[Congressional Record Volume 152, Number 6 (Thursday, January 26, 2006)]
[Senate]
[Pages S186-S207]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Unanimous Consent Request

  Now that the distinguished Democratic leader is on the floor, on 
behalf of the majority leader, I ask unanimous consent that at 5:30 on 
Monday, January 30, the Senate proceed to a vote on the confirmation of 
the pending nomination of Samuel Alito.
  And before the Chair rules, I would reiterate that we are prepared to 
debate the nomination through the weekend if Senators have additional 
comments or have not yet delivered their statements.
  Now, Mr. President, I am glad to yield to my distinguished colleague, 
Senator Reid.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. REID. Mr. President, reserving the right to object, we have seven 
speakers lined up this afternoon. We hope they will all show up. I am 
confident they will.
  LIHEAP is something the distinguished majority leader and I have 
spoken of several times. We know it is an important issue. We have made 
commitments to the Senator from Maine, Senator Snowe, and the Senator 
from Rhode Island, Senator Reed. It is something we need to do as soon 
as we can.
  In regard to the PATRIOT Act, I had a number of conversations, again, 
with the distinguished majority leader. Also, I spoke yesterday 
afternoon to Senator Sununu, who indicated he has been in conversations 
with the White House and is confident he is not far away from working 
out that matter with the other interested parties, one of whom is, of 
course, the chairman of the Judiciary Committee.

  I also have had a number of conversations with the distinguished 
majority leader as to how we should move forward on the matter relating 
to Judge Alito, and there are a number of possibilities. I think we are 
at a point now where we may well enter into a unanimous consent later 
today. I would hope so.
  Based on that, and based on the fact I have not spoken to Senator 
Frist yet today--we spoke several times yesterday--I object.
  The PRESIDING OFFICER. Objection is heard. The Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, may I inquire of the distinguished 
Democratic leader whether there will be speakers on his side of the 
aisle to speak tomorrow, Friday, or Saturday, or Sunday, or Monday, if 
we are to remain in session without voting on this nomination?
  Mr. REID. Mr. President, I am happy to respond to my friend. We will 
have speakers tomorrow. The weekend will be another item. We will talk 
about that later, whether that is necessary.
  Mr. SPECTER. Mr. President, may I further inquire of the 
distinguished Democratic leader when his side of the aisle would be 
prepared to vote on the nomination?
  Mr. REID. As I indicated, I have spoken to the distinguished majority 
leader on several occasions--not today. Yesterday we had a number of 
conversations, in fact into the evening last night, and I think it 
would be best for Senator Frist and me to talk about this rather than 
now.
  Mr. SPECTER. I thank the Democratic leader for those comments. But

[[Page S187]]

Senator Frist, the majority leader, has asked me to come to the floor. 
He is engaged now in the Republican conference and has asked me to 
raise these issues so we can give some idea to our colleagues. We have 
a lot of Senators who are standing by as to what is going to happen. We 
have a lot of Senators who are not standing by. Quite a few of them are 
overseas. Quite a few Senators are always overseas. We have more 
Senators overseas customarily than in the Chamber. I think that is 
certainly true now. We only have five Senators in the Chamber. I know 
we have a lot more Senators overseas. So a lot of Senators are trying 
to make their plans.
  I came to make the point, and I made the point.
  I thank the Senator.
  Mr. REID. Mr. President, I appreciate the Senator from Pennsylvania. 
I enjoy my relationship with him. But the only thing I would do is 
defend the Senate a little bit. I know he was being facetious. Senators 
are here in Washington. There are a few Senators attending a very 
important economic conference in Switzerland, but that is a handful of 
Senators, three or four, as I understand it. I am glad they are there. 
I am confident that if any votes are required in the near future--they 
have been advised and have agreed to come back in a few hours' notice.

  As I said, I know the Senator was being facetious, but we do not have 
more Senators overseas than we have here ready to work.
  Mr. SPECTER. Well, Mr. President, I did not say we had more Senators 
overseas than Senators prepared to work. I said we have more Senators 
overseas than we have in the Chamber. I counted five, and now a sixth 
has joined on the floor.
  Well, as I said earlier, I came to make the point, and I have made 
the point. The point is that we either debate or we ought to vote. 
Debate or vote, that is what we do. When the debate is over, we vote. 
If the debate continues, we do not vote. If the debate continues, we 
may have to go to cloture. We have rules to accommodate us there. There 
have been counts made that when you have the number of Senators who 
have stated their intention to vote for cloture, plus the number of 
Senators who have stated their intention to vote for Judge Alito, you 
come to 60 or more.
  We are ready to do the business of the Senate. I know Senator Frist 
is watching these proceedings because our conference, at a little after 
3 o'clock in the afternoon, reaches a little low point, a little low on 
blood sugar, things get a little sleepy. So I am sure they turned on 
the television to watch this. It would be my hope that the Republican 
leader and the Democratic leader will be on the floor today, and we 
will come to some sort of a schedule so we all know what to do.
  Mr. REID. I am not sure our conversation would wake them up, though.
  Mr. SPECTER. It is all comparative. If I may direct this comment to 
Senator Reid, you haven't been to a Republican conference. No matter 
how dull it is, let me tell you, it is lively here. It is exciting here 
by comparison to what goes on in our Republican conference. I speak 
with authority because I just came from there.
  I thank my distinguished colleague and the Chair and yield the floor 
for some serious business because we have some speakers.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I think it is safe to say that Chairman 
Specter has committed more time to the nomination of Samuel Alito than 
any single person in this body and in this country, with the exception 
of one, and that would be Judge Alito.
  I rise today in support of the nomination of Samuel Alito to be 
Associate Justice of the U.S. Supreme Court. Voting on the nomination 
of a Supreme Court Justice is a rare event in the Senate, but this year 
this body has now considered two nominations in only a few short 
months. To cast this vote is a privilege, and it is one this Member 
takes seriously. Most Americans did not know Sam Alito 6 months ago, 
but now millions of citizens have seen him in the news. They have heard 
him answer countless questions during his confirmation hearing. We have 
learned a great deal about Judge Alito.
  We have seen his family. We have listened to his stories about his 
childhood. We have heard about his educational background, and we have 
learned of his service on the bench. We have learned that his 
temperament and his character, are in fact solid. I personally have had 
the opportunity to sit with him, and I believe he respects the U.S. 
Supreme Court and the seat for which he has been nominated.
  Americans have probably also heard the Senate debate Judge Alito's 
nomination. I would guess by now most Americans understand that there 
is no substantive debate over Judge Alito's qualifications for the 
Supreme Court. Clearly, Judge Alito has the legal qualifications to be 
an Associate Justice. He has remarkable academic credentials, extensive 
experience, not only on the bench but in trying cases as an attorney, 
and he was given a unanimous ``well qualified'' rating by the American 
Bar Association. He has argued cases before the Supreme Court, and he 
served on the bench of the Third Circuit Court of Appeals for the past 
15 years.
  It is my assessment that those who oppose Judge Alito's nomination do 
it for purely political purposes. They believe he might take positions 
contrary to their own political ideologies. Therefore, they believe he 
should be disqualified. He should not be considered for a slot on the 
Supreme Court.
  Let me take a moment to provide an example of how critics have 
severely distorted the facts about Judge Alito's record. Quite 
honestly, if those same critics chose to rely upon the facts rather 
than the political sound bites, they might be quite surprised.
  Judge Alito has been viciously attacked by critics over his record on 
civil rights. As we all know, Judge Alito serves on the Third Circuit 
Court of Appeals. This appellate court in New Jersey has been described 
by the Associated Press as one of the most liberal courts in the 
Nation. My guess is it is probably only second, within that 
categorization, to the Ninth Circuit Court. It seems that opponents of 
Judge Alito have become so fixated on criticizing his record that they 
disregard the actual facts of his record.
  When analyzing Judge Alito's civil rights record based on the more 
than 4,800 cases he has decided, the facts are these: Judge Alito has 
agreed with the other members of his ``liberal'' Third Circuit judicial 
panel 94 percent of the time on civil rights issues. Judge Alito has 
agreed with judges appointed by President Clinton on that bench 95 
percent of the time on civil rights issues. Judge Alito has agreed with 
judges appointed by Jimmy Carter on the Third Circuit Court 96 percent 
of the time on civil rights issues. Finally, when Judge Alito sat on a 
three-judge panel where both other judges were appointed by Democratic 
Presidents, the decision handed down in those cases was unanimous 100 
percent of the time on the civil rights cases. These are the facts. 
Those are the numbers.
  Clearly, by the standards some in this body have chosen to apply to 
Judge Alito, no judge on the Third Circuit Court would therefore 
qualify to be considered for the Supreme Court. The statistics are one 
example of the distortion of Judge Alito's record by some. I could 
stand here on the floor for hours to discuss other misrepresentations 
of Judge Alito's record on individual issues, but I believe it is 
important to speak on why this Supreme Court confirmation should matter 
to the American people.

  When I say I am going to speak about why this confirmation matters, I 
don't mean that I am going to talk about why the debate matters in the 
daily battles inside the beltway in Washington, DC. I want to speak 
about why it matters to the American people. It has become clear to me 
and to the 8\1/2\ million people in North Carolina that I represent, 
that Washington, DC, is overshadowed by partisan bickering and is 
arguably more polarized now than ever before.
  As I discussed in this Chamber and in front of this body when 
considering the nomination of Chief Justice Roberts a few months ago, 
my constituents in North Carolina care about civil liberties. They have 
questions about life and death, property rights, basic freedoms, as 
well as their own economic prosperity and personal security.
  That is why this vote is important today. The Supreme Court affects 
every aspect of our daily lives. But

[[Page S188]]

more importantly, the decisions being made on the High Court today will 
affect the lives of our children and future generations yet to come. I 
am a father and I am a husband first; I am a Senator second. I believe 
while it is part of my job to vote on Supreme Court confirmations, I 
think of this vote in terms of how it will affect my family as well as 
the rest of the families in North Carolina and across the country. When 
my sons are my age, how will this decision, my vote on Sam Alito, 
affect them or eventually affect their children? That is what we are 
here to debate.
  As we all know, public opinion frequently changes with time as 
opposed to the Constitution which changes rarely. While the legislative 
bodies across the country are intended to be flexible branches of our 
government institution, charged with addressing the needs of the people 
by making new laws, the judiciary is intended to be the equitable and 
impartial check, charged with preserving and protecting our Nation's 
basic fundamental principles.
  I believe a nominee's judicial philosophy should translate to their 
legal interpretations, not their political positions. The legislature 
makes the law and the judiciary interprets it. Both branches serve an 
equally legitimate and important function, but they are very different. 
My constituents want justices who apply the law, not judges who make 
the law.
  Opponents of Judge Alito continuously cite political reasons to vote 
against his nomination. Unfortunately, this sounds all too much like 
your typical Washington, DC, partisan battle. But I assure my 
colleagues, the American people outside of the beltway of this town 
don't care to hear us bicker about partisan political issues when it 
comes to the future of the Supreme Court. This should be a thorough 
debate on an individual's legal qualifications and judicial philosophy.
  This debate is much bigger than Republicans and Democrats. This 
debate is about our children's future. For me, it is about doing what 
is right, and about doing what is right as a father and a husband. It 
demands that this body, the Senate, come together. Stop the character 
assassination, the distortion of a nominee's record, and support this 
nominee because of his expertise and his accomplishments.
  After meeting Judge Alito, having the opportunity to review his 
questions in front of the Judiciary Committee, having an opportunity to 
ask him questions personally, I am confident that he does, in fact, 
have a sound judicial philosophy and that he will administer justice 
according to the strict interpretation of our Constitution. I am 
confident that he will preserve our Nation's longstanding principles 
and that he will interpret the law, not make it.
  I am also convinced that Sam Alito is a man of character and honesty. 
Judge Alito is not only a good nominee, he is a good man. He deserves 
the support of every Member of the Senate. I will vote in favor of 
Judge Alito's nomination to be an Associate Justice to the Supreme 
Court. I urge my colleagues in this body to join me and to come 
together to stop the character assassinations and to speak up for the 
American people and the future of our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, at the outset, I thank Mike Quiello and 
Nick Pearson of my staff for the research and preparation they gave me 
in my deliberation and consideration of Samuel Alito, Jr., and his 
appointment to the Supreme Court. Further, as a second generation 
American, the grandson of a Swedish immigrant who came to this country 
about 11 years prior to Samuel Alito, Sr.'s coming to this country from 
Italy, I am pleased that in the next few days I will have the chance to 
cast my vote to confirm Judge Alito as a Justice of the Supreme Court 
and reaffirm the promise that is the American dream of those who have 
come here from backgrounds that are diverse and far away to be a part 
of a great nation and have pledged their allegiance to all it stands 
for.
  I have thought a lot about what I would say in confirming my vote on 
behalf of Judge Alito, and I decided, after listening to the speeches 
over the last couple of days, that I would try to draw a distinction 
that, to me, has been apparent in this debate but also is clearly the 
reason that I support Judge Alito. As we have heard today from a number 
of my colleagues, he has been criticized for being narrow and 
restrictive. It is important that we understand what the opposite of 
narrow and restrictive is to understand where those who oppose him are 
coming from.
  The opposite of narrow and restrictive is broad and unlimited. The 
last thing the United States of America needs, or our Founding Fathers 
intended, is to have a Supreme Court that is unrestricted and broad in 
its interpretation of the Constitution and the laws the legislative 
branch passes under its authority. Therein lies the philosophical 
difference in this debate.
  It has saddened me that through innuendo and reference in some of the 
previous speeches over the last couple of days, Judge Alito has been 
cast as being exactly the opposite of what Judge Alito really is. For 
example, in the recent aftermath of the tragedies in West Virginia, one 
speaker referred to Judge Alito's dissenting opinion in the case of RNS 
Services v. Department of Labor as exemplifying the fact that Judge 
Alito was against the little man and the worker.
  That was a case where a ruling was made on the application of a rule 
on mine safety. But if you read the rule, Judge Alito did what you 
would hope a judge would do: He ruled on the application of the rule 
given the circumstances of the case. He didn't rule against the little 
man, nor did he rule for the big guy; he ruled based on the laws and 
the regulations promulgated by the agency this Congress appointed to be 
over mine safety. That is precisely what we need--a Court that will 
show us direction, but a Court that will never direct the laws we have 
passed in the wrong direction.
  Secondly, there have been those who have talked about his commitment 
to civil rights, or really his lack of commitment to civil rights in 
terms of the claims of a few. I went to do some research on that issue 
because everything I saw in Judge Alito when he and I talked was the 
opposite of what those allegations would imply. I went to the testimony 
of Jack White, an attorney from San Francisco, CA, an African American, 
a member of the American Civil Liberties Union who came to Washington, 
DC, and testified before the Judiciary Committee on behalf of Samuel 
Alito. Rather than me trying to paraphrase what Jack White said, I 
would like to read it verbatim and then ask anyone who hears this 
speech the question whether Samuel Alito is a man who is not for the 
civil rights of all and the individual rights and liberties of every 
American:

       Now, as I clerked for Judge Alito, I saw a deep sense of 
     duty, diligence, humanity, and respect for his role as a 
     Federal appellate judge. . . .
        . . . He uniformly applied the relevant law to the 
     specific facts of every case. Judge Alito recognized that 
     every case was the most important case to the parties and 
     attorneys with something at stake.

  See, Judge Alito doesn't judge people by their color; he judges 
everybody individually in the cases he calls, as the cases are, 
understanding that every party has an equal interest.
  I further quote Jack White:

       I never witnessed an occasion when personal or ideological 
     beliefs motivated a specific outcome in a case.
        . . . I left New Jersey without knowing Judge Alito's 
     personal beliefs on any of them. Now, the reason I didn't 
     know his personal beliefs on all these issues was that the 
     jurist's ideology was never an issue in a case that Judge 
     Alito heard.

  You see, Jack White, who was an African-American law clerk for Judge 
Alito, said that when he left, he never saw the ideological beliefs of 
the judge interfere with his judgment of the law and his ruling in a 
case.
  I end my quote by reading simply what he said:

       Without fail, I saw Judge Alito treat everyone, every 
     individual, with dignity and respect.

  I will take the word of Jack White, who worked for Sam Alito, any day 
over any of us who, through innuendo or what we may have heard, want to 
castigate this nominee on his commitment to civil rights. Jack White's 
word, and his experience, is good enough for me. And Jack White knows 
what I know about Sam Alito--that he is committed to equity and 
fairness in the treatment of all Americans.

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  There has been something made of the fact that he is replacing Sandra 
Day O'Connor. I wish to talk about that for a minute.
  Sandra Day O'Connor is one of my favorite Justices. I am not a 
lawyer. I came to the Senate from the House, but prior to my years in 
the House, I ran a small business. I am a businessman, and that is the 
interest I know and that which I know the best. Judge O'Connor was, 
without question, during her period on the bench the very best Justice 
in dealing with the complex issues of business that came before the 
U.S. Supreme Court. When I had the chance to meet with Judge Alito, I 
made that point to him and I asked him questions about American 
business, free enterprise, and the law. In every case, I became 
convinced that he had the same commitment Sandra Day O'Connor had.
  To that end, and with regard to ``narrow and restrictive'' and with 
regard to the little guy, I wish to conclude my remarks on behalf of 
Samuel Alito by taking a second to talk about the Kelo v. New London 
case, the dissenting opinion which Sandra Day O'Connor wrote, and the 
answers to questions Judge Alito gave before our Judiciary Committee 
because they completely contravene any comment anybody has made about 
his commitment to the little guy or the benefit, or lack thereof, of 
narrow and restrictive ideology.
  Justice O'Connor was one of the four dissenting Justices in the Kelo 
case. They didn't believe in the broadening of eminent domain to take 
property just because somebody could pay more taxes and would benefit 
more from it, and I concur with that. I think they made the right 
ruling. She said:

       For who among us can say she already makes the most 
     productive or attractive possible use of her property? The 
     specter of condemnation hangs over all property--

  She is speaking within the context of the ruling in the majority.

