educational Fund, Inc. (LDF) announced opposition to the 
     nomination of Samuel Alito, Jr. to the U.S. Supreme Court, 
     citing his hostility to strong enforcement of civil rights 
     laws. LDF warned that confirmation of Judge Alito would 
     threaten to shift significantly the Supreme Court's 
     jurisprudence relating to affirmative action, voting rights, 
     employment and criminal justice issues.
       At a press conference in Washington, D.C., LDF released a 
     10-page report detailing what it called an ``extreme'' 
     judicial approach by Judge Alito that would demonstrably 
     impact important future decisions of the High Court. The LDF 
     report cites cases in which Alito has attacked congressional 
     legislative authority in a manner that his colleagues viewed 
     as extreme. As a Justice Department lawyer, he argued to 
     uphold police use of deadly force and undermine the rights of 
     criminal defendants. In the area of affirmative action, LDF 
     highlighted ``troubling signals'' that Alito would tip the 
     delicate Court balance to unravel policies ``at the epicenter 
     of the modern struggle for racial equality.''
       ``We can predict with substantial certainty that Judge 
     Alito will very likely vote in a manner that, given the 
     current composition of the Court, will cause a substantial 
     shift in the Court's civil rights jurisprudence with 
     devastating effects,'' the LDF report cautioned.
       Judge Alito is scheduled to appear before the Senate 
     Judiciary Committee in early January for confirmation 
     hearings.
       LDF Director-Counsel and President Theodore M. Shaw 
     stressed that the organization does not relish opposing a 
     nomination to the Supreme Court and does so only when the 
     nominee's record is contrary to the goals of equal justice 
     that are the hallmark of LDF's work.
       With the announcement of Justice Sandra Day O'Connor's 
     retirement last summer, LDF called upon President Bush to 
     nominate a successor who is not ideologically rigid and 
     predictable, but who is fair and open-minded, and committed 
     to protecting advances in civil rights. LDF emphasized that 
     Justice O'Connor's successor should not be a mission-driven 
     ideologue but, even if a conservative, should maintain the 
     balance on the Court with respect to civil rights issues.
       To analyze Alito's record, LDF reviewed published and 
     unpublished opinions in cases decided by Judge Alito as well 
     as documents released by the White House and the National 
     Archives. Appointed by President George H.W. Bush to the U.S. 
     Court of Appeals for the Third Circuit in 1990, Alito spent 
     his entire legal career at the Department of Justice.
       LDF's report also reveals:
       Unquestionably, Justice O'Connor cast pivotal votes in 
     civil rights cases coming before the Supreme Court. While 
     Justice O'Connor did rule against civil rights litigants, at 
     least her vote on important issues such as affirmative action 
     was ``always in play.'' In contrast, a review of Samuel 
     Alito's tenure at the Justice Department reveals that he was 
     directly involved in the Reagan Administration's frontal 
     attacks on affirmative action, arguing against affirmative 
     action in three significant cases before the Court. In his 15 
     years on the bench, he has ruled against African Americans on 
     this issue.
       Judge Alito's record should be extremely troubling to 
     minority workers, women and others who depend on equal 
     opportunity protections in the workplace. Although he has 
     heard dozens of cases, Judge Alito has almost never ruled in 
     favor of an African-American plaintiff in an employment 
     discrimination case; he has never authored even one opinion 
     favoring an African-American plaintiff on the merits in such 
     a case.
       Judge Alito's criticism of the Warren Court's 
     reapportionment decisions is extremely troubling. These cases 
     ``set into motion a process that led to the dismantling of a 
     political system infected both by prejudice and other forms 
     of patent electoral manipulation.'' In his only opportunity 
     on the bench to interpret the Voting Rights Act, Alito voted 
     to uphold an at-large system of electing members to a 
     Delaware school district, perpetuating an electoral system 
     that diluted the voting strength of racial minorities.
       In the criminal justice area, Judge Alito has repeatedly 
     parted ways with his colleagues and failed to heed Supreme 
     Court precedent in important cases regarding race 
     discrimination in jury selection, the right to effective 
     assistance of counsel, and search and seizure issues.
                                  ____

                                      Lawyers' Committee for Civil


                                             Rights Under Law,

         Washington, DC, January 5, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: As the Co-
     Chairs of the Lawyers' Committee for Civil Rights Under Law, 
     we submit the enclosed ``Statement of Board Members Opposing 
     the Nomination of Judge Samuel A. Alito as an Associate 
     Justice of the Supreme Court of the United States'' on behalf 
     of the 114 individual members of the Board of Directors and 
     Trustees who subscribe to the Statement.
       These members of our Board oppose Judge Alito because the 
     record demonstrates that his views are in direct conflict 
     with the core civil rights principles to which the Lawyers' 
     Committee is dedicated, and that as a member of the Supreme 
     Court, Judge Alito would cast votes and write opinions that 
     would set back the cause of civil rights in our country and 
     impede our progress toward the goal of equal justice for all. 
     It is worth noting that in the Lawyers' Committee's 42-year 
     history, its Directors and Trustees have opposed a Supreme 
     Court nominee on only two previous occasions.
       We also enclose a Final Report that analyzes Judge Alito's 
     legal philosophy pertaining to civil rights and 
     constitutional interpretation. This in-depth Report serves as 
     the basis for the conclusions contained in the Statement and 
     provides extensive analysis of Judge Alito's background. If 
     Judge Alito's testimony during confirmation hearings or other 
     evidence justifies a change in the conclusions we have drawn, 
     we will so inform you.
       We hope the Statement and Report are of assistance to you 
     and your staff. For the reasons noted in them, we strongly 
     urge the Ju-

[[Page S148]]

     diciary Committee to vote not to confirm this nominee.
           Respectfully,
     Marjorie Press Lindblom,
                                                         Co-Chair.
     Robert E. Harrington,
     Co-Chair.
                                  ____

                                              American Association


                                       for Affirmative Action,

                                 Washington, DC, January 11, 2006.
     Re Nomination of Judge Samuel A. Alito, Jr., as Associate 
         Justice of the Supreme Court of the United States

     Hon. Arlen Specter,
     Chair,
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.

       Dear Chairman Specter and Senator Leahy: The American 
     Association for Affirmative Action (AAAA), an association of 
     equal employment opportunity (EEO), diversity and affirmative 
     action professionals founded in 1974, respectfully urges you 
     to oppose the nomination of Judge Samuel Alito, nominated to 
     serve as Associate Justice of the U.S. Supreme Court.
       AAAA has reached this conclusion based on Judge Alito's 
     very troubling record on equal employment opportunity and 
     affirmative action. In his 1985 application to be the Reagan 
     Administration's Deputy Assistant Attorney General in the 
     Office of Legal Counsel, Samuel Alito expressed his support 
     of the ``same philosophical views'' that he believed were 
     central to the Administration. In this application, Alito 
     highlighted his work as Assistant Solicitor General on 
     affirmative action and reportedly wrote that he was 
     ``particularly proud'' of his ``contributions in recent cases 
     in which the government has argued in the Supreme Court that 
     racial and ethnic quotas should not be allowed. . . .'' To 
     use Judge Alito's ``Hank Aaron'' analogy, affirmative action 
     requires not moving the fence in but opening the gate. After 
     that, it is up to the player to demonstrate his or her 
     abilities. Whoever selected Hank Aaron, Secretary Rice or 
     Justice O'Connor understood that the essence of affirmative 
     action is opportunity, not favoritism or quotas.
       Judge Alito's application described the efforts of the 
     Reagan Justice Department to restrict affirmative action and 
     court-awarded remedies for discrimination as ``quota'' 
     litigation. In one such case, Alito signed a brief arguing 
     for restricting affirmative action remedies, even in cases 
     where discrimination was intentional, egregious, and 
     longstanding. In Local 28 of the Sheet Metal Workers' 
     International Ass'n v. EEOC, the Solicitor General's brief 
     advanced the extraordinary theory that relief in Title VII 
     cases could be granted only to ``identifiable victims of 
     discrimination,'' contradicting an earlier view of the EEOC 
     itself. The Supreme Court rejected this argument.
       In Local Number 93, International Association of 
     Firefighters, AFL-CIO v. City of Cleveland, Alito signed on 
     to an amicus brief seeking to reverse a consent decree that 
     included numerical goals for the promotion of black firemen. 
     By a 6-3 vote, the Supreme Court again rejected the Solicitor 
     General's argument and upheld the affirmative action plan.
       In the months before Alito applied for a job with Attorney 
     General Edwin Meese, Meese waged a fierce campaign to have 
     President Reagan abolish Executive Order 11246, signed by 
     President Lyndon Johnson in 1965. The Order requires that 
     federal contractors not discriminate in employment and that 
     they use affirmative action. Ultimately, two-thirds of the 
     Reagan cabinet repudiated the extreme views of the Justice 
     Department and a coalition of corporations, members of 
     Congress and civil rights organizations successfully defeated 
     Meese's campaign against affirmative action.
       There is nothing subsequent to Mr. Alito's tenure in the 
     Reagan Administration or his testimony before the Senate 
     Judiciary Committee to suggest persuasively that he has 
     moderated his views on equal opportunity law enforcement. In 
     civil rights cases he has often argued for higher barriers 
     that victims of employment discrimination would have to 
     overcome to secure remedies for such discrimination. For 
     example, in Bray v. Marriott Hotels, Judge Alito's colleagues 
     said Title VII of the Civil Rights Act of 1964 ``would be 
     eviscerated'' if Judge Alito's approach were followed. In 
     Nathanson v. Medical College of Pennsylvania, Judge Alito 
     dissented in a disability rights case where the majority 
     said: ``Few if any Rehabilitation Act cases would survive'' 
     if Judge Alito's view were the law.'' And in Sheridan v. 
     DuPont, he was the only one of 11 judges on the court who 
     would apply a higher standard of proof in a sex 
     discrimination case.
       According to a report of the NAACP Legal Defense and 
     Educational Fund, Inc., Judge Alito has almost never ruled 
     for an African-American plaintiff in employment 
     discrimination cases and has never written a majority opinion 
     for the Third Circuit in favor of an African-American 
     plaintiff on the merits of a claim of race discrimination in 
     employment. In each majority opinion authored by Judge Alito 
     and addressing such a claim, he has ruled against the 
     African-American plaintiff.
       This is not the time for the Judiciary, a longstanding 
     refuge for victims of discrimination, to reverse fifty years 
     of progress. The record emerging suggests that Judge Samuel 
     Alito is not prepared to interpret the laws on behalf of all 
     Americans.
           Sincerely,
                                               Shirley J. Wilcher,
                                       Interim Executive Director.

  Mr. LEAHY. Judge Alito missed opportunities during the hearings on a 
number of issues. I am left with a deep and abiding concern about Judge 
Alito's understanding of the role of the courts and their 
responsibility to protect the constitutional rights of individuals, 
especially the less powerful and especially where the political system 
has failed to do so.
  Despite Judge Alito's attempts to retreat from several of the more 
outrageous statements in his 1985 job application for a political 
position in Edwin Meese's Justice Department, his testimony at the 
hearing has done little to dispel my concerns. The consequences for all 
Americans of Judge Alito putting the beliefs he expressed in that job 
application into practice on the Supreme Court are too great.
  In his job application, Samuel Alito wrote, as a 35-year-old, 
practicing lawyer, that:

       In college, I developed a deep interest in constitutional 
     law, motivated in large part by disagreement with Warren 
     Court decisions, particularly in the area[] of . . . 
     reapportionment.

  This was a startling statement to make in 1985, just two decades ago. 
He was 35 years old and had been practicing law for almost a decade 
when he wrote that statement about his disagreement with Warren Court 
decisions on reapportionment. Even after being asked about this 
statement several times at the hearing, Judge Alito failed to 
adequately answer why he would seek to highlight a disagreement with 
the landmark equal protection cases by which the Supreme Court made 
elections fairer for all Americans and established the principle of 
``one person, one vote.''
  The Warren Court's reapportionment decisions were among the central 
achievements of the civil rights era. They ensured that voting 
districts which had been grossly mal-apportioned, often to the 
detriment of minority voters, would be fairly revised so that 
everyone's vote was weighed equally. It is clear from looking at the 
Republicans' partisan redistricting in Texas that these cases did not 
solve all the problems. However, reapportionment cases like Baker v. 
Carr, 1962, and Reynolds v. Sims, 1964, are landmarks because they 
established that courts have a responsibility to make certain that 
voting districts meet constitutional standards.
  It was Justice William Brennan of New Jersey who wrote the Court's 
opinion in Baker. Two years later, in Reynolds, the Court established 
the ``one person, one vote'' standard because, as stated by Chief 
Justice Warren in his opinion in that case:

       As long as ours is a representative form of government, and 
     our legislatures are those instruments of government elected 
     directly by and directly representative of the people, the 
     right to elect legislators in a free and unimpaired fashion 
     is a bedrock of our political system.

  At his hearing, Judge Alito was in retreat and had to concede that 
the concept of one person, one vote is well-settled and should not be 
reexamined. It was equally well-settled in 1985 when he made the 
statement in his job application. More importantly, Judge Alito's 
testimony calls into question whether he truly understands that the 
courts have a responsibility in our constitutional system to intervene 
to ensure that constitutional guarantees of equal access to the 
political system are met. This is important in situations where the 
political system is corrupt or where the political branches lack the 
will to fight against entrenched power or to reform themselves.
  In response to a question from Senator Kohl, Judge Alito sought to 
retreat from the unqualified disagreement with the reapportionment 
cases expressed in his 1985 application. He told the Committee that his 
disagreement was based only on certain details of later Warren Court 
decisions like the 1969 case, Kirkpatrick v. Preisler. Not only is this 
narrow objection to certain Warren Court decisions not a credible 
explanation for why he made his sweeping assertions of disagreement in 
1985, but Judge Alito also contradicted it later in his testimony when 
he suggested that his disagreement with the Warren Court's 
reapportionment decisions was based on Alexander Bickel's ideas about 
judicial self-restraint. Professor Bickel was not

[[Page S149]]

concerned merely with later applications of one person, one vote. 
Rather, his theory was critical of the courts having any role at all in 
helping to guarantee that access to the political system is fair and 
equal.
  In fact, one of the justices whom Judge Alito described as among his 
favorites, Justice Harlan, applied Bickel's theories in dissenting from 
every landmark Warren Court reapportionment case establishing one 
person, one vote, starting with Baker v. Carr. In Justice Harlan's 
dissenting opinion in Reynolds v. Sims, as in all of Justice Harlan's 
reapportionment dissents, he argued that there is no constitutional 
basis for one person, one vote and that courts should restrain 
themselves from ``usurping'' the state legislatures' self-serving 
apportionment decisions. In his dissent in Reynolds, Justice Harlan 
wrote: ``It is difficult to imagine a more intolerable and 
inappropriate interference by the judiciary with the independent 
legislatures of the States,'' and ``[w]hat is done today deepens my 
conviction that judicial entry into this realm is profoundly ill-
advised and constitutionally impermissible.'' This dissent, described 
as one of Judge Alito's favorites, hardly sounds like a disagreement 
only with certain aspects of later reapportionment decisions.
  The effects of the Court's decisions to intervene were dramatic. Were 
the Supreme Court to have followed the dissents of Justice Harlan or 
the theories of Alexander Bickel that Judge Alito embraced in 1985, the 
massive disparities in the size of voting districts would not have been 
corrected in the 1960s. Nor would the underrepresentation of voters 
from urban areas, minority voters, have been corrected. Had the Court 
not acted we might still have poll taxes and other barriers to the 
ability of minorities to vote.
  At the hearing we heard testimony from pioneering civil rights 
attorney Fred Gray, who spent a lifetime fighting for those who were 
denied the rights to equal protection and equal dignity under the law 
guaranteed by our Constitution. After he graduated from law school, Mr. 
Gray immediately went to work defending Rosa Parks and Dr. Martin 
Luther King, Jr., in the Montgomery bus boycott. He has a real-life 
appreciation for the role of courts as providing a check to protect 
individual rights and liberties. In the late 1950s, after the Alabama 
legislature changed the city limits of Tuskegee, excluding all but 
three or four African Americans who were registered to vote in the 
city, Mr. Gray brought before the Supreme Court the case of Gomillion 
v. Lightfoot. This unanimous decision securing the right to vote for 
African Americans laid the foundation for Baker v. Carr and the cases 
establishing one person, one vote.
  I asked Mr. Gray what the consequences would have been had the courts 
followed the lead of Justice Harlan and Alexander Bickel, views with 
which Samuel Alito apparently agreed, and not involved itself in 
reapportionment. He testified:

       The difference is then, prior to these decisions, and even 
     prior to Brown v. Board of Education, and prior to Gomillion 
     v. Lightfoot and Browder v. Gayle, the case that desegregated 
     the buses, we had very few African Americans and other 
     minorities registered. We had little or no African Americans 
     in public office. For example, in my state, in 1957 we had 
     none. Now my State has approximately the same number of 
     persons in our State legislature. It mirrors the population. 
     We now have thousands of African Americans and other 
     minorities who are holding public office, and an additional 
     thousand that those public office holders have appointed to 
     elected office.

  Judge Alito did not adequately explain his disagreement with the 
Warren Court reapportionment decisions. He refused to say that he 
changed his views. He did not repeat what he had suggested in some 
private meetings--that he was merely saying what he thought people in 
the Reagan White House wanted to hear and that it was just a job 
application. Candidly, his testimony on this critical point makes no 
sense. This is too fundamental a matter to be left without a solid, 
credible explanation. The equal protection rights and voting rights of 
all Americans are the fulcrum for realizing the promises of our 
democratic republic.
  Judge Alito's sweeping disagreement with the Warren Court's 
reapportionment decisions is not the only part of his 1985 job 
application which has caused me to doubt his understanding of the 
responsibility for the courts to intervene where the political process 
is broken down, corrupt or entrenched. Judge Alito also stated in that 
application that he believes in ``the supremacy of the elected branches 
of government.'' In the hearing, Judge Alito tried to retreat from this 
statement, describing it as ``inapt'' and ``very misleading and 
incorrect.'' However, he refused to disavow it, telling Senator 
Kennedy: ``I haven't changed my mind.''
  The Supreme Court's decisions to intervene in the reapportionment 
cases in the 1960s had a tremendous effect on the ability of millions 
of Americans to participate in the political process. Yet I am 
concerned that his 1985 written statement reveals that he will be too 
deferential to the President as ``supreme'' even when needed to be a 
check on the Government.
  The elected branches have no claim to being legitimate, let alone 
``supreme,'' if they are controlled by entrenched political corruption. 
After listening to several days of his testimony, I am left with 
serious questions and concerns about Judge Alito's appreciation for 
this critical role of the courts. These concerns are heightened by his 
apparent adherence to the so-called doctrine of the ``Unitary 
Executive.''
  Judge Alito has failed to grasp the importance of the courts in 
providing a venue for all Americans to assert their rights. One of the 
clearest examples of this is Judge Alito's distressing record in cases 
in which individuals allege discrimination based on race, gender, or 
disability. Judge Alito has consistently found ways to keep the 
``little guy'' from having a day in court. For example, he has held 
individuals trying to prove discrimination to an excessively high 
standard of proof, rendering their cases almost un-winnable. From the 
bench, he has favored the government and big companies accused of 
discrimination. He seems to view these cases not as examples of regular 
Americans struggling for equal treatment but, instead, as technical 
legal exercises.
  Judge Alito's supporters--and many on the other side of the aisle 
were lined up to support him well before the hearings--have cherry 
picked individual cases to try to show that Judge Alito was fair to 
average Americans. Judge Alito told us to look at his whole record and 
we did. In fact, a study of Judge Alito's decisions by Knight Ridder 
newspapers found that Judge Alito was consistently skeptical of 
discrimination plaintiffs, generally setting high standards of proof 
and finding that the plaintiffs before him did not meet those 
standards. The study found that he was similarly dismissive of criminal 
defendants alleging discrimination by the government and of immigrants 
fighting deportation. Noted law professors Cass Sunstein and Goodwin 
Liu studied the cases where Judge Alito dissented from his colleagues 
and reached the same conclusion.
  In several cases, the Third Circuit criticized Judge Alito for taking 
positions which would make it almost impossible for people to prove 
discrimination. In Bray v. Marriott Hotels, Judge Alito would have 
denied an African-American worker the chance to show that her employers 
denied her a promotion based on race. The majority criticized Judge 
Alito's dissent saying that a key discrimination statute ``would be 
eviscerated if our analysis were to halt where the dissent suggests.''
  The case of Pirolli v World Flavors, Inc., is a particularly poignant 
example of the kind of case that gives me great concern about whether 
Judge Alito would uphold the rights of ordinary Americans seeking equal 
treatment. In that case, Kenneth Pirolli, a mentally retarded employee, 
brought a claim for hostile work environment based on sex and 
disability, alleging a pattern of sexual abuse and harassment that can 
only be described as disgusting. Judge Alito dissented from the Third 
Circuit's decision that Mr. Pirolli's case should go to a jury, not 
based on the merits of the claim, but essentially because he thought 
Mr. Pirolli's lawyer's legal brief was poorly drafted. Senator Durbin 
asked Judge Alito about this matter and gave him every opportunity to 
explain. It remains another example of Judge Alito focusing on 
technical details rather than on the rights of real people.

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  As a former prosecutor, I am sensitive to the need for a fair process 
and a fair jury in all criminal cases, particularly the most serious 
ones. I am troubled that in Riley v. Taylor, Judge Alito dissented from 
an en banc decision in a capital case in which the Third Circuit 
granted a new trial because the prosecutor had improperly dismissed 
Black jurors. Judge Alito denigrated the defendant's use of statistical 
evidence to show improper exclusion of Black jurors, comparing it to a 
statistical analysis of the disproportionate number of recent left-
handed U.S. Presidents. The majority criticized Judge Alito's 
inappropriate analogy, writing, ``To suggest any comparability to the 
striking of jurors based on their race is to minimize the history of 
discrimination against prospective Black jurors and Black defendants''.
  In response to the many cases in Judge Alito's record in which he has 
ruled against victims of discrimination, victims of government 
intrusion, and immigrants, Judge Alito's Republican supporters searched 
hard to find a small set of cases to show Judge Alito has not always 
ruled against the ``little guy.'' What is notable about these efforts 
is that even in the cases they have trumpeted, Judge Alito often denied 
any meaningful relief to the average American.

  Several Republicans have raised the case of United States v. 
Kithcart. They incorrectly suggest that in Kithcart, Judge Alito ruled 
in favor of an African American in a racial profiling case. Mr. 
Kithcart was pulled over by the police because he was African American 
and searched and arrested. When the case came before Judge Alito, he 
sent it back to the trial court to give the government a second chance 
to prove that the stop and search of an African American were 
constitutional and were not motivated by race. Judge McKee dissented 
from the remand saying, ``just as this record fails to establish that 
Officer Nelson had probable cause to arrest any Black male who happened 
to drive by in a black sports car, it fails to establish reasonable 
suspicion to justify stopping any and all such cars that happened to 
contain a Black male.'' When the case came back to Judge Alito on 
appeal, Judge Alito upheld the search and affirmed the conviction. So 
while he remanded the case back to the trial court, he then upheld the 
search and conviction in his final decision and afforded Mr. Kithcart 
no relief.
  Judge Alito's supporters have pointed to Fatin v. INS as an example 
of a case in which Judge Alito sided with powerless immigrants and did 
not defer to the Government. This is another bad example because he 
ultimately ruled against the immigrant, Parastoo Fatin, and she was 
deported.
  Ms. Fatin was an Iranian woman whose family had opposed the Ayatollah 
Khomeini and who had come to the United States as a student. She was 
fighting deportation and requested asylum, arguing that she would be 
subjected to harsh treatment as a former opponent of Iranian regime, as 
someone who did not practice a strict form of Islam, and as a woman--
who would have to wear a veil and live under great restrictions in 
Iran. As his supporters have noted, Judge Alito ruled in the case that 
gender-based persecution could be a basis for asylum. But Judge Alito 
went on to rule against Ms. Fatin anyway. So he denied her petition for 
review and sent her on to be deported.
  Judge Alito and Republican Senators seeking to bolster Judge Alito's 
record cited Leveto v. Lapina as an example of a case in which he 
protected the rights of individuals against government intrusion. It is 
telling about Judge Alito's record in the area of individual rights 
protection that in a case he trumpeted for his protection of the rights 
of individuals, he threw the Levetos out of court and denied them any 
remedy.
  The facts of this case are egregious. In the course of an IRS tax 
fraud investigation of the Levetos, armed agents ``rushed'' Dr. Leveto 
at the veterinary hospital where he worked when he arrived at 6:30 
a.m., patted him down, and then held him in a small room for over an 
hour, not allowing him to speak to anyone or make any calls. They then 
accompanied Dr. Leveto to his home where they patted down Mrs. Leveto, 
who was still in her nightgown, and then detained and interrogated her 
for 6 hours.
  Meanwhile, other agents took Dr. Leveto back to the hospital where 
they held him in a closed room for 6 more hours. During this 6 hours, 
he was not permitted external communications, was accompanied on 
bathroom breaks, and was interrogated without Miranda warnings, while 
other agents searched the hospital. During the course of the search IRS 
agents sent hospital employees home and turned away clients in the 
parking lot, informing them that the hospital was closed until further 
notice.
  Despite acknowledging numerous violations, Judge Alito dismissed the 
Levetos' appeal and their case based on ``uncertainty'' in the case 
law, and threw them out of court.
  Supporters of Judge Alito have cited the case of Brinson v. Vaughn as 
an example of a case in which Judge Alito sided with a victim of 
discrimination, reversing a conviction because Black jurors had been 
improperly excluded from the jury pool. This was an easy case given the 
extraordinary facts involved. In Brinson, the prosecutor dismissed 13 
of 14 prospective Black jurors and had previously made a training video 
in which he urged prosecutors to dismiss Black prospective jurors from 
the jury pool. This does not reassure me about my concern that Judge 
Alito will only give credence to claims of discrimination in extreme 
cases. Indeed, in Riley v. Taylor, when an en banc majority of the 
Third Circuit found that Black jurors had been improperly dismissed 
from the jury pool, Judge Alito disagreed and denigrated the 
defendant's use of statistical evidence to show improper exclusion of 
Black jurors, comparing it, as has been previously noted, to a 
statistical analysis of the disproportionate number of recent left-
handed U.S. Presidents.
  The role of courts should be to protect and make sure there is a fair 
forum for the powerless and even the unpopular. This is the reason the 
courts are the one undemocratic branch. I am concerned that rather than 
demonstrating an understanding of the effect of the law on the lives of 
real Americans as Justice O'Connor has shown, Judge Alito would close 
the courthouse doors to those Americans most in need of the courts to 
protect their rights.
  In the next few years, the Supreme Court will hear many challenges to 
political entrenchment. Critical provisions of the Voting Rights Act, 
VRA, Congress's part in guaranteeing equal access to voting, the 
fundamental machinery of democracy, were upheld by the Warren Court in 
South Carolina v. Katzenbach, 1966, by an 8 to 1 vote. The VRA will 
need to be reauthorized before it expires in 2007. Subsequent court 
challenges will be critical to fairness to minority voters.
  The Supreme Court will soon hear a challenge to Texas Republicans' 
partisan mid-Census redrawing of congressional districts. There are 
questions before the Supreme Court this term about campaign finance 
laws. We are seeing exposed in the news every day a culture of 
corruption through money and access that has taken root in Washington, 
by which one political party has sought to entrench itself as a 
permanent majority.
  The cost to Americans is high if we in the Senate get it wrong. I go 
back to the central question I asked at the outset of Judge Alito's 
hearing: Will this nominee serve to protect the fundamental rights and 
liberties of all Americans? Based on Judge Alito's record, I have no 
confidence that he will provide a check against either an overreaching 
President or entrenched political power, nor that he will serve to 
protect Americans' fundamental rights and liberties.
  I thank the distinguished Presiding Officer.
  I yield to the distinguished Senator from California.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from California.
  Mrs. FEINSTEIN. I thank the ranking member of the Judiciary Committee 
and I thank the Chair.
  I come to the floor to offer my reasons for opposing Judge Alito. Let 
me begin with this: If the Supreme Court's decisions were simply 
mathematical computations of legal points, our job would be easy and 
all of the Court's decisions would be 9 to 0. But the legal philosophy 
and views of each individual Justice do play a role in decisionmaking 
on the Court. Perhaps not the

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majority of the time, when the question before the Court is not 
controversial; but certainly when the question is controversial and 
divisive, legal views and philosophies do play a role.
  We just had a recent example. Last week the Supreme Court upheld 
Oregon's Death with Dignity Act by a 6-to-3 decision in a case called 
Gonzales v. Oregon. When then-Judge Roberts came before the Senate, I 
and others questioned him on his end-of-life views. He then replied 
that the Government should not enter the arena. When discussing my 
point that he would not want the Government telling him what to do, he 
said:

       The basic understanding that it's a free country and the 
     right to be left alone is one of our basic rights.

  He gave us the impression that he believed there was, in fact, a 
right to die. However, just last week, Chief Justice Roberts joined the 
two most conservative members of the Court, Justices Scalia and Thomas, 
in an opinion that, if it had carried the day, would have allowed the 
administration to invalidate the end-of-life initiative twice supported 
by Oregon voters in State elections, once when it was enacted and once 
when it was reaffirmed.
  Secondly, history reveals that legal views and philosophies have been 
the rationale for the rejection of at least 12 Presidential nominees 
for the Supreme Court. Members on the other side of the aisle often say 
these legal views and philosophies are not a bona fide consideration. 
But what I say is these have been used as the rationale for the 
rejection of at least a dozen Presidential nominees in history.
  Let me mention a few of them. It began with President George 
Washington when he nominated John Rutledge in 1795. Rutledge was 
rejected by a vote of 10 to 14 because he made a speech denouncing the 
Jay Treaty between the United States and Great Britain.
  Fifteen years later, President James Madison's nomination of 
Alexander Wolcott was rejected by the Senate by a vote of 9 to 24, in 
part, based of his policies while a U.S. collector of customs and his 
actions strongly enforcing controversial embargoes.
  President Andrew Jackson, in 1835, nominated Roger Taney to the 
Supreme Court. He had served as the Secretary of Treasury, and he 
removed the Government's deposits from the Bank of the United States. 
Senators who were opposed to that move offered a motion postponing his 
nomination indefinitely, which passed 24 to 21.
  President James Polk, nominated George Woodward in 1845, and 
allegations arose that as a delegate to the 1837 Constitutional 
Convention, he introduced an amendment that would have prohibited any 
foreigners who came to Pennsylvania after 1841 from voting or holding 
office.
  President Ulysses S. Grant nominated Ebenezer Hoar in 1869, who had 
served as Attorney General. Senators were upset by the fact that he 
recommended nominees to the circuit courts without taking into 
consideration Senators' preferences. His nomination was defeated 24 to 
33.
  The same thing happened in 1881, when President Rutherford Hayes 
nominated Stanley Mathews. He was defeated because of his close ties to 
railroad and financial interests.
  President Warren Harding, in 1922, nominated Pierce Butler. His 
nomination was blocked from consideration on the Senate floor because 
of an alleged procorporation bias and his previous advocacy for 
railroad issues that were coming before the Court.
  In 1930, President Herbert Hoover's choice of John Parker was 
rejected because he made statements opposing the participation of 
African Americans in politics and because of his labor record while 
chief judge of the U.S. Fourth Circuit Court of Appeals.
  Marshall Harlan II was nominated by Dwight Eisenhower in 1954. The 
nomination was never reported out of committee because some members 
felt he was ``ultraliberal'' and hostile to the South and dedicated to 
reforming the Constitution by ``judicial fiat.''
  In 1968, President Lyndon Johnson nominated Abe Fortas to be elevated 
to Chief Justice of the Supreme Court. His nomination was defeated 
after the Senate failed to invoke cloture 45 to 43. One Senator is 
reported as saying that Fortas' ``judicial philosophy disqualifies him 
for this high office.''
  It went on for two of President Nixon's nominees. Clement F. 
Haynsworth, Jr. was rejected in 1969 by a vote of 45-55. At that time, 
five senators issued a joint statement that expressed ``doubts about 
his record on the appellate bench,'' and one senator opposed the 
nomination on the basis of his record on civil rights issues.
  The other, G. Harrold Carswell, was rejected by a vote of 45-51, in 
part based on his judicial philosophy. A statement issued by four 
senators at the time stated they opposed his nomination because his 
``decisions and his courtroom demeanor had been openly hostile to the 
black, the poor and the unpopular.''
  And, of course, one of President Ronald Reagan's nominees, Judge 
Robert Bork, whose views and legal philosophy were of great concern. 
Judge Bork believed Americans had no constitutional right to use 
contraception. He argued that in guaranteeing one man, one vote, the 
Court ``stepped beyond its boundaries as an original matter.'' And he 
had a broad view of Executive power. He once asserted that a law 
requiring the President to obtain a court order before conducting 
surveillance in the United States, and against U.S. citizens was ``a 
thoroughly bad idea and almost certainly unconstitutional.''
  Most recently, White House Counsel Harriet Miers was withdrawn even 
before consideration by the Judiciary Committee due to the rightwing's 
objections.
  So it is abundantly clear that judicial philosophy and legal views 
have been evaluated by senators from both sides of the aisle throughout 
history, and they are valid reasons to reject a nominee for the U.S. 
Supreme Court.
  To now argue that evaluating one's judicial philosophy is setting a 
new precedent is simply turning a blind eye to history. So while none 
of us can predict how any person will act in the future, we do have to 
thoroughly consider information available that provides insights into a 
nominee's judicial philosophy and legal reasoning. I want to make 
clear.
  Secondly, many of my colleagues on the Judiciary Committee have 
argued that the nomination of Justices Ginsburg and Breyer have set a 
precedent for how Supreme Court nominations should be handled, that no 
one questioned their judicial philosophy, and that they swept through 
by large votes. I want to take a moment to answer that.
  The fact of the matter is that there was real advice and consent in 
the nominations of Justices Ginsburg and Breyer. Senator Hatch, in his 
book ``Square Peg: Confessions of a Citizen Senator,'' who was then the 
ranking member of the Judiciary Committee, gave the following account 
of the Ginsburg nomination:

       It was not a surprise when the President called to talk 
     about the appointment and what he was thinking of doing.

  So President Clinton told Senator Hatch what he was thinking of 
doing. Senator Hatch goes on:

       President Clinton indicated he was leaning toward Bruce 
     Babbitt . . . Clinton asked for my reaction.
       I told him the confirmation would not be easy. I explained 
     to the President that although he might prevail in the end, 
     he should consider whether he wanted a tough, political 
     battle over his first appointment to the Court. I asked 
     whether he had considered Judge Stephen Breyer of the First 
     Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the 
     District of Columbia Court of Appeals.

