[Congressional Record Volume 152, Number 7 (Friday, January 27, 2006)]
[Senate]
[Pages S235-S248]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Schedule

  Mr. SESSIONS. Mr. President, today the Senate will continue to debate 
the nomination of Samuel Alito to the Supreme Court. Yesterday, the 
majority leader, Senator Bill Frist, was forced to file a cloture 
motion to stop a filibuster from Senators on the other side of the 
aisle. That cloture vote will occur at 4:30 p.m. on Monday. It is our 
expectation that cloture will be invoked and that the Senate will then 
proceed to a vote, a final up-or-down vote, on the confirmation of 
Judge Alito on Tuesday at 11 a.m.
  I have some remarks I wish to make on the Alito nomination, but 
before I do, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, it is very distressing and disappointing 
that we are now looking at a filibuster of the nomination of Samuel 
Alito to be a member of the U.S. Supreme Court. He has served as a 
Federal appellate judge--outside of Washington, DC, not involved in any 
of the political issues here--for 15 years and during that time has 
assembled an incredibly strong group of admirers who have testified on 
his behalf to a degree that exceeds almost anything I have had the 
pleasure to see as a member of the Senate Judiciary Committee where we 
had hearings on this matter.
  The American Bar Association interviewed 300 of his colleagues--
lawyers who have litigated against him; lawyers who have worked with 
him; judges who have heard him, whom he practiced before; and his 
colleagues on the bench.
  An African-American member of that ABA team--who represented the 
University of Michigan in defending their admissions policy that some 
called a quota policy--that individual said, quote: He was held in 
incredibly high regard. In fact, I am not aware of anyone who was 
interviewed that said anything bad about this nominee.
  He was at the top of his class at Princeton, and the top of his class 
at Yale Law School where he served on the Law Review. He argued 12 
cases before the U.S. Supreme Court. There is not more than a handful 
of lawyers in

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this country who have argued even a single case before the Supreme 
Court, much less 12.
  Then he was U.S. attorney, prosecuting criminal cases for the United 
States of America in New Jersey, where he prosecuted Mafia groups and 
drug dealers and people such as that. He has spent 15 years on the 
bench, demonstrating day after day the judgment, the intellectual 
integrity, and honesty it takes to be an outstanding judge.

  He is a remarkable nominee. His father was an immigrant from Italy. 
He grew up in New Jersey, and has had the great honor to be one of 
those sons of immigrants who got to go to the great University of 
Princeton. He in every way represents the best there is in American 
law. And more than that, he understands what a judge's role is. He has 
expressed this in so many good ways. Without notes, he talked to us in 
that committee from his heart.
  He summed up, time and again, question after question, his view that 
a judge has a responsibility to decide the case that is before them, 
not to set grand policy for America, but to try the case of the 
litigants that are before them. Somebody has a complaint, and they are 
complaining that the law or the Constitution has not been properly 
followed, and they are asking for relief. The judge decides each case 
based on the facts.
  First, a judge must, with intellectual honesty, find out what the 
facts are, and, then, after the facts are determined, apply the 
established law to that fact situation and render a decision without 
regard to any personal or political views--whether he is a Republican 
or a Democrat, a liberal or a conservative--without regard to any 
personal, social, religious, or other views he may have. Then he 
renders that opinion.
  As Alito said, he learned as a judge you should delay making up your 
mind. It is a habit of mind a judge learns. He hears those facts, he 
thinks about those facts, and considers those facts and makes up his 
mind--only after the full matter has been brought before him and has 
reached its full, ripe point to make a decision. I thought that was a 
very insightful and wise comment he made.
  We had a unanimous highest possible rating from the American Bar 
Association. As I read last night, one can easily see the tremendous 
admiration and respect his colleagues on the Third Circuit Court of 
Appeals have for him. They were so impressive in the committee. Several 
of these judges were senior judges. Most of them had served the full 15 
years with him on the bench. They have known him. They have seen him in 
private conferences. They said he is a man of intellectual honesty. He 
is a man who is fair, unbiased. He never raised his voice, never 
proselytized for his view, but is a man with incredible analytical 
ability to get to the heart of a matter and make a just decision.
  What more could you ask for on the bench? Many of these judges were 
Democratic appointees. The Third Circuit is not a conservative circuit. 
It is probably one of the more liberal circuits. It sits in 
Philadelphia. And to say this man is extreme, outside the mainstream, 
unworthy of serving on the Supreme Court is in itself an extreme 
statement. It is not justified.
  The President made a simple promise in this last election that he 
repeated at every stop he made: I want a judge who will show restraint, 
who will follow the law and not make law, who does not see it in their 
bailiwick to reset the social policy of America. And we have been 
seeing that type of judgement time and time again. Our colleagues who 
like what these judges are doing, our Democratic colleagues, 
apparently, are not happy with Alito's philosophy of judicial 
restraint.
  Now let me tell you, President Bush--this Senator does not believe we 
should put a conservative activist on the bench, a judge who will 
utilize his opportunity on the bench to promote a conservative agenda. 
That is politics. That is what we do here in the legislative branch. 
That is what we are supposed to fight out in this Chamber. The American 
people have a role to play in it because they can vote us out of 
office. But if a judge on the Supreme Court of the United States uses 
that power to interpret the meaning of words in the Constitution to 
undermine the plain meaning of those words, undermine the meaning that 
the ratifiers and drafters had in mind, to make it say something they 
want it to say, then they are legislating, they are in this branch.

  It is more dangerous than that because they do not legislate like we 
do. If we legislate, the next Congress can come in and change it. We 
can be voted out of office, and they can reverse it by 51 votes out of 
the 100 Senators. But what if a Supreme Court judge declares that no 
longer can States define marriage as a union between a man and a woman, 
that we are going to declare that any association of people can call 
themselves a marriage and say the Constitution says it? They have a 
lifetime appointment. They never have to answer to the public. They can 
stay on that bench as long as they desire.
  What recourse do the American people have for that? Only a 
constitutional amendment, and that takes a two-thirds vote in the House 
of Representatives and the Senate and three-fourths of the State 
legislatures to overturn it--an incredibly huge task.
  So it is critically important we have judges who are not activists on 
the bench, that we have judges who will faithfully apply the law 
according to the way the constitutional drafters and ratifiers intended 
it, and to follow faithfully the laws of the Congress, and respect 
those laws as long as the laws passed by the Congress or the States do 
not conflict with the Constitution, and show some respect to the 
States.
  We have had so many of these activities that have gone on in our 
Court that show a lack of discipline. I pointed out last night that we 
are at the point where one of the courts of appeals that represents 20 
percent of the people in the United States, the Ninth Circuit, has 
ruled that the Pledge we recited which says ``under God'' in it is 
unconstitutional. The U.S. Supreme Court did not reverse it. The U.S. 
Supreme Court simply said that the father who brought that case did not 
have standing because he did not have custody of the child. Now he has 
gone back and found somebody else and apparently has a plaintiff who 
does have standing. I am not sure what the Supreme Court is going to 
rule.
  Will they next come in here with a chisel and take those words right 
up there on this wall--``In God We Trust''--off the wall of the Senate? 
It is not such an impossible suggestion. Our Presiding Officer came 
here shortly after Senator Byrd--but he was here in the Congress, I 
believe, as a Member of the House when we put ``under God'' in the 
Pledge. And we ratified that again, when this case first came out, in 
the Senate that we intend that remain the law. But the Court has the 
ability--just like that--to strike it down.
  That is what this issue is about. We talk about the takings case, the 
Kelo case, where they redefined the meaning of words that a property 
can only be taken for a public use. Now they say it can be taken for a 
public purpose--a big change. It is one thing for the government to 
take your land to build a dam, or a highway or a public park, but to 
take your land to build a private shopping center was not what the 
Founding Fathers had in mind. But this is what the Supreme Court ruled, 
apparently believing that was too restrictive. It would be better if 
you could take land for private purposes as long as it had a public 
benefit and they approved that. Not good.
  Regardless of what you think of the merits of that takings issue, it 
represented a lack of discipline, an activist trend on the Court by 
which the judges declared that their personal views would allow them to 
actually bend the plain meaning of the Constitution to have it say what 
they wanted it to say, not what it actually did say, not what was meant 
from the beginning.
  I am disappointed that we have an objection, any objection to this 
fabulous nominee. President Bush in his campaign promised a judge who 
would show restraint, that he would be highly qualified and a man or 
woman of integrity. That is what he submitted. But now we are looking 
at a filibuster. I am not kidding. I thought we had settled that issue. 
But now we are facing a filibuster. They have put it in their news 
releases, Democratic Senators. Apparently, the former Presidential 
candidate for the Democratic Party in the last election, who obviously 
did not

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win, called back from Davos, Switzerland, to say that they ought to 
filibuster. Count him in. He urged a filibuster. The assistant 
Democratic leader in the Senate, Senator Durbin, apparently is 
supporting a filibuster of this nomination. It is not right. This is a 
solid, mainstream judge who was rated, unanimously, the highest rating 
the American Bar Association gives. He has the unanimous support of his 
fellow judges on the Third Circuit, Democrats and Republicans. He has 
an extraordinary record and resume in every respect. They want to 
filibuster this nomination. I know the People for the American Way want 
it. I know the National Abortion Federation and other abortion groups 
want it.
  We are Senators. We have to ask ourselves: Is this where we are 
heading? Is this what we are about, that we are now going to take 
nominees with the kind of respect Judge Alito has and subject them to a 
filibuster? It was discussed in this past election. The American 
people, I am convinced, strongly support the kind of judge Judge Alito 
will be. They don't want an activist judge setting social policy. They 
absolutely understand this issue.
  I had the pleasure to follow one of our most outstanding young 
Senators last night, Mr. John Thune of South Dakota. He made a 
remarkable speech. He concluded it by saying he campaigned on this 
issue in South Dakota. He promised to vote for this kind of judge. I am 
thinking, whom did he beat? He beat the former Democratic leader of the 
Senate, the former majority leader for a short time, Senator Tom 
Daschle, who was leading filibusters to obstruct up-and-down votes on 
highly qualified nominees. I submit to the Members of this body that 
the people of South Dakota were not happy with that. In large part, 
Senator Thune is here today because of the obstruction of the Democrats 
over the last several years of highly qualified nominees who simply 
believe a Federal judge should show restraint and follow the law. That 
is all we want. That is all the American people want. That is what we 
have a right to expect in Federal judges.
  What kind of filibuster is this we are seeing? It is almost amusing. 
Where are the Senators? I was here last night. I followed three 
Republicans talking. We were supposed to be in session until 8. Nobody 
from the other side of the aisle showed up to talk. I am not sure there 
are any around today to complain. They are supposed to be telling us 
why this man should not be on the bench. We have been here for 2 days, 
and fewer than 25 Democratic Senators have come to the Senate floor. It 
has been a pretty vacant situation. Republicans shut down the Senate 
each night. Nobody seems to want to come and raise the issues and 
debate them. If they want to filibuster, if they have serious concerns, 
I suggest they come down and express it. Let's talk about it.
  My colleague, Senator Specter, during the Judiciary Committee 
hearings gave the Democratic Senators every opportunity they desired to 
raise, for as long as they wanted to, any issues they had with Judge 
Alito. He allowed them to call a whole host of witnesses who would be 
critical. The truth is, I don't think any of them knew Judge Alito. 
Most of them had axes to grind one way or the other from some political 
agenda they had. Even out of that group, I don't think but one or two 
actually said they were against him. Laurence Tribe raised some 
concerns, but he never said he was against the nominee or that he 
should not be confirmed. He is a professor himself, and he knows the 
legal expertise Judge Alito brings to the court.
  If you have something to filibuster about, come on down. Why put us 
through this? Senator John Cornyn has called this effort needless and 
strange. That is a good definition. Other words come to mind: 
pointless, political.
  The Democratic leader, Senator Harry Reid, went before the Democratic 
caucus, according to the New York Times, just last week and urged his 
colleagues to vote against this nomination. They made it a political 
agenda item to block this nomination. Is it Presidential politics or 
politics in general? I submit both. Senator Reid's spokesperson, when 
asked, said: Well, they want to get as many votes as they can against 
him to make it an issue in the election--for politics, not a question 
of whether the judge is ready, qualified, and able to serve.
  Maybe this is some sort of theory that, We can reward our base--the 
National Abortion Rights Action League, the People for the American 
Way, the Alliance for Justice, some of those leftwing groups that have 
been driving the process for years. Maybe it will keep them happy. 
Maybe they will keep sending money. Maybe they will keep attacking 
George Bush and saying he is appointing extremists to the bench. Maybe 
that is what they are trying to do.
  There is no basis to object to this nominee. There is absolutely no 
justification for denying him an up-or-down vote, which is what the 
filibuster attempts to do. We can all agree, I suppose, that it is an 
international filibuster because it was apparently hatched in Davos, 
Switzerland, where Senator Kerry now is with those masters of the 
universe trying to figure out the world economy. Maybe they ought to 
spend more time trying to get gasoline prices down than worrying about 
conjuring up a filibuster of a judge as able as Judge Alito. They are 
not here in the Chamber, and that is what we have every right to 
expect.