       Nothing is to prevent the State from replacing any Motel 6 
     with a Ritz-Carlton, any home with a shopping mall, or any 
     farm with a factory.

  What more brilliant statement can be made on behalf of the little 
guy, the average American, or the small homeowner than Sandra Day 
O'Connor's? What better affirmation of someone's capacity to replace 
that distinguished Justice could you possibly make than by reading the 
last sentence of Judge Alito's answer to that question before the 
Judiciary Committee when he was asked about the Kelo case? He said:

       I would imagine that when someone's home is being taken 
     away, a modest home, for the purpose of building a very 
     expensive commercial structure, that is particularly galling 
     [to me].

  Sandra Day O'Connor was a great Justice and did a great service to 
America. She broke the glass ceiling in being the first woman appointed 
to the U.S. Supreme Court. I believe Justice Alito will serve our 
people on this Court every bit in same way Justice O'Connor did. The 
criticisms of Judge Alito of being narrow and restrictive may, in fact, 
be, if you look at them in the perspective I have given, a great 
compliment to his ability and that which all of us seek, and that is a 
jurist who will rule based on the law, not legislate based on the 
position. A jurist understands the value and the strength and the power 
of the Constitution of the United States of America.
  Mr. President, I look forward to casting my vote in favor of the 
nomination of Samuel Alito, Jr., to the U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. DeWINE. Mr. President, I met with Judge Alito on the day after 
his nomination. I was very impressed with him from the start. After 
spending an hour or so with him, I could tell that he is a modest, 
honest, and fair man, a person with a solid understanding of the proper 
role of a judge. At the time, however, I said I would not make a final 
decision about his nomination at that point.
  I started my career as a county prosecuting attorney, and I believe 
in trials before verdicts. We just had the trial, and during that 
trial, the hearing, this is what I saw: I saw a man who is forthright 
and honest. Over the course of 3 days before the Judiciary Committee, 
Judge Alito was asked 677 questions on issues ranging from abortion to 
executive power to Vanguard. He answered at least 659 of them, or 97.3 
percent of the questions.
  To give you some perspective on these numbers, Chief Justice Roberts, 
when he was in front of our committee, was asked only 574 questions and 
answered 89 percent of them. Justice Ginsburg was asked just 384 
questions, answering only 80 percent of them. Justice Breyer was asked 
355 questions, answering 82 percent. Judge Alito was asked more 
questions and gave more answers than any recent nominee to the U.S. 
Supreme Court.
  At that hearing, I saw a man of character and integrity. Judges do 
not shed their values when they don their robes. Our Founders 
themselves recognized this important point. In Federalist No. 78, for 
instance, Alexander Hamilton said that only a few individuals would 
really have the expertise in the law to become a Supreme Court Justice. 
But fewer still would have the ``integrity'' and the ``dignity'' 
befitting the office. In my opinion, Judge Alito has the integrity, the 
character, and the dignity befitting the office of Associate Justice of 
the Supreme Court.
  The best evidence on this point is the testimony of those who know 
Judge Alito best--his colleagues on the Third Circuit, people he has 
worked with day in and day out. Judge Edward Becker described Judge 
Alito as ``modest and self-effacing.'' Judge Becker continued:

       I have never seen a chink in the armor of his integrity, 
     which I view as total.

  Judge Leonard Garth, his first boss, called him a ``morally 
principled judge.'' Even former Judge Tim Lewis, a man who said he 
occasionally disagreed with Judge Alito, endorsed his elevation to the 
High Court.
  To me, all of this testimony carries substantial weight. We can judge 
a man by his record, we can judge him by his judicial philosophy, 
certainly, but there is no better judge of a man than those who know 
him best.
  Unfortunately, some who hardly know Judge Alito have tried to smear 
his reputation by raising his recusal in the so-called Vanguard case. 
This case got a lot of play during the hearing. In my opinion, this 
attack is clearly frivolous. I wish to talk for a moment about it.
  This so-called Vanguard case arose out of a financial dispute between 
two people. The plaintiff won a suit against a woman by the name of 
Monga, requiring her to turn over about $170,000 that she had in some 
Vanguard accounts. Ms. Monga then went to court to prevent Vanguard 
from turning over the money. So while Vanguard was technically a 
defendant in the case, in the classic sense of the term, it really was 
not accused of any wrongdoing. It didn't stand to lose anything. The 
only question was whether Vanguard would transfer the funds it held for 
Ms. Monga to another person. They just held the money. Nothing about 
this case could realistically have affected Vanguard as a company, nor 
Judge Alito. The judge did not own Vanguard; he held mutual funds that 
were managed by Vanguard.
  Mr. President, that is why everyone who has looked into that matter 
has concluded that the allegations against Judge Alito are absurd. The 
ABA looked into this allegation and unanimously concluded that Judge 
Alito was entitled to its highest rating, a rating which explicitly 
considers ethics and integrity. Five legal experts concluded that Judge 
Alito did nothing wrong. Judge Becker, the former Chief Judge of the 
Third Circuit, said he was ``baffled'' by these allegations. The 
Washington Post wrote in a January 13 editorial that Judge Alito's own 
testimony ``revealed the frivolousness of the charge.''
  Before these hearings began, one of Judge Alito's opponents, Nan 
Aron, president of the Alliance for Justice, said, ``you name it, we'll 
do it'' to defeat Judge Alito.
  With Vanguard, Judge Alito's opponents resorted to an outrageous 
attack on him in an effort to undermine his integrity. This attack 
clearly failed. Although some waged a full-scale war against Judge 
Alito, what Judge Becker said at the hearing remains true today: There 
is simply ``not one chink in the armor of his integrity.''
  At the hearing, I saw an experienced judge with a brilliant legal 
mind. Judge Alito came to the Judiciary Committee with a lengthy and 
distinguished legal career. He served for several years as a Federal 
prosecutor, taking on the mob, drug dealers, and

[[Page S190]]

white-collar criminals. He argued 12 cases himself before the U.S. 
Supreme Court. And for more than 15 years, he has served as a judge on 
the Third Circuit, deciding thousands of cases and authoring hundreds 
of opinions with his own pen. This background certainly attests to his 
extraordinary competence and shows why he received a unanimously well-
qualified rating from the ABA.
  His judicial opinions attest to his competence as well. He writes 
crisply and clearly without any kind of overstatement. For the most 
part, he decides only the issues before him and has proven himself 
capable of tackling complex areas of the law with clear and yet simple 
language.
  In my mind, however, the way Judge Alito answered our questions is 
perhaps the best example of his extraordinary legal talent. During our 
hearings, he demonstrated a mastery of constitutional law and his own 
voluminous jurisprudence. Over the course of 3 days, he spoke clearly 
and succinctly without using notes. It was an amazing performance. He 
provided us with detailed information about how he thinks, how he 
reasons, how he comes to his conclusions. I found his testimony 
thorough, forthcoming, and informative, and I believe the American 
people felt the same way.
  At the hearing, I also saw a man who is openminded and fair, a man 
who is compassionate. During our hearings, some complained that Judge 
Alito has a bias toward Government or big business. But that is not 
what was said by those who, again, know him best. Take, for example, 
the testimony of Judge Alito's former law clerks.
  Kate Pringle, a self-described ``committed and active Democrat,'' 
said that Judge Alito ``approached each case without a predisposition 
toward one party or the other.'' She said he treated all litigants ``in 
a fair and openminded way.''
  Jack White, a member of the NAACP and the ACLU, said that Judge Alito 
had an ``abiding loyalty to a fair judicial process,'' not ``an 
enslaved inclination toward a political or personal ideology.'' In 
fact, Mr. White ``never witnessed an occasion when personal or 
ideological beliefs motivated a specific outcome in a case.''
  Finally, Professor Nora Demleitner, who described herself as ``a 
left-leaning Democrat, a member of the ACLU, a woman, and an 
immigrant,'' also had praise for Judge Alito:

       In the years I have known the judge, he has never decided a 
     case based on a larger legal theory about the Constitution or 
     conservative worldview, but instead has looked at the merits 
     of each individual case.

  Judge Alito also understands that judicial opinions are more than ink 
in the Federal Reporter. He understands that they are decisions that 
affect real people and have real consequences. The judge himself put it 
best:

       [W]hen a case comes before me involving, let's say, someone 
     who is an immigrant . . . I can't help but think of my own 
     ancestors because it wasn't that long ago when they were in 
     that position. . . .[W]hen I look at those cases, I have to 
     say to myself, and I do say to myself, this could be your 
     grandfather. This could be your grandmother. They were not 
     citizens at one time, and they were people who came to this 
     country. When I have cases involving children, I can't help 
     but think of my own children and think about my children 
     being treated in the case that's before me. . . .When I get a 
     case about discrimination, I have to think about people in my 
     own family who suffered discrimination because of their 
     ethnic background or because of religion or because of 
     gender, and I do take that into account. When I have a case 
     involving someone who has been subjected to discrimination 
     because of disability, I have to think of people whom I've 
     known and admired very greatly who had disabilities, and I've 
     watched them struggle to overcome the barriers that society 
     puts up[.]

  To me, this testimony accurately reflects Judge Alito's record while 
on the bench. No matter who comes before him and no matter what the 
case, Judge Alito approaches each case with an open mind and a real-
world sense of the consequences of his actions. To me, that is truly 
the approach of a fair, openminded, and compassionate judge.
  Finally, I saw a man who understands the proper role of a judge. I 
believe judges play a limited, but obviously important, role in our 
constitutional system. Judges are not Members of Congress, State 
legislators, Governors, or Presidents. Their job is not to pass laws or 
make policy. Instead, it is the job of a judge--to use the words of 
Justice Byron White--simply ``to decide cases.'' Nothing more.
  Judge Alito seems to embody this thinking as well. Several years ago 
at a ceremony honoring one of his Third Circuit colleagues, Judge Alito 
reminded his colleagues about the attributes of a good judge. Always 
remember, he said, to ``act like a judge.''
  He went on to say:

       Do what good judges do, what they have done for a long 
     time. Decide the cases that come before you, decide them as 
     best you can. . . .Speak straightforwardly on the matters 
     that are properly before you. Exercise the important powers 
     that are rightfully yours, but keep in mind that you are a 
     judge.

  On the first day that I met Judge Alito, I was impressed with him, 
but I am even more impressed today. He is a good, decent, and honest 
man. He has extraordinary legal talent, and he approaches each case 
with an open mind and understanding heart.
  In spite of some of the frivolous attacks on his reputation and 
character, Judge Alito has conducted himself with dignity, patience, 
and, yes, poise. He is an excellent judge and, in my opinion, will make 
an outstanding addition to the Supreme Court. I am proud to support his 
confirmation.
  I conclude by noting that when Judge Roberts was sworn in as our 
Nation's 17th Chief Justice, he reminded us of a ``bedrock principle.'' 
And that is that ``judging is different from politics.'' Similar to 
John Roberts, Samuel Alito understands the difference, and when he 
takes a seat on the Supreme Court, as I expect he will, I know he will 
remember that. When tough cases come up, he will, in fact, I am sure, 
act like a judge.
  I thank the Chair, and I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. OBAMA. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. OBAMA. Mr. President, it is my understanding that the hour is 
dedicated to the Democrats speaking with respect to the Alito 
nomination. I request 5 minutes of that time.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. OBAMA Mr. President, first let me congratulate Senators Specter 
and Leahy for moving yet another confirmation process along with a 
civility that speaks well of the Senate.
  As we all know, there has been a lot of discussion in the country 
about how the Senate should approach this confirmation process. There 
are some who believe that the President, having won the election, 
should have complete authority to appoint his nominee and the Senate 
should only examine whether the Justice is intellectually capable and 
an all-around good guy; that once you get beyond intellect and personal 
character, there should be no further question as to whether the judge 
should be confirmed.
  I disagree with this view. I believe firmly that the Constitution 
calls for the Senate to advise and consent. I believe it calls for 
meaningful advice and consent and that includes an examination of a 
judge's philosophy, ideology, and record. When I examine the 
philosophy, ideology, and record of Samuel Alito, I am deeply troubled.
  I have no doubt Judge Alito has the training and qualifications 
necessary to serve. As has been already stated, he has received the 
highest rating from the ABA. He is an intelligent man and an 
accomplished jurist. There is no indication that he is not a man of 
fine character.
  But when you look at his record, when it comes to his understanding 
of the Constitution, I found that in almost every case he consistently 
sides on behalf of the powerful against the powerless; on behalf of a 
strong government or corporation against upholding Americans' 
individual rights and liberties.
  If there is a case involving an employer and employee and the Supreme 
Court has not given clear direction, Judge Alito will rule in favor of 
the employer. If there is a claim between prosecutors and defendants, 
if the Supreme Court has not provided a clear rule of decision, then he 
will rule in

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favor of the State. He has rejected countless claims of employer 
discrimination, even refusing to give some plaintiffs a hearing for 
their case. He has refused to hold corporations accountable numerous 
times for dumping toxic chemicals into water supplies, even against the 
decisions of the EPA. He has overturned a jury verdict that found a 
company liable for being a monopoly when it had over 90 percent of the 
market share in that industry at the time.
  It is not just his decisions in individual cases that give me pause, 
though; it is that decisions like these are the rule for Samuel Alito 
rather than the exception.
  When it comes to how checks and balances in our system are supposed 
to operate, the balance of power between the executive branch, 
Congress, and the judiciary, Judge Alito consistently sides with the 
notion that a President should not be constrained by either 
congressional acts or the check of the judiciary. He believes in the 
overarching power of the President to engage in whatever policies the 
President deems to be appropriate.
  As a consequence of this, I am extraordinarily worried about how 
Judge Alito might approach the numerous issues that are going to arise 
as a consequence of the challenges we face with terrorism. There are 
issues such as wiretapping, monitoring of e-mails, other privacy 
concerns that we have seen surface over the last several months.
  The Supreme Court may be called to judge as to whether the President 
can label an individual U.S. citizen an enemy combatant and thereby 
lock them up without the benefit of trial or due process. There may be 
consideration with respect to how the President can prosecute the war 
in Iraq and issues related to torture. In all of these cases, we 
believe the President deserves our respect as Commander in Chief, but 
we also want to make sure the President is bound by the law, that he 
remains accountable to the people who put him there, that we respect 
the office and not just the man, and that that office is bounded and 
constrained by our Constitution and our laws. I don't have confidence 
that Judge Alito shares that vision of our Constitution.
  In sum, I have seen an extraordinarily consistent attitude on the 
part of Judge Alito that does not, I believe, uphold the traditional 
role of the Supreme Court as a bastion of equality and justice for U.S. 
citizens. Should he be confirmed, I hope he proves me wrong. I hope he 
shows the independence that I think is absolutely necessary in order 
for us to protect and preserve our liberties and our freedoms as 
citizens. But at this juncture, based on a careful review of his 
record, I do not have that confidence, and for that reason I will vote 
no and urge my colleagues to vote no on this confirmation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. CARPER. Mr. President, of the three branches of our Federal 
Government, the Supreme Court seems the most removed from the American 
people. There are, as we know, only nine members of the Supreme Court. 
None of them, in the end, is accountable to the public. They certainly 
do not have to face groups of angry voters as you and I do from time to 
time, at townhall meetings or local potluck dinners, and they are 
probably thankful for that.
  However, their actions can have a tremendous and lasting effect on 
the lives of every American, probably more so than any Senator or 
Governor, or perhaps even more than many Presidents. For, in the end, 
the Supreme Court exists as the last bastion of protection for the 
rights and freedoms we enjoy as Americans. That is why I take so 
seriously, as I know you do, our obligation as Senators to provide 
advice and consent to our Presidents, as required by our Constitution, 
to determine whether their nominees truly merit a lifetime appointment 
to serve on our Nation's highest Court.
  When I voted for Judge John Roberts' nomination to become Chief 
Justice of the Supreme Court last fall, I said standing here that it 
was a close call, at least for me. Ultimately, though, I chose to take 
what I described then as a leap of faith. As someone whose political 
and legal opinions are perhaps somewhat more conservative than mine, I 
knew Chief Justice Roberts would sometimes render decisions with which 
I may not be comfortable or entirely agree. But after carefully 
reviewing his testimony, and discussing that testimony with Democratic 
and Republican members of the Senate Judiciary Committee, meeting with 
him and other interested parties, and talking to his colleagues, 
colleagues of his who had known and worked with him in the past, I 
concluded John Roberts was a worthy successor to Chief Justice 
Rehnquist and was not likely to shift the balance of the Court in any 
significant way.
  Obviously, more than three-fourths of our colleagues agreed with that 
decision. When the time had come to cast my vote, I concluded that 
Chief Justice Roberts' decisions would not be guided by ideology alone, 
but also by legal precedent and the combination of his life's 
experiences as a judge, as an attorney, as an academic, as a father, 
and as a husband. In short, by supporting John Roberts' nomination I 
voted my hopes and not my fears.
  After we confirmed Chief Justice Roberts and turned to face yet 
another impending Supreme Court vacancy, I urged President Bush to send 
us a nominee similar to the person he or she would replace--Justice 
Sandra Day O'Connor. I noted that his next choice could divide this 
Congress and our country even further, or it could serve to bring us 
closer together. In my view, we needed that type of consensus candidate 
to replace Justice O'Connor and her legacy on the Court.
  For more than 20 years, Justice O'Connor has been a voice of 
moderation during often difficult and tumultuous times. As we all know, 
her decisions oftentimes determined the direction of the Court. Not 
infrequently, the opinions she wrote reflected the prevailing sentiment 
of our country and its citizens, too. In my view, she was the right 
Justice at the right time.
  Unfortunately, and with some regret, I rise today not fully convinced 
that Judge Samuel Alito is the right person to replace Justice O'Connor 
on the Supreme Court. Unlike a few months ago, when I rose to support 
the nomination of John Roberts, I will not be supporting Judge Alito's 
nomination to the Supreme Court. In sharing that decision today, 
though, let me be clear on several points. I will not be voting against 
his confirmation because I don't believe he has the legal 
qualifications, the intellect, or the experience necessary to sit on 
the Supreme Court. I do. He is clearly very bright and demonstrates an 
excellent grasp of the law.
  I will not be voting against him because I don't like him or respect 
him. I do. He is described by a number of his colleagues as collegial, 
as hard working, and as a devoted father and husband. I believe Samuel 
Alito is an honorable person and that he has lived an honorable life.
  Having said that, though, I don't believe we should vote for Supreme 
Court Justices based solely on their qualifications and likeability. We 
must also consider their judgment, their legal opinions, their judicial 
philosophies, and what they said or did not say during the confirmation 
hearings, in order to determine whether we are truly comfortable with 
the direction a particular nominee will take our Nation's highest 
Court. After all, these are lifetime appointments that will have 
consequences for decades into the future.
  In the end, I found myself asking one simple question. Here it is: Is 
Judge Samuel Alito the right person for this vacancy, not just for now 
but for decades to come? For me, the answer to that question is, 
regrettably, no. Let me take a few minutes to explain why.
  As we all know, our Constitution provides for three separate but 
equal branches of Government--the legislative branch, that is us, the 
Congress; the executive branch, the Presidency and his or her 
administration; and the judicial branch, the courts. The Framers of our 
Constitution believed no branch of our Federal Government was superior 
to another, so our Founding Fathers established an intricate system of 
checks and balances to ensure that each branch kept a watchful eye on 
the others.
  For instance, it is Congress's job to represent the people and write 
the laws of our land, but the President can refuse to sign a bill the 
Congress has passed if he or she disagrees with our conclusions. 
Congress can then come