  Both were confirmed with relative ease. So since the ranking member 
of the Judiciary Committee--the minority ranking member--had 
recommended these nominees, it is not surprising that they moved 
through the confirmation process relatively easy. I am confident that 
if President Bush had decided to nominate any of the candidates 
suggested by the current ranking member of the committee, Senator 
Leahy, the process could have been smooth this time as well. But he 
didn't. With that said, I also believe that today is a very different 
day than the time when Justice Ginsburg and Justice Breyer were before 
the Senate. Let me point out some of the differences. There was not the 
polarization that there is within America today. There was not the 
clear effort to upset the current balance of the Court and move it far 
to the right.
  When Justices Ginsburg and Breyer were before the Senate, it had been

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more than 50 years since any statute had been struck down by the 
Supreme Court on commerce clause grounds.
  It wasn't actually until April 26, 1995, after both Justices had been 
confirmed, that the Supreme Court began to revisit an area that had 
been well settled since the New Deal in the mid-1930s in its decision 
on a case known as Lopez. In U.S. v. Lopez, the Court struck down the 
Gun-Free School Zones Act that had been passed by the Congress, which 
essentially prohibited the possession of a firearm within a thousand 
feet of a school. It was this decision that signaled the beginning of 
the Rehnquist Court's federalism ``revolution.'' In the next decade, 
from 1995 to 2005, the Rehnquist Court struck down all or portions of 
30 congressionally enacted laws, 10 of them on federalism grounds. Here 
they are on this chart. I will point out some of them to you:
  The Indian Gaming Regulatory Act, the Federal Election Campaign Act, 
the Cable Television Consumer Protection and Competition Act, the 
Religious Freedom Restoration Act, the Communications Decency Act, the 
Brady Handgun Violence Prevention Act, the Water Resources Development 
Act, the Coal Industry Retiree Health Benefit Act, section 316 of the 
Communications Act, the Fair Labor Standards Act, the Age 
Discrimination in Employment Act, the Violence Against Women Act, the 
Telecommunications Act, the Americans with Disabilities Act, section 
2511 of the Omnibus Crime Control and Safe Streets Act, the FDA 
Modernization Act, the Child Pornography Act, the Bipartisan Campaign 
Reform Act, the Child Online Protection Act and on and on and on, using 
various sections of the Constitution to hold impermissible 
congressional actions in these areas.
  Now, this is a major thrust of the Court, and it is a serious thrust. 
It is one that this body and the other body ought to understand 
because, with these actions, the Court was essentially declaring that 
the Congress cannot legislate in many important areas, areas that are 
very important to me and to my constituents.
  When Justice Ginsburg and Justice Breyer were before the Senate, we 
were not in the midst of a war with Iraq, nor was our country faced 
with a war on terror that could last for our lifetime and, for all we 
know, for our children's lifetime. Few would have predicted that the 
President would authorize the use of torture in defiance of the Geneva 
Convention and the Convention Against Torture and Military Law; that 
the President would argue that he had inherent plenary authority to 
detain Americans without due process; and that the President would 
authorize the electronic surveillance of Americans in direct violation 
of the law, a law passed by this body, the other body, and signed by 
President Carter in 1978.
  In addition, when Justices Ginsburg and Breyer were before the 
Senate, Planned Parenthood v. Casey had just recently been decided. 
Casey made it clear that Roe v. Wade remained controlling precedent; it 
affirmed a woman's constitutional right to privacy; it clarified that 
States have an interest to protect viable unborn life; and it held that 
many State laws relating to abortion were valid.
  With the Casey decision, there was a general acceptance that a 
woman's right to choose was secure. There had been a clear and direct 
challenge to Roe--as a matter of fact, it has been challenged at least 
three dozen times--and the Court had affirmed in Casey Roe's central 
holding.
  Finally, as I noted when discussing Senator Hatch's book ``Square 
Peg,'' at the time Justices Ginsburg and Breyer were before the Senate, 
we didn't have an administration that was bent on moving the Court 
dramatically in one direction. Yet today, when we are evaluating a 
nominee to replace Justice Sandra Day O'Connor--a pivotal Justice, a 
Justice who was the fifth vote in 148 out of 193 decisions--the 
President continues to assert that he will only nominate those who view 
the Constitution through a lens of strict constructionism and 
originalism.
  I think we must remember what these terms mean. I want to take a 
moment to do so. It is widely accepted among legal scholars that strict 
constructionists and originalists look to evaluate the Constitution 
based on what the words say as written and what the Framers intended 
those words to mean at the time they were written.
  If we examine what these terms could mean when applied to actual 
constitutional questions today, it becomes clear why most legal 
scholars view the Constitution as a living document, able to adjust to 
the differences of the country today. Remember, in colonial times, 
there were 13 colonies and around 3 million people. Today we are close 
to 300 million people and we are 50 States.
  Justice Brennan wrote in 1986 about this, and I quote him:

       During colonial times, pillorying, flogging, branding, and 
     cropping and nailing of the ears were practiced in this 
     country. Thus, if we were to turn blindly to history for 
     answers to troubling constitutional questions, we would have 
     to conclude that these practices would withstand challenge 
     under the cruel and unusual clause of the eighth amendment.

  He wrote that in the Harvard Law Review in December of 1986.
  If an originalist analysis were applied to the 14th amendment, women 
would not be provided equal protection under the Constitution, 
interracial marriages could be outlawed, schools could still be 
segregated, and the principle of one man, one vote would not govern the 
way we elect our representatives.
  My concerns about confirming a strict constructionist or originalist 
to the Court are best demonstrated by what this legal reasoning could 
mean in three important areas: congressional authority to enact 
legislation, checks on Presidential powers, and individual liberty and 
privacy interests. I want to talk about these for a minute in the 
context of Judge Alito.
  It is my conclusion that Judge Alito would most likely join Justices 
Thomas and Scalia in the originalist and strict constructionist 
interpretations of the Constitution. And those are the interpretations 
that have been used by the Rehnquist Court in the past decade to 
overthrow all or portions of the 30 laws to which I just referred. I 
have come to this conclusion based on Judge Alito's record in the 
Reagan administration and on the bench.
  In 1986, Congress passed what seemed to me a pretty simple law. It 
was called the Truth in Mileage Act. It basically forbid anyone from 
tampering with odometers in automobiles. As a deputy at the Office of 
Legal Counsel, Judge Alito recommended that President Reagan veto this 
bill because it violated principles of federalism.
  Judge Alito also drafted a statement for President Reagan to make 
when he vetoed the bill, asserting ``it is the States and not the 
Federal Government that are charged with protecting the health, safety, 
and welfare of their citizens.''
  It is the States, not the Federal Government. The implication is the 
Federal Government does not have a role in protecting the health, 
safety, and welfare of our citizens.
  Judge Alito's restricted views of congressional authority later 
surfaced in his decisions while on the Third Circuit. For me, a prime 
example is the case of U.S. v. Rybar. This case is significant because 
it was a case where Congress clearly had the authority to enact 
legislation, and yet Judge Alito wrote a separate opinion, a dissent, 
to argue against the law. He was the sole dissenter, and he was 
outvoted.
  In his opinion, he used a legal technicality that would have thrown 
out the conviction of a man who had illegally possessed and sold fully 
automatic machine guns in the State of Pennsylvania.
  In reaching his conclusion, he seemed to ignore past precedents, 
clearly establishing congressional authority to regulate firearms, such 
as the Miller case of 1939.
  He also dismissed previous statutes that had already outlined the 
obvious impact guns have on interstate commerce, even when sold within 
a State. To me, that was a major indication of his thinking.
  The facts in this case make this point even more obvious: one gun was 
from China, the other was a military M3 submachine gun made during 
World War II by General Motors. Clearly, both guns had traveled through 
interstate commerce before reaching Pennsylvania where the arrest took 
place.
  Judge Alito's views on congressional power could also limit 
Congress's ability to protect the environment. In the next few years, 
the Supreme Court is likely to hear a number of cases challenging 
Congress's authority to pass

[[Page S153]]

laws protecting the environment, such as the Clean Water Act and the 
Endangered Species Act. In fact, later this term, the Supreme Court 
will hear two cases. One is Carabell v. Army Corps of Engineers, and 
the other Rapanos v. U.S.
  The issue in both is whether the Congress has the authority to 
regulate nonnavigable waterways under the Clean Water Act. Both are 
brought to the Court on the basis that Congress could not regulate 
environmental control in nonnavigable waterways. If the Supreme Court 
were to strike down this provision, the Federal Government would lose 
its primary tool to protect wetlands.
  If confirmed, Judge Alito could be the decisive vote in these 
environmental cases, and his record on the environment, in this regard, 
is not reassuring. Let me give an example.
  In the case Public Interest Research Group v. Magnesium Elektron, it 
was undisputed that a chemical company had committed 150 different 
violations of the Clean Water Act by illegally dumping chemicals into a 
river. The plaintiffs in the case were members of an environmental 
group and had stopped using the river because of the pollution.
  Judge Alito voted in a 2-to-1 decision to throw the case out. He 
adopted a narrow reading of both the Clean Water Act and the legal 
concept of standing. In doing so, his conclusion would have gutted the 
provision that allows individual citizens to enforce the law.
  Three years later, the Supreme Court in a 7-to-2 decision in Friends 
of the Earth v. Laidlaw rejected Judge Alito's expansive view of the 
standing requirement, making it easier for individuals to sue to stop 
violations of the Clean Water Act.
  So this is a serious concern--Clean Water Act, Clean Air Act, 
Endangered Species Act. Our ability to legislate in these areas is very 
much at stake with this judge.
  Judge Alito's views on the scope of Presidential powers are deeply 
concerning to me at this point in American history. The Constitution 
gives both the President and the Congress critical roles in the defense 
of our Nation. The Constitution specifically provides in article I, 
section 8:

       The Congress shall have Power To . . . provide for the 
     common Defense and general Welfare of the United States . . .
       To declare War, grant Letters of Marque and Reprisal, and 
     make Rules concerning Captures on Land and Water;
       To raise and support Armies . . .
       To provide and maintain a Navy;
       To make Rules for the Government and Regulation of the Land 
     and Naval Forces . . .
       To provide for calling forth the Militia to execute the 
     Laws of the Union, suppress Insurrections and repel 
     Invasions;
       To provide for organizing, arming, and disciplining the 
     Militia, and for governing such Part of them as may be 
     employed in the Services of the United States, reserving to 
     the States respectively, the Appointment of the Officers, and 
     the Authority of training the Militia according to the 
     discipline prescribed by Congress . . . and
       To make all Laws which shall be necessary and proper for 
     carrying into Execution the foregoing Powers. . . .

  In other words, we are responsible to give the powers to the 
President for him to execute in these areas. That is a very important 
article, and it is the heart of congressional authority and the balance 
of power at a time of crisis.
  Our national security and constitutional liberties suffer when either 
branch oversteps its bounds. Today our Nation is in a very different 
place than it was 10 years ago. We face new challenges to our 
constitutional framework of checks and balances.
  This President has asserted unprecedented authority in many areas 
which has raised profound constitutional questions. They include:
  May the President authorize torture?
  Does the Constitution permit the President to order the arrest and 
detention of individuals inside the United States without due process 
or access to counsel?
  Does the Constitution allow the President to violate laws based on 
inherent plenary power?
  Is it constitutionally permissible for the President to authorize 
electronic surveillance of Americans without a warrant in violation of 
Federal law?
  Given the critical importance of these questions to both our national 
security and our constitutional democracy, I asked Judge Alito a 
variety of questions to get a sense of his vision of the balance of 
power between the President, the Congress, and the courts.
  Rather than engage in a productive discussion about the issues, he 
simply repeated obvious truisms, such as ``nobody is above or below the 
law,'' or agreed to the unsurprising proposition that the Constitution 
and the laws of the Nation are supreme. He did not answer whether the 
President had to follow these laws.
  His answers were inadequate, so I was left to evaluate his views 
based on his prior record.
  At the Department of Justice, Judge Alito was part of the effort to 
press for expanded Presidential power, and there is no doubt about 
that.
  While serving in the Department of Justice, he wrote a memo on 
Presidential signing statements, and here is what he argued:

       From the perspective of the executive branch, the issuance 
     of interpretive signing statements would . . . increase the 
     power of the Executive to shape the law.

  ``The power of the Executive to shape the law.'' Do we believe this 
is correct, or do we believe that the ability to make and shape the law 
rests with the Congress, and the President can sign it or veto and 
indicate his reasons for so doing, but not shape the law to his 
specific demand? Then when speaking before the Federalist Society in 
November of 2000, Judge Alito expressed his support for the unitary 
executive theory. In 1988, this unitary executive theory was rejected 
by the Supreme Court in a decision called Morrison v. Olson. It was 
rejected overwhelmingly. The majority was 7 to 1. The opinion was 
offered by Justice Rehnquist. The Court rejected Justice Scalia's 
argument that the independent counsel must be under the executive 
branch and report to the President. That took care of what is called 
the theory of the unitary executive.
  Yet more than a decade later, Judge Alito declared:

       I still think that this theory best captures the meaning of 
     the Constitution's text and structure.

  Clearly, this is a statement for expanded Presidential authority and 
for the unitary executive.
  Judge Alito's vague answers at the hearing, coupled with the specific 
statements made a few years ago, lead me to conclude that he is a 
strong proponent of expanded Presidential authority and that he is not 
committed to a proper system of checks and balances, which brings me to 
my third point.
  If one is pro-choice in this day and age, with the balance of the 
Court at stake, one cannot vote to confirm Judge Alito. I, for one, 
really believe there comes a time when you just have to stand up, 
particularly when you know the majority of people stand as you do. And 
I don't make that statement simply based on my gut instincts. It is 
reflected in the polls we see.
  A Gallup poll released earlier this week, January 24, stated that 63 
percent of Americans do not want to see Roe overturned. And that is 
backed up by other polls.
  A CNN/USA Today/Gallup poll released earlier this month, January 9, 
said a majority of Americans, 56 percent, do not believe Judge Alito 
should be confirmed if his confirmation hearings reveal he would vote 
to overturn a woman's right to have an abortion.
  Around here when it comes to the issue of abortion the tail wags the 
dog. The minority is the dominant voice, while the majority of people 
out there feel very differently on the question. A majority of people, 
it is clear, in the United States of America believe that a woman 
should have certain rights of privacy--privacy that is limited by the 
State's interest to protect potential life, but a certain right to 
privacy. If you know this nominee is not going to respect those rights 
but holds differing views, then you have to stand up.

  I am very concerned about the impact Judge Alito could have on 
women's rights, including a woman's right to make certain reproductive 
choices as limited by State regulation.
  When the issues of Roe and precedent came up during the hearings for 
Chief Justice Roberts, he engaged in a conversation with me and other 
Senators. He acknowledged that Roe is well settled. He discussed the 
different factors the Court considered when Casey affirmed the central 
holding of Roe. In

[[Page S154]]

fact, during Judge Alito's hearings, I read part of the Roberts 
transcript to him and I gave him an opportunity to review it. I then 
asked him to tell me where he differed from Chief Justice Roberts and 
if he, too, believed Roe is well settled. He responded this way:

       I think that depends on what one means by the term well 
     settled.

  That was after reading an explicit and full description of what the 
now Chief Justice had said before us. His response clearly indicated, 
at least in my view, that he didn't regard precedent that highly.
  I next tried to talk to him about his legal views and what he meant 
when he said ``precedent is not an inexorable command.'' I specifically 
stated:

       Those are the words that Justice Rehnquist used arguing for 
     the overturning of Roe. So my question is did you mean it 
     that way?

  The most Judge Alito would say is this:

       The statement that precedent is not an inexorable command 
     is a statement that has been in the Supreme Court case law 
     for a long period of time. And sitting here, I can't remember 
     what the origin of it is. . . .

  In providing nothing more than this for an explanation, Judge Alito 
spoke volumes about his view on Roe. I listened carefully to the 
testimony of many legal scholars, including professors in 
constitutional law. One I want to quote, and I quoted it in the 
committee as well because it meant a great deal to me, is a professor 
of constitutional law at Harvard, Professor Larry Tribe. He said that, 
with the addition of Judge Alito:

       The Court will cut back on Roe v. Wade, step by step, not 
     just to the point where, as the moderate American center has 
     it, abortion is cautiously restricted, but to the point where 
     the fundamental underlying right to liberty becomes a hollow 
     shell.

  It is important to remember that Roe, as modified by Casey, is in 
fact a moderate compromise that considers both sides of the question. 
Together, Roe and Casey protect women's privacy interest but also allow 
States to pass regulations to restrict that interest postviability.
  If you look carefully at Judge Alito's decisions in three cases--
Planned Parenthood v. Casey, Blackwell v. Knoll, and Planned Parenthood 
v. Farmer--you will see in his writing where serious questions of his 
views arise. While sustaining Roe in these cases, Judge Alito's 
opinions also raised serious questions indicating if Judge Alito was 
not bound by precedent, or there was a gray area, he would weaken Roe 
by narrowly interpreting what constitutes an undue burden. Since in his 
dissent in Casey, Judge Alito argued that spousal notification was not 
an undue burden--a position rejected by the Supreme Court.
  Judge Alito may have a different interpretation of when life begins 
that could dramatically alter the Court's rulings and impact women's 
access to contraception. This concern was highlighted when in Alexander 
v. Whitman, Judge Alito wrote a separate opinion to clarify that he 
disagreed with the Court's ``suggestion that there could be `human 
beings' who are not `constitutional persons.'''
  Judge Alito may not agree with the Supreme Court's holding in Roe 
that a woman's health must be protected for a law to be constitutional. 
This issue was raised in Planned Parenthood v. Farmer where Judge Alito 
agreed with the decision of the Court to strike down a New Jersey 
abortion law. However, he asserted that the Court's opinion, including 
the discussion about the lack of a health exception, was ``never 
necessary.''
  In addition, I was deeply troubled by Judge Alito's 1985 job 
application. Let me tell you where he was in 1985. He was not a 
youngster. Senator Durbin pointed this out in the Judiciary Committee. 
He had already clerked at a New Jersey law firm. He had already clerked 
for a Federal court of appeals judge. He had spent 4 years as an 
assistant U.S. attorney, and he had spent 4 years as Assistant to the 
Solicitor General in the Department of Justice, and he had argued 12 
cases on behalf of the Federal Government before the Supreme Court and 
numerous other cases before the Federal courts of appeals. So this was 
not some naive ingenue coming down the pike, trying to get a job in the 
administration. He filled out the job application and gratuitously 
added these words, that he believed ``the Constitution does not protect 
a right to an abortion.'' He was not asked the question; he simply 
added those words. Why would you do that if you have argued 12 cases 
before the Supreme Court, if you spent 4 years as an assistant U.S. 
attorney, if you have argued before Federal circuit courts, you have 
clerked for judges--why would you do it unless it was a deeply held 
view of yours that you wanted to express?
  I asked him about this privately in my office and he said that he was 
attempting to get a political appointment. But he also told me that the 
application speaks for itself and he did not disavow what he wrote. 
That spoke volumes about where he is today. It is pretty clear to me 
that, given a chance, he would vote to overthrow Roe.
  He also wrote in that same application:

       In college, I developed a deep interest in constitutional 
     law, motivated in large part by disagreement with Warren 
     Court decisions, particularly in the areas of criminal 
     procedure, the Establishment Clause, and reapportionment.

  The Warren Court's reapportionment decisions established the 
principle of one man, one vote, and they stopped the abhorrent practice 
of diluting votes by making some voting districts larger than others. 
For example, prior to these decisions some voting districts in the same 
State were 41 times the size of others.
  As an attorney with the Solicitor General's Office of the Department 
of Justice, Judge Alito argued three affirmative action cases, each 
time urging the Supreme Court to strike down affirmative action 
programs. The arguments he made in these cases are contrary to the 
Supreme Court's subsequent decision in Grutter v. Bollinger, another 5-
4 decision where Sandra Day O'Connor was the decisive fifth vote. In 
Grutter, the Court held that the University of Michigan and other 
colleges and universities receiving Government funding could consider 
race, ethnicity, and gender in school admissions policies in order to 
encourage a diverse student body.
  Judge Alito encouraged the Senate to judge him on his 15-year record 
on the Third Circuit. An examination of this record reveals a judge who 
tends to rule against civil rights more often than his colleagues. A 
review of Judge Alito's opinions by Yale Law School professors 
concluded that in the area of civil rights law, he consistently used 
procedural and evidentiary standards to rule against female, minority, 
age, and disability claimants. Similarly, a review of 311 published 
opinions by Knight-Ridder found that, although his opinions were rarely 
written with obvious ideology, he seldom sided with an employee 
alleging discrimination.
  Here again, there is a case, Riley v. Taylor, that is particularly 
troubling. This case took place in Delaware, where prosecutors had 
excluded every African-American juror in all four of its first-degree 
murder trials that had taken place in a Delaware county that year. A 
majority of the Third Circuit, sitting en banc, concluded that 
excluding every Black juror in four State murder trials was evidence of 
race-based discrimination. I would conclude that, too. The Court noted 
that it is not ``necessary to have a sophisticated analysis by a 
statistician to conclude that there is little chance of randomly 
selecting four consecutive all white juries.''
  Judge Alito dissented. In contrast, he argued that ``there is little 
chance of randomly selecting left-handers in five out of six 
Presidential elections. But does it follow that the voters cast their 
ballots based on whether a candidate was right- or left-handed?''
  This dissent demonstrates a failure to grasp the critical point. 
Left-handed individuals have not suffered the long history of 
discrimination in this country the way African Americans have. I think 
to use that, as a Federal appellate court judge, as a bona fide 
argument to say that you can have four consecutive murder trials in a 
county and exclude every African American from the jury shows you have 
a mode of thinking that is not in the mainstream of American legal 
thinking.
  So, bottom line, based on all of the information before me, I have 
decided to vote against Judge Alito's confirmation. Mine is a vote that 
is made with the belief that a person's legal reasoning and judicial 
philosophy, especially at a time of crisis, at times of

[[Page S155]]

conflict, and at times of controversy, do mean a great deal. It is my 
belief that this nominee's legal philosophy and views will essentially 
swing the Court far out of the mainstream, toward legal philosophy and 
views that do not reflect the majority views of this country. I will 
vote no. I urge my colleagues to vote no.
  I ask unanimous consent to have printed in the Record a list of 
California organizations that oppose Judge Alito's confirmation and a 
set of letters from pro-choice organizations following my full remarks, 
and I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

     California Organizations That Oppose Judge Alito's Nomination

       ACLU of Northern California; ACLU of Southern California; 
     AFSCME California; Alliance for Justice; Asian Pacific Law 
     Caucus; Asian Pacific American Legal Center of Southern 
     California; California Church Impact; California National 
     Organization for Women; California Nurses Association; 
     California State Conference of NAACP Branches; Coalition for 
     Economic Equity; California Women's Agenda; Committee for 
     Judicial Independence; Disability Rights Education and 
     Defense Fund; Ella Baker Center; Equal Justice Society; Equal 
     Rights Advocates; Greenlining Institute.
       Lawyers Committee for Civil Rights of the San Francisco Bay 
     Area; Mexican American Legal Defense and Educational Fund; 
     MoveOn.org; NARAL Pro-Choice California; NAACP Legal Defense 
     and Educational Fund; National Council of Jewish Women 
     California; National Health Law Program; People For the 
     American Way West; Planned Parenthood Affiliates of 
     California; Planned Parenthood Golden Gate; National Lawyers 
     Guild California; Planned Parenthood Los Angeles; Progressive 
     Jewish Alliance; Public Advocates Inc.; Rainbow Push 
     California; SEIU California State Council; Sierra Club; 
     Women's Employment Rights Clinic; and Women's Leadership 
     Alliance.
                                  ____

                                      Catholics for a Free Choice,
                                 Washington, DC, January 11, 2006.
     Senator Arlen Specter,
     Chairman,
     Senator Patrick Leahy,
     Ranking Member, U.S. Senate Committee on the Judiciary.
       Dear Chairman Specter, Ranking Member Leahy and Members of 
     the Judiciary Committee: I write to you today as president of 
     Catholics for a Free Choice, an organization that shapes and 
     advances sexual and reproductive ethics that are based on 
     justice and reflect a commitment to women's well being, to 
     express our opposition to the nomination of Judge Samuel A. 
     Alito Jr. to the Supreme Court of the United States.
       Our decision to ask the U.S. Senate Committee on the 
     Judiciary to reject this nomination and not to send this 
     nominee for an up-or-down vote by the entire Senate is not 
     one that we take lightly. Indeed, Catholics for a Free 
     Choice, after examining his record an carefully following 
     Chief Justice John Roberts' confirmation hearing did not 
     oppose his nomination.
       Based on public documents released by relevant government 
     agencies and from published interviews and statements with 
     and from the nominee himself during the first days of the 
     confirmation hearing, it is evident that Judge Alito is a 
     vastly different nominee from Chief Justice John Roberts. 
     These differences, however are not only manifested in 
     judicial philosophy, but sadly in critical aspects of his 
     character and integrity.
       Our reasons for oppose this nomination go far beyond Judge 
     Alito's personal and legal opposition to reproductive health 
     services including abortion--but center on the underlying 
     principles of the qualifications necessary to serve on the 
     Supreme Court.
       In our view, serving on the highest court in the land takes 
     a fundamental commitment to the individual rights enshrined 
     in the Constitution. These include the rights of women to 
     make decisions about their bodies; the rights of employees to 
     seek judicial relief when they feel they have been 
     discriminated against based on race or gender; a belief in 
     the ``one person, one vote'' doctrine that has been a 
     pillar of American democracy; and an understanding that 
     all citizens of the United States have equal standing 
     under the law regardless of which religious tradition they 
     identify with, if any. Throughout his time on the federal 
     bench, Judge Alito has not shown an allegiance to these 
     principles and has in fact, in many cases, shown hostility 
     to them.
       Equally important is the integrity and character of the 
     mail or woman being nominated. This integrity includes a 
     consistent view of the law and a guarantee that the principle 
     espoused by the nominee are based on sound legal reasoning 
     and conscience--and not based upon which political 
     appointment or job they are applying for at the time. Judge 
     Alito has an unfortunate mate and well-documented history of 
     changing his positions on key personal rights based upon 
     which position in government he is being considered for. To 
     us, this suggests a nominee whose values in public service 
     are not grounded in principles, integrity and respect for 
     individual rights, but in the politics and personal ideology 
     of the moment.
       Judge Alito has also demonstrated through his words and his 
     actions that what he pledges during confirmation hearings 
     does not necessarily reflect his actions once confirmed and 
     behind the bench. During his 1990 confirmation hearings for 
     the U.S. Court of Appeals for the Third Circuit. Alito 
     promised to rescue himself from any cases involving Vanguard 
     Group Inc. and Smith Barney Inc., companies which have 
     handled some of his personal investments. Despite this 
     promise, Alito ruled on a case involving Smith Barney in 1996 
     and Vanguard Group in 2002. When pressed about this major 
     lapse, Alito responded that the 1990 promise applied only to 
     his first few years on the bench. This is a clearly troubling 
     example of either a major ethical lapse on the part of Judge 
     Alito or yet another example of the nominee saying one thing 
     to get the job, and then playing by different rules when he 
     wins confirmation.
       Of critical importance to Catholics for a Free Choice is 
     the outright hostility to and the politicization of 
     reproductive rights by this nominee. Unlike Chief Justice 
     Roberts who was well known to be personally opposed to 
     abortion before he was confirmed to the Court, but pledged to 
     separate those views and respect the law of the land nominee 
     Alito has made both his personal and legal views on this 
     subject a hallmark of his career advancement.
       Throughout his career, Judge Alito has shown that he 
     believes--both personally and legally--that the right to 
     choose, to make decisions about the most private and profound 
     aspect of a woman's life, i.e. when and whether to have 
     children, is not protected under the Constitution. There are 
     several examples of this, including his 1985 application 
     letter to then-Attorney General Edwin Meese III in which 
     Alito wrote that he was, ``particularly proud'' of his 
     personal contributions to legal views endorsed by the 
     administration including ``that the Constitution does not 
     protect a right to an abortion,'' and his integral role as an 
     attorney in the Reagan Justice Department where he sought 
     ``opportunity to advance the goals of overruling Roe v. Wade 
     and, in the meantime, of mitigating its effects.
       We were not convinced by his claim during his confirmation 
     hearings that he has an open mind on the right to choose as 
     embodied in Roe. Given his belief that the Constitution does 
     not protect a right to an abortion and his personal view that 
     abortion is morally untenable, it would be foolhardy to 
     accept his claim of open mindedness.
       During opening statements of the Alito hearings, Senator 
     Edward Kennedy asked the defining questions for the entire 
     hearings. He began, ``So the question before us in these 
     hearings is this: Does Judge Alito's record hold true to the 
     letter and the spirit of equal justice? Is he committed to 
     the core values of our Constitution that are at the heart of 
     our nation's progress? And can he truly be evenhanded and 
     fair in his decisions?''
       Through his words, his legal actions and his 
     incontrovertible actions to date, the simple answer is no. 
     Judge Alito cannot be counted on to issue rulings and to 
     write opinions based upon sound legal philosophy and the 
     proper consideration of past landmark rulings by the Court. 
     Judge Alito cannot be counted on to protect the individual 
     rights and freedoms of Americans who count on the federal 
     judiciary to protect them from undue burdens imposed by 
     ideologically driven governments and administration 
     officials. And lastly, Judge Alito cannot be counted on to 
     deliver justice in a manner that does not commingle 
     previously stated strongly held personal and legal viewpoints 
     that will be of serious detriment to members of our society.
       I urge you to vote no on this nomination and by doing so to 
     save the rights to privacy and the individual freedoms and 
     choice to which all Americans--regardless of race, gender, 
     religion or sexual orientation--are entitled.
           Sincerely,
                                                 Frances Kissling,
     President.
                                  ____



                                     NARAL Pro-Choice America,

                                                 January 11, 2006.
     U.S. Senate,
     Washington, DC.
       Dear Senator: On behalf of NARAL Pro-Choice America, I am 
     writing to express our opposition to the confirmation of 
     Samuel Alito to the U.S. Supreme Court. During his career, 
     Alito has consistently demonstrated hostility toward 
     fundamental reproductive rights. If he is confirmed as an 
     Associate Justice on the Supreme Court, women will likely 
     lose critical protections that Roe v. Wade established.
       At the Department of Justice in the 1980s, Alito actively 
     worked to limit and ultimately overturn Roe v. Wade. As an 
     assistant to the Solicitor General, he wrote a lengthy, 
     detailed strategy memorandum in which he recommended that the 
     Reagan administration intervene in a significant abortion-
     related case before the Supreme Court in order to advance the 
     administration's anti-choice agenda. In the memo, Alito 
     detailed his legal strategy to dismantle the protections of 
     Roe v. Wade, while pushing toward the ultimate goal of 
     overturning the landmark decision altogether. He supported 
     even the most intrusive and unreasonable restrictions on 
     reproductive freedom. Perhaps most disturbingly, he saw 
     nothing wrong with the government forcing doctors to tell 
     patients that their use of birth control may

[[Page S156]]

     cause abortion--an utterly inaccurate statement that defies 
     scientific definitions endorsed by the medical community and 
     the federal government.
       Far from claims to the contrary, Alito's work at the 
     Department of Justice was hardly that of a government 
     functionary. According to a then-colleague in the Solicitor 
     General's office, Alito sought out the opportunity to work on 
     the administration's friend-of-the-court brief in the case, 
     the colleague has explained that Alito was instrumental in 
     crafting the brief, providing ``the research, the thinking, 
     as well as the legal research and analysis.'' In application 
     for another job in the Department of Justice, Alito later 
     boasted that he was ``particularly proud'' of his 
     contribution in the case ``in which the government has argued 
     in the Supreme Court that. . .the Constitution does not 
     protect a right to an abortion.'' He emphasized that this was 
     a ``legal position'' in which he personally believed ``very 
     strongly.''
       It was my hope that, during his Senate hearings, Alito 
     would explain further these writings and share with senators 
     and the American public whether he still holds these legal 
     opinions about a woman's right to choose. Unfortunately, thus 
     far, he has failed to do so. Alito admitted that his 1985 
     statement accurately reflects his views at the time, but then 
     flatly, repeatedly, refused to answer whether he continues to 
     believe that ``the Constitution does not protect the right to 
     an abortion.'' Especially given his willingness to state his 
     legal views in other areas, we have no choice but to conclude 
     that he in fact continues to hold this extremely troubling 
     view of women's fundamental freedom, and that he will vote to 
     dismantle and ultimately overturn Roe v. Wade should he be 
     confirmed.
       Again, turning back to Alito's career: After his 
     appointment to U.S. Court of Appeals for the Third Circuit, 
     Alito tried, in the single case before him affording an 
     opportunity to shape the contours of reproductive-rights law, 
     to allow states the greatest latitude for restricting 
     women's's right to choose. As a member of the three-judge 
     panel that heard Planned Parenthood of Southeastern 
     Pennsylvania v. Casey before the case went to the Supreme 
     Court, he wrote a dissent in which he voted to uphold every 
     restriction on the right to choose at issue in the case. He 
     argued in favor of a statute that would have forced married 
     women to notify their husbands before seeking abortion care, 
     even though the statute would endanger and coerce women who 
     may fear abuse if forced to notify their husbands. Just a 
     year later, Justice Sandra Day O'Connor cast the decisive 
     vote to strike down the law. Justice O'Connor, along with her 
     coauthors, wrote, ``Women do not lose their constitutionally 
     protected liberty when they marry.''
       Alito and his defenders sometimes cite other: abortion-
     related decisions he has issued as claimed evidence that his 
     legal philosophy does not predispose him against a woman's 
     right to choose. But the claim is baseless. Planned 
     Parenthood of Central New Jersey v. Farmer was squarely 
     controlled by a Supreme Court case that dealt with a 
     virtually identical statute. Elizabeth Blackwell Health 
     Center for Women v. Knoll was decided on administrative law 
     grounds and tells us nothing about how Alito will rule on a 
     woman's constitutional right to privacy and choice. 
     Regrettably, pro-choice Americans can take no comfort in 
     these decisions. At every meaningful opportunity Alito has 
     sought to restrict our constitutional freedom of choice.
       Because Samuel Alito's record is rife with hostility toward 
     women's reproductive freedom, NARAL Pro-Choice America must 
     oppose his confirmation to the Supreme Court. I urge you to 
     vote ``no'' on this nomination.
       Thank you for your consideration.
           My best,
                                                     Nancy Keenan,
     President.
                                  ____

         Planned Parenthood, Federation of America, Inc. and 
           Action Fund, Inc.
                                 Washington, DC, January 10, 2006.
     Senator Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate.
     Senator Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate.
       Dear Chairman Specter and Senator Leahy: On behalf of the 
     Planned Parenthood, the world's largest and most trusted 
     voluntary reproductive health care provider, we urge you to 
     oppose the nomination of Judge Samuel Alito to be Associate 
     Justice of the United States Supreme Court. Planned 
     Parenthood has a long-standing history of working to ensure 
     the protection of reproductive rights, as well as working to 
     advance the social, economic, and political rights of women. 
     Because the United States Supreme Court wields the ultimate 
     and unreviewable power to define the contours of women's 
     rights, the right to privacy, reproductive freedoms, and 
     other basic civil rights, Planned Parenthood believes that 
     justices appointed to this Court must demonstrate an 
     affirmative commitment to safeguarding these fundamental 
     rights and freedoms.
       We believe that not only has Samuel Alito, Judge for the 
     Third Circuit Court of Appeals, failed to demonstrate a 
     commitment to protecting these rights, he has revealed 
     himself to be actively hostile toward them. Indeed, his 
     record is one of open antagonism toward constitutional 
     protections for reproductive rights and freedoms. Therefore, 
     PPFA strongly opposes his nomination to the United States 
     Supreme Court.
       Alito has made clear on repeated occasions his hostility 
     toward the right to choose. In 1985, while serving as an 
     Assistant to the Solicitor General in the Department of 
     Justice, Alito devised and promoted a legal strategy to bring 
     about the eventual overruling of Roe v. Wade, and, in the 
     meantime, to ``mitigate its effects.'' In an application he 
     submitted to become a Deputy Assistant U.S. Attorney General, 
     he wrote that he was ``particularly proud'' of his work on 
     cases where the government argued that ``the Constitution 
     does not protect a right to an abortion.''
       His hostility continued as an appellate judge. Indeed, 
     Judge Alito's judicial record reflects and advanced the very 
     legal strategy he laid out years earlier to undermine the 
     right to choose. Judge Alito was the lone dissenter in 
     Planned Parenthood of Southeastern Pennsylvania v. Casey when 
     the case was before the Third Circuit. Writing separately 
     from his colleagues, Alito voted to uphold a state law that 
     forced married women to notify their husbands prior to 
     obtaining an abortion. On review, a majority of the Supreme 
     Court--including Justice O'Connor--emphatically rejected 
     Alito's interpretation as one based on outdated notions of 
     women's role in marriage and society and held the husband 
     notification provision unconstitutional.
       Judge Alito's record demonstrates hostility to women's 
     equality in general and reproductive rights specifically. 
     Judge Alito has been nominated to replace Justice Sandra Day 
     O'Connor, who has for over a decade played a crucial role in 
     protecting these fundamental rights. If permitted to take 
     Justice O'Connor's seat on the High Court, Judge Alito would 
     have the power to advance his ``closely held'' personal view 
     that Roe should be overturned, to work to unravel settled law 
     and to influence adversely the course of the Constitution's 
     basic protections for access to reproductive health care for 
     more than a generation. Judge Alito's record suggests that, 
     if confirmed, he would do just that.
       On behalf of the millions of women and men who count on us 
     to protect their reproductive health, we urge you to oppose 
     the nomination of Judge Samuel Alito to Associate Justice and 
     protect the right to choose.
           Sincerely,
                                                      Karen Pearl,
     Interim President.
                                  ____