  Maybe, since they are abroad, they are worried about Judge Alito's 
position on foreign law. We have seen a trend with members of the U.S. 
Supreme Court. Recently, Justice Ruth Bader Ginsburg went to New York 
and made a speech in some great detail--shocking, to me; I have 
recently read the speech--in which she defended the citation and 
consideration of foreign law to determine how to interpret American 
law. This is contrary to our American legal system. A judge's duty is 
to apply the plain meaning of the words, if there is some dispute about 
it, to look to the legislative history or maybe the background of the 
bill from an American perspective, not a European perspective.
  For example, in Roper v. Simmons in 2005, the case held that the 
execution of individuals who were under the age of 18 at the time they 
committee a capital crime violates the 8th and 14th amendments, 
overruling a previous precedent of the Supreme Court. Our liberal 
colleagues have been very strong in claiming that we should stick to 
precedent, particularly when they talk about abortion. But in that 
case, the court reversed Stanford v. Kentucky.
  The majority of the Supreme Court, trying to interpret the 
Constitution of the United States, spent almost 20 percent of its legal 
analysis discussing the laws of Britain, Saudi Arabia, Yemen, Iran, 
Nigeria, and China.
  We have a lot of complaints. People are not happy with rulings of the 
Court. Many times, those rulings are justified and we are simply 
unhappy with the result. We are concerned about it. Maybe it is not 
justified. But I believe the American people understand that this is a 
dangerous trend by the Court that they would seek to interpret American 
law by looking to Nigeria and China--red China, last I heard--Yemen, 
where there are terrorists, and Iran, a pariah to the international 
community. They are quoting them, discussing what their views of our 
Constitution are relative to cruel and unusual punishment. Regardless 
of what one believes about the merits of the case, legislatures 
absolutely should discuss the age at which an execution should occur, 
but what does the Constitution say about it? That is what the Supreme 
Court is supposed to be deciding, not what they think ought to be done.
  In Grutter v. Bollinger in 2003, Justice Ginsburg looked outside the 
Constitution to make her decision, noting with approval that the 
International Convention on the Elimination of All Forms of Racial 
Discrimination allowed for such discriminatory practices or 
``maintenance of unequal or separate rights for different racial 
groups.''
  This is a question under our Constitution which says that every 
American, whether they are of minority or majority ancestry or 
background, is entitled to equal protection of the law. That raises 
some questions about quotas and matters of that nature. So in her 
decision, did Justice Ginsburg look at our Constitution, which 
guarantees every citizen, regardless of their race, equal protection of 
the law? What did she look at? She considered the

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International Convention on the Elimination of All Forms of Racial 
Discrimination. That is not a basis for an American Justice to lay an 
opinion. We have seen a lot of that.
  Let me briefly cite what Judge Roberts said about that:

       If we're relying on a decision from a German judge about 
     what our Constitution means, no President accountable to the 
     people appointed that judge and no Senate accountable to the 
     people confirmed that judge, and yet he's playing a role in 
     shaping a law that binds the people in this country. I think 
     that's a concern that has to be addressed.

  Absolutely, he is correct. He goes on to say:

       In foreign law, you can find anything you want. If you 
     don't find it in the decisions of France or Italy, it's in 
     the decisions of Somalia or Japan or Indonesia or wherever. 
     As somebody said in another context, looking at foreign law 
     for support is like looking out over a crowd and picking out 
     your friends. You can find them, they're there. And that 
     actually expands the discretion of the judge. It allows the 
     judge to incorporate his or her own personal preferences, 
     cloak them with the authority of precedent because they're 
     finding precedent in foreign law, and use that to determine 
     the meaning of the Constitution. I think that's a misuse of 
precedent, not a correct use of precedent.

  I say to the President pro tempore that if he chooses to speak at 
this time, I would be glad to yield if he would like.
  The PRESIDENT pro tempore. The Chair is happy to accept that offer.
  Mr. SESSIONS. Before I yield, I have been making humor here about 
Senator Kerry over in Davos, Switzerland, calling for a filibuster back 
here. One of the issues we have with regard to the confirmation of 
judges is that judges show restraint and be faithful to our law, not 
``foreign law.'' There is no doubt that Judge Alito and Justice Roberts 
do not agree that we ought to be quoting foreign law to justify legal 
opinions in the United States. Judge Alito said this:

       I don't think we should look to foreign law to interpret 
     our own Constitution.

  Amen to that.
  He said this:

       Our Constitution does two basic things. It sets out the 
     structure of our Government and it protects fundamental 
     rights. The structure of our Government is unique to our 
     country, and so I don't think that looking to decisions of 
     supreme courts of other countries or constitutional courts in 
     other countries is very helpful in deciding questions 
     relating to the structure of our Government.

  Amen to that.
  He went on to say:

       As for the protection of individual rights, I think we 
     should look to our own Constitution and our own precedents. . 
     . . Our country has been the leader in protecting individual 
     rights.

  Are we going to look to China, Yemen, or Iran on that issue? He goes 
on to say:

       I don't think that it's appropriate or useful to look to 
     foreign law in interpreting the provisions of our 
     Constitution. . . . I think the Framers would be stunned by 
     the idea that the Bill of Rights is to be interpreted by 
     taking a poll of the countries of the world.

  That is the kind of judge we need on the bench. That is the kind of 
judge President Bush promised to nominate. That is the kind of judge he 
sent up here, and he deserves confirmation.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Isakson). Without objection, so ordered.
  Mr. LEAHY. Mr. President, I have spoken before, of course, on this 
nomination. I want to emphasize some of the points I have made.
  The Constitution, as we know, gives the Senate a central role in the 
confirmation of a Supreme Court Justice. Nothing in our makeup, nothing 
in the history of this country assumes that the Senate would be a 
rubber stamp for the President's nominees. After all, it was the Senate 
that turned down some nominees of George Washington--the most popular 
President and the greatest President in this country's history--because 
it would not be a rubber stamp. It was an overwhelmingly Democratically 
controlled Senate at the time of Franklin Roosevelt, and it was that 
Senate that said to Franklin Roosevelt: You cannot pack the Supreme 
Court.
  I have said, also, many times that the Senate should be the 
conscience of the Nation. After all, we are the only 100 people in this 
country of 295 million Americans who get a chance to vote on lifetime 
positions to the Supreme Court--people who will affect our personal 
rights for decades to come.
  Now, I have voted on every one of the current nine members of the 
U.S. Supreme Court. I actually voted on some who are no longer there. I 
approach each one the same way. Is this going to be a Supreme Court 
Justice for all Americans? That is what I asked about Judge Alito.
  He came before our Senate Judiciary Committee with a record he has 
created over the last 30 years. As a judge, and before that as a high-
ranking Government official appointed to a succession of posts by 
Republican Presidents, Judge Alito seemed consistently to defer to 
Executive power and to show little empathy for the plight of ordinary 
Americans. His record also suggested a pattern of saying what he needed 
to say to get to the next job. Certainly, nothing in his record, 
nothing in his job application indicated he felt very strongly about 
checks and balances and the three branches of Government.

  Now, in the course of this nomination and the hearings, he sought to 
retreat from his own words; but even trying to retreat, he did not. The 
hearing provided him with an opportunity to explain his record. It was 
an opportunity he chose to squander. The President's supporters and 
many Republican Senators on the committee urged him not to be 
forthcoming. My gracious, the 18 members of that committee are the only 
ones who get to ask him questions on behalf of all 295 million 
Americans, and some urged him not to answer questions. He had the 
chance to answer some of the troubling questions that his past words 
and actions raised. He had the opportunity to demonstrate that his 
replacement of Harriet Miers was not what it appeared to be--the 
President selecting somebody whom he knew he could count on to support 
Government power and the expansive doctrine of the ``unitary 
Executive,'' and someone the extreme faction in the President's party 
felt assured would march with Justices Scalia and Thomas in their 
culture war.
  So it was an opportunity to answer questions--an opportunity he did 
not take. The hearings and the whole confirmation process left us with 
more questions and greater concerns than we had before. I have 
discussed his failure to assure us that he would be an effective check 
and balance on Executive power. He failed to show me or the American 
people that when he recited platitudes such as ``nobody is above the 
law,'' he was not telling us what he thought he needed to say to get 
one more promotion.
  When I voted for John Roberts as Chief Justice, a conservative 
Republican nominated by a conservative Republican, I voted for him 
because I looked at him and I thought, ``Would George Bush or Patrick 
Leahy, or George Smith or Patrick Jones, get fair treatment? And would 
we be heard on what the facts and the law would be?'' I believed we 
would. But I don't have that same confidence with Judge Alito.
  One question for the Senate is whether Judge Alito takes seriously 
his promises to the Senate and his obligations to avoid the appearance 
of impropriety. He had an opportunity to talk about his numerous 
failures to recuse himself from cases during the nomination period, and 
he didn't accept that opportunity.
  In 1990, Mr. President, Judge Alito came before the Senate. I was 
here at that time. He was seeking confirmation to the Third Circuit 
Court of Appeals. He made a pledge--and they are made under oath--that 
he would recuse himself from five categories of cases: cases involving 
three different financial companies with whom he had dealings, cases in 
which his sister's law firm represented a party, and cases he had 
overseen as the U.S. Attorney in New Jersey. Someone in that 
circumstance who would not make such a pledge might not have been 
confirmed. But I was disappointed to discover that, despite making this 
explicit promise to disqualify himself in these cases, he failed to 
disqualify himself in