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back and override a President's objections, if we can muster the 
necessary votes. Meanwhile, the Supreme Court can rule that a law is, 
in part or in whole, unconstitutional, providing yet another important 
check on the power vested in the Congress and in the Presidency.
  Admittedly, it is not the most harmonious or quickest form of 
Government, but it has served our country well for over 200 years. 
Perhaps it was Churchill who said it best when he described democracy 
as the worst form of government devised by wit of man, but for all the 
rest.
  I am concerned that, if confirmed, Judge Alito, during the decades he 
is likely to serve may well take the Court in a new direction that 
serves to undermine our system of checks and balances, threatening the 
rights and freedoms many of us hold dear.
  Let me elaborate, if I may. In the past, Judge Alito has advocated 
for what is known as the ``unitary executive theory.''
  Until a couple of months ago, I had not heard of that. If you are 
like me, Mr. President, and you didn't go to law school, you are 
probably wondering what that means. Let me put it simply. It basically 
means that Judge Alito feels that the President should largely be 
allowed to act without having to worry much about Congress or the 
Supreme Court stepping in and saying: With all due respect, you are out 
of line.
  This line of thinking deeply concerns me and, I believe, many of my 
colleagues and the people we represent. And it should. Remember, our 
Nation declared her independence from Britain because we no longer 
wanted to be ruled by a king, or, frankly, by anyone with king-like 
powers. Our Founders wanted power to be invested in the people and 
shared equally by the three branches of Government.
  To say then that there are times when a President's power should go 
largely unchecked except in very rare instances, in my opinion, goes 
against what our Founders intended. Moreover, unfettered Presidential 
power could have dangerous consequences, given how a particular 
President--either now or in the future--chooses to exercise that kind 
of unchecked power.
  Let me give you a recent real-world example. Over the past few 
months, the Bush administration has been embroiled in several 
controversies, as we know, over its policies concerning the torture of 
detainees, as well as its decision to spy on or intercept phone calls 
and e-mails apparently of thousands of people living in the United 
States who are suspected of being agents of foreign countries or 
entities. In both cases, the administration asserted that it should be 
able to act without the consent of Congress or the courts.
  I disagree. I believe that our courts have an obligation under our 
laws to monitor an administration's actions concerning foreign 
prisoners and criminal suspects, and I believe administrations should 
have to justify, within reasonable periods of time, their decision to 
spy on Americans. I will be the first to acknowledge that there are 
times when the President--this one or another President--needs the 
ability to conduct secret wiretaps. And I think most of us agree on 
that point.
  The issue, however, is do Presidents have a constitutional right to 
conduct secret wiretaps without court authorization, without some other 
branch of Government making sure that that administration isn't 
breaking the law?
  Again, the fundamental issue for me is the issue of checks and 
balances.
  In these instances, Congress and the courts provide a needed and 
important backstop to make sure that the administration doesn't became 
overzealous and abuse the rights of innocent people.
  Americans may not understand why these issues are such a big deal. 
They may even agree with the reasons the Bush administration give, for 
instance, for circumventing the law--a law that has been in place since 
1978 which we modified I think about 4 years ago.
  But it is not a stretch to understand how a President--maybe not this 
one but one in the future--could overstep his or her authority and 
thereby infringe on the civil rights of innocent Americans.
  For that reason alone, we should all have grave concerns about an 
unchecked Presidency--or a Supreme Court Justice who has routinely 
sided and ruled in favor of unchecked Executive powers.
  Jeffrey Stone, a law professor at the University of Chicago, is a 
supporter of the Roberts nomination--and initially a supporter of the 
Alito nomination--wrote recently:

       Given the times in which we live, we need and deserve a 
     Supreme Court willing to examine independently these 
     extraordinary assertions of Executive authority. We can fight 
     and win the war on terrorism without inflicting upon 
     ourselves and our posterity another regrettable episode like 
     the Red Scare and the Japanese internment--

  Of the 1950s and 1940s, two shameful episodes in the history of our 
country where our Government seriously infringed on the rights of 
average Americans under the guise and excuse of national security.
  But as Professor Stone went on to say, we will only avoid such 
terrible excesses of governmental power ``if the Justices of the 
Supreme Court are willing to fulfill their essential role in our 
constitutional system.''
  Based on his history and his opinions--in his own words--I fear that 
Judge Alito may well change the Court's approach and rule in favor of 
expanded Presidential power--not just at the expense of Congress and 
the courts but ultimately at the expense of the American people. We 
cannot and should not play witness to an unchecked Presidency, 
regardless of political party, regardless of whether the President is a 
Democrat or a Republican.
  We need in this country for the courts and the Congress to ensure 
that this administration and future administrations abide by the laws 
of this land and the principles we hold dear.
  Just as I am concerned about Judge Alito's views on expanded 
Presidential power, I am also concerned about Judge Alito's opinion on 
the role and powers of Congress.
  Traditionally, Congress has enjoyed broad authority, as a coequal 
branch of Government, to debate and adopt laws that we believe protect 
the interests of the American people, such as keeping our water clean 
and our air clean and ensuring that fair labor laws and employment 
standards across the country are fair.
  Back in the 1990s, Congress used that authority to pass a bill that 
banned the possession or sale of machineguns across State lines among 
everyday Americans. To me, that ban wasn't about whether people had the 
right to own guns for recreation or self-protection. Those rights are 
forever enshrined in our Constitution, as they should be. This was 
about whether people had the right to own, to buy, or to sell across 
State lines Army-style machineguns, which I think reasonable people can 
agree have little, if anything, to do with protecting our homes or 
going hunting.
  Nevertheless, the constitutionality of the law was challenged in the 
courts. All nine Federal appeals courts that heard the subsequent 
challenges upheld the validity of the original law.
  Judge Alito, as a member of the Federal appeals court that covers 
Delaware and our surrounding region in the Delaware Valley, heard one 
of those challenges. He ended up disagreeing with his own court's 
decision and that of eight other Federal appeals courts which ruled 
that Congress does indeed have the authority under our Constitution to 
ban the sale of machineguns across State lines.
  My primary concern is that if Judge Alito thinks Congress shouldn't 
have the right to pass laws that arguably keep Americans safer, then 
what other laws might he believe Congress does not have the authority 
to adopt under the commerce clause of our Constitution? Laws that 
protect the air we breathe or the water we drink? Laws that allow men 
and women to take unpaid leave from their jobs to care for members of 
their family during times of crisis? I don't know, and that 
uncertainty--at least for me--is a cause of real concern.
  A third concern I hold about Judge Alito relates to his views on 
other rights and freedoms we enjoy as Americans, particularly a woman's 
right to end a pregnancy prior to fetal viability. My own opinion about 
abortion is we have far too many of them, and we need to put a lot more 
effort into reducing the number of abortions that still take place in 
America. I am sure on that point Judge Alito and I agree.

[[Page S193]]

  But I am not certain Judge Alito agrees with me that we should not go 
back in time to a place where almost all abortion laws were illegal, 
where women who wanted to end a pregnancy were in too many instances 
forced into unhealthy behavior that often put their lives and their 
reproductive futures at risk. That is why, during his confirmation 
hearing, I was disappointed that Judge Alito, unlike Judge Roberts, 
declined to acknowledge that the Supreme Court decision that granted 
women the right to end an early term pregnancy is ``settled law.''
  Justice O'Connor, whom Judge Alito has been nominated to replace, has 
been the deciding vote on numerous cases that challenged this 
precedent. That is why I believe replacing Justice O'Connor with Judge 
Alito--given his rulings and statements on this subject--may well be 
putting this precedent in jeopardy.
  Let me explain why. In the historic Planned Parenthood v. Casey case, 
Judge Alito voted to uphold a Pennsylvania law requiring married women 
to notify husbands before obtaining an abortion even during the early 
stages of pregnancy. That case eventually went to the Supreme Court, 
which ruled against Judge Alito's position, as we know.
  Justice O'Connor, who cast the deciding vote in the Supreme Court 
overturning the Pennsylvania law and Judge Alito's position, wrote that 
women do not leave their Constitutional protection at the altar. 
Married women are entitled to the same protections as single women. I 
believe she is right.
  I had the opportunity to talk with Judge Alito at length recently. I 
asked him--a conversation that I very much enjoyed--why he ruled the 
way he did in this instance. He told me he did not think the 
requirement placed an undue burden on married women. I asked him if he 
felt the same way today, especially in light of the Supreme Court 
ruling in opposition to his view. He told me he basically thought the 
same way. While I respect that honesty, I respectfully disagree and 
question what other undue burdens he may decide to place on women in 
the future.
  Let me close by saying that this is not an easy vote for me. I know 
it is not an easy one for a lot of our colleagues. As a former 
Governor, I believe strongly that this administration or any other 
administration has the right to nominate judges of the same mind and 
philosophy. There are consequences in elections. If you win, you have 
the chance, if you are a Governor or a President, to nominate 
candidates of your choice for the bench. And I believe Senators should 
not automatically reject judges outright because of political 
affiliation or beliefs.

  However, politicians of both stripes must take a stand and reject 
nominees that we believe will take the courts too far to the extreme 
right or to the extreme left. Wisely, in my State, Delaware's 
constitution requires overall political balance in our State's courts.
  For every Democrat who is appointed to serve as a judge, Delaware 
Governors have to nominate a Republican. The result has been an absence 
of political infighting and a balanced, exceptionally and highly 
regarded State judiciary that we are enormously proud of in our State.
  Our Federal Constitution, regrettably, does not require similar 
political balance when it comes to the judiciary, but political balance 
should be one of our goals. The Founders of the U.S. Constitution 
tasked the Senate with finding that balance.
  I fear, in the end, that Judge Alito may well upset the balance that 
exists on the Supreme Court for the better part of my lifetime and move 
the Court in a direction that will not be best for many of the people 
of this country.
  So this time, unlike my vote for the nomination of John Roberts a few 
months ago, I will be voting my fears--not my hopes. Having said that, 
I sincerely wish Judge Alito well.
  I hope, if he is confirmed--and I believe that he will be--that he 
proves my concerns wrong and unfounded. I hope he remembers that our 
Constitution--that our entire democracy--is both an everlasting and 
ever-changing experiment. Our Constitution is not something to be 
strictly interpreted, nor is it something to be recklessly abandoned.
  Success in life is often measured not just by the stances we take but 
by the results we achieve. I believe that is one of the reasons why 
Justice O'Connor is so revered. It is not because she was always 
predictable or that she advocated an intractable world view. It is that 
she found the right balance, even in the most difficult, controversial, 
and emotional cases of our times.
  My fear is that too often Judge Alito may not do so, and thus I will 
not be supporting his nomination.
  My hope, though, is that once he is confirmed to the Supreme Court he 
will balance the scales of justice and not tip them too far in either 
direction.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, for the second time, this Congress we are 
considering the nomination to the Supreme Court. Having confirmed Judge 
John Roberts as Chief Justice in September, a decision in which I 
joined, we are now debating the nomination of Judge Samuel Alito to the 
position of Associate Justice. Positions on the Supreme Court are 
hugely significant given their lifetime tenures, the balance on the 
Court, and the importance of the Court's decisions on the lives of 
Americans. These votes are among the most important and difficult that 
we cast.

  Article II, section 2 of the Constitution simply provides that the 
President ``shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint . . . Judges of the Supreme Court. . . .''
  The Constitution gives us no guidance on the factors the Senate 
should consider while we carry out this constitutional duty. In the 
end, each Senator must determine what qualities he or she thinks a good 
Supreme Court Justice should have and what scope of inquiry is 
necessary to determine if the prospective nominee has these qualities.
  This will be the 11th Supreme Court nomination on which I will have 
voted. With each nomination I have done my best to fairly determine if 
the nominee satisfies fundamental requirements of qualification and 
temperament, if the nominee is likely to bring to the Court an ideology 
that distorts his or her judgment, and brings into question his or her 
open mindedness and whether any of the nominee's policy values are 
inconsistent with fundamental principles of our Constitution.
  Like Judge Roberts before him, Judge Alito has an impressive 
background and command of the law. He easily meets the educational and 
professional requirements of the position. Judge Alito has worked for 
the Justice Department, as the U.S attorney for the District of New 
Jersey, and for nearly 16 years as a judge on the Third Circuit Court 
of Appeals. He is respected by his peers as a very decent person and is 
a person of high caliber and integrity.
  That Judge Alito has a keen intellect and understands the nuances of 
the law is indisputable. That is not enough to warrant confirmation if 
his discernible views on key issues are at variance with fundamental 
principles of our constitutional system. Because I am not convinced he 
will adequately protect the constitutional checks and balances that are 
the bedrock of our liberty, I cannot support his confirmation.
  I have concerns about Judge Alito's views in a number of areas. One 
in which I have the greatest doubts relates to his undue deference to 
Executive power. In recent years, constitutional issues on the 
authority of the executive branch have multiplied. These include 
executive actions in areas of government eavesdropping, other 
government intrusions on personal privacy, including library records, 
medical records, and Internet search records, and the detention and 
treatment of American citizens whom the President designates as ``enemy 
combatants.'' Our system of checks and balances requires the Supreme 
Court to enforce limits on Executive power, and the nominee's views on 
executive authority under the Constitution are extremely important.
  Judge Alito's record, however, is one of undue deference to Executive 
power and raises significant doubts as to whether he would adequately 
apply the checks and balances that the Founders enshrined in the 
Constitution to protect, in part, against an overreaching Executive.

[[Page S194]]

  For example, while serving as Deputy Assistant Attorney General in 
1986, Judge Alito recommended the President use bill signing statements 
to influence the Court's interpretation of legislative history. He 
argued that ``the President's understanding of the bill should be just 
as important as that of Congress,'' and that his signing statement 
proposal would ``increase the power of the executive to shape the 
law.''
  This issue took on renewed urgency when President Bush recently 
declared in a signing statement that he would ignore the ban on torture 
by executive branch personnel, a ban passed overwhelmingly by Congress 
in the very bill he was signing, if the ban hampered his actions as 
Commander in Chief. In a written question, I asked Judge Alito about 
the possible legal relevancy of Presidential signing statements. His 
response was erudite, as always, suggesting they might be relevant if 
the President participated in the crafting of the legislation.
  In the case of the torture ban language, the President strongly and 
repeatedly opposed the language and unsuccessfully sought, at a 
minimum, to obtain a Presidential waiver. Yet when asked at his 
Judiciary Committee hearing whether a signing statement could have 
relevancy in that context where the President strongly opposed the 
language and was not involved in its crafting, Judge Alito responded:

       The role of signing statements and the interpretation of 
     statutes is, I think, a territory that's been unexplored by 
     the Supreme Court.

  That statement of fact was not responsive to a question about his 
views. Judge Alito, thereby, missed the chance to show that his views 
on this issue have evolved since 1986. His words in 1986 that signing 
statements can help achieve the goal of ``increasing the power of the 
Executive to shape the law'' should give us all pause.
  If Judge Alito were on the Supreme Court and voted to give 
constitutional weight to signing statements such as President Bush made 
when he signed the torture ban legislation, he would be creating a new 
and radical expansion of Executive power.
  In 1988, the Supreme Court addressed the question of executive 
authority in Morrison v. Olson, the decision which upheld the 
Independent Counsel Act. The government had argued that the act was 
unconstitutional because it restricts the Attorney General's power to 
remove an independent counsel and interfered with executive branch 
prerogatives, thereby disrupting the proper balance between the 
branches of Government.
  Chief Justice Rehnquist rejected those arguments when he wrote for a 
7-1 majority:

       As we stated Buckley v. Valeo, the system of separated 
     powers and checks and balances established in the 
     Constitution was regarded by the Framers as ``a self-
     executing safeguard against the encroachment or 
     aggrandizement of one branch at the expense of the other.''

  Nonetheless, just a year later, in remarks to the Federalist Society 
in 1989, Judge Alito, then the U.S. attorney for the District of New 
Jersey, called the Morrison v. Olson decision ``stunning,'' and 
described congressional checks on broad Presidential power as 
``pilfering.'' He said:

       . . . the Supreme Court [in Morrison] hit the doctrine of 
     separation of powers about as hard as heavy weight champ Mike 
     Tyson usually hits his opponents.