                            [Jan. 11, 2006]

               RMC Opposes Judge Alito for Supreme Court

       The Republican Majority for Choice (RMC) regrettably 
     announces its opposition to the nomination of Judge Samuel 
     Alito to the Supreme Court.
       RMC is an organization whose core mission is to protect the 
     right to choose as outlined in Roe v. Wade and to represent 
     the millions of Republicans who strongly support this right. 
     After much research and analysis of Mr. Alito's own record 
     and statements on this issue of individual freedom it is 
     clear that he is an advocate for further restricting this 
     right.
       Judge Alito seems by all measures to be an experienced and 
     capable jurist, but one who is out of step with mainstream 
     Americans on the issue of abortion and maintaining the legal 
     right to choose.
       There is no crystal ball to predict how a Justice Alito 
     would rule in future cases; therefore we have closely 
     monitored the confirmation hearings with the hope that Judge 
     Alito would offer some clarifying statements that would allay 
     our concerns about his record. Instead, he side-stepped the 
     issue of whether or not the right to privacy in the 
     Constitution extends to reproductive choice. He avoided 
     answering whether Roe was settled law and existing precedent 
     required a health exception to statutes limiting a woman's 
     access to abortion.
       Without such assurances, we can only calculate his judicial 
     philosophy on reproductive rights through the prism of his 
     past actions and statements. As the replacement for the 
     architect of the ``undue burden'' standard, the stakes are 
     too high for RMC to support an appointee who outlined a 
     blueprint to dismantle that very standard.
       The reality is that Judge Alito would not have to vote to 
     overrule Roe in order to be the architect of the denial of a 
     woman's right to choose. He could give lip service to 
     respecting Roe while upholding the numerous legislative 
     efforts to chip away at reproductive freedom. The cumulative 
     result is that Roe v. Wade and its progeny are rendered 
     meaningless.
       But Judge Alito's position on choice, however, is not the 
     only disappointment surrounding his nomination. The selection 
     of Judge Alito sends a very clear message from the Bush 
     Administration and the Republican leadership in Congress that 
     they are willing to continue steering the party into a 
     marginalized corner that puts it at odds with most voters.
       Sadly, we have come to a point at which average Republicans 
     are beginning to abandon the GOP policy and candidates. We 
     have seen this in the public outcry concerning President 
     Bush's opposition to stem cell research; we saw it last 
     November in the Virginia gubernatorial race, and we will see 
     it again this year if Republican candidates continue to 
     promote extremist views. We pledge to continue our mission to 
     promote common

[[Page S157]]

     sense solutions to help lessen the incidence of abortion 
     while ensuring that women and families maintain the safe and 
     legal right to choose. We will no longer stand by while 
     women's rights are used as a political soapbox for either 
     party.
                                  ____



                                 national Abortion Federation,

                                  Washington, DC, January 9, 2006.
     Senator Arlen Specter,
     Chairman, Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
     Senator Patrick Leahy,
     Ranking Minority Member, Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Specter and Senator Leahy: On behalf of the 
     National Abortion Federation and our members, I am writing to 
     express our opposition to the nomination of Judge Samuel A. 
     Alito to the United States Supreme Court. If confirmed, Alito 
     would shift the Court to the right and would be a vote to 
     overturn Roe v. Wade, thereby jeopardizing women's lives and 
     health.
       Alito has made no secret of his opposition to abortion and 
     a woman's constitutional right to privacy. Alito has argued 
     that the ``Constitution does not protect abortion,'' and has 
     touted his work to overturn Roe v. Wade as an early highlight 
     of his career. Although some have tried to downplay these 
     statements as evidence only of an advocate applying for a 
     job, Alito was not merely expressing his personal views or 
     advocating for a client. Instead, Alito was offering his own 
     legal philosophy and legal opinion that the Constitution does 
     not protect the right to choose.
       Additionally, Alito has actively volunteered to work on 
     cases arguing for a reversal of Roe v. Wade. For example, 
     Alito volunteered to draft the legal strategy and framework 
     for the government's brief in Thornburgh v. American College 
     of Obstetricians and Gynecologists. In that case, the 
     government's brief sought to mitigate the effects of Roe for 
     the short term while launching a ``back-door assault'' on Roe 
     for the long term. Alito's work on the brief was deemed 
     ``instrumental'' by one of his colleagues and central to the 
     drafting of the brief.
       Judge Alito's hostility to Roe v. Wade is not only evident 
     from his tenure as a government lawyer, but also from his 
     work as a judge on the U.S. Court of Appeals for the Third 
     Circuit. While serving on that court, Judge Alito supported 
     restricting access to abortion and limiting the right to 
     privacy in Planned Parenthood v. Casey. His opinion on 
     spousal notification was ultimately rejected by the Supreme 
     Court. In the 2000 case, Planned Parenthood of Central New 
     Jersey v. Farmer, Alito refused to join the majority opinion 
     in striking down a ban on abortion because it lacked an 
     exception to protect women's health. Instead, he wrote his 
     own opinion making clear he joined the decision only because 
     he was required to follow the Supreme Court precedent of 
     Stenberg v. Carhart, a case he no longer would be required to 
     follow as a Supreme Court justice.
       Rather than nominating a moderate, consensus candidate to 
     the Supreme Court, President Bush chose to bow to the 
     pressures and demands of his far-right base and nominate 
     Samuel Alito, a jurist whose judicial philosophy is clearly 
     out of the mainstream. The fact that the President chose such 
     an extreme candidate to replace Justice O'Connor, who cast 
     the swing vote in many reproductive rights cases, is 
     unacceptable. For these reasons, the National Abortion 
     Federation calls on the United States Senate to defeat the 
     nomination of Samuel Alito to the United States Supreme 
     Court.
           Sincerely,
                                                 Vicki A. Saporta,
     President and CEO.
                                  ____

  The PRESIDING OFFICER (Mr. Ensign). The Senator from Alaska is 
recognized.
  Ms. MURKOWSKI. Mr. President, I rise this morning in support of the 
nomination of Samuel Alito to the position of Associate Justice of the 
U.S. Supreme Court. I have had an opportunity over the past couple of 
days, and certainly in this past hour, sitting in the chair as you are, 
Mr. President, to listen to the discussions on both sides of the aisle 
about the nominee before us, Judge Alito. I have been listening very 
carefully to the comments that have been made and the discussion of 
certain issues. But when it comes to the issue of Judge Alito's 
credentials, I do not hear a debate about them. I do not hear a hue and 
cry that this is a man who does not have the credentials to serve in 
the U.S. Supreme Court. I believe, and I believe many of my colleagues 
would agree, that Judge Alito's credentials are exemplary. No President 
should be denied the prerogative of appointing a person who is as 
qualified as Judge Alito to the Court.
  Judge Alito, after 3 very long days of responding to over 700 
questions, emerged from these nomination hearings the same person who 
many of us who met with him understood him to be--quite simply, a 
seasoned jurist who has the intellect, the temperament, and the 
reverence for the law which is required for service on the Nation's 
highest Court. So it is not surprising that Judge Alito has received 
the American Bar Association's highest rating for any nominee. It was a 
unanimous ``well qualified'' rating.
  For those who are not familiar with how the American Bar Association 
scores or does the rating of the judges, the criteria that are looked 
to are criteria such as the judicial qualifications--the resume, the 
credentials; whether or not the individuals have presented themselves 
or conducted themselves free from bias, operating in a fair and 
impartial manner as a fair and impartial decisionmaker; and also 
looking to judicial temperament.
  The bar association, through its rating process, couldn't keep a 
scorecard as to whether the individual has ruled more times in favor of 
the big guy over the little guy. It is a process where truly judicial 
temperament, the qualification, the credentials, and the free-from-bias 
and fair decision-making, is the criteria that is looked at.
  We have heard over the course of days and in the committee hearings 
about Samuel Alito's background. He has a very moving and a very 
American personal story. Born to immigrant parents, Judge Alito is 
probably the first one to say that the person he admires most is his 
father--his father who battled barriers of prejudice until he became 
both a teacher and the first director of the New Jersey Office of 
Legislative Services.
  Judge Alito excelled at his studies. He received degrees from two Ivy 
League institutions. But I sense--I certainly picked this up in my 
meeting with him--that Judge Alito is not one to forget where he came 
from or forget his modest roots.
  His testimony in the hearings was unassuming, unpretentious. He 
thoughtfully listened, and I believe sincerely responded, to the 
committee's questions, recognizing that there are certain limitations 
in terms of predicting outcomes or sticking to the issues that might be 
before the Court should he be confirmed.
  By all accounts, including those of many Democrats who have served 
with him, Judge Alito scrupulously lets the facts and the law--the 
facts and the law, not the politics--dictate his decisions.
  What struck me during the nomination process in the hearing was the 
testimony of so many of his colleagues--and not just Republican 
colleagues but a wide range of individuals, self-professed liberals, 
and conservatives--who all spoke very highly of and who acclaimed Judge 
Alito.
  I would like to mention a couple of the comments that were made in 
the course of the testimony. The testimony of the Third Circuit Court's 
senior judge, Judge Aldisert, had this about Judge Alito:

       We who have heard his probing questions during oral 
     arguments, of being privy to his wise insightful comments in 
     our private conferences; we who have observed at firsthand 
     his impartial approach to decision-making and his thoughtful 
     judicial temperament and know his carefully crafted opinions; 
     we--who are his colleagues--are convinced that he will also 
     be a great Justice.

  Here is another statement from one of his colleagues, from Judge 
Edward Becker, who serves on the Third Circuit, and who sat with Judge 
Alito on over 1,000 cases. He described the judge as:

       Brilliant . . . highly analytical, and meticulous and 
     careful . . . The Sam Alito that I have sat with for fifteen 
     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.

  Still another colleague, Judge Leonard Garth, described him as ``an 
intellectually gifted and morally principled judge . . . he will always 
vote in accordance with the Constitution and laws as enacted by 
Congress.''
  I believe these qualities are critical; for when Judge Alito is 
confirmed, as I believe he will be, he will have giant shoes to fill. 
The legacy that Justice Sandra Day O'Connor will leave is one of fair-
mindedness, open-mindedness, and lack of an ideological agenda. Justice 
O'Connor once described her approach to cases in this way:

       It cannot be too often stated that the greatest threats our 
     constitutional freedom comes in times of crisis . . . The 
     only way

[[Page S158]]

     for judges to mediate these conflicting impulses is to do 
     what they should do anyway: stay close to the record in each 
     case that appears before them, and make their judgments based 
     on that alone.

  Based on my conversations with Judge Alito, his testimony before the 
committee, and the statements of so many of his colleagues who know his 
work best, I am confident that Judge Alito will have that open- and 
fair-mindedness. He told the Judiciary Committee:

       Good judges are always open to the possibility of changing 
     their minds . . . Result-oriented jurisprudence is never 
     justified because it is not our job as judges to try to 
     produce particular results.

  In his opening statement, Judge Alito recalled the oath that he made 
at the time he was sworn as a judge of the court of appeals. He stated 
that he would ``administer justice equally, both to the rich and the 
poor'' and that he would ``carry out the laws and the Constitution'' to 
the best of his ability.
  I believe Samuel Alito has done that for nearly two decades as a 
Federal judge. I will certainly look to him to do that in his new 
role--again, without agenda, without prejudgment, without bias.
  I join many of my colleagues on the Senate floor this morning in 
supporting the nomination of Judge Samuel Alito to the U.S. Supreme 
Court.
  I yield the floor.
  Mr. HAGEL. Mr. President. I rise to announce my intention to vote in 
favor of Judge Samuel A. Alito's nomination to be an Associate Justice 
of the Supreme Court of the United States.
  The Senate Judiciary Committee and others have thoroughly scrutinized 
his background and credentials. Hundreds of documents and memos he 
produced as a lawyer have been reviewed, along with hundreds of 
judicial opinions he authored or participated in during his 15 years as 
a Federal court of appeals judge. Those documents have revealed a 
strong intelligence and a deep respect for the law and the 
Constitution.
  Earlier this month, the Judiciary Committee held several days of 
hearings on Judge Alito's nomination. Everything in those hearings 
reinforced my impressions of Judge Alito from my meeting with him in 
November. He was forthcoming during the committee members' questioning, 
candidly answering hundreds of questions regarding specific cases, the 
law, and his judicial philosophy. His judicious temperament during the 
hearings was apparent.
  During the hearings, I was also impressed by the comments of seven 
current and former Third Circuit Court of Appeals judges. They 
testified in support of Judge Alito's nomination to the Supreme Court. 
This support by the individuals most familiar with Judge Alito's skills 
and judgments carries great weight.
  Finally, last month, the American Bar Association unanimously rated 
Judge Samuel Alito as ``well qualified'' for his appointment as 
Associate Justice of the Supreme Court. This is the highest rating that 
can be given to a judicial nominee. Given Judge Alito's performance at 
the hearings and the strong support for his nomination, no one should 
be surprised by this top ABA rating.
  I enthusiastically endorse and support Judge Alito's nomination. I 
believe he will bring a solid base of legal and judicial experience to 
the Court. The President has chosen wisely, and I encourage my Senate 
colleagues to join me in voting for this exceptional nominee.
  Mr. VOINOVICH. Mr. President, I rise today to urge my colleagues to 
vote to confirm Judge Samuel A. Alito, Jr., as an Associate Justice of 
the U.S. Supreme Court.
  Before I discuss my reasons for supporting Judge Alito, I would like 
to make a few remarks about the judicial confirmation process. Judge 
Alito is the second nominee to the Supreme Court since I was elected to 
the Senate. I have been pleased with how his nomination has been 
handled by both the White House and the Judiciary Committee.
  I wish to compliment Senator Specter and Senator Leahy for the 
excellent job they have done in handling the confirmation hearings for 
Judge Alito. The hearings were fair and orderly. These hearings gave 
the country an important opportunity to see what type of person Judge 
Alito is: one with a long history of service to his country and with a 
true love of the law. As was the case with the confirmation hearings 
for Chief Justice Roberts, the ``advice and consent'' process gave the 
country a valuable lesson in constitutional law, showing that each 
branch of Government plays a valuable role in our democracy.
  The President has nominated another fine candidate to the Supreme 
Court. History will look back on the nomination of Judge Alito, 
combined with President Bush's nomination of Chief Justice Roberts, as 
one of the most important legacies of the Bush administration.
  A Supreme Court nominee must have two qualities. First, a nominee 
must have an exceptional intellect. Second, a nominee must be committed 
to the rule of law. I am very pleased to say that based on everything I 
have seen and heard, Judge Alito has demonstrated both of these 
qualities.
  It is difficult to see how Judge Alito could have more impressive 
professional credentials. From his academic record to his almost 30 
years in government service, including 15 years on the U.S. Court of 
Appeals for the Third Circuit, Judge Alito has accumulated a remarkable 
record of achievement.
  As my colleagues have previously noted, Judge Alito graduated from 
Princeton University, was elected to Phi Beta Kappa, and was selected 
as a Scholar of the Woodrow Wilson School of Public and International 
Affairs. Judge Alito then attended Yale Law School where he served as 
an editor of the Yale Law Journal.
  Since his start as a young lawyer, Judge Alito has shown a commitment 
to public service in the Jeffersonian ideal of the citizen-lawyer. 
Judge Alito served as a law clerk to Judge Leonard Garth of the U.S. 
Court of Appeals for the Third Circuit. After completing his clerkship, 
Judge Alito began his legal career as an Assistant U.S. Attorney 
briefing and arguing cases before the Third Circuit. I hope that Judge 
Alito's commitment to public service is noted by law students and young 
lawyers around the country as they think about their career choices. 
Judge Alito's experience stands as a model of public service and has 
led him to the opportunity to obtain one of the highest honors a lawyer 
can hope to achieve, a chance to serve his country as an Associate 
Justice of the U.S. Supreme Court.
  In 1987, Judge Alito was nominated and approved by unanimous consent 
as the U.S. attorney for the District of New Jersey. As U.S. attorney, 
Judge Alito prosecuted a wide variety of cases, including those 
involving white collar and environmental crimes, drug trafficking, 
organized crime, and violations of civil rights. Judge Alito's 
extensive experience as a Federal prosecutor will add a unique 
perspective to the Court's decisionmaking process.
  In 1990, Judge Alito was unanimously confirmed by the Senate to serve 
on the U.S. Court of Appeals for the Third Circuit. Throughout his 15 
years as a judge on the Third Circuit, Judge Alito has developed a 
reputation as a methodical, gracious, even-tempered jurist with a 
history of fairness for all who appear before him. Judge Alito is also 
known for producing well-written and well-reasoned opinions. His 15 
years on the Third Circuit give Judge Alito a unique and seasoned 
perspective on, and appreciation for, the courts.
  His impressive educational and professional background makes Judge 
Alito well prepared to be an Associate Justice of the Supreme Court. As 
he displayed during his confirmation hearings, he has an encyclopedic 
knowledge of the Supreme Court and of constitutional law. Yet he also 
has diverse, real-world experience in government and in how law 
interacts with the actual day-to-day operation of government. Judge 
Alito has the ideal balance of academic and practical experience.
  Given his professional achievements, it is not surprising that the 
American Bar Association has given Judge Alito its highest rating. Mr. 
Stephen L. Tober, the chairman of the American Bar Association's 
Standing Committee on the Federal Judiciary, noted in his statement, 
the ABA unanimously concluded that Judge Alito is ``well qualified'' to 
serve as Associate Justice on the U.S. Supreme Court. The ABA noted 
that ``[Judge Alito's] integrity,

[[Page S159]]

professional competence, and judicial temperament are indeed found to 
be of the highest standing. Judge Alito is an individual who, we 
believe, sees majesty in the law, respects it, and remains a dedicated 
student of it to this day.''
  Judge Alito has shown a commitment to the rule of law. Now, no two 
people will agree on how to interpret every provision of the 
Constitution or of every statute. Nevertheless, Judge Alito's statement 
that ``there is nothing that is more important for our republic than 
the rule of law'' is an important testament to his commitment to 
ensuring that the rule of law, and not individual preferences of 
Justices, remains supreme. It is essential that any nominee displays a 
conscious commitment to deciding cases based on the law, rather than on 
his or her own personal views.
  During Judge Alito's confirmation hearings, I was struck by how 
dedicated he is to the law and to correctly applying the law as a 
judge. As Judge Alito noted, ``The judiciary has to protect rights, and 
it should be vigorous in doing that, and it should be vigorous in 
enforcing the law and in interpreting the law . . . in accordance with 
what it really means and enforcing the law even if that's unpopular.'' 
He went on to state, ``A judge can't have any agenda. A judge can't 
have any preferred outcome in any particular case. And a judge 
certainly doesn't have a client. The judge's only obligation--and it's 
a solemn obligation--is to the rule of law, and what that means is that 
in every single case, the judge has to do what the law requires.''
  I observed Judge Alito's demeanor and conduct during this 
confirmation process, as he refused to abandon his judicial 
independence for the sake of political expediency. As Judge Alito 
noted, ``We shouldn't decide those questions, even in our own minds, 
without going through the whole process. If we announce--if a judge or 
a judicial nominee announced before even reading the briefs or getting 
the case or hearing the argument what he or she thought about the 
ultimate legal issue, all of that would be rendered meaningless, and 
people would lose all their respect for the judicial system, and with 
justification, because that is not the way in which members of the 
judiciary are supposed to go about the work of deciding cases.''
  Accordingly, I have every confidence that parties who appear before 
Judge Alito will encounter a judge who is committed to viewing each 
case without bias and to reaching a decision that is dictated by the 
rule of law alone.
  Finally, I want to offer some personal observations about Judge 
Alito. Too often we view executive and judicial nominees through 
political or ideological glasses and not as human beings. Nominees 
quickly get labeled as being a ``Republican nominee'' or a ``Democratic 
Nominee'' or as belonging to a particular school of thought or being a 
follower of a particular thinker or politician. This is unfortunate as 
each nominee's character gets overlooked and we fail to see this 
important aspect of each nominee. It is, however, a nominee's character 
that can have the biggest impact on his or her work.
  In Judge Alito, I believe the Senate has before it not only a nominee 
who has the capability to be a great Associate Justice but also a 
nominee who is simply a wonderful person.
  I share Judge Alito's appreciation of the great and wonderful 
opportunities for all Americans. I was moved by Judge Alito's 
sentiments about his father, as he recalled how a ``small good deed'' 
from a local Trenton area person allowed his father the chance to 
attend college and how this act of kindness eventually led to Judge 
Alito's presence before the U.S. Senate. I can relate to the story of 
Judge Alito's father because my own father was strongly influenced by 
his high school principal and a history teacher to stay in school 
rather than take a laborer's job. With the strong encouragement from 
these two individuals, my father completed high school and attended 
Carnegie Tech on a Kroger's Scholarship. Such stories are familiar to 
many descendants of immigrants and they show that the American Dream is 
still alive and well.
  During my meeting with Judge Alito, he displayed a gracious manner 
and humble attitude. He is clearly very smart and engaging, and it was 
a pleasure to hear him explain his view of the Supreme Court and the 
rule of law. But he is also a very openminded person who listens to 
others with sincerity and a willingness to hear their views. For such a 
brilliant and successful person, I did not detect a hint of arrogance. 
He is a dedicated family man with a good sense of humor whom I believe 
all Americans will be able to respect and admire.
  I have also been pleased to hear that my impressions of Judge Alito 
have been echoed by so many others during the hearings. I point 
particularly to the testimony of Professor Nora Demleitner, a self-
professed ``left-leaning Democrat,'' who served as a law clerk with 
Judge Alito after graduating from Yale Law School. Professor Demleitner 
described Judge Alito as ``a man of great integrity, decency and 
character.'' Professor Demleitner also noted that Judge Alito is one of 
her role models and that he has one of the most brilliant legal minds 
of our generation.
  In short, Judge Alito displays the openmindedness, humility and 
commitment to serving the public interest that should serve as the 
paradigm of judicial temperament for members of our highest Court.
  In reviewing Judge Alito's academic and professional record, his firm 
commitment to the rule of law, and his strong character, it is clear 
that Judge Alito is eminently qualified to serve on the Supreme Court. 
It would be truly unfortunate if we allow this nomination to fall 
victim to the partisanship that has been growing in the Senate.
  I, therefore, urge my colleagues to support the nomination of Judge 
Alito to be the next Associate Justice of the Supreme Court.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, as a member of the majority and sitting as 
the President of the Senate yesterday, I was able to hear several hours 
of debate on the nomination of Judge Sam Alito, Jr.
  I heard time and again dire predictions that Judge Alito is going to 
give the executive branch complete authority over our Government, 
including himself on the Supreme Court. Those who oppose him never 
mentioned one single case where Judge Alito ruled in favor of the 
President or expanded Executive power--not once. They think if they 
just keep repeating the same far-left smear--one dreamt up by far-left 
groups such as Ralph Neas' People for the American Way and Nan Aron's 
Alliance for Justice--the American people will fall for it.
  It is disturbing to me that those who oppose Sam Alito are taking 
their cues from people such as Nan Aron and the Alliance for Justice 
who, even before the hearings began, before we had any hearings 
whatsoever, bragged, ``You name it, we'll do it,'' to sink Judge Alito.
  I think the American people and their elected representatives would 
rather base their views on the lawyers and judges from across the 
political spectrum who had actually known Judge Alito.
  Former Third Circuit Judge Gibbons explained his faith in Judge 
Alito's ability to fairly judge cases in which the government is 
asserting its executive power. 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 that administration. On the contrary, I 
and my firm have been litigating with that administration for a number 
of years over its treatment of detainees held at Guantanamo Bay, Cuba, 
and elsewhere, and we are certainly chagrined at the position that is 
being taken by the administration with respect to those detainees. I am 
confident, however, that as an able legal scholar and a fair-minded 
justice, he 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.''
  Defense lawyers who litigated against Judge Alito confirm that when 
Judge Alito was part of the executive branch, he had a modest view of 
its power.
  The New York Times reported that one defense attorney, Dan Ruhnke,

[[Page S160]]

said that Judge Alito lacked the ``cop mentality'' of many career 
prosecutors and was ``never a cheerleader for law enforcement.''
  Another defense attorney, Drew Barry, said that Judge Alito was ``not 
a bloodthirsty United States attorney,'' and that he was ``a vigorous 
prosecutor who went after a wide variety of bad guys, but his 
reputation was not someone who would ask for the heaviest sentences.''
  As a member of the Judiciary Committee and in my time in the Senate, 
this is a sorrowful time for me.
  The politics of personal destruction were all too evident in the 
Senate hearing and continue on the floor of this body.
  The ``guilt by association'' standard of those who oppose Sam Alito 
would disqualify anybody who would be nominated no matter who the 
President is.
  The idea that politics guides the Supreme Court nominations process 
in the Senate is new. The idea of the ``results only in my eyes 
qualification'' proves that those who challenge the integrity of Sam 
Alito require standards that they themselves could never live up to.
  To be critical is fair to the process of confirmation, but 
destruction and absolute mischaracterization of one's record the way we 
have seen reaffirms the lack of fairness and conscience of those who 
carry out such tactics.
  As a member of the Judiciary Committee, I spent 4 days listening, 
questioning, and watching--not only Sam Alito but all those who came to 
testify for him and those who came to testify against him.
  Here is what I observed--not as a lawyer, not as a Senator, but as a 
physician trained in the art of observation and the art of listening.
  Sam Alito is a man of high moral character. You do not hear the 
direct words challenging that, but you hear everything indirectly.
  He is also a man of intellectual brilliance, impressing everyone who 
comes in contact with him.
  He is a man of dedication to the law, to equal justice under the law.
  He is a man who has shown dedicated commitment to the things that are 
important in our country.
  He is a man who is completely sold out to one thing, and one thing 
only: His record and his life has demonstrated equal justice under the 
law.
  What I also observed was a great diversity of political background of 
those who support him, those who know him, those who have worked with 
him for the last 15 years, regardless of their political views, either 
liberal or conservative, regardless of their gender or their color, 
regardless of their view on abortion.
  Those who know him uniformly support him as a great jurist, a man of 
integrity and conscience, and one who is completely sold out to the 
idea that everyone in this country has equality under the law.
  Those who know him, those who testified, of all stripes, of all 
political persuasions, would and are challenging what we have been 
hearing on the floor by those who oppose him--the mischaracterization 
of his rulings, the mischaracterization of his beliefs, the 
mischaracterization of his actions.
  What I also observed, which concerns me even more, was that those who 
don't know him but have a political agenda to keep the Court activist 
and beyond its constitutional bounds oppose him. They do not know him. 
But what they do know is judicial activism, making law where none 
exits, which they put before a judiciary committed to equal justice 
under the law.
  That is why he is being opposed. Their greatest fear is the Court 
will return to a place where the Constitution, the statutes, and 
treaties are interpreted, but personal political agendas are left at 
the door.
  They fear the battles lost in the legislatures will no longer be 
carried out by judicial fiat. The former Soviet Union is the great 
example. They had a constitution but there was not equal justice under 
that constitution.
  During Chief Justice Roberts' opening statement to the Judiciary 
Committee, he referenced the fact that the most powerful entity in the 
world, the U.S. Government, deferred to the rule of law when the Court 
was convinced that a private client was right on the law and the 
Government was not. He referenced President Reagan's speeches about the 
Soviet Constitution and how it purported to grant wonderful rights of 
all sorts to people, but those rights were empty promises because that 
system did not have an independent judiciary to uphold the rule of law 
and enforce those rights. Roberts concluded:

       We do, because of the wisdom of our founders and the 
     sacrifices of our heroes over the generations to make their 
     vision a reality.

  Under our law, the mighty can be defeated by the meager.
  We heard yesterday the philosophy of those who oppose this great 
jurist. Let me quote it exactly because it is very dangerous. This 
quote is from the Senator from Rhode Island:

       . . . in truth the Supreme Court is the Constitution.

  If that is so, we are no longer a nation of laws but rather a nation 
of judges. That is not America. That is not freedom. That creates nine 
kings, the exact opposite of what our Founders intended. That is the 
very thing the American people rejected in the election of 2004. It was 
about judges.
  Finally, let's talk about the real issue that will cause most people 
to oppose him. They fear he may truly believe in liberty for all. That 
is their fear. Let me explain. Senator Kennedy had a very eloquent 
quote during the hearing. I would like to repeat it:

       America is noblest when it is just to all of its citizens 
     in equal measure. America is freest when the rights and 
     liberties of all are respected. America is strongest when we 
     can all share fairly in its prosperity. And we need a court 
     that will hold us true to these guiding principles today and 
     into the future.

  But he did not mean ``all,'' he meant all those except the truly 
innocent and truly weak, the preborn child. Behind me are two pictures, 
one of a 26-week-old preterm infant in a neonatal IC unit, smaller than 
your hand; and the other picture is of a 26-week preborn child's face 
seen by ultrasound.
  The Declaration of Independence states:

       We hold these truths to be self-evident, that all Men are 
     created equal, that they are endowed by their Creator with 
     certain inalienable Rights, that among these are Life, 
     Liberty and the Pursuit of Happiness . . .

  So, America, ask yourself, how did we get to the point that the 
accidental killing of a 26-week unborn infant is a felony but taking of 
that same life by abortionists is legal? It is schizophrenic. Why 
should your liberty be based on your location inside the womb or out?
  The Court's jurisprudence on liberty and privacy interests is 
fundamentally flawed. They fear a correction in that flaw.
  To quote Robbie George of Princeton University:

       On what constitutional basis can we say that abortion is 
     protected by ``due process'' but a right to assisted suicide 
     . . . is not? Why is sodomy protected and prostitution 
     unprotected? Why does the right to privacy not extend to 
     polygamy or the use of recreational drugs?

  That is the kind of justice you have when you are a nation of judges 
and not law. Hopefully, someone of Sam Alito's character can steer the 
ship back to liberty for all, including the weakest and most innocent 
of all. Sam Alito was sold out to this document, the U.S. Constitution. 
He sold out to equal justice under the law. We need to speak truthfully 
about the opposition to him. We need to speak truthfully about the 
problems that have been created by an activist Court, and about the 
opposition to bring back and steer the ship to where the judges make 
judgment based on the Constitution, laws, and the treaties of this 
country, not their political philosophies.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TALENT. Mr. President, it is a privilege for me to spend a few 
minutes visiting with the Senate about Judge Alito. Based on my study 
of his record and my discussions with him, I believe, if confirmed, he 
will turn out to be one of our best Supreme Court Justices.
  I do not know that anybody on the floor has contested his 
professional qualifications. He is certainly exceptionally qualified, 
at least based on

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that, to serve on the Nation's highest Court. He has the experience, 
the temperament, and integrity that America expects in a Supreme Court 
Justice.
  Judge Alito has more prior judicial experience than any Supreme Court 
nominee in more than 70 years. He has served for 15 years as a judge on 
the Court of Appeals for the Third Circuit. He participated in the 
decisions of more than 1,500 Federal appeals. He wrote more than 350 
opinions. I think his clerks probably have to work pretty hard, he has 
been so busy. This is why I wonder why some people say they do not know 
enough about what he might do. I do not know how any judge, how any 
candidate could qualify on that basis, if Judge Alito does not.
  He served as the top Federal prosecutor in one of the Nation's 
largest Federal districts. He was an appellate advocate for the United 
States in the Office of Solicitor General. He was a Deputy Assistant 
Attorney General in the Office of Legal Counsel. He received his 
bachelor's degree from Princeton. I would not hold that against him. He 
was elected Phi Beta Kappa at the time. He went to Yale Law School, 
where he served as an editor on the Yale Law Journal. That is quite a 
record.
  During last week's hearing, Judge Alito answered over 700 questions 
for more than 18 hours. He was thoughtful and thorough in answering the 
tough questions. He was humble throughout the process, which is 
something I personally look for when considering anybody who is seeking 
a life appointment and particularly a judicial appointment. I think a 
big dose of ``humble'' is important if you want to be a judge because 
you are in the position, as a judge, to be rude to people and they 
cannot be rude back to you. I think you ought to have a temperament 
where you are not tempted to do that.
  What does the record and the process reveal about this nominee? 
Simply that he is one of the finest nominees ever to come before the 
Senate. We learned a lot about him as a person during this process as 
well. He is certainly brilliant and hard working. He went before the 
Judiciary Committee without a note. He is a man of integrity. He is 
honest. He is devoted to his family. These are all qualities we want in 
the men and women who serve our Nation on the high Court. These are the 
kinds of qualities that will move America forward and move the judicial 
branch forward.
  He has proven beyond any doubt that he has the qualifications, the 
temperament, the knowledge, and the understanding of the Constitution 
to serve on the United States Supreme Court. I do not know how you can 
prove it, if he has not proven it. I would imagine even those who are 
going to oppose his nomination for other reasons would agree he has the 
right kind of temperament and qualifications. He wants to be on the 
Court because he loves the law. And he is a judge because he wants to 
serve the United States. Those are the right reasons to want to be on 
the Supreme Court.
  I made a point on other occasions about judicial nominations that I 
think is relevant here. It is, in a way, misleading to talk about a 
judicial nominee being in or out of the mainstream of American 
jurisprudence because the truth is there is more than one mainstream. 
Lawyers are divided over which jurisprudential theory ought to guide 
judges in interpreting the statutes and in interpreting the 
Constitution. Just as we in the Senate disagree, legitimately, about 
political philosophy, lawyers also disagree about jurisprudential 
philosophy.
  Oftentimes, there is not any one completely correct answer when you 
are interpreting a vague provision of the Constitution, but that does 
not mean there are no incorrect answers. Because reasonable people 
looking at the history and the text of the document might disagree as 
to what is exactly the right answer in a given case does not mean there 
are no wrong answers. And a wrong answer, as Judge Alito said so 
clearly in his introductory remarks before the Judiciary Committee and 
throughout his testimony, is an answer that does not respect the rule 
of law.
  Here is what Judge Alito said:

       The judge's only obligation--and it's a solemn obligation--
     is to the rule of law, and what that means is that in every 
     single case, the judge has to do what the law requires.

  A wrong answer is one that is based on an idea of the judicial role 
that allows the judge to do whatever he or she thinks they would want 
to do if they were in control of the policy involved in an issue. 
Whatever their theory of interpreting the Constitution is, they should 
be consistent in applying it. Judges should not work for a particular 
outcome or agenda.