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at least four of the five categories from which he had sworn he would 
disqualify himself. In fact, he apparently failed to put several of the 
companies on the so-called recusal list. These were companies from 
which he said he would recuse himself if matters involving them came up 
before the Third Circuit. He did not even give their names to the clerk 
to make sure that happened.
  I don't suggest that he in any way got any financial benefit from 
this. I doubt that he did. But, again, he was making promises to get 
promoted to the next job. Once he got promoted, the promises were 
forgotten.
  One case we have heard a lot about involving the Vanguard funds, in 
which he had invested hundreds of thousands of dollars, and which he 
expressly included in his 1990 pledge to the Senate, is particularly 
troubling--not just because of his involvement but for the various 
reasons he gave, shifting reasons, for why he did not recuse himself. 
First, he said he didn't realize it was a case involving Vanguard. The 
word ``Vanguard'' appears in the case name three times and in the case 
papers many more times. He said the clerk had moved to a computerized 
recusal system, so there was a computer glitch, and that may have been 
why he was assigned the case. Well, he would have seen Vanguard in the 
case name three times. He said: Well, I didn't benefit from it. We were 
getting a little bit into ``the dog ate my homework.'' Why not just 
say, ``I screwed up?''
  After significant investigatory work and pressing for answers, we 
found that Vanguard was not on his computerized list to identify 
conflicts, so a computer glitch could not have occurred. He finally 
acknowledged--and I give him credit for this--having stated for weeks 
and weeks that there was a computer glitch, he finally acknowledged 
that there was not. Why not say, ``I screwed up'' and accept the 
responsibility? He acted like the Bush Administration most often does 
when it errs, by blaming others: his surrogates attacked those raising 
questions, while he proffered numerous conflicting excuses.
  For example, one of his many explanations was contained in a letter 
he wrote to Chairman Specter. He contended that the 1990 promise he had 
made to the Judiciary Committee in order to become a Circuit judge only 
applied to his ``initial service'' and that he later, apparently 
secretly and unilaterally, decided that his promise to this Committee 
had been ``unduly restrictive'' and that he need not follow it anymore. 
He did not so inform the Judiciary Committee or the Senate of these 
determinations at any time before his 2005 nomination to the Supreme 
Court. Moreover, it is wholly inconsistent with his finally adding the 
Vanguard companies to his recusal list in December 2003. This letter 
seems more like self-serving, after-the-fact rationalizing than it does 
a truthful explanation for what had happened in 2003. As we discovered 
through due diligence, Vanguard and Smith Barney were not on the 
judge's automatic recusal list even in 1993. There is no reason to 
think they were on there before that. It certainly does not seem that 
Judge Alito tried to live up to his sworn commitment to the Senate even 
during what he would have to concede was his ``initial service'' period 
as a Circuit judge.

  Moreover, the ``initial service'' excuse makes no more sense with 
respect to his Vanguard investments than it would with respect to his 
sister. She did not cease being his sister after some ``initial 
service'' period of his on the bench. In fact, his Vanguard investments 
significantly increased over the period of his service on the bench. 
The ``initial service'' concept in the Judiciary Committee's approach 
to recusal applies to transition from a law practice to the bench. 
Thus, for example, once the cases on which he had been involved while 
the U.S. Attorney in New Jersey had run their course, he was not 
prohibited for all time from hearing cases from that office. 
Eventually, even he had to acknowledge at the hearing that this 
``initial service'' argument was not the real reason he failed to 
recuse from the Vanguard case, even though that had been the argument 
he made in a written response to our Committee's chairman.
  To the end, Judge Alito has failed to take responsibility for his 
action. Instead, the best he can do is to admit at his hearing that he 
``just didn't focus on the issue of recusal'' and that ``no light went 
off.'' There was no remorse, no apology, and no embarrassment for the 
string of conflicting and inaccurate explanations he gave during the 
course of this nomination. Accordingly there is no reason to think that 
if he becomes a Supreme Court Justice he will focus any better on 
conflict of interest and appearance of conflict issues, in a system 
without accountability. I voted against the nomination of Justice 
Rehnquist to become Chief Justice in large measure because of his 
involvement in a case in which he should not have been. I take these 
matters very seriously. It is apparent that this nominee does not.
  In his 1985 job application for a job in the Reagan administration--
one that he said he was careful in doing--he very proudly included his 
membership in the Concerned Alumni of Princeton, or CAP, which he 
termed ``a conservative alumni group.'' Actually, he named only two 
groups he had been associated with, that one and the Federalist 
Society. He was also a member at the time of the Princeton Club in 
Washington. He didn't include that. He didn't include anything else. 
The reason I mention this is that he knew exactly what memberships to 
what clubs would appeal to those in the Meese Justice Department. Some 
would say that is being wise. But why emphasize membership in a group 
such as the Concerned Alumni of Princeton? Nobody would suggest that in 
his hiring practices or in the way he lives Judge Alito is biased 
against women or minorities, but the Concerned Alumni of Princeton 
received national attention for resisting the admission of women and 
minorities--African Americans and others--into Princeton. Why brag 
about being part of such an organization?
  These same people only a generation earlier surely would have 
resisted the admission of people from Italian immigrant families. I 
take that rather personally. My mother's family were Italian 
immigrants. I still have relatives in Italy today, uncles, aunts, and 
cousins, who talk about how proud they are of their sons and daughters 
who have gone to America.
  I also think of a different era when my Irish father, as a teenager, 
had to face signs: ``No Irish need apply'' or ``No Catholics need 
apply.'' As a result, we grew up in a family where we learned that all 
discrimination was wrong.
  Why brag about even a loose affiliation with a group that advocated 
any kind of discrimination?
  Because it had been in the press, I thought I would help the judge 
out. I asked him about this. I figured it would be a simple 
explanation; that he would make it very clear that he was opposed to 
them. Instead, he said: I don't really remember that group. We alerted 
him ahead of time that he was going to be asked that question. He said: 
``I don't remember that,'' even though it was on his application.
  Then he said: Well, I think it was because of the concern that ROTC 
was not being allowed on the Princeton campus. Good explanation, 
except, of course, by 1985 ROTC was back on the Princeton campus. 
Neither CAP's own materials nor media accounts suggest that ROTC was a 
primary focus for CAP at the time. And of course, that was not an 
answer to my question. My question was why he touted his membership in 
1985. He never answered my question.
  Those little facts, inconvenient facts, that come in. They were not 
inconvenient at the time he was applying for a job with Edwin Meese. 
Then it was something of which to be proud. Now applying for a job on 
the U.S. Supreme Court it is: I don't remember why I did it.
  I will give him the benefit of the doubt. I will accept he was not 
very active in the group. But then that goes all the more to why he 
emphasized it in his job application especially to that administration, 
to the Meese Justice Department. That was the most ideological and 
partisan administration we had seen until the present time. So it is 
logical to think that he proudly proclaimed his membership in CAP and 
the Federalist Society, as well as his support of Republican candidates 
and conservative causes and his recent submission of articles to the 
American Spectator, to establish his right-wing credentials to help win 
that coveted

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promotion. It seems apparent that he said all this in 1985 to show 
those making promotion decisions that he was not just a traditional 
conservative, but a ``movement conservative,'' and that the activists 
in control of political promotions at the Meese Justice Department and 
the White House could rely on him.
  I am concerned he tried too hard back then to fit in with those in 
power, and it makes me wonder, when he was being screened for this job, 
when he met in that private closed-door meeting with Vice President 
Cheney, Karl Rove, and Scooter Libby, what he said to them. In this 
time of Executive overreaching, illegal spying, and expanding 
Government power, what the American people need is a Supreme Court that 
is willing to stand up for the liberties and rights of all Americans, 
not someone who curries favor with the powerful.
  I am especially interested in these circumstances because, as you 
know, Mr. President, Judge Alito was the third person President Bush 
nominated for this particular seat. The second one, Harriet Miers, he 
nominated and then got a firestorm of criticism from Republicans, not 
from Democrats, but from Republicans, from some within the Republican 
Party who made it very clear to the President: You can't nominate her 
because we are not sure how she will vote. We are not sure that she 
will vote the way we want her to.
  Finally, the President--in a humiliation for him--was forced to 
withdraw her name. He came forth with Judge Alito, and those same 
people said: He is great. We are confident about how he will vote. We 
are fine with him.
  I am concerned, as well, about his failure to be forthcoming in 
answer to my questions about CAP. I would have been more willing to 
give Judge Alito the benefit of the doubt if he had taken the 
opportunity the hearings provided to come clean about all this. He gave 
me no adequate answers. When Senator Schumer raised the matter of his 
inclusion of CAP on his job application again, on another day, later in 
the hearing he hinted at what he had done in 1985 but still would not 
own up. He said:

       [Y]ou have to look at the question that I was responding to 
     and the form that I was filling out. I was applying for a 
     position in the Reagan Administration, and my answers were 
     truthful statements, but what I was trying to outline were 
     the things that were relevant to obtaining a political 
     position.

  But he stopped far short of answering because he had gotten himself 
into another box by his previously saying to us that he had no 
recollection of CAP. He concluded with the following:

       Well, Senator, since I don't remember this organization, I 
     can't answer your question specifically, but I think that the 
     answer to the question lies in the nature of the form that I 
     was filling out and the things that I put.

  Regrettably, when he had been asked by ABA representatives about his 
putting CAP in his 1985 job application and whether he was 
``pandering,'' he failed to take that opportunity to reflect on what he 
had done and own up to the matter, as well. Instead, according to Marna 
Tucker's testimony, he answered that he put CAP on that application 
because ``it would be improper to not tell the truth on an 
application'' and ``that he was a member of that organization.'' That 
answer says a lot.
  He is right that it is ``improper to not tell the truth on an 
application,'' but that does not explain why he chose to list CAP. The 
form does not call for him to list all clubs and affiliations. The form 
used to seek political advancement during the Reagan Administration 
asked for something else, a demonstration of partisan, political 
commitment. It said: ``Please provide any information that you regard 
as pertinent to your philosophical commitment to the policies of this 
administration,'' and asked applicants whether ``you ever served on a 
political committee or been identified in a public way with a 
particular political organization, candidate or issue.'' That is why he 
included CAP, an organization that in the mid-1980's was a place that 
activists like Dinesh D'Souza and other rising stars in the 
conservative movement favored.