  Yet in the setting of the Judiciary Committee hearings, when asked 
whether the views he expressed to the Federalist Society were still his 
views, Judge Alito would only say:

       Morrison is a settled precedent--it is a precedent of the 
     court. It was an 8-1 decision (sic). It's entitled to respect 
     under stare decisis. It concerns the Independent Counsel Act, 
     which is no longer in force.

  He gave no indication that he has modified his earlier extreme view 
over time, but, again, he simply made a statement of obvious fact: that 
Morrison is a precedent of the Supreme Court and entitled to respect as 
such.
  Although he has been hesitant to check Presidential power, Judge 
Alito has been more than willing to check congressional power. In 
United States v. Rybar, the Third Circuit upheld a conviction under the 
Federal law prohibiting the possession of machine guns. In his dissent, 
Judge Alito said there was insufficient evidence in the Record to 
determine that Congress had the power under the commerce clause to 
enact that legislation. Not only did the majority strongly criticize 
his view of congressional power, and not only did the Supreme Court 
decline to review the majority's ruling, thereby suggesting the 
majority's view was the correct view, but the Second, Third, Fifth, 
Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have also 
all found the congressional machinegun ban to be constitutional.
  Undue restriction of legislative branch authority such as reflected 
in Judge Alito's dissent in Rybar could lead to further unwise 
extension of executive branch powers. For instance, Congress has voted 
to require the executive branch to seek a warrant to eavesdrop on 
American citizens. We granted broad powers to tap phone lines where 
there is probable cause that a person is, or is linked to, a terrorist 
or a spy. We allow the executive branch to go ahead and tap a phone 
when there is no time to seek a warrant, first, as long as it 
subsequently seeks a warrant within 3 days. But Congress added an 
explicit prohibition on the executive branch tapping phones of U.S. 
citizens except as provided for in that law. This was an explicit 
prohibition. You must follow the requirements of this law or else you 
must not tap American citizens' phones.
  Can a President ignore that prohibition, that check on his power? The 
Supreme Court ruled on the issue of executive authority in the seminal 
Youngstown case. As Justice Robert Jackson wrote in his renowned 
opinion:

       When the President takes measures incompatible with the 
     expressed will of Congress, his power is at its lowest ebb.

  Three times at his hearing, however, Judge Alito characterized that 
circumstance where the President acts contrary to the explicit 
congressional prohibition as a ``zone of twilight.'' Justice Jackson 
reserved that zone of twilight, that zone of ambiguity, for the 
circumstance where ``the President acts in absence of either a 
congressional grant or denial of authority.''
  Again, where the President acts in defiance of a congressional 
prohibition, Presidential power, according to Jackson, is at its lowest 
ebb, not in a twilight zone of uncertainty.
  More specifically, Judge Alito--referring to the congressional 
prohibition on executive wiretapping under the Foreign Intelligence 
Surveillance Act, FISA, the prohibition on executive wiretapping, 
except as provided for in that act, spoke as follows at his hearing:

       Where the President is exercising executive power in the 
     face of a contrary expression of congressional will through a 
     statute or even an implicit expression of congressional will, 
     you'd be in what Justice Jackson called the twilight zone, 
     where the President's power is at its lowest point.

  And Judge Alito said:

       What I'm saying is that sometimes issues of executive power 
     arise and they have to be analyzed under the framework that 
     Justice Jackson set out. And you do get cases that are in 
     this twilight zone.

  Again, referring to the hypothetical presented to him where there was 
a specific congressional prohibition on wiretapping. Again, calling 
that a case that is in the twilight zone.
  Later, Judge Alito said:

       When you say regardless of what laws Congress passes, I 
     think that puts us in that third category that Justice 
     Jackson outlined, the twilight zone, where, according to 
     Justice Jackson, the President has whatever constitutional 
     powers he possesses under Article II minus what is taken away 
     by whatever Congress has done by an implicit expression of 
     opposition or the enactment of a statute.

  By repeated characterizations of Presidential action in the face of a 
prohibition on that action, as falling into a twilight zone of 
uncertainty rather than a zone of dubious constitutionality, Judge 
Alito, unwittingly or otherwise, reflected what I fear his real view 
is. The twilight zone that he referenced is entered, according to the 
Youngstown test, when the President acts without congressional 
authorization, not when Congress has explicitly prohibited his actions. 
Again, for instance, where Congress has prohibited domestic wiretapping 
in the absence of seeking a warrant, Presidential power is at its 
lowest ebb.
  In the 1981 case of Dames and Moore v. Regan, Justice Rehnquist 
reaffirmed the same test, writing that the zone of twilight is entered 
``when the President acts in the absence of congressional 
authorization,'' and reaffirming

[[Page S195]]

Justice Jackson's opinion. Justice Rehnquist found that ``when the 
President acts in contravention of the will of Congress `his power is 
at its lowest ebb and the Court can sustain his actions [Justice 
Rehnquist said] `only by disabling the Congress from action on the 
subject.' ''

  If Judge Alito had described the status of Presidential action in 
contradiction of congressional prohibition only one time, it could be 
argued that he slipped or made a mistake. But since he repeatedly made 
the statement, it is more likely to represent his true feeling, 
particularly since Senator Leahy pointed out this mischaracterization 
of Justice Jackson in the Youngstown case and Judge Alito did not 
correct himself.
  Justice Jackson is a longtime and lifelong hero of mine. He was 
President Truman's Attorney General when Truman nominated him to the 
Supreme Court. But when President Truman seized the steel mills under 
his claim of constitutional authority as Commander in Chief, Justice 
Jackson ruled against his old friend, now Commander in Chief, and 
wrote:

       What is at stake is the equilibrium established by our 
     constitutional system.

  Similarly, Justice O'Connor recently cast the deciding vote in Hamdi 
v. Rumsfeld, which made clear that the President's powers during 
wartime are not unchecked under our Constitution. Justice O'Connor 
wrote:

       A state of war is not a blank check for the President when 
     it comes to the rights of the Nation's citizens.

  The liberties of our people are in the hands of the Supreme Court. 
The willingness of this President and a number of Presidents before him 
to ignore the Constitution's limits on their power needs to be checked 
by the Supreme Court. While I am hopeful Judge Alito will join the long 
and revered list of Supreme Court Justices who have protected our 
Constitution's checks and balances, I have too many doubts to be 
confident he will do so and that he will stand up to excessive 
exercises of Executive power, as Justice Jackson and Justice O'Connor 
and other Justices have done.
  Judge Alito is a personable, decent man, a man of great integrity and 
extraordinary intellect. His associates vouch for his collegiality and 
his congeniality. But I am not confident Judge Alito will help provide 
the essential check on executive excess that has proven throughout our 
history to be the bedrock of our liberty.
  During his hearings, he stated time and time again that the President 
is ``not above the law,'' but in the end I am not persuaded there is 
real conviction behind that mantra.
  I wish I could ignore my fears and vote my hopes. But the doubts are 
too nagging and the stakes are too high for me to consent to Judge 
Alito's nomination to the Supreme Court.
  I thank the Chair, yield the floor, and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CRAIG. 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. CRAIG. Mr. President, I am here today to discuss the nomination 
of Judge Samuel A. Alito, Jr. to be an Associate Justice of the Supreme 
Court.
  Over 200 years ago, the Framers of the United States Constitution had 
a similar discussion. On the topic of judicial nominations, they 
emphasized the need for qualified judges--those who possess virtue, 
honor, requisite integrity, competent knowledge of the laws, fit 
character, and those who have the ability to conduct the job with 
utility and dignity.
  They also talked about the courts that these judges sit on and warned 
against them exercising will instead of judgment, the consequence of 
which would be the substitution of the courts' pleasure to that of the 
legislative body.
  These principles have stood the test of time--have been a constant 
standard that has guided the Senate's constitutional obligation of 
advice and consent and--today, over two centuries later, we see these 
principles embodied in Judge Samuel Alito.
  You can tell this by Judge Alito's record.
  Judge Alito has served as a judge on the Third Circuit Court of 
Appeals for 15 years. He was confirmed unanimously by a voice vote and 
since his appointment, he has participated in more than 1,500 Federal 
appeals and written more than 350 opinions.
  From 1987 to 1990, he was the U.S. attorney for the District of New 
Jersey--the chief Federal law enforcement officer in the State. As a 
Federal prosecutor, he oversaw the prosecutions of numerous organized 
crime figures, white-collar criminals, environmental polluters, drug 
traffickers, terrorists, and other Federal defendants.
  Judge Alito also served as an Assistant to the Solicitor General from 
1981-1985, arguing 12 cases before the Supreme Court and writing briefs 
or petitions in more than 250 cases.
  He was a Deputy Assistant Attorney General in the Office of Legal 
Counsel, which is the highest authority within the executive branch for 
answering legal questions and advising the federal government on 
complex statutory and constitutional questions.
  He is also a distinguished student and scholar. He earned his 
bachelor's degree from Princeton University and his law degree from 
Yale Law School, where he served as editor of the Yale Law Journal.
  You can also tell his qualifications by the kind of human being he 
is--and by the kind that others know him to be.
  Judge Edward Becker, Senior Court of Appeals Judge for the Third 
Circuit, who served with Judge Alito for 15 years, called him a 
wonderful human being, gentle, kind, considerate, patient, self-
effacing, brilliant, highly analytical and meticulous, a soul of honor, 
with no chinks in the armor of his integrity.
  Judge Leonard Garth, who has known Judge Alito since he clerked for 
him in 1976 and served with him on the Third Circuit for the 15 years 
of Judge Alito's tenure there, called him thoughtful, modest, and self-
effacing, and that it is rare to find humility such as his in someone 
of such extraordinary ability.
  And Edna Axelrod, a former colleague and lifelong Democrat, called 
him a man of unquestionable ability and integrity, one who approaches 
each case in an openminded way, seeking to apply the law fairly.
  You can also tell his qualifications from his judicial philosophy--
and the way he judges.
  Judge Becker testified that Judge Alito scrupulously adheres to 
precedent.
  A former colleague and friend of 20 years likewise said that those 
who know him know that he is not an ideologue, he does not use his 
position to pursue personal agendas, and he has a profound respect for 
the law and precedent.
  Judge Alito himself testified that he makes decisions knowing 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 is a solemn obligation--is to the rule 
of law. And that means in every single case, the judge has to do what 
the law requires.
  All of these things--his record, character, and judicial integrity--
don't simply make him qualified to be an Associate Justice of the 
Supreme Court--they make him well qualified, according to the American 
Bar Association.
  After interviewing more than 300 people and analyzing nearly 350 
published opinions, a panel at the ABA concluded that Judge Alito's 
integrity, his professional competence, and his judicial temperament 
are of the highest standard--and his time on the bench established a 
record of both proper judicial conduct and even-handed application in 
seeking to do what is fundamentally fair.
  Some of those now opposing the nomination of Judge Alito used to 
agree.
  When Judge Alito was in the process of being confirmed to the Third 
Circuit, one Senator said that Judge Alito ``obviously had a very 
distinguished record'' and commended him for his ``long service in the 
public interest.''
  Another, referring generally to the nominations process, said ``we 
need to get away from rhetoric and litmus tests, and focus on 
rebuilding a constructive relationship between Congress and the courts 
. . . we do not need nominees put on hold for years . . . while we 
screen them for their Republican sympathies and associations.''

[[Page S196]]

  And the Senate did this some years ago. I recall when the nomination 
of Ruth Bader Ginsburg to the Supreme Court came before the Senate in 
1993, I was confronted with a nominee whose past revealed that she had 
a vastly different political ideology than my own. My constituents from 
Idaho made clear just how different and how far out of the Idaho 
mainstream that ideology was.
  However, Justice Ginsburg was a judge of great ability, character, 
intellect, and temperament. Her record was replete with evidence of 
these qualities. And although at one time she had been a vocal advocate 
for particular political issues, she had a sharp understanding of the 
limited character of the judiciary and her role within it as a neutral 
arbiter, not an advocate.
  I voted for Ruth Bader Ginsburg. Not because she had the same 
ideology as I do, but because there was a lack of convincing evidence 
that she believed the Supreme Court was a place for judicial activism 
rather than restraint.
  Judge Alito's record reflects the same belief, perhaps even more so 
than Justice Ginsburg's. But now we have the same senators who 
supported him the first time around suddenly calling his record 
``ominous'' and uniting their opposition on the basis of his alleged 
``extreme views of executive power.''
  In a recent hearing, Judge Alito acknowledged that ``the President, 
like everybody else, is bound by statutes that are enacted by 
Congress'' and that there is ``no question about that whatsoever.'' He 
also testified that ``as a judge, he would have no authority and 
certainly would not try to implement any policy ideas about 
federalism.'' There is nothing in Judge Alito's record to suggest 
otherwise.
  What his record does show is a man of character, competence, and 
integrity who can apply the laws, regardless of his own views.
  It is hard to argue against that.
  Let us vote to confirm Judge Samuel Alito as an Associate Justice of 
the Supreme Court.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, I understand the leader may be coming. 
If he does, I will suspend my remarks to allow him to speak, then I 
will resume. Are we in morning business?
  The PRESIDING OFFICER. We are in executive session on the nomination 
of Judge Alito.
  Mr. ALEXANDER. I rise to make a few remarks on Judge Alito. The 
Presiding Officer is from the next State over. North Carolina and 
Tennessee have the same mountains, and he may be familiar with a story 
we tell at home about the old Tennessee judge.
  It is told in one of our mountain counties that the lawyers showed up 
one morning in the courthouse, all prepared for a 3-day or 4-day trial. 
They had their litigants and their witnesses and their books. They had 
done the research. The judge came in, sat down behind the bench, and 
said: Fellows, we can save a lot of time. I had a phone call last 
night, and I pretty well know the facts. Just give me a little bit on 
the law.
  The lawyers were pretty disappointed because it was obvious to them 
that the judge already had pretty well made up his mind about what to 
do about that case. That is not what they expected. They thought they 
were coming before a judge--at least one side did--who was impartial 
and they wouldn't know whose side the judge was on.
  When Judge Alito is sworn in, he will take two oaths. The first is 
the constitutional oath that we Senators took. The second is the 
judicial oath, which makes a pretty good job description of a Justice 
on the Supreme Court: I--and he will say his name--do solemnly swear 
that I will administer justice without respect to persons, and do equal 
right to the poor and to the rich, and that I will faithfully and 
impartially discharge and perform all the duties incumbent upon me as 
Associate Justice of the Supreme Court under the Constitution and laws 
of the United States. So help me God.
  Judge Alito's statements before the Judiciary Committee suggest to me 
that he understands very well his duty of impartiality under these 
oaths. He said he will uphold the Constitution. These are his words:

       The court should make its decision based on the 
     Constitution and the law. It should not sway in the wind of 
     public opinion at any time.

  Judge Alito has said that the Constitution applies to everyone:

       No person in this country is above the law. That includes 
     the President and it includes the Supreme Court.

  He said he won't allow his personal views to compromise his 
impartiality. He also said:

       I would approach the question with an open mind and I would 
     listen to the arguments that were made.

  The other side has taken an unusual position. They keep asking, Whose 
side is he on? Is he on the side of the rich or of the poor, the big or 
the little, the Black or the White, business or labor? Is he on the 
side of the easterner or the westerner? For us to know whose side he is 
on would violate his oath. He can't tell us that. The American people 
know that.
  I had the privilege of being Governor of my home State. In that 
process, I appointed 50 judges. I never asked a single one of them 
whose side they were on. I appointed Democrats and Republicans. I 
appointed the first African American judges, and the first women to be 
circuit court judges. I didn't ask them where they stood on abortion or 
the death penalty. I tried to find out about their character, about 
their intelligence, about how they would treat people before them, 
about their respect for law and their understanding of our country. I 
have been proud of those 50 appointees.
  I am disappointed that some in this Chamber would keep asking of 
Judge Alito and other nominees of the President, Whose side is he on? 
Is he on the side of the rich or the poor, of the big, of the little? 
He must take an oath of office that says he will not be on anybody's 
side and that when the lawyers come before him to argue a case, they 
don't know where he is going to come down except that he is going to 
come down according to his oath, according to the law.
  Americans have shown that they know better. I had the privilege of 
being elected to the Senate in 2002. That was an issue in my election: 
Did the people of Tennessee want to confirm President Bush's judicial 
nominees, people who would interpret the law, not make it up as they go 
along? The people of Tennessee don't want a judge who takes sides 
before the case is argued.
  I said a few months after I arrived here that I would not participate 
in a filibuster of any President's nominee. I might vote against them 
for one reason or another, but I wouldn't participate in a filibuster. 
Each one of them deserves an up-or-down vote. I am looking forward to 
casting this vote.
  I would like to express my great respect for the woman Judge Alito 
will succeed. Sandra Day O'Connor was appointed by President Ronald 
Reagan. She was the first woman appointed to the Supreme Court. She has 
distinguished herself there by her intelligence, her independence, and 
scholarship. She has been a wonderful representative for our country. 
She is a great symbol for other men and women, reminding us that 
American history is a work in progress and that we had a long way to go 
when she was appointed, as we still do.
  She tells a wonderful story of how, when she graduated from Stanford 
Law School, she applied for a job with a Los Angeles firm. Even though 
she graduated near the top of her class, she was told they only had 
places for women as secretaries. A few years later, a partner in the 
same firm was the Attorney General of the United States, and he called 
her and asked her to fly to Washington from Arizona so that he could 
talk with her about being President Reagan's appointee to the Supreme 
Court. She has come a long way, and she has helped our country come a 
long way. As we consider Judge Alito, we certainly salute Justice 
O'Connor.