  Here is what Judge Alito said on this issue:

       Results-oriented jurisprudence is never justified because 
     it is not our job to try to produce particular results. We 
     are not policy makers and we shouldn't be implementing any 
     sort of policy agenda or policy preferences that we have.

  As Chief Justice Roberts said when he was testifying before the 
Judiciary Committee: Judges are umpires. They are not the rule-makers. 
The people are the rulemakers, through their representatives, in their 
laws and in their Constitution.
  In another statement Judge Alito said:

       I don't think a judge should be keeping a scorecard about 
     how many times the judge votes for one category of litigant 
     versus another in particular types of cases. That would be 
     wrong. We are supposed to do justice on an individual basis 
     in the cases that come before us. But I think that if anybody 
     . . . looks at the cases that I have voted on in any of the 
     categories of cases that have been cited, they will see that 
     there are decisions on both sides.

  He went on to say:

       In every type of employment discrimination case, for 
     example, there are decisions on both sides.

  Because of this respect for the rule of law, the individuals who know 
Judge Alito best--and that includes Republicans and Democrats, his 
colleagues on the bar and on the bench--have overwhelmingly supported 
his elevation to the Supreme Court. I think it is important, when you 
look at nominees, to make certain they have support from people from 
all parts of the political spectrum and all parts of the 
jurisprudential spectrum.

  Let me quote a couple people.
  Nora Demleitner is the vice dean for academic affairs and professor 
of law at Hofstra University School of Law. And to this point I have 
not cited anybody from Missouri supporting Judge Alito, but I am going 
to vote for him anyway. She said:

       Now, since the very early days of my clerkship, I must 
     admit that Judge Alito has really become my role model. I do 
     think he is one of the most brilliant legal minds of our 
     generation, or of his generation, and he is a man of great 
     decency, integrity and character. And I say all of this as 
     what I would consider to be a left-leaning Democrat; a woman, 
     obviously; a member of the ACLU; and an immigrant.

  This is Dean Demleitner speaking.
  In addition, Judge Aldisert, who has served with Judge Alito on the 
Third Circuit, had the following to say:

       In May 1960, I campaigned with John F. Kennedy in the 
     critical Presidential primaries of West Virginia. The next 
     year, I ran for judge . . . and I was on the Democratic 
     ticket, and I served eight years as a State trial judge. As 
     the Chairman indicated, Senator Joseph Clark of Pennsylvania 
     was my chief sponsor when President Lyndon Johnson nominated 
     me to the Court of Appeals, and Senator Robert F. Kennedy 
     from New York was one of my key supporters. Now, why do I say 
     this? I make this as a point that political loyalties become 
     irrelevant when I became a judge. The same has been true in 
     the case of Judge Alito, who served honorably in two 
     Republican administrations before he was appointed to our 
     court. Judicial independence is simply incompatible with 
     political loyalties, and Judge Alito's judicial record on our 
     court bears witness to this fundamental truth.

  I could go on with other quotes. I am not going to. I suppose 
everything really has been said about Judge Alito in the Senate, 
although not everybody said it, so the debate is going to go on for a 
while. But I do think the first and most basic right we all have as 
political actors--in the sense that every person who lives in this 
country shares in running the Government--the first and most basic 
right we have is the right to govern ourselves through the processes 
set up in our Constitution. It is not out of a desire to avoid 
difficult decisions but out of a respect for that right that Judge 
Alito talked about the rule of law.
  I want to say this. Whether your views about social policy are on the 
right side of the political spectrum or whether they are on the left 
side of the political spectrum, I believe we can all rest easily in 
leaving the development of our culture and our society to the wisdom 
and the decency of the American people. The center in this country

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has held in the past, and it will hold in the future.
  As President Franklin Roosevelt said: This Nation will endure as it 
has endured, and not because of the courts, not because of the 
Congress, not because of the President but because of the people. They 
will move us in an orderly and decent direction, as they have for 200 
years. We do not need to be governed by guardians or dictators, whether 
they are in the form of judges or anybody else. That is what Judge 
Alito meant when he was talking about the rule of law.

  I have said from the beginning of this debate--and I withheld my 
decision about the judge until I had a chance to meet him and watch the 
hearings and get a feel for who he is--he deserved a fair and 
respectful confirmation process, ending in a timely up-or-down vote on 
the Senate floor. I hope he will receive that. I believe, if confirmed, 
he will respect the Constitution, he will apply a consistent 
jurisprudence, without imposing his personal views on the law. For that 
reason, I am pleased to vote to confirm Judge Alito. I am hopeful the 
full Senate will give this highly qualified nominee a fair up-or-down 
vote and then send him to service on the U.S. Supreme Court.
  I thank the Chair and yield back whatever remains of my time.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. VITTER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VITTER. Mr. President, I rise in support of the nomination of 
Judge Samuel A. Alito to be an Associate Justice of the U.S. Supreme 
Court. I am supporting Judge Alito's nomination because he is, No. 1, 
superbly qualified to sit on the Supreme Court, and, No. 2, and as 
important, he possesses the right view of the role of a judge, the 
right judicial philosophy, which I think is essential in terms of 
taking a seat on that high Court.
  The appointments clause, article II, section 2, clause 2, of the 
Constitution gives the President the plenary power to nominate certain 
high-level officials and, as important, bestows on the Senate a crucial 
role, a crucial constitutional role, of advice and consent.
  Like, I hope, every Member of this body, I take that constitutional 
duty of advice and consent very seriously. I owe it as high as any duty 
to the Louisiana people I represent. In line with that, I will neither 
provide a rubberstamp of approval for all of President Bush's nominees 
nor will I automatically disapprove any Democratic President's nominees 
for the Supreme Court or any other Federal court.
  I think I have shown my seriousness of purpose in that regard in my 
short time in the Senate. I have studied the qualifications and legal 
writings of all nominees to see whether they possess a consistent and 
well-grounded judicial philosophy and have the right credentials and 
qualifications.
  I was very upfront about being mindful of that responsibility when 
Harriet Miers was nominated. I looked very carefully at her 
qualifications and her judicial philosophy and, quite frankly, I 
expressed some real reservations about that.
  That is why, after Judge Alito was nominated, I focused on those 
qualifications and that judicial philosophy just as hard. I met him 
personally. I watched his confirmation hearings. I read his record. 
That is the process I used to reach this conclusion, that, No. 1, he is 
eminently qualified in terms of credentials and background, and, No. 2, 
he has the right judicial philosophy, the right view of the role of a 
judge in our society.
  Let's talk, first, about those basic legal qualifications. Again, 
Judge Alito is superbly qualified. His academic achievements and his 
distinguished career make that clear.
  He has a bachelor's degree from Princeton University and a J.D. from 
Yale Law School. After graduating from law school, Judge Alito began 
his career in public service as a clerk for Judge Leonard Garth on the 
Third Circuit Court of Appeals and is now a colleague of his on that 
court. He served as an assistant U.S. attorney, Assistant to the U.S. 
Solicitor General, Deputy Assistant Attorney General, and U.S. attorney 
for the District of New Jersey. He has argued specifically before the 
U.S. Supreme Court 12 cases, at least two dozen court of appeals cases; 
direct, relevant and impressive experience in terms of that sort of 
high-level litigation.
  In 1990, President George H.W. Bush nominated Judge Alito for the 
Third Circuit Court of Appeals, and he was confirmed by unanimous 
consent in this body because of his strong credentials and clear and 
overwhelming qualifications. Of course, today those qualifications are 
even greater because he has served as a judge on that circuit court for 
the past 15 years.
  After being nominated to the U.S. Supreme Court, the ABA rated Judge 
Alito as ``well qualified.'' That is the highest rating possible. 
Everyone recognizes the ABA is not some conservative political group by 
any stretch of the imagination. If its membership has a slant, it is 
probably to the left. That is the gold standard, that rating of 
judicial qualifications and credentials. Again, Judge Alito received 
the highest rating.
  Then he had his confirmation hearings. Despite some ugly questioning, 
frankly, and some smear tactics, in my opinion, he had an impressive 
performance. He demonstrated clear humility and indepth understanding 
of legal matters. And perhaps most impressive in terms of what he faced 
from the minority side, he maintained his composure in an unfortunately 
partisan atmosphere.
  As I said at the beginning, those credentials and qualifications, 
that legal background is the first important matter I look to. But it 
is not the only matter. The second equally important matter I look to 
is a person's judicial philosophy. Do they understand the correct role 
of a judge in society? I have thought a lot about that regarding all 
nominees who have come before this body. I thought Judge Roberts 
expressed that role precisely right when he talked about being an 
umpire and not a pitcher or a batter. Judge Alito has that same view of 
the appropriate role of a judge.
  Throughout the debate over judicial nominees, this notion of whether 
a nominee possesses the right judicial philosophy has been asked a lot. 
Some may ask what this term means and why it is important. Again, it is 
important because it goes to the heart of the role of a judge and how 
this democracy works. I believe what it means is a commitment to the 
rule of law, a commitment to the Constitution as written, and a 
commitment not to let one's personal political views or personal 
political leanings or prejudices enter into any of those important 
decisions on the Court. It requires a judge to be openminded, to 
analyze the law carefully, to analyze the facts of each case based on 
the Constitution and the law. It requires a judge not to do what can be 
tempting--intoxicating in terms of the power a judge can hold--not to 
make new law based on personal opinion, not to play legislator but to 
follow the law as enacted by the Congress or the State legislature.
  Judge Alito has demonstrated that right judicial philosophy. He has 
demonstrated his unwillingness to change the law to fit his personal 
beliefs. He stated clearly:

       There is nothing that is more important for our Republic 
     than the rule of law. No person in this country, no matter 
     how high or powerful, is above the law, and no person in this 
     country is beneath the law.

  What is vital and embedded in the concept of the rule of law is the 
application of the law as written, not judges becoming kings or 
legislators and imposing their views and legislating from the bench. I 
believe this is the second and crucial matter we must look to in the 
confirmation of judges, particularly those who would be Justices of the 
U.S. Supreme Court. I have great confidence in Judge Alito's correct 
understanding of the role of a judge.
  It has troubled me that throughout this confirmation process, some of 
my colleagues and many outside interest groups, many members of the 
press, have demonstrated a different view of the role of a judge. One 
way they have demonstrated that is by treating Judge Alito more akin to 
a candidate for political office than a nominee for the highest Court. 
They have talked about judges taking sides, being on this side

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versus that side, taking the side of labor versus management, taking 
the side of environmentalists versus business groups, taking the side 
of the little guy versus the big guy. In talking in those terms, many 
Members of this body and many liberal interest groups and many members 
of the press have demonstrated a completely different view of the role 
of a judge which is inappropriate. Other than the fact that many of 
their characterizations of Judge Alito in these terms are false-- for 
instance, he has decided in favor of employment discrimination 
plaintiffs in 22 percent of the cases, whereas the national average is 
13 percent--it troubles me that the public is being led to believe that 
we should think of judges as legislators, that it should be a results-
oriented discussion.

  This goes to the heart of the confirmation process. The role of the 
judiciary is to interpret the law and to apply it to the facts of each 
case. It is not to elect legislators, politicians to go on the bench 
and vote certain interests or certain political philosophies.
  I believe Judge Alito has the correct view, the opposite view, quite 
frankly, as has been demonstrated by some Members of this body and 
certainly by the liberal press and liberal interest groups. In his 
confirmation hearing, the judge made this clear. He described his 
disagreement with keeping a scorecard of how many times a judge rules 
for or against a particular party. He stated:

       I don't think a judge should be keeping a scorecard about 
     how many times that judge votes for one category of litigant 
     versus another in particular types of cases. That would be 
     wrong. We are supposed to do justice on an individual basis 
     in the cases that come before us.

  I wish to touch on one other specific type of case because I believe 
Judge Alito has been smeared in this category, and that is with regard 
to his strong record and experience in the area of civil rights. I have 
been disappointed that some of my Democratic colleagues have chosen to 
paint Judge Alito as having anything less than the stellar record on 
civil rights that he has. In doing so, they don't really cite any 
evidence for this accusation. They think if they just keep repeating 
this smear, one dreamt up by far-left groups such as Ralph Neas' People 
for the American Way and the Alliance for Justice, if they keep 
repeating the lie over and over, the American people will fall for it. 
The American people are smarter than that. The American people are 
listening to some distinguished people, including distinguished African 
Americans, with whom Judge Alito has served.
  To cite a couple of examples, the late Judge Leon Higginbotham, the 
first African American to serve on the Federal District Court for the 
Eastern District of Pennsylvania and whom the L.A. Times called ``a 
legendary liberal and scholar of U.S. racial history,'' had said of 
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.

  Former Third Circuit Judge Timothy K. Lewis, an African American, 
testified in support of Judge Alito. He joked that it was no 
coincidence he was sitting on ``the far left'' of the panel. He said:

       I was then--as I am now--a committed and active Democrat. I 
     learned in my year with Judge Alito that his approach to 
     judging is not about personal ideology or ambition. He is not 
     result oriented. He is an honest conservative judge who 
     believes in judicial restraint and judicial deference.

  And Judge Lewis emphasized:

       If I sensed that Sam Alito during the time that I served 
     with him or since then was hostile to civil rights as a 
     justice of the United States Supreme Court, I absolutely 
     would not be here today.

  I hope the smear tactics will end, particularly on an issue as 
important and sensitive as civil rights. I am confident the American 
people are hearing from those sound voices, including African-American 
voices, who have served directly with Judge Alito, many of them are 
politically liberal. Many of them are Democrats who say Judge Alito is 
fair. He is impartial. He is not results oriented.
  That returns me to the central factor I have focused on in this 
process: Does Judge Alito have the right view of the role of a judge? 
Does he have the right judicial philosophy? Is he committed to the 
Constitution as written, to the rule of law as it is written not by him 
but by legislatures and the Congress? Is he committed to that and is he 
committed to not legislating from the bench? I believe his record and 
testimony and all of the evidence supports a firm conclusion that he is 
committed to that proper role of a judge. For that reason, I am proud 
to be supporting the nomination of Judge Samuel Alito. I am confident 
he will serve as a very distinguished member of the Supreme Court.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coburn). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. INOUYE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INOUYE. Mr. President, at this moment in our history, our country 
faces a spectrum of challenges broader than any we have ever faced 
before, both at home and abroad. However great the storm we face today, 
I am confident that our Nation, founded on the architecture of our 
Constitution, will prevail. The checks and balances established among 
the Congress, the President, and the courts are the true arsenal of 
freedom. In the end, these checks and balances in the hands of the 
American people will prove greater than any assault on the precious 
freedoms and liberties our forefathers fought to establish.
  For the officials of our Federal Government, the protection of the 
institutions of our American democracy is a duty that both transcends 
and supersedes all others, especially for members of the Supreme Court 
who must interpret the Constitution of our Nation as a living 
foundation for the freedom and liberty of our people.
  From confiding the power of the Federal Government in three co-equal 
but separate branches of government, to guaranteeing the civil 
liberties that bless our Nation, the Constitution enshrines principles 
that are as relevant today as they were when it was first penned 
centuries ago.
  These cherished principles are the backbone of our Nation, and they 
comprise the final yardstick for taking the mettle of any man or woman 
who would aspire to our Nation's highest Court. I have studied the full 
record of President Bush's nominee, Samuel A. Alito, Jr., and carefully 
measured it against the sworn duties of the Supreme Court. Regretfully, 
I conclude that Judge Alito falls short.
  From his writings on the Third Circuit Court of Appeals to his public 
speeches, I discern a man who would fundamentally rewrite the 
interpretation of our Constitution and leave in doubt the legacy of 
freedom it was meant to preserve.
  For many, this will mean his record on civil rights, reproductive 
choice, or the death penalty. Let there be no mistake, I share these 
concerns, and I have spent my life fighting for these rights.
  For me, however, the greatest area of doubt lies in Judge Alito's 
consistent preference for expanding the power of the President by 
relaxing the checks and balances the Constitution places on the 
executive branch of Government.
  In 1989 and 2000, Judge Alito gave speeches to the Federalist Society 
in which he embraced an obscure legal doctrine called the ``unitary 
executive theory.'' This so-called ``unitary executive theory'' places 
the President almost above the law.
  Under this theory, independent counsel appointed to investigate 
Presidential misdeeds would be unconstitutional. Similarly, the theory 
holds that enforcement agencies independent of the President, such as 
the Securities Exchange Commission, the Federal Communications 
Commission, and the National Labor Relations Board, would also be 
unconstitutional because they are not under the President's control.
  The theory also justifies a President who would overstep Acts of 
Congress and the Constitution when acting as Commander in Chief.
  How Judge Alito might actually apply this ``unitary executive 
theory'' on the Supreme Court is, of course, an open question.
  Separated by a span of 11 years, however, his own speeches in 1989 
and 2000

[[Page S164]]

suggest that Judge Alito's views on the powers of the President are 
long-held and strong.
  A memo he generated early in his career with the Reagan 
administration amplifies this impression. In that memo, Judge Alito 
wrote on a President's authority to modify an act of Congress by making 
a ``signing statement''--a written document issued by a President on 
signing an act of Congress into law.
  In the memo, Judge Alito wrote, that ``the President's understanding 
of the bill should be just as important as that of Congress.'' This 
statement suggests that Judge Alito believes the President has a role 
in the legislative process not contemplated under the Constitution's 
exclusive grant of legislative power to the Congress.
  Judge Alito's writings and speeches show how he personally believes 
that the Congress should have less power to check and balance the 
President.
  His judicial opinions, issued in his official capacity as a judge on 
the Third Circuit, demonstrate a parallel conviction that the Congress 
should have less authority in general.
  In United States v. Rybar, Judge Alito wrote a minority opinion 
asserting that the Congress had no authority to pass laws to regulate 
machine guns. The majority opinion criticized Judge Alito's narrow and 
restrictive view of Congressional authority.
  In Chittister v. Department of Community and Economic Development, 
Judge Alito ruled that the Congress had no authority to allow State 
employees to sue for damages under the Family Medical Leave Act. Judge 
Alito's restrictive view on Congress's authority was later invalidated 
by the Supreme Court when it considered the same issue in a later case.
  Our Supreme Court shoulders the solemn task of discovering how the 
Constitution applies to the unique problems of the day. Through dialog, 
study, and diligent inquiry, the Justices bring to bear the collected 
experiences of the Nation, and forge justice from the Constitution by 
tempering its words with human compassion, wisdom, and integrity.
  Judge Alito's record suggests that he holds his personal beliefs on 
expanding the President's power so strongly that they might come before 
the call of justice. Accordingly, I have concluded that I must oppose 
his nomination.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter from the Asian American Justice Center, dated January 10, 
2006, and a letter from the Japanese American Citizens League, dated 
January 8, 2006. Both letters refer to the nomination of Judge Alito.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Asian American Justice Center,

                                 Washington, DC, January 10, 2006.
     Hon. Arlen Specter,
     Chairman,
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: On behalf 
     of the Asian American Justice Center (formerly National Asian 
     Pacific American Legal Consortium), a national civil rights 
     organization dedicated to advancing and defending the civil 
     rights of Asian Americans, we are writing to express our 
     concern opposition to the nomination of Judge Samuel Alito to 
     be Associate Justice of the Supreme Court of the United 
     States. Judge Alito's record demonstrates hostility and poses 
     grave risks to constitutional and legal rights and 
     protections that are core to the advancement of the 
     communities we represent.
       Supreme Court decisions continue to have an immense impact 
     on the lives of Asian Americans, ranging from Gong Lum v. 
     Rice (1927), an unsuccessful challenge to school segregation 
     that would later be overturned by Brown v. Board of Education 
     in 1954, to United States v. Korematsu (1944), where the 
     Court upheld the internment of Japanese Americans. Often, 
     cases where the rights and liberties of minorities are at 
     question are decided by a very narrow 5-4 margin. Based upon 
     materials produced by Judge Alito as well as his judicial 
     record, we believe that he would fail to demonstrate a clear 
     understanding of key issues important to the civil rights 
     communities.
       In 1986 Alito wrote a letter in his capacity as Deputy 
     Assistant Attorney General to former FBI Director William 
     Webster in which he suggested that ``illegal, aliens have no 
     claim to nondiscrimination with respect to nonfundamental 
     rights,'' and that the Constitution ``grants only fundamental 
     rights to illegal aliens within the United States.'' Alito 
     makes no mention of Plyer v Doe in this letter, which ruled 
     that a state could not discriminate against undocumented 
     children in public education, even though education is not 
     considered a fundamental constitutional right. This raises 
     questions about whether he would adequately protect 
     undocumented immigrants from unconstitutional forms of 
     discrimination.
       Judge Alito's opinions in cases involving racial 
     discrimination and voting rights lead us to believe that he 
     will fail to champion civil rights in a manner that would 
     ensure that all communities will be full participants in the 
     rights and liberties that our constitution promises. For 
     example, in Bray v. Marriot Hotels, a racial discrimination 
     case, the majority concluded that Alito's dissenting view 
     would protect employers from suit even where the employer's 
     belief that it had selected the best candidate ``was the 
     result of a conscious racial bias.'' As majority pointed out, 
     ``Title VII would be eviscerated if out analysis were to halt 
     where the dissent suggest.'' In his 1985 application to 
     the Department of Justice's Office of Legal Counsel, Judge 
     Alito raised opposition to the Supreme Court decisions 
     that first articulated the fundamental civil rights 
     principle of ``one person, one vote.'' Those decisions 
     later paved the way for major strides in the effort to 
     secure equal voting rights for all Americans and greater 
     representation of racial and ethnic minorities at all 
     levels of government.
       Of great concern to us is Judge Alito's record on 
     immigration law. In asylum cases, it appears that Judge Alito 
     has a tendency to rule against individuals who are seeking 
     protection in the United States, even where evidence show 
     that they have been or would have been persecuted in their 
     own countries. In Chang v. INS, Judge Alito disagreed with 
     the court's decision to grant asylum despite the fact that 
     Chang had presented evidence that his wife and son already 
     faced persecution and he was threatened with prison if he 
     returned to China. In Dia v. Ashcroft, Judge Alto dissented 
     from a majority opinion granting asylum to an immigrant from 
     the Republic of Guinea whose house was burned down and wife 
     raped in retaliation for his opposition to the government.
       For the above reasons, we must oppose his confirmation as 
     Associate Justice. We appreciate your consideration of our 
     views. If you have any questions, please feel free to contact 
     AAJC Deputy Director Vincent A. Eng at (202) 296-2300, x121 
     or AAJC Director of Programs Aimee J. Baldillo at (202) 296-
     2300, x112. We look forward to working with you.
           Sincerely,
                                                Karen K. Narasaki,
     President and Executive Director.
                                  ____



                            Japanese American Citizens League,

                               San Francisco, CA, January 8, 2006.
     Hon. Patrick J. Leahy,
     U.S. Senate, Ranking Minority Member, Senate Judiciary 
         Committee, Washington, DC.
       Dear Senator Leahy: The Japanese American Citizens League 
     (JACL), the nation's oldest and largest Asian American civil 
     rights organization, wishes to express our strong opposition 
     to the nomination of Judge Samuel Alito to the United States 
     Supreme Court.
       Judge Alito's legal opinions and writings over the past 
     several years have left a clear record of an individual whose 
     legal views could have serious negative impact on the 
     nation's Asian American communities. As a civil rights 
     organization, we are not only troubled by Judge Alito's 
     ideological brand of conservatism, but also by his judicial 
     leanings that would make tenuous the constitutional 
     protections of American citizens.
       The record shows that Judge Alito once stated proudly his 
     opposition to affirmative action; as a lawyer for the 
     government, he has argued that immigrants can be denied basic 
     protections and rights guaranteed by the Constitution; he has 
     shown little regard for individuals who have sought sanctuary 
     in the U.S. through the political asylum appeal process; he 
     has expressed a legal opinion that would support racial 
     discrimination in employment cases; he has written an opinion 
     that would have denied a gender discrimination case to be 
     heard by the court; he has raised serious concerns about the 
     ``one person one vote'' concept of democracy; he has shown a 
     proclivity to undermine due process and privacy protections.
       The Supreme Court is in many instances the final arbiter in 
     protecting the rights of Americans and therefore should not 
     be a vehicle for those who would push for a political agenda, 
     be it from the left or the right of the political spectrum. 
     Given the early pronouncements in his career and his legal 
     opinions either as a government attorney or from the bench, 
     we are not convinced that Judge Alito can serve the interests 
     of the people as a member of the highest court of the land.
       The Japanese American Citizens League urges you, as a 
     member of the Senate Judiciary Committee, to vigorously 
     question Judge Alito on his past record and to carefully 
     examine his current legal positions. The JACL strongly 
     opposes Judge Alito's nomination and does not believe that 
     his confirmation as an Associate Justice of the Supreme Court 
     serves the best interest of all the people of this great 
     nation.
           Yours truly,
                                                    John Tateishi,
                                      National Executive Director.

  Mr. INOUYE. Mr. President, I suggest the absence of a quorum.

[[Page S165]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HARKIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, soon the Senate will vote on the 
nomination of Samuel Alito to replace Justice O'Connor on the U.S. 
Supreme Court. Of all of the issues we consider in the Senate, perhaps 
no issue raises such deep and fundamental questions as the nomination 
of a Supreme Court Justice.
  The issues that come before the Supreme Court are not abstract legal 
concepts; rather, they involve the very values that define who we are 
as a nation. They ask us to think about what kind of society we want to 
be. I believe strongly that we want to be a society which strives for 
justice, protects the powerless, provides meaningful protections to 
workers, and allows those who have suffered discrimination to seek 
recourse and affirm their rights in Federal court.
  I believe that a nominee to the Supreme Court needs more than just 
excellent legal qualifications. He or she must possess a true passion 
for justice, an understanding that the law cannot be viewed with cool, 
analytical dispassion, but with the acknowledgement of its role in 
molding a fairer and more just society. He or she must understand and 
believe in the critical role the Federal courts play in protecting the 
civil rights of all Americans, including the 54 million Americans who 
live every day with a disability. A thorough review of Judge Alito's 
record and of the Senate Judiciary Committee hearing has convinced me 
that he falls far short of that measure and, as a result, I oppose his 
nomination.
  One of the things I found most troubling about Judge Alito was his 
statement that one of the factors that motivated him to study 
constitutional law was his disagreements with the Warren Court 
decisions in the areas of criminal procedures and voting rights. 
Frankly, I find this to be a stunning admission. I know there are many 
who often decry the decisions of the Warren Court as inappropriate 
liberal judicial activism.
  I strongly disagree with that characterization. So many of the 
decisions of the Warren Court, beginning with the 1954 unanimous 
decision in Brown v. Board of Education--that decision that separate is 
not equal--are not just liberal values, they are American values--
American values that each person's vote should have the same weight; 
that legislative districts should contain equal population; that the 
freedom to marry a person of another race is a fundamental civil right; 
the decision that broadcasters are required to provide programming that 
serves the public interest and to provide for a diversity of 
viewpoints; the decision that illegally seized evidence cannot be used 
in a trial; the decision that poor people are entitled to have lawyers 
in criminal cases; the decision that the wearing of symbols of protest 
is protected speech; the decision that suspects have the right to 
remain silent; the decision that you have a right to an attorney; the 
decision that you have the right to be informed of these protections 
and the charges against you.
  These were all Warren Court decisions, and these decisions, far from 
evidencing an extreme view of the Constitution, are decisions that the 
vast majority in this country believe are fair and correct and give 
meaning to our Constitution's promise of individual liberty and 
dignity.
  Yet Judge Alito chose to cite his disagreement with these very 
decisions as his motivation for studying law. He chose to cite his 
disagreements with these decisions as his reason for working to narrow 
or overturn the rulings in the Reagan Justice Department.
  I find this very troubling. I cannot help but wonder what other laws 
Justice Alito might seek to narrow if he is granted lifetime tenure on 
the Supreme Court.
  Another law that gives meaning to our Constitution's promise of 
liberty and dignity is the Americans with Disabilities Act. Fifteen 
years ago--now approaching 16--I championed the ADA, as it is now 
known, because I had seen discrimination against the disabled 
firsthand, growing up with my brother Frank who was deaf. Throughout 
his life, Frank experienced active discrimination at the hands of both 
private individuals and the government, and this served to limit the 
choices before him.
  Frank's experience was by no means unusual, as Congress documented 
extensively prior to enacting the Americans with Disabilities Act. As 
part of the writing of that bill, we gathered a massive record of 
blatant discrimination against those with disabilities.
  We had 25 years of testimony and reports on disability 
discrimination. Fourteen congressional hearings and 63 field hearings 
by a special congressional task force were held in the 3 years prior to 
the passage of the Americans with Disabilities Act. We received boxes 
loaded with thousands of letters and pieces of testimony gathered in 
hearings and townhall meetings across the country from people whose 
lives had been damaged or destroyed by discrimination against people 
with disabilities. We had markups in five different committees. We had 
over 300 examples of discrimination by States--by States--against 
people with disabilities.
  I know this. I was there. I was the chairman of the Disability Policy 
Subcommittee and the lead sponsor of the bill.
  Yet since enactment of the ADA, the Court has repeatedly questioned--
or I should say a minority of the Court has repeatedly questioned--
whether Congress had the authority to require States to comply with the 
ADA and, amazingly, whether Congress adequately documented 
discrimination. For example, in 2001, the Court narrowly held that an 
experienced nurse at a university hospital, who was demoted after being 
diagnosed with breast cancer because her supervisor did not like being 
around sick people, was not covered by the ADA because she had the 
misfortune to work for a State hospital. If she had worked for a 
private hospital, she would have been covered, according to the Supreme 
Court.
  In contrast, in 2004, again by a narrow margin, 5 to 4, with Justice 
O'Connor in the majority, the Court held that Congress did have the 
authority to require States to make courthouses accessible.
  Over the next few years, the Court will likely look at whether other 
State and locally owned facilities are required to be accessible. And 
in case anyone doubts that accessibility is still a day-to-day issue 
for the disabled in this country, I want to point out two stories 
recently in the Des Moines Register in the last week.
  First, the fire alarm went off in the State capitol, and there was no 
way for people in wheelchairs, including a State legislator who was 
recently injured in a farming accident, to exit the building.
  Another example is before that, a woman in a wheelchair had no way to 
get onto the stage to speak at a Martin Luther King, Jr., Day tribute.
  But there is no guarantee that the Court will continue to require 
that facilities be made accessible. Instead, we could end up with a 
crazy patchwork where courthouses are accessible but maybe libraries 
are not; prisons are accessible but maybe employment offices are not.

  When we passed the ADA, we in Congress did not forbid employment 
discrimination against the disabled unless they work for the State. We 
didn't say some services must be accessible. But that is what the Court 
has been saying. Talk about judicial activism.
  To put a fine point on it, the ADA is at the mercy of the Supreme 
Court and of the nominee who assumes this seat. Based on his record, I 
am gravely concerned that Judge Alito does not believe that Congress 
has the authority to protect the fundamental rights of all Americans. 
Instead, his record is one that values the rights of the State over the 
rights of people.
  In the two instances where Judge Alito has been required to interpret 
recent Supreme Court cases limiting the power of Congress to pass 
national legislation under the 14th amendment or under the commerce 
clause, he has gone further than the Court itself.
  First, consider a case involving the Family and Medical Leave Act, 
the law that allows Americans to take unpaid leave from work to care 
for a newborn child, a sick child, or an ailing parent.

[[Page S166]]

Over 50 million Americans have taken unpaid family and medical leave 
since its passage, including 5 million State workers. Yet confronted 
with a case challenging whether State and local employers were required 
to grant unpaid family and medical leave, Judge Alito held in 
Chittister v. Department of Community and Economic Development that 
Congress lacked the authority to order State and local employers to 
abide by the law.
  Imagine that, Judge Alito on the Third Circuit said that we didn't 
have the authority to pass the family and medical leave bill. He was 
opposed to it.
  Fortunately, that holding was affirmatively rejected by the Supreme 
Court in 2004 when the Supreme Court ruled 6 to 3 in favor of the FMLA. 
Chief Justice Rehnquist was the author of that opinion. He was joined 
by Justice O'Connor.
  Think about this. Would that case have been decided the same way if 
Chief Justice Roberts had been there in place of Chief Justice 
Rehnquist? And if Justice Alito had been there instead of Justice 
O'Connor? I am afraid it would not.
  Secondly, again in 2004, the Supreme Court issued a 5-to-4 decision 
that held similarly that Congress could order State courthouses to 
abide by the Americans with Disabilities Act. Justice O'Connor was in 
the majority, a 5-to-4 decision, Lane v. Tennessee. This is where a 
person with a disability had been cited for speeding and was given a 
ticket. He used a wheelchair. He showed up at the courthouse, and guess 
what. The court was on the second floor. There was no elevator. So they 
said: OK, we will carry you up. The first time he appeared in court 
they carried him up into the courtroom. Then the case was put over to 
another day. The second time Lane showed up, they said: We will carry 
you up again.
  He said: I'm not going to be carried up. I have too much dignity for 
that.
  They said: OK, you are going to have to crawl. Get out of your 
wheelchair and crawl up the steps or, of course, the court will fine 
you because you did not appear in the courtroom.
  This is a real case. This really happened. It went to the Supreme 
Court. A 5-to-4 decision held that courthouses must be accessible under 
the ADA.
  If Justice Alito had been there instead of Justice O'Connor, given 
his limited view of congressional authority, it would be foolish to 
think that we would have had the same outcome, and Mr. Lane would, 
indeed, have to crawl up the steps of the courthouse or be carried up.
  I want to digress here a moment. There may be those who say maybe it 
was an old courthouse and they couldn't put in an elevator. The ADA 
does not require that. It says that services must be accessible. The 
judge can hold court wherever he wants. The judge could have gotten out 
of that second floor room and gone down to a room on the first floor 
and held court there, and Mr. Lane could have wheeled his wheelchair 
into that room.
  Services must be accessible, and that is what we said in the ADA. But 
Mr. Alito does not see it that way. His failure to recognize the role 
of the Federal courts in protecting victims of discrimination can be 
seen even more directly.
  In 1995, the Third Circuit, on which Mr. Alito sat, ruled that people 
with disabilities should be allowed to live in the community, not 
warehoused in institutions, whenever it was possible. The Third 
Circuit's opinion was consistent with Justice Thurgood Marshall's 
opinion in the Cleburne case. Justice Marshall wrote that persons with 
disabilities, and I quote Justice Thurgood Marshall:

       . . . have been subject to a ``lengthy and tragic history'' 
     of segregation and discrimination that can only be called 
     grotesque. [In the early 20th Century] a regime of state-
     mandated segregation and degradation emerged that in its 
     virulence and bigotry rivaled, and indeed paralleled, the 
     worst excesses of Jim Crow. . . .[L]engthy and continuing 
     isolation of the retarded has perpetuated the ignorance, 
     irrational fears, and stereotyping that long have plagued 
     them.

  The Third Circuit agreed that people should not be warehoused. They 
should be allowed to live in the community whenever possible. Yet after 
three judges on the circuit court ruled that such institutionalization 
was a form of discrimination under the ADA, Judge Alito argued that the 
Third Circuit should reconsider the opinion.
  When asked about this issue at his Judiciary Committee hearing, Judge 
Alito suggested that his desire to rehear the case did not suggest he 
had a disagreement with the outcome. Frankly, I find this response 
difficult to believe. I think most lawyers would agree that judges do 
not vote to rehear cases unless they disagree with the outcome or 
unless other factors, factors that were not present here, require such 
a rehearing.