  Regrettably, at his hearing, and under oath, Judge Alito evaded. He 
could not remember, tried to say the right things about discrimination, 
stood by while his supporters attacked the question and then watched as 
his supporters pushed so hard that they made his wife break down in 
tears. I do not think that the Republican Senator who pressed that 
awkward line of defense intentionally meant to upset Mrs. Alito, but 
Republican partisans have turned that moment that they created into a 
partisan weapon.
  Like the matters of recusal, the CAP issue is another that Judge 
Alito could have put to rest by being more forthcoming at the outset. 
He has never answered the question of why he touted his membership in 
CAP in 1985. To me the true answer seems obvious. Indeed, in a news 
account that appeared on the last day of the hearings, his mentor at 
the Department of Justice in those days admitted what was really going 
on in that 1985 application. Charles Cooper, who was the Assistant 
Attorney General for the Office of Legal Counsel and Samuel Alito's 
supervisor, said:

       The only purpose of that essay was to satisfy the Office of 
     Presidential Personnel that he was simpatico with the Reagan 
     Administration's legal policy agenda. He went on to call 
     Samuel Alito's 1985 statement ``his essay of his political 
     bona fides.''

  Judge Alito's 1985 job application is an ideological manifesto that 
goes a long way to explain why the same people on the far right who 
shot down the President's nomination of Harriet Miers, because they 
were not assured how she would rule, rushed to support Judge Alito when 
his nomination was announced.
  I looked at his job applications. He wrote:

       [I]t has been an honor and source of personal satisfaction 
     for me . . . to help advance legal positions in which I 
     personally believe very strongly. I am particularly proud of 
     my contributions in recent cases in which the government has 
     argued in the Supreme Court that racial and ethnic quotas 
     should not be allowed and that the Constitution does not 
     protect the right to an abortion.

  These are his words. He was eager to highlight his work in the 
Solicitor General's Office, which should be a place where lawyers honor 
working in a nonpartisan and professional manner, rather than seek to 
twist it to partisan political ends.
  We have seen a few of the documents he produced in that office, but 
the Bush administration's regime of secrecy has prevented the Judiciary 
Committee and, of course, the Senate, and, of course, the American 
people from reviewing most of his work from his time there. This was 
work done during a Republican administration that litigated and lost 
the famous Bob Jones University case about tax breaks for institutions 
that discriminate; that lied to Congress about the EPA and Iran-Contra; 
that sought to overrule Roe v. Wade; and that sought to roll the clock 
back on fundamental rights to equal protection.
  The hearing gave Judge Alito an opportunity to do either of two 
things. He could have embraced his statement from 1985 and his record 
as a judge and set out to explain why his deferential view of 
presidential power and his restrictive view of individual rights are 
appropriate for a justice who is supposed to be there for all 290 
million Americans. We could have had the great ideological debate that 
so many on the far right seemed to want to have when the President's 
nominee was Harriet Miers. Or he could have disavowed the 1985 job 
application and much of his record as a judge and told us that he would 
in fact be a check on the President and protect the fundamental 
constitutional rights of all Americans. He did neither. Instead he 
refused to share his views and tried to finesse his statements in the 
1985 application and limit them ``technically.'' He was so unresponsive 
that commentators from across the political spectrum have called for an 
end to Supreme Court confirmation hearings since they reveal so little 
about the nominee's thinking.
  For example, he said that his statements about privacy represented 
his views at the time, but that he would view the issue with an ``open 
mind'' as a justice with the authority to cut back, or overrule the 
rights expressly recognized in Roe v. Wade. Judge Alito never disavowed 
his 1985 statement that in his legal view the Constitution does not 
protect a woman's right to choose. In fact, he responded to Chairman 
Specter that his statement in 1985 was a ``true reflection of [his] 
views at the time'' and ``the position that [he] held at the time.''

[[Page S241]]

  We also have his multi-page memorandum on the Thornburgh case from 
his days in the Solicitor General's office--one of the handful that 
slips through the veil of secrecy that the Bush Administration sought 
to construct--in which he asserts his legal view that Roe was wrongly 
decided and should be overruled, but that tactically the better 
approach would be to incrementally undermine its legal authority.
  This one memo is enough to demonstrate why such material should have 
been produced rather than hidden by this Administration so that the 
Senate and the American people would have the nominee's views and 
record. The Bush Administration refuses to produce Samuel Alito's work 
at the Solicitor General's office and at the Office of Legal Counsel. 
Who can tell what those other writings would reveal about the nominee's 
legal views? The Washington Post recently reported that Charles Cooper 
has now indicated that Samuel Alito worked on defending the Reagan 
Administration in connection with the Iran-Contra crimes by working on 
legal theories so that they would not have to inform the Congress which 
was investigating in its oversight capacity. What else did Samuel Alito 
work on that is being hidden from the Senate and the American people?

  On the issue of a woman's right to choose, we also have Judge Alito's 
opinion in Casey in which he follows the script he laid out in his 
memorandum to the Solicitor General and finds no state regulation an 
undue burden on a woman's right to choose. Of course, the Supreme 
Court, including Justice O'Connor herself, were in place then to hold 
the line in Casey, reaffirm Roe and reject Judge Alito's position.
  He would not testify what his legal view is today. He made it very 
clear he continues to believe that Roe v. Wade was wrongly decided. In 
describing how to decide a case where there is a precedent, he left out 
a step. He left out the step where the Justice, knowing there is a 
controlling precedent, decides whether the precedent was correctly or 
incorrectly decided. If a Justice believes the preceding case was 
correctly decided, he has no reason to go on to make the other 
calculations about weight and reliance and all the other factors that a 
Justice is to consider when deciding whether to overrule past 
precedent. He did not mention that step, though. In other words, Judge 
Alito's testimony presupposes that he continues to believe now what he 
believed in 1985, that Roe v. Wade was wrongly decided. Otherwise his 
answers make no sense. A justice does not waste time worrying about 
factors and weight and reliance when he considers the precedent 
correctly decided; that happens only when he is considering whether to 
overrule or limit that precedent.
  I mention this as just one more case. Much has been said about Roe. 
But for this Senator, it goes way beyond the question of Roe. It goes 
to the question of, to what extent would you allow a President to step 
aside from checks and balances? All his writings indicate a President 
should be able to do that. He is one of the strongest proponents I have 
heard in my life speaking about the so-called ``unitary Executive.''
  What does that mean in real life? It means this President, more than 
all Presidents in history--all Presidents in history--has used the 
Alito theory to say: Even though I signed a law, even though I signed 
something into law, I don't have to follow it because I am the 
President.
  There are only two Presidents I have heard say that something is not 
illegal if the President does it: One is Richard Nixon, and the other 
is George W. Bush, and President Bush has used the Alito theory to make 
this argument 103 times.
  That means he can sign a law saying the United States must obey our 
own laws, our treaties on torture, and then quietly write a separate 
page saying: However, as President, I will decide when we will follow 
that law.
  Judge Alito's contradictory testimony at the hearing about his view 
were revealing. He went to great lengths to distance himself from his 
public endorsement of Judge Bork's unsuccessful nomination to the 
Supreme Court. He had called Judge Bork one of the most qualified 
nominee of the last century and was effusive in his praise--until asked 
about it at the hearing. There he sought to backtrack. He sought to 
excuse his comments as those of a political appointee supporting his 
employer's nominee, but had to concede that was not an accurate 
explanation for his comments. Only when pressed did he concede that he 
indeed thinks highly of Robert Bork's candidacy.
  And when Senator Kohl asked him for his views of whether the Supreme 
Court should have taken the case of Bush v. Gore, his evasiveness 
reminded me of when I asked Clarence Thomas whether he had ever 
discussed Roe v. Wade with anyone. Senator Kohl was not even asking his 
views on the holding of that case.
  We are in a pivotal constitutional moment in our history with a 
single fundamental question: Will the Senate serve its constitutional 
role and preserve the Supreme Court as a constitutional check on the 
expansion of Presidential power?
  The reason Presidential power issues have come to dominate this 
confirmation is because we clearly have arrived at this crucial 
juncture in our Nation and at our highest Court over one simple 
question: Is the President of the United States above the law? I feel 
very strongly none of us are. You, Mr. President, are not, I am not, 
the President of the United States is not, the other 98 Senators are 
not, judges are not.
  The Framers knew that unchecked power leads to abuses and corruption, 
and the Supreme Court has to be the ultimate check and balance in our 
system. Vibrant checks and balances are instruments in protecting both 
the security and the liberty of the American people.
  This great, wonderful country of ours has existed for well over 200 
years because we have those checks and balances and because we protect 
the liberties of individual Americans--all Americans, not just those 
who fit into one narrow political ideology, but all Americans, all 
Americans, all Americans, from any part of this country: Americans who 
express popular ideas or unpopular ideas, a free press, free 
observation of religion, a free people. We have to have the Supreme 
Court as the ultimate check and balance, and the independence of the 
Court is crucial to our democracy and way of life.
  The Senate, as I said before, should never be allowed to become a 
rubber stamp and neither should the Supreme Court. We owe it to the 
American people today and Americans in generations to come to ask 
several essential questions:
  Can this President, or any President, order illegal spying on 
Americans?
  Can this President, or any President, authorize torture in defiance 
of our criminal statutes and our international agreements?

  Can this President, or any President, defy our laws and Constitution 
to hold American citizens in custody indefinitely without any court 
review?
  Can this President, or any President, choose which laws he will 
follow and which he will not, by quietly writing a side statement when 
he signs a bill into law?
  These are some of the most vital questions of our time, and they are 
among the most vital questions that confront the Senate in considering 
this nomination to our highest Court. Judge Alito's record, and his 
responses--and his failure to adequately answer questions about these 
issues--are deeply troubling.
  Regrettably, Judge Alito approached the question of a lifetime 
appointment to succeed Sandra Day O'Connor on the U.S. Supreme Court as 
a job application process that resembled a political campaign with two 
distinct parts. First, he had to get the nomination, which he sought as 
a committed arch-conservative and as a reliable vote in favor of 
Government power. That mission was accomplished when he was named to 
replace the nomination of Harriet Miers with the support of the 
President's most extreme supporters. That was his primary campaign. The 
Senate confirmation process is more the equivalent of a general 
election in which he strives to appear as middle-of-the-road as 
possible. Unfortunately, what he did not do successfully was to 
reconcile the two roles.
  I will vote against this nominee. I believe the President picked him 
for his demonstrated legal views which are a stark contrast to the 
image the White

[[Page S242]]

House and the handlers and supporters have attempted to create.
  Mr. President, I see the distinguished senior Senator from Alaska. I 
appreciate his courtesy and yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  Mr. STEVENS. Mr. President, I first want to comment about the 
chairman of the Judiciary Committee, Senator Arlen Specter. Knowing the 
health challenges he has faced in the past, witnessing this Senator's 
strenuous schedule in the last few months has been something to watch, 
to have the opportunity to witness his commitment to the Senate and to 
his role as chairman of the Judiciary Committee.
  I commend him very much for his dedication to his job and to his 
function as chairman of the Judiciary Committee. He has come through 
some very serious medical periods in his life, but he has distinguished 
himself in recent months in demonstrating his total commitment to the 
work of the Senate. I honor him for the job he has done in conducting 
these hearings.
  Mr. LEAHY. Mr. President, will the Senator yield on that one point? I 
totally agree with what he said about Senator Specter, who has been an 
example not just to the other 99 Senators but to the whole country.
  I am going to be honored to present him with an award, Tracy's Kids, 
awarding him for, among other things, primarily the example he has set 
for the rest of the country that somebody can face a very serious 
crisis and handle it with courage, dignity, and stalwartness. To all 
the people who suffer various forms of cancer--the distinguished 
Senator knows personally, and I know a dear member of my family--this 
kind of inspiration helps a great deal.
  I cannot thank the Senator from Alaska enough for the words he just 
said.
  Mr. STEVENS. Mr. President, I thank the Senator who serves with the 
chairman with great dignity on the Judiciary Committee. I cannot appear 
here without recognizing the serious illnesses that Senator Specter has 
gone through and survived and the energy he has shown despite those 
illnesses.
  To me, there is no doubt that Judge Samuel Alito is well qualified to 
serve on the Supreme Court. He has served as Assistant to the Solicitor 
General and as U.S. attorney for the District of New Jersey. He was 
unanimously confirmed by this Senate to serve on the U.S. Court of 
Appeals for the Third Circuit, and he has argued some 12 cases before 
the Supreme Court. He is well respected by our Nation's legal 
community. Seven of his current and former colleagues on the U.S. Court 
of Appeals for the Third Circuit testified in support of his 
nomination, and one of the former circuit judges who testified 
supporting his nomination was the former judge Jim Gibbons, who was a 
classmate of mine at law school and is a man whose judgment I respect 
very much.

