[Congressional Record Volume 152, Number 8 (Monday, January 30, 2006)]
[Senate]
[Pages S279-S308]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



               The President's State of the Union Message

  Mr. President, tomorrow night, the President of the United States 
will come to the Capitol and deliver his fifth State of the Union 
Address. This is an important moment for the President and for the 
country. Some say, reading the op-eds over the last week or so, this 
may be the most difficult speech the President will ever give.
  The President comes to the Capitol in the midst of also what some 
write about as the greatest culture of corruption since Watergate. 
Public trust has dropped significantly in this culture in Washington, 
and I need not run through all the problems, but I will run through 
some of them.
  The majority leader in the House of Representatives was convicted 
three times of ethics violations. They even went so far as to change 
the rules so he could stay in his position after having been indicted. 
They changed the rules back because the hue and cry of the American 
people was so intense.
  For the first time in 135 years, someone is indicted working in the 
White House. Mr. Safavian, appointed by the President to handle 
Government contracting--hundreds of billions of dollars a year--is led 
away from his office in handcuffs as a result of his dealings with Jack 
Abramoff and others.
  So I think in his speech, the President is obligated to the American 
people to show that he is committed to restoring the bonds of trust and 
repairing the damage done by this corruption.
  Americans know the country can do better today, and after the year we 
had, a year of trying to privatize Social Security, Katrina, failures 
in Iraq, Terri Schiavo, and a heavy heart I have, Mr. President, as a 
result of how a good woman was--I would not say destroyed because she 
was not; she is stronger than that. But Harriet Miers, how she was 
treated is unbelievable. A good woman was treated so poorly, and the 
people who tried to destroy her are the ones being rewarded now with 
the Alito nomination. Then, of course, this past year we had Medicare 
prescription drugs come into being, which is a puzzle that no one can 
figure out.
  So the American people, after this year we have had, simply will no 
longer be able to blindly accept the President's promises and give him 
the benefit of the doubt.
  Americans will be looking past his rhetoric tomorrow night and taking 
a hard look at the results he intends to deliver. The President's State 
of the Union Message is a credibility test. Will he acknowledge the 
real state of our Union and offer to take our country down a path that 
unites us and makes us stronger, or will he give us more of the same 
empty promises and partisanship that has weakened our country and 
divided Americans for the last 5 years?
  If he takes the first approach, together, Democrats and Republicans 
can build a stronger America. If he gives us more of the same empty 
promises and Orwellian doublespeak, we know he intends to spend 2006 
putting his political fortunes ahead of America's fortunes. We need a 
fresh start, and I hope President Bush realizes that tomorrow night.
  There is much more at stake in his speech than poll numbers. Empty 
promises will no longer work. We need a credible roadmap for our 
future, and we need the President to tell us how together we can 
achieve the better America we all deserve.

  Our first signal that the President intends to move our country 
forward will come in his assessment of the state of our Union. It is 
not credible for the President to suggest the state of the Union is as 
strong as it should be. The fact is, America can do much better. From 
health care to national security,

[[Page S280]]

this Republican corruption in Washington has taken its toll on our 
country. We can see it in the state of our Union.
  What is the state of our Union? The state of our Union is that we are 
less safe in this world than we were 4\1/2\ years ago because the White 
House has decided protecting its political power is more important than 
protecting the American people.
  We are the wealthiest Nation in the history of the world. Shouldn't 
we be the healthiest? Frankly, we are not because this administration 
decided to take care of the big pharmaceutical companies, the drug 
companies, the HMOs, managed care, instead of 46 million uninsured.
  We have a national debt climbing past $8 trillion. I have a letter I 
received a short time ago from the Secretary of the Treasury saying the 
debt is at $8.2 trillion and we need to raise it more. Over $9 trillion 
is what they are asking because the President squandered the strongest 
economy in the history of this country with reckless spending and 
irresponsible tax breaks for special interests and multimillionaires.
  We have an addiction to foreign oil that has climbed steadily over 
the last 4 years and doubled the price of heat for our homes and gas 
for our cars because the Vice President let big oil companies write our 
energy policy. And we have too many middle-class families living 
literally on the financial cliff. All statistics show the rich are 
getting richer, the poor are getting poorer, and the middle class is 
squeezing smaller and smaller all the time.
  The economic policies of this administration over 5 years has placed 
the needs of the wealthy and well connected ahead of working Americans.
  If President Bush is committed to making America stronger, he will 
acknowledge these facts Tuesday night. He will admit the steep price 
Americans have paid for this corruption, and he will proceed to tell us 
how he can make our country stronger.
  Our second clue that the President is committed to moving America 
forward will come in his remarks about national security. Tomorrow 
night, it is not credible for the President to tell us he has done all 
he can to keep Americans safe for the last 5 years. We know that 
because we have had vote after vote on the Senate floor to take care of 
our chemical plants, our nuclear power facilities, to check the cargo 
coming into this country, what is in the belly of that airplane in the 
cargo, and vote after vote, on a strictly party-line basis, we have 
lost.
  For all of this tough talk, President Bush's policies have made 
America less safe. His failed record speaks for itself.
  Osama bin Laden, the man who attacked us on 9/11, remains on the 
loose because, in his rush to invade Iraq, the President took his eye 
off the ball when we had him cornered in a place called Tora Bora, 
Afghanistan.
  As a result, he is gone. We don't know where he is, and he continues 
to threaten us today in his taunting, vicious, evil manner.
  Then there is the President's ``axis of evil.'' Four years ago, the 
President declared Iraq, Iran, and North Korea an ``axis of evil'' 
whose nuclear threats posed risk to the American people, and he was 
right. Well, mostly right. Instead of pursuing the correct policy to 
make it safer, he invaded Iraq. Now two members of the ``axis of 
evil''--North Korea and Iran--are more dangerous, and after spending 
billions of dollars and losing 2,300 American lives, we found out that 
the third, Iraq, didn't pose a nuclear threat at all.
  Then there is what this President has done to our military. Not only 
has he failed to properly equip our troops for battle--we know the 
stories are all over the country about 80 percent of our people who 
have been injured--that is 18,000 and 2,300 dead--80 percent of them 
would have been hurt less, many lives would have been saved had they 
had the body armor that was available.
  According to the Pentagon's independent studies, the Pentagon is 
stretched--stretched in a manner, as indicated in the paper today, as 
having mass advancements in rank, which they have never done before, 
because they are trying to keep people in the military, among other 
things. Our forces are stretched entirely too thin.
  The President's poor planning and refusal to change course in Iraq 
has made progress in 2006 harder to achieve. He has made it more 
difficult to spread democracy around the world because he has been 
undermining it right here at home.
  As Katrina made clear, he failed in the 4 years after 9/11 to prepare 
America for the threats we face. New Orleans could have been anyplace 
in America. The difference with Katrina is we had warning it was 
coming. But other threats, that won't be the case.
  America can do better. Tomorrow night, the President needs to provide 
a new way forward. Partisan attacks will only divide us. What we need 
is for the President to rally the country around our most important 
goal: protecting our people and our way of life.
  Democrats have always been willing to work with President Bush to 
make America more secure. We know our national security policy is not 
the place for political games. Democrats look forward to hearing how 
the Commander in Chief will govern and hope we have seen the swagger 
and partisanship of the ``campaigner in chief'' for the last time.
  Our third signal that President Bush understands what it will take to 
make the State of the Union strong will come when he talks about health 
care. Again, we are the wealthiest Nation in the history of the world. 
Shouldn't we be the healthiest? We are not. Because of the President's 
inaction on health care over the last 5 years, America faces a health 
care crisis of staggering proportions. There are 46 million Americans 
with no health insurance and millions more who are underinsured.
  The cost of health care premiums has doubled since 2001. 
Manufacturing giants, such as Ford and General Motors, are laying off 
tens of thousands of people for lots of reasons, but one reason is 
health care costs have skyrocketed.
  With a record such as that, it is not credible for the President to 
claim he has a vision to make health care affordable. He needs to 
present us new ideas that will move America forward, not trot out the 
same tired old policies that serve special interests and not the 
American people. Press reports, I fear, indicate we are in for the same 
old tired ideas. It is rumored that President Bush will again focus on 
something called health savings accounts.

  This administration has taught me that what I learned in college 
studying George Orwell has some validity today. We have Orwellian 
doublespeak such as the Healthy Forests Initiative, one piece of 
legislation that was for clearcutting of trees and other things to make 
our forests less healthy; our Clear Skies Initiative, which polluted 
the skies; Leave No Child Behind, which is leaving children behind; and 
the Deficit Reduction Act of 2005. Talk about Orwellian doublespeak; 
using the President's own numbers, the Deficit Reduction Act increased 
the deficit by $50 billion.
  Now he comes up with Health Savings Accounts. That is classic Bush 
doublespeak. It is not a credible solution to the health care crisis. 
This plan will force most Americans to spend more on health care while 
making it less available to millions of others. HSAs are nothing more 
than another giveaway to the same people the President has favored over 
hard-working Americans for the past 5 years. In fact, remember Social 
Security privatization? HSAs, or Health Savings Accounts, are a lot 
like that. They do nothing to solve the real problem. They make the 
situation worse for the American people and they create a financial 
windfall for the President's friends: HMOs, insurance companies and, of 
course, Wall Street, that will set up all these accounts.
  We do not need the President to offer more of the same on health 
care. We saw with the President's Medicare prescription drug plan that 
his policies too often put special interests ahead of the American 
people. Ask any senior citizen today about how the Medicare plan has 
helped them. Even if they could work a crossword puzzle out of the New 
York Times on Sunday, which is the hardest, day after day after day, 
they still couldn't solve the Medicare Program of President Bush. It is 
impossible.
  What we need is a new direction, one that puts families first. 
Democrats believe that addressing the health care crisis is not just a 
moral imperative, but it is also vital to our economic security and 
leadership in the world.

[[Page S281]]

Every day we go without reform is another day America takes another 
step backward from a position as global leader.
  For our families, we must make health care affordable and accessible. 
For our businesses, we must remove the burden of skyrocketing costs 
that is holding our businesses, our economy, and our workers back in 
the global marketplace.
  Our fourth clue that the President knows what America needs will come 
in his remarks about the economy. After all we have seen in the past 5 
years, it will not be credible for the President to claim our economy 
is growing, that his plan to reduce his deficits--and I say his 
deficits--is working, and that Congress is to blame for spending and 
bad decisions. The truth is, the fiscal nightmare we see today belongs 
to President Bush and President Bush alone.
  I love to watch golf on TV. I know I am not like a lot of people, I 
should be watching football or basketball or something. I love to watch 
golf on TV. It is a game of chess. Yesterday, Tiger Woods--this guy is 
fantastic. He is seven strokes behind after the first day. He has a bad 
day yesterday and wins the tournament. He has a bad day and wins the 
tournament.
  I mentioned records--he holds all kinds of records. That was the 47th 
tournament he won--quicker than anyone else, of course. He just turned 
30 years old. He won the Buick Open four times. That is what he won 
yesterday. He holds record after record. I mention these records 
because President Bush holds all the records. The highest deficit, he 
holds them all. There is not a close second. He has them all.
  It is not a record the American people envy, such as that of Tiger 
Woods. His financial record has bankrupted this country. We are going 
to be asked in a couple of days to increase the deficit ceiling--over 
$8.2 trillion.
  Here is another doublespeak Orwell would be proud of we are likely to 
hear tomorrow night. I am sure we are going to talk about the Bush 
competitive agenda. The President can talk all he wants about making 
America competitive, but for 5 years he has done nothing to keep 
America in the game. From what we have read in the press, this plan 
sounds like more empty rhetoric from a President who has spent 5 years 
slashing the funding we need to stay on the cutting edge. He shut the 
doors to thousands of college students by supporting cuts in student 
aid. He has allowed our country to fall further behind our trading 
partners. It is no accident what is happening in South America. 
President Reagan, President Clinton, and the first President Bush 
worked hard to democratize Central and South America. These countries 
are losing their democracy edge because we have so neglected them.
  He has lavished billions on big oil instead of investing in American 
technology and know-how to make us more energy independent. We need to 
hear new economic ideas tomorrow night. The President needs to tell us 
how he is going to begin paying down the debt, his debt, so our 
children and our grandchildren do not pay the price for his reckless 
fiscal record.

  It is so startling to me that Republicans--when I started my 
political career, they were the ones concerned about deficits. They 
have created them. They don't complain about them. It is stunning to 
me. The President has not vetoed a single spending bill. Of course, he 
hasn't vetoed anything, but why should he? We don't have separate 
branches of Government while he is here; the Republican Congress does 
whatever he wants. Maybe beginning the sixth year that will not be the 
case.
  We need the President to speak honestly about tax relief, about 
middle-class families and how they deal with these energy prices. The 
truth about the Bush tax cuts is multimillionaires stand, with his 
newest proposal, to get over $100,000 while the average working family 
will receive pennies on that. The President's priorities are upside 
down. It is time for him to join us and bring fairness to our Tax Code.
  Democrats are ready to work with President Bush, but he needs to 
commit to policies that put the needs of hard-working Americans first. 
One final signal that President Bush is committed to making America 
stronger will come on the issue of reform. Because of connections to 
the culture of corruption and stonewalling about Jack Abramoff, it is 
not credible for President Bush to claim the moral high ground on 
values as an honest government. President Bush needs to set an example, 
if he is going to lead our country forward tomorrow night. He needs to 
come clean about his connections to corruption, with Abramoff--as 
Republicans have called for. Hagel, Thune--Republican Senators have 
called for this. Too many Republicans have shown in recent days that we 
are going to obscure the facts and move on.
  There is legislation pending. We do not need a task force. We need 
Senators Lieberman and Collins to go ahead with the hearings and decide 
what needs to be done. Our legislation may not be perfect, but it is 
legislation we need to start with.
  It is Republicans who control the White House where men are willing 
to break the law and ignore America's best interests so they can 
protect their political power. Safavian, Libby, Rove--it is Republicans 
who control the Congress which sold its soul to special interests and a 
Republican rightwing base, a base that has its sights set on stacking 
our courts with extremist judges. They have acknowledged that. It has 
been K Street, the so-called K Street Project, that has conspired with 
lawmakers to put the well connected first, going so far as having them 
not hire Democrats to work as representatives.
  We have a plan to reform Washington. We need to bring it to the 
Senate floor. We need to do that. President Bush has to join with us. 
Anything less, we will know the President has no interest in changing 
his ways and making America stronger.
  The President faces a tremendous test tomorrow night. It is up to him 
to prove to the American people he intends to denounce the culture of 
corruption that has come to Washington since he arrived and change 
direction in 2006. Democrats are ready to work with President Bush in 
order to move our country forward because we believe that together, 
America can do better. So tomorrow night I hope President Bush will 
join us in putting progress ahead of politics so we can have a State of 
the Union that is as honest and strong as the American people.
  The PRESIDING OFFICER (Mr. Sununu). The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, I rise today to discuss the 
President's nomination of Samuel A. Alito, Jr., to the Supreme Court of 
the United States. I am pleased to have an opportunity to discuss this 
and to present reasons why my conclusion is going to be as it is.
  It is no secret that Judge Alito is from my home State and I was 
honored to introduce him to the Judiciary Committee. I talked with him 
privately in my office. He is an accomplished jurist from a 
distinguished family in New Jersey, and at that hearing our colleague 
from Pennsylvania, Chairman Arlen Specter, asked me if I was endorsing 
Judge Alito for this position and I told him I was just presenting 
evidence to the committee and I will let the record speak for itself. I 
was not going to make any prejudgments. I wanted to hear from Judge 
Alito. I wanted to listen to his answers to my colleagues' questions.
  This nomination, as all are when it comes to the Supreme Court, is an 
incredibly important moment for our Nation--particularly because Judge 
Alito has been nominated to replace Justice Sandra Day O'Connor. 
Justice O'Connor, over the past 25 years, has proven she is not an 
ideologically conservative Justice or a liberal Justice. She has not 
brought an agenda to the Court. That is why Justice O'Connor has been 
such an important swing vote--because she always studied the facts and 
the law and tried to apply them fairly.
  I did not always agree with her. But, like many Americans, I knew she 
came at these legal questions fairly and with an open mind. She showed 
respect for precedent. She put the law above her personal beliefs. In 
my view, it is critical that we replace Justice O'Connor with someone 
who shares her openminded approach of looking at the law and the facts 
with no political agenda. Even the mere threat of legal activism on 
this Supreme Court threatens the future of this country and the rights 
of our children, our grandchildren, and other generations.

[[Page S282]]

  Many legal experts--judges, lawyers, professors--have contacted me 
regarding this nomination. Some supported him, some opposed him. Many 
of these experts tried to convince me one way or the other. But when I 
listened to Judge Alito's hearings in the Judiciary Committee, I 
listened with the faces of my grandchildren in my mind; with the 
thoughts of ordinary people who depend on the fairness of our society. 
I was applying Judge Alito's philosophy to the real problems of 
everyday people--in New Jersey and across the Nation.
  I often hear many concerns from my constituents about how powerless 
they feel in the face of insurance companies that are often indifferent 
to their plight, or as an employee unfairly treated in the workplace. 
What rights do everyday Americans have in the face of giant 
corporations or unchecked Government power? At the hearing, it was 
clear that Judge Alito almost always lined up against the little guy 
and with the big corporations and Government. That is the side he came 
out on. In fact, the Knight-Ridder study of Judge Alito's rulings 
showed that he ``seldom sided with . . . an employee alleging 
discrimination or consumers suing big business.''
  The Washington Post analysis of all divided opinions on the Third 
Circuit involving Judge Alito found that he ``has sided against three 
of every four people who claim to have been victims of discrimination'' 
and ``routinely . . . defers to government officials and others in a 
position of government authority.''
  I don't think that is what our Founders wanted when they designed the 
Constitution.
  I want to give two examples. In Bray v. Marriott, an African-American 
motel worker in Park Ridge, NJ, alleged discrimination against her 
employer. The Third Circuit ruled that she deserved her day in court 
because there was enough evidence of discrimination. But Judge Alito 
dissented, citing concerns about the cost of trials to employers. 
Listen to that--citing concerns about the cost of trials to employers. 
I wonder if the Constitution makes any reference to that or does it say 
everybody should have equal rights when it comes to hearing their case 
in the courtroom?
  The other judges in that case criticized Judge Alito's dissent, 
saying that if it were law, then the employment discrimination laws 
would have no real effect.
  In another case, Sheridan v. Dupont, Judge Alito was the only judge 
of 11 judges who heard the case to find against a woman's claim of 
gender discrimination. Judge Alito stated that the alleged victim 
should not even get a trial. That is absolutely contrary to what our 
country is about. This is a nation of laws. The other judges were so 
distressed by Judge Alito's decision that they said ``the judicial 
system has little to gain by Judge Alito's approach.''
  So if he is confirmed to the Supreme Court we ask ourselves the 
question: Will Judge Alito make it more difficult for the everyday 
people to protect themselves and their families against the power of 
big business and unchecked Government? Do they need the help? Is that 
what we are talking about when we enact laws here? I hope not.
  Unfortunately, it appears almost certain.
  Regarding individual rights, there was a very disturbing exchange in 
the hearing involving the Constitutional right to reproductive choice.
  Senator Durbin asked Judge Alito if he would agree with Chief Justice 
Roberts' statement that the right to choose is ``settled law.'' It 
seems to me that it was a ``no-brainer''--of course it is settled law. 
It has been on the books for 33 years and upheld 38 times.
  You don't have to go to law school to figure that one out.
  But Judge Alito refused to say it was ``settled law.'' To me it was a 
telling moment in the hearings.
  I am not a lawyer, but I understand this: The right to choose is 
settled law. That means that is the law as it is seen by Judge Roberts, 
Chief Justice.
  Judge Alito's refusal to acknowledge that the right to choose is 
settled law indicates to me that, even before he sits on the Supreme 
Court, he intends to overturn Roe v. Wade.
  That is the interpretation I make from that.
  For everyday New Jerseyans, especially our State's women, that would 
be the realization of a nightmare. We do not want to turn back the 
clock on women's rights. Even if abortions become illegal, they will 
still happen--but largely in unsafe conditions. It's a nightmare that I 
do not want to risk happening.
  Then there is the issue of abuse of power and the power of the 
Presidency.
  Growing up in New Jersey, it is clear that our state is proud of our 
role in the American War for Independence. More battles of the 
Revolutionary War were fought in New Jersey than in any other state. 
The most famous image of that war is George Washington crossing the 
Delaware River at Trenton.
  New Jersey is a state of immigrants. Many New Jerseyans came to 
America to escape kings, despots and dictators. So we understand why we 
fought the War of Independence to get rid of King George.
  America doesn't want a king or an ``imperial President.'' Neither 
does New Jersey. That's why we have three co-equal branches of 
government.
  So when Judge Alito talked about his theory of a ``unitary 
executive''--a President above the other two branches of government--I 
found that very troubling.
  The Father of our Nation, George Washington, warned the American 
people about allowing a leader to claim too much power. In his farewell 
address to the nation, Washington indicated his concern about the 
Presidency becoming too powerful.
  He said we should avoid allowing:

       the exercise of the powers of one department to encroach 
     upon another. The spirit of encroachment tends to consolidate 
     the powers of all the departments in one, and thus to create, 
     whatever the form of government, a real despotism.

  Those are Washington's words. But they have a real resonance today.
  The current administration claims a power beyond the laws that 
Congress has set. It is an administration that believes it can spy on 
Americans without a warrant, despite specific laws to the contrary. 
These are the kinds of abuses that caused the citizens of New Jersey 
and the other American colonies to rise up against King George
  We don't want a King. And we don't want to create a Supreme Court 
that will crown this President--or any future President--Republican or 
Democratic.
  The question before us is not a generic question of whether Judge 
Alito is qualified for the Supreme Court. The real question is whether 
Judge Alito is the right person for this seat on the Supreme Court. The 
seat at issue is Sandra Day O'Connor's seat. It is a seat held by a 
middle of the road, balanced justice.
  As I noted during my testimony introducing Judge Alito to the 
Judiciary Committee: he is a young man. If the Senate confirms him for 
a lifetime appointment to the Supreme Court, he might serve for three 
decades--or even longer. His decisions would affect not only our 
rights, but also the rights of our children, our grandchildren and 
other future generations.
  That's why, after careful consideration and deliberation, I have 
decided to vote no on the confirmation of Judge Alito. He is a good, 
decent man--an ethical man. I do not think he subscribes to any bigoted 
views. But I believe there is a grave risk that he carries a legal 
agenda with him, one that he will bring to the Supreme Court.
  I don't think this is a black-and-white issue. I think it is a gray 
issue. If there is a gray issue, if there is doubt about where we are 
going to come out, I want to decide on protecting women's rights and 
protecting ordinary people in fairness before a court of law.
  While there will be law professors and others who will disagree with 
my analysis, as I said before, I am more concerned about the effect of 
this nomination on everyday people in New Jersey and across the 
country.
  I am proud that there is a Federal courthouse in Newark that carries 
my name. It was while I was absent from the Senate a while that that 
was done. But I fought hard to get an inscription placed on the wall of 
that courthouse. I wrote it. It reads:

       The true measure of a democracy is its dispensation of 
     justice.