  Fortunately, Judge Alito's desire to reconsider the Helen L. case was 
denied. The Supreme Court shortly after that held, in the landmark 
Olmstead decision, that unnecessary institutionalization is, in fact, a 
form of discrimination. Once again, Justice O'Connor sided with the 
majority in the Olmstead decision. Given Judge Alito's judicial record, 
we can safely assume that he would have come down on the opposite side 
of this landmark ruling and might even have steered the Court in a 
different direction, and years of progress toward equal rights for the 
disabled might have been erased.
  In case after case on the Third Circuit, Judge Alito seems to have 
been immune to the real-life struggles of the people in the cases 
before him. It is like: This is the legal theory. Don't bother me with 
the facts. Don't bother me with what is actually happening. There is 
some legal theory out there that I believe in, and somehow this legal 
theory trumps, overcomes the real-life travails of ordinary people. As 
I said--immune to the real-life struggles. The fact that the police 
strip-searched a 10-year-old girl, the fact that a mentally disabled 
worker was sexually assaulted, the fact that a farm family was 
threatened at gunpoint by U.S. Marshals without any resistance during 
an eviction process--all of this failed to sway him that these ordinary 
Americans even deserve to be able to present their cases against the 
Government. It failed to persuade the judge that they should even be 
allowed to present their cases against the Government. This is real 
life, real people, and real situations. But, no, Judge Alito had some 
other philosophy, some other theory that overcame this.
  In the past few days, I have heard a number of my colleagues on the 
other side of the aisle express alarm or dismay that so many Democratic 
Senators have expressed their opposition to this nominee. In light of 
the record that I just outlined, I find it alarming that more Senators 
on the Republican side have not expressed their opposition to this 
nominee. I thought it was my friends on the other side who so loudly 
proclaimed individual liberty, individual dignity of the person. Yet 
Judge Alito dismisses this under some rubric of a judicial philosophy 
or some theory that he has.
  I must say, my alarm becomes more pronounced when I consider Judge 
Alito's record on Executive power. At a time when the President of the 
United States is illegally spying on American citizens, at a time when 
the President believes that he can ignore the clear intent of 
Congress--including a vote of 90 Senators--and continue the use of 
torture in the interrogation of criminal suspects, at a time when the 
President believes he can indefinitely detain American suspects without 
charges and without access to a lawyer, it is more important than ever 
that Justices on the Supreme Court recognize the need to protect and 
preserve the balance of power envisioned by our Founding Fathers.
  Judge Alito is not that Justice. He is, instead, an adherent of a 
legal theory that Presidential powers should be wholly unchecked. In 
fact, he is the author of the very strategy used by President Bush 
earlier this month when he essentially said to 90 Senators: I signed 
the amendment that says no torture but I hereby declare that I can 
ignore it if I feel like it.
  After reviewing Judge Alito's record, it is not difficult to wonder, 
if Judge Alito had been on the Supreme Court during its consideration 
of Marbury v. Madison, would he have voted the other way? Would we have 
an imperial President today and not a Court that has the role as final 
arbiter? That strikes at the very heart of our Democratic form of 
government and our checks and balances.
  But don't take my word for it. Consider the words of the Justice whom

[[Page S167]]

Judge Alito seeks to replace, Justice O'Connor, who wrote in the 
Supreme Court's recent decision in Hamdi v. Rumsfeld that it is:

        . . . 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.

  I agree with Justice O'Connor. It is clear under the Constitution of 
the United States that our President does not have unfettered powers. 
It is clear that the Supreme Court has the authority, the duty to serve 
as a check on that power. And it is clear to me that Judge Alito is not 
committed to providing that check.
  As recently as 2000, in a speech before the Federalist Society, Judge 
Alito said in his speech:

        . . . the President has not just some executive powers, 
     but the executive power--the whole thing.

  What does that mean?

        . . . the President has not just some executive powers, 
     but the executive power--the whole thing.

  What does Judge Alito mean by that? I find this to be a frightening 
theory, in someone getting life tenure on the Supreme Court.
  In closing, the new Supreme Court Justice will have a tremendous 
impact on our society. The decisions before the Court will determine 
whether we are true to our fundamental national values of fairness and 
justice and dignity for all. In Judge Alito, we have a nominee whose 
history, record, and testimony make clear that he holds an unduly 
restrictive view of the power of Congress to enact laws to protect 
workers, to protect public safety, to protect victims of 
discrimination, and that he holds a dangerous view of the Court's 
proper role in providing a necessary check on Executive powers. Indeed, 
if Judge Alito is confirmed, I fear that many of the core protections 
provided to people with disabilities under the Americans With 
Disabilities Act and other laws simply disappear. For these reasons, I 
strongly oppose his nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I rise today to state my intention to 
vote against the nomination of Judge Alito to be the next Associate 
Justice of the Supreme Court. Let me start by saying I certainly do not 
doubt Judge Alito's qualifications, his integrity, his temperament. He 
has served on the Federal bench for over 15 years, and he has 
demonstrated during that time that he is, indeed, a very capable 
jurist. Nonetheless, after carefully looking at his judicial record and 
listening to his answers to the Senate Judiciary Committee, it is also 
clear to me that if confirmed, Judge Alito will move the Court in what 
I believe is the wrong direction for our country.
  Judge Alito has been nominated to replace Justice Sandra Day 
O'Connor. She is a moderate who has been a critical fifth vote in cases 
impacting privacy rights, disability rights, civil rights, the 
environment, consumer protections, discrimination laws, access to the 
courts and campaign finance reforms, among others. It has taken us 
years to enact legislation aimed at protecting the rights of all 
Americans in these areas I have mentioned. Other Justices on the Court, 
particularly Justices Scalia and Thomas, have pressed to reverse many 
of the advances the Congress has made in these areas. They have pressed 
to limit congressional power under the commerce clause and the ability 
of Congress to enact Federal civil rights legislation. I fear that 
Judge Alito will join Justices Scalia and Thomas in this regard.
  Justice O'Connor's vote has also been instrumental in ensuring that 
we do not surrender our civil liberties in times of war. Justice 
O'Connor's statement in the Hamdi decision was just quoted by my 
colleague from Iowa. It was a resounding reaffirmation that the 
President could not indefinitely detain a U.S. citizen without 
providing adequate due process. The quote which was just made, and has 
been made by many of my colleagues, is that:

       We have long since made clear that a state of war is not a 
     blank check for a President when it comes to the rights of 
     our Nation's citizens.

  At a time when the President has asserted expansive powers with 
regard to imprisoning U.S. prisoners without charges, with regard to 
wiretapping without warrants, with regard to using interrogation 
techniques that amount to torture, it is essential that we have 
Justices on the Supreme Court who are willing to provide a check on the 
authority of the executive branch. Judge Alito's record indicates that 
he may not be the right person to provide this important check.
  For example, he stated his support in varying degrees for this so-
called unitary executive theory. This relatively obscure legal theory 
has very little support in the mainstream legal community, but it has 
profound implications for our understanding of the Constitution.
  Just recently, Congress passed a law reiterating the prohibition on 
the use of torture. In signing the legislation, the President issued a 
statement reserving the right to take whatever action he deems 
necessary as Commander in Chief--in effect reserving the right to 
ignore the very law which he was at that time signing. The President 
cited this unitary executive theory as the legal basis for his power to 
disregard the plain text of the legislation.
  We need to have a Supreme Court that is prepared to provide the 
necessary checks and balances crucial to our democratic system of 
government. I believe Justice O'Connor charted a moderate course in 
terms of the authority of Congress to enact legislation aimed at 
protecting the welfare of Americans and with regard to upholding the 
rights of citizens vis-a-vis their own government, and I believe it is 
important to maintain that same course.
  This is not to say that I have agreed with all of Justice O'Connor's 
decisions. But her swing vote has helped to maintain a balance on the 
Court that has kept many decisions within the mainstream, and I believe 
Judge Alito's confirmation will sway the existing balance on the Court 
in a manner that will jeopardize many of the protections afforded to 
the American public, many of which have been the result of many years 
of struggle. For this reason, I am not able to support his nomination.
  I yield the floor, and 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.
  Mrs. LINCOLN. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. LINCOLN. Mr. President, I rise today to state my opposition to 
the nomination of Samuel Alito to the United States Supreme Court.

  After thoroughly reviewing Judge Alito's record during his time on 
the Federal bench, I am left with grave and serious concerns about his 
views on the power and scope of executive branch authority, the lack of 
discrimination against parents in the workplace, his general 
disposition toward cases involving civil rights, and his views on the 
scope of voter rights.
  Because of these concerns, I cannot in good conscience support his 
nomination to the Supreme Court to replace Sandra Day O'Connor, the 
highest Court in the land with tremendous ability to exercise judgment 
over the people of this Nation.
  Over the course of Judge Samuel Alito's career and his tenure on the 
Federal bench, he has compiled a troubling record of personal 
statements and court decisions that signal his willingness to defer 
authority to the executive branch when questions of presidential powers 
are deliberated before the Supreme Court.
  I strongly believe that our Constitution calls for an independent and 
co-equal judicial branch that provides a check on the government's 
power to encroach upon our individual rights of Americans.
  At a time when many Arkansans have expressed concerns over the 
President's legal authority to eavesdrop on Americans without court 
supervision and detain U.S. citizens without judicial review or due 
process, I cannot support a Supreme Court nominee who has repeatedly 
failed to uphold reasonable limits of presidential authority at the 
expense of constitutional liberties.
  This issue is especially significant because Judge Alito would 
replace Justice Sandra Day O'Connor, who recently ruled in a 2004 case 
on executive authority that ``a state of war is not a blank check for 
the President when it comes to the rights of the nation's citizens.''

[[Page S168]]

  While the legislative and executive branches of government are, by 
their very nature, political, we demand our judicial branch be above 
that.
  When one party controls both of the political branches, the 
independence of the judiciary is especially important.
  It is not just important to keep in check but also to maintain the 
confidence of the American people that their government is balanced and 
that it is there to serve them and not the politicians.
  Our Founders created our country and its government with the memories 
of tyranny still fresh in their minds.
  The judicial branch was given exceptional authority for the specific 
reason that it provides a critical check on the two political branches 
of our government.
  This is not to say that the judicial branch is charged with 
correcting the perceived wrongs of the party in power. It is simply 
charged with upholding the Constitution and the rights guaranteed to 
citizens under it. Upholding this requirement is the most important 
duty the court is given.
  If a potential nominee to the Supreme Court cannot or will not uphold 
either part of this solemn duty, his or her appointment will serve to 
undermine the fundamental system of checks and balances on which our 
government depends.
  Of equal concern is Judge Alito's record on the issue of 
discrimination in the workplace.
  In Chittister v. Department of Community and Economic Development, 
Judge Alito's statement that the Family Medical Leave Act was a 
``disproportionate solution'' to the problem of workplace 
discrimination is deeply troubling.
  In an opinion rejecting the position of Judge Alito, Chief Justice 
Rehnquist explicitly noted that common workplace practices had been 
discriminatory toward both men and women by reinforcing the role of 
women as the sole domestic caregiver.
  I fear that Judge Alito' s inability to recognize this type of 
discrimination threatens dire consequences for rights hard won by women 
over the last few decades.
  The majority of our Nation's families depend on income from both 
parents just to get by. The future and strength of our Nation depends 
on the strength of the fabric that our families are made of.
  I cannot in good conscience vote to allow any of the gains that have 
allowed women to become an integral part of our Nation's workforce 
while remaining exceptional mothers to their children to be rolled 
back.
  As his record points out, Judge Alito has consistently set an 
unfairly high burden of proof in discrimination cases leading him to 
rule consistently against Americans who are merely attempting to assert 
their basic constitutional rights.
  Judge Alito's philosophy of deferring to the government and those in 
positions of authority threatens to undermine many of the laws 
established by Congress to ensure that discrimination does not prevent 
anyone from realizing his or her full potential--not just as an 
American, but as a human being.
  Also of concern are Judge Alito's comments on voter rights. He has 
stated his interest in constitutional law was motivated largely by his 
disagreements with the Supreme Court reapportionment decision that 
established the principle of ``one person, one vote.''
  This landmark case became a cornerstone of our democracy by ensuring 
that everyone's vote would be weighted equally, regardless of an 
individual's economic background, their address, or the color of their 
skin.
  If an individual is prevented from seeking a fair remedy at the 
ballot box by denial of his basic right to vote, the only avenue he has 
left is our judicial system.
  Judge Alito's skepticism of established principles of voter rights 
coupled with his skepticism of claims relating to discrimination is a 
dangerous combination that threatens to exclude many Americans from 
full and equal participation in their government and society.
  I remind my colleagues that the strength of our Nation comes from the 
input of the diversity of individuals who make up this great land. We 
cannot diminish that.
  Equal access to the ballot box is a right guaranteed to every 
American that is the very foundation of democracy.
  These rights came after much work and incredible sacrifice and to me 
they are too important to put at risk.
  As I stated during the debate on Chief Justice Robert's nomination, 
considering a Supreme Court nomination is one of the most important 
duties we are called upon as Senators to fulfill.
  I did not come to my decision on Judge Alito' s nomination lightly.
  Ultimately, I supported the nomination of Chief Justice Roberts 
because I sincerely believed he cared more about the rule of law and 
our Nation's judicial system than he did about ideology or politica1 
parties.
  I sincerely regret I cannot draw the same conclusion about Judge 
Alito.
  For me, this nomination is not about a single issue or controversy. 
It is much more important than that.
  This nomination is about the rights and freedoms we cherish as 
Americans.
  It is about the future course of our Nation and the impact the 
decisions of the Supreme court will have on the citizens of this great 
land.
  I feel government has a commitment to those amongst us who face 
incredible challenges to ensure that the values we all hold dear as 
Americans apply equally to them.
  I have real doubts about Judge Alito's views on the role of 
government in protecting those rights. I respect the opinions of my 
constituents and colleagues on both sides of this issue. But in the 
end, after great prayer and research--and certainly after listening to 
all the principles I learned growing up as a farmer's daughter in east 
Arkansas in the rural part of this Nation--I made the decision that I 
believe is in the best interests of my State and of my country.
  I appreciate the time attention of my colleagues. I yield the floor. 
I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Mr. President, do I have 30 minutes?
  The PRESIDING OFFICER. The Senator may use as much of the next hour 
as he pleases.
  Mr. GRASSLEY. Thank you.
  Mr. President, I support the nomination of Samuel Alito. President 
Bush has made a very excellent choice in picking Alito. He has the 
intellect, judicial temperament, and integrity to be an excellent 
Justice.
  He seems to have a very clear understanding of the proper role of the 
judiciary in our government. That came out very clearly in the 
hearings.
  He commands the respect of his colleagues on the Third Circuit, as 
their testimony before our committee demonstrated.
  He also has the respect of the lawyers who practice before him and 
the employees who have worked with him. That was demonstrated in 
testimony before our committee as well.
  But we can't always accurately predict how an individual ultimately 
will make decisions once he or she gets on the bench. But we do have a 
constitutional process in place, and we have to use our judgment within 
that process and trust the confirmation process.
  I would say the 225-year history of our country succeeding as it has 
is an affirmation that the process has worked well.
  We have confirmed many outstanding individuals to the Supreme Court, 
and the process has worked well thus far and will continue to work well 
with Judge Alito.
  Judge Alito was very impressive in the hearings. He did an excellent 
job under a great deal of fire. He was thorough, he was candid, and he 
was forthright with all 18 of us on the committee, and demonstrated a 
deep understanding of the law and a deep understanding of the law and 
our Constitution.
  Contrary to the claims of some of my colleagues from whom we have 
been hearing this morning and yesterday, Judge Alito's testimony was 
very substantive, and he was responsive.

[[Page S169]]

  Let me quantify that. Judge Alito answered more than 650 questions 
during nearly 18 hours of testimony. Compared to the performances of 
Justice Ginsburg who answered 307 questions at her hearing, and Justice 
Breyer, who answered 291 questions, one can hardly swallow what we hear 
on the other side--that Judge Alito was not forthcoming with the 
Committee.
  I easily conclude, as I think the public concludes, that he has been 
one of the most forthcoming nominees to come before the Judiciary 
committee.
  The Constitution provides the President with the power to nominate 
Supreme Court Justices. And it provides the Senate with advise and 
consent duties, presumably ending up in an up-or-down vote.
  In Federalist No. 66, Alexander Hamilton wrote:

       It will be the office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice he may have 
     made.

  That is Alexander Hamilton commenting on the role of the President 
and the Senate in the judicial confirmation process. I have been on the 
Judiciary Committee for more than 25 years. I take this constitutional 
responsibility very seriously. Our work in committee allows us to 
evaluate whether a nominee has the requisite judicial temperament, 
intellect, and integrity. We also evaluate throughout that process 
whether the nominee understands the proper role of a Justice in our 
democratic system of government; mainly, but not limited to, respect 
for the rule of law and respect for the Constitution, all over any 
personal agenda the nominee might have. A Justice, to do justice, 
cannot have a personal agenda.
  Specifically, a Supreme Court nominee should clearly understand that 
the role of a judge under the Constitution is a limited role, to say 
what the law is, rather than make the law.
  I quote Alexander Hamilton, Federalist Paper No. 78:

       The courts must declare the sense of the law, and if they 
     should be disposed to exercise will instead of judgment, the 
     consequences would equally be the substitution of their 
     pleasure to that of the legislative body.

  In fact, most Americans want judges who will confine their job to 
interpreting the law and the Constitution, rather than making policy 
and societal choices from the bench. But what we have seen lately is a 
trend where the courts have expanded the role of the judiciary far 
beyond what was originally intended in the Constitution and by the 
Framers. The courts have taken on a role that is much more akin to what 
we do in Congress, the legislative branch, making law, which is to make 
policy choices and to craft laws based on those choices.
  As a consequence of this power grab by the courts, the judicial 
confirmation process also, unfortunately, has become extremely 
politicized. That is because when judges improperly assume the role of 
deciding essentially political questions rather than legal questions, 
the judicial confirmation process also devolves into one focused less 
on whether a nominee can impartially and appropriately implement the 
law. Instead, the process devolves into one focused on whether a 
nominee will implement a desired political outcome from the bench, 
regardless of what the law says, regardless of what the Constitution 
requires.
  But Judge Alito understands the proper role of a judge. Judge Alito 
understands the judicial branch plays a limited role in our system of 
government--but not surprisingly so because that is what the 
Constitution intended. Judge Alito testified:

       The judiciary has to protect rights, and it should be 
     vigorous in doing that, and it should be vigorous in 
     enforcing the law and interpreting the law . . . in 
     accordance with what it really means and enforcing the laws 
     even if that's unpopular.

  He continues:

       But although the judiciary has a very important role to 
     play, it is a limited role. . . . It should always be asking 
     itself whether it is straying over the bounds, where it is 
     invading the authority of the legislature, for example, and 
     whether it is making policy judgments rather than 
     interpreting the law. And that has to be a constant process 
     of re-examination on the part of the judges.

  Judge Alito's record is clear that he will not make law, but rather 
he will strictly interpret the law we write. His record is clear that 
he will do his very best to remain faithful to the actual meaning of 
the Constitution, rather than mold it into what he would like that 
Constitution to say.
  Judge Alito said, along that line:

       Judges do not have the authority to change the 
     Constitution. The whole theory of judicial review we have, I 
     think, is contrary to that notion. The Constitution is an 
     enduring document and the Constitution does not change. It 
     does contain some important general principles that have to 
     be applied to new factual situations that come up. But in 
     doing that, the judiciary has to be very careful not to 
     inject its own views into the matter. It has to apply the 
     principles that are in the Constitution to the situations 
     that come before the judiciary.

  Judge Alito possesses a knowledge of and respect for the Constitution 
that is necessary for all Supreme Court Justices. Judge Alito, in his 
testimony, demonstrates an understanding of the proper role of a 
Justice. He understands and respects the separate functions of the 
judicial branch as opposed to the functions of the legislative branch 
and the executive branch, the political branches of government.
  Judge Alito explained that a judge's role is not one of an advocate. 
He testified:

       The role of a practicing attorney is to achieve a desired 
     result for the client in a particular case at hand, but a 
     judge cannot think that way. A judge can't have any agenda. A 
     judge can't have any preferred outcome in a particular case. 
     And a judge certainly does not have a client. The judge's 
     only obligation, and it's a solemn obligation, is to the rule 
     of law, and what that means is that in every single case, the 
     judge has to do what the law requires.

  For all of his opponents, when we hear things such as that and they 
fit in with what the Constitution's writers intended for the judiciary 
to do, how can we find fault with Judge Alito's approach? Why would we 
fear him at all?
  Judge Alito also believes in justice for all, as afforded by the laws 
and the Constitution of our great nation. He told the 18 members of the 
Judiciary Commitee:

       No person in this country, no matter how high or powerful, 
     is above the law, and no person in this country is beneath 
     the law.

  He said:

       Our Constitution applies in times of peace and in times of 
     war, and it protects the rights of Americans under all 
     circumstances.

  Another very important position Judge Alito takes:

       Results-oriented jurisprudence is never justified because 
     it is not our job to try to produce particular results. We 
     are not policy makers and we shouldn't be implementing any 
     sort of policy agenda or policy preference that we have.

  Contrary to the claims of his opponents, Judge Alito understands the 
Judiciary has an important role in our system of checks and balances. 
He understands the importance of the independence of the judicial 
branch. Judge Alito will not shirk from that responsibility and he will 
see that the Judiciary is an effective check on abuses of power, both 
by the executive and the legislative branches of government. In fact, 
as Judge Aldisert, who served with Judge Alito on the Third Circuit 
testified:

       Judicial independence is simply incompatible with political 
     loyalties, and Judge Alito's judicial record on our court 
     bears witness to this fundamental truth.

  Let me quote former Judge Gibbons, who also served with Judge Alito 
and who now is litigating with the Bush administration over the 
treatment of detainees held at Guantanamo. He believes Judge Alito will 
not shy away from checking Government abuses. He does not believe Judge 
Alito will rubberstamp any administration's policies if they run 
counter to the law and the Constitution. And he certainly did not have 
any concern about Judge Alito's judicial independence.
  Judge Gibbons testified:

       It seems not unlikely that one or more of the detainee 
     cases that we are handling will be before the Supreme Court 
     again. I do not know the views of Judge Alito respecting the 
     issues that may be presented in those cases. . . . I'm 
     confident, however, that as an able legal scholar and a 
     fairminded justice, he will give 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.

  I agree. I believe Judge Alito will be that independent judge who 
will apply

[[Page S170]]

the law and the Constitution, not just to Congress, but to every branch 
of government, and every person, because Judge Alito knows no one, 
including the President, is above the law.
  Not only is Judge Alito an intelligent and experienced jurist, he is 
also an openminded and fair judge. I am telling everyone that, but 
anyone that saw the hearing knows that, from the 18 hours he testified 
before the Judiciary Committee 2 weeks ago. He is an openminded and 
fair judge. He told the committee:

       Good judges develop certain habits of mind. One . . . is 
     the habit of delaying reaching conclusions until everything 
     has been considered. Good judges are always open to the 
     possibility of changing their minds based on the next brief 
     that they read or the next argument that is made by an 
     attorney who is appearing before them, or a comment that is 
     made by a colleague when the judges privately discuss the 
     case.

  How much more appropriate is that approach to the law than just 
yesterday the Supreme Court decided to hear an execution case of a 
person in Florida when they got the decision made and the word down as 
they were strapping him in to inject the lethal chemical into him: 
Wait, don't make a decision until all the facts are in. So that person 
did not die last night.
  In fact, Judge Alito acknowledged he has changed his opinion in the 
middle of the judicial process because he is waiting for all the facts, 
those motions, those debates, to be done before he finally concludes. 
He testified:

       There have been numerous cases in which I've . . . been 
     given the job of writing an opinion . . . and in the process 
     of writing the opinion, I see that the position that I had 
     previously was wrong. I changed my mind. And then I will 
     write to the other members of the panel and I will say, I 
     have thought this through and this is what I discovered and 
     now I think we should do the opposite of what we agreed, and 
     sometimes they'll agree with me and sometimes they won't.

  Now, what do you hear from the people opposed to Judge Alito? His 
critics have tried to paint him out to be an extremist. An activist 
judge with some agenda hostile to individual rights and to what his 
critics have called the ``average American.''

  We were presented with analyses on how outside the mainstream Judge 
Alito's opinions were. But that is not what we heard from the American 
Bar Association. This group of men and women unanimously voted to award 
Judge Alito its highest possible rating: ``well qualified.'' We have 
heard from the Democrats that this ABA rating is the ``gold standard'' 
about how to make any judgment about who is qualified to serve on the 
judiciary.
  But that is also not what we heard from the panel of four sitting and 
two former Third Circuit judges who have worked with Judge Alito for 
more than 15 years. They did not think Judge Alito was out of the 
mainstream, as certain people on the floor are trying to claim, or an 
extremist, as you have heard often argued by the other side. We heard 
quite to the contrary.
  I have to say the committee received absolutely extraordinary 
testimony from these appellate judges, which included nominees from--
just think, these different Presidents nominated these people who 
testified before us, who said Judge Alito will make a great Justice--
President Lyndon Johnson, President Richard Nixon, President Ronald 
Reagan, President George H.W. Bush, and President Bill Clinton, these 
Presidents appointed the people who came to us and said Samuel Alito 
will make a good Justice.
  There is disagreement on the floor of the Senate as to whether he 
will be a good Justice. These are individuals we have heard from who 
have had the opportunity to witness the interworkings of Samuel Alito 
as a judge during their private conferences, on a daily basis, behind 
closed doors, when all the hair is let down. They saw his deliberative 
process. They know the ``real deal'' Sam Alito. And these witnesses--
all respected and accomplished judges in their own right--each of them 
only had glowing comments about Judge Alito. Their support was 
unqualified.
  As Judge Aldisert told the committee:

       We who have heard his probing questions during oral 
     argument, we who have been privy to his wise and insightful 
     comments in our private decisional conferences, we who have 
     observed at first hand his impartial approach to decision-
     making and his thoughtful judicial temperament and know his 
     carefully crafted opinions, we who are his colleagues are 
     convinced that he will also be a great justice.

  Let's go to Judge Becker:

       The Sam Alito that I have sat with for 15 years is not an 
     ideologue. He's not a movement person. He's 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.

  Judge Becker said:

       I have never seen him exhibit a bias against any class of 
     litigation or litigants. . . .His credo has always been 
     fairness.

  Chief Judge Scirica said:

       Despite his extraordinary talents and accomplishments, 
     Judge Alito is modest and unassuming. His thoughtful and 
     inquiring mind, so evident in his opinions, is equally 
     evident in his personal relationships. He is concerned and 
     interested in the lives of those around him. He has an 
     impeccable work ethic, but he takes the time to be a 
     thoughtful friend to his colleagues. He treats everyone on 
     our court, and everyone on our court staff, with respect, 
     with dignity, and with compassion. He is committed to his 
     country and his profession. But he is equally committed to 
     his family, his friends, and his community. He is an 
     admirable judge and an admirable person.

  Judge Barry said:

       Samuel Alito set a standard of excellence that was 
     contagious--his commitment to doing the right thing, never 
     playing fast and loose with the record, never taking a 
     shortcut, his emphasis on first-rate work, his fundamental 
     decency.

  So contrary to what his misguided critics have alleged, Judge Alito 
is fair and open-minded, and will approach cases without any bias and 
without a personal agenda.
  Unfortunately, Judge Alito's record--as you have heard for the last 2 
days and as you heard 2 weeks ago in the hearing--has been wildly 
distorted. Contrary to these critics' claims, Judge Alito has ruled for 
plaintiffs as well as defendants in civil rights, ADA, and employment 
discrimination cases. I think a statistical analysis of how many times 
a certain kind of plaintiff wins or loses is not the best way to judge 
a judge's record. It is wrong to think there should be a scorecard on 
how often plaintiffs or defendants should win, like some basketball 
game. Who should win depends upon the facts presented in the case and 
what the law says, just as it should be in a country based on the rule 
of law.
  What is important to Judge Alito is that he rules on the specific 
facts in the case and the issue before his court, in accordance with 
the law and the Constitution. Judge Alito does not have a predisposed 
outcome in a case. He does not bow to special interests, but sticks to 
the law regardless of whether the results are popular or not.
  Similar to Chief Justice Roberts, Judge Alito rules for the ``big 
guy'' when the law and the Constitution say the ``big guy'' should win. 
He rules for the ``little guy'' when the law and the Constitution say 
the ``little guy'' should win. That is precisely what good judging is 
all about, and that is precisely the kind of Justices who ought to be 
on the Supreme Court and, for most of the time in our history, have 
been on the Supreme Court--I think it will be 110 of them when Alito 
gets there.
  The claims that Judge Alito is somehow hostile to civil rights, 
minorities, women, and the disabled are really off the mark, and those 
arguments are intellectually dishonest. It is easy to cherry-pick cases 
and claim that a judge is out of the mainstream. His fellow colleagues 
on the Third Circuit, though, give you a completely different picture 
of Judge Alito than what you have seen painted here in the last 2 days. 
Fellow colleagues on the Third Circuit testified about Judge Alito's 
fairness and impartiality with respect to all plaintiffs.

  For example, Judge Garth testified:

       I can tell you with confidence that at no time during the 
     15 years that Judge Alito has served with me and with our 
     colleagues on the court and the countless number of times 
     that we have sat together in private conference after hearing 
     oral argument, has he ever expressed anything that could be 
     described as an agenda. Nor has he ever expressed any 
     personal predilections about a case or an issue or a 
     principle that would affect his decisions.

  Judge Higgenbotham, Jr., a liberal judge, said:

       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.

  Kate Pringle, a former Alito law clerk and Democrat who has known the 
judge since 1994, testified that:


[[Page S171]]


       [Judge Alito] was not, in my personal experience, an 
     ideologue. He pays attention to the facts of cases and 
     applies the law in a careful way. He is conservative in that 
     sense. His opinions don't demonstrate an ideological slant.

  I found Judge Lewis's testimony to be particularly compelling. Judge 
Lewis described himself to the committee this way. These are his words: 
``openly and unapologetically pro-choice'' and ``a committed human 
rights and civil rights activist.'' That is how he described himself, 
Judge Lewis.
  He testified about Judge Alito:

       [I]t is in conference, after we have heard oral argument 
     and are not propped up by law clerks--we are alone as judges, 
     discussing the cases--that one really gets to know, gets a 
     sense of the thinking of our colleagues.

  Judge Lewis continued:

       And 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.

  Judge Lewis further said:

       If I believed that Sam Alito might be hostile to civil 
     rights as a member of the United States Supreme Court, I 
     guarantee you that I would not be sitting here today. . . . 
     My sense of civil rights matters and how courts should 
     approach them jurisprudentially might be a little different. 
     . . . But I cannot argue with a more restrained approach. As 
     long as my argument is going to be heard and respected, I 
     know that I have a chance. And I believe that Sam Alito will 
     be the type of justice who will listen with an open mind and 
     will not have any agenda-driven or result-oriented approach.

  Judge Lewis concluded:

       I am here as a matter of principle and as a matter of my 
     own commitment to justice, to fairness, and my sense that Sam 
     Alito is uniformly qualified in all important respects to 
     serve as a justice on the United States Supreme Court.

  So who do you believe has accurately depicted Judge Alito's 
qualifications and record? The speeches of opponents today and 
yesterday? Or the people who have worked with the judge, day in and day 
out for years, who know him personally, and who have seen him up close 
and in the trenches? I will pick those people who have worked with 
Judge Alito for 15 years, particularly because they come from different 
political backgrounds and different approaches to the law and the 
Constitution, as opposed to the partisan, liberal outside interest 
groups that have probably never even met Judge Alito. I, then, know 
whom I believe.
  Not only that. If one wipes away the distorted and deceptive 
characterizations, as well as the false insinuations and calculated 
smears, Judge Alito's record plainly shows that he is a dedicated 
public servant who practices what he preaches: integrity, modesty, 
judicial restraint, devotion to the law, and devotion to the 
Constitution.
  Let me briefly address this issue which has been brought up that 
somehow Judge Alito's appointment is going to upset the balance of the 
Court. As I said before, history will take care of the proper 
``balance'' on the Court. But some of my colleagues--or maybe speaking 
for their outside liberal interest groups--have taken the position that 
Judge Alito has to share Justice O'Connor's judicial philosophy and 
voting record in order to take her seat on the Court. They argue that 
Judge Alito should not be confirmed, regardless of whether he is 
qualified or not, because he does not appear to be Justice O'Connor's 
judicial philosophy ``soul-mate'', and he would change the ideological 
balance of the Court.
  Well, the last time I checked, the Supreme Court does not have seats 
that are reserved for a conservative or a liberal or a moderate or a 
Catholic or a Jew or a Protestant, one philosophy or another 
philosophy--no! The Senate has never taken the position, moreover, that 
like-minded individuals should replace like-minded Justices leaving the 
Court. And until just recently, I never heard the argument from the 
other side of the aisle. That kind of reasoning is completely 
antithetical to the proper role of the judiciary in our system of 
government.
  The reality is that the Senate has historically confirmed individuals 
to the Supreme Court who are determined to be well qualified to 
interpret and apply the law. It has not been the Senate's tradition to 
confirm individuals to promote special interests or represent certain 
causes. That is not what the Constitution says for the Senate to do. In 
fact, the Court's composition has changed with the elected branches 
over the years. Almost half of the Supreme Court Justices have been 
replaced by individuals appointed by a President of a different 
political party.
  The truth is that the Senate has not ever understood its role as 
maintaining any perceived ideological balance on the Court. In fact, 
the Senate outright rejected that kind of thinking when Ruth Bader 
Ginsburg came before us. She was a known liberal, a former general 
counsel for the ACLU, and she was overwhelmingly approved by the Senate 
by a vote of 96 to 3. She replaced whom? A conservative justice, 
Justice Byron White. Yet there were not any arguments from the other 
side of the aisle or from this side of the aisle that she would upset 
the balance of the Court. And she did--change the balance of the Court, 
radically swinging it to the left.
  I certainly did not agree with Justice Ginsburg's liberal judicial 
philosophy, but I voted for her. The fact is that the Senate confirmed 
Justice Ginsburg because President Clinton won the election. He made a 
promise in that election who he was going to appoint to the Supreme 
Court. He had a right to nominate who he wanted based upon the results 
of that election--the same thing for George Bush in the 2000 election 
and the 2004 election. Moreover, and more importantly, though, Justice 
Ginsburg had the requisite qualifications to serve on the Court, and 
she was not a political hack. So she was confirmed.
  This was the same for Justice Breyer. I knew that Breyer was a 
liberal and that I probably would not agree with his judicial 
philosophy, but he was qualified. So I voted for him. The Senate 
confirmed Justice Breyer by a vote of 87 to 9. The President had made 
his choice. The Senate found him to be qualified, and we confirmed him. 
Republicans certainly did not put up any roadblocks to the Ginsburg and 
Breyer nominations. I would say that Judge Alito is no more out of the 
mainstream than Justices Breyer and Ginsburg.
  The Democrats and liberal outside interest groups are intent on 
changing the rules of the game because they did not win at the ballot 
box in 2000 and 2004, or maybe over the last 10 years. The way the 
Democrats want to operate now is not the way we have operated in the 
past. But the truth is, by politicizing and degrading the nominations 
process, and the nominees themselves, we will end up driving away our 
best and brightest minds from volunteering for public service. It is 
disappointing to me to see a decent man and his family have to endure 
hurtful allegations and insinuations which are just plain false and, 
moreover, mean-spirited.
  It is disappointing to me that so many of my colleagues are going 
down this path, creating a standard that can only harm the independence 
of the judiciary, and severely distort our system of government.
  Before I conclude my remarks, I want to quote from a letter I 
received from an Iowa constituent. I will only quote it in part, but I 
will include it for the Record. Her name is Joan Watson-Nelson, and she 
wrote about her very personal impressions of Judge Alito when they 
attended high school together in the late 1960s in New Jersey. I don't 
know exactly how she got to Iowa. But she is there and she wanted me to 
know how she remembered Sam Alito.
  She wrote:

       I remembered [Samuel Alito] because he stood out in his 
     class and in the school. He was one of the leaders of the 
     school. . . . I remembered him being very bright, well 
     prepared, and brilliant. He appeared to be an individual with 
     vision. . . . . He stood out as a young man with a great deal 
     of integrity. Many of his teachers from high school are gone 
     now. But I know if they were here and could write letters on 
     his behalf, they would have many stories to tell about the 
     kind of student he was both inside and outside the classroom.