  I look forward to casting my vote for the confirmation of Judge 
Alito. His resume reads like a resume any of us who were once in law 
school dreamed we could have: his degree from Yale, his work as an 
Assistant U.S. Attorney, as Assistant to the Solicitor General, as U.S. 
Attorney, nearly 16 years of service on the Third Circuit Court of 
Appeals, and receiving a unanimous ``well qualified'' rating from the 
American Bar Association, which is the highest possible rating. He has 
based his opinions and dissents on sound

[[Page S197]]

legal arguments. He appears to be unswayed by the particular details of 
the case that are irrelevant to the legal issues at stake. He seems to 
understand that he is not to be on anybody's side, that he is supposed 
to enforce the law impartially and respect the Constitution. In short, 
Samuel Alito has demonstrated judicial temperament suitable for a 
nominee.
  I believe he will serve with distinction. I am pleased to support his 
confirmation as Associate Justice of the U.S. Supreme Court.
  I thank the Chair.
  Mr. REID. I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Chafee). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. FRIST. 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. FRIST. Mr. President, I understand that earlier today, the 
distinguished chairman of the Judiciary Committee was on the Senate 
floor--actually, several times. During his last discussion on the 
Senate floor, he asked unanimous consent for an up-or-down vote on this 
distinguished nominee to the Supreme Court. As all of our colleagues 
know, it is very important from our standpoint that this nominee be 
given a vote that is up or down, which reflects the advice and consent 
of this body.
  It has been reported to me over the course of the afternoon that 
there are Members from the other side of the aisle who have expressed 
their intent to filibuster this nominee. As I have said at the outset, 
it is important to me to make sure that this nominee be given plenty of 
time in terms of advice and consent on the floor of this body, and, 
indeed, he has had just that. It is time to establish an end point for 
that up-or-down vote. Although we have attempted to set a time certain 
to have that vote in the future, we have not been able to receive that 
from the other side of the aisle.
  Again, this is a nominee who is well qualified, has the highest ABA 
rating. We heard seven of his circuit court fellow judges testify on 
his behalf. Now is the time to bring his vote to the floor of the 
Senate. There is objection to that, and it has been now 87 days. I 
believe this is the 87th day since he was initially nominated. We 
wanted to have hearings in November and December, and there was 
objection, so we pushed those off until January. In those hearings, 
Judge Alito testified and was present for 18 hours and answered over 
650 questions. We have had debate today and yesterday, and the debate 
will continue tomorrow and possibly Saturday and Monday--however long 
it takes for people to be adequately heard. But it is time to set that 
vote.
  Even after we came out of committee, there was yet another delay in 
terms of bringing Judge Alito's nomination to the floor of this body. I 
was disappointed that he came out of committee on a party-line vote. 
That at least raises the specter that this becomes too partisan, and so 
I am very concerned. All that is behind us now, and it is time to move 
toward that up-or-down vote.


                             cloture motion

  Mr. FRIST. Mr. President, I send a cloture motion to the desk at this 
point.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The bill clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the nomination 
     of Samuel A. Alito, Jr., of New Jersey to be an Associate 
     Justice of the Supreme Court of the United States.
         Bill Frist, Elizabeth Dole, Michael B. Enzi, Jim DeMint, 
           Wayne Allard, Kit Bond, John Ensign, Arlen Specter, 
           Rick Santorum, Kay Bailey Hutchison, Pete Domenici, 
           Judd Gregg, Lisa Murkowski, Norm Coleman, George Allen, 
           Mitch McConnell.

  Mr. FRIST. Mr. President, I ask unanimous consent that the vote on 
cloture occur at 4:30 p.m. on Monday, January 30, with the mandatory 
quorum waived. I further ask consent that if cloture is invoked, 
notwithstanding the provisions of rule XXII, the Senate proceed to a 
vote on the confirmation of the nomination at 11 a.m. on Tuesday, 
January 31. Finally, I ask unanimous consent that all debate time on 
Tuesday prior to 11 a.m. be equally divided between the two leaders or 
their designees, and that cloture vote may be vitiated by the agreement 
of the two leaders.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Democratic leader is recognized.
  Mr. REID. Mr. President, I wish to express the appreciation on our 
side for giving us adequate time to talk about this most important 
nomination. The distinguished majority leader could have filed cloture 
last night because I told him I didn't have it cleared yet for a time-
certain vote. There has been adequate time for people to debate. No one 
can complain in this matter that there hasn't been sufficient time to 
talk about Judge Alito, pro or con. We have had a dignified debate. We 
have gone back and forth, and I hope this matter will be resolved 
without too much more talking. But everybody has a right to talk.
  Again, I express my appreciation to the distinguished majority leader 
for making sure everybody had ample time to talk on behalf of Samuel 
Alito or against him.
  Mr. FRIST. Mr. President, just to summarize, we will be here tonight 
for as long as people want to speak. We will be here tomorrow, and we 
will announce what time we will be in tomorrow. We will be available as 
long as people would like to speak. If Saturday is necessary, we will 
provide that time as well. The cloture vote will be at 4:30 on Monday. 
Once cloture is invoked, we would have a vote at 11 a.m. on Tuesday, 
January 31.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina is recognized.
  Mrs. DOLE. Mr. President, it is my great privilege to support Judge 
Samuel A. Alito, Jr., an outstanding choice for Associate Justice of 
the United States Supreme Court.
  Judge Alito is indeed one of the most qualified nominees to ever come 
before the Senate. He has excelled at every level--high school 
valedictorian--Phi Beta Kappa from Princeton--Yale Law School--Editor 
of the Yale Law Journal--Federal prosecutor--distinguished and esteemed 
judge. His judicial experience and record are vast. During his 15 years 
on the bench, Judge Alito has participated in more than 1,500 
decisions. He has written more than 350 opinions on issues across the 
legal spectrum. Of the 109 men and women who have been chosen to serve 
this country on the Supreme Court, Judge Alito has spent more time on 
the Federal bench than all but four. And no nominee to the high court 
has come before this body in the last 70 years with as much Federal 
judicial experience. Judge Alito is precisely the type of person 
America needs on the Supreme Court.
  Yet, despite Judge Alito's obvious qualifications for this important 
post, some members of the other party have resorted to personal attacks 
in an effort to deny this good and honorable public servant 
confirmation by the Senate. They have questioned his integrity, 
questioned his commitment to equal rights, and mischaracterized his 
rulings from the bench.
  But in reality, the hostility towards Judge Alito has nothing to do 
with his integrity, his commitment to fairness, or even his view of 
executive power. Rather, these attacks are simply a pretext upon which 
to oppose Judge Alito's nomination. His critics' real fear is that he 
will refuse to rubber-stamp the agenda advanced by liberal interest 
groups. Make no mistake, they want Judge Alito--and the Supreme Court--
to undermine marriage, religious expression, and protection of the 
unborn.
  I do not know how Judge Alito will ultimately rule when confronted 
with difficult questions of law--and neither do my colleagues--because 
Judge Alito has rightly refused to prejudge cases that may come before 
him. But we can all take comfort in the principles that will guide his 
approach--respect for the Constitution and the rule of law, a 
commitment to hear all sides of an argument with an open-mind, 
impartiality and fairness to all parties, big or small, powerful or 
powerless.

[[Page S198]]

  Judge Alito's judicial record and Senate testimony demonstrate an 
unwavering dedication to these principles. His colleagues on the bench 
and in the Justice Department, his clerks, and so many others who know 
him well, have testified that Samuel Alito is a man who will approach 
his job without bias. Like John Roberts, Samuel Alito understands that 
a Supreme Court justice should apply the law without regard to his 
personal views. I am confident that Judge Alito will bring this 
approach to the Court.
  Mr. President, there is no question that confirmation hearings can be 
long, stressful, and exhausting--not only for the nominees but for 
their families and friends as well. But in earlier days, a nominee with 
Samuel Alito's intellect, qualifications, and integrity would have been 
confirmed with overwhelming support. Indeed, the other side has not 
publicly ruled out the possibility of an attempted filibuster. I fear 
that this precedent will have a chilling effect--keeping our best and 
brightest from entering public service.
  The responsibility of the United States Senate to give advice and 
consent to a Supreme Court nominee is among the most significant given 
to us. It is vital to our Government's constitutional structure that 
the Senate discharge its duty by giving a Supreme Court nominee an up 
or down vote. And each Senator has ample resources upon which to make 
such a decision here.
  Judge Alito has a judicial record far surpassing that which has 
customarily been available to us when considering a nominee for the 
highest court in the land. He also has answered more questions during 
the course of his hearing than any Supreme Court nominee in recent 
memory. If any question existed about Samuel Alito's integrity, 
judicial temperament, or qualifications for the Supreme Court, it was 
put to rest before the Judiciary Committee. I ask that my fellow 
Senators therefore vote to confirm Samuel Alito as Associate Justice of 
the United States Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. DeMINT. Mr. President, on January 4, 2005, I was privileged to 
take the oath of office as a U.S. Senator. I raised my right hand and, 
along with my colleagues, Republican and Democrat, pledged to support 
and defend the Constitution of the United States.
  Now, as this distinguished body considers the nomination of Judge 
Samuel Alito, I am reminded again of what that obligation means. The 
legal experts have had their say, so today I wish to speak not as a 
legal scholar but as a commonsense American citizen.
  When our Founding Fathers framed our Constitution, they gave us an 
incredible gift: a democracy with checks and balances. We will always 
be indebted to those visionary leaders who understood that we would 
need a constant, fixed star by which to navigate the unpredictable and 
changing seas that we would encounter as a nation.
  Today, over 200 years later, the wisdom of our Founders is clear as 
our Constitution continues to serve as a protector of liberty and 
individual freedom. But as this confirmation process continues to 
unfold, I fear that we have strayed far from where the Founders 
intended us to be.
  I am afraid we have done a grave disservice not only to Judge Alito 
but to other qualified public servants who will certainly think twice 
before subjecting themselves to the dehumanizing process this has 
become. As I watched Judge Alito's hearings before the Judiciary 
Committee, I was struck by the harsh attacks some leveled against him. 
I was proud of my fellow Senator from South Carolina, Mr. Lindsey 
Graham, who expressed the outrage of the American people and apologized 
to Judge Alito and his family for the behavior of those on the 
committee, who seemed more intent on slandering him than fairly 
examining his long, distinguished legal career.
  Sadly, partisanship prevailed, and Democrats chose to vote in 
lockstep against this committed public servant. Every Democrat on the 
Judiciary Committee voted against this well-qualified judge.
  Now, as this nomination comes before the full Senate, the unfair 
rhetoric continues. I find it sad that yesterday my colleague from 
Massachusetts, Senator Kerry, took to the floor of this Chamber to 
insinuate that he could, as he said, ``almost imagine Karl Rove right 
now whispering to Judge Alito, `just say that you have an open mind, 
say whatever it takes.''' This accusation is insulting not only to 
Judge Alito--a man who, by all reports, is a fair and honest public 
servant--but to the intelligence of every American who shares Judge 
Alito's understanding that the proper role of a judge is to interpret 
the law, not make it.
  These types of slanderous accusations also fly in the face of diverse 
and numerous independent groups that have stepped forward to defend 
Judge Alito's character and qualifications. Many of his former 
colleagues, including several judges who have served with him, 
testified under oath that he is fair and independent.
  The American Bar Association, hardly known as a bastion of the 
rightwing, unanimously agreed to give Judge Alito their highest ranking 
of ``well qualified'' for his ``integrity, professional competence, and 
judicial temperament.''
  A bipartisan group of 51 former Judge Alito clerks wrote that the 
judge was ``guided by his profound respect for the Constitution and the 
limited role of the judicial branch,'' that he ``applied precedent 
faithfully and fairly.'' Where Congress had spoken, ``he gave the 
statute its commonsense reading,'' avoiding both ``rigid 
interpretations that undermined the statute's clear purpose,'' and 
attempts to ``distort the statute's plain language to advance policy 
goals not adopted by Congress.''
  Their conclusion:

       In short, the only result that Judge Alito ever tried to 
     reach was the result dictated by the applicable law and the 
     relevant facts.

  Mr. President, I ask you, under our Constitution, what more could 
anyone--any Republican or Democrat--ask of a judge?
  Judge Alito's hearings did serve a useful purpose. We now see a new 
litmus test being used by the Democrats as their standard for nominees. 
They have decided that the judiciary should be used to advance their 
own liberal policies. They are looking for a court that will act as a 
superlegislature, enabling them to reform laws in a way that Americans 
have rejected at the polls through the democratic process.
  The Democrats lecture us that we must restore constitutional checks 
on the expansion of Presidential power, while in the same breath 
assigning to the judiciary a constitutional prerogative reserved solely 
for Congress. I am having a hard time reconciling these two ideas, and 
I suspect the American people are, too.
  True to their strategy in recent years, the Democrats will say 
anything but do nothing except block what should be done.
  Theirs is the philosophy of judicial activism that has led to 
decisions to ban the Pledge of Allegiance in our schools and allow 
local governments to take an American's home just to increase tax 
revenue. Increasingly, judges have legislated precedents that have 
little basis in written statute or the Constitution but instead are 
based on their own personal opinions.
  This point was vividly made when Senator Kohl called for ``an 
expansive and imaginative'' interpretation of the Constitution, and 
further stated that the approach of a judge ``just applying the law, is 
very often inadequate to ensure social progress [and] right historic 
wrongs. . . .''
  Judge Alito eloquently addressed this flawed argument when he stated 
that while previous court decisions are deserving of our respect, if a 
decision is not supported by the text of the Constitution and the laws 
passed by Congress, then it should be overturned.
  Furthermore, he correctly pointed out that it was exactly this 
process, not an ``imaginative interpretation,'' that capably righted 
historic wrongs in the landmark civil rights case Brown v. Board of 
Education. To quote Judge Alito:

       When Brown was finally decided, that was not an instance of 
     the court changing the meaning of the equal protection 
     clause; it was an instance of a court writing an incorrect 
     interpretation that had prevailed for a long period of time.

  It is clear that we are facing the grave danger of the slippery slope 
in which bad precedent--by which I mean precedent not clearly derived 
from the Constitution or a law passed by Congress--builds upon bad 
precedent. Before you know it, the original meaning

[[Page S199]]

of the law or phrase in question is lost to history.
  The Democrats are simply on the wrong side of this important debate. 
The Constitution is not a list of suggestions. It is the constant fixed 
star that should guide every action we take.
  The issue before us today reaches far beyond the confirmation of 
Judge Alito. He has more judicial experience than any Supreme Court 
nominee in the last 75 years. There is no question that he is eminently 
qualified to sit on the Nation's highest Court.
  Today we are debating which of these two diametrically opposed 
philosophies will prevail in the confirmation of future judges--the 
philosophy in which unelected judges create new law or the philosophy 
that returns a runaway judiciary to acting within the bounds of the 
checks and balances established by the Constitution.
  In my travels in South Carolina, time and again, South Carolinians 
have asked me to fight for judges who will place the rule of law above 
their personal opinions. I support Judge Alito because he has shown 
that he will do just that. The consistent winner in his court has not 
been a person of business, a branch of Government, or political 
ideology. It has been the Constitution and our democracy.
  When the speeches are done and the vote is called, I hope there will 
be those on the other side of the aisle who will put aside partisan 
politics. I pray that we can join together in affirming the rule of law 
by voting yes to confirm Judge Samuel Alito as the next Associate 
Justice of the Supreme Court of the United States. The American people 
deserve no less.
  Mr. President, 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. SARBANES. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SARBANES. Mr. President, for the second time in 4 months, the 
Senate is being called upon to carry out one of its most important 
constitutional responsibilities, which is to give its advice and 
consent to a nominee to be a Justice on the Supreme Court of the United 
States. We have many serious responsibilities in this body, but I must 
say I think this one ranks at or near the very top of any of the 
decisions we will be called upon to make. That is because it falls 
uniquely to the nine Justices of the Supreme Court to expound and 
interpret the Constitution and the laws passed pursuant to it. The 
installation of two new Justices within a short time period has the 
potential to alter fundamentally the constitutional framework that 
protects the rights and liberties of the people of this Nation.
  Once again we see the argument being made that the President is 
entitled to his nominee, and that the Senate's role in the appointment 
process is limited to confirming the President's choice, barring some 
serious disqualification with the nominee. In effect, the presumption--
a very heavy presumption--it is argued, is with the nominee and his 
confirmation.
  In my view, this is not what the Constitution provides in requiring 
the Senate's advice and consent to a nominee to the Federal bench, 
which is, after all, a third, separate, independent branch of our 
national Government.
  From a historical perspective, it is worth noting that over the 
course of our history, roughly one in every four nominations to the 
Court has not been confirmed by the Senate. There have been 158 
nominations to the Supreme Court in the course of the history of the 
Republic, of which 114 were confirmed. Not all of the others were 
rejected. Some were rejected on votes taken in this body, some 
withdrew, and some were never acted upon. But the notion of this heavy 
presumption runs contrary to historical practice in the Senate. Almost 
one out of every four--actually a little more than one out of every 
four--nominations has not been confirmed by the Senate.
  As Michael Gerhardt, distinguished professor of constitutional law at 
the University of North Carolina Law School, testified recently before 
the Judiciary Committee:

       Neither the plain language of the Appointments Clause nor 
     the structure of the Constitution requires Senators to simply 
     defer to a President's Supreme Court nomination.

  Let me repeat that quote:

       Neither the plain language of the Appointments Clause nor 
     the structure of the Constitution requires Senators to simply 
     defer to a President's Supreme Court nomination.