  This Nation of laws has to continue to be just that, and people have 
to know that they are treated fairly and that their personal rights are 
protected and that they can bring courses of action if their rights are 
damaged.

[[Page S283]]

  I believe in that quote. It guides me today.
  For the parents fighting an insurance company for access to health 
care for their child, for the blue-collar worker facing harassment in 
the workplace, for women who want government's hands off their bodies, 
for everyday people, I will oppose this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. MENENDEZ. Mr. President, I rise, for the first time in this body, 
to speak on the nomination of Samuel Alito to serve on the Supreme 
Court of the United States. No matter one's political persuasion, we 
all take pride in the honor that has been bestowed on a fellow New 
Jerseyan.
  Samuel Alito's story is one that rings familiar to so many New 
Jerseyans, including myself. His parents came to this country in search 
of opportunity, and worked hard to build a better life for their 
children. The son of immigrants, Judge Alito's life is a story that 
demonstrates the power of seizing opportunity and working hard.
  Frankly, it is a story close to my own heart. I too, am the son of 
immigrants who came to New Jersey to seek a better life and greater 
opportunity. Thanks to their hard work, and my own, I was the first in 
my family to graduate from college and law school.
  Yet home State pride is not a sufficient reason for supporting a 
nominee. For a Supreme Court appointment is a life-time appointment. 
When the Supreme Court decides, it is the law of the land and their 
decisions affect the lives of millions of Americans. So, it's not where 
you come from that matters, but where you will take the nation.
  Sam Alito has served his entire legal career in public service, and 
for that he is to be commended. His work as a prosecutor and as an 
appellate judge for the past 15 years has given him substantial 
experience. In his hearings and his meeting with me, he demonstrated 
that he has a keen intellect. Judged simply by that standard, Sam Alito 
is ready to serve.
  But competence and intellect is the very least we should expect from 
someone seeking a lifetime appointment to the highest court in the 
land. Indeed, competence alone might be enough for a nominee for one of 
a myriad of other appointments. But this is about the Supreme Court of 
the United States. The Supreme Court, alone among our courts, has the 
power to revisit and reverse its previous decisions. So surely, we 
should also demand that our justices fairly interpret the law, respect 
judicial precedent, and properly balance the rights of individuals and 
the power of the state. Above all, we should demand that they check 
their personal beliefs at the door.
  The seat that Judge Alito hopes to fill is one of great importance. 
Justice O'Connor has been the deciding vote in key cases protecting 
individual rights and freedoms on a narrowly divided Court, and the 
stakes in selecting her replacement are high. I have not agreed with 
every one of her decisions. But she has shown throughout her tenure a 
respect for law over ideology and a commitment to deciding each case 
not on the personal views she brought to the bench, but on the facts 
before her. When some on the court sought to inject an activist 
political philosophy into judicial decision-making and to turn back the 
clock on the liberties afforded the American people under the 
Constitution, it was Justice O'Connor who blocked their path.
  I had hoped Judge Alito would clearly demonstrate that he shares the 
commitment to protecting the individual rights and freedoms that 
Justice O'Connor so often cast the deciding vote to defend. Decades of 
progress in protecting basic rights, including privacy, women's rights, 
and civil rights, are at stake with this nomination. The burden was on 
Judge Alito to be forthright and unambiguous in his answers.
  Unfortunately, his testimony was not reassuring and his record makes 
clear what kind of justice Judge Alito would be. A justice who would 
vote to overturn a woman's right to choose, a justice who has time and 
time again sided with corporations and against average Americans, a 
justice who would allow this administration to continue to stretch and 
potentially violate its legal and constitutional authority. Especially 
with the challenges our Nation faces today and will face tomorrow, 
America cannot afford that kind of justice.
  We live in extraordinary times today. President Bush has sought the 
accumulation of unprecedented powers. He has asserted the authority to 
not only torture detainees and indefinitely detain American citizens as 
enemy combatants, but to also conduct warrantless wiretapping of 
American citizens.
  At different times throughout our country's history, Presidents under 
the cloak of Commander-in-Chief have exercised excessive authority that 
has eroded individual rights and freedoms in the name of protecting the 
Nation. Over 200 years ago, our Founding Fathers purposely established 
our Nation's government with three distinct coequal branches to help 
prevent this concentration and abuse of power. An independent 
judiciary, part of our country's long and proud history of checks and 
balances, is the only thing that stands between the executive branch 
and these potential threats to our rule of law.
  In 2004, the Supreme Court stood up for the rule of law when it found 
that the President cannot ignore the Constitution and confine American 
citizens indefinitely without the ability to challenge their 
detentions. Decisions such as this, which recognize that our Nation's 
security is enhanced rather than undermined by respect of the rule of 
law, are what has always made the United States the envy of people 
around the world.
  The bias Judge Alito has shown in favor of the executive branch 
threatens to undermine the freedoms that our judiciary has historically 
protected. From his work as a government lawyer to a speech before the 
Federalist Society in 2000, he consistently favors the concentration of 
unprecedented power in the hands of the President, even endorsing the 
so-called ``unitary executive'' theory that even many conservatives 
view as being at the fringe of judicial philosophy. It virtually gives 
the presidency exclusive powers that historically have belonged to 
either Congress or the courts. This theory is an activist theory, not a 
theory that reflects mainstream American thinking or values. In fact, 
the Supreme Court has largely rejected it.
  Judge Alito has also backed granting absolute immunity to high-
ranking Government officials who authorized illegal, warrantless 
wiretaps of American citizens, which is another position the Supreme 
Court has rejected. As far back as the Reagan administration, he has 
advocated that the President issue signing statements in an effort to 
shape the meaning of legislation. President Bush has often used this 
practice, most tellingly in December when he claimed the administration 
could ignore the new law banning torture whenever he sees fit. This 
undermines one of the coequal branches of our government, the people's 
elected representatives of the United States Congress.

  Judge Alito has found against congressional authority when he argued 
in dissent in United States v. Rybar against a ban on machine guns that 
five other appellate courts and the Third Circuit itself upheld. Judge 
Alito also authored the majority opinion in Chittister v. Department of 
Community and Economic Development, invalidating parts of the Family 
and Medical Leave Act for exceeding the bounds of congressional 
authority--a position the Supreme Court subsequently rejected.
  Several in-depth reviews show, Judge Alito's rulings, especially his 
dissents, consistently excuse actions taken by the executive branch 
that infringe on the rights of average Americans. One study found that 
84 percent of Judge Alito's dissents favor the government over 
individual rights. Another, the Alito Project at Yale Law School 
conducted a comprehensive analysis of the Judge's 15 years on the 
Federal bench. They found that ``Judge Alito has permitted individuals 
to be deprived of property or liberty without actual notice or a prior 
hearing.''
  During his hearings and in my meeting with him, Judge Alito did 
nothing to distance himself from these positions; in fact, by refusing 
to candidly discuss where he stands on executive power, he only 
strengthened my concerns about his views.
  If it's not where you come from that matters, but where you will take 
the

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nation, does a Supreme Court with Justice Alito take the nation forward 
or move our Nation back?
  Back to a time when a President suspended the writ of habeas corpus; 
back to a time when a President ordered the internment of individuals 
based upon their ethnicity; and back to a time when a President ordered 
the unlawful breakins and wiretaps against his opponents.
  Our next Supreme Court justice must be a check and balance against 
broad Presidential powers that are inconsistent with our Constitution.
  With respect to reproductive rights, Judge Alito told the members of 
the Judiciary Committee that he would look at such cases with an ``open 
mind.'' However, he has, throughout his career, written that the 
Constitution does not protect a woman's right to choose, worked to 
incrementally limit and eventually overturn Roe v. Wade, so narrowly 
interpreted the ``undue burden'' standard in one specific case as to 
basically outlaw this right for an entire group of women, and refused 
to state whether Roe is ``settled law.''
  When asked by Judiciary Committee Chairman Specter whether he 
continues to believe that the Constitution does not protect the right 
to choose, as he wrote in his 1985 job application at the Department of 
Justice, Judge Alito acknowledged that it was his view in 1985, but 
refused to say whether or not he holds that view today. I found Judge 
Alito' s refusal to answer this question extremely troubling.
  Later, as an Assistant Solicitor General, Judge Alito wrote a memo 
outlining a new legal strategy that the Reagan administration could use 
to ``advance the goals of bringing about the eventual overruling of Roe 
v. Wade and, in the meantime, of mitigating its effects.''
  As a judge on the Third Circuit Court of Appeals, Judge Alito alone 
concluded that all of the Pennsylvania restrictions, including the 
spousal notification provision, should be upheld as constitutional in 
Planned Parenthood v. Casey. Ultimately, the Supreme Court found 5-4 
that the spousal notification provision was unconstitutional. Justice 
O'Connor, who wrote the opinion, rejected Judge Alito's arguments and 
wrote that the spousal notification provision constituted an 
impermissible ``undue burden'' on reproductive rights. She concluded by 
saying ``Women do not lose their constitutionally protected liberty 
when they marry.''
  During our meeting, when I asked Judge Alito, ``Do you believe Roe v. 
Wade is the `settled law' of the land,'' he was unwilling to say that 
it is settled law. During the Judiciary Committee hearing, he said 
multiple times in response to questions from three of my distinguished 
colleagues on the Committee that the principle of stare decisis, or 
respect for precedent, is not an ``inexorable command.'' While this is 
undoubtly the case, this language is exactly what Justice Rehnquist 
used in his dissent in Planned Parenthood v. Casey when arguing that 
Roe should be overturned. Justice Rehnquist wrote, ``In our view, 
authentic principles of stare decisis do not require that any portion 
of the reasoning in Roe be kept intact. `Stare decisis is not . . . a 
universal, inexorable command.' ''
  Because I was concerned that his approach to these issues is far 
different than Justice O'Connor's, I gave Judge Alito every opportunity 
in our meeting to alleviate my concerns and those expressed by many New 
Jerseyans. I regret that he did not do so.
  If it's not where you come from that matters, but where you will take 
the Nation, does a Supreme Court with Justice Alito take the nation 
forward or move our Nation back?
  What does Morning in America look like after Judge Alito becomes a 
Supreme Court justice? Will it be an America where a woman's 
constitutional right to privacy is not acknowledged? Will it be an 
America where a woman does not have access to the best medical care? 
Will it be an America where women do not control their own bodies?
  Our next Supreme Court justice must respect both the constitutional 
right to privacy and a woman's right to choose.
  Our Nation's civil rights are needed to provide equal rights in 
employment, voting, or disability, they are designed to eliminate 
discrimination from our society and to provide equal opportunity and 
access. These laws are often the direct result of our country's civil 
rights movement.
  Unfortunately, Judge Alito has consistently applied a narrow 
interpretation of civil rights laws. Over his 15-year judicial career, 
he has more often than not sided with corporations and against 
individuals.
  In five split decisions involving a claim of sex discrimination, 
Judge Alito has sided with the person accused of the sex discrimination 
every time. In Sheridan v. E.I DuPont de Nemours, a woman brought a 
gender discrimination lawsuit after being denied a promotion. A jury 
ruled in her favor, but the trial judge threw out the verdict. The full 
complement of the Third Circuit voted 10-1 to reverse the judge's 
decision in this sex discrimination case and remand the case for 
reconsideration. Judge Alito wrote the lone dissent, arguing that the 
case should be dismissed. If Judge Alito's view was the law of the 
land, virtually no woman who has been wrongfully denied a promotion 
based upon her gender would have her day in court.
  In the area of race discrimination, Judge Alito voted in dissent 
against the plaintiff in both split decisions cases. The Third Circuit 
held that the plaintiff in Bray v. Marriot Hotels had shown enough 
evidence of possible racial discrimination to merit a trial before a 
jury. As in Sheridan, Judge Alito dissented, saying that the plaintiff 
had not produced enough evidence even to get to a trial of a jury of 
their peers. If Judge Alito's view was the law of the land, virtually 
no person of color would be able to pursue discrimination based on race 
in the courts of our nation.
  From the bench, Judge Alito has participated in five split decisions 
in the area of disability rights law and he sided with the defendant 
four out of the five times. In Nathanson v. Medical College of 
Pennsylvania, relating to a college's knowledge of and response to the 
disability needs of a student, the majority held that the facts 
required a jury to hear her claims. Judge Alito disagreed with the 
majority, writing that Nathanson failed to prove that the college acted 
unreasonably in its responses to her requests for alternative seating 
arrangements. If Judge Alito's view was the law of the land, virtually 
no disabled person denied alternative accommodations could seek relief 
from the court.
  These are only symbolic of the many cases where Judge Alito would say 
no to the average American citizen.
  If someone's daughter was seeking relief from discrimination based 
upon her gender, Judge Alito would say no. If an American of color was 
seeking relief from discrimination based upon their race, Judge Alito 
would say no. If someone's handicapped son was seeking relief from 
discrimination based upon his disability, Judge Alito would say no. 
Judge Alito would make it virtually impossible for an individual to go 
to court when his or her rights were violated, and have their day of 
judgment.
  If it's not where you come from that matters, but where you will take 
the Nation, does a Supreme Court with Justice Alito take the Nation 
forward or move our Nation back?
  Back to a time when there was not equal access to schools and 
government programs, back to a time when employers could fire employees 
without just cause; and back to a time when all citizens were not 
guaranteed the right to vote.
  Our next Supreme Court justice must truly subscribe to the 
inscription above the entrance to the United States Supreme Court--
``Equal Justice under Law.''
  The confirmation of a Supreme Court justice is one of the two most 
important responsibilities that a Senator has, in my view. The first is 
a decision on war and peace, which is also about life and death. The 
other is deciding who will have a lifetime appointment to the Court 
that decides the laws of the land.
  Make no mistake about it, Judge Alito is a decent, accomplished, 
intelligent man. A man who is proud to call our shared State of New 
Jersey home. But it is not enough to come from New Jersey--the test 
is--will you represent the values of New Jersey and this Nation on the 
highest court in the land?
  In New Jersey we value creating opportunity, we cherish the idea of 
individual freedom and responsibility, and

[[Page S285]]

we believe that justice is a force that should level the playing field 
between the individual and the powerful.
  I have given careful consideration to this nomination, and I entered 
the process with hopes of supporting Judge Alito. This is my first vote 
in this Senate, and I had hoped to cast it in support of this nominee, 
but after reviewing his record, and his testimony before my fellow 
Senators, I cannot.
  The question for me has been will he tilt the court in its ideology 
so far that he will place in jeopardy decades of progress in protecting 
individual rights and freedoms. I am afraid that answer is yes. In good 
conscience, I regrettably cannot support his nomination for a lifetime 
appointment to be an Associate Justice of the Supreme Court of the 
United States.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Coleman). The Senator from Missouri.
  Mr. BOND. Mr. President, on the question of the confirmation of Judge 
Samuel Alito, when you boil everything down and clear away all of the 
other issues, the most important thing each of us wants from a judge is 
fairness and impartiality. None of us would want to go into a courtroom 
and think our judge had already made up his mind before hearing our 
case. Whether we are rich or poor, weak or strong, but especially if we 
are poor or weak, victim or defendant, we need to know we will get a 
fair trial.
  We would not get a fair trial if we faced a judge who had already 
made up his mind. Not only would the deck be stacked against us, we 
would be dealt a losing hand if we had to face a judge with an agenda 
different from our case. That is what justice means--impartial and 
objective. That is the kind of judge we want hearing our case, and that 
is the kind of judge Sam Alito is.
  Everything we have learned about Judge Alito, from his testimony 
before the Senate Judiciary Committee, his lengthy record of decided 
cases, to the testimonials of his colleagues and peers, tells us that 
Judge Alito will be a fair, impartial, and objective Justice.
  Judge Alito has told us how he believes a judge cannot prejudge an 
issue, a judge cannot have an agenda, a judge cannot have a preferred 
outcome in any particular case.
  I was so glad to see that during his confirmation hearing Judge Alito 
would not allow himself to be forced into prejudging any cases. Now, 
many tried. They went down their list of issues and asked whether Judge 
Alito agreed with their agenda. They wanted to know how he would rule 
on one kind of case or another. They wanted him to decide cases before 
he even heard them. That would not be justice, and that would not be 
Judge Alito.
  Not only does Judge Alito know justice, Judge Alito knows democracy. 
Democracy means that laws governing the people can only be made by 
those elected by the people to make laws. He knows the Members of 
Congress are elected to make laws. The citizens of Missouri elected 
their Representatives and Senators to represent them in Congress, the 
legislative body. I am honored to be one of those so chosen. Judge 
Alito is not.
  The citizens of Missouri are not electing Judge Alito to make laws. 
Judge Alito knows he will not have the power to make laws. Judge Alito 
knows he is neither a Congressman nor a Senator who can pass his own 
legislation from the bench. That is not the role of a judge.
  Judge Alito knows he is not a politician advocating a program. That 
is not what a judge should do. He is not a politician responding to a 
stakeholder, carrying out the agenda of his constituency, whether it be 
New Jersey or any other State in the Nation, taking the pulse of voters 
or watching the polls. That is not how to be a judge.
  Judge Alito has told us he will look at the facts with an open mind 
and then apply the Constitution and the laws as written. He will not 
make up the law when he wants, he will not change the law when he 
needs.
  Judge Alito also knows the law, as many of my colleagues on the 
Senate Judiciary Committee found out. At every stage of his life, he 
has excelled at knowing and applying the law. As a law clerk to a 
Federal judge, Department of Justice official, Federal prosecutor, and 
now a Federal appellate judge with 15 years experience on the bench, 
Judge Alito is one of the most qualified ever nominated for the Supreme 
Court.

  A very good friend of mine is an appellate judge, who in law school 
had the pleasure of supervising a legal document written by Judge 
Alito. He told me Judge Alito had the finest legal, judicial mind he 
had ever encountered. I trust his judgment.
  Judge Alito's peers and colleagues all agree that Judge Alito is 
supremely qualified for the Supreme Court. He comes highly recommended 
by his colleagues and members of the legal profession because of his 
legal knowledge and experience. Even those who have worked with Judge 
Alito and disagree with him on the issues or the outcome of his rulings 
consider him fair-minded and evenhanded.
  In short, Judge Alito will make a great Supreme Court Justice. 
Unfortunately, and regrettably, the Senate's vote will not reflect 
that. Perhaps it was a simpler time, less partisan, less subject to 
politics, less subject to the whims of shifting constituencies and 
pressure groups when we could overwhelmingly support those 
overwhelmingly qualified for the Court.
  For example, both Justices Ginsburg and Scalia received unanimous or 
near unanimous approval. One came from the left, nominated by a 
Democratic President, and an advocate for the ACLU; another is a 
brilliant legal mind, supported by the right. Partisan politics were 
put aside when we voted for these Supreme Court nominees.
  Unfortunately, there are those who want to use Judge Alito as a 
political football. I, for one, believe very strongly our judges and 
our justice system should be above partisan politics. Justice deserve 
better than to have the nominees dragged through the political mud.
  My focus is on the nominee himself and on his legal knowledge and 
experience. In that regard, Judge Alito should be on the Supreme Court, 
and I will proudly vote to place him on the Supreme Court.
  Every case he hears, he will approach with an open mind. Every case 
he considers, he will apply the law and Constitution as written. Every 
case he decides, he will check his personal feelings at the door and 
weigh the scales of justice.
  We can expect, and should expect, nothing more from a Justice, and 
justice deserves nothing less.
  I urge my colleagues to put aside partisan politics, to put aside 
pressure from special interests, to vote to invoke cloture, and then to 
vote on a majority vote to confirm Justice Alito to the Supreme Court.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I have in my hand a number of endorsement 
letters that have been written, starting with the Grand Lodge of the 
Fraternal Order of Police. I ask unanimous consent that these letters 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      Grand Lodge,


                                    Fraternal Order of Police,

                                Washington, DC, November 18, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Committee to the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Senator Leahy: I am writing on behalf 
     of the membership of the Fraternal Order of Police to advise 
     you of our strong support for the nomination of Samuel A. 
     Alito, Jr. to be an Associate Justice on the United States 
     Supreme Court.
       Judge Alito has a long and distinguished career as a public 
     servant, a practicing attorney, and a Federal jurist. He 
     currently serves as a justice on the U.S. Court of Appeals 
     for the Third Circuit, the very same Circuit where he began 
     his career as a law clerk for Judge Leonard I. Garth. Judge 
     Alito spent four years as an Assistant U.S. Attorney before 
     becoming an Assistant to the U.S. Solicitor General in 1981. 
     During his tenure with the Solicitor's office, he argued 
     thirteen cases before the United States Supreme Court, 
     winning twelve of them. In 1985, he served as Deputy 
     Assistant U.S. Attorney General before returning to his 
     native New Jersey to serve as U.S. Attorney in 1990. 
     Nominated by President George H.W. Bush to the Third Circuit, 
     the Senate confirmed him unanimously on a voice vote.
       The F.O.P. believes that nominees for posts on the Federal 
     bench must meet two qualifications: a proven record of 
     success as a practicing attorney and the respect of the law 
     enforcement community. Judge Sam

[[Page S286]]

