[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for the quorum call be rescinded.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.''
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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
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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
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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
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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
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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.
____________________