  In my view, the Senate's duty to advise and consent on nominations is 
an integral part of the Constitution's system of checks and balances 
among our institutions of government. A nomination alone does not 
constitute an entitlement to hold the office.
  Furthermore, some have said when considering a nominee that we look 
only to their experience, their qualifications, their character. These 
are all obviously very important criteria. But, in my view, the 
nominee's judicial philosophy also must be given very serious 
consideration. We are facing a decision to place someone on the Supreme 
Court for life tenure. It could be 20, 30, or 35 years. Judge Alito is 
in his fifties, so we are talking about someone who is going to shape 
the interpretation of our Constitution over decades. You view that when 
you consider a nominee to the Supreme Court.
  The nominee's judicial philosophy should be given very serious 
consideration, as well put by former Chief Justice Rehnquist. Writing 
in 1959, long before he went on the Court, the late Chief Justice 
Rehnquist wrote that the Senate should follow the ``practice of 
thoroughly informing itself on the judicial philosophy of a Supreme 
Court nominee before voting to confirm him.''
  In considering Judge Alito's nomination to be an Associate Justice of 
the Supreme Court, in my view, the question of his judicial philosophy 
is not only a legitimate question but indeed an essential question. 
Inquiring into a nominee's judicial philosophy does not mean 
discovering how he or she would decide specific future cases.
  We are always being warned about that, and there is no effort here to 
predetermine that. Rather, it seeks to ascertain the nominee's 
fundamental perspectives on the Constitution, how it protects our 
individual liberties, ensures equal protection of the law, maintains 
the separation of powers and the checks and balances encompassed within 
our Constitution.
  Judge Alito has served on the U.S. Court of Appeals for the Third 
Circuit since 1990, during which time he has written hundreds of 
published opinions, and earlier he served 6 years in the 
U.S. Department of Justice. So there is much to consider in his record 
and many lessons to be drawn from it.

  Of the issues the Court is likely to face, perhaps none is more basic 
than the proper reach and exercise of executive power. We are 
particularly focused on this issue now, but it is an issue that has 
recurred constantly throughout our history as we seek to maintain the 
careful balance the Founding Fathers placed in the Constitution.
  They, in fact, established in the Constitution a complex system of 
democratic governance with three separate, equal branches of the 
Government. At the center of this system lies not any one of the three 
branches but rather a delicate balance amongst the three branches.
  Looking at Judge Alito's record, one sees a clear and constant 
deference to the executive, which, in my view, would significantly tip 
that delicate balance with respect to our constitutional system.
  The Constitution grants the legislative power expressly to Congress. 
It gives the President power to only approve or veto legislation. The 
veto power, of course, gives the President very significant authority 
with respect to legislation. But if a bill becomes the law, with or 
without the President's approval, it then becomes his or her 
responsibility as the Chief Executive to see that the law is carried 
out, to see that the law is properly executed.
  Judge Alito's record demonstrates he would seek to extend the 
President's power to allow for modification of law by the executive 
alone. As one example, while he was an official in the Department of 
Justice, he was instrumental in advancing a policy of so-called 
Presidential statements, to create a platform from which the President 
could seek to alter the underlying purpose of legislation passed by the 
Congress without the concurrence of the Congress.
  Such a deference to executive power, I think, is of deep concern, 
especially

[[Page S200]]

as we see on occasion now when Presidents, rather than following 
constitutional process by seeking legislative change through the 
Congress, instead refuse to carry out statutes that the Executive finds 
not to his liking.
  Furthermore, under our constitutional system, the courts are the 
ultimate guarantors of individuals' rights and the defenders of our 
liberties. On this issue, too, Judge Alito has been quite clear and 
consistent.
  Professor Goodwin Liu of Boalt Hall School of Law at the University 
of California at Berkeley summed up Judge Alito's work in his testimony 
to the Judiciary Committee:

       Throughout his career, with few exceptions, Judge Alito has 
     sided with the police, prosecutors, immigration officials, 
     and other government agents while taking a minimalist 
     approach to recognizing official error and abuse.

  In an editorial on January 12, the New York Times made the same point 
in somewhat different terms:

       [Judge Alito] time and again, as a lawyer and a judge, . . 
     . has taken the side of the big corporations against the 
     `little guy,' supported employers against employees, and 
     routinely rejected the claims of women, racial minorities and 
     the disabled.

  In a memorandum that he submitted when applying for a political 
position in the Justice Department in 1985, Judge Alito made a series 
of very sweeping statements about his understanding of the 
Constitution. He wrote that he was inspired to apply to law school by 
his opposition to certain decisions of the Warren Court--the Court 
headed by Chief Justice Earl Warren--decisions which are now considered 
bedrock provisions of constitutional law, decisions involving criminal 
procedure, the Establishment clause of the Constitution, and 
reapportionment.
  In that very same memo, he also took strong positions in opposition 
to Court decisions on affirmative action and the right to choose. When 
asked about the memo during his confirmation hearings, Judge Alito 
explained that the 1985 memo reflected his views of the Constitution at 
that time. He did not, however, explicitly disavow those views, and 
nothing in the hearing record demonstrates they have changed. In fact, 
his decisions as a judge on the Third Circuit reflect that these are 
the views he has continued to hold and to espouse.
  The Baltimore Sun concluded in an editorial that:

       Despite Judge Alito's periodic assurances of having an open 
     mind, the disturbing impression from the hearings is that on 
     critical issues such as abortion, civil rights and the limits 
     of executive power, he does not.

  That is a very perceptive observation with respect to Judge Alito's 
testimony before the Judiciary Committee.
  I am not persuaded that Judge Alito recognizes either the critically 
important role the Supreme Court must play in preserving the 
constitutional balance of power among the three branches of our 
Government, that delicate balance to which I made reference earlier 
which was so much a part of the thinking of that distinguished 
assemblage which gathered in Philadelphia in the summer of 1787 to 
frame our Constitution.
  I have this concern about his view of the role the Court must play in 
preserving the constitutional balance of power among the three branches 
of Government and whether he recognizes the role of the Court as the 
ultimate guarantor of every individual's constitutional rights and 
liberties.
  For the ordinary citizens all across our country, the rulings of the 
Supreme Court can be of immense importance in terms of providing for 
their rights and liberties.
  Because I am not persuaded in this regard about the appropriateness 
of Judge Alito's nomination, when the time comes to vote, I will vote 
against his nomination to become an Associate Justice on the Supreme 
Court of the United States.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INHOFE. 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. INHOFE. Mr. President, I have just learned that two of our 
distinguished Senators, both from Massachusetts, have made the 
statement that they are trying to drum up support for a filibuster. 
This is not going to happen. I know that people get desperate. They get 
desperate because they are afraid something might happen to their 
liberal agenda. But the Constitution is very clear.
  We have discussed this, we have debated this, and there is not going 
to be a problem there. But I think it is worth bringing to the 
attention of the American people that this is actually taking place 
right now. Nowhere did our Founding Fathers say that to confirm a 
judge, you had to have a supermajority, and I do not believe this is 
going to happen.
  Let me share a couple thoughts with you. First of all, I am not a 
lawyer. I am not a member of the Judiciary Committee. In a way, that 
puts me in a position, perhaps, that is a little better than a lot of 
my colleagues who are. In fact, most of the people who have spoken are 
members of the Judiciary Committee. But, by now, we have heard so much 
about Judge Samuel Alito's resume, about the type of person he is. I 
would have to say, yes, he is guilty, he is guilty of being a strict 
constructionist, of being a strict interpreter of the Constitution, and 
he will rule according to settled law. I do not think anyone has any 
doubt in their mind that he would.
  The problem is that some of the Democrats have made it clear they are 
going to make this a partisan fight, now even talking about perhaps 
even a filibuster. They have a litmus test. They do not confirm any 
nominee of any President unless that nominee makes some type of a 
commitment and passes a litmus test for their far-left liberal agenda, 
whether that is gay marriage or whether it is abortion on demand or any 
of the rest of it. That is really what it is about. We do not talk 
about this. They kind of dance around this issue, but that is the real 
reason they do not like this guy, because he is not going to line up 
and give a litmus test to some liberal agenda.
  One of the things that bothers me about this is, this is all new. 
This did not happen in the past. I can remember when Judge Scalia was 
up for confirmation. People talk about Judges Scalia and Alito not just 
because their names sound similar, but their temperament is the same 
and their background is the same, their writings are the same--very 
similar. We went through a very long process with Judge Scalia during 
his confirmation, and he ended up being confirmed by a unanimous vote--
a unanimous vote.
  If you will remember, that is when William Rehnquist was taken from 
the Court and made the Chief Justice, which created the vacancy. A lot 
of people did not want to have someone who was a strict 
constructionist, but they realized he was qualified, and they realized 
he was appointed by a President who was a Republican, Ronald Reagan, 
and they went ahead and confirmed him. It was unanimous. Now this is 
something that is really changing now because there is no way in the 
world Judge Alito is going to be unanimously confirmed.
  Back in the Clinton administration, I remember so well when President 
Clinton nominated Judge Ginsburg and then Breyer. And keep in mind, we 
Republicans were not real excited about that. They did not have a very 
conservative background, and yet they were overwhelmingly confirmed.
  That is the change I see happening. It is not like it used to be. 
Ginsburg was 96 to 3. Breyer was 87 to 9. They were overwhelmingly 
confirmed.
  Not too long ago, just the other day, Jeff Sessions, who is our 
colleague from Alabama, made a statement. He said if we really get into 
this thing where we are looking at it philosophically, then you are 
going to have to remember--and the way he worded it was--``the knife 
cuts both ways.'' He said if this new standard is affirmed, then it 
will be more difficult for future Democrat Presidents to have their 
nominees confirmed. I agree with this. If a Democrat President comes up 
and makes a nomination, we would change, the same way they are changing 
during this. Maybe the litmus test would be discussed at that time.
  On the plane coming up here just a few minutes ago--we just landed, 
after this recess--my wife and I were talking about this, and I told 
her about the comments of Senator Sessions. I said:

[[Page S201]]

What I think I will do in my speech on the floor tonight on the 
confirmation of Judge Alito is make the statement that if they adhere 
to this litmus test, that if I am around--I do not think there is going 
to be a Democrat President, but if there is and I am still in the U.S. 
Senate, I am going to do the same thing. I am going to hold them to a 
litmus test. My wife said: No, don't do that. Don't stoop to that just 
because they are doing it. So I am not doing it. I learned a long time 
ago that--my wife and I have been married 46 years--I do what I 
am told.

  So anyway, this is something that is a change that we have observed, 
and I think it warrants our consideration.
  Now, the Democrats are also making outrageous accusations, trying to 
justify partisan votes. I believe in my heart that they do not believe 
these accusations they are making, but what they do want to do is have 
some excuse so they can go home and say, ``I voted against this guy,'' 
but not tell them the real reasons. Let's go over some of these 
accusations that are made.
  I start out with Senator Kennedy, who inaccurately stated that Alito 
opposes the one-person, one-vote principle. I will go ahead and give 
the quote. Senator Kennedy, on January 9 said:

       It expresses outright hostility to the basic principle of 
     one person, one vote, affirmed by the Supreme Court as 
     essential to ensuring that all Americans have a voice in 
     their government.

  Now, the fact is, Judge Alito has stated that the principle of one 
person, one vote is a bedrock principle of American constitutional law. 
He has never taken issue with that principle. And to quote him, he 
said:

       [T]he principle of one person, one vote is a fundamental 
     part of our constitutional law. . . . [and] I do not see any 
     reason why it should be reexamined. And I do not know that 
     anybody is asking for that to be done. . . . I think that is 
     [a] very well settled [principle] now in the constitutional 
     law of our country.

  I would adhere to that. Well, he could not be more emphatic than 
that. Again, Senator Kennedy--what he said is not true. I know he wants 
it to be true. He wishes it were true, but it is not.
  Then along came Senator Schumer from New York. In attacking Judge 
Alito's jurisprudence, Senator Schumer tried to paint Alito as someone 
who is ``too conservative.'' His statement was:

       Judge Alito, in case after case, you give the impression of 
     applying careful legal reasoning, but, too many times, you 
     happen to reach the most conservative result.

  Well, the fact is, Senator Schumer's characterization of Alito 
overlooks the bulk of Alito's record of nearly 5,000 votes as a court 
of appeals judge reached on the law and the facts, which are 
inconsistent with Senator Schumer's picture of Alito.
  Now, if you question this, the statement that was made by Senator 
Schumer, if you believe there might be some merit to it, let's stop. 
The easiest way to refute that is to read an editorial that was in the 
Washington Post. There is not a person who belongs to this body or 
anyone within earshot of what I am saying right now who is going to say 
the Washington Post is a conservative publication or a Republican 
publication. It is not. Yet what they said about Alito was:

       [J]udge Alito's dissents are not the work of an unblinking 
     ideologue. . . .[T]hey are the work of a serious and 
     scholarly judge whose arguments deserve respect--a respect 
     evident among his colleagues even when their positions 
     differ.

  And that is not the Washington Times; this is the Washington Post 
making this statement. So I would say, like Senator Kennedy, that 
Senator Schumer, what he said is just flat not true. I am sure he 
wishes it were true, but it is not.
  Here is another statement made by Senator Kennedy. He is trying to 
make a position that Judge Alito wants, through the Presidential 
signing statements--Presidential signing statements are statements that 
are made by the President when a new law is passed--to say: This is my 
interpretation of it. Well, he likes to imply that Alito supports 
giving the President absolute power. Senator Kennedy said:

       You argued that the Attorney General should have the 
     absolute immunity, even for actions that he knows to be 
     unlawful or unconstitutional; suggested that the court should 
     give a President's Signing Statement great deference in 
     determining the meaning and the intent of the law; and 
     argued, as a matter of your own political and judicial 
     philosophy, for an almost all-powerful presidency.

  Well, the fact is, the President's bill-signing statement is a device 
developed long before Alito came along.
  They try to imply that he had something to do with this. This has 
been embraced by Democratic and Republican Presidents for years and 
years, all the way back to Presidents Monroe and Jackson. The 
suggestion that Alito somehow invented this notion is patently absurd. 
So, again, Senator Kennedy is wrong. His statement is not true.
  He further cites false and inaccurate Knight Ridder analysis. This is 
rather interesting. Senator Kennedy made more outrageous statements 
this time about Alito's view of government searches. Senator Kennedy, 
on January 10:

       Mr. Chairman, at this point, I'd like to include in the 
     appropriate place in the Record the Knight Ridder studies 
     that concluded that Judge Alito never found a government 
     search unconstitutional.

  Knight Ridder's writers, Stephen Henderson and Howard Mintz, have 
repeatedly been accused of biased reporting on Alito's record. The 
National Journal's Stuart Taylor wrote:

       I focus here not . . . on such egregious factual errors as 
     the assertion on C-SPAN, by Stephen Henderson of Knight 
     Ridder newspapers, that in a study of Alito's more than 300 
     judicial opinions, ``we didn't find a single case in which 
     Judge Alito sided with African-Americans . . . [who were] 
     alleging racial bias.

  He went on to say:

       What is remarkable is that any reporter could have 
     overlooked [case after case after case] in which Alito has 
     sided with African-Americans alleging racial bias.

  In a few minutes, I am going to be specific on some of these, but 
there would be too many to cite for the amount of time we have. Senator 
Kennedy's statements are inaccurate and untrue. I know he wishes they 
were true, but they are not. These guys are grasping at straws.
  Then Senator Biden came in with inaccurate statements on Presidential 
treatment toward the State. Senator Biden charged Alito with ruling in 
favor of the State against the individual. This is what he said:

       But as I've tried diligently to look at your record, you 
     seem to come down more often and give the benefit of the 
     doubt to the outfit against whom discrimination is being 
     alleged. You seem to lean--in close cases, you lean to the 
     state versus the individual.

  The facts belie that. The fact is, Alito's record shows he 
consistently approaches each case based on the law and the facts. He 
rules for plaintiffs and for defendants when the law supports him. He 
rules for the corporation or the State when the law supports their 
position. This is the appropriate approach for a Federal judge. It is 
clear that Alito understands the importance of the independence of the 
judiciary and has a healthy respect for its role as the bullwark 
against executive overreaching.
  Alito often cites Alexander Hamilton. I think Alito has quoted 
Alexander Hamilton more than anyone else, at least it seems that way to 
me. He said:

       [A]s Alexander Hamilton aptly put it in Federalist 78, the 
     courts should carry out [the judicial power] with ``firmness 
     and independence.'' ``Without this,'' he observed, ``all the 
     reservations of particular rights or privileges [in the 
     Constitution] would amount to nothing.''

  Alito continued:

       When a constitutional or statutory violation [by other 
     governmental institutions] is proven, a court should not 
     hesitate to impose a strong and lawful remedy if that is what 
     is needed to provide full redress. Some of the finest 
     chapters in the history of the Federal Courts have been 
     written when federal judges, despite resistance, have 
     steadfastly enforced remedies for deeply rooted 
     constitutional violations.

  During his 15 years on the bench, Judge Alito has repeatedly ruled to 
restrain executive authority, reflecting his understanding of the role 
of the judiciary to protect the constitutional rights, separation of 
powers, and so forth. What Senator Biden said is not true. I know he 
wishes it were.
  Next we had Senator Feinstein. She was approaching something to which 
I am particularly sensitive. I chair the committee called Environment 
and Public Works. The Presiding Officer is a member of that committee. 
We deal

[[Page S202]]

with environmental issues. Senator Feinstein mischaracterized Alito's 
environmental record.
  Let me say this for anyone who might be listening: If there is 
nothing better going on right now, these Senators I am very critical 
of, I love them dearly. That is possible. It doesn't happen in the 
other body, seeing a Senator here who also served in the House at the 
time that I was there. We can love our friends, our Senators, with whom 
we serve, and we can detest their philosophy and their agenda. I 
learned this the hard way.
  I will share this story. Back in 1994, I came from the House to the 
Senate. And operating as I had always operated in the House, there 
happened to be a Senator on the floor named Wendell Ford from Kentucky. 
He was known as the junkyard dog of the Senate. I disagreed with him. I 
came down here. That was the opening day, the first day I was elected 
and confirmed in a special election. I went down and I took him on. It 
was mean. It was wicked. And we are yelling and screaming. Afterwards I 
felt pretty good. I went to go back to the Russell Building, went down 
the elevator and ran into none other than Senator Bob Byrd.