     Alito meets both of these important criteria. In his fifteen 
     years as a Federal judge, he has demonstrated respect for the 
     Consistution, for the rights of all Americans, for law, and 
     for law enforcement officers, who often find it very 
     difficult to successfully assert their rights as employees. 
     Judge Alito demonstrated his keen understanding of this in a 
     case brought by Muslim police officers in Newark, New Jersey 
     (Fraternal Order of Police Newark Lodge No. 12 v. City of 
     Newark, 1999). The Newark Police Department sought to force 
     these officers to shave their beards, which they wore in 
     accordance with their religious beliefs. Judge Alito ruled in 
     favor of the officers in this case, correctly noting that the 
     department's policy unconstitutionally infringed on their 
     civil rights under the First Amendment.
       The F.O.P. is also very supportive of Judge Alito's 
     decision in a 1993 decision filed by a coal miner seeking 
     disability benefits under the Black Lung Benefits Act (Cort 
     v. Director, Office of Workers' Compensation Programs). Judge 
     Alito ruled in favor of a coal miner, holding that the 
     Benefits Review Board which denied the miner's claim had 
     misapplied the applicable law regarding disability. He 
     ordered that the case be remanded for an award of benefits, 
     instructing that the Board could not consider any other 
     grounds for denying benefits. Members of the F.O.P. and 
     survivor families who have been forced to appeal decisions 
     which denied benefits under workers' compensation laws or 
     programs like the Public Safety Officer Benefit (PSOB) know 
     first-hand just how important it is to have a jurist with a 
     working knowledge of applicable law and a strong 
     identification with the claimants as opposed to government 
     bureaucrats looking to keep costs down.
       Judge Samuel A. Alito, Jr. has demonstrated that he will be 
     an outstanding addition to the Supreme Court, and that he has 
     rightfully earned his place beside the finest legal minds in 
     the nation. We are proud to support his nomination and, on 
     behalf of the more than 321,000 members of the Fraternal 
     Order of Police, I urge the Judiciary Committee to 
     expeditiously approve his nomination. Please do not hesitate 
     to contact me, or Executive Director Jim Pasco, through our 
     Washington office if we may be of any further assistance.
           Sincerely,
                                                 Chuck Canterbury,
     National President.
                                  ____

                                                 November 9, 2005.
     Hon. Bill Frist,
     Majority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Majority Leader Frist, Minority Leader Reid, Chairman 
     Specter, and Ranking Member Leahy: We are former law clerks 
     of Judge Samuel A. Alito, Jr. We are writing to urge the 
     United States Senate to confirm Judge Alito as the next 
     Associate Justice of the United States Supreme Court.
       Our party affiliations and views on policy matters span the 
     political spectrum. We have worked for members of Congress on 
     both sides of the aisle and have actively supported and 
     worked on behalf of Democratic, Republican and Independent 
     candidates. What unites us is our strong support for Judge 
     Alito and our deep belief that he will be an outstanding 
     Supreme Court Justice.
       Judge Alito's qualifications are well known and beyond 
     dispute. Judge Alito graduated from Princeton University and 
     Yale Law School. Prior to his appointment to the bench, Judge 
     Alito had a distinguished legal career at the Department of 
     Justice, which culminated in his appointment as the U.S. 
     Attorney for the District of New Jersey. Judge Alito has 
     served on the United States Court of Appeals for the Third 
     Circuit for 15 years and has more judicial experience than 
     any Supreme Court nominee in more than 70 years. During his 
     time on the bench, Judge Alito has issued hundreds of 
     opinions, and his extraordinary intellect has contributed to 
     virtually every area of the law.
       As law clerks, we had the privilege of working closely with 
     Judge Alito and saw firsthand how he reviewed cases, prepared 
     for argument, reached decisions, and drafted opinions. We 
     collectively were involved in thousands of cases, and it 
     never once appeared to us that Judge Alito had pre-judged a 
     case or ruled based on political ideology. To the contrary, 
     Judge Alito meticulously and diligently applied controlling 
     legal authority to the facts of each case after full and 
     careful consideration of all relevant legal arguments. It is 
     our uniform experience that Judge Alito was guided by his 
     profound respect for the Constitution and the limited role of 
     the judicial branch. Where the Supreme Court or the Third 
     Circuit had spoken on an issue, he applied that precedent 
     faithfully and fairly. Where Congress had spoken, he gave the 
     statute its commonsense reading, eschewing both rigid 
     interpretations that undermined the statute's clear purpose 
     and attempts by litigants to distort the statute's plain 
     language to advance policy goals not adopted by Congress. In 
     short, the only result that Judge Alito ever tried to reach 
     in a case was the result dictated by the applicable law and 
     the relevant facts.
       Our admiration for Judge Alito extends far beyond his legal 
     acumen and commitment to principled judicial decision-making. 
     As law clerks, we experienced Judge Alito's willingness to 
     consider and debate all points of view. We witnessed the way 
     in which Judge Alito treated everyone he encountered--whether 
     an attorney at oral argument, a clerk, an intern, a member of 
     the court staff, or a fellow judge--with utmost courtesy and 
     respect. We were touched by his humility and decency. And we 
     saw his absolute devotion to his family.
       In short, we urge that Judge Alito be confirmed as the next 
     Associate Justice of the Supreme Court.
           Sincerely,
       Signed by 51 former clerks.
                                  ____

                                                    Edwards Angell


                                           Palmer & Dodge LLP,

                                  New York, NY, November 23, 2005.
     Re Samuel A. Alito.

     U.S. Senate,
     Committee on the Judiciary, Dirksen Senate Office Building, 
         Washington, DC.
       Dear Members of the Senate Judiciary Committee: I am 
     writing to express my enthusiastic and unqualified 
     recommendation that Samuel A. Alito be confirmed as an 
     Associate Justice of the United States Supreme Court.
       I worked with Judge Alito in 1987. He was appointed United 
     States Attorney for the District of New Jersey. At that time 
     I was the Deputy Chief and Acting Chief of the Special 
     Prosecutions Unit. I continued in that capacity for 
     approximately eight months after Sam arrived at the U.S. 
     Attorney's Office. He was an exemplary U.S. Attorney. He was 
     also an exemplary boss. He was at all times knowledgeable, 
     thoughtful and supportive of me and the other lawyers in the 
     office. In his quiet and wryly humorous way, he demonstrated 
     wonderful leadership. It was clear that he was very conscious 
     of the responsibilities of that office and he fulfilled those 
     responsibilities admirably. I was very proud to work for Sam 
     Alito.
       After leaving the U.S. Attorney's Office, I became a 
     private practitioner. I have had the pleasure of appearing as 
     an advocate before Judge Alito in the United States Court of 
     Appeals for the Third Circuit in a number of cases. It is a 
     pleasure to appear before Judge Alito due to his genial 
     demeanor and obvious professionalism. His opinions--even when 
     against my cause--were thoughtful, considerate, justifiable 
     and well written.
       Judge Alito did not ask me to write this letter; I 
     volunteered. I am a lifelong Democrat. I am the President-
     elect of a national women's bar association. I chair the 
     Corporate Integrity and White Collar Crime group at a 
     national law firm. I do not speak on behalf of either my law 
     firm or the women's bar association. I speak for myself only. 
     But by providing my credentials as an outspoken women's 
     rights advocate and liberal-minded criminal defense attorney, 
     I hope you will appreciate the significance of my unqualified 
     and enthusiastic recommendation of Sam Alito for the Supreme 
     Court.
       Sam possesses the best qualities for judges. He is 
     thoughtful, brilliant, measured, serious, and conscious of 
     the awesome responsibilities imposed by his position. I 
     cannot think of better qualities for a Supreme Court Justice. 
     It is my fervent hope that politics will not prevent this 
     extraordinarily capable candidate from serving as Associate 
     Justice on the United States Supreme Court.
       I will be happy to provide any further details or 
     information in any private or public forum.
           Respectfully submitted,
     Cathy Fleming.
                                  ____

                                                  January 4, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Patrick Leahy,
      Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Senator Leahy: We write in support of 
     the nomination of Judge Samuel A. Alito, Jr. to the United 
     States Supreme Court. Each of us has devoted a significant 
     portion of our legal practice or research to appellate 
     matters. Although we reflect a broad range of political, 
     policy and legal views, we all agree that Judge Alito should 
     be confirmed by the Senate. Judge Alito has a well-deserved 
     reputation as an outstanding jurist. He is, in every sense of 
     the term, a ``judge's judge.'' His opinions are fair, 
     thoughtful and rigorous. Those of us who have appeared before 
     Judge Alito appreciate his preparation for argument, his 
     temperament on the bench and the quality and incisiveness of 
     the questions he asks. Those of us who have worked with Judge 
     Alito respect his legal skills, his integrity and his 
     modesty. In short, Judge Alito has the attributes that we 
     believe are essential to being an outstanding Supreme Court 
     Justice and therefore should be confirmed. Thank you for 
     considering our views.
           Sincerely,
       Signed by 206 lawyers.

  Mr. CORNYN. Mr. President, I also have in my other hand a series of 
editorials, starting with a Dallas Morning News editorial entitled 
``Confirm Alito.'' These are all editorials from newspapers around the 
country recommending that this body confirm Judge Alito. I ask 
unanimous consent that

[[Page S287]]

these editorials be printed in the Record.
       There being no objection, the material was ordered to be 
     printed in the Record, as follows:

             [From the Dallas Morning News, Jan. 14, 2006]

            Confirm Alito: Nominee Deserves Senate's Backing

       After hearing Samuel Alito testify this week, this 
     editorial board's assessment is that the appellate judge has 
     the intellectual breadth and legal depth to sit on the 
     Supreme Court. With few exceptions, he fielded Senate 
     Judiciary Committee questions with a ready grasp of case law 
     and nuance.
       He also came across as quite reasonable. Just as Clinton 
     nominee Stephen Breyer struck senators as a mainstream 
     liberal, Mr. Alito resides within the 40-yard lines of 
     conservatism.
       We offer this conclusion--and our recommendation of him--
     after comparing his testimony with several questions we 
     raised Monday.
       First, his embrace of judicial precedent was persuasive 
     enough to conclude he wouldn't rush to overturn Roe vs. Wade. 
     He didn't go as far as John Roberts in saying the abortion 
     rights case is settled law. But he repeatedly emphasized his 
     belief in building upon previous decisions.
       True, factors could lead him--or any justice--to reconsider 
     a ruling, but they would be extraordinary ones. We'll sum it 
     up this way: Based upon his testimony, we'd feel very misled 
     and deeply disappointed if he joined in an overthrow of Roe.
       Second, he allayed fears he wholly prefers presidential 
     power. He left wiggle room on issues such as where the 
     president can deploy troops without congressional authority. 
     But he didn't live up to his billing as a justice who'd make 
     light of checks and balances. Most notably, he agreed 
     presidents don't possess unlimited power, even during war.
       Third, his objections to the ``one man, one vote'' doctrine 
     appeared mostly technical. For example, he wondered whether 
     it meant congressional districts should have an exactly equal 
     amount of voters each term. He unveiled no willingness to 
     undo the ruling that ensures fair voting weight for 
     minorities.
       It was unsettling that some of the nominee's views appeared 
     different from earlier speeches or writings. A couple of 
     times, his answers had a disturbing then-and-now quality. But 
     Samuel Alito's testimony showed he could become a thoughtful 
     conservative justice. The Senate should give him that 
     opportunity.
                                  ____


                 [From the Miami Herald, Jan. 24, 2006]

                Qualified To Serve on the Supreme Court

       There is little doubt that in the coming days the Senate 
     will confirm the nomination of Judge Samuel Alito to replace 
     Justice Sandra Day O'Connor on the U.S. Supreme Court. He 
     deserves to be confirmed. This is not an assessment of his 
     judicial philosophy but of his undoubted qualifications for 
     the job. He has the intellectual heft, judicial temperament 
     and fealty to the U.S. Constitution that are prerequisites 
     for a Supreme Court justice. In 15 years on the federal 
     appellate bench, he has demonstrated a sure grasp of issues.
       Critics have sought to paint Judge Alito as an ideologue 
     whose views are out of the judicial mainstream. In the past, 
     we have found this a reason to raise doubts about some of the 
     more extreme nominations for the federal appeals courts. 
     However, this is not a fair argument to raise against Judge 
     Alito.
       According to statistics compiled by the Court of Appeals 
     for the Third Judicial Circuit, Judge Alito has dissented 
     only 16 times in the last six years, fewer times than some of 
     his colleagues. On civil-rights cases, his co-panelists 
     agreed with Judge Alito's votes and written opinions 94 
     percent of the time. It is possible to take issue with some 
     of his views in those instances where he was in dissent, but 
     this isn't the record of a judge on the fringe of mainstream 
     judicial thinking.
       During 18 hours of hearings--almost twice as long as the 
     interrogation of John Roberts--Judge Alito displayed a deep 
     understanding of the legal issues the court is likely to 
     confront and kept cool under fire. He did everything possible 
     to avoid saying how he would rule on some of the 
     controversial issues, but that is hardly surprising. 
     Unfortunately, given the divisiveness in Washington today too 
     much candor can prove fatal to a nominee.
       In nominating Judge Alito, President Bush fulfilled a 
     campaign promise to appoint judges who shared the views of 
     Justices Clarence Thomas and Antonin Scalia. Thus, he 
     delivered a candidate with sound credentials but a decidedly 
     conservative record that many find troubling.
       This record includes a narrow view of abortion rights, 
     apparent support for the expansive powers of the presidency 
     in wartime and a narrow interpretation of the regulatory 
     authority of Congress. Judge Alito likely will help move the 
     court rightward, and some senators, no doubt, will find this 
     a compelling reason to vote against him.
       No justice should be denied a seat on the court, however, 
     solely on the basis of judicial philosophy, particularly 
     someone of Judge Alito's proven ability and experience. The 
     best way for critics--Democrats, mostly--to prevail when it 
     comes to selecting federal judges is to prevail at the ballot 
     box.
                                  ____


          [From the Milwaukee Journal Sentinel, Jan. 15, 2006]

               Supreme Court; Alito Deserves Confirmation

       Samuel Alito should be confirmed to the U.S. Supreme Court.
       And, barring any last-minute disqualifying revelations, the 
     first step toward that goal should be yes votes in the Senate 
     Judiciary Committee, including from Wisconsin's two senators, 
     both of whom sit on that committee.
       Democrats are understandably concerned about specific red 
     flags in Alito's record but should nonetheless reject a 
     filibuster. Nor should they move, as it appeared likely late 
     last week they would, to delay the committee's vote. Both 
     would be antithetical to the democratic process in this 
     specific case.
       That's because, though we would have preferred Alito to be 
     more open about his judicial philosophy, he did make one case 
     quite effectively. He is a conservative jurist. This is what 
     the electorate, albeit narrowly, indicated it wanted when it 
     reelected George W. Bush as president in 2004. There can be 
     no reasonable claim that voters did not know this to be a 
     likely consequence of their votes.
       Yes, Alito's views peg him as closer to a constitutional 
     originalist than one with more expansive views of that 
     document, a view we prefer. But Alito is likely not the 
     wildeyed, knee-jerk ideologue his critics have depicted. 
     Instead, a broad view of his writings, rulings and character 
     indicate a judge capable of giving proper and due weight to 
     the law. Alito is scholarly, intelligent and eminently 
     qualified to sit on the bench, as attests his rating as such 
     by the American Bar Association.
       This is not to say that there isn't a roll-of-the-dice 
     quality to this choice for the Supreme Court. But this is so 
     with most, if not all, judicial nominations. Just ask 
     Republicans, many of whom now have buyers' remorse over 
     Justices David Souter and Anthony Kennedy.
       Alito's 1985 stance, writing as a lawyer within the Reagan 
     administration, that the Constitution does not support 
     abortion rights is troubling. Unlike John Roberts during his 
     recent chief justice confirmation hearings, Alito refused to 
     state that Roe vs. Wade is settled law. He did assert that it 
     is ``embedded in the culture'' and should be respected as 
     precedent.
       A stronger statement would have been more reassuring, but 
     in a living, breathing Constitution, much, in fact, will not 
     be settled. Were it so, then Plessy vs. Ferguson, which the 
     Supreme Court used in 1896 to enable decades of segregation 
     under a separate but equal rule, could not have been undone 
     by the court in 1954.
       Americans should take some comfort in Alito's 
     acknowledgment of a right to privacy in the Constitution. His 
     refusal to be pinned down more concretely on this point is 
     defensible given that the court will rule on abortion.
       Similarly, the public should take some solace from his 
     contention that no president is above the law, given the 
     controversies sparked by several presidential actions in the 
     war on terrorism.
       Wisconsin is fortunate to have two early votes on judicial 
     nominations. Democratic Sens. Herb Kohl and Russ Feingold are 
     both Judiciary Committee members. Both acquitted themselves 
     ably in questioning the nominee. And both should vote the 
     nominee out of committee.
       Kohl properly probed on abortion and one-person, one-vote 
     and inquired about glowing Alito comments on Robert Bork, 
     denied a Supreme Court seat in 1987. Feingold asked necessary 
     questions on executive powers, Alito's ruling in a case 
     involving a mutual fund in which he invested and on the death 
     penalty. Together, they helped ensure the hearings were more 
     than a GOP lovefest for the nominee.
       But Alito handled himself well in answering. If not as 
     forthcoming as would be ideal, he offered enough assurances 
     to warrant his confirmation. Democrats, however, are most 
     upset over what Alito didn't say rather than what he did. 
     This is not an entirely acceptable standard.
       We're aware that this nomination carries a weighty 
     significance because the nominee will replace Justice Sandra 
     Day O'Connor, often a swing vote in a divided court. And 
     Alito is still an open book on important issues. But, again, 
     elections have consequences. Voters knew what these were, and 
     Alito is not demonstrably beyond the pale of the U.S. 
     mainstream.
       Alito--and Roberts--could disappoint, of course, and renege 
     on their own claims of open-mindedness. If they do, they will 
     have betrayed a trust to the American people. But it is not 
     at all as assured as critics have contended that Alito or 
     Roberts will do this.
       Confirm Alito. It's not risk-free, but it's the right thing 
     to do.
                                  ____


            [From the Philadelphia Inquirer, Jan. 15, 2006]

                          Confirm Judge Alito

       The Senate should confirm Judge Samuel A. Alito Jr., 
     President Bush's nominee for the Supreme Court.
       Alito, a member of the Philadelphia-based Third Circuit 
     Court of Appeals, demonstrated during three days of 
     questioning last week by the Senate Judiciary Committee that 
     he does not bring a precast agenda to the job.

[[Page S288]]

       He does bring a cast of mind that causes some legitimate 
     concern. But Alito showed he has the experience, modest 
     temperament, reverence for the law, and mastery of his 
     profession needed to serve on the high court.
       A common complaint about confirmations has been that 
     nominees stonewall the committee. Alito tried to answer 
     nearly every question put to him. Democratic senators may not 
     have liked his responses, but Alito dodged very few 
     questions.
       This endorsement is not enthusiastic. Alito is a more 
     conservative nominee than anyone concerned with the nation's 
     drift toward excessive executive power and disdain for civil 
     liberties would prefer.
       But the Supreme Court should not be stocked with justices 
     all of the same political persuasion, left or right. As the 
     replacement for a valuable centrist, Sandra Day O'Connor, 
     Alito might very well move the court perceptibly to the 
     right. But his methodical, just-the-facts approach to the law 
     does not portend a shocking shift, and would not justify a 
     filibuster of his nomination.
       Alito did fail to allay some important concerns. On 
     abortion, he rebuffed entreaties by Democrats to characterize 
     Roe v. Wade as ``settled law.'' Chairman Arlen Specter (R., 
     Pa.) commended Alito for discussing the issue in more depth 
     than did Chief Justice John G. Roberts Jr., but this extended 
     discourse was less than encouraging. Alito, who wrote in 1985 
     that the Constitution doesn't guarantee the right to 
     abortion, would not say he feels differently today.
       He pledged to ``keep an open mind'' on abortion cases. But 
     he also said Supreme Court precedent is not ``an inexorable 
     command.'' If Alito does consider the Constitution a living 
     document, as he testified, he should weigh carefully the 
     expressed desire of a majority of Americans to preserve 
     reproductive freedoms.
       On the question of presidential power, concerns linger that 
     Alito would give undue deference to the executive branch. For 
     all President Bush's talk about ``strict constructionism,'' 
     his freewheeling notions about his powers would have appalled 
     many of the Constitution's framers, who deeply feared an 
     authoritarian executive.
       At the hearings, Alito sought to temper the enthusiasm for 
     presidential prerogative he showed in earlier writings with 
     the statement that the president is not above the law. At 
     least he is on the record with this view now. Being on the 
     high court has been known to focus a justice's mind on the 
     value of the judiciary's constitutional role as a check on 
     the other two branches.
       A distressing point was Alito's membership in the now-
     defunct Concerned Alumni of Princeton, a group created in 
     1972 to oppose the admission of women and minorities to the 
     university. His protests that he knew little about the 
     group's agenda, even though he touted his membership on a 
     1985 application for a job in the Reagan administration, were 
     unpersuasive.
       But the example of Alito's life must count for something, 
     and that example diminishes the significance of the Princeton 
     misstep. He is not a bigot. He has hired and promoted women 
     and minorities. Colleagues testify to his basic decency and 
     are mystified that he joined CAP. He has renounced the 
     group's goals.
       Alito has admitted that his failure to recuse himself in 
     2002 from a case involving Vanguard mutual funds, in which 
     Alito had invested, was an ``oversight.'' It was a mistake, 
     even though the conflict of interest was not significant. 
     Investing in a mutual fund is not like owning stock in an 
     individual company. But Alito had pledged to bow out of cases 
     involving Vanguard, then didn't. That was wrong.
       An analysis of Alito's written opinions shows his 
     overriding respect for authority: for the police, for the 
     government, for employers. Given all the recent evidence of 
     how those parties commit deeds that damage individuals, you'd 
     like the high court to take a more balanced view.
       But Alito's cast of mind does not disqualify him. As 
     pragmatic Judge Edward Becker of the Third Circuit testified, 
     he and Alito disagreed only 27 times in 1,050 cases they 
     heard together. Alito is not in the mainstream of judicial 
     thought, but he is not too far to the right of it.
                                  ____


               [From the Salt Lake Tribune, Dec. 7, 2005]

                      Judge Alito Is No Ideologue

                      (By Jeffrey N. Wasserstein)

       As a former clerk for Judge Samuel Alito, I can tell you he 
     is not the conservative ideologue portrayed in a recent 
     article by Knight Ridder reporters Stephen Henderson and 
     Howard Mintz (``Alito Opinions Reveal Pattern of 
     Conservatism'').
       I am a registered Democrat who supports progressive causes. 
     (To my wife's consternation, I still can't bring myself to 
     take my ``Kerry for President'' bumper sticker off of my 
     car.) I clerked for Judge Alito from 1997 to 1998. 
     Notwithstanding my close work with Judge Alito, until I read 
     his 1985 Reagan job application statement, I could not tell 
     you what his politics were. When we worked on cases, we 
     reached the same result about 95 percent of the time. When we 
     disagreed, it was largely due to the fact that he is a lot 
     smarter than I am (indeed, than most people) and is far more 
     experienced.
       It was my experience that Judge Alito was (and is) capable 
     of setting aside any personal biases he may have when he 
     judges. He is the consummate professional.
       One example that I witnessed of Judge Alito's ability to 
     approach cases with an open mind occurred in the area of 
     criminal law, an area in which Judge Alito--a former federal 
     prosecutor--had particular expertise. One time, I was looking 
     at a set of legal briefs in a criminal appeal. The attorney 
     for the criminal defendant had submitted a sloppy brief, a 
     very slip-shod affair. The prosecuting attorney had submitted 
     a neat, presentable brief. I suggested (in my youth and 
     naivete) that this would be an easy case to decide for the 
     government.
       Judge Alito stopped me cold by saying that that was an 
     unfair attitude to have before I had even read the briefs 
     carefully and conducted the necessary additional research 
     needed to ensure that the defendant received a fair hearing 
     before the court.
       Perhaps not what one would expect from a conservative 
     ideologue (and former federal prosecutor), but it is 
     indicative of the way Judge Alito approaches each case with 
     an open mind, and it is a lesson I've never forgotten.
       Another example, which reached a result that would seem 
     contrary to a conservative ideologue, was a case I worked on 
     with Judge Alito (U.S. v. Kithcart) in which Judge Alito 
     reversed a conviction of a black male, holding that an all-
     points-bulletin for ``two black men in a black sports car'' 
     was insufficient probable cause to arrest the driver of the 
     car. Notwithstanding the driver's guilty plea, Judge Alito 
     reversed, finding that the initial arrest lacked probable 
     cause, stating, ``The mere fact that Kithcart is black and 
     the perpetrators had been described as two black males is 
     plainly insufficient.''
       This is hardly the work of a conservative ideologue.
       As a former clerk to Judge Alito, I can attest to Judge 
     Alito's deep and abiding respect for precedent and the 
     important role of stare decisis--the doctrine that settled 
     cases should not be continually revisited. Judge Alito has 
     served on the U.S. Court of Appeals for the 3rd Circuit for 
     15 years, and has compiled a distinguished record that 
     conclusively demonstrates respect for precedent.
       The best indicator of how a justice may act on the Supreme 
     Court is the judicial record the justice had before elevation 
     to the court. In Judge Alito's case, one can clearly see a 
     restrained approach to the law, deferring to a prior court 
     decision even if he may have disagreed with its logic.
       While a bald statement that ``the Constitution does not 
     protect a right to an abortion'' in a vacuum might be cause 
     for concern, Judge Alito's statement must be taken in 
     context. Sen. Diane Feinstein, D-Calif., said after her 
     meeting with Judge Alito that he explained that regardless of 
     his statement on the job application, ``I'm now a judge, I've 
     been on the Circuit Court for 15 years and it's very 
     different. I'm not an advocate, I don't give heed to my 
     personal views, what I do is interpret the law.'' Sen. Ted 
     Kennedy, D-Mass., also noted that Judge Alito said ``he had 
     indicated that he is an older person, that he has learned 
     more, that he thinks he is wiser person (and) that he's got a 
     better grasp and understanding about constitutional rights 
     and liberties.''
       Given Judge Alito's respect for precedent and stare decisis 
     as demonstrated by actually adhering to precedent for 15 
     years while on the Court of Appeals--even in cases that 
     reached results that would seem incorrect to a conservative--
     and the open mind with which I saw him approach cases, 
     labeling Judge Alito an ``ideologue'' would be unfair and 
     distorts his record on the bench.