  The letter continues:

       I am not a very political person. I have some issues that I 
     believe in deeply and others that I do not have a deep 
     commitment about. I am sure that Sam and I do not agree on 
     all the issues that will be placed before him. The abortion 
     issue is likely to be one of those, as I understand from the 
     media that he may be against abortion. However, I do strongly 
     believe that he will listen to the arguments placed before 
     him, research the law, and decide honorably.

  She concludes her letter this way:

       It has been nearly 40 years since he graduated from high 
     school.


[[Page S172]]


  I think the implication is she hasn't even talked to him in the last 
40 years. She says:

       And although I have a good memory for details, the specific 
     details of my involvement with Sam are not as clear as I 
     would like to have them be in my endorsement for him. What is 
     left, however, is the internalized memory of Sam. That memory 
     tells me that he will make an excellent Supreme Court 
     justice. I hope that with your hearings on his appointment, 
     you and the others will be able to make that clear to any who 
     may wish to try to discredit him for political reasons. What 
     I learned about the Supreme Court branch of government--

  Talking about when she was in school--

     is that this part of the ``checks'' in our system is to be 
     devoid of politics. I believe that Sam has what it takes to 
     fulfill that role.

  I think this is a very nice testimonial about the man we are going to 
vote on and hopefully confirm to become the next member of the Supreme 
Court. I appreciate Ms. Watson-Nelson's letter letting us know about 
her personal experience with Sam Alito. She hit the nail on the head. 
The Supreme Court needs to get out of the business of politics, and we 
need to stop discrediting good nominees for political reasons. She, 
like most Americans, knows what is going on.
  So, it is clear to me, the people who know Judge Alito personally 
believe, without any reservation, that he is a judge who follows the 
law and the Constitution without preset outcomes in mind. They believe 
he is a man of great intellect and insight. They believe he is a fair 
and open-minded judge committed to doing what is right, rather than 
committed to implementing a political agenda or a personal agenda. They 
believe he is a man of integrity, modesty, and restraint.
  I am pleased to support Judge Alito's nomination. Judge Alito will be 
a great Justice, not a politician on the bench. He won't impose his 
personal views or be a judicial activist, but will make decisions as 
they should be decided--in an impartial manner, with the appropriate 
restraint, in accordance with the laws and the Constitution. Judge 
Alito will carry out the responsibilities of a Justice in a principled, 
fair, and effective manner. I am proud to cast my vote in support of 
this decent and honorable man.
  I wish this story would end with qualifications, integrity, and 
judicial restraint, because only those considerations should matter. 
But it looks as though the most partisan and political among us won't 
let that happen. There may be some who will vote against Judge Alito's 
confirmation, not because of qualifications or integrity, and not even 
because they want somebody to legislate from the bench or treat the 
Constitution as a blank slate that judges can freely draw upon.
  No, it appears some Senators will vote against this nominee because 
they think doing so is a good political issue. Instead of applying the 
same standard we Republicans applied when the Senate overwhelmingly 
confirmed Justice Ginsburg, the most liberal Justice on the Court, 
these partisans will change the rules in the middle of the game once 
again. They will vote against Judge Alito with an eye toward the next 
election and the demands of their most extreme and activist supporters.
  The Washington Post had it right when it editorialized on January 15:

       A Supreme Court nomination isn't a forum to refight a 
     presidential election.

  I would go a step further than that editorial. A Supreme Court 
nomination is not a forum to fight any election. It is the time to 
perform one of our most important constitutional duties and decide 
whether a nominee is qualified to serve on the Nation's highest court.
  I hope my colleagues will cast their vote based on Judge Alito's 
outstanding qualifications, rather than on the distorted claims of 
liberal outside-interest groups. I urge my colleagues to rise above 
partisan politics and support this worthy nominee, Samuel Alito. Samuel 
Alito deserves our overwhelming vote of approval, and it would be a 
great shame if he doesn't get it.
  I ask unanimous consent to print in the Record the letter from which 
I quoted.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
       Dear Senator Grassley: I spoke with you briefly at the Iowa 
     Farm Bureau annual meeting on November 30th regarding Sam 
     Alito. You requested that I follow up our discussion with a 
     letter about how I felt about him.
       He graduated from Steinert High School (AKA Hamilton High 
     School-East) in 1968 and I graduated from Steinert in 1969. I 
     remember well that he was one of 4 Valedictorians that year, 
     a first for the school. There were 2 men and 2 women. I knew 
     one of the women well and I remembered him because he stood 
     out in his class and in the school. He was one of the leaders 
     of the school. He was student council president at Steinert 
     his senior year, and I think he was also student council 
     president at Reynolds Jr. High as well. I had worked with him 
     on the school newspaper staff my Junior year, the year he was 
     the editor of the paper.
       I remember him as being very bright, well prepared, and 
     brilliant. He appeared to be an individual with vision. His 
     high school ``crowd'' of kids were the leaders of the school 
     and his class. I knew some of his crowd well during my high 
     school years. He stood out as a young man with a great deal 
     of integrity.
       Many of his teachers from high school are gone now. But I 
     know if they were here and could write letters on his behalf, 
     they would have many stories to tell about the kind of 
     student he was both inside and outside the classroom. The 
     teachers at Steinert at the time Sam and I were in high 
     school were a family and they viewed the student body as part 
     of that family. His first principal at Steinert was my 
     father, Richard F. Watson. When we discussed that Sam was up 
     for the Supreme Justice opening, he remembered him and hoped 
     that he would be approved.
       I am not a very political person. I have some issues that I 
     believe in deeply and others that I do not have a deep 
     commitment about. I am sure that Sam and I do not agree on 
     all of the issues that will be placed before him. The 
     abortion issue is likely to be one of those, as I understand 
     from the media that he may be against abortion. However, I do 
     strongly believe that he will listen to the arguments placed 
     before him, research the law, and decide honorably.
       The best summary of the type of person that I believe Sam 
     to be is that I believe that he has many of the same 
     qualities that I have observed in you, Senator, over the 
     years that you have been our State senator. Those qualities 
     and values are the reason that I continue to vote for you and 
     support you. I think that this is the best endorsement that I 
     can give to Sam. It has been nearly 40 years since he 
     graduated from high school. And although I have a good memory 
     for details, the specific details of my involvement with Sam 
     are not as clear as I would like them to be in my endorsement 
     for him. What is left, however, is the internalized memory of 
     Sam. That memory tells me that he will make an excellent 
     Supreme Court Justice.
       I hope that with your hearings on his appointment, you and 
     the others will be able to make that clear to any who may 
     wish to try to discredit him for political reasons. What I 
     learned about the Supreme Court branch of our government is 
     that this part of the ``checks'' in our system that is to be 
     devoid of politics. I believe that Sam has what it takes to 
     fulfill that role.
           Sincerely,
                                               Joan Watson-Nelson.

  The PRESIDING OFFICER (Mr. Martinez). The Senator from Mississippi.
  Mr. LOTT. Mr. President, parliamentary inquiry before I begin: I know 
we have a balance, going back and forth in this debate. Have any prior 
arrangements been made with regard to others proceeding, or may I go at 
this time?
  The PRESIDING OFFICER. The Senator may proceed until 2.
  Mr. LOTT. Mr. President, I rise today to speak in favor of the 
nomination of Judge Samuel Alito for Associate Justice of the U.S. 
Supreme Court.
  Before I proceed to my discussion of my views of Judge Alito, I take 
a moment to thank Senator Arlen Specter for the good work he has done 
on the Judiciary Committee over the last few months. He has had a 
loaded calendar, a lot of important legislation, important hearings, 
and the process of confirming two Supreme Court Justices. It has been a 
while since any chairman of the Judiciary Committee or any committee 
has had this kind of workload over just a few months. Senator Specter 
has done an excellent job in the way he has handled it.
  I also recognize Senator Grassley and his participation on the 
committee and the statement he just gave. It is obvious he has done his 
homework. He handled himself well in the hearings, and he has even 
developed what seems to be a personal affinity for Judge Alito. That 
will affect a lot of other Senators' thinking about this, and a lot of 
the American people.
  I commend those on the committee who have treated this process with 
the dignity and respect it certainly deserves. The Chair will note, I 
said to ``those,'' meaning not necessarily all of the members of the 
committee.
  There is not a lot I can say here today that others won't say about 
his

[[Page S173]]

record or about this issue. But I believe this is one of the most 
important functions we have in the Senate; that is, our advice and 
consent, the confirmation process for our Federal judiciary. There is 
no question that it was intended we have three equal branches of 
Government: the judiciary, the executive, and the legislative. We all 
have responsibilities under the Constitution and under the law, and 
those have evolved over the years. Separation of power should not mean 
we become the body or the part of Government that becomes 
obstructionist or is always looking for a way to take on the executive 
or the judiciary. This is an important responsibility, and it is 
important every Senator have a chance to express his or her views on 
this topic.
  This is such an important issue that it is good for the country, 
anytime we have a debate about the judiciary and what is the role of 
the Congress, the executive branch, the judiciary, the whole process: 
How should judges be selected and how should the hearings be held and 
what should they do when they get on the Court. This is good for the 
country, and we should look at it that way.
  I do know that it has been a constant topic of discussion in much of 
the country since last summer with the process that led to the 
confirmation of Chief Justice Roberts and now the discussion about 
Judge Alito. I had a call from a constituent in Jackson, MS. She 
expressed her support for the fact that the Judiciary Committee 
reported out this nomination and thought we were going to vote today, 
which we should be voting today on his confirmation as an Associate 
Justice. It said to me, once again, this is not a person involved in 
the judiciary, but people are paying attention to what we say and what 
we do. We should not trivialize in any way this important process.
  Over the years I have asked myself, what should I do in analyzing 
Federal judicial nominations, particularly the Supreme Court, since 
they clearly can have a long-term effect. When we confirm these men and 
women for life terms, it is serious. We need to always be thinking 
about it. When I first came to the Senate after years in the House, I 
asked my senior colleague from Mississippi, a respected member and now 
chairman of the Appropriations Committee, to talk with me about what 
should be the criteria in debates for confirming judges. He gave me 
good advice, and it was pretty simple. He basically said that under our 
advice and consent responsibility, we should look to see if the nominee 
is qualified by character, education, experience, and temperament. Then 
if the nominee meets the basic criteria or qualifications in those 
areas, he or she should be confirmed. End of discussion. Not a ruling 
on a particular case, not a personal view on any subject, not one based 
on religious faith or any number of other issues. Are they qualified by 
character, which means do they have good integrity and ethics, are they 
educated for the job, do they have good experience, and do they have 
the right temperament to serve. That is the way it should be.
  When I have looked at the issue, I am absolutely satisfied we have 
one of the most qualified nominees for the Supreme Court, probably one 
of the most qualified in at least 70 years, when we look at all he has 
done. I have applied this principle during Democratic administrations 
and Republican. Have I occasionally voted against nominees? Yes, for 
good and valid reasons. I voted against one because I thought he had a 
conflict of interest. I voted against one because I thought he had been 
a recess appointment inappropriately. I don't think Federal judges 
should, generally get recess appointments, although it has been done in 
one case where I clearly felt it was fair. But it is not something I 
would want us to make a practice of.
  I voted for Justice Ginsburg. A lot of people in my State said: Why? 
I voted for other so-called liberal judges I philosophically had 
problems with, but in the case of Justice Ginsburg, I thought she was 
qualified by character, education, experience, and by her temperament. 
I am sure I don't agree with an awful lot of the decisions she has made 
on the Supreme Court, but she is qualified.
  There is one other thing. It is called elections. When we elect a 
President, we should know what is going to be their position on 
appointing people to the Federal judiciary. This President, George W. 
Bush, made it clear he was going to be looking for strict 
constructionists, men and women of good character who would not write 
the laws but would interpret the laws. He talked about it. Nobody in 
America should be surprised that he would nominate a candidate such as 
Judge Alito. He certainly is experienced. He is a strict 
constructionist. He is qualified.
  Some people are offended that the President would suggest what 
appears to be a conservative for the Supreme Court. Why? What did they 
expect? That is why I voted for Justice Ginsburg and a lot of President 
Clinton's nominees for the Federal judiciary, because he won the 
election. These were his choices. While I might disagree with him 
philosophically, I couldn't disagree with him as far as their 
qualifications. Even the very active Democratic Governor of 
Pennsylvania, Mr. Rendell, has talked about elections and their meaning 
in this process. This President has selected this nominee and he is 
entitled to that and, basically, this judge should be confirmed. That 
was an interesting comment for a former chairman of the Democratic 
National Committee. But he took the right position, and I appreciate 
the fact that he would do that.
  When you look at Judge Alito's background, it becomes clear he is 
highly qualified. He is a graduate of Princeton and Yale Law School. 
Some people might try to use that against him. I guess he couldn't get 
into Vanderbilt or the University of Mississippi, but Princeton and 
Yale are not bad institutions.
  He was a member of Phi Beta Kappa. He was an editor of the Yale Law 
Review. He clerked for Judge Leonard Garth of the Third Circuit. He was 
an assistant U.S. attorney for the District of New Jersey. He was 
Assistant to the Solicitor General of the United States beginning in 
1981 where he argued 12 cases before the Supreme Court on behalf of the 
Federal Government. After serving as Deputy Assistant Attorney General 
in the Office of Legal Counsel, he was nominated for U.S. attorney for 
the District of New Jersey. He was unanimously confirmed by the Senate. 
Then, of course, he was nominated by President George H.W. Bush in 1990 
to the Third Circuit Court of Appeals.
  So he has good character. I think most people would agree to that. He 
is clearly well educated. It is hard to disagree with that. He clearly 
is brilliant. Maybe sometimes he is too smart for a lot of us; he knows 
the law, and he can talk about cases by name without reference to 
notes. He clerked and has worked as a Federal judge in the Third 
Circuit. He was on the prosecution side as assistant U.S. attorney and 
as U.S. attorney. So these are all good qualifications.
  Then he went on the Third Circuit, a very important and active 
circuit, where he has served 15 years. He cast approximately 5,000 
votes, and he participated in the decisions of more than 1,500 Federal 
appeals and has written more than 350 opinions--a lot of work and a lot 
of good work.
  If there was a problem with this judge and his opinions, do you 
really think the Judiciary Committee could not have found some cases or 
more phrases when he participated in all of these votes and wrote 350 
opinions? I have been very impressed by the willingness of his 
colleagues, but not just from New Jersey, not just those who served 
with him in previous administrations, but six current and former 
Federal judges with all kinds of backgrounds and philosophies--people 
who admit, I am a Democrat, a liberal, but I know this man, his 
demeanor, how he handles himself when we were in conference--where 
judges come out with these mystical decisions they develop in those 
quarters. That is where you see the real man. When you have people who 
have spoken up and made it clear about the quality of this nominee, I 
think that is very important.
  The ``holy grail,'' the American Bar Association, has rated him well 
qualified. There again, a lot of people used to say that is the most 
important thing of all. Well, he got their top rating. Surely, that 
would affect us. Regardless of ideological, philosophy, or positioning, 
the people who know him best have spoken up very aggressively in his 
support. That is very convincing to me.

[[Page S174]]

  I thought during the hearings he handled himself quite well. He 
answered over 600--maybe 700 questions, when he was given a chance. The 
statements and questions were a lot longer than the answers were 
allowed to be. I thought his responses were good and studied. He met 
the so-called Ginsburg standard. He would not say how he might rule on 
a particular case. How can you do that? You have to know the facts and 
you have to look at precedents and you have to go through all these 
hoops that lawyers enjoy wrestling with and judges have to comply with. 
I watched it. My wife thought I was strange for sitting there watching 
these committee hearings, but I felt it was part of my responsibility. 
I wanted to see what the Senators asked him and how he responded. I 
thought he handled himself well on his answers and how he responded on 
substance.
  I was upset, quite frankly, when it turned from substance to what got 
close to character assassination, smear. It really got personal and 
ugly. I was embarrassed about that. I was ashamed, quite frankly. I 
realize that sometimes our spouses have to put up with a lot for those 
of us who are in government and politics and on the judiciary. But I 
thought it was a defining moment when the judge's wife was driven to 
tears.
  I have appreciation for the fact that one of the Senators was saying, 
We are sorry that you had to put up with this. We know you are a man of 
character and integrity. I don't think it needs to go that far.
  Do we get carried away around here sometimes on both sides of the 
aisle? Sure. It is a tough, political, and partisan political place. 
But how much is enough? How low will we sink? Every year I have been in 
the Senate we have drifted further and further down in how we deal with 
these Federal judicial appointments. Hopefully, we will finally reach 
the bottom and we will go back up.
  There is no good reason to vote against this good man to be on the 
Supreme Court, even if you might disagree with him on some of his 
decisions. But he will be careful and studied and he will pay attention 
to the precedents--more so than I probably would like him to. But it is 
time to begin to try to go back and approach these nominations 
differently. Again, I am not absolving any of us for having misbehaved 
sometimes in the way we handle these issues.
  The American people are watching, and they have to feel for this man. 
They were unhappy with what they saw from a lot of Senators on the 
Judiciary Committee. They felt that he went through more than he should 
have, in terms of personal attacks. They would like for us not to go 
quite so far.
  I was encouraged, frankly, when we had the vote on Judge Roberts, to 
be the Chief Justice. I was pleased that it was as bipartisan as it 
was, and he received 78 votes. But now I see that slipping away in this 
case.
  Some say: Wait a minute, this is extraordinarily important because 
this may tip the balance, and that Justice Sandra Day O'Connor became 
somewhat of a swing vote and probably would be interpreted by some 
people as being a moderate in some respect.
  Well, it may tip the balance. From my standpoint, I sure hope so. But 
I was not paying any attention to balance when I voted for Justice 
Ginsburg. I was voting on the merits of that particular individual.
  I don't think it is fair to Judge Alito to oppose him because he is 
conservative and may tilt the balance of the Supreme Court. These 
things swing back and forth. The pendulum has been way over there in 
the Supreme Court for a long time and, finally, it has become more 
moderate. Maybe it will become more conservative.

  I think I have told the story in the Senate before about how I was 
talking to a personal friend, now a Federal judge. He was inquiring in 
bemusement, and incredulously:

       Why is it that the Federal judiciary is held in such low 
     regard?

  I could not believe he even asked. I said:

       Your Honor, it is because of the dumb decisions that you 
     all quite often make.

  The people are outraged with decisions such as the Kelo v. City of 
New London case, dealing with eminent domain.
  Time and time again, people see what is happening in Supreme Court 
rulings. They get in here when they should not and don't get in there 
when they should. In many instances, they interpret the law wrongly or 
start to try to make laws. And it is not just the Supreme Court. I 
think over the years--recently, at least--if you look at the Supreme 
Court, they have been pretty good. But the eminent domain decision just 
absolutely floored me. We have to correct that mistake. When you get 
down to the rest of the Federal judiciary, they are into all kinds of 
stuff all the time--social engineering, intervention when they have no 
business intervening, and they have lost a lot of respect from the 
American people.
  That said, I want the Federal judiciary and the Congress and the 
President to be respected for the special institutions they are. So 
this is an important decision.
  I am pleased the President nominated Judge Alito. I think that his 
experience over these years has clearly qualified him for it. He has 30 
years of experience, and he went though 18 hours of questioning. He is 
a good man with a great background, with an American dream story, a 
first generation American from another country. He is everything I 
thought we should be looking for. So I am pleased and honored to be 
able to come and speak on behalf of his nomination and urge his 
confirmation, and I will vote for him.
  In conclusion, let me say again that there are some who say we may 
still have a filibuster. We should not do that. We cannot do that. That 
is not fair to the process, not fair to this nominee, not fair to the 
President. I hope our colleagues will not impose a filibuster here and 
force action by the Senate to stop that sort of thing from happening.
  I also want to say again that I think we have sort of lost our grip 
on how we treat these nominees. We need to find a way to pull back. It 
has gotten too ugly, too personal, and I think it undermines the 
credibility of the judiciary and those of us who sit in judgment on 
these men and women. I repeat again that we have all been a party to 
this, including me--I don't deny it--over the years. But at some point 
there comes a time when you say to each other, regardless of philosophy 
or region or party, let's see if we cannot do a better job, with more 
dignity and decorum, and that is more focused on the qualifications and 
character of the men and women and not on politics, partisanship, or 
ideology. I would like to be a part of making that happen.
  Every now and then, I have colleagues say: What can we do about the 
atmosphere? Well, it begins with us. It begins with making up our minds 
that we are going to be more communicative and we are not going to be 
quite so partisan. I have been as partisan as anybody around here. I 
served in the House, and it tends to make you a partisan warrior when 
you have been in the minority. Some people say maybe you get to be kind 
of arrogant and mean when you get to be in the majority. We can make a 
difference. I hope we find a way to do it, and do it soon.
  I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. Mr. President, it is my understanding at this time that 
there is an allocation of time reserved for the Senator from Virginia, 
and I shall proceed, although we are slightly off schedule. I don't 
wish to encroach on others, but I will proceed and watch the floor very 
carefully.
  The PRESIDING OFFICER. The Senator will suspend for a moment. I have 
been advised there are only 2 minutes left of the majority time for 
this allocation.
  Mr. WARNER. Then I will proceed, if I may, and ask unanimous consent 
to speak for not to exceed 5 minutes.
  The PRESIDING OFFICER. Is there objection?
  Mr. KENNEDY. Reserving the right to object, Mr. President, we 
certainly hope there will be no objection. My friend and colleague from 
Connecticut is roughly scheduled on the hour, but that seems to be a 
reasonable request.

[[Page S175]]

We could add the other 5 minutes at the end of the hour if that would 
be agreeable to the Senator from Virginia.
  Mr. WARNER. Mr. President, I think that would work out. Perhaps the 
intervening hour will be such that we won't need that additional 5 
minutes because I think the managers and leadership have tried to 
carefully manage the time. I am just able to get started now because my 
colleagues gave very good speeches, and we all enjoyed it.
  The PRESIDING OFFICER. Without objection, the Senator from Virginia 
is recognized for 5 minutes.
  Mr. WARNER. Mr. President, article II, section 2 of the U.S. 
Constitution explicitly provides for the responsibilities of the 
executive branch and Government and the Senate with respect to judicial 
nominations. The Constitution reads in part that the President ``shall 
nominate and, by and with the advice and consent of the Senate, shall 
appoint judges of the Supreme Court and all of the officers of the 
United States.'' Thus, the Constitution provides the President of the 
United States with the responsibility of nominating individuals to 
serve on our Federal bench.
  The Constitution provides the Senate with the responsibility of 
providing advice to the President on those nominations and with the 
responsibility of providing and withholding consent on those 
nominations. In this respect, article II, section 2 of our Constitution 
places our Federal judiciary in a unique posture with respect to the 
other two coequal branches of our Federal Government.
  Unlike the executive branch and unlike the Congress, the Constitution 
places the composition and continuity of our Federal judiciary entirely 
within the coordinated exercise and responsibilities of the other two 
branches of the Government. Only if the President and the Senate fairly 
and objectively and, if I may say, in a timely manner exercise their 
respective constitutional powers can the judicial branch of Government 
be composed and maintained so that our courts can function and serve 
the American people.
  For this reason, in my view, a Senator has no higher duty than his or 
her constitutional responsibilities under article II, section 2--the 
advise and consent clause.
  With respect to the Senate's advice responsibilities under article 
II, section 2, I believe our Founding Fathers explicitly used the word 
``advice'' in our Constitution for a reason. This was to ensure 
consultation between a President and the Senate prior to the forwarding 
of a nominee to the Senate for consideration. Adequate consultation 
prior to the forwarding of a nominee is of utmost importance. And, I 
compliment our distinguished President for recognizing that in the case 
of now, Justice John Roberts, and with respect to this nomination.
  But, let's not forget that while the Constitution calls for the 
Senate to provide advice to a President on whom he should nominate, the 
decision of whom to nominate solely rests with the President of the 
United States.
  Alexander Hamilton made this point crystal clear in the Federalist 
Paper No. 66 when he wrote:

       It will be the office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the Executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice of the 
     President.

  That is precisely why we are here in these closing days of a very 
prolonged procedure with regard to Judge Alito.
  I am privileged to indicate that I shall strongly support him at the 
time the vote is taken and cast my vote for him.
  With respect to the issue of consent, I believe it is imperative that 
when a Senator considers whether to grant or withhold consent, he or 
she should recognize article II, section 2 and Alexander Hamilton's 
statement in Federalist No. 66. Accordingly, during the course of my 28 
years in the Senate, I have always tried to fairly and objectively 
review a judicial nominee's credentials prior to deciding whether I 
will vote to provide consent on a nomination. I look at a wide range of 
factors, primarily: character, professional career, experience, 
integrity, and temperament for lifetime service on our courts. While I 
certainly recognize political considerations, it is my practice not to 
be bound by them.
  These same fair and objective factors that I have used during my 28 
years in the Senate have guided my consideration of Judge Alito's 
nomination.
  When Judge Alito's nomination was first announced, I wasn't overly 
familiar with the nominee. But over the past few months, I have 
reviewed his record thoroughly. I met with the nominee twice--the first 
time prior to his confirmation hearings before the Senate Judiciary 
Committee and the second time after the hearings. Each time I asked him 
a number of indepth questions. I have also reviewed a number of his 
judicial opinions and followed the confirmation hearings before the 
Judiciary Committee. In addition, many people have written, emailed, 
called my office, or spoken to me personally about this nominee, and I 
have respectfully considered their views.
  Having now completed my review of Judge Alito's nomination, I can 
say, without equivocation, that of the numerous judicial nominees I 
have reviewed during my nearly three decades in the Senate, Judge 
Alito's credentials and qualifications place him as very well 
qualified.
  Judge Alito has an impressive record of legal accomplishments.
  He received his bachelor's degree from Princeton University and 
attended Yale Law School. While at Yale, he served as an editor on the 
Yale Law Journal. Following graduation from law school, he worked as a 
law clerk for a Federal circuit court judge, Judge Leonard Garth of the 
U.S. Court of Appeals for the Third Circuit.
  Subsequent to his clerkship, Samuel Alito worked as an assistant U.S. 
attorney, as an assistant to the Solicitor General of the United 
States, and in the Office of Legal Counsel in the U.S. Department of 
Justice. In 1987, Mr. Alito was unanimously confirmed by the Senate to 
serve as the U.S. attorney for the District of New Jersey. Three years 
later he was nominated and unanimously confirmed by voice vote to serve 
as a judge on the U.S. Court of Appeals for the Third Circuit, and he 
has served on this court for the last 15 years.
  Without a doubt, Judge Alito has the requisite legal and professional 
experience to serve on the Supreme Court. Indeed, the American Bar 
Association, whose rating system of Federal judges is often referred to 
as the gold standard in the Senate, recently awarded Judge Alito a 
rating of well qualified--its highest rating.
  But in addition to his impressive record of legal accomplishments, 
Judge Alito has also demonstrated--during his confirmation hearings and 
over the past 15 years on the Federal bench--a deep respect for legal 
precedent and for the constitutional responsibility of the legislative 
branch to write our laws. These qualities of Judge Alito were confirmed 
by the remarkable testimony before the Judiciary Committee of several 
current and retired Federal judges, appointed by both Republican and 
Democratic Presidents, who worked closely with Judge Alito on the 
Federal bench.
  In my view, Judge Alito's strong record and experience, coupled with 
his appearance before the Judiciary Committee, eliminate any question 
of the existence of ``extraordinary circumstances'' that would justify 
denying him an up-or-down vote.
  Judge Alito is an outstanding judicial nominee who I am proud to 
support for confirmation. I believe he will serve on the U.S. Supreme 
Court with distinction, and I commend our President on making such a 
fine nomination.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LIEBERMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, pursuant to the understanding between 
the Senator from Virginia and the Senator from Massachusetts, I now ask 
unanimous consent that there be an extra 5 minutes added at the end of 
this hour for this side of the aisle.
  The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S176]]

  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I rise to discuss the nomination of Samuel Alito to be 
Associate Justice of the Supreme Court. This is the sixth opportunity I 
have had as a Senator to consider a President's nominee to the High 
Court. It is surely one of the most awesome and important 
responsibilities of Members of this body because of the uniquely 
powerful and autonomous role the Supreme Court has in our governmental 
system and because, once confirmed, Supreme Court Justices serve for 
life, with accountability only to the Constitution, as they read it.
  Similar to most of my colleagues, I judge the nominees based on four 
factors: their intellect and ability, their experience, their 
character, and their judicial philosophy.
  On the first three factors--intellect, experience, and character--I 
conclude that Judge Alito more than passes the test. But on the fourth 
factor, judicial philosophy, I am left with too many doubts to vote to 
confirm this nominee for a lifetime of service on the U.S. Supreme 
Court.
  Let me now go over these four areas of consideration.
  First, intellect and ability. From the meeting I had with Judge 
Alito, the legal quality of his opinions, over 15 years as a judge, and 
his testimony before the Judiciary Committee, I believe Judge Alito has 
shown that he is a person of considerable intellect and ability.
  Second, experience. Judge Alito's curriculum vitae itself depicts his 
excellent and relevant experience as a law clerk, a Federal Government 
attorney, a U.S. attorney, and an appellate judge on the Third Circuit.
  Third, his character. Judge Alito, I know, was questioned 
aggressively at the Judiciary Committee's confirmation hearings and 
elsewhere with regard to his character, but I thought he emerged with 
his integrity and honor intact. The ABA standing committee confirmed 
that judgment when it concluded that ``he is an individual of excellent 
integrity,'' and that was based on more than 300 interviews with 
professional colleagues.
  Fourth is judicial philosophy, and here is where, for me, the 
problems with this nomination begin and, in some sense, ends. Judge 
Alito brings to this nomination process a more lengthy record of 
judicial opinions than any of the previous five nominees to the U.S. 
Supreme Court whom I have had the privilege to consider. In his 15 
years on the Third Circuit Court, Judge Alito has written more than 350 
opinions. Together, these opinions leave me with profound doubts about 
whether Judge Alito would protect and advance the special role the 
Constitution gives the Supreme Court as the single institution in our 
Government that our Founders freed forever from popular political 
passions so that it could protect the rights our founding documents 
gave to every American.
  Personal freedom and equal opportunity are America's core ideals, and 
our courts have been and must be the great advancers and protectors of 
those ideals. To me, that work defines the vital mainstream of American 
jurisprudence.
  Based on his personal statements during the 1980s when he was a 
Government attorney, and particularly on his 15 years of judicial 
opinions, I am left with profound concerns that Judge Alito would 
diminish the Supreme Court's role as the ultimate guarantor of 
individual liberty in our country.
  This is not about a single issue but about an accumulation of his 
opinions that leads me to a preponderance of doubts. For example, in 
civil rights cases, Judge Alito has repeatedly established a very high 
bar, an unusually high bar for entrance to our courts for people who 
believe they have been denied equal opportunity and fair treatment 
based on race or gender.
  In one case, Bray v. Marriott Hotels, the majority of his colleagues 
on the court said:

       Title VII of the Civil Rights Act would be eviscerated if 
     our analysis were to halt where the dissent of Judge Alito 
     suggests.

  Judge Alito's narrow reading of the commerce clause, as exemplified 
by his dissent in the case of United States v. Rybar, casts a shadow on 
Federal legislation passed to protect the rights of individual 
Americans which has been and will be based on the commerce clause. When 
asked at his confirmation hearings about the question of personal 
privacy, Judge Alito accepted the 1965 decision of Griswold v. 
Connecticut as settled law. But when asked over and over, he refused to 
say the same about the 1973 decision in Roe v. Wade.

  On that most divisive and difficult question of abortion, I 
personally believe that Roe achieved a just balance of rights and 
reflected a societal consensus that has continued and deepened in our 
country for more than three decades. I was left with serious concerns 
that Judge Alito would not uphold the basic tenets of Roe, and that is 
a very troubling conclusion.
  Every time I have voted to confirm a nominee to the U.S. Supreme 
Court, as I have with Justices Souter, Breyer, Ginsburg, and Roberts--
two appointed by Republican Presidents and two appointed by a 
Democratic President--I did so knowing, as we all do, that I was taking 
a risk because I could never know exactly how the particular Justice 
would rule on the many cases that would come before him or her in a 
lifetime on the bench. But I ultimately concluded, based on their 
records and their testimony, that those four Justices would more likely 
than not uphold the unique responsibility the Supreme Court has as the 
most important guardian of freedom, opportunity, and privacy for every 
single American.
  Unfortunately, I have not been able to reach the same conclusion 
about Judge Alito, and so I will respectfully vote ``no'' on his 
nomination.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank the Senator from Connecticut for 
his excellent statement.
  I spoke on this issue yesterday. I wish to include in the Record some 
letters that I have received from the representatives of the working 
community. I will include them in the Record. The first letter I am 
going to include in the Record is a letter I received from the AFL-CIO. 
Included in the comments are these words:

       As the enclosed memorandum explains more fully, Judge 
     Alito's decisions and dissents show a disturbing tendency to 
     take an extremely narrow and restrictive view of laws passed 
     by Congress to protect workers' rights, resulting in workers 
     being deprived of wage and hour, health and safety, anti-
     discrimination, pension, and other important protections. On 
     a number of occasions, Judge Alito's colleagues on the Third 
     Circuit have criticized his opinions for their excessively 
     narrow view of worker protection and civil rights statutes. 
     Judge Alito holds federal agencies to an unrealistically high 
     standard when they seek to enforce worker protection laws, 
     often reversing them on hypertechnical grounds and depriving 
     workers of important protections as result.

  It continues:

       Working families are struggling mightily against an assault 
     on our hard-won gains in the legislative arena and at the 
     bargaining table. Wages are being cut, pensions and health 
     benefits are being drastically reduced or eliminated, and job 
     security is vanishing. Now more than ever, workers need the 
     protections offered to them under the laws passed by Congress 
     to protect their pay, benefits, retirement security, and 
     health. Working families need and deserve Supreme Court 
     Justices who understand and respect the importance of hard-
     fought rights and protections, not Justices who take an 
     unduly narrow view of the law, and of our rights. Judge 
     Alito's judicial philosophy is one that appears at odds with 
     workers' interests. Given the current composition of the 
     Supreme Court, and the absence of even a single Justice with 
     a worker advocacy background, we cannot afford to have the 
     Court further skewed against working families' interests.
       In recent years, many cases have been decided in the 
     Supreme Court by a one-vote margin. The Supreme Court, 
     decided, by one-vote margins, two cases involving the 
     question of whether certain groups of workers were protected 
     under the National Labor Relations Act. Millions of state 
     employees were deprived of their ability to seek relief in 
     court under the Fair Labor Standards Act, the Age 
     Discrimination in Employment Act, and the Americans with 
     Disabilities Act because of decisions decided by a one-vote 
     margin. The Court issued a decision restricting States in 
     their ability to adopt their own workplace safety laws, 
     again by a one-vote margin. By a one-vote margin, the 
     Supreme Court excused employers from having to pay backpay 
     when they are found to have discriminated against union 
     supporters who happen to be undocumented workers. The 
     importance of this nomination to the rights and 
     protections of working families is clear.