  Bob Byrd said: Ride along with me. He said: Young man, I appreciate 
your spunk.
  I liked that because that happened to be November 17, 1994. It was my 
60th birthday.
  He said: Young man, I appreciate your spunk, but this isn't the way 
we do it in the Senate. He explained to me the history of the Senate, 
how it must have been divinely inspired, so that there is a genuine 
love for your fellow Senators, something that doesn't exist in the 
other body. I don't know why I said all that.
  But Senator Feinstein accused Alito of ruling against the Clean Water 
Act. She said:

       In Public Interest Research Group of New Jersey v. 
     Magnesium Electron, a citizens environmental group sued a 
     chemical manufacturer under the Clean Water Act for polluting 
     a river used by members of the group . . . your decision, as 
     I understand it, was based upon your conclusion that the 
     environmental group did not have standing to sue under the 
     Clean Water Act because even though members of the 
     environmental group had stopped using the river due to the 
     pollution, they did not prove any injury to the environment. 
     The decision, if broadly applied, would have gutted the 
     Citizen Lawsuit Provision of the Clean Water Act . . . so you 
     see where the concern comes with respect to overthrowing 
     something on a technicality that can have enormous 
     implications.

  That is what Senator Feinstein said. Keep in mind what Alito's vote 
was. He did not write the opinion. He voted in this case. It was a 
straightforward application of the Supreme Court's controlling 
precedent in Lujan v. Defenders of Wildlife. Most of us remember Manuel 
Lujan who later became Secretary of Interior. This decision was a 1992 
decision in which the Supreme Court required that in order to file 
suit, a plaintiff must allege the actual injury, not just have this 
great concern over activities such as pollution.
  What we are saying here is that Senator Feinstein should have read 
this. He was interpreting a law he may have agreed on or may not have, 
but this was sent down. This was settled law, established by the U.S. 
Supreme Court. Alito's vote, which he didn't write, was one based in 
law. I think what Senator Feinstein said was not true. It needs to be 
answered. That is the answer.
  Another one that Senator Kennedy researched. Senator Kennedy charged 
that Alito rarely votes for the little guy. Senator Kennedy charged 
Alito with false accusations saying that he was biased toward the rich 
and powerful. This is Senator Kennedy talking about the rich and 
powerful. He was biased toward the rich and powerful and against the 
little man. I will use the quote that he used. He said:

       And on the cases he decided, in case after case after case, 
     we see legal contortions and inconsistent reasoning to bend 
     over backwards to help the powerful.

  This is on January 12, stated by Senator Kennedy. Time after time 
during his hearings, Alito and other Senators have repeated instances 
in which Alito did rule for the little guy. In cases involving criminal 
law, employment and labor law, immigration law, and others, Judge Alito 
has consistently ruled for plaintiffs or defendants as the facts and 
the law demanded.
  I will give some examples. In Zubi v. AT&T Corporation, in 2000, 
Alito dissented from a case foreclosing a plaintiff's opportunity to 
advance his claim of race discrimination. Alito would have applied a 
longer statute of limitations to let the claim go forward. That is just 
the opposite of what was asserted by Senator Kennedy.
  In another case, Caruso v. Blockbuster-Sony Music Entertainment 
Center at the Waterfront, writing for the unanimous panel, Judge Alito 
reversed in part the district court's grant of summary judgment for 
Blockbuster-Sony ``E-Centre''--this is a big corporation--and against a 
disabled patron. The plaintiff was William Caruso. He was a disabled 
veteran of Vietnam who used a wheelchair, brought suit against E-Centre 
under the Americans with Disabilities Act claiming that the wheelchair 
areas in the pavilion do not provide wheelchair users with lines of 
sight over standing spectators. The lawn area is not wheelchair 
accessible.
  Judge Alito explained that even though the Department of Justice's 
standards do not require that wheelchair users must be able to see the 
stage when other patrons stand, the E-Centre must make assembly areas 
like the lawn accessible to people in wheelchairs. He concluded:

       We reject the argument that assembly areas without fixed 
     seating need not provide access to people in wheelchairs.

  Again, Alito's stellar record proves that Senator Kennedy's statement 
is false.
  The next one I will mention was Senator Kennedy's statement on racial 
discrimination. Senator Kennedy wrongly stated that Alito had never 
written an opinion related to race discrimination, implying that he 
could be a racist. Senator Kennedy said:

       Judge Alito has not written one single opinion on the 
     merits in favor of a person of color alleging race 
     discrimination on the job: in 15 years on the bench, not one.

  He said that on January 9. The facts are that Alito has repeatedly 
ruled in favor of minorities making allegations of racial 
discrimination in employment. One such case is Smith v. Davis, 2001, in 
which Alito voted to reverse a grant of summary judgment against an 
African-American man's claim that he had been discriminated against in 
employment on the basis of race. Another one is Zubi v. Johnson & 
Johnson Medical, Inc. Alito voted to reverse a district court's grant 
of summary judgment against the plaintiff.
  Judge Alito and his colleagues concluded that the female African-
American plaintiff had introduced sufficient evidence to question 
whether the employer had, in fact, given her lower quality assignments 
due to her ``objective'' scores on certain evaluations, as the employer 
maintained. There are many more cases.
  I ask unanimous consent to print in the Record the other cases.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       In Collins v. Sload (2004), Alito joined a per curiam 
     opinion reversing the District Court's dismissal of a Pro Se 
     Title VII complaint alleging racial discrimination. The 
     District Court had dismissed the complaint for failure to 
     exhaust administrative remedies. The panel concluded that the 
     question could not be resolved on the record and remanded for 
     further proceedings.
       In Pope v. AT&T (2001), Alito joined a per curiam opinion 
     reversing the District Court's grant of summary judgment 
     against an African American man alleging race discrimination 
     under Section 1981. The panel concluded that the plaintiff 
     had submitted significant evidence that AT&T's stated reason 
     was pretextual, and remanded for trial.
  Mr. INHOFE. The facts, as we have demonstrated, speak for themselves. 
Samuel Alito is not a racist, not a rightwing extremist who believes in 
an executive branch with sole authority and rules only in favor of the 
powerful but a thoughtful, mainstream, fair, experienced interpreter of 
the Constitution. He is a good guy. I have heard many people say that 
he is probably one of the most qualified persons ever to be nominated 
for this High Court. Those liberal Senators who are desperately 
grasping at any straw to find justification to vote against Judge 
Alito, they have their litmus test. In order to be confirmed to the 
U.S. Supreme Court, a judge must embrace all of the leftwing's 
extremist agenda, an agenda that is so unpopular in America that the 
American people reject it, and it must be legislated from the bench. 
That is the problem they have.
  When my service in the Senate is over, one of the greatest honors I 
will have had, for the sake of America and

[[Page S203]]

for the sake of my 20 kids and grandkids, is to vote to confirm Samuel 
Alito to the U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I rise to voice my strong support for the 
nomination of Judge Samuel Alito to be Associate Justice of the Supreme 
Court. Judge Alito has demonstrated and dedicated his life to public 
service, from serving in the Army Reserve to working as a prosecutor 
for the Federal Government.
  For the past 15 years, Judge Alito has been a model jurist on the 
court of appeals, and his record reflects a deference to the political 
branches of our Government that is all too often lacking among some on 
the bench.
  The guiding question for each of us in determining a nominee's 
fitness for this post should be whether the person is dedicated to 
applying the Constitution to every case considered by the Court and not 
adding to or changing the Constitution's text to suit his or her own 
personal policy preferences.
  Judge Alito has clearly shown that he will approach every case with 
an open mind and apply the law as it is, rather than what he thinks it 
should be.
  As Judge Alito has said, a judge cannot have an agenda and cannot 
have a preferred outcome in any particular case. I am convinced that he 
will not be an activist on the court and will conscientiously exercise 
restraint in his role as a justice.
  Judge Alito has risen to his station in life from relatively humble 
beginnings. As he stated in his introductory remarks before the 
Judiciary Committee, his parents instilled in him a love of learning 
and, through their example, the importance of persistence and hard 
work.
  I had the opportunity to meet with Judge Alito after he was nominated 
last fall. During this meeting, we discussed the role of the judiciary 
and some of the broad principles set forth in our Constitution. I was 
impressed by Judge Alito's quiet answers and thoughtful demeanor during 
that meeting.
  Judge Alito is the kind of person who would fit in very well with my 
constituents in South Dakota. He is the kind of guy you would see at 
the local hardware store or at a school activity. Judge Alito would 
meet what I call the ``Murdo'' test. Murdo is my hometown. About 600 
people live there. They are pretty plain spoken people. They use common 
sense to solve problems. They believe in the rule of law. And they have 
an inherent sense of fairness when it comes to making sure that the law 
applies fairly to all. If you listen to anyone who has served on the 
court with or worked with Judge Alito, those are the attributes they 
ascribe to him. He has tremendous respect from those who know him best.
  Unassuming and unpretentious, Judge Alito is the kind of individual 
with whom I believe the people in my hometown and in my State would 
feel comfortable. And not just South Dakotans but Americans everywhere, 
at least the silent majority of Americans. The character attacks on 
Judge Alito by the loud left have backfired because the majority of the 
American people have figured it out. They don't need the Senator from 
Massachusetts or the Senator from New York to tell them what they need 
to know. Judge Alito told them everything they needed to know in the 
hearings, and the more the political left attacks and delays and 
demonstrates, the more partisan they appear to the American public and 
the more their true agenda is exposed.
  Judge Alito's quiet and thoughtful demeanor was clearly on display 
during his confirmation hearings. During these hearings, Judge Alito 
was extremely forthcoming and candid in his responses to questions, all 
650 questions. For over 18 hours he responded thoroughly and 
thoughtfully to the full spectrum of questions and questioners, both 
those who were sincere and those who were sarcastic.
  All of these things have convinced me that Judge Alito has the 
ability and temperament necessary to be an outstanding justice on the 
Supreme Court.
  It is unfortunate that some on the other side have decided to make 
the nomination process about politics rather than about qualifications. 
Sadly, it seems the other side is engaging in an effort to ensure a 
large opposition vote to score political points, rather than giving a 
well-qualified nominee like Judge Alito the strong vote he deserves.
  When Justice Ginsburg, a former general counsel for the American 
Civil Liberties Union, was nominated by President Clinton, she received 
nearly unanimous support--96 votes--despite the fact that many 
Republican Senators strongly disagreed with her views. She replaced the 
much more conservative Judge White. Yet no one was complaining about 
her shifting the Court dramatically to the left. Senators voted for her 
based on her qualifications.
  When Justice Breyer, a former staffer for Senator Kennedy, was 
nominated by President Clinton, he received 87 votes, and again many of 
those who voted in his favor strongly disagreed with his views.
  Justice Ginsburg and Justice Breyer received strong support because 
of their qualifications and because Senators put aside politics in the 
interest of a dignified confirmation process.
  Judge Alito is also well qualified. He unanimously received the 
highest rating from the American Bar Association, the benchmark that 
used to be considered the gold standard for evaluating nominees to the 
Federal Courts. Judge Alito is clearly a man of high integrity and 
intellect. No one disputes that. He deserves a large vote in the U.S. 
Senate, just as Justice Breyer and Justice Ginsburg received. I call 
upon my colleagues on the other side of the aisle to summon their 
better angels, put aside their desire to score political points, and 
instead work to ensure a dignified confirmation process.
  The Supreme Court gets the last word on some of the most challenging 
and divisive issues of our day. That is why those on the Court must be 
dedicated to the rule of law and the principle of judicial restraint. 
Throughout his career in public service, Judge Alito has shown the 
qualifications and temperament essential to serving on the Supreme 
Court.
  I ran for the United States Senate for the opportunity to cast votes 
like the one I will cast on this nomination. When I asked South 
Dakotans for their vote, I assured them that I would do my best to see 
that the courts are populated with smart, qualified, and principled 
people who understand that the appropriate role of the judiciary in our 
Constitutional Republic is not to make laws but to apply them fairly to 
all.
  Judge Alito is eminently fit and qualified to serve as an associate 
justice on the Supreme Court. That is why I will vote in favor of his 
confirmation, and I urge my colleagues to do the same.
  I yield to the floor.
  The PRESIDING OFFICER. The Senator from Alabama is recognized.
  Mr. SESSIONS. Mr. President, I thank our colleague, Senator Thune, 
for his excellent remarks. I know he cares deeply about the judiciary. 
I know that he talked about it a lot in his campaign. He is such a 
talented new Member of the Senate. There are many reasons he is here 
today, and I suggest that one of the reasons is because the individual 
he ran against--the former Democratic leader, Tom Daschle--led an 
obstruction of highly qualified judicial nominees. We are seeing that 
again today.
  Now this Democratic leader, Mr. Reid, has urged his colleagues to 
vote ``no'' in the party conference. Some have tried to say that is not 
so. But when the Democratic leader goes before his colleagues and urges 
them to vote ``no,'' it has an impact. It sets this as a political vote 
rather than allowing and encouraging each individual Member to vote 
their own conscience. It is going to reduce the number of votes that 
Judge Alito will receive because people try to follow their leaders 
when they can. But it is not right.
  This is a fabulous nomination. Judge Sam Alito is one of the finest 
nominees to ever come down the pike. He and Chief Justice Roberts were 
fabulous as witnesses, with incredible academic backgrounds and 
experience and a proven record of support from Democrats, liberals and 
conservatives, and a professional record and resume in both cases that 
are superb. But they do have a little difference of opinion, 
apparently, from some in the Senate. Senator Thune made reference to 
it. Judge Alito and Judge Roberts believe it is

[[Page S204]]

their duty to follow the law. It is their responsibility as judges to 
be neutral umpires, to not allow their personal, political, social, or 
religious views to impact their interpretation of the laws before them.
  That is what a judge is all about in the American legal system, for 
heaven's sake. What kind of threat is that when you have a judge who 
believes in that philosophy?
  Judge Alito's whole judicial approach to life and to his work is that 
a judge should put aside personal views and be a neutral, fair umpire, 
deciding the discrete case before the court, based on a fair and honest 
finding of the facts and an honest application of the law to those 
facts. That is what a judge is supposed to do.
  We have Members on the other side insisting that a judge's ideology 
ought to play a part in the judge's decisionmaking process. That goes 
squarely in the face of what our American legal system is all about. 
Why do we give our judges, let me ask, a lifetime appointment to the 
Federal bench? Why? Because we wanted them to be free from pressure and 
do their duty day after day, fairly and honestly finding the facts 
truly in the case and applying the law to those facts--not as Judge 
Alito said, to engage in implementing ``grand theories.'' I thought 
that was a good phrase. That is the kind of judge President Bush 
promised, and that is the kind of judge Senator Thune promised to 
support when he ran. That is the kind of judge I have believed in, in 
my career. I practiced for 15 years, for a long time, before Federal 
judges. I respect them. We had some magnificent Federal judges that I 
practiced before. I lost some cases and I won some cases, and every 
good lawyer does. But we all know one thing--that as long as that judge 
does his best, day after day, to honestly find the facts and apply the 
law, we can live with that. Your clients can live with that, too, even 
though they may be disappointed about the case. If we feel the judge is 
going to redefine marriage because he didn't like the way the State of 
Massachusetts defined marriage, and he is just going to say the 
Constitution somehow made reference to marriage, and a marriage now is 
no longer between just a man and a woman, but between two men or two 
women--this is going to be somehow found in the Constitution? And he is 
going to impose this on the people? What kind of power is that? Would 
five unelected judges, with lifetime appointments, who are utterly 
unaccountable to the American people, say that the phrase ``under God'' 
in the Pledge of Allegiance is not constitutional? Next, I suppose they 
will come in here with a chisel and right up there on the wall in this 
Chamber they will want to take out those big letters saying ``In God We 
Trust.'' I suppose that will be the next thing we have.
  Well, that is not called for in the Constitution. The Constitution 
simply says Congress shall make no law establishing a religion or 
prohibiting the free exercise of your religion. So this is a recent 
phenomenon to see such a hostile approach to public expressions of 
religious faith in America. That is not our heritage, not the way the 
people understood the Constitution; that is not what the Constitution 
says.
  But our colleagues don't like that. Is almost amusing, as we have 
gone through the committee process, to see them grasp in desperation to 
find something to complain about with Judge Alito. None of them could 
agree on what they didn't like. They bounced all over the place mostly. 
It sounded like they didn't like President Bush. They were having 
grievances about Abu Ghraib prison, which President Bush had nothing to 
do with. It was not the policy of the administration or the Army, and 
the people who abused those prisons are serving jail time today.
  (Mr. ALLEN assumed the chair.)
  Mr. SESSIONS. Mr. President, they want to say this has something to 
do with that. They have been hankering for Harriet Miers, which is 
rather odd, I think. They have suggested somehow that some rightwing 
cabal caused President Bush to withdraw her nomination. She didn't have 
a lot of constitutional experience. I am not aware she has ever argued 
a case before the Supreme Court. Very few lawyers have, although Judge 
Alito has argued 12 cases before the U.S. Supreme Court. She has not 
served as a judge. He has served 15 years as a Federal appellate judge.
  At any rate, she is a wonderful person who has many fine qualities. I 
am not at all sure that she would be any more restrained or any more 
liberal in her interpretation of judicial decisions than Judge Alito. I 
don't know what her philosophy would be. But I do know this: They have 
complained steadfastly that Judge Alito somehow is a tool of President 
Bush to defend his national security policy and his war on terrorism 
and that Judge Alito is going to be a part of his efforts to arrogate 
powers to the executive branch.
  Who has been at President Bush's right arm for 5 years? It is Harriet 
Miers. She is the counsel to the President of the United States. She is 
his personal lawyer. She sits right by him. She has been involved in 
every one of these decisions about executive branch powers, National 
Security Agency wiretaps of al-Qaida telephone conversations. She has 
been part of all of that. You think they would have let her come 
through here? They say: Oh, we think she would be a fine nominee. What 
would they have done to her? Those in this Chamber who think she would 
have gotten a pass on those issues, raise your hand. And she knew that. 
That is why she withdrew herself. She wrote the President a letter and 
said: It has been insisted that if I come before the committee, I have 
to divulge my private conversations with you, the President of the 
United States, my advice to you on all these issues. It would violate 
attorney-client privilege. That is something I cannot do and will not 
do. I am in an untenable position. I am honored to serve you. I would 
like to continue to serve as your chief counsel, which she does today. 
But I ask you to withdraw my nomination.
  That is all that was about. Goodness. It indicates how desperate they 
have gotten to find complaints about this fine judge.
  By the way, Judge Alito has not been a part of any of this national 
security, Washington, inside-the-beltway stuff. Judge Alito has been 
sitting on a Federal bench in the Third Circuit--living in New Jersey--
outside Washington, DC. He has not had a single case I am aware of 
dealing with any of these national security or Presidential wartime 
powers issues. He comes at it as a skilled scholar, a person with a 
demonstrable record of fairness, and great intellectual capacity. I 
think when these cases come before him, as some may, he will decide 
them fairly. That is what everybody who knows him says.
  Another deal they keep talking about is the unitary executive. Have 
you heard that phrase? They say: Oh, he is terrible; he believes in a 
unitary executive. It is almost amusing. Senator Kennedy and others 
have used this phrase more than once: He believes in an all-powerful 
Executive. Now, you know no judge believes in an all-powerful 
Executive. You have to watch judges. They can strike down anything they 
want to. They are not going to give the President unlimited power. They 
are not going to give Congress unlimited power. But a good judge will 
follow the Constitution and will contain the executive if it goes too 
far and will contain the legislative branch if it goes too far. He or 
she will show personal constraint and not go too far as a member of the 
court. I think some need to remember that. Some have gone too far, in 
my opinion.
  This has not been about Judge Alito. It has been about an opportunity 
to attack President Bush. That is what everything seems to come down to 
here. That is why it is so political.
  They said he recommended, in defending a former Attorney General of 
the United States who had been sued personally for monetary damages, 
that they not defend the case on the basis that the Attorney General 
had absolute immunity from suit, but suggested he argue that he had a 
qualified immunity.
  The former Attorney General of the United States believed he had 
absolute immunity, and Judge Alito then, as a young lawyer in the 
appellate section of the Department of Justice, was obliged to make the 
argument, if it was defensible in any way, for absolute immunity, and 
he made it.
  That didn't mean he believed the Attorney General can never be sued. 
But I am going to tell you, the Presiding Officer has been a Governor 
of Virginia. People will sue for anything. If