  Mr. CORNYN. Mr. President, I support the nomination of Sam Alito to 
the U.S. Supreme Court. The American people, in public opinion polls we 
have seen reported in the newspapers, indicate they also want Judge 
Alito on the Supreme Court. Yet we are here today, after extended 
debate, because there are a handful of Senators who are determined to 
stop Judge Alito's nomination from even receiving an up-or-down vote. 
Hence, at 4:30 we will have a vote on cloture, whether to close debate. 
It is my sincere hope that at least 60 Senators will vote to close 
debate so tomorrow morning we can have that up-or-down vote that this 
nominee deserves and that the Constitution requires.
  There really is no pretense that this tactic of delay for delay's 
sake is needed for extended debate. Judge Alito was nominated months 
ago, and we have been debating this nomination without interruption 
since last Wednesday. Not only has Judge Alito been investigated by the 
FBI but also by the American Bar Association's Standing Committee on 
the Federal Judiciary. He has been investigated by the Senate Judiciary 
Committee, on which I am proud to serve, and been through extended 
televised hearings. The fact is, even the minority leader, the Democrat 
leader, conceded ``[t]here's been adequate time for people to debate'' 
this nomination.
  So this is delay for delay's sake. Fortunately, there is no 
indication this delay tactic will succeed. Judge Alito's supporters in 
this body are so numerous that everyone has conceded--even the 
minority, who is determined to try to filibuster this nomination, 
concedes

[[Page S289]]

the filibuster attempt is futile and this nominee will be confirmed.
  So what could possibly be the motivation? The Senator from Missouri, 
who just spoke before me, alluded to this. I think it is common 
knowledge that it really is outside interest groups that are putting, 
in some cases, irresistible pressure on Senators to oppose this 
nomination, even though they realize the delay and the potential 
filibuster are futile. These are groups that have declared--and I 
quote, in one instance--``you name it, we'll do it'' to defeat Judge 
Alito. I am very sorry that some of my colleagues have fallen under the 
spell of some of these groups. In my view, it is wrong to place the 
wishes of these interest groups before the wishes of the American 
people.
  I think it is also a mistake to waste the valuable time of the 
Senate, time we could be using to address other real and urgent needs 
that no doubt the President will address tomorrow night in his State of 
the Union speech and which are well known to each of us here. We have 
more important things to do than to stage events to facilitate 
fundraising by special interest groups. I urge all of my colleagues to 
stand up against the interest groups and to put the American people 
first by voting against the filibuster.
  I also continue to be struck by the lengths some will go in order to 
defeat this good man and good judge. This raises the question of 
``Why?'' Why do liberal special interest groups and their allies in 
this body oppose Judge Alito so vehemently?
  I believe, at bottom, the reason they oppose his nomination is 
because he has refused to do their bidding. After all, Judge Alito is a 
judge who believes in judicial restraint, who understands the 
differences between the roles judges and legislators--elected 
representatives of the people--are to play in our government. He 
believes judges should respect the legislative choices made by the 
American people through their representatives. And he believes, as I 
do, judges have no warrant to impose their own beliefs on the rest of 
us under the guise of interpreting the Constitution.
  It is sad but true that the prospect of a Supreme Court Justice who 
will respect the legislative choices of the American people scares the 
living daylights out of these interest groups and their allies. Why? 
Because the legislative choices of the American people are not the 
legislative choices of these interest groups.
  There are some in this country who are entitled to their opinion but 
whose views are so extreme they will never prevail at the ballot box. 
The only way they could possibly hope to get their views enacted into 
law would be to circumvent the Democratic process and pack the courts 
with judicial activists who will impose their views on the rest of us.
  What are these views? Well, one organization I think makes the point. 
The American Civil Liberties Union is one example. They represent child 
pornographers because they believe that child pornography is free 
speech. Yet at the same time, they litigate against schoolchildren who 
want to recite the Pledge of Allegiance because it invokes ``one nation 
under God.''
  They believe the Constitution protects the right to end the life of a 
partially born child. Yet at the same time, they believe the 
Constitution does not protect marriage between only one man and one 
woman.
  They seem to believe that criminals have more rights than victims. 
And they believe that terrorists should receive special rights never 
before afforded to enemy combatants during a time of war.
  This is the hard left's version of America. It is a place where 
criminals and terrorists run free on technicalities, where 
pornographers may speak but people of faith must keep quiet, where 
traditional values are replaced by social experimentation.
  The liberal special interest groups and those who agree with them in 
this body to oppose Judge Alito do so because Judge Alito's America is 
not the hard left's America.
  What, then, is Judge Alito's America? Well, I found one of the best 
answers to that question in, of all places, the New York Times. On 
January 12, one of their columnists, David Brooks, wrote a column that 
captures perfectly the differences between Judge Alito's America and 
the America envisioned by some on the hard left.
  He wrote:

       If he'd been born a little earlier, Sam Alito probably 
     would have been a Democrat. In the 1950s, the middle-class 
     and lower-middle-class whites in places like Trenton, N.J., 
     where Alito grew up, were the heart and soul of the 
     Democratic party.
       But by the late 1960s, cultural politics replaced New Deal 
     politics, and liberal Democrats did their best to repel 
     Northern white ethnic voters. Big-city liberals launched 
     crusades against police brutality, portraying working class 
     cops as thuggish storm troopers for the establishment.
       The liberals were doves; the ethnics were hawks. The 
     liberals had ``Question Authority'' bumper stickers; the 
     ethnics had been taught in school to respect authority. The 
     liberals thought that an unjust society caused poverty; the 
     ethnics believed in working their way out of poverty.
       Sam Alito emerged from his middle-class neighborhood about 
     that time, made it to Princeton and found ``very privileged 
     people behaving irresponsibly.''
       Alito wanted to learn; the richer liberals wanted to 
     strike. He wanted to join the ROTC; the liberal Princetonians 
     expelled that organization from campus. He was orderly and 
     respectful; they were disorderly and disrespectful.

  Mr. Brooks continues:

       If there is one lesson from the Alito hearings, it is that 
     the Democratic Party continues to repel [middle-class white] 
     voters just as vigorously as ever.
       If you listened to the questions of [Republicans], you 
     heard [Senators] exercised by the terror drug dealers can 
     inflict on their neighborhoods. If you listened to the 
     [Democrats], you heard [Senators] exercised by the terror law 
     enforcement officials can inflict on a neighborhood.
       If forced to choose, most Americans side with the party 
     that errs on the side of the cops, not the criminals.
       If you listened to [Republicans], you heard [Senators] 
     alarmed by the threats posed by anti-American terrorists. If 
     you listened to [Democrats], you heard Senators alarmed by 
     the threats posed by American counterterrorists.
       If forced to choose, most Americans want a party that will 
     fight aggressively against the terrorists, not the [NSA].

  He concluded:

       Alito is a paragon of the old-fashioned working-class 
     ethic. In a culture of self-aggrandizement, Alito is modest. 
     In a culture of self-exposure, Alito is reticent. In a 
     culture of made-for-TV sentimentalism, Alito refuses to 
     emote. In a culture that celebrates the rebel, or the 
     fashionable pseudorebel, Alito respects tradition, order and 
     authority.

  I read a lengthy excerpt from Mr. Brooks' column because I could not 
have said it better. This is Judge Alito's America. It is a place where 
if we err at all, we err on the side of the law, not on the side of 
those who break the law, where we fight terrorists, not those who try 
to stop those terrorists, where we work hard to get ahead, where we are 
more interested in getting the job done than getting credit for it. In 
other words, these are the middle-class traditional values of America, 
Sam Alito's America, and, I believe, our America. They are now 
apparently so foreign to many in the Democratic Party, particularly the 
liberal interest groups that seem to agitate for delay for delay's sake 
and to block an up-or-down vote on this nomination, that they will stop 
at nothing to oppose someone such as Judge Alito who embodies those 
values. You name it, whether smears, distortions or even denying the 
decency of an up-or-down vote, and some will do it. Judge Alito's 
treatment by this hard core of left-leaning groups and their supporters 
says more about them than it does Judge Alito.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, the Senate is about to vote on a motion to 
invoke cloture on the nomination of Samuel Alito to be an Associate 
Justice of the U.S. Supreme Court. We should not even have to take this 
step but should be voting instead on whether to consent to Judge 
Alito's appointment. But since we are being forced to take this 
unnecessary step, let me explain why I believe the case for both 
cloture and for confirmation is compelling.
  Deliberation and debate are hallmarks of the Senate. Our tradition 
has been that once a judicial nomination

[[Page S290]]

has reached the Senate floor, we debate and then we vote on 
confirmation. There is no need to revisit all of the arguments 
regarding judicial nomination filibusters. Suffice it to say that 
American history contains but a single example of failing to invoke 
cloture on and then failing to confirm a Supreme Court nomination. The 
1968 nomination of Abe Fortas to be Chief Justice, however, bears no 
relationship to the current situation.
  First, while the Fortas nomination did not have majority support, the 
Alito nomination clearly does. Judge Alito enjoys majority bipartisan 
support. I realize his opponents are not happy that Judge Alito will be 
confirmed; no one likes to lose. But the correct response to failure is 
to pick yourself up and try another day, not to rig the process to get 
your way.
  Second, opposition to cloture on the Fortas nomination was almost 
evenly bipartisan, with 23 Republicans and 19 Democrats. As we are 
about to see, opposition to cloture on the Alito nomination will be 
entirely partisan. The most important reason why the Fortas cloture 
vote is no precedent for this one is that there had not yet been full 
and complete debate on the Fortas nomination when the vote ending 
debate occurred. Senator Robert Griffin of Michigan stated clearly at 
the time that not all Senators had had a chance to speak and that the 
debate was being kept squarely on the many serious issues and concerns 
raised by the Fortas nomination. Senators were debating, not 
obstructing, the nomination.
  The same cannot be said today. Those raising this last-minute call 
for a filibuster have had a full and fair opportunity to air their 
views about this nomination. Let us not forget that debate over a 
nomination, especially to the Supreme Court, begins as soon as the 
President announces his intention to nominate. The Judiciary Committee 
chairman, Senator Specter, accommodated Democrats and waited to hold 
the hearing on the Alito nomination until January. In fact, the 70 days 
between announcement and hearing exceeded the average time for all of 
the current Supreme Court Justices by more than 60 percent. 
Nonetheless, committee Democrats insisted on delaying the nomination 
for an extra week.
  The nomination has now been on the floor for nearly a week. While the 
Senator from Massachusetts, Mr. Kennedy, says that Senators need still 
more time to debate, I recall the long, repeated quorum calls last week 
when Senators who could have spoken chose not to do so. I agree with 
the distinguished minority leader who last Thursday said that ``there 
has been adequate time for people to debate. No one can complain in 
this matter that there hasn't been sufficient time to talk about Judge 
Alito, pro or con.''
  In fact, the last-ditch call for this filibuster came not from this 
floor or even from this country. The Senator from Massachusetts, Mr. 
Kerry, called for this filibuster from Switzerland. There is a 
difference between not having an opportunity to debate and not winning 
that debate. Nothing is being short circuited here. This floor has been 
wide open for debate. No one can even suggest that the debate has not 
been a full and fair one.
  To their credit, some of my Democratic colleagues who oppose the 
nomination itself have nonetheless said that this 11th-hour filibuster 
attempt is not in the best interest of the Senate.
  The Senator from Illinois, Mr. Obama, said over the weekend that the 
better course for Democrats is to win elections and persuade on the 
merits, rather than what he called overreliance on procedural maneuvers 
such as the filibuster. I agree.
  We should not have to take this cloture vote today. It only further 
politicizes and distorts an already damaged judicial confirmation 
process. Moving beyond that, it is clear that the case for Judge 
Alito's confirmation is compelling. Last week I outlined three reasons 
why Judge Alito should be confirmed. He is highly qualified. He is a 
man of character and integrity, and he understands and is committed to 
the properly limited role of the judiciary, judges.
  During the debate on this nomination, other Senators have explored 
these matters as well, including the Senator from Texas, Mr. Cornyn, 
who preceded me here today. Senator Cornyn is a distinguished member of 
the Judiciary Committee and a former State supreme court justice. His 
perspective and insight on judicial matters has been and is extremely 
valuable.
  I wish to explore one specific issue that relates to Judge Alito's 
judicial philosophy which, unfortunately, has been the subject of a 
disinformation campaign by Judge Alito's opponents. That issue is Judge 
Alito's view on the role of precedent or prior judicial decisions in 
deciding cases. Judges settle legal disputes by applying the law to the 
facts in the cases that come before them. The law that judges apply to 
settle legal disputes comes in two basic forms.
  There is the written law itself in the form of constitutional 
provisions, statutes, or regulations. Then there are past decisions in 
which the courts have addressed the same issue. The Latin phrase for 
following precedent or prior decisions is ``stare decisis,'' which 
means ``let the decision stand.'' Mr. President, every judge believes 
in the doctrine of stare decisis. Every judge believes that prior 
decisions play an important role in judicial decisionmaking. That 
includes Judge Alito.
  As I will explain, Judge Alito's views on precedent are sound, 
traditional, and principled. When the Judiciary Committee hearing on 
this nomination opened, I outlined several rules which should guide the 
confirmation process. The first was that we should take parts or 
elements of Judge Alito's record on their own terms, in their own 
context for what they really are. That certainly applies to Judge 
Alito's views regarding the issue of precedent.
  Rather than acknowledging what Judge Alito's views actually are, 
however, some of his opponents have created a caricature of those 
views, which serves their political purposes but which misleads our 
fellow citizens about both Judge Alito's record and this very important 
issue.
  Let me start with Judge Alito's own words. No one expresses his view 
of precedent better than he does. On January 11, 2006, Judge Alito 
offered this summary of his views:

       I have said that stare decisis is a very important legal 
     doctrine and that there is a general presumption that 
     decisions of the Court will not be overruled. There needs to 
     be a special justification for doing so, but it is not an 
     inexorable command.

  This view has several elements.
  First, Judge Alito says plainly that stare decisis is a very 
important legal concept and doctrine. He described why he thinks 
precedent is so important. One of his points stood out, and I believe 
it is worth highlighting. Let me just refer to that point. He said:

       I think the doctrine of stare decisis is a very important 
     doctrine . . . [I]t limits the power of the judiciary . . . 
     it's not an inexorable command, but it is a general 
     presumption that courts are going to follow prior precedent.

  Precedent is an important element of judicial restraint. In contrast 
to the grandiose picture painted by some on the other side of the 
aisle, the judiciary doesn't exist to right all wrongs, correct all 
errors, heal social wounds, and otherwise usher in an age of domestic 
tranquility. Judges have a specific role to play, but, like legislators 
and the executive, they must stay in their proper place.
  Judge Alito believes that giving precedent an important role in 
deciding cases limits the power of the judiciary. If his opponents 
believe instead that judges should have unlimited power and may 
disregard precedent at will, let them try to persuade the American 
people.
  Let me refer again to Judge Alito's summary of his views on 
precedent. In addition to stare decisis being an important legal 
doctrine, Judge Alito also said that there is a general presumption 
that decisions of the Court will not be overruled. If that presumption 
did not exist, there would be little point in paying attention to prior 
decisions at all. In fact, it is that presumption which makes precedent 
useful in limiting the power of the judiciary.
  Judge Alito also said that overruling a prior decision requires a 
special justification. Some of Judge Alito's opponents suggest that he 
has taken a careless or reckless attitude toward the precedents of the 
court on which he now sits. I assume that, by this suggestion, they 
want people to believe that

[[Page S291]]

Judge Alito would play fast and loose with Supreme Court precedent once 
he joins the Court. The suggestion is certainly false.
  Judge Alito has voted to overrule his own court's precedents only 
four times in the 15 years on the U.S. Court of Appeals--only four 
times. In each of those cases, in which all of the judges in the 
circuit participated, he was in the majority, and in two of them the 
decision was unanimous. Judge Alito has demonstrated his view that 
judges should not heedlessly overrule past decisions.
  As he explained it, the factors helping judges to handle precedents, 
including ones to overrule or reaffirm them, include when a past 
decision has actually been challenged and the Court has decided to 
retain it. This would, of course, not include cases in which the 
validity of a prior decision was neither challenged nor decided. It is, 
after all, another fundamental principle of judicial restraint, which 
Judge Alito also endorsed, that courts should not decide constitutional 
questions unless absolutely necessary. That would include deciding 
whether prior decisions, especially on constitutional issues, should be 
overruled or reaffirmed.
  Obviously, a court does not decide an issue unless it actually 
addresses and decides it, and a court cannot be said to reaffirm or 
uphold a prior decision unless it actually addresses or decides that 
issue.
  That said, a court strengthens the presumption that a precedent will 
be followed when the court actually does reaffirm such a decision. At 
the same time, Judge Alito has said that adhering to prior decisions is 
not an inexorable command. Those are not his words. As he pointed out 
at his hearing, the Supreme Court has repeatedly used that language, 
holding over and over again that adherence to precedent is not an 
inexorable command.
  This only makes sense. While following prior decisions is a 
presumption, it is a rebuttable presumption. Here is where Judge 
Alito's opponents cry foul the loudest and where they expose their real 
agenda.
  Many of Judge Alito's opponents do not really care about legal 
doctrines; they only care about political agendas. For them, the 
political ends justify the judicial means, and so-called principles are 
infinitely flexible so long as the political goal is achieved. They do 
not care about precedents in general; they only care about certain 
precedents in particular.
  While Judge Alito has presented a thoughtful, principled approach to 
handling any prior decision, his opponents have but one simple, hard, 
political rule: get your hands off the precedents we want to keep. 
Their rule seems to be stare decisis for me but not for thee. Reaffirm 
decisions we like; overrule ones we oppose. This one-way ratchet is 
simply a device for getting the courts to do the political heavy 
lifting and preserving particularly the Supreme Court's role as 
policymaker in chief.
  The real issue for Judge Alito's opponents is not that he rules too 
often for this group or that group, as if judges are supposed to make 
the numbers satisfy some political interest group rather than 
faithfully apply the law. It is not really about theories such as what 
has been called the unitary executive, which to Judge Alito apparently 
means nothing more unusual than that the head of the executive branch 
should be able to control and lead the executive branch. It is not 
about guilt-by-association tactics--accusations of affiliation with 
groups wanting to preserve Princeton's all-male tradition made by 
Senators belonging to all-male clubs.
  No, Mr. President, this is about abortion. That is the be-all and 
end-all issue of those who oppose Judge Alito. I admit there may be an 
exception or two over there, but I really believe it comes down to 
that. That is what is driving this, and that is what the outside 
special interests, the leftwing groups, are using to drive them. The 
800-pound precedent in the room is Roe v. Wade. That is the decision 
Judge Alito's opponents want left alone at all costs.
  Many Senators and leftwing interest groups have demanded to know 
whether Judge Alito, if confirmed, would ever vote to overrule Roe v. 
Wade. I applaud their creativity in getting as close as possible to 
directly asking him that question. For most of Judge Alito's opponents, 
whether Roe v. Wade was correctly decided doesn't matter. Whether it 
was a legitimate interpretation of the Constitution does not matter. 
No, abortion advocates take a fluidly flexible approach to precedent, 
at least until they get the one they want. Then they become the most 
rigid and doctrinaire defenders of precedent, insisting on keeping what 
they have. This all seems like a judicial version of ``heads I win, 
tails you lose.''
  Mr. President, I am glad to say that Judge Alito follows principle 
rather than politics on the bench. Can you imagine if the attitude of 
his opponents regarding this one precedent, Roe v. Wade, actually 
prevailed across the board? What if adherence to prior decisions was 
actually an inexorable command? What if the Supreme Court's 
interpretation of the Constitution, once on the books, could never be 
changed? If the doctrine of stare decisis were an inexorable command, 
decisions such as Dred Scott v. Sanford and Plessy v. Ferguson would 
still be on the books.
  Judge Alito put it:

       I don't think anybody would want a rule in the area of 
     constitutional law that . . . said that a constitutional 
     decision once handed down can never be overruled.