  Judge Alito also received a unanimous ``well-qualified'' rating from 
the American Bar Association, and our majority colleagues on the 
Judiciary Committee have reported his nomination to the Senate 
favorably on a unanimous basis.
  In my some 38 years now in the Senate, I have voted to confirm 16 
nominees to the Supreme Court and 2 to the position of Chief Justice. 
In each instance, I have followed the advice of the Judiciary Committee 
on these votes, and I have always voted for a nominee based upon his or 
her qualifications. I have not been influenced by a Justice's personal 
political beliefs or the party affiliation of the President who sent 
the nomination to the Senate.
  For me, the decision to vote for Judge Alito is not a simple one. I 
am proud to come from a family with a long line of very strong pro-
choice women, and I have reflected their judgment here in the Senate. I 
am from a different generation. I remember well when a woman's right to 
choose to have an abortion was not recognized by our law. The reversal 
of Roe v. Wade would be destabilizing for our country and for our 
Federal system. It could and probably would lead to a battle to amend 
the Constitution to reassure American women of their rights, their 
constitutional rights. Such a battle is unnecessary as long as the 
Justices of the Supreme Court honor the doctrine of stare decisis.
  I asked Chairman Specter to give me some of the pertinent portions of 
the testimony before the Judiciary Committee, and over the past few 
days I have spent much time reviewing Judge Alito's answers to the 
questions posed to him by members of the Judiciary Committee. Those 
answers reflect a deep respect for precedent and for the doctrine of 
stare decisis.
  On the third day of his confirmation hearing, Judge Alito told the 
Judiciary Committee this:

       Roe v. Wade is an important precedent of the Supreme Court. 
     It was decided in 1973, so it has been on the books for a 
     long time. It has been challenged on a number of occasions . 
     . . and the Supreme Court has reaffirmed the decision; 
     sometimes on the merits; sometimes--in Casey--based on stare 
     decisis.
       And I think that when a decision is challenged and it is 
     reaffirmed, that strengthens its value as stare decisis for 
     at least two reasons.
       First of all, the more often a decision is reaffirmed, the 
     more people tend to rely on it. Secondly, I think stare 
     decisis reflects the view that there is wisdom embedded in 
     decisions that have been made by prior justices who take the 
     same oath and are scholars and are conscientious. And when 
     they examine a question and they reach a conclusion, I think 
     it's entitled to considerable respect. And, of course, the 
     more times that happens, the more respect the decision is 
     entitled to.

  Another portion of Judge Alito's testimony also influenced my 
thoughts on this vote. On the second day of the hearings, Judge Alito 
told the Judiciary Committee that if a case involving abortion comes 
before the Supreme Court while he serves on that Court:

       The first question that would have to be addressed is the 
     question of stare decisis . . . and then, if I were to get 
     beyond that, if the Court were to get beyond the issue of 
     stare decisis, then I would have to go through the whole 
     judicial decision-making process before reaching a 
     conclusion.

  This quote reflects the process Judge Alito stated he will follow to 
evaluate the cases that come before him if he serves on the Supreme 
Court. I understand his comments to mean he will seek consensus among 
his colleagues on the Supreme Court regarding the issues involving 
stare decisis. While serving on the Third Circuit Court of Appeals, 
Judge Alito ruled on three cases related to abortion. In each of these 
cases, he demonstrated a respect for and a deference to established 
rules of law. He did what he believed the law required; he did not seek 
to enact a personal political agenda. In fact, he told Senator Sessions 
during the confirmation hearings, in answer to a question of Senator 
Sessions:

       If I had been out to implement some sort of agenda to 
     uphold any abortion regulation that came along, then I would 
     not have voted the way I did in that Elizabeth Blackwell 
     case.

  Based on his past rulings and his testimony before the Judiciary 
Committee, I believe Judge Alito would respect stare decisis on the 
issue of Roe v. Wade or on any issue that comes before the Court where 
that should be respected. And as I vote to confirm his nomination, I do 
so on the assumption that Judge Alito will uphold this commitment, 
which he stated on the record, to stare decisis, a process he outlined 
for reviewing cases involving stare decisis.
  I yield the floor.
  Mr. ENZI. Thank you, Mr. President. I rise today in support of the 
nomination of Judge Samuel A. Alito, Jr., to be an Associate Justice on 
the U.S. Supreme Court. As a Senator, I have enjoyed the rare privilege 
of serving while the Senate considered two nominations to the U.S. 
Supreme Court in a short period. However, I am saddened to lose the 
knowledge and expertise of two experienced jurists from the Nation's 
High Court.
  The nominations of Chief Justice Roberts and Judge Alito have given 
us an opportunity to reevaluate the current relationship between the 
three branches of Government in comparison with the intentions of the 
Constitution. The evaluation shows that we have shifted into an era of 
judges who legislate. We must return to the elementary doctrines that 
recognize the important and distinct roles of each branch. Congress is 
elected by the public to represent them as legislators. Through voting, 
the public may reaffirm or replace office holders. There is no such 
check on federal judges. They are not elected by the public and they

[[Page S243]]

should not use their positions to legislate.
  In Judge Alito, President Bush has nominated a judge who recognizes 
the difference between his role and the congressional role. During his 
nomination hearings before the Senate Judiciary Committee, Judge Alito 
shared his thoughts on the judicial role:
  ``The judiciary has to protect rights, and it should be vigorous in 
doing that, and it should be vigorous in enforcing the law and in 
interpreting the law . . . in accordance with what it really means and 
enforcing the law even if that's unpopular. But although the judiciary 
has a very important role to play, it's a limited role. . . . It should 
always be asking itself whether it is straying over the bounds, whether 
it's invading the authority of the legislature, for example, whether it 
is making policy judgments rather than interpreting the law. And that 
has to be a constant process of re-examination on the part of the 
judges.''
  I have carefully reviewed Judge Alito's qualifications and watched 
the recently completed Senate confirmation hearing. The testimony 
provided by Judge Alito and the other witnesses underscore his 
commitment to the rule of law and a fair and impartial judiciary that 
interprets the law rather than legislates from the bench.
  Judge Alito has an excellent judicial reputation as being highly 
intelligent and fairminded. He was unanimously confirmed by the U.S. 
Senate to serve as U.S. attorney for the District of New Jersey. In 
that capacity, Judge Alito argued 12 Supreme Court cases and at least 2 
dozen court of appeals cases and handled at least 50 others. In 1990, 
President George H. Bush nominated Judge Alito to the U.S. Court of 
Appeals for the Third Circuit, and he was again confirmed unanimously 
by the U.S. Senate.
  I believe Judge Alito knows the difference between benches and bills, 
Courts and Congress. His appointment will move the Court back closer to 
the brand of justice the Framers of our Constitution intended, and I 
intend to support him.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. DAYTON. Mr. President, the most momentous votes I have cast 
during my years in this Senate were on two war resolutions, one against 
al-Qaida and the Taliban, which I supported, and the other against 
Iraq, which I opposed.
  After those life-and-death decisions, I cannot recall another vote of 
more long-lasting importance than on the two nominees for the United 
States Supreme Court: Chief Justice Roberts and now Judge Alito. The 
statements of my colleagues which I have witnessed have evidenced the 
utmost seriousness with which we have undertaken this grave 
responsibility.
  The Constitution does not prescribe any criteria which a President 
must consider in choosing his nominees for the Supreme Court. Neither 
does the Constitution prescribe any criteria by which Senators must 
consider those nominees and decide whether to vote for or against their 
confirmations. We must each establish our own measures, search our own 
consciences, and make our own individual decisions.
  Most of this process has been appropriately dignified and respectful, 
as it was with Chief Justice Roberts. I myself was not troubled by the 
detailed questioning of either nominee during their Judiciary Committee 
hearings. That is the one and only opportunity for any Senators to 
question a nominee in a public forum, before all Senators must decide 
whether or not to confirm that person to be one of nine Supreme Court 
Justices for the rest of his or her life. No other public office in 
this country offers such longevity and almost irrevocable security as 
Federal judiciary.
  I want to commend the members of the Judiciary Committee. I certainly 
want to associate myself with the remarks of Senator Stevens regarding 
the distinguished chairman, Senator Specter, whose personal courage and 
integrity are examples for us all, and the ranking member, Senator 
Leahy, who also holds himself to those high standards. I have read the 
transcripts from their confirmation hearings. Their questions, and the 
extensive research which informed them, brought, I believe, great 
credit upon them and their committee.
  Judge Alito's answers were also illuminating about him, although not 
in the same way as committee members' questions. A New York Times 
headline best summarized for me Judge Alito's responses: It said, ``700 
Answers; Few Glimmers.'' Again and again, his answers were evasive. 
Some were simply not believable.
  I would find it difficult to support Judge Alito's confirmation, 
given his past opinions, as expressed during his 15 years as a Federal 
Circuit Court Judge and also prior to that time as an official in the 
Reagan administration. I find it impossible to support him, given his 
recent lack of candor and credibility before the Judiciary Committee.
  Let me give some examples. On the critical question of whether he 
continues to believe, as he stated in 1985, that the Constitution does 
not provide a woman with the right to make her own reproductive 
decisions, regardless of how they affect her life or her health, Judge 
Alito would not give an answer. Nineteen times he was asked whether he 
believed Roe v. Wade was ``settled law,'' as Chief Justice Roberts 
affirmed during his Judiciary Committee hearings, as ``super 
precedent'' as the distinguished committee chairman suggested, or 
simply whether he had changed his 1985 position. He rejected the first 
two and refused to answer the third. My colleague, Senator Schumer, 
tried seven times to get a straight answer to a very straightforward 
question:

       In 1985 you stated--you stated it proudly, unequivocally, 
     without exception--that the Constitution does not protect a 
     right to an abortion. Do you believe that now?