  There is an excellent letter I received from AFSME. It points out:

       As a judge on the 3rd Circuit Court of Appeals in 
     Philadelphia, Lilts's extreme views can be seen in his 
     rulings where he consistently limits Congress' authority to 
     enact

[[Page S177]]

     laws that protect the rights of workers and individuals. . . 
     .

  Then it says:

       In one such case, Alito denied a female police officer's 
     sexual harassment claims despite overwhelming evidence that 
     she had indeed been victimized.
       Public employees also have not been spared under Judge 
     Alito. He wrote an opinion in a Pennsylvania case where he 
     stated that the Family and Medical Leave Act did not apply to 
     state employees. Rightfully so, the Supreme Court ruled in 
     disagreement with Alito, upholding the family care provision 
     of the FMLA. Several courts since then, including the very 
     conservative Fourth Circuit Court of Appeals, have concluded 
     that state employees shall have access to the entire range of 
     protections under the FMLA, thus rejecting Alito's earlier 
     ruling.
       Perhaps most disturbing about Judge Alito's judicial 
     philosophy is his narrow reading of our civil rights laws, 
     notably Title VII of the Civil Rights Act of 1964. . . .

  It continues:

       While Alito's 15 years as a Judge raises major concerns, 
     the time he spent as Presidential appointee in the Reagan 
     White House is equally disturbing. When Alito was a Justice 
     Department lawyer in the 1980s he urged President Reagan to 
     veto legislation that would have protected consumers from 
     crooked car dealers. . . .
       Alito wrote that protecting Americans is not the federal 
     government's job. He said in his memo, ``After all, it is the 
     states, and not the federal government, that are charged with 
     protecting the health, safety and welfare of their citizens. 
     This philosophy is extremely harmful to state employees who 
     deserve to have federal worker protections apply to them as 
     well.

  That is a letter from Mr. Gerald W. McEntee.
  There is a similar letter from the United Auto Workers.
  I ask unanimous consent those letters be printed in the Record at the 
conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. KENNEDY. Whoever is confirmed to succeed Justice Sandra Day 
O'Connor will have enormous power to affect Americans' daily lives. We 
have a constitutional duty to ensure Justice O'Connor's successor has 
demonstrated a core commitment to upholding the fundamental rights and 
freedoms on which our Nation was founded.
  Our decision whether to confirm a Supreme Court nominee affects the 
rights and freedoms not only of our generation, but those of our 
children and grandchildren as well.
  The Court's decisions affect whether employees' rights will be 
protected in the workplace. I have just referred to three letters that 
I have received. I have received many others that have been quite 
specific, pointing out the different areas where the judge has 
basically turned his back on the employees' rights and workers' rights.
  They will affect the ability of Americans to be secure in their homes 
from unwarranted searches and seizures. They affect whether families 
will be able to obtain needed medical care under their health insurance 
policies. And they affect whether people will actually receive the 
retirement benefits they were promised. They affect whether people will 
be free from discrimination in their daily lives. They affect whether 
Americans' most private medical decisions will remain a family matter 
or will be subject to government interference. And they affect whether 
students will be given fair consideration when they apply to college. 
They affect whether persons with disabilities will have access to 
public facilities and programs. They affect whether we will have 
reasonable environmental laws that keep our air and water clean.
  There they are. These are the issues which the Supreme Court has 
ruled on very recently. We wonder about the Supreme Court Justices, 
what judgments and decisions are they making that are so important to 
the average family. Why should an average family in America who is 
watching this debate think this nominee and his decisions are going to 
affect them? That is a reasonable question.
  Here you are. Employees, if you are a worker, you may question 
whether employees' rights will be protected in the workplace. I have 
just outlined several examples where there have been Supreme Court 
Justices who have denied workers fair consideration.
  The ability of Americans to be secure in their own homes from 
unwarranted searches and seizures, we went through the Groody case, 
Justice Alito permitting the strip-searching of a 10-year-old girl who 
was clearly not included in the warrant that was approved by the judge. 
He was criticized, not by those of us who have expressed reservations 
about the nominee, but criticized by a judge on the Third Circuit, 
talking about how Judge Alito's actions were out of order.
  They affect whether families will be able to obtain medical care 
under their health insurance policies. Remember the debates we had on 
the Patients' Bill of Rights? We had legislation that passed here, 
passed the House. We came very close to getting legislation--doesn't 
each HMO have to provide the types of coverage they have committed 
themselves to or do they not? Does that violate ERISA or doesn't it 
violate ERISA? These are important judgments. But it comes down to 
whether individuals are going to get the health care coverage they 
thought they were going to get. That is going to be decided by the 
Supreme Court of the United States.
  They affect whether people will actually receive the retirement 
benefits they were promised. The retirement pensions are in free fall 
in the United States of America at the present time; absolutely free 
fall. They say for retirement you need to have your savings--that is 
part of it--you need the Social Security and Medicare, and you need to 
have your retirement. Those are the three legs on the stool for a 
dignified retirement.
  These are the issues involving pensions. We have now seen 700 pension 
funds collapse over the period of the last 4 years, and $8 billion that 
workers had put aside has effectively been lost. These issues will come 
up. What are the obligations of companies in order to pay back workers? 
Those issues eventually come before the Supreme Court--whole lifeline 
savings. Those issues come up before the Supreme Court.
  Mr. President, I see my friend from West Virginia who had been 
scheduled during this time. I have had an opportunity to speak 
previously. There are some additional comments I would like to make, 
but certainly the Senate looks forward to the words of the Senator from 
West Virginia. I yield at this time.

                               Exhibit 1

         American Federation of Labor and Congress of Industrial 
           Organizations,
                                Washington, DC, December 14, 2005.
       Dear Senator: The AFL-CIO, a federation of 53 national and 
     international unions representing over nine million working 
     women and men, has reviewed Judge Samuel Alito's record on 
     the U.S. Court of Appeals for the Third Circuit in cases of 
     importance to working families. Based on this review, we are 
     compelled to oppose his nomination to be an Associate Justice 
     on the United States Supreme Court.
       As the enclosed memorandum explains more fully, Judge 
     Alito's decisions and dissents show a disturbing tendency to 
     take an extremely narrow and restrictive view of laws passed 
     by Congress to protect workers' rights, resulting in workers 
     being deprived of wage and hour, health and safety, anti-
     discrimination, pension, and other important protections. On 
     a number of occasions. Judge Alito's colleagues on the Third 
     Circuit have criticized his opinions for their excessively 
     narrow view of worker protection and civil rights statutes. 
     Judge Alito holds federal agencies to an unrealistically high 
     standard when they seek to enforce worker protection laws, 
     often reversing them on hypertechnical grounds and depriving 
     workers of important protections as a result.
       We are also very concerned about Judge Alito's views on the 
     scope of Congressional power, given some of his rulings in 
     this area, and his views about voting rights, given his 
     criticism of the Warren Court and its reapportionment 
     decisions. It is critical that Senators explore these and 
     other areas thoroughly at Judge Alito's upcoming confirmation 
     hearings in order to understand his views and his judicial 
     philosophy on these important issues.
       Working families are struggling mightily against an assault 
     on our hard-won gains in the legislative arena and at the 
     bargaining table. Wages are being cut, pensions and health 
     benefits are being drastically reduced or eliminated and job 
     security is vanishing. Now more than ever, workers need the 
     protections offered to them under the laws passed by Congress 
     to protect their pay, benefits, retirement security, and 
     health. Working families need and deserve Supreme Court 
     justices who understand and respect the importance of our 
     hard-fought rights and protections, not justices who take 
     an unduly narrow view of the law, and of our rights. Judge 
     Alito's judicial philosophy is one that appears to be at 
     odds with workers' interests. Given the current 
     composition of the Supreme Court, and the absence of even 
     a single justice with a worker advocacy background, we 
     cannot afford to have the Court

[[Page S178]]

     further skewed against working families' interests.
       In recent years, many cases have been decided in the 
     Supreme Court by a one-vote margin. The Supreme Court 
     decided, by one-vote margins, two cases involving the 
     question of whether certain groups of workers were protected 
     under the National Labor Relations Act. Millions of state 
     employees were deprived of their ability to seek relief in 
     court under the Fair Labor Standards Act, the Age 
     Discrimination in Employment Act, and the Americans with 
     Disabilities Act because of decisions decided by a one-vote 
     margin. The Court issued a decision restricting states in 
     their ability to adopt their own workplace safety laws, again 
     by a one-vote margin. By a one-vote margin, the Supreme Court 
     excused employers from having to pay back pay when they are 
     found to have discriminated against union supporters who 
     happen to be undocumented workers. The importance of this 
     nomination to the rights and protections of working families 
     is clear.
       The AFL-CIO urges you to oppose Judge Alito's nomination 
     and to insist on a more moderate nominee with a record 
     demonstrating greater respect for workers' rights.
           Sincerely,
                                                  John J. Sweeney,
     President.
                                  ____

         International Union, United Automobile, Aerospace & 
           Agricultural Implement Workers of America--UAW,
                                Washington, DC, December 19, 2005.
       Dear Senator: Next month the Senate is expected to consider 
     the nomination of Judge Samuel Alito to be an Associate 
     Justice on the U.S. Supreme Court. Based on our review of his 
     past writings and judicial decisions, the UAW opposes his 
     confirmation.
       While serving on the Third Circuit Court of Appeals, Judge 
     Alito's opinions have consistently reflected a narrow, 
     constricted interpretation of statutes protecting worker 
     rights. In particular, his opinions have excluded state 
     employees from coverage under the Family and Medical Leave 
     Act, denied overtime to newspaper reporters, vacated OSHA 
     citations, absolved corporate officers from liability for 
     unpaid wages, and exempted a company from having to notify 
     workers about an impending plant closing. He even issued a 
     solitary dissenting opinion that would have criminalized ``no 
     docking'' rules that have been a common industrial practice.
       In addition, Judge Alito's opinions in race and gender 
     employment discrimination cases have reflected a restrictive 
     interpretation of civil rights laws that would make it much 
     more difficult for women and minorities to obtain remedies 
     when they are the victims of discrimiation. We are especially 
     troubled by Judge Alito's statement in a 1985 job application 
     that he was ``particularly proud'' of his work in the Reagan 
     Administration to restrict affirmative action and limit 
     remedies for racial discrimination. We are also disturbed by 
     his 1985 writings disagreeing with the concept of ``one man, 
     one vote''.
       The UAW believes that nominees to the Supreme Court must 
     demonstrate that they hold views that are within the judicial 
     mainstream, and are committed to supporting the rights of 
     workers, minorities and women. Unfortunately, we believe that 
     Judge Alito fails to meet this essential test. Accordingly, 
     the UAW urges you to oppose his nomination to the Supreme 
     Court.
       Thank you for considering our views on this important 
     issue.
           Sincerely,
                                                     Alan Reuther,
     Legislative Director.
                                  ____

         American Federation of State, County and Municipal 
           Employees, AFL-CIO,
                                Washington, DC, December 19, 2005.
       Dear Senator: On behalf of the 1.7 million members of the 
     American Federation of State, County and Municipal Employees 
     (AFSCME), I am writing to announce our opposition to the 
     nomination of Judge Samuel Alito to be an Associate Justice 
     on the U.S. Supreme Court. We have reviewed his record and 
     determined that his views are far too extreme and out of the 
     mainstream of judicial philosophy. His presence on the 
     Supreme Court therefore would further divide the country and 
     disenfranchise even more average citizens and working 
     Americans.
       We believe that working people who are already seeing their 
     rights and protections under attack would not fare well if 
     Judge Alito was elevated to the Supreme Court. Judge Alito 
     has authored a number of decisions and dissenting opinions 
     contrary to the rights of employees and individuals. Of 
     particular concern to our members is Judge Alito's 
     established practice of ``closing the court-room door'' to 
     victims of civil rights violations by substantially 
     increasing the burden of proof placed on plaintiffs prior to 
     their cases ever getting to a jury of his or her peers. In 
     evaluating plaintiffs' discrimination claims, he has also 
     repeatedly taken a high-handed approach in dismissing the 
     merit and weight of their evidence and has been chastised by 
     his colleagues on the Third Circuit for doing so.
       As a judge on the 3rd Circuit Court of Appeals in 
     Philadelphia, Alito's extreme views can be seen in his 
     rulings where he consistently limits Congress' authority to 
     enact laws that protect the rights of workers and 
     individuals, including the Americans with Disabilities Act 
     (ADA) and the National Labor Relations Act. And, although the 
     majority of his fellow judges disagreed with him, Alito set a 
     standard so high that victims of sex discrimination would 
     find it virtually impossible to prove their case. In one such 
     case, Alito denied a female police officer's sexual 
     harassment claims despite overwhelming evidence that she had 
     indeed been victimized.
       Public employees also have not been spared under Judge 
     Alito. He wrote an opinion in a Pennsylvania case where he 
     stated that the Family and Medical Leave Act (FMLA) did not 
     apply to state employees. Rightfully so, the Supreme Court 
     ruled in disagreement with Alito, upholding the family care 
     provision of the FMLA. Several courts since then, including 
     the very conservative Fourth Circuit Court of Appeals, have 
     concluded that state employees should have access to the 
     entire range or protections under the FMLA, thus rejecting 
     Alito's earlier ruling.
       Perhaps most disturbing about Judge Alito's judicial 
     philosophy is his narrow reading of our civil rights laws, 
     notably Title VII of the Civil Right Act of 1964, which bars 
     various forms of discrimination in employment. Even when 
     plaintiffs in these cases come forward with substantial 
     evidence of title VII violation, Judge Alito voted--often in 
     dissent--to deny relief without even letting juries decide 
     whether discrimination occurred. In addition, in reviewing a 
     plaintiff's evidence, he has on several occasions improperly 
     assumed the role of jury or trial judge by casting judgment 
     on the weight and merits of the evidence and the credibility 
     of a witness' testimony.
       As U.S. citizens, we are concerned on several other fronts 
     as well. Alito consistently ruled against victims of 
     discrimination based on a disability. His philosophy would 
     restrict Congress' power to enact disability rights laws and 
     few if any such cases would survive under Judge Alito. Also, 
     he ruled to significantly reduce the ability of citizens to 
     bring suit against polluters under the Clean Air Act.
       While Alito's 15 years as a Judge raises major concerns, 
     the time he spent as a Presidential appointee in the Reagan 
     White House is equally disturbing. When Alito was a Justice 
     Department lawyer in the 1980s he urged President Reagan to 
     veto legislation that would have protected consumers from 
     crooked car dealers by making odometer fraud more difficult. 
     Alito wrote that protecting Americans is not the federal 
     government's job. He said in his memo, ``After all, it is the 
     states, and not the federal government, that are charged with 
     protecting the health, safety, and welfare of their 
     citizens.'' This philosophy is extremely harmful to state 
     employees who deserve to have federal worker protections 
     apply to them as well.
       Judge Alito clearly is a staunch advocate of the federalism 
     movement which poses a tremendous threat to employees of 
     state governments. State and local governments, like private 
     sector companies and non-profit organizations, are also 
     employers. And, as employers they should be required to 
     adhere to the same laws and regulations that all other 
     employers are subject to. Unfortunately, Judge Alito and the 
     federalism movement seek to limit the power of the federal 
     government to protect individuals who happen to be employees 
     of state governments, in effect, making state employees 
     second class citizens.
       We strongly urge the Senate to insist that all of the 
     relevant information about Judge Alito be released, 
     particularly the Solicitor General and the Office of Legal 
     Counsel memoranda. We believe that there are underlying 
     reasons why the Administration continues to resist releasing 
     this vital information.
       Judge Alito's record is extremely troubling to AFSCME and 
     the workers we represent. He is one of the most extreme 
     federal judges in the whole country. If confirmed, Alito 
     would tilt the court further to the right and place in 
     jeopardy decades of progress protecting individual rights and 
     freedoms.
       For the forgoing reasons, AFSCME strongly urges the Senate 
     to reject Judge Alito's nomination. President Bush should 
     nominate an individual that does not pose such an enormous 
     threat to the rights and freedoms of working men and women.
           Sincerely,
                                                Gerald W. McEntee,
                                          International President.

  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. BYRD. Mr. President, I thank my colleague from Massachusetts, my 
colleague and my friend, Senator Kennedy.
  Mr. President, how much time do I have?
  The PRESIDING OFFICER. The time of the minority is open until 5 
minutes after 4 p.m. The Senator has 41 minutes.
  Mr. BYRD. Mr. President, I take this opportunity to offer a few 
observations on the manner in which the Senate has conducted its 
inquiry into the qualifications of Judge Samuel A. Alito, Jr., to serve 
on the U.S. Supreme Court.
  Regardless of any Senator's particular view of Judge Alito, I think 
we can all agree that there is room for improvement in the way in which 
the Senate and, indeed, the Nation have undertaken the examination of 
this

[[Page S179]]

nominee. Let me be clear. I mean no criticism of the chairman of the 
Senate Judiciary Committee or any particular member of that committee.
  I feel compelled to address this issue, not to point fingers, not to 
scold, not to assign blame, but only to address specific, sincere, 
heartfelt concerns that have been brought to my attention, by the 
people of West Virginia in particular. Many people, including foremost, 
as I say, the people of West Virginia, in no uncertain terms were, 
frankly, appalled by the Alito hearings. I don't want to say it, but I 
must. They were appalled.
  In the reams of correspondence that I received during the Alito 
hearings, West Virginians--the people I represent--West Virginians who 
wrote to criticize the way in which the hearings were conducted used 
the same two words. People with no connection to one another, people of 
different faiths, different views, different opinions, independently 
and respectively, used the same two words to describe the hearings. 
They called them an ``outrage'' and a ``disgrace.''
  These were not form letters, ginned up by special interest groups on 
either the right or the left. These were handwritten, contemplative, 
old-fashioned letters written on lined paper and personal stationery. 
They were the sort of letters that people write while watching 
television, in the comfort of their living rooms, or sitting at the 
kitchen table.
  It is especially telling that many who objected to the way in which 
the Alito hearings were conducted do not support Judge Alito. In fact, 
it is sorely apparent that even many who opposed Judge Alito's 
nomination also opposed the seemingly ``made for TV'' antics that 
accompanied the hearings.
  It is not just the Senate as an institution which is to blame. The 
virulence of some outside groups from both sides of the political 
spectrum added fuel to the fire. Multimillion-dollar advertising 
campaigns either to proclaim or to denigrate Judge Alito's fitness for 
the position raged across the airwaves.
  A solemn constitutional responsibility is not helped when it takes on 
such a tone.
  And then there were the media and the media's contribution to the 
deterioration of this very important constitutional process.
  Was it necessary to subject Mrs. Alito to the harsh glare of the 
television klieg lights as she fled the hearing room in tears, fighting 
to maintain her dignity in response to others with precious little of 
their own? Have we finally come to the point where our Nation's 
assessment of its Supreme Court nominee turns more on a simple-minded 
sound bite or an exploitive snapshot than on the answers provided or 
withheld by the nominees?
  Obviously, something is wrong with our judicial nomination process, 
and we in the Senate have the power to fix it.
  The Framers of such a great document presumably had something better 
in mind when they vested the Senate with the authority to confirm 
Justices of the Supreme Court. In fact, we know they did. In 1789, 
Roger Sherman of Connecticut defended the role of the Senate in 
confirming Presidential appointments. He wrote: It appears to me that 
the Senate is the most important branch in the government . . . The 
Executive magistrate is to execute the laws. The Senate, being a branch 
of the legislature, will naturally incline to have them duly executed 
and, therefore, will advise to such appointments as will best attain 
the end.
  Alexander Hamilton also had high hopes for the Senate's ability to 
render its advice and consent function. He proclaimed: It is not easy 
to conceive a plan better calculated than this to promote a judicious 
choice of men for filling the offices of the Union.
  Exactly what did the Framers mean when they gave the Senate the power 
to ``consent'' to the confirmation of the judicial nominees?
  Historically, a majority of the Framers anticipated that the Senate's 
confirmation or rejection of a judicial nominee would be based on the 
fitness of the nominee, not on partisan politics or extraneous matters.
  Based on these assumptions, the Framers presumably did not expect the 
Senate to spend its allotted time on a nominee staging partisan warfare 
instead of examining his or her qualifications.
  Yet the Framers probably also would never have expected that a 
Senator of a nominee's own party would refuse to ask the candidate 
meaningful questions. They certainly did not intend for Senators of the 
nominee's own party to sit silently in quiet adulation, refusing to 
seek the truth, while smiling indulgently; thus, accomplishing nothing.
  The Framers expected the Senate to be a serious check--a serious 
check--on the power of the President. The Framers clearly thought that 
the Senate's confirmation process ought to be fair, ought to be 
impartial, ought to be thorough, and ought to exhibit appropriate 
respect for solemn duty and the dignity of both the process and the 
nominee.
  I regret that we have come to a place in our history when both 
political parties--both political parties--exhibit such a ``take no 
prisoners'' attitude. All sides seek to use the debate over a Supreme 
Court nominee to air their particular wish list for or against 
abortion, euthanasia, Executive authority, freedom of the press, 
freedom of speech, wiretapping, the death penalty, workers' rights, gun 
control, corporate greed, and dozens of other subjects. All of these 
issues should be debated, but the battle lines should not be drawn on 
the judiciary. They should be debated by the people's representatives 
in the legislative branch.
  However, too many Americans apparently believe that if they cannot 
get Congress to address an issue, then they must take it to the Court. 
As the saying goes, ``If you can't change the law, change the judge.''
  This kind of thinking represents a gross misinterpretation of the 
separation of powers. It is the role of the Congress--the role of the 
legislative branch--to make and change the laws. Supreme Court Justices 
exist to interpret laws and be sure that they square with the 
Constitution and with settled law.
  A better understanding of the Court's role would do much to diminish 
the ``hype'' that now accompanies the judicial nomination process. The 
role of the Senate in the Alito debate is not to push legislation or to 
score points for those who either support or oppose specific 
legislative proposals. The purpose of the current debate is to evaluate 
the fitness of Judge Samuel Alito to sit on the highest Court of our 
land, which includes his temperament, his intellectual ability, and his 
record.
  In a perfect world, this heavy constitutional responsibility of the 
Senate would have little to do with party affiliation.
  Unfortunately, during the first administration of George Washington, 
as far back as 1795, a bruising confirmation battle over the nomination 
of John Rutledge to be the Chief Justice of the Supreme Court 
established that the same Senators would consider not merely the 
qualifications but also the political views of a nominee in deciding 
whether to support or reject his nomination.
  I am a Senator who takes this Constitution seriously. I refuse simply 
to toe the party line when it comes to Supreme Court Justices. And I 
will make up my own mind after careful contemplation. The President of 
the United States said partly in jest that he wanted to call me to 
lobby me on the nomination. I said: Mr. President, I don't lobby very 
easily. I take my Constitutional duties seriously. I will listen to 
what anybody has to say, and then, Mr. President, I will make up my own 
mind.
  I am a registered Democrat. Everybody knows that. But when it comes 
to judges, I hale from a conservative State. Similar to a majority of 
my constituents, I prefer conservative judges. I have been saying that 
for years and years. That is, judges who do not try to make the law.
  I was once approached by President Richard Nixon to inquire about my 
interest in being a U.S. Supreme Court Justice. I was proud to be 
considered. Whether I would have been nominated, I have no way of 
knowing. But as I said to my wife: I don't think I would like that 
position. I would not like that kind of cloistered life. I like the 
rough-and-tumble of the legislative branch. She said: Then you had 
better let the President know that.
  I said the same thing to Senator John Pastore, and he responded in 
the same way. He said: You had better let the President know that.

[[Page S180]]

  I declined so that I might continue to serve the people of West 
Virginia, regardless of what the President may have in his heart and in 
his mind. This is not to say that I would vote for any judge just 
because he is a conservative. No. No, sir. If I think a conservative 
judge is unqualified, I will not vote for him, nor would any other 
Senator vote for a nominee in that situation.
  I have voted against judges on both sides of the political spectrum, 
who leaned too heavily on their political views rather than on existing 
law, precedents and on the Constitution and who seemed to have a 
political agenda.
  Much has been made of the fact that Judge Alito has expressed support 
of the concept of the ``unitary executive.'' Many are afraid his 
support for this concept means that he favors a broad expansion of 
Presidential power. And I shared some of that concern. Judge Alito, 
however, has stated repeatedly that his support for the concept of the 
unitary executive does not refer to broadening the scope of the power 
of the President.
  Instead, Judge Alito says that this theory refers to the way in which 
the President utilizes his existing power to faithfully execute the law 
as it applies to administrative agencies within the executive branch. 
In describing the unitary executive in his speech before the Federalist 
Society, Judge Alito stated article II, section 3 of the Constitution 
provides that the President ``shall take care that the laws be 
faithfully executed.'' ``Thus,'' he said, ``the President has the power 
and the duty to supervise the way in which the subordinate executive 
branch officials exercise the President's power of carrying Federal law 
into execution.''
  Before the Judiciary Committee, Judge Alito was asked point blank 
whether he thought the concept of the unitary executive refers to 
expanding the scope of Presidential power, or instead to the 
President's control over the executive branch. As I understood it, 
Judge Alito confirmed he was speaking of the latter.

  Judge Alito was also asked whether he would support an expansion of 
the scope of Presidential power. Specifically, he was asked if he 
thought the President should have more power than he is expressly given 
under the Constitution and by law. Judge Alito stated several times 
that he would not support that point of view, and he noted, again, that 
the ``scope'' of the power of the President has nothing to do with the 
unitary executive.
  I met with Judge Samuel Alito. I spent close to 2 hours with him. I 
asked him what he thought about the establishment clause and the free 
exercise clause and the power of the purse and the congressional power 
over the purse. I told him that I believed the Supreme Court has gone 
too far in prohibiting the free exercise of religion in this country. 
He listened respectfully and said that he understood. He did not pledge 
to overrule precedent, but he made it clear that he understood and 
respected my viewpoint.
  I also advised him of my view that the executive branch is 
continually and improperly seeking to grab power, more power and more 
power, and that the separation of powers requires the judiciary to be 
ever vigilant in stopping the abuse of power by the President and in 
protecting the powers of the other two branches.
  I urged Judge Alito, as I urged Judge Roberts before him, to 
recognize the importance of maintaining the equality of the three 
branches of our Government, protected by our Constitution. I stressed 
that he ought to be a Justice who will not forget the people's branch, 
the legislative branch, the first branch, the primary branch mentioned 
in the Constitution under article I; the executive is mentioned later 
on in article II.
  I requested he not rule in a way that would expand the authority of 
an already expansionist executive. I reiterated that the Framers did 
not place the greatest power in the executive but, instead, the Framers 
put the greatest power in the people--the people, like you and me. The 
first three words in the preamble of the Constitution are, we all know, 
``We, the People.'' The Framers ensured that the people, through us, 
their elected representatives in the Congress, would have the greatest 
power in our Government. In response, Judge Alito told me he respected 
the separation of powers and would not rule in support of a power-
hungry President. I liked that answer. I liked Judge Alito. He struck 
me as a man of his word, and I intend to vote for him.
  I believe strongly that the Senate has a responsibility to provide 
its advice and consent with respect to a particular nominee based on 
the merits or demerits of that nominee, not on focus groups, celebrity 
endorsements, binders filled with innuendo and slanted analysis or 
White House photo opportunities.
  In truth, there is absolutely no way of knowing what any nominee for 
our Nation's highest Court will do after that nominee is confirmed. One 
could cite many examples of Justices who surprised the President who 
nominated them, as well as the Members of the Senate who supported or 
opposed their confirmation. Once a man or woman has achieved the high 
honor of a lifetime appointment to our Nation's highest Court, a 
transformation may occur. The awesome responsibility of protecting our 
Constitution and preserving the checks and balances for succeeding 
generations of Americans must elevate and sharpen one's judicial 
temperament in profound ways. The duty to preserve the freedom of our 
citizens as enshrined in our magnificent Bill of Rights must ennoble 
even an already noble mind and character.
  In the end, the heavy duty borne by Members of the Senate to evaluate 
and reject or approve the President's nominees for the High Court 
should come down to each Senator's personal judgment of the man or 
woman before us, augmented, of course, by such judicial records and 
writings as may exist. I may not know exactly what kind of Justice 
Samuel Alito will be. No one does. No one does. My considered judgment, 
from his record, from his answers to my own questions, from his obvious 
intelligence, and from his obvious sincerity, leads me to believe him 
to be an honorable man, a man who loves his country, loves the 
Constitution, and a man who will give of his best. Can we really ask 
for more?
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. SALAZAR. Mr. President, I rise today to explain why I will vote 
against Judge Samuel Alito's nomination for Associate Justice to the 
U.S. Supreme Court.
  After reviewing his record, I believe Judge Alito will move the 
Supreme Court too far to the conservative side of American 
jurisprudence. I believe Judge Alito's judicial philosophy will also 
dangerously increase Executive power, injuring the checks and balances 
built into our Constitution that protect all of us. Judge Alito's 
confirmation may roll back important civil rights protections, 
protections which were achieved in our country through the sacrifices 
of many and are crucial to the future of the United States.
  I hope, if Judge Alito is confirmed, history will prove my concerns 
wrong. But given his record, including his extensive written record, I 
cannot in good conscience support him.
  I thank the Senate Judiciary Committee. It held fair, serious, and 
dignified hearings. Chairman Specter, Ranking Member Leahy, the members 
of the committee, and the majority and minority staff have again earned 
our gratitude.
  Judge Alito's confirmation vote is particularly important for our 
country because this seat on our Supreme Court has been held by a 
champion of justice and mainstream America for a quarter century: 
Justice Sandra Day O'Connor. Our Nation owes Justice O'Connor a great 
debt of gratitude. Justice O'Connor served as an exemplary role model 
for all of us, including women succeeding at the very highest level of 
our National Government.
  Unfortunately, this nomination signals an undesirable retreat from 
diversity on the U.S. Supreme Court. Women make up more than half of 
the people of our country. Yet women have been represented in the 
Supreme Court in our entire history for more than two centuries by only 
two female Justices--Justice O'Connor and Justice Ginsburg. Now Justice 
Ginsburg is left to be the only role model on the Court for the hopes 
and aspirations of women and for all of us in America who believe that 
all men and all women are truly created equal.