  The judiciary must be guided by principles, not by politics. The 
Supreme Court has repeatedly said that the role of precedent is 
actually the weakest in cases involving the Constitution for a very 
simple reason. When the Supreme Court construes one of our statutes 
incorrectly, we can correct that error in short order. When the Supreme 
Court interprets the Constitution incorrectly, correction comes only 
through the cumbersome constitutional amendment process or the Court's 
willingness to review its past decisions.
  I ask unanimous consent that a list of Supreme Court decisions 
affirming the principle that precedent is weakest in constitutional 
cases be printed in the Record.
       There being no objection, the material was ordered t9 be 
     printed in the Record, as follows:

            Stare Decisis Is Weakest in Constitutional Cases

       Agostini v. Felton, 521 U.S. 203,235 (1997) (quoting Payne 
     v. Tennessee, 501 U.S. 808,828 (1991))--Justice O'Connor.
       ``As we have often noted, `[s]tare decisis is not an 
     inexorable command, . . .' That policy is at its weakest when 
     we interpret the Constitution because our interpretation can 
     be altered only by constitutional amendment or by overruling 
     our prior decisions.''
       Payne v. Tennessee, 501 U.S. 808,828 (1991) (quoting 
     Helvering v. Hallock, 309 U.S. 196,119 (1940) and Burnet v. 
     Coronado Oil & Gas Co., 285 U.S. 393,407 (1932))--Chief 
     Justice Rehnquist.
       ``Stare decisis is not an inexorable command; rather, it 
     `is a principle of policy and not a mechanical formula of 
     adherence to the latest decision.' This is particularly true 
     in constitutional cases, because in such cases `correction 
     through legislative action is practically impossible.' ''
       Harmelin v. Michigan, 501 U.S. 957,965 (1991)--Justice 
     Scalia.
       ``We have long recognized, of course, that the doctrine of 
     stare decisis is less rigid in its application to 
     constitutional precedents.''
       Glidden Co. v. Zdanok, 370 U.S. 530,543 (1962)--Justice 
     Harlan.
       ``. . . this Court's considered practice not to apply stare 
     decisis as rigidly in constitutional as in nonconstitutional 
     cases. . . .''
       New York v. United States, 326 U.S. 572 (1946)--Justice 
     Frankfurter.
       ``But throughout the history of the Court stare decisis has 
     had only a limited application in the field of constitutional 
     law. And it is a wise policy which largely restricts it to 
     those areas of the law where correction can be had by 
     legislation. Otherwise the Constitution loses the flexibility 
     necessary if it is to serve the needs of successive 
     generations.''
       Smith v. Allwright, 321 U.S. 649,665 (1944)--Justice Reed.
       ``In constitutional questions, where correction depends 
     upon amendment and not upon legislative action, this Court 
     throughout its history has freely exercised its power to 
     reexamine the basis of its constitutional decisions.''
       St. Joseph Stock Yards Co. v. United States, 98 U.S. 38,94 
     (1936)--Justices Stone and Cardozo, concurring in the result.
       ``The doctrine of stare decisis . . . has only a limited 
     application in the field of constitutional law.''
       Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,407 (1932)--
     Justice Brandeis, dissenting.
       ``[I]n cases involving the Federal Constitution, where 
     correction through legislative action is practically 
     impossible, this court has often overruled its earlier 
     decisions.''

  Mr. HATCH. Mr. President, in some of these cases, the Justice whom 
Judge Alito would replace, Justice Sandra Day O'Connor, is the one 
repeating this principle.
  Let me return once again to how Judge Alito summarized his own view

[[Page S292]]

of precedent. It is a very important legal doctrine that serves to 
limit judicial power. There is a general presumption that past 
decisions will not be overruled, but this is not an inexorable command.
  Judge Alito takes a sound, traditional, principled view of the role 
of precedent in judicial decisionmaking, and I hope my colleagues will 
consider Judge Alito's view for what it actually is.
  In closing, let me say that the debate over this nomination has been 
going on for about 3 months. It has been long and vigorous, both inside 
the Senate and across the country. I wish to note some of the opinions 
outside of this body on the nomination before us.
  Some of my colleagues on other side of the aisle are fond of quoting 
liberal law professor Cass Sunstein's statistical analysis about which 
sides have won or lost in different categories of cases before Judge 
Alito. They have often said it is in his dissent that we may find his 
true judicial philosophy. I wonder whether they will credit Professor 
Sunstein's conclusions about Judge Alito's dissents, published last 
November in the Washington Post.
  Here is what he said on the contrary:

       None of Alito's opinions is reckless or irresponsible or 
     even especially far-reaching. His disagreement is unfailingly 
     respectful. His dissents are lawyerly rather than bombastic. 
     He does not berate his colleagues . . . Nor has Alito 
     proclaimed an ambitious or controversial theory of 
     interpretation. He avoids abstractions.

  That was November 1, 2005.
  Here is the conclusion of New York Newsday, which is titled 
``Qualifications'':

       Samuel Alito is a modest, decent man and an accomplished 
     jurist, well within the country's conservative mainstream. On 
     that basis he should be confirmed. But the Nation will need 
     him to be a strong guardian of the constitutional rights and 
     protections that make this country special.

  I ask unanimous consent that three other editorials from the 
Washington Post, Chicago Tribune, and the Newark Star-Ledger be printed 
in the Record.
  There being no objection, the material was ordered, to be printed in 
the Record, as follows:

               [From the Washington Post, Jan. 15, 2006]

                          Confirm Samuel Alito

       The Senate's decision concerning the confirmation of Samuel 
     A. Alito Jr. is harder than the case last year of now--Chief 
     Justice John G. Roberts Jr. Judge Alito's record raises 
     concerns across a range of areas. His replacement of Justice 
     Sandra Day O'Connor could alter--for the worse, from our 
     point of view--the Supreme Court's delicate balance in 
     important areas of constitutional law. He would not have been 
     our pick for the high court. Yet Judge Alito should be 
     confirmed, both because of his positive qualities as an 
     appellate judge and because of the dangerous precedent his 
     rejection would set.
       Though some attacks on him by Democratic senators and 
     liberal interest groups have misrepresented his 
     jurisprudence, Judge Alito's record is troubling in areas. 
     His generally laudable tendency to defer to elected 
     representatives at the state and federal levels sometimes 
     goes too far--giving rise to concerns that he will prove too 
     tolerant of claims of executive power in the war on terror. 
     He has tended at times to read civil rights statutes and 
     precedents too narrowly. He has shown excessive tolerance for 
     aggressive police and prosecutorial tactics. There is reason 
     to worry that he would curtail abortion rights. And his 
     approach to the balance of power between the federal 
     government and the states, while murky, seems unpromising. 
     Judge Alito's record is complicated, and one can therefore 
     argue against imputing to him any of these tendencies. Yet he 
     is undeniably a conservative whose presence on the Supreme 
     Court is likely to produce more conservative results than we 
     would like to see.
       Which is, of course, just what President Bush promised 
     concerning his judicial appointments. A Supreme Court 
     nomination isn't a forum to refight a presidential election. 
     The president's choice is due deference--the same deference 
     that Democratic senators would expect a Republican Senate to 
     accord the well-qualified nominee of a Democratic president.
       And Judge Alito is superbly qualified. His record on the 
     bench is that of a thoughtful conservative, not a raging 
     ideologue. He pays careful attention to the record and 
     doesn't reach for the political outcomes he desires. His 
     colleagues of all stripes speak highly of him. His integrity, 
     notwithstanding efforts to smear him, remains unimpeached.
       Humility is called for when predicting how a Supreme Court 
     nominee will vote on key issues, or even what those issues 
     will be, given how people and issues evolve. But it's fair to 
     guess that Judge Alito will favor a judiciary that exercises 
     restraint and does not substitute its judgment for that of 
     the political branches in areas of their competence. That's 
     not all bad. The Supreme Court sports a great range of 
     ideological diversity but less disagreement about the scope 
     of proper judicial power. The institutional self-discipline 
     and modesty that both Judge Alito and Chief Justice Roberts 
     profess could do the court good if taken seriously and 
     applied apolitically.
       Supreme Court confirmations have never been free of 
     politics, but neither has their history generally been one of 
     party-line votes or of ideology as the determinative factor. 
     To go down that road is to believe that there exists a 
     Democratic law and a Republican law--which is repugnant to 
     the ideal of the rule of law. However one reasonably defines 
     the ``mainstream'' of contemporary jurisprudence, Judge 
     Alito's work lies within it. While we harbor some anxiety 
     about the direction he may push the court, we would be more 
     alarmed at the long-term implications of denying him a seat. 
     No president should be denied the prerogative of putting a 
     person as qualified as Judge Alito on the Supreme Court.
                                  ____


               [From the Chicago Tribune, Jan. 15, 2006]

                          Confirm Judge Alito

       Having survived the hazing ritual known as a Senate 
     Judiciary Committee confirmation hearing, Judge Samuel Alito 
     Jr. has demonstrated that he should be confirmed for the 
     Supreme Court.
       He had largely done so before the hearing. His record on 
     the bench is strong. The American Bar Association determined 
     he is highly qualified. But he had to go through the process 
     of proving that he could remain calm through every contorted 
     attempt by senators to challenge his character and fitness. 
     He has done so.
       So what did we learn from the hearing?
       That Alito will not prejudge matters before the court, 
     despite the Democrats' fervent demand that he declare 
     abortion is a matter beyond judicial review. (Good judges, he 
     pointedly said, ``are always open to the possibility of 
     changing their minds based on the next brief that they read 
     or the next argument that's made by an attorney who's 
     appearing before them or a comment that is made by a 
     colleague ... when the judges privately discuss the case.'')
       That Alito finds repugnant the views of a long departed, 
     long forgotten Princeton organization to which he, 
     apparently, had the slimmest of connections.
       That he believes judges should rule on the law, not make 
     law.
       If Democrats on the Judiciary Committee hoped to expose him 
     as a right-wing ideologue, they failed. They did manage, as 
     they did last year in the confirmation hearings for Chief 
     Justice John G. Roberts Jr., to show how pious, preening and 
     pompous they can be.
       Alito probably won't get many Democratic votes, even though 
     he deserves their support. We'll go through the ritual of 
     opposition senators declaring that, after careful 
     deliberation, they cannot vote for this nominee. They've 
     already laid the foundation, as the lawyers say; several 
     Democrats have announced that after more than 18 hours of 
     testimony they still have doubts about his ``credibility.''
       A week of hearings. Fifteen years of judicial opinions, all 
     available for review. But in all that, Alito's opponents have 
     failed to unearth anything damaging--or even to elicit an 
     intemperate remark from the judge, though they did succeed in 
     making his wife cry. It's a wonder anyone is willing to 
     endure this process.
       The special-interest campaigns will thunder on for a few 
     more days. Some Democrats on the committee have demanded the 
     vote be postponed while they ponder their next moves, 
     including a possible filibuster. What a terribly destructive 
     move that would be.
       Alito's integrity, professional competence and judicial 
     temperament ``are of the highest standing.'' That was the 
     judgment of the American Bar Association, reached after 
     interviewing 300 people who know Alito and evaluating 350 of 
     his written opinions and dozens of unpublished opinions, oral 
     arguments and memos.
       He ``sees majesty in the law, respects it, and remains a 
     dedicated student of it to this day.'' That, too, was the 
     judgment of the ABA.
       Alito is, as his colleague, federal Appellate Judge Edward 
     R. Becker, testified, ``a real judge deciding each case on 
     the facts and the law, not on his personal views, whatever 
     they may be.''
       He deserves every senator's vote.
                                  ____


              [From the Newark Star-Ledger, Jan. 17, 2006]

                       Confirm Alito to the Court

       The Senate Judiciary Committee hearings on Supreme Court 
     nominee Samuel Alito Jr. have been a remarkable tutorial--not 
     in the law but in just how low partisan politics have sunk.
       Democrats have painted Alito as someone ready to turn back 
     the clock 50 years on civil, reproductive and workers' 
     rights. They have attempted to draw a public portrait of 
     Alito, sometimes relying on half-truths, that those who know 
     him best barely recognize. Republicans responded to this 
     onslaught with a slew of softball questions designed not to 
     elicit information but to present the nominee in the best 
     possible light.
       Neither side has served the public particularly well.
       For their part, Senate Judiciary Committee members 
     interjected a level of senatorial logorrhea that was 
     stunning, droning on and on about matters that had nothing to

[[Page S293]]

     do with Alito's fitness to serve on the nation's highest 
     court.
       Despite the spectacle of the hearings, we are convinced 
     Alito, a New Jerseyan who sits on the 3rd U.S. Circuit Court 
     of Appeals, is eminently qualified to serve as an associate 
     justice of the U.S. Supreme Court and should be confirmed by 
     the committee and ultimately by the full Senate, and, yes, 
     with the support of New Jersey's two Democratic senators.
       Our support is not an uncritical ode to homegrown talent. 
     It is based, in part, on the respect and praise Alito has 
     garnered from those who have worked with him throughout his 
     distinguished legal and judicial career. Democrats and 
     Republicans, conservatives and liberals, many of whom, 
     perhaps, philosophically disagree with Alito, have 
     consistently maintained he is well-suited for the court.
       We think they make a compelling case.
       Among those who speak highly of him are Rutgers Law School 
     Associate Dean Ronald Chen, an outspoken liberal who was just 
     named by Gov.-elect Jon Corzine to be public advocate; 
     retired Chief Judge John Gibbons of the 3rd Circuit Court of 
     Appeals, who since leaving the bench has worked aggressively 
     to eliminate the death penalty; well-known Democratic lawyer 
     Douglas Eakeley, who was appointed by President Bill Clinton 
     to the board of directors of the Legal Services Corp.; 
     Democratic criminal defense attorney Joseph Hayden and former 
     Attorney General Robert Del Tufo, who served in Democrat Jim 
     Florio's cabinet and worked with Alito in the U.S. Attorney's 
     Office.
       None of these folks had to stand up for Alito, but they 
     did.
       Similarly, the judges who sit with Alito on the 3rd Circuit 
     in Philadelphia came forth in an unprecedented show of 
     support, insisting he was not an ideologue, had scrupulously 
     adhered to precedent and had shown no signs of hostility 
     toward a particular class of cases or litigants.
       The American Bar Association declared Alito ``well-
     qualified''--the highest approval rating given by the ABA.
       This is not to say we like everything we heard from Alito 
     in the hearings.
       Given our strong and long-standing support for abortion 
     rights, we worry that Alito's refusal to describe Roe vs. 
     Wade as settled law could mean he'll be inclined to take 
     positions that chip away at a woman's right to abortion. At a 
     time when questions are being raised about the abuse of 
     presidential power in the war on terror, we're discomforted 
     by Alito's expansive view of presidential authority.
       The hard truth is that selecting nominees for the Supreme 
     Court is a presidential choice. And it is reasonable and 
     appropriate for a president to pick someone who reflects his 
     values. During the 2004 presidential race, candidate George 
     Bush made no bones about his intention, if given a chance, to 
     select conservatives.
       Some Democrats have argued against that standard. They've 
     said nominees have to reflect a political ``mainstream.'' But 
     if that were the case, Clinton's nomination of Ruth Bader 
     Ginsberg would never have been confirmed by a 96-3 vote. 
     Republicans overwhelmingly supported Ginsberg, even though 
     she is the very picture of a left-wing ideologue. She was 
     general counsel of the American Civil Liberties Union and 
     directed the ACLU's Women's Rights Project, arguing numerous 
     controversial abortion rights cases.
       Alito is a conservative, but he is not an ideologue. He has 
     demonstrated that he has the intellect and temperament to 
     serve the nation well.

  Mr. HATCH. Mr. President, I also note that the attorneys general of 
20 States, Democrats and Republicans, have signed a letter urging this 
body to confirm Judge Alito. I am proud that Mark Shurtleff, attorney 
general of my home State of Utah, is among them. They write:

       Judge Alito represents the best of the Federal bench and we 
     believe he will be an excellent Supreme Court justice.

  I agree, and I ask unanimous consent that this letter be printed into 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                  January 6, 2006.
     Re Judicial confirmation of Judge Samuel A. Alito, Jr., to 
         the Supreme Court of the United States.

     Hon. Bill Frist,
     Majority Leader, U.S. Senate,
     Washington, DC.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Harry Reid,
     Minority Leader, U.S. Senate,
     Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Majority Leader Frist, Minority Leader Reid, Chairman 
     Specter, and Ranking Member Leahy: We, the undersigned 
     Attorneys General of our respective states, are writing in 
     support of the confirmation of Judge Samuel A. Alito, Jr., to 
     serve as an Associate Justice on the Supreme Court of the 
     United States.
       We are confident that Judge Alito will bring to the Court 
     not only years of legal experience and judicial temperament, 
     but also modesty and great personal character.
       We reflect diverse views and constituencies and are united 
     in our belief that Judge Alito will be an outstanding Supreme 
     Court Justice and should be confirmed by the United States 
     Senate.
       As the Senate prepares for the confirmation process of 
     Judge Alito, it is important to look beyond partisan politics 
     and ideology and focus on the judicial experience of this 
     extremely well qualified nominee. Judge Alito has served the 
     United States as an Assistant to the Solicitor General, as a 
     United States Attorney, and for the past 15 years, as a Judge 
     on the Third Circuit Court of Appeals.
       Judge Alito's record on the Third Circuit Court of Appeals 
     demonstrates judicial restraint. He has proven that he seeks 
     to apply the law and does not legislate from the bench. Judge 
     Alito's judgments while on the bench have relied on legal 
     precedent and current law, and he has a long-standing 
     reputation for being both tough and fair. In short, Judge 
     Alito represents the best of the federal bench and we believe 
     he will be an excellent Supreme Court Justice.
       We urge the Senate to hold an up or down vote and confirm 
     Judge Alito.
           Sincerely,
         John W. Suthers, Attorney General of Colorado; Troy King, 
           Attorney General of Alabama; Charlie Crist, Attorney 
           General of Florida; Lawrence Wasden, Attorney General 
           of Idaho; Tom Corbett, Attorney General of 
           Pennsylvania; David W. Marquez, Attorney General of 
           Alaska; Mark J. Bennett, Attorney General of Hawaii; 
           Stephen Carter, Attorney General of Indiana; Phill 
           Kline, Attorney General of Kansas; Jon Bruning, 
           Attorney General of Nebraska.
         Wayne Stenehjem, Attorney General of North Dakota; Henry 
           McMaster, Attorney General of South Carolina; Lawrence 
           Long, Attorney General of South Dakota; Judith Williams 
           Jagdmann, Attorney General of Virginia; Michael A. Cox, 
           Attorney General of Michigan; George Chanos, Attorney 
           General of Nevada; Jim Petro, Attorney General of Ohio; 
           Greg Abbott, Attorney General of Texas; Mark Shurtleff, 
           Attorney General of Utah; Rob McKenna, Attorney General 
           of Washington.

  Mr. HATCH. Mr. President, the votes we take today and tomorrow give 
us an important opportunity. The Los Angeles Times editorial of January 
15, 2006, got it right, saying that trying to derail this nomination by 
filibuster rather than on the merits is wrong.
  I urge my colleagues to preserve this body's tradition by rejecting 
this desperate filibuster attempt, and then in a vote tomorrow, I urge 
my colleagues to honor the judiciary's important but limited role in 
our system of government by confirming this qualified and honorable man 
to the Supreme Court of the United States of America.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, it is time for the debate on the 
nomination of Judge Alito to end. It is time for the Senate to act on 
the President's nomination of Samuel Alito to serve as a Justice on the 
U.S. Supreme Court.
  We have had ample time to review this nomination. The Judiciary 
Committee has conducted a thorough review of Judge Alito's background 
and qualifications. Senator Specter, as chairman of the Judiciary 
Committee, ensured that all the questions that should be asked of this 
nominee were asked and answered.
  The Judiciary Committee thoroughly reviewed the story of Judge 
Alito's life and questioned him on a wide range of issues. In the 
process, Judge Alito demonstrated his ability, intelligence, and his 
fitness to serve as a Justice on the U.S. Supreme Court.
  In almost 3 months of intense scrutiny and over 18 hours of personal 
testimony before the Senate Judiciary Committee, Judge Alito provided 
clear and candid answers to all the questions that were asked.
  All Senators have had an opportunity to meet with Judge Alito, to 
review the opinions he has written, to read the articles he has written 
in law reviews and other publications, to become familiar--as familiar 
as anyone can--with his thinking, his judicial philosophy, his past 
performance as a judge, as a solicitor, as a lawyer in private 
practice, as a student in law school, and as a fellow judge. Judge 
Alito has more judicial experience than any Supreme Court nominee in 
over 70 years.
  In my opinion, the most impressive and persuasive testimony at the 
hearings in the committee came from the panel of judges with whom he 
served on the Third Circuit Court of Appeals. They testified before the 
committee

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and discussed the way Judge Alito approached questions before that 
court, the way he acted during deliberations among other members of the 
court about the decision that should be reached in each case, and 
generally the way he went about discharging the enormously important 
duties he had as a member of that court. And despite differences in 
politics and viewpoints and backgrounds among some of the judges with 
him, they were all enthusiastically supporting his confirmation for 
service on the Supreme Court.
  Judge Alito has earned the respect of those who know him best--his 
colleagues on the Federal courts, as well as his current and former law 
clerks, and the members of the bar who have appeared before him in 
court. He is widely respected for his even temperament, his integrity, 
his sound legal judgment, and his respect and courtesy for others.
  I am confident Judge Alito will serve with great distinction as a 
Justice on the Supreme Court. I think reciting Judge Alito's own words 
is the best way for me to conclude my remarks. He said:

       Fifteen years ago, when I was sworn in as a judge of the 
     Court of Appeals, I took an oath. I put my hand on the Bible, 
     and I swore that I would administer justice without respect 
     to persons, that I would do equal right to the poor and the 
     rich, and that I would carry out my duties under the 
     Constitution and the laws of the United States. And that is 
     what I have tried to do to the very best of my ability for 
     the past 15 years. And if I am confirmed, I pledge to you 
     that that is what I would do on the Supreme Court.