  Judge Alito's replies included:

       I would address that issue in accordance with the judicial 
     process as I understand it and I have practiced it. . . .

  and:

       Senator, I would make up my mind on that question if I got 
     to it. . . .

  The most Judge Alito would say about Roe v. Wade or the subsequent 
Casey Supreme Court decisions was that they were precedents. As my sons 
used to say, ``Well, duh.'' Everyone knows that every prior Supreme 
Court decision constitutes a precedent. Again and again--and again--
Judge Alito invoked this platitude about respect for stare decisis, 
even though, as Senator Coburn pointed out, precedents have been 
overturned by the Supreme Court more than 170 times involving some 225 
cases.
  Senator Coburn had the candor to state clearly that he wants Roe v. 
Wade to be overturned, so I can only assume that his pointed historical 
references were intended to reassure all with similar views that they 
could continue to rely on Judge Alito to help form a Supreme Court 
majority which would reverse Roe v. Wade.
  Judge Alito is certainly entitled to his personal views and 
constitutional interpretations. The American people are entitled to 
know what they are before he is placed on their Supreme Court for the 
rest of his life, because his views and interpretations will profoundly 
affect their lives and the lives of future Americans.
  Unfortunately, Judge Alito denied most of us those answers. It is 
noteworthy, however, that the Senators who feel most strongly about 
overturning Roe v. Wade all support Judge Alito and seem comfortable 
with his nonanswers. I can't imagine such equanimity without other, 
private assurances that the nominee's bland platitudes belie a bedrock 
anti-Roe predisposition, as he stated candidly in 1985.
  Certainly, the country's anti-abortion activists get it. The 
thousands of them who marched on the Capitol last Tuesday reportedly 
cheered every time Judge Alito's name was mentioned. Quoting parts of 
the New York Times and Washington Post reports:

       We must support the confirmation of Judge Alito and other 
     jurists who will support a strict-constructionist view of the 
     law and make it possible once and for all to end Roe v. 
     Wade.'' Rep. Mike Pence (R-Ind.), a leading House 
     conservative, thundered.
       While Mr. Bush made no explicit mention of his nomination 
     of Judge Samuel A. Alito Jr. to the Supreme Court, the 
     expectation that the judge would soon win Senate approval and 
     join a majority in overturning Roe was clearly the 
     overarching message of the rally. . . .

  Most chillingly:

       Nellie Gray, the president of March for Life, the group 
     that organized the rally, said reversing Roe was this year's 
     theme. Speaking to the crowd in fiery tones, Ms. Gray 
     predicted that the United States would hold the

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     equivalent of Nuremberg trials for ``feminist abortionists,'' 
     calling support for a woman's right to choose ``crimes 
     against humanity.''

  Let me turn to other subjects. I agree with my colleague from 
Oklahoma, who told Judge Alito on the third day of the Judiciary 
Committee hearings:

       Integrity, I think, is the No. 1 issue.

  I always feel uncomfortable to stand in judgment of another person's 
integrity--or other matters of personal character--especially someone 
whom I do not know personally. No one is perfect. I like to say that 
there are no saints in politics--only shades of sinners.
  Yet I agree with Senator Coburn about the importance of integrity in 
a candidate for such a high public office as the United States Supreme 
Court or the U.S. Senate.
  So, I am very troubled by Judge Alito's answers to the Senate 
Judiciary Committee about two incidents: his membership in the 
Concerned Alumni of Princeton University and his initial failure to 
recuse himself from the case involving the Vanguard Group.
  Judge Alito acknowledged to the committee that he himself listed his 
membership in the Concerned Alumni of Princeton University in his 1985 
application for appointment by then-President Reagan to an important 
position in the U.S. Department of Justice. Presumably, he considered 
his membership to be a positive reason for his favorable consideration. 
Yet he repeatedly professed total ignorance of the organization's 
repeatedly expressed, very extreme prejudices against the admission of 
women and minorities to his alma mater. His only acknowledged glimmer 
of recollection was that he was concerned about the status of ROTC on 
the Princeton campus, even though, the committee research found ROTC 
had been readmitted by Princeton way back in 1973, and the only 
reference to it found in the Concerned Alumni's publication, Prospect, 
was in 1985, ``ROTC is popular again.''
  I find it not believable that Judge Alito would have no recollection 
of the extreme and extremely controversial views of the Concerned 
Alumni at the time he joined the organization or listed it as one of 
his credentials for the Reagan administration 20 years ago. He is too 
intelligent. His mind is too sharp. He recalls in great detail his 
judicial decisions and writings during the past 15 years and their 
precedents from the previous 200 years. He remembers the details of 
decisions in 1969 about ``one person--one vote.'' He remembers the 
context for other controversial statements in his 1985 application and 
subsequently. Yet he professes to be unable to remember why he joined 
the Concerned Alumni of Princeton University, why the president of 
Princeton wrote to all Princeton alumni in 1984, calling the 
organization's extremist views ``callous and outrageous,'' or why he 
thought his membership would enhance his appeal to the Reagan 
administration. I find it absolutely unbelievable.
  I am also troubled by many of Judge Alito's answers to questions 
about his initial failure to recuse himself from a case involving the 
Vanguard Group, in which he had a financial interest that preceded his 
appointment to the Third Circuit Court in 1990. During those 
confirmation hearings before the Senate Judiciary Committee, Judge 
Alito promised, in writing:

       I would disqualify myself from any cases involving the 
     Vanguard Companies. . . .

  I could accept--with reluctance, but I could accept--Judge Alito's 
admission that his failure to recuse himself was an ``oversight'' for 
which he accepted responsibility, after he and the White House 
initially tried to pass it off as a computer glitch. As Senator 
Feingold established, there is no evidence that Judge Alito ever 
registered his promise to the committee on the Court's recusal form in 
1993, 1994, 1995, 1996, or any time before he failed to recuse himself 
in 2002.
  Then, however, Judge Alito reached for the escape hatch that Senator 
Hatch offered him, i.e., that his 1990 promise applied only to 
``conflicts of interest during your initial service in the position to 
which you have been nominated.''
  In the committee transcript, Chairman Specter said:

       You, in response to Senator Hatch, did not believe that you 
     are bound by the promise, because you said in your mind that 
     you felt that it was just for the initial aspects of it.

  Senator Kennedy said:

       That's another issue, because initially was meant to 
     include the investments that you had at that particular time. 
     You might have those investments and then discard an 
     investment and, therefore, no longer have a conflict. That is 
     what the asker of the question had intended. But you've added 
     another wrinkle to it. You've just indicated that when you 
     made a pledge to the committee that you were going to recuse 
     yourself, that you thought that at sometime you were going to 
     be released. . . .

  Judge Alito responded:

       Senator, as I said, I can't tell you 15 years later exactly 
     what I thought when I read that question. It refers to the 
     initial period of service. And looking at it now, it doesn't 
     seem to me that 12 years later is the initial period of 
     service.

  I know from my own experience--as Judge Alito should also know--that 
a financial conflict of interest lasts for as long as the financial 
interest. It is not in any way limited or mitigated by time. That is a 
matter of integrity, not interpretation.
  In other areas, I am deeply troubled by Judge Alito's well-documented 
biases against individual Americans and in favor of large and powerful 
corporations and government organizations. The Knight Ridder 
Newspapers, which publishes two of Minnesota's three largest 
newspapers, did an excellent analysis of Judge Alito's judicial record. 
I would like to quote excerpts from it.
  It begins:

       A Knight Ridder review of Alito's 311 published opinions on 
     the 3rd Circuit Court of Appeals--each of singular legal or 
     public policy importance--found a clear pattern. Although 
     Alito's opinions are rarely written with obvious ideology, 
     he's seldom sided with a criminal defendant, a foreign 
     national facing deportation, an employee alleging 
     discrimination or consumers suing big businesses.
       A review of Alito' s work on dozens of cases that raised 
     important social issues found that he rarely supports 
     individual rights claims. The primary exception has been his 
     opinions about First Amendment protections. Alito has been a 
     near freespeech absolutist in his writings, and he's been 
     equally strong on protecting religious freedoms.
       But even some of his First Amendment opinions underscore 
     the bent in the rest of his work. He hasn't strictly enforced 
     church-state separation, and his love of the First Amendment 
     seems to stop at the prison walls. He has written opinions 
     that would deny prisoners access to reading materials and 
     curtail their rights to practice their religious beliefs.
       In other areas, Alito often goes out of his way to narrow 
     the scope of individual rights, sometimes reaching out to 
     undo lower-court rulings that affirmed those rights.
       Alito has been particularly rigid in employment 
     discrimination cases.
       Many conservative jurists set a high bar for plaintiffs who 
     allege racial, gender or age bias in the workplace, but Alito 
     has seldom found merit in a bias claim. In most of the 
     employment discrimination cases, Alito succeeded in 
     applying a standard higher than the Supreme Court requires 
     to plaintiffs' claims, often forcing them to prove that 
     bias was the motivation behind their misfortunes. In two 
     cases, Alito dissented from 3rd Circuit rulings that 
     allowed discrimination claims to proceed. In one, a racial 
     discrimination case involving a black hotel maid, Alito 
     agreed that the woman had been treated unfairly, but he 
     said that the employer had produced enough evidence to 
     show that the unfair treatment didn't amount to illegal 
     discrimination.
       Although Alito is the son of Italian immigrants, his record 
     in immigration cases is similar to his perspective in 
     criminal cases. He's demonstrated an inclination to defer to 
     the judgment of the immigration courts, which are under the 
     Justice Department's umbrella. As a result, a noncitizen 
     fighting deportation is paddling upstream with Alito.
       Legal scholars, and some of Alito's supporters, have 
     pointed to his decision in the case of Parastoo Fatin, a 
     young Iranian woman who was fighting deportation in the early 
     1990s, as evidence of his scholarship and his impact on 
     immigration law. Alito ruled in Fatin's case that gender-
     based persecution could be grounds for asylum. But the ruling 
     was a hollow victory for Fatin. She lost her case when Alito 
     found that she hadn't shown enough factual evidence to prove 
     that she'd be persecuted if she were sent back to Iran. It 
     was typical Alito--an impeccably crafted decision that denied 
     relief to an individual.
  Finally, I am very concerned with Judge Alito's view of executive 
power which reigns supreme over Congress and the judiciary. That 
radical view threatens the checks and balances the Constitution created 
among the three coequal branches of government to protect our democracy 
and the rights of all American citizens.
  All Senators--not just those on my side of the aisle--should be 
deeply troubled about Judge Alito's position on Executive power. He 
believes the President has the right to interpret laws as