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every Governor, if every Senator, if every attorney general can be 
hauled into court and be sued because they voted on some bill or did 
something and they have to pay out of pocket these judgments or lawyers 
to defend themselves, you can shut down the Government. We do have some 
cases where a Government official has absolute immunity and sometimes 
they have qualified immunity.
  I was Attorney General of Alabama. I had to defend the Governor and 
other officials in various lawsuits, some of them as bogus as $3 bills, 
but you have to go down there and defend it. Are you going to try the 
case for 6 months or, if he has immunity, do you assert the immunity 
and get the case dismissed in the beginning? You get the case 
dismissed. That is what any good attorney for the Department of Justice 
would do.
  He has never, in any way, supported an all-powerful Executive or an 
all-powerful executive branch that is ``unchecked by the other two 
branches of Government.'' Where did they come up with those kinds of 
ideas?

  This is what he said in a speech at law school about the case of ex 
parte Milligan: It expressed that ``the Constitution applies even in 
extreme emergency.'' The Constitution does apply in the case of extreme 
emergency. That is what Judge Alito wrote some time ago.
  He also said at the hearings:

       The Bill of Rights applies at all times, and it is 
     particularly important that we adhere to the Bill of Rights 
     in times of war and in times of national crisis.

  That is what he told us under oath in committee. He also said:

       No person in this court is above the law, and that includes 
     the President and that includes the Supreme Court. Everybody 
     has to follow the law, and that means the Constitution of the 
     United States, and it means the laws that are enacted under 
     the Constitution of the United States.

  He also said this:

       Neither the President nor anyone else, I think, can 
     authorize someone to . . . override a statute that is 
     constitutional. . . . The President has to follow the 
     Constitution and the laws, and it is up to Congress to 
     exercise its legislative power. . . . The President has to 
     comply with the fourth amendment, and the President has to 
     comply with the statutes that are passed.

  So it is clear that Judge Alito and his opponents are not talking 
about the same thing when they talk about the unitary executive theory.
  According to Judge Alito, the ``unitary executive theory'' is not a 
theory that supports ``inherent authority to wiretap American citizens 
without a warrant, to ignore congressional acts at will, or to take any 
other action he saw fit under his inherent powers.''
  Those items have to do with the scope of Executive power, which is an 
entirely different matter from this theory of a unitary executive. They 
have tried to take this theory of a unitary executive, which has been 
around a long time, and twist it to say it has something to do with 
whether the President has the power to wiretap you.
  Judge Alito clearly explained that the unitary executive theory has 
nothing to do with the scope of Executive power, the separation of 
powers doctrine, Presidential signing statements, or the 
constitutionality of independent agencies. As he stated during the 
hearings:

       The unitary executive doesn't have to do with the scope of 
     executive power . . . I don't see any connection between the 
     concept of a unitary Executive and the weight that should be 
     given to signing statements in interpreting statutes.

  That is so correct and so weird that it even has to be clarified. Do 
we have any lawyers in this body?
  He goes on to say:

       I don't think I've ever challenged the constitutionality of 
     independent agencies.

  Instead, this is what Judge Alito said about the unitary executive 
theory--this is what he said:

       [I]t is the concept that the President is the head of the 
     executive branch. The Constitution says that the President is 
     given the Executive power.

  Does anybody dispute that? I am quoting him.

       And the idea of the unitary Executive is that the President 
     should be able to control the executive branch, however big 
     it is or however small it is . . . It has to do with control 
     of whatever the executive is doing. It doesn't have to do 
     with the scope of Executive power. It does not have to do 
     with whether the Executive power that the President is given 
     includes a lot of unnamed powers or what is often called 
     inherent power.

  Isn't that a good statement? We have heard a lot of discussion for 
some time now about this problem of the President, and he is supposed 
to head the executive branch. We have all these agencies that act like 
independent nations. When the FBI and DEA get together and reach an 
agreement, they enter into memorandums of understanding, like a treaty. 
The agencies are both under the executive branch, under the President's 
authority, but they get so big for their britches that they think they 
have their own independence. There is a concern that the President is 
put in charge of the entire executive branch and is supposed to 
supervise all kinds of different federal agencies--the Immigration and 
Customs Enforcement Bureau, the Corps of Engineers, the Drug 
Enforcement Agency, the FBI, all of them. And then the Congress takes 
all the management of power and gives it to all the individual 
executive branch people so that the President can't even run the 
agencies, and then they blame him when things go wrong. That is the way 
we do things around here.
  I asked Charles Fried, who was a former Solicitor General of the 
United States--the person who argues cases on behalf of the United 
States before the U.S. Supreme Court--and had been a professor at 
Harvard Law School before that teaching judicial philosophy: Mr. Fried, 
you have been around a good while. You have heard this talk about the 
unitary executive. What is it? What does it mean to you?
  Boy, he just hit it right on. I was surprised. He even rebuked the 
members of the committee for misinterpreting the theory, he said this:

       I think what has been said about the unitary Executive in 
     these hearings is very misleading. The unitary Executive says 
     nothing about whether the President must obey the law. Of 
     course he must obey the law. It talks about the 
     President's power to control the executive branch.
       [It] is not an invention of the Reagan Justice Department, 
     it was propounded in the first administration of Franklin 
     Delano Roosevelt who objected to the powers of the 
     Comptroller General who tried to fire a Federal Trade 
     Commissioner, and who referred to himself [this Comptroller] 
     as the general manager of the executive branch. That is the 
     origin of the notion, the FDR administration.

  Some Comptroller General declared he was the general manager of the 
executive branch and Roosevelt didn't like it and he talked about that 
and said the executive branch is headed by the President. Here, 
America, the Government, is one. It cannot sue itself.
  Judge Edward Becker was aware of all these things. He is one of the 
most distinguished Federal appellate judges in America. He appeared at 
the committee with a group of his colleagues from the Third Circuit. 
They have served with Judge Alito, many of them for his full 15-year 
career--most of them at least 7 or more years--during his tenure on the 
Third Circuit Court of Appeals.
  For those who may not fully understand it, an appellate judge on the 
court of appeals handles the appeals from the trial courts where juries 
and witnesses testify. Everything that is said in those trials is 
written down. If somebody is unhappy with the result and thinks they 
did not get fair treatment, they will appeal to the court of appeals 
and the court of appeals will review the record, listen to the 
arguments, consider the law, and determine what the facts are in the 
case and rule whether they got a fair trial.
  If you are not happy with the court of appeals' decision, then you 
appeal to the Supreme Court and the Supreme Court does basically the 
same thing, it reviews the transcript and the record and considers the 
decision of the court of appeals that decided it.
  That is what Judge Alito has been doing for 15 years. That is what 
his life has been. He goes to work and reads transcripts. He is not 
listening to people's phone calls. He is not approving search warrants, 
such as State county judges, and magistrates judges, and city judges 
can do. Judge Alito has been up here doing the very same kind of work 
he would be doing on the Supreme Court.
  What do they say about how he performed in that role? This is what 
Judge Becker said about Judge Alito's temperament. Sam Alito:

     is gentle, considerate, unfailingly polite, decent, kind, 
     patient and generous. . . . I have

[[Page S206]]

     never once heard Sam raise his voice, express anger or 
     sarcasm, or even try to proselytize . . . he expresses his 
     views in measured and tempered tones.

  Pretty good job description of what you would want in a Supreme Court 
Justice, wouldn't you think?
  What about the question of integrity? What did Judge Becker, one of 
the great judges in the United States today, say about his integrity?

       Sam Alito is the soul of honor. . . .I have never seen a 
     chink in the armor of his integrity, which I view as total.

  Judge Becker, on Sam Alito's intellect:

       He is brilliant, he is highly analytical, and meticulous 
     and careful in his comments and his written work. . . . He is 
     not doctrinaire, but rather open to differing views and will 
     often change his mind in light of the views of a colleague.

  Isn't that a fine statement of what you would want in a judge?
  What about his approach to the law? They say he has views and he is 
going to let his views impact his decision-making process. What does 
Judge Becker, who served with him for 15 years and watched him and sat 
right beside him on that same court of appeals, say?

       He scrupulously adheres to precedent. I have never seen him 
     exhibit bias against any class of litigation or litigants. . 
     . . His credo has always been fairness.

  Judge Anthony Scirica, Chief Judge of that Third Circuit, has been on 
the bench for 20 years. This is what Judge Anthony Scirica said about 
him. Alito:

     is a thoughtful, careful, principled judge who is guided by a 
     deep and abiding respect for the rule of law.

  He goes on to say Alito ``is intellectually honest.''
  Let me insert here a parenthetical. I am telling you, those of us who 
tried a lot of cases before judges, want a judge who is honest 
intellectually and does not play games, does not twist facts, does not 
twist the law so he can justify a decision, and most people know which 
judges do that.
  Judge Scirica said that Alito:

     is intellectually honest, he is fair, he is ethical. He has 
     the intellect, the integrity, the compassion and the judicial 
     temperament that are the hallmarks of an outstanding judge.

  He goes on to say:

       His personal views, whatever they may be, do not jeopardize 
     the independence of his legal reasoning or his capacity to 
     approach each issue with an open mind.

  All of us have some beliefs, unless we are a potted plant or already 
beneath the soil. But the question is, when you put a robe on somebody 
with a lifetime appointment, are they going to allow some personal 
belief they may have to not give the litigants before the Court a fair 
shake and allow their personal bias, their disagreement with the law, 
or their personal concern, to override what their duty is? Alito is 
absolutely not this kind of a judge.
  So what else does he say about him?

       Judge Alito is modest and unassuming.

  We had one of our Senators, remarkably, make this statement. It takes 
your breath away, really.

       If there is a case involving an employer and employee and 
     the Supreme Court has not given clear direction, Judge Alito 
     will rule in favor of the employer.

  Then he goes on to say if it is a prosecutor or defendant, ``he will 
rule for the prosecutor.''
  That is not what these people who know him say. That is not what his 
record says and demonstrates. That is not the opinion of anybody who 
knows the man.
  Judge Maryanne Trump Barry, who was appointed to the court in 1999 by 
President Clinton, had previously worked with Alito in the U.S. 
Attorneys Office in New Jersey in the 1970s. This is what Judge 
Maryanne Trump Barry said about him.

       In the Attorney General's office, 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 [were clear].

  She goes on to say:

       Judge Alito is a man of remarkable intellectual gifts. He 
     is a man with impeccable legal credentials. He is a fair-
     minded man, a modest man, a humble man, and he reveres the 
     rule of law.

  This is not a man who is going to get on the Supreme Court and rule 
against every defendant. As a matter of fact, there is a host of cases 
in which he ruled for the defendant, sometimes in dissent. He is 
certainly not going to rule for the employer if the employee has been 
wronged. Judge Ruggero Aldisert, appointed by President Lyndon Johnson, 
a Senior Judge who has written a number of books, who campaigned for 
John F. Kennedy and ran for office as a Democrat, said this about 
Alito. He is a remarkable man, I must say.

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

  Judge Leonard Garth has been on the bench since 1973. Judge Alito, 
right out of law school in 1976, clerked for Judge Garth. Judge Garth 
found him to be:

     fiercely intelligent, deeply motivated, and extremely 
     capable.

  While Alito was Judge Garth's law clerk, Judge Garth:

     developed . . . a deep respect for Sam's analytical ability, 
     his legal acumen, his judgment, his institutional values, 
     and, yes, even his sense of humor. . . .

  He said Alito:

     is an intellectually gifted and morally principled judge.

  Some may not like it. They are going to think there is something 
wrong with that. Judge Garth said he was a ``morally principled 
judge.''

       He is a sound jurist, always respectful of the institution 
     and the precepts that led to decisions in cases under review.

  He goes on to say:

       His fairness, his judicial demeanor and actions, and his 
     commitment to the law, all of those qualities which my 
     colleagues and I agree he has, do not permit him to be 
     influenced by individual preferences or any personal 
     predilections.

  Judge Garth did say he was very careful about those words. He knew 
some were suggesting that Judge Alito, who served for a time in the 
Reagan Department of Justice and had been unanimously confirmed by this 
Senate to the court of appeals, after being appointed by former 
President Bush--some were somehow saying that he might allow his views, 
whatever they are--and I have not seen any evidence that he has 
particularly strong political views--that he might allow them to 
influence him.
  He said that:

       . . . his commitment to the law, which my colleagues and I 
     agree he has, do not permit him to be influenced by 
     individual preferences or any personal predilections.

  If you served on a bench a long time with a judge, you will know 
whether that is true. This is a Democratic individual.
  Judge John Gibbons said this about it. He said that he was now 
representing some prisoners in Guantanamo, his law firm was, and he was 
not happy with the way they had been treated. But he said:

       I am confident, however, that as an able and legal scholar 
     and a fair-minded Justice, he will give the arguments . . . 
     careful and thoughtful consideration without any 
     predisposition in favor of the position of the executive 
     branch.

  So this Judge Gibbons had been on the bench and is now retired from 
the bench. He is now in private practice. His law firm, for reasons of 
which I am not aware, was representing prisoners in Guantanamo. He 
thinks they are entitled to trials, I suppose. But he said absolutely 
he trusted Judge Alito to give him a fair trial.
  He went on to add:

       Alito is a careful, thoughtful, intelligent, fair-minded 
     jurist who will add to the Court's reputation as the 
     necessary expositor of constitutional limits on the political 
     branches of the government.

  Judge Tim Lewis, African American, served on the Third Circuit Court 
of Appeals for 7 years before going into private practice focusing on 
civil rights and human rights law. Judge Tim Lewis joked about sitting 
on the leftwing of the panel. Judge Lewis claimed he is:

     openly and unapologetically pro-choice and always has been.

  He said that:

       Judge Alito never had an ideological bent or a result-
     oriented demeanor or approach.

  He is:

     intellectually honest.

  Then he went on to add this, he emphasized it:

       If I believed that Sam Alito might be hostile to civil 
     rights as a member of the United States Supreme Court, I can 
     guarantee you that I would not be sitting here today. That is 
     the first thing I want to make clear.

  He said Alito ``will not have any agenda-driven or result-oriented 
approach.''

[[Page S207]]

  That was one of the more remarkable panels we have ever had. Judge 
Alito has served with Republicans and Democrats--experienced judges, 
extraordinarily wise, very interesting to listen to, and their respect 
for him was remarkable.
  Indeed, the ABA panel member--an African American who represented the 
University of Michigan in the affirmative action admissions case which 
went before the Supreme Court--said that Judge Alito was ``held in 
incredibly high regard'' by the ABA.
  I will share a few words from Judge Alito himself before I wrap up.
  In his testimony, he was asked about cases that may come before him. 
I have to say nobody would dispute that in recent years he was more 
forthcoming than any nominee we have had in discussing openly how he 
would analyze a case, without going too far and prejudging it in any 
way. He said these words, which I think reflect good judgment and 
wisdom of judgment.
  By the way, we have a transcript, but all of this was without notes. 
He spoke so beautifully. He looked right at us.
  This is what he said:

       Good judges develop certain habits in mind. One of those 
     habits in mind is to have a delay in reaching a conclusion 
     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 during the conference on the case 
     when the judges privately fully discuss the case.

  That is what we want in a judge. We want a judge who comes in with a 
philosophy and a demonstrated record of not rushing to judgment, not 
allowing any personal views he may have to influence him. He analyzes a 
case, but has a record that has won the respect of colleagues, liberals 
and conservatives, Republicans and Democrats, the bar, and his 
colleagues on the bench.
  He is an extraordinary nominee. I could not be more proud of him. He 
did a magnificent job in testifying. I never thought that anyone would 
testify to the level of John Roberts because he is such a skilled 
attorney and advocate. But this judge in his own way was every bit as 
good. He made us all proud, and President Bush should be very proud for 
submitting his nomination.
  I am pleased to support him. I will be voting for him, and I hope my 
colleagues will do the same.
  I thank the Chair. I yield the floor.
  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. FRIST. 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.

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