  It is time to end this debate. It is time to confirm the President's 
nomination of Judge Samuel Alito.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Burr). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I know there are a number of people who 
wish to speak on Judge Alito. I want to add a few comments of my own on 
this nomination. If I may inquire of the Chair, is there time that 
needs to be yielded?
  The PRESIDING OFFICER. The Senator may speak up until 4 o'clock.
  Mr. BROWNBACK. I thank the Chair.
  Mr. President, I sat in on the hearings for Judge Alito. I personally 
interviewed Judge Alito. I talked with him in my office. I sat through 
the hearings and was able to question him in the Judiciary Committee. I 
am on the Judiciary Committee, so I sat through those hearings to hear 
his testimony. I feel as if we had a good chance to take the measure of 
the man, and he is outstanding. I believe he is going to be an 
outstanding jurist.
  He answered hundreds of questions, more than I believe any prior 
nominee has answered in the history of the Republic. He answered them 
deftly. He answered them with an encyclopedic knowledge of the law. It 
was amazing to me to see that he did not have a note in front of him 
the whole time, and if you asked him any constitutional question on any 
case at any time in the history of the Republic, he would say here are 
the facts of that case, here is how the law was decided, this case is 
still in question or it isn't. He is a brilliant jurist. He 
wasn't particularly good on international law, and I was particularly 
glad to hear he wasn't good on law, on what would happen in other 
countries.

  He has a long history on the bench which I think is important. For a 
series of years now, only so-called stealth candidates could be 
approved. Judge Alito is a man with years of experience on the Third 
Circuit Court of Appeals. He has written a number of opinions that we 
could dissect them and see. People were looking into his background, 
trying to determine does he lean this way or that way, but he has 
hundreds of published opinions, and through them we can see which way 
he leans.
  He is a known commodity--well known, well respected, and well 
regarded across the board. I do think where he is going to contribute 
to the country, the Republic, is in the areas of religious freedom and 
free expression. This has not gotten much play at all in the media or 
in much of the hearings, but it is one of the areas he has written the 
most extensively on and in which he is a legal scholar.
  He believes in a robust public square, a public square where we can 
celebrate faith, and where faith can be presented. He believes in this 
for all faiths and faith traditions. You see that in cases where he has 
ruled in favor of menorah candles being put forward, Christmas trees, 
and Muslim police officers being able to dress appropriately to their 
religion and still be able to be police officers.
  He believes in a separation of church and state, but he also believes 
this is a country full of people of faith and that they should, under 
the free expression clause, be allowed to express and to live that 
faith and to be able to show it. I think he is very clear and 
thoughtful.
  If there is an area of the law that needs clarity, it is this because 
we have rules and tests all over the country. I think he is going to 
contribute in this area. This is one of the areas that did not get much 
review, it did not get much comment, but I think he is going to make a 
clear impression, and I think he is going to make a very helpful 
impression for this Nation whose motto, as the Chair looks at it, is 
``In God We Trust.''
  There is a reason for that. This is a nation of faith. It is one we 
seek to celebrate, not have an imprimatur from the state saying this is 
the religion or that is the religion, but rather saying we want you all 
to be here, have your own faith, be able to celebrate it, and be able 
to bring it forward in this Nation. I think he is going to contribute 
greatly in this particular category.
  The area of abortion got the most review, and it is unknown how he 
would rule in the case of Roe v. Wade or anything along that line. He 
did not state an opinion one way or the other. It is an area of open 
case law. It is an area, in my opinion, that is not in the 
Constitution. There is no constitutional right for a woman to abort her 
child. I believe it to be a matter that should be decided by bodies 
such as this, or in States around the country.
  I remind my colleagues, as they all know, if Roe v. Wade or any 
portion of it were overturned, the issue goes back to the States. That 
is the group, that is the body that resolves this issue. It is not 
something where the ruling automatically shuts everything down. What 
happens is it goes back and California decides its rules and New York, 
Florida, Kansas, Minnesota, and other States decide theirs.
  I don't see what is so untrustworthy about States resolving this 
issue. They did prior to 1973, and we didn't have near the level of 
conflict or difficulty in this country on those laws when the States 
were resolving these issues.
  I strongly doubt all the States would resolve them the same. I doubt 
a State in a certain part of the country would be identical to another 
one. Yet I do think it would reflect the will of the people. But we do 
not know how Judge Alito he will rule on this issue. The Democrats 
don't know, the Republicans don't know, I don't know. This is an issue 
I care deeply about, and we don't know. That is probably as it should 
be because it is an area of active case law and one that is going to 
come in front of us.
  The other area he was challenged so much on was Executive rights and 
privileges. I believe this man will be very clear in standing up to the 
executive branch when the executive branch needs to be held in check. I 
have no doubt at all about that.
  One area we talked about that has not again gotten much review, but 
needs a lot, is the area of judicial restraint. We need a judiciary 
that will restrain itself. There are three separate branches of 
Government, each having a sphere and not to overlap the other. The 
judiciary has not restrained itself in the past. Judge Alito, along 
with John Roberts, previously coming before the committee and this 
body, both spoke significantly and clearly about the need for judicial 
restraint. I believe if we don't start seeing a judiciary that shows 
some restraint and says it is not an all-powerful judiciary in every 
area, it cannot appropriate money, that is left to the Congress, that 
we will start to see these bodies remove judicial review by the 
Congress, as is allowed in the Constitution. It is not an area that has 
been used much, but I think we are going to start seeing it used much

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more, if the judiciary does not show some level of restraint. This has 
been expressed by both John Roberts and Samuel Alito.
  I believe Judge Alito will be an outstanding jurist if we are able to 
get cloture in this body to end debate, to get the 60 votes necessary 
to end debate. He is one of the most qualified individuals we have had. 
His is a beautiful story of immigrant parents coming to the United 
States and working hard to get a good education.
  He is one of sterling character. Probably one of the saddest chapters 
that has taken place is the challenge to his character, which is 
nothing short of sterling. This is a gentleman who has worked all his 
life to uphold the traditions of his family, to make his family proud 
and see his dad pleased that his son stood for right against wrong.
  At the end of the day, I believe he will exercise justice and 
righteousness, doing both what is just and what is right. That is what 
we need in this country, a country that is both just and right.
  In the greatest traditions of this Nation, we need to do what is 
right, and we need to be just to the strong, to the weak, to those who 
cannot speak for themselves. We need to stand up and speak for their 
rights even if they cannot speak for their own.
  I support the nomination and yield the floor.
  The PRESIDING OFFICER. Under the previous order, the hour of 4 p.m. 
having arrived, the Democratic leader or his designee shall be 
recognized for 15 minutes.
  Mr. KERRY. Mr. President, I yield myself 7 minutes.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I have heard a lot of my colleagues rely on 
the ABA's determination that Judge Alito is ``well qualified'' as a 
reason--sometimes as reason enough--to vote for his confirmation. But 
there is a reason why an ABA ranking alone is not all that is required 
to be confirmed to the bench, let alone the highest Court in the land.
  With a decision as fundamental--as irrevocable--and as important to 
the American people as the confirmation of a Supreme Court Justice, it 
is important we tell the Americans the full story about the ABA and 
those rankings.
  When making its determination, the ABA considers analytical skills. 
They consider knowledge of the law. They consider integrity, 
professional competence, and judicial temperament. But United States 
Senators must consider more than these criteria.
  What the ABA does not look at is the balance of the Supreme Court. 
What they do not look at is ideology. What they do not look at is 
judicial activism. What they do not look at is the consequences of a 
judge's ideologically driven decisions for those who have been wronged 
and who just want to get their day in court. No matter how smart he may 
be, no matter how cleverly his opinions may be written, no matter how 
skillfully he manipulates the law, their standards don't consider the 
impact of his decisions on average Americans. In short, they don't 
measure what will happen to average Americans if Judge Alito becomes 
Justice Alito. That is our job.
  None of these measurements consider whether Judge Alito routinely 
cuts off access to justice for the most disadvantaged Americans--those 
that need it the most. They don't ask whether he consistently excuses 
excessive government force when it intrudes into the privacy of 
individuals. They don't consider that the only statement he has ever 
made about a woman's right to privacy is that she doesn't have one.
  These are things that we must consider here in the United States 
Senate. These are things that are on the line in this vote this 
afternoon. And these are the things that I believe most Americans want 
us to consider. We have to consider whether a judge we confirm to a 
lifetime appointment to the Supreme Court will undermine the laws that 
we have already passed that benefit millions of Americans, like the 
Family Medical Leave Act. We have to consider whether Judge Alito will 
place barriers in the way of addressing discrimination, whether he will 
serve as an effective check on the abuse of executive power, whether he 
will roll back women's privacy rights or whether he will enforce the 
rights and liberties that generations of Americans have fought and bled 
and even died to protect. None of the rights we are talking about came 
easily in this country. There were always those in positions of power 
who fought back and resisted. What we need in a Justice is somebody who 
is sensitive to that history. Senator after Senator has described 
specific cases and the way in which Judge Alito has had a negative 
impact in these areas--often standing alone, in dissent against 
mainstream beliefs.
  This long record is a record that gave the extreme right wing cause 
for public celebration with his nomination. That just about tells you 
what you need to know. The vote today is whether we will take a stand 
against ideological courtpacking.
  Nothing can erase Judge Alito's record. We all know what we are 
getting. No one will be able to say, in 5 to 10 years, that they are 
surprised by the decisions Judge Alito makes from the bench. People who 
believe in privacy rights, who fight for the rights of the most 
disadvantaged, who believe in balancing the power between the President 
and Congress need to take a stand now.
  I understand that, for many, voting for cloture on a judicial 
nomination is a very difficult decision, particularly on this Supreme 
Court nominee. I also understand that, for some, a nomination must be 
an ``extraordinary circumstance'' in order to justify that vote. Well, 
I believe this nomination is an extraordinary circumstance. What could 
possibly be more important than this--an entire shift in the direction 
of the Court?
  This is a lifetime appointment to a Court where nine individuals 
determine what our Constitution protects and what our laws mean. Once 
Judge Alito is confirmed, we can never take back this vote. Not after 
he prevents many Americans from having their discrimination cases heard 
by a jury. Not after he allows more government intrusions into our 
private lives. Not after he grants the President the power to ignore 
Federal law rather than protecting our system of checks and balances. 
These questions do not arise out of speculation. They do not arise out 
of mere statement. They arise out of the record the judge has carved 
for himself.
  These issues and the threat that Judge Alito's nomination poses to 
the balance that the Supreme Court has upheld in all the years that 
Justice O'Connor has served there--all of this constitutes an 
``extraordinary circumstance.''
  I understand that many Senators oppose this nomination, and I believe 
the vote tomorrow will indicate that if we are not successful today. 
They say that they understand the threat Judge Alito poses, but they 
argue that somehow a vote to extend debate, when there have been a mere 
30 hours or so of debate, is different. I do not believe it is. I 
believe it is the only way that those of us in the minority have a real 
voice in the selection of this Justice or any Justice. It is the only 
way we can fully complete our constitutional duty of advice and 
consent. It is the only way we can be a voice for those Americans who 
do not have a voice today. It is the only way we can stop a 
confirmation that we feel will certainly cause irreversible harm to the 
principles and values that make a real difference in the lives of 
average Americans. It is the only way we can keep faith with our 
belief, and the Constitution's promise, of equal justice. That is a 
position that we can and we should defend anywhere, at any time.
  I thank those who have stood to be counted in this effort and who 
will continue to take a stand with their vote. I particularly thank my 
senior colleague from Massachusetts, Senator Kennedy.
  I think the remainder of the time Senator Kennedy will use.
  Mr. KENNEDY. I have 7\1/2\ minutes, am I correct in that?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. KENNEDY. I will yield myself 7 minutes.
  First of all, I thank my friend, Senator Kerry, for his strong 
commitment on this issue and his eloquence, passion, and support of 
this position. This is a time in the Senate that a battle needs to be 
fought. This vote that we are casting with regard to Judge Alito is 
going to have echoes for years and years to come. It is going to be a 
defining vote about the Constitution of the

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United States, about our protections of our rights and our liberties in 
the Constitution of the United States.
  People in my State at this particular time are concerned about the 
difficulties they are having with prescription drugs. They are 
concerned about the problems they are having in paying their oil bills. 
They are concerned about their problems in paying for the education of 
their children. They are troubled by what they see as a result of 
Katrina. They are bothered by what they hear about the corruption in 
Washington and are deeply troubled by what is happening in Iraq. They 
have not had a chance to focus on what is the meaning of this vote in 
the Senate this afternoon.
  But all you have to do is look back into history. Look back into the 
history of the judiciary. Look back to the history of the Fifth Circuit 
that was making the decisions in the 1950s. Look at the record of 
Justice Wisdom, Judge Tuttle, Judge Johnson of Alabama and the courage 
they demonstrated that said at last we are going to break down the 
walls of discrimination in this country that have gripped this Nation 
for 200 years. Our Founding Fathers failed the test when they wrote 
slavery into the Constitution. Abraham Lincoln pointed the way, and we 
passed the 13th, 14th, and 15th amendments and had a Civil War, but we 
did not resolve this issue. It was only until the courage of members 
of--what branch of Government? Not the Congress. Not the Senate. Not 
the executive. The judiciary, the Fifth Circuit. We are talking now 
about the Supreme Court, but they are the ones who changed this country 
inevitably with what we call the march toward progress, the march 
toward knocking down the walls of discrimination that permitted us to 
pass the 1964 Civil Rights Act in public accommodations, so people 
whose skin was not White could go into restaurants and hotels--public 
accommodations; the 1965 act for voting, voting rights; the 1968 act on 
public accommodations; the 1973 act to say that women are going to be 
treated equally; the Americans with Disabilities Act that say the 
disabled are going to be part of the American family. All of that is 
the march to progress. My friends, the one organization, the one 
institution that protects it is the Supreme Court of the United States.
  Too much blood has been shed in those battles, too much sweat, too 
many tears, to put at risk that march for progress. And that is what we 
are doing with this nominee. He failed to demonstrate before the 
Judiciary Committee that he was committed to the continued march toward 
progress. He doesn't have to say how he is going to vote on a 
particular case, but he has to make it clear that he understands what 
this Nation is all about, why we are the envy of the world with the 
progress that we have made to knock down the walls of discrimination 
and prejudice and open up new opportunities for progress for our 
people. That is the definition of America.
  Why are we going to put that at risk by putting someone on the 
Supreme Court who is not committed to that progress? We are not asking 
that they take a particular position on an issue. That is what is 
before us. We have a responsibility to try to present this to the 
American people. Our constituents who are working hard, taking care of 
their kids, trying to do a job across this country--they are beginning 
to focus on it. It came to the Senate floor last Wednesday. Today is 
Monday. What is the next business? What is the next measure on the 
calendar? Asbestos? Isn't that interesting? Is there anything more 
important than spending time and permitting the American people to 
understand this issue? I don't believe so, and that is what our vote at 
4:30 is about.
  If you are concerned and you want a Justice who is going to stand for 
the working men and women in this country--it is not going to be Judge 
Alito. If you are concerned about women's privacy rights, about the 
opportunity for women to gain fair employment in America--it is not 
Judge Alito. If you care about the disabled, the Rehabilitation Act 
that we passed, the IDEA Act to include children in our schools, that 
we passed, that has been on the books for 25 years, the Americans with 
Disabilities Act that we have passed to bring all of the disabled into 
our society, if you are looking for someone who is going to be a friend 
of the disabled--it is not going to be Judge Alito.
  Finally, if you are looking for someone who is going to be willing to 
stand up to the executive branch of Government at a time that he is 
going to exceed his power and authority and the law of this country--it 
is not going to be Judge Alito. It is not going to be. He is not going 
to be similar to Sandra Day O'Connor who, in the Hamdi case, said: Oh, 
no. No President, even in times of war, is above the law in this 
country. He is not going to be similar to Warren Burger, who said ``No, 
Mr. President. No, you have to surrender the papers,'' at the time of 
the Watergate break-ins. ``No, Mr. President.''
  This is the time. This is the issue. This happens to be the wrong 
judge at the wrong time for the wrong Court.
  I hope this body will give us the time to be able to explain this in 
greater detail to our fellow Americans so a real vote can be taken. 
When it is, I believe this nominee will not be approved.
  I understand my time has expired.
  Mr. LEAHY. Mr. President, I began the hearing on this nomination by 
putting forward what for me was the ultimate question during the 
consideration of a successor to Justice Sandra Day O'Connor: Would 
Judge Alito, if confirmed by the Senate to the Supreme Court, protect 
the rights and liberties of all Americans and serve as an effective 
check on government overreaching?
  Since this debate began last Wednesday, I have posed the fundamental 
question that this nomination raises for this body: whether the Senate 
will serve its constitutional role as a check on Executive power by 
preserving the Supreme Court as a constitutional check on the expansion 
of Presidential power.
  This is a nomination that I fear threatens the fundamental rights and 
liberties of all Americans now and for generations to come. As 
astonishing as the facts may seem, it does not overstate them to point 
out that the President is in the midst of a radical realignment of the 
powers of the government and of its intrusiveness into the private 
lives of Americans. This nomination is part and parcel of that plan. I 
am concerned that if confirmed, this nominee will further erode the 
checks and balances that have protected our constitutional rights for 
more than 200 years. This is a critical nomination, one that can tip 
the balance on the Supreme Court radically away from constitutional 
checks and balances and the protection of Americans' fundamental 
rights.
  The procedural vote just taken was in large measure symbolic. Its 
result was foreseen by Senators on both sides of the aisle and on both 
sides of the question. The next vote the Senate takes on this critical 
nomination is not symbolic. It has real consequences in the lives of 
the 295 million Americans alive today, and it will influence the lives 
of generations of Americans to come. It will affect not only our rights 
but the fundamental rights and liberties of our children and our 
children's children. In short, it matters, and it matters greatly. The 
vote the Senate will take tomorrow will determine whether Samuel A. 
Alito, Jr., replaces Justice Sandra Day O'Connor on the Supreme Court 
of the United States.
  I appreciate why Senators who voted against cloture believe this 
matter deserves more searching attention by Senators and the American 
people. Among Democratic Senators, each is voting his or her conscience 
and best judgment. There will be many Democratic Senators who, like the 
Democratic members of the Judiciary Committee who have closely studied 
the record of this nominee, will be voting against the nomination. 
There will be some Democratic Senators who will vote to confirm the 
nominee. Among those voting against, there are some who believe that it 
is not appropriate to withhold the Senate's consent by extending 
debate. The Senate debated Chief Justice Roberts' nomination during 8 
days and over a 10-day calendar period. Although much more divisive and 
controversial, the Alito nomination will be debated for just 5 days 
over a 7-day calendar period by the time the vote is called tomorrow.
  It is true that Democratic Senators do not all vote in lockstep. Each 
Democratic Senator individually gives these questions serious 
consideration. They honor their constitutional duty. I am

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proud of the Democratic members of the Judiciary Committee for the 
statements they made last week when the committee considered this 
nomination and during the course of the last few days. Their hard work 
in preparing for three Supreme Court nominations over the last few 
months is to be commended. I thank and commend the many Democratic 
Senators who came to the floor, who spoke, who set forth their concerns 
and their views. That includes Democratic Senators opposing the 
nomination and those in favor. It is quite a roster: Senators Kennedy, 
Durbin, Mikulski, Clinton, Kerry, Nelson of Florida, Reed, Murray, 
Feinstein, Inouye, Harkin, Bingaman, Lincoln, Lieberman, Salazar, 
Carper, Levin, Obama, Dayton, Feingold, Johnson, Sarbanes, Stabenow, 
Lautenberg, Menendez, and, in addition, Senator Jeffords. These 
Senators approached the matter seriously, in contrast to those partisan 
cheerleaders who rallied behind this White House's pick long before the 
first day of hearings.
  I respect those Senators who are giving this critical nomination 
serious consideration but come to a different conclusion than I, just 
as I continue to respect the 22 Senators who voted against the Roberts 
nomination. I have candidly acknowledged that over the course of 
history, their judgment and vote may prove right. I took Judge Roberts 
at his word in the belief that his words and the impressions he 
understood them to be creating had meaning. I continue to hope that as 
Chief Justice he will fulfill his promise and steer the Court to serve 
as an appropriate check on abuses of Presidential power and protect the 
fundamental liberties and rights of all Americans.
  Filibusters of judicial nominees--and, in particular, of Supreme 
Court nominees--are hardly something new. When Justice Fortas was 
nominated by President Johnson to be the Chief Justice, a filibuster 
led by Strom Thurmond and the Republican leader resulted in an 
unsuccessful cloture vote and in that nomination being withdrawn. That 
was the most recent successful filibuster of a Supreme Court nominee. 
But that was not the first or last Supreme Court nomination to be 
defeated. President George Washington, the Nation's first and most 
popular President, saw the Senate reject his nomination of John 
Rutledge to the Supreme Court at the outset of our history. Over time 
approximately one-fifth of Presidents' Supreme Court nominees have not 
been confirmed.
  The last time the country was faced with the retirement of the 
pivotal vote on the Supreme Court was when Justice Lewis Powell 
resigned in 1987. A Republican President sought to use that opportunity 
to reshape the U.S. Supreme Court with his nomination of Judge Robert 
Bork. Judge Bork had been a law professor, a partner in one of the 
Nation's leading law firms, a judge on the DC Circuit for 5 years, and 
he had served as Solicitor General of the United States and even as the 
Acting Attorney General at a critical juncture of our history.
  Many myths have arisen about why the Senate rejected that nomination. 
I was here and, along with the other Senators, both Republican and 
Democratic, who voted to defeat that nomination, I know that the 
nominee's views were the decisive factor in his failure. His rejection 
of the constitutional right to privacy was a large part of his own 
undoing. Soon thereafter, President Reagan announced and withdrew the 
nomination of Judge Ginsburg and then turned to a conservative Federal 
appellate court judge from California named Anthony Kennedy. Justice 
Kennedy, though conservative, was confirmed overwhelmingly and in 
bipartisan fashion. He continues to serve as a respected Justice who 
has authored key decisions protecting Americans from unfair 
discrimination because of their sexual orientation.
  When the Senate was considering a successor to Justice Powell almost 
20 years ago, I said that I believed a Supreme Court nominee's judicial 
philosophy should play a central role in our consideration. I noted:

       There is no question that the nominee who is confirmed to 
     succeed Justice Lewis Powell will be uniquely influential in 
     determining the direction of the Supreme Court's 
     interpretation of the Constitution for years to come. There 
     can hardly be an issue closer to the heart of the Senate's 
     role than a full and public exposition of the nominee's 
     approach to the Constitution and to the rule of the courts in 
     discerning and enforcing its commands. That is what I mean by 
     judicial philosophy.