[[Page S245]]

he wishes, rather than as they are written.
  As one illustration, while he served as Deputy Assistant Attorney 
General in the Reagan administration, Judge Alito recommended the use 
of interpretive presidential ``signing statements''--statements issued 
by the President when signing a bill not only to explain why the 
President signed it into law but also to provide his view of how the 
law should be interpreted.
  The apparent purpose of such statements is to encourage the courts to 
pay as much attention to the President's interpretation of a law as 
they do to the legislative branch and give the President the ``last 
word on questions of interpretation.'' Judge Alito explained that such 
statements would ``increase the power of the Executive to shape the 
law.''
  He also wrote in that memo: A ``President's understanding of a bill 
should be just as important as that of Congress.'' As a recent Los 
Angeles Times editorial stated, ``On its face, the assertion threatens 
to undermine the fundamental constitutional principle that it is for 
Congress to write the laws and for the executive to well execute 
them.''
  President Bush has issued over 100 signing statements since 2001. The 
most notable was his signing statement a couple days after he signed 
into law H.R. 2863, the Department of Defense emergency supplemental 
appropriations, which contained Senator McCain's amendment banning 
inhumane treatment of detainees by U.S. personnel. The President, in 
his signing statement, basically asserted he could ignore parts of the 
law he had just signed under his constitutional authority.
  Nowhere in the Constitution does it say a President can ignore the 
parts of a law he doesn't like.
  Nowhere in the Constitution is there mention of ``signing 
statements.'' The Constitution makes it very clear under article I, 
section 7 what the President can do with legislation that Congress has 
enacted. He can sign it into law as it is written by Congress or he can 
veto it. There is no other option.
  For almost 190 years, our country's first 39 Presidents followed this 
very clear language of the Constitution. However, then-Deputy Assistant 
Attorney General Alito in 1985 decided that he could ignore all those 
precedents and try to fabricate this ill-considered power for the 
President.
  As yet, the Supreme Court has not been called upon to decide whether 
this unprecedented exaggeration of Presidential power is 
Constitutional. Can there be any doubt, however, how Judge Alito would 
vote in such a case?
  In closing, some critics are blaming the Senators who oppose Judge 
Alito for the absence of bipartisan unanimity in support of the 
President's nominee. Their blame is misplaced. The way to get broad, 
bipartisan consensus for a Supreme Court nominee is for the President 
to nominate someone from near the middle of the judicial mainstream, a 
nominee who promises to be a Justice for all of the American people, 
not just for those on one side of the social spectrum.
  President Bush initially proposed someone who might have offered that 
possibility: Harriet Miers. In addition to her moderately conservative 
views, she would have maintained the Court's gender imbalance at two 
women and seven men. By contrast, if Judge Alito is confirmed, that 
appalling under-representation of America's women will become even 
worse. Our nation's highest court, the ultimate arbiter of the rights 
and protections for all citizens, will be comprised of eight men and 
only one woman, of eight Caucasians and only one minority.
  Unfortunately, the activist extremists on the country's political 
right erupted against Ms. Miers. Their vicious denunciations of the 
nominee and threats of political reprisals against her supporters 
prevailed, before her capabilities could be reasonably considered.
  Now some of that nominee's destroyers are sanctimoniously bemoaning 
the absence of unanimous support for this nominee.
  Unfortunately, their sound and fury, as Shakespeare said, signify 
nothing. Sadly, their winning this confirmation will not be a victory 
for this country because, tragically, they profoundly misunderstand the 
essential reason for the Supreme Court, which is to protect each one of 
us from all the rest of us, to protect the ``life, liberty, and pursuit 
of happiness'' of a minority of Americans from the potential domination 
by the majority.
  The nine men and women on the Supreme Court must protect everyone by 
belonging to no one. The goal of ``taking over'' the Supreme Court is 
shortsighted, narrow-minded, and wrong. Their success is America's 
peril. For our great Nation to continue to succeed, any and every such 
effort must fail. That failure is America's victory.
  The PRESIDING OFFICER (Mr. Allen). The Senator from Massachusetts is 
recognized.
  Mr. KERRY. I thank the Chair.
  Mr. President, let me begin by congratulating the Senator from 
Minnesota for an absolutely superb presentation of the arguments that 
are at stake in this choice which the Senate faces. I think he has done 
a terrific job of summarizing a great many of those issues in the broad 
scope of those issues, and I particularly appreciate the last comments 
he made about the absence of unanimity and the divisions in the Senate 
over their vote.
  None of us should forget the debate Harriet Miers met with a storm of 
criticism--not from this side but from the other, from the rightwing. 
In fact, she became more unacceptable to the Republicans because she 
did not make clear which ideological direction she would take the 
Court, rather than for the very broad-based appeal she would pose to 
the country.
  The reason we are here with this decision is not because of a choice 
we have made. It is because of a choice the President has made. It is 
because that is the direction the President wants to move in. We have 
had countless opportunities in the Senate where we have had votes on 
nominees which have garnered 100 votes, 98 votes, 95, 90. Anyone who is 
watching understands that the Senate is divided on this nominee. At 
this pivotal moment in our country's history with the issues we face, 
that is not the way to tip the balance of the Court or to move the 
Court in an ideological direction.
  The critical question here is, Why are we so compelled to accept in 
such a rush a nominee who has so clearly been chosen for political and 
ideological reasons? That is the real question. Our job is to advise 
and consent. No one understands better than I do the consequences of an 
election and what happens when a President wins. I have heard 
colleagues say: Well, the President won. He has a right to make his 
choice.
  Yes, he does. And the choice he has made is an ideological choice to 
take the Court in a certain direction. That is his choice.
  Our choice depends on our rights as Senators and depends on what the 
Constitution tells us we should do in terms of giving advice and 
consent. My question to the Senate is, What is our advice with respect 
to the rights of a young person to be strip-searched or with respect to 
people in their homes or with respect to a whole series of other 
critical things that define this country? What is the advice of the 
Senate in this year?
  These are not small issues to be expedited away by some kind of a 
symbolic timetable, a State of the Union Message. Our advice and 
consent ought to be weighed just as carefully and as importantly as the 
impact this choice is going to have on the Court for years to come. 
This is not just the vote of Monday afternoon. This is a vote of 
history.
  Deciding on whether to confirm Judge Sam Alito to be an Associate 
Justice is one of the most important votes I will cast in the time I 
have been in the Senate because of what it means to the Court and to 
these critical choices. Confirming Judge Alito to a lifetime 
appointment on the Supreme Court would have irreversible consequences 
that are already defined if Senators will take the time to measure 
them.
  In my judgment, it will take the country backward on critical issues. 
I will not talk about them all now; we do not have time. I know there 
is a pre-agreement. I understand that, and I respect that.
  I am proud to join my friend, the senior Senator from Massachusetts, 
in taking a stand against this nomination. I know it is an uphill 
battle. I

[[Page S246]]

have heard many of my colleagues. I hear the arguments: Reserve your 
gunpowder for the future. What is the future if it changes so 
dramatically at this moment in time? What happens to those people who 
count on us to stand up and protect them now, not later, not at some 
future time?
  This is the choice for the Court now. I reject those notions that 
there ought to somehow be some political calculus about the future. 
This impact is going to be now. This choice is now. This ideological 
direction is defined now.
  This fight is not a fight for the short term. This is a fight over 
two very fundamentally different views about what defines us, what is 
appropriate in the relationship between government and citizen, and the 
right of our citizens to be free from unlawful government action. These 
are not just words. This is not something we just casually throw out 
there. ``Unlawful government action'' is part of what motivated people 
to come here in the first place and to fight for what we love and 
cherish.
  I used to be a prosecutor, and I worked closely with police. I loved 
my work with the police. I respect the police. They do unbelievably 
dangerous work on behalf of our country every single day. They may walk 
into a home, into a dark corner, not knowing who is there or what evil 
awaits. I understand that. I also understand when you assume that 
responsibility, you assume a responsibility to uphold the law, to 
uphold the Constitution, and to help protect people. That is part of 
the risk, part of what you take on.
  What about the right to equal justice under the law? I heard one 
Senator the other day come to the Senate and say it isn't the job of a 
Supreme Court Justice to protect the downtrodden or the 
disenfranchised, it is their job to interpret the law. On countless 
occasions we all know the weight that comes to bear in that decision-
making process between powerful interests and those who do not have a 
voice. That is also part of what defines us. What makes America 
different from every country on the face of the Earth is that the 
average citizen can go into a courthouse in America and hold the most 
powerful corporation to account for their safety, for their livelihood, 
for their welfare. These are rights that Americans care about deeply.
  The importance of this choice is highlighted by focusing on the seat 
that this nominee has been chosen to replace. Look at Justice Sandra 
Day O'Connor, a deciding vote, a vote that will likely be lost if Judge 
Alito takes her place. Look at the case of Grutter v. Bollinger, which 
held that State colleges and universities have the right to use 
affirmative action in their admission policies to increase educational 
opportunities for minorities and promote racial diversity on campuses.
  What about Tennessee v. Lane, which upheld the constitutionality of 
title II of the Americans with Disabilities Act that required that 
courtrooms be physically accessible to the disabled. Or Rush Prudential 
HMO v. Moran, which upheld State laws giving people the right to a 
second doctor's opinion if their HMO tries to deny them treatment. That 
is a classic example of power against the powerless. It happens every 
day in America. An HMO decides, no; an individual citizen wants the 
coverage they think they got. Will they have the right to have the 
access on that?

  Hunt v. Cromartie, affirming the right of State legislatures to take 
race into account to secure minority voting rights and redistricting--
we all know what has happened in this country, the challenge to the 
rights of minorities to vote. We still see it. As recently as in the 
last election we saw minorities denied opportunities to register, 
opportunities to have equal numbers of voting machines in their 
district. These are the things that define us.
  Brown v. Legal Foundation of Washington, which maintained the key 
source of funding for legal assistance for the poor; Alaska Department 
of Environmental Conservation v. EPA, which allowed the EPA to step in 
and take action to reduce air pollution under the Clean Air Act when a 
State conservation agency fails to act--there is not an American that 
doesn't understand we are going backwards with respect to air quality. 
What are the rights of the EPA going to be where Justice Sandra Day 
O'Connor was the swing vote, 5-4, the only one who held the line on the 
right of the EPA to do that?
  Stenburg v. Carhart, which overturned a State law that would have 
banned abortion as early as the 12th week of pregnancy without 
providing an exception to a woman's health--the list goes on. These are 
the issues which are at stake.
  Throughout his legal career--these are not things that are made up. 
These are defined by the writings, by the decisions, by the memoranda, 
by the speeches that Judge Alito has made. In each of those, in all of 
those, there is a startling lack of skepticism that is healthy in 
judges towards government power that infringes on individual rights and 
liberties. Professor Goodwin Liu of the University of Berkeley Law 
School concluded after analyzing those:

       Judge Alito ``is less concerned about the government 
     overreaching than Federal appeals judges nationwide, less 
     concerned than Republican-appointed appeals judges 
     nationwide, and less concerned than his Republican-appointed 
     colleagues on the Third Circuit.''