[[Page S181]]

  I regret that result, especially after it was the radical right of 
America that derailed the nomination of Harriet Miers. We all know 
there are thousands of highly qualified women lawyers and judges across 
America, and they could have provided exceptional service to the United 
States on the Supreme Court. Regardless of the merits or demerits of 
Judge Alito, I am saddened, at the daybreak of the 21st century, that 
the United States has retreated from a cause that rightfully embraces 
the inevitability of the equality of women in our society.
  Beyond the principle of gender diversity, Justice O'Connor 
consistently defined the center of the Supreme Court on many issues. 
She used her wisdom and her judgment to advance reasonable, 
commonsense, and mainstream legal doctrines that affect the lives of 
all Americans. That is why the choice of the replacement for Justice 
O'Connor is so important for our collective future.
  The confirmation of a Supreme Court Justice is a solemn task. It is 
among the most important constitutional duties of the Senate. I have 
evaluated Judge Alito's qualifications using the same criteria I used 
to evaluate Chief Justice John Roberts for whom I voted. I have 
reviewed Judge Alito's record for evidence of his fairness, 
impartiality, and his proven record of upholding the law. However, I 
have decided that my concerns require that I vote against him.
  My concerns with Judge Alito start with the 1985 memorandum he 
included with his job application to the White House. Judge Alito was 
then 35 years old. To me, this document is a very powerful document. It 
is evidence of how Judge Alito the man views the law and the Supreme 
Court. The document is very carefully written. It is packed full of 
Judge Alito's political and jurisprudential ideas which he has adhered 
to over the years. In that memorandum, Judge Alito declared he strongly 
disagreed with the opinions of the Warren Court. Those opinions are now 
and then widely accepted. They encompass important constitutional 
protections such as opinions on reapportionment in Baker v. Carr, the 
case that established the principle of one person, one vote. They 
concern well-established rules about the relationship between church 
and state. I find Judge Alito's views to be outside the mainstream of 
legal thought in 1985.
  Since that time, based upon his decisions as an appellate judge and 
in his other writings, Judge Alito has ruled consistently with the 
legal philosophy he described in 1985. I believe that legal philosophy 
is wrong for our Nation. Specifically, I believe Judge Alito's legal 
philosophy about the structure of our government under our Constitution 
will harm our country if ultimately adopted by the Supreme Court.
  The Framers of our Constitution were geniuses. They created a legal 
structure for our country that has endured and prospered for more than 
two centuries. The Framers were not successful because they were 
abstract thinkers; they were successful because they were practical 
thinkers, practical Americans. The Framers knew human nature. Their 
view of human nature focused on the common frailties of people placed 
in positions of great power, human desires to gather more power, human 
tendencies to credit one particular view of the world above all others, 
and a very human unwillingness to understand the perspectives of 
others.
  Out of their genius, the Framers created a system of checks and 
balances. The Framers made rules which require that the power must be 
shared. They created a system with three coequal branches. They then 
distributed the powers of Government among and within the three 
branches. They created a system with explicit and implicit limits for 
the power of each branch. They created a system where the people who 
govern the United States are in constant tension with and against each 
other, always limiting and checking excesses that are all too human.
  Judge Alito's judicial philosophy will diminish our system of checks 
and balances. He will expand the powers of the executive branch to an 
extent that is dangerous to us all. I believe Judge Alito would grant 
the Executive power to overwhelm the congressional and judicial 
branches.
  Let me cite a few examples from his record.
  First, I am troubled by Judge Alito's 1984 brief in the Mitchell case 
in which he asserted absolute immunity for high Government officials 
accused of illegal wiretapping.
  I am troubled by his support in 1986 for the idea that Presidential 
signing statements--a President's remarks accompanying the signing of a 
bill--can change the intent of Congress, which debated and passed the 
bill into law. A President executes the law; a President does not 
rewrite or alter the law.
  I am troubled by Judge Alito's firm belief in a unitary executive--in 
an unwillingness to acknowledge checks and balances that exist within 
the executive branch itself.
  I am troubled by Judge Alito's pattern of great deference to the 
executive branch. Judge Alito's judicial philosophy in this area is 
particularly striking against the backdrop of current events. The 
current administration has adopted a widespread, concerted legal 
strategy to increase Executive power under our Constitution. It is 
wrongly pushing beyond the well-established edges of Executive power in 
many cases, based on a carefully calculated position that the current 
concentration of political power allows the executive branch to 
transcend the rule of law. This is not a ``strict construction'' of our 
Constitution; it is the opposite. It is an activist legal strategy to 
expand beyond reason our constitutional law that has served our country 
very well for more than 200 years.
  Let me be clear. My concerns are not based exclusively on my view of 
the current President or my ideas about how he would or would not wield 
dominant Executive power. We are talking about changes in the Court 
that could affect our Government for decades, as Presidents of both 
parties take office and govern.
  Dominant Executive power is not a ``safe bet'' for anyone, regardless 
of one's views of the current President. When considering a potential 
Supreme Court Justice, we must look beyond the politics of our time and 
we must protect the basic structure, the system of checks and balances 
among coequal branches. Administrations of varied ideology and vision 
must recognize that system of checks and balances.
  I briefly want to turn to civil rights.
  When I rose on this floor on September 27 of last year to speak on 
behalf of Chief Justice Roberts, I spoke of the ``age of diversity'' in 
this country. I spoke of this country's long history of slavery and our 
lengthy struggles--including our own Civil War--to put behind us the 
unequal treatment of our citizens.
  I talked about Brown v. Board of Education and the central role our 
Supreme Court played to guide our country on to the path of equality 
and equal treatment for all. I spoke of the growing diversity of people 
in our country, and of the need to foster all the powerful strengths 
our diversity brings to our Nation--a richness of cultures and spirit, 
a wealth of ideas, and a widely varied community bound together by the 
common values of truth, honesty, and fair dealing among ourselves.
  My life experiences and my years of public service convince me that 
recognizing and encouraging the strengths of diversity is the true 
constitutional path for our country. I also believe in the very 
practical wisdom of this approach. In fact, I believe it is the only 
way our country will thrive and prosper over the long run. I will vote 
against Judge Alito because I am convinced he is unlikely to support 
these principles of diversity.
  Here is only a small part of the evidence that Judge Alito will lead 
our Nation in the wrong direction on issues of equal opportunity and 
diversity:
  In Riley v. Taylor, Judge Alito was overturned by the entire Third 
Circuit when he, alone, concluded it was proper to exclude all Black 
jurors from sitting in judgment of a Black man.
  In Sheridan v. E.I. DuPont de Nemours, Judge Alito registered the 
lone dissent among 13 judges, voting to prevent a woman who had 
presented evidence of employment gender discrimination from going to 
trial.
  In PIRG of New Jersey, Judge Alito again denied access to the courts 
for a group of environmental plaintiffs who had won below.
  In Doe v. Groody, Judge Alito would have upheld the strip search of a 
10-

[[Page S182]]

year-old girl, denying her access to relief in the courts.
  And in Chittester, Judge Alito would have precluded State employees 
from seeking damages in court under the Federal Medical Leave Act.
  Analyses discussed during the Judiciary Committee hearing show Judge 
Alito almost never ruled for African Americans in employment 
discrimination cases. Analyses also show Judge Alito rarely sided with 
individuals in their cases against large and powerful institutions and 
corporate interests.
  I believe Judge Alito will continue to rule that way on the U.S. 
Supreme Court. I think that is wrong because it will usher in an era of 
insensitivity to the weakest and the poorest among us. I hope and I 
pray I am wrong.
  In conclusion, I believe Judge Alito will move the Supreme Court too 
far to the conservative side of American legal jurisprudence. Judge 
Alito's judicial philosophy will dangerously increase Executive power, 
injuring the checks and balances built into our Constitution to protect 
us all.
  And Judge Alito's confirmation will roll back important civil rights 
protections--protections that were achieved in our country through the 
sacrifices of many and which are critical to our Nation's future.
  I, therefore, will vote against this nomination.
  Mr. President, I ask unanimous consent that two letters be printed in 
the Record concerning Judge Alito. One is a letter from the League of 
United Latin American Citizens, and the other is a letter from the 
Colorado Hispanic Bar Association, in which they raise their opposition 
to the confirmation of Judge Alito.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  League of United


                                      Latin American Citizens,

                                 Washington, DC, January 13, 2006.
     Re Nomination of Samuel A. Alito to the United States Supreme 
         Court

     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     Dirksen Senate Office Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary,
     Dirksen Senate Office Building, Washington, DC.
       Dear Senators: We write to you as representatives of the 
     millions of American members of the immigrant, Latino, and 
     faith communities who are extraordinarily concerned about the 
     nomination of Judge Samuel Alito to the Supreme Court. We 
     believe that all Americans should be able to count on the 
     Supreme Court to uphold their rights, opportunities, and 
     legal protections, and we are worried that Judge Alito's 
     record demonstrates that millions of Americans would not be 
     able to count on him or the Court if he were confirmed.
       While we have many concerns about Judge Alito's record, we 
     are especially troubled by recent reports that Judge Alito, 
     during his time in the Reagan administration, contended that 
     undocumented immigrants and nonresident aliens from other 
     countries have limited or ``no due process rights'' under the 
     Constitution. Judge Alito advocated this view in a memo he 
     wrote in 1986 regarding FBI activities. In a Nov. 29 
     Washington Post article that focused on this 1986 document, 
     even the very conservative constitutional analyst Bruce Fein, 
     who served with Judge Alito in the Reagan administration, 
     seemed surprised by how extreme Judge Alito's position was. 
     ``He seems to be saying that there is no constitutional 
     constraints [sic] placed on U.S. officials in their treatment 
     of nonresident aliens or illegal aliens,'' Fein told the 
     Post. ``Could you shoot them? Could you torture them? . . . 
     It's a very aggressive reading of cases that addressed much 
     narrower issues.''
       This is part of a deeply disturbing pattern of rulings and 
     memos from Judge Alito's record indicating that he gives 
     great deference to the government's police powers and shows 
     little concern for protecting the rights of individuals. He 
     has tried to make it harder for people who believe they have 
     faced discrimination on the job to even have their case heard 
     in court. He has seen no problem in some cases with racial 
     discrimination on juries--or with keeping Spanish speakers 
     off juries in a case where some evidence was in Spanish. He 
     has also tried to undermine the Family and Medical Leave Act, 
     which allows people to keep their jobs and take care of 
     family members in need.
       Three times, President Bush has passed up the opportunity 
     to nominate a Latino to the Supreme Court. At the very least, 
     we had hoped he would avoid nominating someone hostile to the 
     basic interests of our communities, but it appears Judge 
     Alito may be such a nominee. That Judge Alito has actually 
     expressed views so extreme that they would deprive many 
     immigrants of basic human rights is extremely troublesome. 
     Such views are legally wrong, and they run counter to our 
     basic moral values.
       Our rights are too important to entrust to someone who has 
     seemingly indicated he thinks they don't exist. We urge you 
     to hold Judge Alito responsible for his views, and to take 
     our strong concerns into account when you vote on whether to 
     confirm him to the Supreme Court.
           Sincerely,
       Center for New Community.
       Hispanic Association of Colleges and Universities.
       Hispanic Federation.
       The PRLDEF Institute for Puerto Rican Policy.
       Latino Caucus in Official Relations with the American 
     Public Health Association.
       Labor Council for Latin American Advancement.
       League of United Latin American Citizens.
       National Farm Workers Ministries.
       National Hispanic Environmental Council.
       National Latina Institute for Reproductive Health.
       National Latina-o Law Students Association.
       National Network for Immigrant and Refugee Rights.
       National Day Laborers Organizing Network.
       SisterSong Women of Color.
       Reproductive Health Collective.
       United Farm Workers of America.
                                  ____

                                       CHBA, Colorado Hispanic Bar


                                                  Association,

                                                 January 10, 2006.
     Senator Ken Salazar,
     Hart Senate Office Building,
     Washington, DC.
       Dear Senator Salazar: The Colorado Hispanic Bar Association 
     (CHBA), expresses its opposition to the confirmation of 
     Samuel Alito as Associate Justice of the United States 
     Supreme Court. After review of his opinions written during 
     his tenure on the United States Court of Appeals for the 
     Third Circuit, the CHBA is concerned that Judge Alito has not 
     displayed sufficient respect for two fundamental legal 
     principles: (1) the role of the jury to resolve disputed 
     questions of fact; and (2) the restraints that stare decisis 
     imposes upon a judge's decision-making. Both of these 
     principles recognize the important--but limited--role that an 
     individual judge plays in our justice system. Judge Alito's 
     resistance to these tenets is troubling and counsels against 
     his confirmation to the highest court in the land. Although a 
     detailed discussion of Judge Alito's writings is beyond, thee 
     scope of this message, the CHBA offers a few examples to 
     illustrate its concerns.
       In a 1996 case brought under Title VII of the Civil Rights 
     Act of 1964, an employee alleged that her employer had 
     discriminated against her on the basis of sex. Sheridan v. 
     E.I. DuPont de Nemours & Co., 100 F.3d 1061 (3rd Cir. 1996). 
     At issue was the minimum evidentiary showing the plaintiff 
     must make in order to permit the jury to decide her case. All 
     of the reviewing judges agreed that the plaintiff had 
     presented both a prima facie case of illegal discrimination 
     and enough evidence to permit the jury to disbelieve the 
     employer's proffered nondiscriminatory reason (for the 
     adverse employment action) as merely a pretext. In an en banc 
     proceeding, the Third Circuit held, by an 11-to-1 vote, that 
     the plaintiff presented sufficient evidence to permit the 
     jury's verdict in her favor to stand. The court emphasized 
     that ``determining whether the inference of discrimination is 
     warranted must remain within the province of the jury . . . 
     not the court.'' Id. at 1071-72. Alone among the 12 judges, 
     Judge Alito dissented and expressed an extreme view of the 
     plaintiff's evidentiary burden, requiring something akin to 
     the largely discredited ``pretext-plus'' requirement. Id. at 
     1070, 1078-88. Rather than defer to the jury's role as 
     factfinder, Judge Alito would have thrown out the jury's 
     verdict and granted judgment as a matter of law to the 
     employer.
       In another Title VII case, Judge Alito, again in dissent, 
     showed similar disregard for the jury's role, voting to keep 
     the case from the jury. Bray v. Marriott Hotels, 110 F.3d 986 
     (3rd Cir. 1997). Referring to Judge Alito's analysis of the 
     evidence, the majority of the court explained that a 
     ``factfinder may well agree with that interpretation, but 
     that is not for us to decide.'' Id. at 992. His fellow judges 
     also found that ``Title VII would be eviscerated'' under 
     Judge Alito's analysis of the law. Id. at 993.
       Moreover, Judge Alito has displayed a tendency to disregard 
     stare decisis (adherence to the rule announced in prior 
     cases). For example, in a death penalty case, the en banc 
     Third Circuit granted the defendant a writ of habeas corpus 
     because the prosecution had violated the Equal Protection 
     Clause by striking black jurors on account of their race. 
     Riley v. Taylor, 277 F.3d 261 (3rd Cir. 2001). The court 
     noted that its analysis was guided by several prior opinions. 
     See id. at 290. Judge Alito dissented again. According to his 
     colleagues, Judge Alito, rather than following precedent, 
     ``accord[ed] little weight to these authorities.'' Id. The 
     court also took issue with Judge Alito's attempt to analogize 
     the statistical evidence of the use of peremptory challenges 
     to strike black jurors to the percent of left-handed 
     presidents. Id. at 292. The Third Circuit found that Judge 
     Alito had ``overlooked the obvious fact that there is no 
     provision in the Constitution that protects persons from 
     discrimination based on whether they are right-handed or 
     left-handed.'' Id. Further, his fellow judges found that 
     Judge Alito had

[[Page S183]]

     ``minimize[d] the history of discrimination against 
     prospective black jurors and black defendants which was the 
     raison d'etre of the [U.S. Supreme Court decision barring the 
     use of peremptory challenges on the basis of race].'' Id.
       These are but a few examples of Judge Alito's seeming 
     reluctance to recognize the limits of stare decisis and his 
     willingness to invade the jury's province. Judge Alito's 
     opinions reveal a consistent and discomforting inclination to 
     arrogate undue authority to individual judges such as 
     himself. Judge Alito' s activist streak stands in sharp 
     contrast to the cautious pragmatism of Justice Sandra Day 
     O'Connor, whom he would replace on the Court.
       The CHBA is particularly troubled by the addition of Judge 
     Alito's unrestrained view of judicial authority to a Supreme 
     Court on which Hispanics are not represented. Given that the 
     Hispanic community has no direct voice on the Court, 
     Hispanics should be very concerned if the Court were to 
     embark on an era in which it feels free to upset settled law 
     and to assume new powers within our justice system. Hispanics 
     expect this institution to operate within the well-recognized 
     limits on its authority. Accordingly, unless and until Judge 
     Alito sufficiently addresses the concerns outlined herein, 
     the CHBA opposes his elevation to the United States Supreme 
     Court.
       Thank you for your kind consideration of our message as you 
     perform the Senate's constitutional duty to evaluate 
     carefully the nominees to the Court.
           Sincerely,
                                                  Victoria Lovato,
                                                        President.

  Mr. FEINGOLD. Mr. President, making a decision on a Supreme Court 
nomination is truly among the most important responsibilities of the 
Senate. I have given the nominations the President has sent to us in 
the past 6 months serious and careful consideration.
  The scrutiny to be applied to a President's nominee to the Supreme 
Court is the highest of any nomination. I have voted for executive 
branch appointees, and even for court of appeals nominees, whom I would 
not necessarily vote to put on the Supreme Court.
  The Supreme Court, alone among our courts, has the power to revisit 
and reverse its precedents, and so I believe that anyone who sits on 
that Court must not have a preset agenda to reverse precedents with 
which he or she disagrees and must recognize and appreciate the awesome 
power and responsibility of the Court to do justice when other branches 
of Government infringe on or ignore the freedoms and rights of all 
citizens.
  This is not a new standard. It is the same standard I applied to the 
nomination of Chief Justice Roberts. In that case, after careful 
consideration, I decided to vote in favor of the nomination. In the 
case of Judge Samuel Alito, after the same careful consideration, I 
must vote no.
  Judge Alito has an impressive background and a very capable legal 
mind, but I have grave concerns about how he would rule on cases 
involving the application of the Bill of Rights in a time of war. Some 
of the most important cases that the Supreme Court will consider in the 
coming years will involve the Government's conduct of the fight against 
terrorism. It is critical that we have a strong and independent Supreme 
Court to evaluate these issues and to safeguard the rights and freedoms 
of Americans in the face of enormous pressures.
  Confronted with an executive branch that has jealously claimed every 
possible authority that it can, and then some, the Supreme Court must 
continue to assert its constitutional role as a critical check on 
Executive power. Just how ``critical'' that check is has been made 
clear over the past few weeks, as Americans have learned that the 
President thinks his Executive power permits him to violate explicit 
criminal statutes by spying on Americans without a court order.
  With the executive and the legislature at loggerheads, we may well 
need the Supreme Court to have the final word in this matter. In times 
of constitutional crisis, the Supreme Court can tell the executive it 
has gone too far, and require it to obey the law. Yet Judge Alito's 
record and testimony strongly suggest that he would do what he has done 
for much of his 15 years on the bench: defer to the executive branch in 
case after case at the expense of individual rights.
  Although he has not decided cases dealing with the Bill of Rights in 
wartime, he has a very long record on the bench of ruling in favor of 
the government and against individuals in a variety of contexts. 
Indeed, this is an important distinction between Judge Alito and Chief 
Justice Roberts. Our new Chief Justice had a very limited judicial 
record before his nomination. Judge Alito has an extensive record. 
There is no better evidence of what kind of Justice he will be on the 
Supreme Court than his record as a court of appeals judge. He told us 
that himself.
  A whole series of analyses by law professors and news organizations 
has shown that Judge Alito is very deferential toward the government, 
and one detailed analysis by the Washington Post concluded that he is 
more deferential than his Third Circuit colleagues and even than 
Republican-appointed appeals judges nationwide. This vividly 
demonstrates the concern I have about this nomination. Judge Alito is 
not simply a conservative judge appointed by a conservative President. 
His record is that of a jurist with a clear inclination to rule in 
favor of the government and against individual rights.
  In particular, Judge Alito's record in fourth amendment cases shows a 
recurring pattern. In almost every fourth amendment case in which Judge 
Alito wrote an opinion, he either found no constitutional violation or 
argued that the violation should not prevent the illegally obtained 
evidence from being used. In more than a dozen dissents in criminal or 
fourth amendment cases, not once did Judge Alito argue for greater 
protection of individual rights than the majority.
  In one case that he was asked about on several occasions at his 
hearing, Judge Alito, in dissent, argued that the strip search of a 10-
year-old girl and her mother passed constitutional muster, even though 
they were not suspected of any crime or specifically mentioned in the 
search warrant. Judge Alito's answers to questions at the hearing about 
this case only reinforced concerns identified by outside scholars that 
he seems to ignore the serious interests of privacy and personal 
dignity protected by the fourth amendment and instead relies on 
technical readings of warrants so that he can authorize the government 
action.
  Cases challenging government power comprise nearly half of the 
current Supreme Court's docket. A Supreme Court Justice should protect 
individual freedoms against government intrusion where justified, and, 
specifically, should appreciate that the fourth amendment serves to 
limit government power. As Yale Law School Professor Ronald Sullivan 
testified:
       In the United States, perhaps no right is more sacred--more 
     worthy of vigilant protection--than the right of each and 
     every individual to be free from government interference 
     without the ``unquestionable'' authority of the law. Judge 
     Alito . . . shows an inadequate consideration for the 
     important values that underwrite these norms of individual 
     liberty--the very norms upon which this constitutional 
     democracy relies for its sustenance. . . . [T]his Senate's 
     decision on whether to consent to Judge Alito's nomination 
     will profoundly impact how liberty is realized in the United 
     States.

  At the hearing, I and many other Senators repeatedly asked Judge 
Alito whether the President can violate a clear statutory prohibition, 
such as the Foreign Intelligence Surveillance Act and the ban on 
torture. He never answered the question. He returned again and again to 
a formulaic response that told us nothing at all: he said that the 
President must follow the Constitution and must follow the laws that 
are consistent with the Constitution. Any first-year law student could 
tell you that. That kind of stock phrase, which Judge Alito repeated 
over and over, tells us absolutely nothing about his view of whether 
the President can, consistent with the Constitution, violate a criminal 
law.
  Judge Alito did point to Justice Jackson's three-part analysis in 
Youngstown. That is an appropriate framework, but merely citing 
Youngstown doesn't tell you anything about how he would apply that 
framework. Even when presented with the alarming hypothetical of 
whether a President can authorize a murder in the United States, Judge 
Alito would say no more.
  These practiced and opaque responses gave me no reassurance about 
Judge Alito's views on these issues. What troubled me even more was 
that he repeatedly, and in some cases gratuitously, raised issues of 
justiciability

[[Page S184]]

and the political question doctrine--that is, he seemed to question 
whether the courts can even weigh in on these serious legal battles 
between the legislature and the executive. Although he said he thought 
the courts could address questions involving individual rights, Judge 
Alito's instinct in discussing these historic issues was to focus on 
whether the courts even had a role to play. It wasn't to talk about the 
gravity of the issues at stake for our system of government, but to 
question whether he as a judge could even participate in the resolution 
of such critical constitutional conflicts.
  I found that very disturbing, and it has played a significant role in 
my decision to vote against him. Judge Alito's record and his testimony 
have led me to conclude that his impulse to defer to the executive 
branch would make him a dangerous addition to the Supreme Court at a 
time when cases involving executive overreaching in the name of 
fighting terrorism are likely to be such an important part of the 
Court's work.
  I am also concerned about Judge Alito's record and testimony on cases 
involving the death penalty. The Supreme Court plays a crucial role in 
death penalty cases. Judge Alito participated in five death penalty 
cases that resulted in split panels, and in every single one of those 
he voted against the death row inmate. A Washington Post analysis found 
that he ruled against defendants and for the government in death 
penalty cases significantly more often than other judges. And his 
testimony gave me no reason to believe that he will approach these 
cases any differently as a Supreme Court Justice.
  To be blunt, I found Judge Alito's answers to questions about the 
death penalty to be chilling. He focused almost entirely on procedures 
and deference to state courts, and didn't appear to recognize the 
extremely weighty constitutional and legal rights involved in any case 
where a person's life is at stake.
  I was particularly troubled by his refusal to say that an individual 
who went through a procedurally perfect trial, but was later proven 
innocent, had a constitutional right not to be executed. The 
Constitution states that no one in this country will be deprived of 
life without due process of law. It is hard to even imagine how any 
process that would allow the execution of someone who is known to be 
innocent could satisfy that requirement of our Bill of Rights. I 
pressed Judge Alito on this topic but rather than answering the 
question directly or acknowledging how horrific the idea of executing 
an innocent person is, or even pointing to the House v. Bell case 
currently pending in the Supreme Court on a related issue, Judge Alito 
mechanically laid out the procedures a person would have to follow in 
State and Federal court to raise an innocence claim, and the procedural 
barriers the person would have to surmount.
  Judge Alito's record and response suggest that he analyzes death 
penalty appeals as a series of procedural hurdles that inmates must 
overcome, rather than as a critical backstop to prevent grave 
miscarriages of justice. The Supreme Court plays a very unique role in 
death penalty cases, and Judge Alito left me with no assurance that he 
would be able to review these cases without a weight on the scale in 
favor of the government.
  One important question that I had about Judge Alito was his view on 
the role of precedent and stare decisis in our legal system. At his 
hearing, while restating the doctrine of stare decisis, Judge Alito 
repeatedly qualified his answers with the comment that stare decisis is 
not an ``inexorable command.'' While this is most certainly true, his 
insistence on qualifying his answers with this formulation was 
troubling. Combined with a judicial record in which fellow judges have 
criticized his application of precedent in several cases, Judge Alito's 
record and testimony do not give me the same comfort I had with Chief 
Justice Roberts that he has the respect for and deference to precedent 
that I would like to see in a Supreme Court Justice.

  With respect to reproductive rights, Judge Alito said that he would 
look at any case with an ``open mind.'' That promise, however, is not 
reassuring given his prior denunciations of Roe, his legal work to 
undermine Roe, and his failure to disavow the strong legal views he had 
expressed in the 1980s when given the opportunity at his hearing. In 
his 1985 Justice Department job application, Judge Alito wrote that he 
believed that the Constitution does not protect a right to abortion, 
and, as an Assistant to the Solicitor General, he wrote a memo 
advocating a strategy for the Reagan administration to chip away at Roe 
v. Wade, with the ultimate goal of overturning that decision. Since he 
refused to say that he changed his mind, despite numerous chances, one 
can only think that he still believes what he said in 1985. And his 
opinions as a Third Circuit judge raise a legitimate concern that he 
will, if given the opportunity, be inclined to narrow reproductive 
rights.
  I want also to say a brief word about ethics. The Vanguard case could 
have been disposed of fairly easily if Judge Alito had only admitted 
his mistake up front. Under questioning, Judge Alito finally admitted 
that there is no evidence that he followed through on his 1990 promise 
to the Judiciary Committee to recuse himself from any cases involving 
Vanguard. He also said that some of the explanations that he and his 
supporters gave for his failure to recuse from the Vanguard case in 
2002--such as a ``computer glitch'' or the fact that his promise to the 
committee was somehow time-limited--were not in fact the true reasons 
that he failed to recuse himself from the 2002 case.
  While I am not basing my vote on this matter, it continues to trouble 
me. First, it is not clear to me that Judge Alito took his 1990 promise 
to the Judiciary Committee seriously. Second, Judge Alito failed to 
clear up the inconsistent explanations before or at the outset of his 
hearing, even after documents revealed that those explanations were 
implausible and even though he knew that they were not the real reasons 
that he failed to recuse himself in 2002.
  The concept of recusal, which recognizes that from time to time the 
public might reasonably believe that judges' biases or interests may 
cast doubt on the integrity of a judicial decision, is part of ensuring 
due process and protecting the public's confidence in the integrity of 
our system of justice. Despite numerous other reports of Judge Alito's 
honesty and integrity, I am not satisfied that he appreciates the 
importance of recusal.
  His written answer to my question about how he would analyze recusal 
motions related to the Third Circuit judges who testified on his behalf 
raises concerns about his approach to conflicts of interest. Judge 
Alito wrote that he thinks Supreme Court Justices have ``less latitude 
to err on the side of recusal'' than other judges, because recusal 
could lead to evenly divided decisions. But when Congress amended the 
Federal recusal law in 1974, it specifically removed any so-called 
``duty to sit'' in favor of a general standard requiring recusal if 
there is a reasonable basis for doubting the judge's impartiality. The 
purpose of that change was to enhance public confidence in the 
impartiality and fairness of the judicial system. In my view, Supreme 
Court Justices should have no more latitude in interpreting ethics 
rules than other judges; indeed, the recusal statute specifically 
applies to Supreme Court Justices.
  I would argue that treating recusal issues seriously is even more 
important for Supreme Court Justices since they are solely responsible 
for their recusal decisions. There is no judicial review of their 
decisions, no formal procedure for the full Court review of such 
decisions, and, when a Justice improperly participates, a tainted 
constitutional decision cannot be undone. That is why it is so 
important to have Justices who adhere to the highest ethical standards. 
Judge Alito repeatedly told us that he seeks to carry out his duties in 
accordance with both the letter and spirit of all applicable rules of 
ethics and canons of conduct. He wrote in a letter to the chairman of 
the Judiciary Committee: ``[M]y personal practice is to recuse myself 
when any possible question might arise.'' Unfortunately, his 
description of how he would handle recusal motions as a Supreme Court 
Justice does not seem consistent with those statements.
  It gives me no pleasure or satisfaction to vote against a nominee to 
the Supreme Court. If confirmed, he may well serve for over 20 years. I 
would very much like to have confidence that

[[Page S185]]

this new Justice, who plainly has a keen legal mind, would be the kind 
of impartial, objective, and wise Justice that our Nation needs. But I 
do not, so I will vote no.
  Mr. JEFFORDS. Mr. President, there is no higher legal authority in 
the United States than the U.S. Supreme Court. It is the final arbiter 
on the meaning of laws and the U.S. Constitution. The Supreme Court 
gives meaning to the scope of the right of privacy; whether Vermont's 
limits on campaign contributions and spending are constitutional; what 
is an unreasonable search and seizure; how expansive the power of the 
President can be; and whether Congress exceeded its power in passing a 
law.
  A Supreme Court Justice could serve for the life of the nominee, thus 
the consequences of confirming a Supreme Court justice last well beyond 
the term of the President who makes the nomination, a Senator's term, 
and maybe even the Senator's own life. Therefore, one of the most 
important votes a Senator takes is the confirmation of a U.S. Supreme 
Court Justice.
  I have carefully considered the appointment of Judge Samuel Alito to 
the Supreme Court and have concluded I cannot support his nomination.
  My first step in evaluating a nominee is to consider whether the 
nominee is appropriately qualified and capable of handling the position 
for which he or she has been nominated. Looking over Judge Alito's 
qualifications, it is clear this minimum standard has been met. Judge 
Alito has served in the U.S. Department of Justice, has been a U.S. 
Attorney, and for the last 15 years has been a judge on the Third 
Circuit Court of Appeals. However, while I use this minimum standard in 
my evaluation of executive branch nominees, there are additional 
factors to be considered in my evaluation of a judicial nominee.
  The Framers of our Constitution recognized the limits of democracy 
and created three coequal branches of government. They realized that 
passion and whim could cause the elected representatives to enact 
legislation on the cause of the day, which treads near or on 
constitutional rights. In addition, while the diversity of Congress can 
stop most of these ideas before they are adopted, no such check exists 
on the executive branch of our government. Thus, the third branch of 
government, the judiciary, was created. This branch was to be 
independent, unaffected by the public's whim and opinion, and serving 
the law and the public.
  The Framers split the responsibility of filling the judiciary between 
the executive and legislative branches. The President nominates an 
individual to be a judge, while the Senate has the duty to advise and 
consent on each nominee. This framework was established to ensure that 
the executive branch could not exercise so much control over the 
nominating process that the judiciary would lose its independence and 
become ideologically driven.
  While the Senate's duty is to evaluate a nominee, the Constitution 
provides no guidance as to what exactly Senators should take into 
account. This decision is up to each individual Senator. I have already 
touched on one factor I consider, ``qualified and capable of handling 
the duties of the position.''
  An additional consideration is the judicial philosophy of the 
nominee. Many of my colleagues argue that this factor should have no 
part in the Senate's consideration of a nominee to the Supreme Court. 
However, if judicial philosophy is the determining factor in the choice 
the President makes from a list of many qualified candidates, the 
Senate should also be allowed to consider this factor when deciding 
whether to approve or disapprove the nominee. Not allowing the Senate 
to consider this factor would shift the careful balance the Framers put 
in our Constitution away from equal partners toward giving the 
executive branch an unfair advantage.
  In addition to considering the individual's judicial philosophy as a 
stand-alone matter, we must also consider the cumulative effect our 
approving a nominee will have on the Supreme Court. In the recent past, 
Republican Presidents have made 15 of the last 17 nominations to the 
Supreme Court. The Republican stamp on the current Court is undeniable. 
Consider the prospects for the Court in the coming years based on the 
ages of the sitting Justices and their years of service:

----------------------------------------------------------------------------------------------------------------
             Justice                   Date of birth        Current age       Years on court    Appointment age
----------------------------------------------------------------------------------------------------------------
Stevens..........................  April 2O, 1920......                 85                 30                 55
Ginsburg.........................  March 15, 1933......                 72                 12                 60
Scalia...........................  March 11, 1936......                 69                 19                 50
Kennedy..........................  July 23, 1936.......                 69                 17                 52
Breyer...........................  Aug. 15, 1938.......                 67                 11                 56
Souter...........................  Sept. 17, 1939......                 66                 15                 51
Thomas...........................  June 28, 1948.......                 57                 14                 43
Roberts..........................  Jan. 27, 1955.......                 50                 <1                 50
----------------------------------------------------------------------------------------------------------------

  This information clearly shows that the prospects of the Court 
becoming more moderate in the near future are unlikely, as the more 
liberal to moderate members are the more likely to be replaced.
  The table also clearly lays out a concern about the shift in the 
balance of the court by replacing Justice O'Connor with a younger, more 
conservative Justice.
  This concern is also made clear by looking at some important cases 
where Justice O'Connor provided the critical fifth vote for a moderate, 
common sense position. These cases include:
  Alaska Department of Environmental Conservation v. EPA (2004): The 
Court held that the Environmental Protection Agency can enforce the 
Clean Air Act and overrule a State decision to allow a major pollutant 
emitting facility to build a power generator when the State agency is 
not doing an adequate job of enforcement.
  Stenberg v. Carhart (2000): The Court upheld the principles that, 
before viability, women can choose to have an abortion, and that any 
restriction on the right to an abortion must have an exception for the 
mother's health.
  Tennessee v. Lane (2004): The Court held that as part of its 
enforcement power under the 14th amendment, Congress has the right 
under the Americans with Disabilities Act to force States to provide 
physical access to the courts.
  McConnell v. Federal Election Commission (2003): The Court upheld as 
a valid exercise of congressional power the soft money and 
electioneering communications restrictions enacted by Congress as part 
of the Bipartisan Campaign Reform Act of 2002.
  Upon this backdrop, I have evaluated the decisions and writings of 
Judge Alito, closely watched the nomination hearing in the Senate 
Judiciary Committee, and listened to the statements of many colleagues 
on his nomination. I am concerned that Judge Alito did not provide 
complete answers on many important topics such as: Is Roe settled law, 
or what are the limits of the executive branch's power? On the other 
hand, Chief Justice Roberts did provide answers to these questions 
during his nomination hearing and I voted for Justice Roberts. Given 
the importance of a Supreme Court Justice replacing Sandra Day 
O'Connor, we should expect even more complete answers than we received 
from Judge Alito.
  After careful deliberation, I have concluded that the addition of 
Judge Alito to the Supreme Court would unacceptably shift the balance 
of the Court on many critical questions facing our county: Are there 
limits on the power of the presidency? Can the Congress regulate the 
activities of the States? How expansive is the right to privacy? What 
deference should be given to legislative acts of the Congress? While 
many of my colleagues will disagree with my assessment of Judge Alito, 
this will be a lifetime appointment and a lifetime is too long to be 
wrong.
  Mr. JOHNSON. Mr, President, there are few decisions of more lasting 
and profound consequence that a U.S. Senator must make than the 
decision whether to vote to confirm a nominee to a lifetime appointment 
to the U.S.

[[Page S186]]

Supreme Court. Accordingly, I have reviewed the record and the 
commentary relative to the Samuel Alito nomination with great care and 
deliberation. The decision on the Alito nomination is more difficult 
than was the case for now Chief Justice John G. Roberts inasmuch as 
Judge Alito's long record raises concerns across a broad range of 
areas. Clearly, he would not have been my pick for the Supreme Court.
  Nonetheless, I must conclude that Judge Alito possesses a high level 
of legal skill, is a man of solid personal integrity, and that his 
views fall within the mainstream of contemporary conservative 
jurisprudential thinking. At the conclusion of Senate floor debate, I 
will oppose any effort to filibuster his nomination, and I will vote to 
confirm Judge Alito's nomination to the Supreme Court.
  While it is not the role of the Senate to ``rubberstamp'' any 
President's judicial nominations, it is also true that any President's 
choice deserves due deference. Judge Alito deserves the same deference 
that Republican Senators accorded the Supreme Court nominees of 
President Clinton. I am mindful that Justice Ginsberg, a former counsel 
to the ACLU, was confirmed with 96 Senate votes in her favor.
  I do not believe that simple political ideology ought to be a 
deciding factor so long as the nominee's views are not significantly 
outside the mainstream of American legal thinking. I also believe that 
the judicial nomination and confirmation process in recent years has 
become overly politicized to the detriment of the rule of law.
  I am troubled by Judge Alito's apparent views on matters such as 
Executive power, his past opposition to the principle of one person, 
one vote, and his narrow interpretation of certain civil rights laws. 
Even so, I cannot accept an argument that his views are so radical that 
the Senate is justified in denying his confirmation.
  The PRESIDING OFFICER (Mr. Ensign). The minority's time has now 
expired.
  Who yields time?
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I have been asked by the majority leader 
to come to the floor, as manager of the proceedings, in my capacity as 
chairman of the Judiciary Committee, to see if we can have a vote on 
Judge Alito. We have informed the Democrats of our interest in having a 
unanimous consent, but we will not ask for one until their leader is 
here. He is on his way, and I will await his arrival. In the interim, 
the acting leader, Senator Salazar, is on the floor, so he can always 
protect their interests. But I shall not move in a way precipitously 
until Senator Reid arrives.
  I am advised we do not have any speakers for the Democrats tomorrow. 
We are now in the second full day of our discussion. The rules of the 
Senate require either that we speak or we vote. If there are no further 
speakers for the proceedings, then it would be my inclination we ought 
to follow regular order, we ought to vote. Either we speak or we vote. 
So long as there is somebody to speak, there is the right of unlimited 
debate, as we all know, and we respect that.
  This is a lifetime appointment, and it is a controversial 
appointment. There is no doubt about that. But if we are not going to 
have debate, then, in my capacity as manager, as chairman of the 
Judiciary Committee, it seems to me we ought to vote. We have a lot of 
other pressing business for the Senate.
  I have just left the conference of the Republican Party where there 
had been a plan, months ago, to be out of town so we could make plans 
for the second session of this Congress. Because the nomination of 
Judge Alito is on the floor, we have altered those plans, I might say 
at considerable financial loss since reservations had been made. But 
our duty is to be here, and we are not complaining about that. We are 
here to move the business of the Senate along.
  There are a number of pressing matters which we could take up 
tomorrow or yet today, such as the issue of appropriations of some $2 
billion for LIHEAP. That is a matter for assistance for fuel in a cold 
winter. It is a cold day out there today. It is cold in Pennsylvania. 
It is colder in Vermont. It is colder yet in Maine. We need to resolve 
that issue.
  We also have the PATRIOT Act, which is due to expire on February 3, a 
week from tomorrow. That is a very important matter both for security 
in our law enforcement fight against terrorism and also for a balance 
on civil rights. And we now have a motion to reconsider the cloture 
vote pending before the U.S. Senate.

  There have been discussions about what to do. It is my hope that we 
would yet approve the conference report. We face the alternative of 
having the PATRIOT Act expire, which no one wants. We have the 
suggestion made for a 4-year extension of the current PATRIOT Act 
which, in my view, is much less desirable than having the conference 
report enacted. The conference report on a new PATRIOT Act gives much 
more for civil rights than does the existing act. It is not as good as 
the Senate bill, the bill that came out unanimously from the Judiciary 
Committee and was passed by unanimous consent, but the conference 
report is a lot better than the current bill. So there are other 
important matters that we could address.