  The same remains true today as we consider a successor to Justice 
Sandra Day O'Connor. I strongly believe that Judge Alito's judicial 
philosophy is too deferential to the government and too unprotective of 
the fundamental liberties and rights of ordinary Americans for his 
nomination by President Bush to be confirmed by the Senate as the 
replacement for Justice O'Connor.
  Judicial philosophy comes into play time and again as Supreme Court 
justices wrestle with serious questions about which they do not all 
agree. These include fundamental questions about how far the government 
may intrude into our personal lives. Senators need to assess whether a 
nominee will protect fundamental rights if confirmed to be on the 
Supreme Court.
  Several Republican Senators said that judicial philosophy and 
personal views do not matter because judges should just apply the rule 
of law as if it were some mechanical calculation. Senator Feinstein 
made this point exceptionally well during the debate. Personal views 
and judicial philosophy often come into play on close and controversial 
cases. We all know this to be true. Why else did Republican supporters 
force President Bush to withdraw his previous nominee for this vacancy, 
Harriet Miers, before she even had a hearing? She failed their judicial 
philosophy litmus test.
  Indeed, Harriet Miers is the most recent Supreme Court nominee not to 
have been confirmed. It was last October that President Bush nominated 
his White House Counsel Harriet Miers to succeed Justice O'Connor. He 
did so after the death of the Chief Justice and withdrawing his earlier 
nomination of Judge Roberts to succeed Justice O'Connor. The democratic 
leader of the Senate quickly endorsed the selection of Ms. Miers as the 
kind of person, with the kind of background, he found appealing. 
Democratic Senators went about the serious business of preparing for 
hearings on the Miers nomination. But there were those from among the 
President's supporters who castigated Ms. Miers and the President for 
the nomination. The President succumbed to the partisan pressure from 
the extreme rightwing of his own party by withdrawing his nomination of 
Harriet Miers to the Supreme Court after repeatedly saying that he 
would never do so. In essence, he allowed his choice to be vetoed by an 
extreme faction within his party, before hearings or a vote. As 
Chairman Specter has often said, they ran her out of town on a rail. In 
fact, of course, she has remained in town as the President's counsel, 
but his point is correct. Like the more than 60 moderate and qualified 
judicial nominees of President Clinton on whom Republicans would 
neither hold hearings or votes, the Miers nomination was killed by 
Republicans without a vote--by what was in essence a pocket filibuster. 
That eye-opening experience for the country demonstrated what a vocal 
faction of the Republican Party really wants. Their rightwing litmus 
test demands justice and judges who will guarantee the results that 
they want. They do not want an independent federal judiciary. They want 
certain results.
  Instead of uniting the country through his third choice to succeed 
Justice O'Connor, the President has chosen to reward one faction of his 
party, at the risk of dividing the country. Those so critical of his 
choice of Harriet Miers as a nominee were the very people who rushed to 
endorse the nomination of Judge Alito. Instead of rewarding his most 
virulent supporters, the President should have rewarded the American 
people with a unifying choice that would have broad support. America 
could have done better through consultation to select one of the many 
consensus conservative Republican candidates who could have been 
overwhelmingly approved by the Senate. Instead, without consultation, 
the President withdrew the Miers nomination and the next day announced 
that his third choice to succeed Justice O'Connor was Judge Alito.
  At his hearing, Judge Alito began by asking how he got this critical 
nomination. Over the course of the hearings, I think we began to 
understand the real answer to that question. It has little to do with 
Judge Alito's family story and a great deal to do with the pressures

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that forced the President to withdraw the nomination of Harriet Miers 
and this President's efforts to avoid any check on his expansive claims 
to power.
  This is a President who has been conducting secret and warrantless 
eavesdropping on Americans for more than 4 years. This President has 
made the most expansive claims of power since American patriots fought 
the war of independence to rid themselves of the overbearing power of 
King George III. He has done so to justify illegal spying on Americans, 
to justify actions that violate our values and laws against torture and 
protecting human rights, and in order to detain U.S. citizens and 
others on his say so without judicial review or due process. This is a 
time in our history when the protections of Americans' liberties are at 
risk as are the checks and balances that have served to constrain 
abuses of power for more than 200 years.
  Judge Alito's opening statement skipped over the reasons he was 
chosen. He ignored his seeking political appointment within the Meese 
Justice Department by proclaiming his commitment to an extreme and 
activist rightwing legal philosophy. His testimony sought to minimize 
the Federalist Society and his seeking to use membership in Concerned 
Alumni of Princeton for advancement. He attempted to revise and 
redefine the theory of the ``unitary executive.'' That is a legal 
underpinning being used by this President and his supporters to attempt 
to justify his assertions of virtually unlimited power. The President 
wanted a reliable Justice who would uphold his assertions of power, his 
most extreme supporters want someone who will revisit the 
constitutional protection of privacy rights, and the business 
supporters wanted someone favorable to powerful special interests.
  Supreme Court nominations should not be conducted through a series of 
winks and nods designed to reassure the most extreme Republican 
factions while leaving the American people in the dark. No President 
should be allowed to pack the courts, and especially the Supreme Court, 
with nominees selected to enshrine Presidential claims of government 
power. The checks and balances that should be provided by the courts, 
Congress, and the Constitution are too important to be sacrificed to a 
narrow, partisan agenda. The Senate stood up to President Roosevelt 
when he proposed a court-packing scheme and should not be a rubberstamp 
to this President's effort to move the law dramatically to the right. I 
do not intend to lend my support to an effort by this President to 
undermine checks and balances or to move the Supreme Court and the law 
radically to the right.
  So what do we know about the Samuel Alito who graduated from 
Princeton University and Yale Law School and obtained a plum job in the 
office of the Solicitor General of the United States? We know that he 
wanted political advancement and was committed to the radical legal 
theories of the Meese Justice Department. The job application that was 
the subject of some question at the hearing is most revealing. I will 
ask that a copy of that job application be printed in the Record at the 
conclusion of my statement so that the American people can see it.
  This confirmation process is the opportunity for the American people 
to learn what Samuel Alito thinks about their fundamental 
constitutional rights and whether he will serve to protect their 
liberty, their privacy and their autonomy from Government intrusion. 
The Supreme Court belongs to all Americans, not just the person 
occupying the White House, and not just to a narrow faction of a 
political party.
  We have heard from Judge Alito's supporters that those opposing this 
nomination were ``smearing'' him by asking substantive and probing 
questions at the hearing and by addressing concerns about his record 
during this debate. The Republican leader opened the debate with that 
attack. He said this before a single minute of debate or opening 
statement by any Democratic Senator. These Republican talking points 
ring hollow and are particularly inappropriate after President Bush was 
forced by an extreme faction in his own party to withdraw his 
nomination of Harriet Miers.
  Democratic Senators should not be criticized for taking seriously 
their constitutional role in trying to assess whether Judge Alito is 
suitable for a lifetime position on the Supreme Court. Democrats also 
asked tough questions of Justices Ginsburg and Breyer during their 
confirmation hearings, which is in stark contrast to the free pass 
given to Judge Alito by Republican Senators during his hearing.
  Those critical of the Democrats have a short and selective historical 
memory. Republican Senators engaged in a party-line vote in committee 
against the nomination of Louis Brandeis to the Supreme Court. 
Republican Senators, in an unprecedented party-line vote, blocked the 
nomination in 1999 of Missouri Supreme Court Justice Ronnie White, an 
extremely qualified nominee for a Federal district court judgeship. In 
fact, Republicans pocket-filibustered more than 60 of President 
Clinton's judicial nominees by holding them up in the Judiciary 
Committee.
  This President continues to choose confrontation over consensus and 
to be a divider rather than being the uniter that he promised to be. 
This is in stark contrast to President Clinton's selection of Justices 
Ginsburg and Breyer after real consultation. In his book, ``Square 
Peg,'' Senator Hatch described how in 1993, as the ranking minority 
member of the Senate Judiciary Committee, he advised President Clinton 
about possible Supreme Court nominees. Senator Hatch recounted that he 
warned President Clinton away from a nominee whose confirmation he 
believed ``would not be easy.'' He wrote that he then suggested the 
names of Stephen Breyer and Ruth Bader Ginsburg, both of whom were 
eventually nominated and confirmed ``with relative ease.'' President 
Bush, who had promised to be a uniter, not a divider, failed to live up 
to his promise or to the example of his predecessor, as described by 
Senator Hatch. The result is that, rather than sending us a nominee for 
all Americans, the President chose a divisive nominee who raises grave 
concerns about whether he will be a check on Presidential power and 
whether he understands the role of the courts in protecting fundamental 
rights.
  The Supreme Court is the ultimate check and balance in our system. 
Independence of the courts and its members is crucial to our democracy 
and way of life. The Senate should never be allowed to become a 
rubberstamp, and neither should the Supreme Court.
  This is a nomination to a lifetime seat on the Nation's highest Court 
that has often represented the decisive vote on constitutional issues. 
The Senate needs to make an informed decision about this nomination. 
This process is the only opportunity that the American people and their 
representatives have to consider the suitability of the nominee to 
serve as a final arbiter of the meaning of Constitution and the law. 
Has he demonstrated a commitment to the fundamental rights of all 
Americans? Will he allow the government to intrude on Americans' 
personal privacy and freedoms?
  In a time when this administration seems intent on accumulating 
unchecked power, Judge Alito's views on government power are especially 
important. It is important to know whether he would serve with judicial 
independence or as a surrogate for the President who nominated him. 
Based on a thorough review of his record and that from his hearing, I 
have no confidence that he will act as an effective check on government 
overreaching and abuses of power.

  As we began the hearings, I recalled the photograph that hangs in the 
National Constitution Center in Philadelphia, PA. It shows the first 
woman ever to serve on the Supreme Court of the United States taking 
the oath of office in 1981. Justice Sandra Day O'Connor served as a 
model Supreme Court Justice.
  She is widely recognized as a jurist with practical values and a 
sense of the consequences of the legal decisions being made by the 
Supreme Court. I regret that some on the extreme right have been so 
critical of Justice O'Connor and have adamantly opposed the naming of a 
successor who shares her judicial philosophy and qualities. Their 
criticism reflects poorly upon them. It does nothing to tarnish the 
record of the first woman to serve as an Associate Justice of the 
Supreme Court of the United States. She is a Justice whose graciousness 
and sense of duty

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fuels her continued service nearly 7 months after she announced her 
intention to retire.
  As the Senate prepares to vote on President Bush's current 
nomination--his third--for a successor to Justice O'Connor, we should 
be mindful of her critical role on the Supreme Court. Her legacy is one 
of fairness that I want to see preserved. Justice O'Connor has been a 
guardian of the protections the Constitution provides the American 
people.
  Of fundamental importance, she has come to provide balance and a 
check on government intrusion into our personal privacy and freedoms. 
In the Hamdi decision, she rejected the Bush administration's claim 
that it could indefinitely detain a U.S. citizen. She upheld the 
fundamental principle of judicial review over the exercise of 
government power and wrote that even war ``is not a blank check for the 
President when it comes to the rights of the Nation's citizens.'' She 
held that even this President is not above the law.
  Her judgment has also been crucial in protecting our environmental 
rights. She joined in 5-to-4 majorities affirming reproductive freedom, 
religious freedom, and the Voting Rights Act. Each of these cases makes 
clear how important a single Supreme Court Justice is.
  It is as the elected representatives of the American people--all of 
the people--that we in the Senate are charged with the responsibility 
to examine whether to entrust their precious rights and liberties to 
this nominee. The Constitution is their document. It guarantees their 
rights from the heavy hand of government intrusion and their individual 
liberties to freedom of speech and religion, to equal treatment, to due 
process and to privacy.
  The Federal judiciary is unlike the other branches of Government. 
Once confirmed, Federal judges serve for life. There is no court above 
the Supreme Court of the United States. The American people deserve a 
Supreme Court Justice who inspires confidence that he, or she, will not 
be beholden to the President but will be immune to pressures from the 
government or from partisan interests.
  The stakes for the American people could not be higher. At this 
critical moment, Democratic Senators are performing our constitutional 
advice and consent responsibility with heightened vigilance. I urge all 
Senators--Republicans, Democrats and Independents--to join with us. The 
Supreme Court is the guarantor of the liberties of all Americans. The 
appointment of the next Supreme Court Justice must be made in the 
people's interest and in the Nation's interest, not to serve the 
special interests of a partisan faction.
  I have voted for the vast majority of President Reagan's, President 
Bush's, and President Bush's judicial nominees. I recommended a 
Republican to President Clinton to fill Vermont's seat on the Second 
Circuit, Judge Fred Parker, and recommended another Republican to 
President Bush to fill that seat after Judger Parker's death, Judge 
Peter Hall. I voted for President Reagan's nomination of Justice Sandra 
Day O'Connor, for President Reagan's nomination of Justice Anthony 
Kennedy, for President Bush's nomination of Justice Souter, and for 
this President's recent nomination of Chief Justice Roberts. In fact, I 
have voted for eight of the nine current Justices of the Supreme Court.
  I want all Americans to know that the Supreme Court will protect 
their rights and will respect the authority of Congress to act in their 
interest. I want a Supreme Court that acts in its finest tradition as a 
source of justice. The Supreme Court must be an institution where the 
Bill or Rights and human dignity are honored. In good conscience, based 
on the record, I cannot vote for this nomination. I urge all Senators 
to use this last night of debate to consult their consciences and their 
best judgment before casting their votes tomorrow. That vote will 
matter.
  In my 30 years in the Senate, I have cast almost 12,000 votes here in 
the Senate. Few will be as important as the vote we cast tomorrow.
  Mr. President, I now ask unanimous consent that the application to 
which I referred be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                    PPO Non-Career Appointment Form

       From: Mark R. Levin.
       To: Mark Sullivan. Associate Director, PPO.
       Date Sent: 11/18/85.
       Canadidate: Samuel A. Alito, Jr.,
       Department: Department of Justice.
       Job Title: Deputy Assistant Attorney General.
       Grade: ES-I.
       Supervisor: Charles J. Cooper.
       Race: White.
       Sex: Male.
       Date of Birth: Apr. 1, 1950.
       Home State: New Jersey.
       Previous Government Service: Yes.
       If yes, give departments, dates career or non-career 
     positions held: Assistant to the Solicitor General, Dept. of 
     Justice, 1981 to present; Assistant U.S. Attorney, N.J., 
     1977-1981; Law clerk to Judge Leonard I. Garth, U.S. Court of 
     Appeals, Third Cir., 1976-1977,
       A complete Form 171, political and personal resumes, 
     complete job description, and letters of support must be 
     included for White House clearance to begin.
       1980 Domicile (State): New Jersey.
       Please provide any information that you regard as pertinent 
     to your philosophical commitment to the policies of this 
     administration, or would show that you are qualified to 
     effectively fill a position involved in the development, 
     advocacy and vigorous implementation of those policies.
       Have you ever served on a political committee or been 
     identified in a public way with a particular political 
     organization, candidate or issue?
       (Please be specific and include contacts with telephone 
     numbers.)
       I am and always have been a conservative and an adherent to 
     the same philosophical views that I believe are central to 
     this Administration. It is obviously very difficult to 
     summarize a set of political views in a sentence but, in 
     capsule form, I believe very strongly in limited government, 
     federalism, free enterprise, the supremacy of the elected 
     branches of government, the need for a strong defense and 
     effective law enforcement, and the legitimacy of a government 
     role in protecting traditional values. In the field of law, I 
     disagree strenuously with the usurpation by the judiciary 
     decisionmaking authority that should be exercised by the 
     branches of government responsible to the electorate. The 
     Administration has already made major strides toward 
     reversing this trend through its judicial appointments, 
     litigation, and public debate, and it is my hope that even 
     greater advances can be achieved during the second term, 
     especially with Attorney Meese's leadership at the Department 
     of Justice.
       When I first became interested in government and politics 
     during the 1960s, the greatest influences on my views were 
     the writings of William F. Buckley, Jr., the National Review, 
     and Barry Goldwater's 1964 campaign. In college, I developed 
     a deep interest in constitutional law, motivated in large 
     part by disagreement with Warren Court decisions particularly 
     in the areas of criminal procedure, the Establishment Clause, 
     and reapportionment. I discovered the writings of Alexander 
     Bickel advocating judicial restraint, and it was largely for 
     this reason that I decided to go to Yale Law School.
       After graduation from law school, completion of my ROTC 
     military commitment, and a judicial clerkship, I joined the 
     U.S. Attorney's office in New Jersey, principally because of 
     my strong views regarding law enforcement.
       Most recently, it has been an honor and source of personal 
     satisfaction for me to serve in the office of the Solicitor 
     General during President Reagan's administration and to help 
     to 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 a right to 
     an abortion.
       As a federal employee subject to the Hatch Act for nearly a 
     decade, I have been unable to take a role in partisan 
     politics. However, I am a life-long registered Republican and 
     have made the sort of modest political contributions that a 
     federal employee can afford to Republican candidates and 
     conservative causes, including the National Republican 
     Congressional Committee, the National Conservative Political 
     Action Committee, Rep. Christopher Smith (4th Dist. N.J.), 
     Rep. James Courter (12th Dist. N.J.), Governor Thomas Kean of 
     N.J., and Jeff Bell's 1982 Senate primary campaign in N.J. I 
     am a member of the Federalist Society for Law and Public 
     Policy and a regular participant at its luncheon meetings and 
     a member of the Concerned Alumni of Princeton University, a 
     conservative alumni group. During the past year, I have 
     submitted articles for publication in the National Review and 
     the American Spectator.
       Applicant Signature: Samuel A. Alito, Jr.
       Date: Nov. 15, 1985
       Associate Director Recommendation: Approved, Mark Sullivan.

  Mr. DORGAN. We work on many important issues here in the Congress, 
but none more important than choosing a Justice to serve on the Supreme 
Court.
  Providing a lifetime appointment to the U.S. Supreme Court is a very 
serious matter for both the President and the U.S. Senate. Our choice 
will impact

[[Page S300]]

our country well beyond the term of office for the President and for 
most of the Senate.
  Those nominations are also very important to the citizens of our 
country and my State of North Dakota, many of whom--on both sides--have 
contacted my office and whose counsel I have heard and valued.
  This is the second nomination for the U.S. Supreme Court that has 
been sent to the Senate by President Bush in the span of a few short 
months.
  During consideration of the nomination of Judge John Roberts to 
become Chief Justice of the Supreme Court, I studied his record 
carefully. I reviewed the hearing records of his appearance before the 
Senate Judiciary committee as well as his record as a Federal judge on 
the Circuit Court.
  And in the end, I voted to confirm Judge Roberts. I concluded that he 
was very well qualified, and I also felt after meeting with him that he 
would not bring an ideological agenda to his work of interpreting the 
U.S. Constitution.
  In short, I felt he would make a fine Chief Justice.
  The Supreme Court nomination we are now considering is that of Judge 
Samuel Alito.
  This has been a difficult decision for me.
  Judge Alito has substantial credentials. His education, work history, 
and his 15 years of service on the Circuit Court are significant.
  However, in evaluating Judge Alito's rulings, writings, and his 
responses during his nomination hearings, I have been troubled by 
several things.
  First, he has a clear record over many years of a tendency to favor 
the big interests over the small interests. That is, when an individual 
is seeking justice in the courts by taking on the government or a large 
corporation, Judge Alito's rulings are often at odds with the rulings 
of his colleagues on the Court and tend to overwhelmingly favor the 
government or the big interests.
  People who live in small States like North Dakota have, over many 
years, found it necessary to use the courts to take on the big economic 
interests. Whether it is taking on big corporations, the railroads, big 
financial interests, or the U.S. Government, as farmers have had to do 
in recent decades, I think it is important that a Supreme Court Justice 
be someone who will give the people a fair hearing.
  Judge Alito's rulings on the circuit court have, I believe, tilted 
heavily on the side of the big interests.
  One of the key questions for me about a new Justice for the Supreme 
Court is ``will this person interpret the Constitution in a manner that 
expands personal freedom and liberty, or will this person interpret it 
in a way that restricts personal freedom and liberty?''
  I believe Judge Alito's record is one that leans in the direction of 
restricting the freedom and liberty of individual citizens.
  I am also concerned by Judge Alito's view of what is referred to as 
the unitary executive. This is an issue about Presidential power in our 
form of government. The judicial branch of Government is designed to be 
a check and balance on the expansion of Presidential powers. I believe 
Judge Alito's answers in the Judiciary Committee to questions about the 
unitary executive tilt toward showing deference toward expanded and 
unchecked Presidential authority. His views on this issue concern me.
  For all of these reasons, I have decided to cast my vote against the 
nomination of Judge Samuel Alito. I take no joy in opposing his 
nomination, but for the reasons I have mentioned above, I am not 
comfortable voting to confirm him for a lifetime appointment on our 
Nation's highest Court.
  Over the years, I have supported about 97 percent of the nominees for 
the Federal court sent to us by President Bush. My record has been one 
of substantial support for the President's nominees.
  But for me, a nomination to the Supreme Court carries much more 
weight and greater potential consequences for the country.
  Judge Alito is replacing Justice Sandra Day O'Connor on the Court. 
Justice O'Connor has been a key swing vote on so many issues that have 
been decided by a 5-to-4 vote in recent years.
  I believe that Judge Alito's nomination, if approved by the Senate, 
would tilt that Court in a direction that will restrict personal 
freedoms, strengthen the role of government and corporations in our 
lives, and allow the expansion of power of the Presidency.
  For those reasons, I have decided to vote no on this nomination.
  Mr. ROCKEFELLER. Mr. President, I rise today to share my thoughts and 
concerns about the President's nomination of Samuel Alito to be an 
Associate Justice on the U.S. Supreme Court.
  It goes without saying that the decision whether to confirm a nominee 
for a lifetime position on the Supreme Court is among the Senate's most 
serious and solemn constitutional obligations.
  My ultimate test for whether to support a nominee to the Supreme 
Court rests with two questions: will the nominee protect the best 
interests of West Virginians and will the nominee uphold the 
fundamental rights and freedoms of all Americans that are set out in 
the Constitution and in our laws. It is a high standard, as it must be 
for a lifetime appointment to the highest Court in the land.
  In the last few weeks and months, through careful consideration, I 
have attempted to answer those two questions. I have concluded that 
Judge Alito's judicial record, his writings, and his statements portray 
a man who will not do enough to stand up against power when the rights 
of average Americans are on the line and who will not do enough to 
stand up against the President when the checks and balances in our 
Constitution are on the line.
  I will not support a filibuster because I see it as an attempt to 
delay his certain confirmation. But I will register my grave concerns 
about Judge Alito's nomination to the Supreme Court by voting against 
confirmation when that final vote is before us.
  My decision is the result of a long and deliberative process.
  As my record plainly shows, I have never applied a partisan or 
ideological litmus test to nominees. George W. Bush was elected as a 
conservative President, and I have supported his conservative choices 
at every level. On the judiciary alone, I have voted to confirm 203 out 
of 212 judges nominated by President Bush. Just 4 months ago, I voted 
in support of Chief Justice John Roberts, a true conservative, because 
I concluded that he would consider fully the lives of average people, 
the lives of those in need and those whose voices often are not heard. 
I believed on balance that he would be his own man in the face of 
inevitable outside pressures.
  In recent weeks and months, I have heard from hundreds of West 
Virginians through letters, telephone calls, and personal 
conversations. Many have expressed strong opposition to Judge Alito, 
and many have expressed strong support for him. I have weighed all of 
their views carefully.