  Aren't we going to be concerned that he is less concerned than those 
of the same stripe? Not only is his record outside the mainstream of 
the judicial spectrum, but ``it is at odds with the Supreme Court's 
vital role in protecting privacy, freedom, and due process of law.'' 
That is Professor Liu.
  In 1984, for example, Judge Alito wrote a Justice Department 
memorandum concluding that the use of deadly force against a fleeing 
unarmed suspect did not violate the fourth amendment. The victim was a 
15-year-old African American. He was 5 foot 4. He weighed 100 to 110 
pounds. This unarmed eighth grader was attempting to jump a fence with 
a stolen purse containing $10 when he was shot in the back of the head 
in order to prevent escape. The Sixth Circuit Court of Appeals found 
the shooting unconstitutional because deadly force can only be used 
when there is ``probable cause that the suspect poses a threat to the 
safety of the officers or a danger to the community if left at large.'' 
That is what we teach law enforcement officials.
  But Judge Alito disagreed. Judge Alito said: No, he believed the 
shooting was reasonable because ``the State is justified in using 
whatever force is necessary to enforce its laws''--even deadly force. 
That is his conclusion. That is the standard that is going to go to the 
Supreme Court if ratified. It is OK to shoot a 15-year-old, 110 pounds, 
a 5-foot-4-inch kid who is trying to get over a fence with a purse, 
shoot him in the back of the head.
  Otherwise, Judge Alito believed that any suspect could evade arrest 
by making the State choose between killing them or letting them escape. 
That is the conclusion. Think about that. Judge Alito believed that the 
State could use whatever force was necessary to enforce its laws 
regardless of whether the suspect was armed or dangerous. Does the 
Chair believe that? Do the other Senators believe that? I don't think 
so. Do mainstream Americans believe that?
  Lucky for us, we did not have to answer that question. Why? Because 
in 1985, Justice White rejected Judge Alito's position, and the court 
held that deadly force is not justified ``where the suspect poses no 
immediate threat to the officer and no threat to others''. The court 
stated unequivocally, ``a police officer may not seize an unarmed, 
nondangerous suspect by shooting him dead.''
  So Judge Alito is out of touch with mainstream juris prudence with 
respect to the use of force in America. Becoming a Federal judge did 
not make Judge Alito any more protective of an American's personal 
privacy and freedoms when it comes to government intrusion. That ought 
to concern every conservative in this Nation. Every conservative in 
America ought to care about the government's power to just walk into 
your home, to intrude on the rights of individual Americans.
  In Baker v. Monroe Township, over a dozen local and Federal narcotics 
agents raided the apartment of Clement Griffin, just as his mother and 
her three children were arriving for a family dinner. Officers forced 
the family down to the ground, pointed guns at them, handcuffed and 
searched them. Two Reagan appointees to the court held that a jury 
should decide whether

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excessive force was used, but Judge Alito disagreed. He agreed that the 
search was ``terrifying'' and ``most unfortunate''. But he did not 
believe that the family had a right to make their case to a jury in 
court. He would have denied those American citizens, terrified as they 
were, their day in court.
  Judge Alito, I regret to say, often goes out of his way to justify 
excessive government actions. Many have talked in the Senate about Doe 
v. Groody, where Judge Alito, dissenting in an opinion by our current 
head of the Department of Homeland Security, then-Judge Michael 
Chertoff, concluded that the strip-search of a 10-year-old girl was 
unreasonable. That was the conclusion of Judge Chertoff. Judge Alito 
concluded that the strip-search of a 10-year-old girl was 
reasonable. He reached this astonishing conclusion on a technicality. 
Rather than relying on the search warrant to determine whether the 
strip search of a child was authorized, Judge Alito argued that the 
court ought to look to the police officer's supporting affidavits.

  As a rule, however--now, I can say this as a former prosecutor 
because we used to labor over those warrants very carefully, knowing 
they were going to be scrutinized--affidavits are not part of the 
search warrants unless the trial judge decides they are. That ``goes to 
the heart of the constitutional requirement that judges, not the 
police, authorize the warrants. But Judge Alito said: No, no, no, no, 
it is OK to go look behind what they were intending, and decided they 
must have intended to include the search of the entire family, 
including a 10-year-old child. Is that the standard we want on the 
Court?
  Judge Alito's minimalist view of the fourth amendment's right to 
privacy is not limited to claims of excessive force. In United States 
v. Lee, he upheld the FBI's installation of a video and audio 
surveillance device in a hotel room in order to record conversations 
between the target of a bribery sting and a police informant. The FBI 
conducted the surveillance without a warrant, arguing, first, that the 
target had no expectation of privacy in a hotel room, and, second, that 
the device was turned on only when the informant was in the room. Judge 
Alito accepted the FBI's argument, and found no constitutional 
violation.
  His eagerness to buy the FBI's arguments, particularly in light of 
the Supreme Court decisions to the contrary, raises serious questions 
about how he would approach serious constitutional violations to the 
National Security Agency's program of domestic eavesdropping. Americans 
across the board are concerned about the violation of the law with 
respect to what we passed in the Congress overwhelmingly. After all, 
with the eavesdropping in Lee and the eavesdropping being conducted 
now, we see some startling similarity. Both are defended on the basis 
of Executive discretion and self-restraint.
  The fourth amendment is not defined that way. It is defined by 
judicial restraint itself, not the Executive restraint, and by judicial 
review.
  We also should never forget, as we think about this issue, the words 
of an eminent Justice, Justice Brandeis, who said:

       Experience should teach us to be most on our guard to 
     protect liberty when the Government's purposes are 
     beneficent. . . . The greatest dangers to liberty lurk in 
     insidious encroachment by men of zeal, well-meaning but 
     without understanding.

  I believe that is what we need to protect ourselves against. That is 
what the Framers created the judiciary to do. And that is what I fear 
the record shows Judge Alito has not been willing to do.
  Now, if his judicial opinions and legal memoranda do not convince you 
of these things, you can take a look at the speech he gave to the 
Federalist Society in which, as a sitting judge, he ``preached the 
gospel'' of the Reagan Justice Department nearly 15 years after he left 
it; a speech in which he announced his support of the ``unitary 
executive theory'' on the grounds that it ``best captures the meaning 
of the Constitution's text and structure.''
  As Beth Nolan, former White House counsel to President Clinton, 
describes it:

       ``Unitary executive'' is a small phrase with almost 
     limitless import: At the very least, it embodies the concept 
     of Presidential control over all Executive functions, 
     including those that have traditionally been exercised by 
     ``independent'' agencies and other actors not subject to the 
     President's direct control. Under this meaning, Congress may 
     not, by statute, insulate the Federal Reserve or the Federal 
     Election Commission . . . from Presidential control.

  Judge Alito believes you can.

       The phrase is also used to embrace expansive 
     interpretations of the President's substantive powers, and 
     strong limits on the Legislative and Judicial branches. This 
     is the apparent meaning of the phrase in many of this 
     Administration's signing statements.

  Now, most recently, one of those signing statements was used to 
preserve the President's right to just outright ignore the ban on 
torture that was passed overwhelmingly by the Congress. We had a long 
fight on this floor. I believe the vote was somewhere in the 90s, if I 
recall correctly. Ninety-something said this is the intent of Congress: 
to ban torture. But the President immediately turned around and did a 
signing in which he suggested an alternative interpretation. And Judge 
Alito has indicated his support for that Executive power.
  During the hearings, Judge Alito attempted to convince the committee 
that the unitary executive theory is not about the scope of 
Presidential power. But that is just flat wrong. Not only does the 
theory read Executive power very broadly, but, by necessity, it reads 
congressional power very narrowly. In other words, as the President 
gains exclusive power over a matter, the Constitution withholds 
Congress's authority to regulate in that field. That is not, by any 
originalist interpretation, what the Founding Fathers intended.
  Let me give you a real-life example, as described again by Beth 
Nolan:

       [W]hen the Reagan Administration undertook the covert arms-
     for-hostages operation that eventually grew into the Iran-
     Contra scandal, it triggered the requirement of the National 
     Security Act that the Administration provide Congress 
     ``timely notification'' of the covert operation.

  Reading the phrase ``timely notification'' against the background of 
the unitary executive theory, the Justice Department stated, ``The 
President's authority to act in the field of international relations is 
plenary, exclusive, and subject to no legal limitations save those 
derived from the applicable provisions of the Constitution itself.''

       According to Justice, under that interpretation, Congress's 
     role in this matter was limited because its only 
     constitutional powers in the area of foreign affairs were 
     those that directly involved the exercise of legal authority 
     over American citizens. Justice even qualified this 
     statement, saying that by ``American citizens'' it meant 
     ``the private citizenry'' and not the President or other 
     executive officials.

  According to Ms. Nolan:

       [I]f such claims are taken seriously, then the President is 
     largely impervious to statutory law in the areas of foreign 
     affairs, national security, and war, and Congress is 
     effectively powerless to act as a constraint against 
     presidential aggrandizement in these areas.

  Does that sound familiar? It ought to sound familiar. The Bush 
administration's legal opinion on torture, the administration's 
response to the McCain antitorture amendment, and the justifications 
given for the NSA's domestic spying program have all been based, in 
large part, on this exact same theory of the unitary executive.
  Given Judge Alito's history in the Reagan Justice Department, given 
his writings on the Third Circuit, given the year 2000 speech to the 
Federalist Society, a central question is whether you can trust that 
he, in fact, is going to protect the rights of the Congress and the 
legislative branch as well as those personal freedoms of individual 
Americans from those governmental intrusions?
  I believe the record says ``no.''
  Now, as I mentioned earlier, I know this is flying against some of 
the sort of political punditry of Washington. I understand that. But 
this is a fight worth making because it is a fight for a lifetime 
appointment on the Supreme Court of the United States, with a series of 
decisions that suggest a view--however brilliant a legal mind--he has a 
brilliant legal mind. I met with him. He is a nice fellow--we all 
understand that--well regarded by some people in the judicial system. 
He was looked at by the ABA. And they make a judgment based on sort of 
just legal decisions, not necessarily the ideological impact, the 
larger implication, all the other conditions that we need to consider 
as we give advice and consent.
  Perhaps Professor Liu of the Berkeley Law School put it best when he 
wrote this. He said:


[[Page S248]]


       Judge Alito's record envisions an America where police may 
     shoot and kill an unarmed boy to stop him from running away 
     with a stolen purse; where federal agents may point guns at 
     ordinary citizens during a raid, even after no sign of 
     resistance; where the FBI may install a camera where you 
     sleep on the promise that they won't turn it on unless an 
     informant is in the room; where a black man may be sentenced 
     to death by an all-white jury for killing a white man, absent 
     a multiple regression analysis showing discrimination; and 
     where police may search what a warrant permits, and then 
     some.

  He says:

       [T]his is not the America we know. Nor is it the America we 
     aspire to be.

  So these are the reasons we need to take a hard look at what we are 
doing, even if it means swimming upstream. There are consequences to 
this nomination that I do not believe all the American people got out 
of the hearings because the hearings did not answer questions. And when 
you pose some of these choices to Americans, they come down on the side 
that I have described: being protected, not making those kinds of 
choices about a young kid, making sure that our privacy is protected.
  So for those reasons, and others I will discuss starting on Monday, I 
oppose Judge Alito's nomination. And I hope that colleagues, others, 
will join in that effort in the end.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will please call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COCHRAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________