  I also have labored over Judge Alito's record--his early writings, 
his rulings, his speeches, and his Senate testimony--and I met 
personally with Judge Alito. I wanted to hear directly from him, in his 
own words, what kind of an Associate Justice he would be.
  There is no question he is an intelligent man with a deep knowledge 
of our legal system. During our conversations, he was a gentleman in 
every sense of the word. But for me these important character traits 
are not enough to warrant elevation to the U.S. Supreme Court.
  I have concluded that although Judge Alito is a well-qualified 
jurist, I cannot in good conscience support a nominee whose core 
beliefs and judicial record exhibit simply too much deference to power 
at the expense of the individual.
  Particularly in the committee hearings, when pressed on issues such 
as individual rights and Presidential powers, Judge Alito's answers 
troubled me--they were limited and perfunctory. I was left with a 
strong sense of his ability to recite and analyze the law as it stands 
but with very little sense of his appreciation for the principles and 
the real people behind those laws.
  Unfortunately, Judge Alito's record does not allay those concerns. As 
a government lawyer, a Federal prosecutor, and a 15-year Federal judge 
on the Third Circuit, with lifetime tenure, Judge Alito has repeatedly 
sided against people with few or no resources. The average person up 
against a big corporation, an employer, or even

[[Page S301]]

the government itself, all too often comes out on the short end of the 
stick in front of Judge Alito.
  I am particularly troubled by one case, RNS Services v. Secretary of 
Labor. In RNS Services, Judge Alito argued, in a lone dissent, against 
protecting workers in a Pennsylvania coal plant by not enforcing the 
jurisdiction of the Mine Safety and Health Administration, MSHA. Judge 
Alito claimed that the coal processing plant was closer to a factory 
than a mine, and therefore should be governed by the more lenient 
Occupational Safety and Health Administration, OSHA, standards. 
Fortunately for the miners, the majority of judges in the case did not 
agree with Judge Alito, and MSHA's standards prevailed.
  Outside the courtroom, Judge Alito has at various times in his career 
suggested, directly and indirectly, that he supports a 
disproportionately powerful President and executive branch. As a mid 
career government lawyer, his writings showed a solicitous deference to 
the executive branch and a willingness to undercut the constitutional 
authority of Congress. As recently as 2000, Judge Alito forcefully 
argued in support of a controversial theory known as the ``unitary 
executive'' which would allow the President to act in contravention of 
the laws passed by Congress in carrying out his duties.
  As vice chairman of the Senate Intelligence Committee, I have 
developed an even greater appreciation for the wisdom of our Nation's 
Founders in creating a system of checks and balances among the 
judicial, executive and legislative branches of Government. The 
interaction between the President and the Congress on matters of 
national security, classified and unclassified, is incredibly important 
to our safety and our future. Today there is a serious legal and 
constitutional debate going on in our country about whether the 
President, who already has enormous inherent powers as the leader of 
our country, has expanded his executive reach beyond the bounds of the 
law and the Constitution. The fact is the President does not write the 
laws, nor is he charged with interpreting them--the Constitution is 
unequivocally clear that lawmaking resides with the Congress and 
interpretation resides with the courts--yet this President, on many 
fronts, is attempting to do both.
  This alarming trend has been exacerbated by the fact that we have a 
single party controlling both the White House and the Congress, 
resulting in minimal congressional oversight of an overreaching 
executive branch.
  The Supreme Court, in the coming months and years, will be forced to 
rule on any cases related to expansion of Executive power. This nominee 
will play a pivotal role in settling the legal questions of today and 
charting a course for the legal questions of our children's and 
grandchildren's generations.
  These are core questions: What is the scope of presidential power 
under the Constitution? What is the appropriate balance between the 
President and the Congress? When must the constitutionally protected 
rights of average Americans--workers' rights, families' rights, and 
individuals' rights--prevail?
  At the end of the day, I am left with the fear that Judge Alito 
brings to the Court a longstanding bias in favor of an all-powerful 
presidency and against West Virginians' basic needs and interests.
  Mr. LEVIN. Mr. President, while I had expected that the Senate would 
move directly to an up-or-down vote on Judge Alito's nomination to the 
Supreme Court without a vote on cloture, because I strongly oppose this 
nomination, as I explained in my remarks last week, and because the 
filibuster has been a time-honored and accepted part of the checks and 
balances on the President's appointment powers, I will vote against 
cloture on this nomination.
  Mr. GREGG. Mr. President, I rise today to speak on the nomination of 
Judge Samuel A. Alito, Jr., to become an Associate Justice of the 
Supreme Court. After following the confirmation process and reviewing 
Judge Alito's qualifications, I am pleased to support this nomination 
and congratulate President Bush on another outstanding pick for our 
Nation's highest Court. Although there are no guarantees about how any 
judicial nominee will carry out his or her responsibilities once 
confirmed, I believe that Judge Alito will serve our country well as 
Justice Sandra Day O'Connor has done for almost a quarter of a century 
on the Supreme Court.
  To explain why I support the nomination of Judge Alito, let me first 
begin my remarks by referring to article II of the U.S. Constitution--
in particular, section 2, which states that it is up to the President 
to appoint individuals to our highest Court. As he pledged to the 
voters who elected him, President Bush has exercised his appointment 
powers to pick someone who firmly believes in the rule of law, the 
importance of protecting the rights of all Americans, and the Founding 
Fathers' wisdom of leaving policy decisions to the elected branches of 
Government. The President has followed through on his promise to the 
American people by choosing Judge Alito.
  With that said, Judge Alito is not simply the fulfillment of a 
campaign promise--he is also one of the sharpest legal minds in the 
Federal appellate ranks and a dedicated public servant. A former editor 
of the Yale Law Journal and Army reservist, Judge Alito has served as a 
law clerk for Judge Leonard Garth of the Third Circuit, an assistant 
U.S. attorney for New Jersey, an Assistant to the Solicitor General, 
Deputy Assistant Attorney General in the Department of Justice's Office 
of Legal Counsel, and the U.S. attorney for New Jersey. After his first 
15 years of public service, he then went on to serve as a judge on the 
Third Circuit, for which he was unanimously confirmed by the Senate in 
1990. In total, Judge Alito has served our Nation for 30 years, using 
his legal experience and talents for public good rather than for 
personal profit. We should all applaud and support such a record of 
public service, especially when you consider the fact that Judge Alito 
has more judicial experience than any Supreme Court nominee in over 70 
years.
  Unfortunately, however, there are a number of my colleagues from 
across the aisle who somehow believe that this record of public service 
is something to deride and distort. Forget the fact that nearly 
everyone who has worked with Judge Alito or has taken an impartial 
review of this man's record and credentials, such as the American Bar 
Association, supports this nomination wholeheartedly. Forget the fact 
that Judge Alito has garnered the near unanimous support of his 
colleagues on the Third Circuit and lawmakers from both parties--
including Governor Ed Rendell of Pennsylvania--who know him best. 
Forget the fact that Judge Alito has ruled in favor of minorities who 
have alleged racial discrimination or were convicted of crimes. Forget 
that Judge Alito is known by those who have worked with him as a good 
and decent man who does not put ideology over public responsibility. 
Some of my colleagues do not want to consider any of these facts, or 
they somehow distort all of them as they try to smear the President's 
nominee. And why? Well, because Judge Alito is simply that; he is 
President Bush's nominee.
  As someone who supported both of President Clinton's nominations to 
the Supreme Court, I find this type of partisanship appalling. Instead 
of accepting the obvious fact that Judge Alito is more than well 
qualified to serve on the Supreme Court, some of my colleagues want to 
cherry-pick and distort a few opinions out of the hundreds that he has 
written, hype up his alleged relationship with a university 
organization, or huff and puff about the Vanguard recusal matter even 
though the American Bar Association and most well regarded legal ethics 
experts have found nothing unethical. As opposed to qualifications, 
some of my colleagues across the aisle want to focus solely on these 
petty matters that are borne simply out of personal vendetta or the 
echo chamber of liberal blogs. They now want the Senate and the 
American people to forget everything else and base this important vote 
on a few dubious claims.
  None of this is healthy for the Senate or for our Nation. It does not 
take a genius to realize that most Americans are tired of this petty 
partisanship, and the personal attacks on Judge Alito and the 
distortion of his record will only further discourage, not encourage, 
future nominees who have lengthy records of public service and judicial 
experience. This is troubling, and I hope that the previous few months 
are

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not more evidence of a trend towards partisanship at all costs. Whether 
some may like it or not, President Bush was elected by the American 
people. His nominees therefore deserve fair and dignified consideration 
by the Senate, even by those who opposed the President's election or 
his views on certain issues.
  Perhaps these past few months should not have been a surprise to 
people like me who believe that the Senate should not let politics or 
ideology stand in the way of qualified nominees. After all, maybe all 
of this was foreseen by the Founding Fathers when they established the 
nomination process in article II, section 2 of the Constitution and 
gave the Senate only a limited advice and consent role. As Edmund 
Randolph noted, ``Appointments by the Legislatures have generally 
resulted from cabal, from personal regard, or some other consideration 
than a title derived from the proper qualifications.'' Looking at how 
some of my colleagues have approached the nomination of Judge Alito, I 
believe that Mr. Randolph, sadly, may have been right when he said this 
more than 200 years ago.
  Fortunately, there are a greater number of colleagues here in the 
Senate who do view the issue of judicial nominations as being about 
qualifications, not politics. They include the majority leader and the 
chairman of the Judiciary Committee, who have both done a commendable 
job of moving this nomination forward and giving us the opportunity to 
have an up-or-down vote. I congratulate them on their efforts and look 
forward to casting my vote in support of Judge Alito. He certainly 
deserves it, as well as the support of the rest of the Senate.
  Ms. COLLINS. Mr. President, I rise today to speak in favor of the 
nomination of Samuel Alito to serve as Associate Justice of the Supreme 
Court.
  The Supreme Court is entrusted with an enormous power--the power to 
interpret the Constitution, to say what the law is, to guard one branch 
against the encroachments of another, and to defend our most sacred 
rights and liberties.
  The decision of whether to confirm a nominee to the Supreme Court is 
a solemn responsibility of the Senate and one that I approach with the 
utmost care. It is a duty that we must perform despite the fact that 
nominees are constrained in the information they can provide us.
  Some interest groups, and even some of my colleagues, have called on 
nominees to promise to vote a certain way; they demand allegiance to a 
particular view of the law or a guarantee in the outcome of cases 
involving high-profile issues. These efforts are misguided.
  To avoid prejudging and to ensure impartiality, a nominee should not 
discuss issues in areas of the law that are ``live''--where cases are 
likely to come before the Court. Parties before the Court have a right 
to expect that the Justices will approach their case with a willingness 
to fully and fairly consider both sides.
  The cases that come before the Supreme Court each year present legal 
issues of tremendous complexity and import, and Justices should not be 
asked to speculate as to how they would vote, or make promises in order 
to win confirmation. Justice Ginsberg stated during her hearing that a 
nominee may provide ``no hints, no forecasts, no previews'' on issues 
likely to come before the Court. As Justice Ginsberg's statement 
underscores, the Justices should reach a conclusion only after 
extensive briefing, argument, research, and discussion with their 
colleagues on the Court.
  We must also recognize that there are limits to our ability to 
anticipate the issues that will face the Court in the future. Twenty 
years ago, few would have expected that the Court would hear cases 
related to a Presidential election challenge, would try to make sense 
of copyright laws in an electronic age, or would face constitutional 
issues related to the war on terrorism.
  While we cannot know with certainty how a nominee will rule on the 
future cases that will come before him or her, we are not without 
information on which to base our judgement. We must engage in a 
rigorous assessment of the nominee's legal qualifications, integrity, 
and judicial temperament, as well as the principles that will guide the 
nominee's decisionmaking. In fact, in Judge Alito's case, I note that 
we have significantly more information on which to base our judgement 
than with other nominees, given his long tenure as a judge on the Third 
Circuit Court of Appeals.
  The excellence of Judge Alito's legal qualifications is beyond 
question. Even his fiercest critics acknowledge that he is an 
extraordinary jurist with an impressive knowledge of the law, a 
conclusion also reached by the American Bar Association, ABA.
  The ABA Standing Committee on the Judiciary conducted an exhaustive 
review of his qualifications. During this process, the Committee 
contacted 2,000 individuals throughout the Nation, conducted more than 
300 interviews with Federal judges, State judges, colleagues, 
cocounsel, and opposing counsel, and formed reading groups to review 
his published opinions, unpublished opinions, and other materials. 
Based on its review, the committee found Judge Alito's integrity, his 
professional competence, and his judicial temperament to be of the 
highest standard, and decided unanimously to rate him ``well 
qualified''--the highest possible rating.
  When asked at his hearing what type of Justice he would be, Judge 
Alito directed Senators to his record as a judge on the Third Circuit. 
I agree this is the appropriate focus.
  During his 15 years of service on the Third Circuit, Judge Alito has 
voted in more than 4,800 cases and has written more than 350 opinions. 
His record on the bench is one of steady, cautious, and disciplined 
decisionmaking. He is careful to limit the reach of his decisions to 
the particular issues and facts before him, and he avoids inflammatory 
or politically charged rhetoric. And despite this extensive record, 
there is no evidence that his decisions are results-oriented. For 
example, in the area of reproductive rights, I note that he has reached 
decisions favoring competing sides of the political debate.
  After reviewing Judge Alito's dissenting opinions, Cass Sunstein, a 
well-known liberal law professor from the University of Chicago, 
reached the following conclusion: ``None of Alito's opinions is 
reckless or irresponsible or even especially far-reaching. His 
disagreement is unfailingly respectful. His dissents are lawyerly 
rather than bombastic. . . . Alito does not place political ideology in 
the forefront.''
  During his hearing, the committee heard the testimony of seven judges 
from the U.S. Court of Appeals for the Third Circuit, the court on 
which Judge Alito currently serves. The panel was comprised of current 
and retired judges, appointed by both Democratic and Republican 
Presidents, and holding views ranging across the political spectrum.
  Who better to know how Judge Alito thinks, reasons, and approaches 
the law, than those with whom he worked so closely over the past 15 
years? And it is significant that these colleagues were unanimous in 
their praise of Judge Alito--in his legal skills, his integrity, his 
evenhandedness, and his dedication to precedent and the rule of law.
  As Judge Becker commented, ``The Sam Alito that I have sat with for 
15 years is not an ideologue. He's not a movement person. He's a real 
judge deciding each case on the facts and the law, not on his personal 
views, whatever they may be. He scrupulously adheres to precedent. I 
have never seen him exhibit a bias against any class of litigation or 
litigants.''
  Judge Aldisert, who was appointed by President Johnson, had this to 
say: ``The great Cardozo taught us long ago the judge, even when he is 
free, is not wholly free. He is not free to innovate at pleasure. This 
means that the crucial values of predictability, reliance and 
fundamental fairness must be honored. . . . And as his judicial record 
makes plain, Judge Alito has taken this teaching to heart.''

  Judge Lewis, a committed human rights and civil rights activist who 
described himself as ``openly and unapologetic pro-choice,'' said: ``I 
cannot recall one instance during conference or during any other 
experience that I had with Judge Alito . . . when he exhibited anything 
remotely resembling an ideological bent. . . . If I believed that Sam 
Alito might be hostile to civil rights as a member of the

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United States Supreme Court, I guarantee you that I would not be 
sitting here today.''
  Judge Alito's colleagues provided compelling testimony of his deep 
and abiding commitment to the rule of law, the limited role of a judge, 
and the obligation to decide the case based on the facts and the record 
before him. They also testified that Judge Alito's decisions have been 
constrained by established legal rules and specifically by a respect 
for the rules of precedent. The weight of their testimony is 
substantial--they know far more about Judge Alito's judicial philosophy 
than we could hope to learn in a few days of public hearings.
  A nominee's judicial philosophy matters to me. When I met with Judge 
Alito, I specifically asked him about his views on the importance of 
precedent and stare decisis--the principle that courts should adhere to 
the law set forth in previously decided cases.
  During both our meeting and his hearing, Judge Alito evidenced a 
strong commitment to the principle of stare decisis. Judge Alito 
acknowledged the importance of this principle to reliance, stability, 
and settled expectations in the law.
  At his hearing, Judge Alito, referring to the landmark Roe v. Wade 
decision, testified as follows: ``[I]t is a precedent that is 
protected, entitled to respect under the doctrine of stare decisis. . . 
.''
  Similarly, Chief Justice Roberts, who was confirmed with a strong 
bipartisan support, made a nearly identical statement at his hearing. 
He said that Roe is ``a precedent of the court, entitled to respect 
under the principles of stare decisis.''
  After a careful comparison of these statements and others, I find 
that on substance, there is little that distinguishes the two nominees' 
statements on this issue. Both nominees clearly acknowledged the 
importance of precedent, the value of stare decisis, and the factors 
involved in analyzing whether a prior holding should be revisited. Both 
agreed that the Constitution protects the right to privacy, and that 
the analysis of future cases involving reproductive rights begins not 
with Roe but with the Casey decision, which reaffirmed Roe's central 
holding. And both testified that when a case has been reaffirmed 
multiple times, as Roe has, this increases its precedential value.
  Despite the strong testimony of both Chief Justice Roberts and Judge 
Alito, the reality is that no one can know for certain how a Justice 
will rule in the future. History has shown us that many predictions 
about how other Justices would decide cases have proven wrong.
  At her hearing in 1981, Justice O'Connor vigorously defended her 
belief that abortion was wrong and stated that she found it 
``offensive'' and ``repugnant.'' Justice Souter once filed a brief as a 
State attorney general opposing the use of public funds to finance what 
was referred to in the brief as the ``killing of unborn children.'' 
Justice Kennedy once denounced the Roe decision as the ``Dred Scott of 
our time.''
  Yet, in 1992, all three of these Justices joined together to write 
the joint opinion in Casey reaffirming Roe based on the ``precedential 
force'' of its central holding.
  Based on my review of his past decisions, I doubt that I will agree 
with every decision Judge Alito reaches on the Court, just as I do not 
agree with all of his previous decisions. I anticipate, however, that 
his legal analysis will be sound, and that his decisionmaking will be 
limited by the principle of stare decisis and the particulars of the 
case before him.
  Judge Alito has demonstrated his fitness for this appointment with 
his clear dedication to the rule of law. After an exhaustive review 
process, the ABA has given him its highest possible rating. His 
colleagues on the Third Circuit, both Republican and Democrat 
appointees alike, have been unqualified in their praise of his 
nomination.
  Based on the record before me, I believe that Judge Alito will be a 
Justice who will exercise his judicial duties guided not by personal 
views, but based on what the facts, the law, and the Constitution 
command.
  For these reasons, I will vote to confirm Judge Alito. I hope and 
expect that he will prove his critics wrong and that his record on the 
Supreme Court will show the same deference to precedent, respect for 
the limited role of a judge, and freedom from ideologically driven 
decisionmaking that he has demonstrated during his tenure on the Third 
Circuit.
  Mr. KYL. Mr. President, I explained last Wednesday that I would 
support the nomination of Judge Alito. Since then, I have been somewhat 
frustrated at how this Senate debate has progressed. Time and time 
again, some Senators have mischaracterized the cases and record of 
Judge Alito. I would like to take a few minutes and walk through just a 
few of those misstatements.
  First, let me address the case of Sheridan v. DuPont.
  On January 26, the junior Senator from Colorado indicated that Judge 
Alito was unlikely to support principles of diversity because he ruled 
against a female plaintiff in a gender discrimination case. The Senator 
said, ``In Sheridan, Judge Alito registered the lone dissent among 
thirteen judges voting to prevent a woman who had presented evidence of 
employment gender discrimination from going to trial.'' The Senator's 
summary of the case requires additional elaboration, though.
  According to the record of that case, the plaintiff, Barbara 
Sheridan, was employed as head captain of the Green Room restaurant in 
the Hotel DuPont. Initially, she received good performance reviews, but 
DuPont claimed that her performance began to deteriorate in 1991. At 
that point, her manager met with her to ask her to stop using the 
restaurant bar for smoking and grooming. Apparently Sheridan was 
frequently late to work, and other employees had complained about food 
and drinks she gave away. In February 1991, the hotel decided to 
reassign Sheridan to a nonsupervisory position that did not involve the 
handling of cash. She would not suffer any reduction in pay because of 
this job transfer. Rather than accept reassignment, Sheridan resigned 
in April 1992 and sued for gender discrimination.
  When the case came before him on appeal, Judge Alito joined a 
unanimous three-judge panel that ruled for Ms. Sheridan. He held that 
her case should go to trial because it was plausible that a jury could 
agree with her. Judge Alito explained, ``a rational trier of fact could 
have found that duPont's proffered reasons for the constructive 
termination were pretextual.''
  Later, however, the case was heard by the full Third Circuit. At that 
time, Judge Alito expressed doubt about the applicable Third Circuit 
precedent. Hesitant about the court's broad rule that affected all 
cases with varying factual situations, he explained that when the 
employee makes out a case like this, she should usually, but not 
always, be accorded a trial. He reached this conclusion after parsing 
the Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks. 
And most importantly for present purposes, the Supreme Court later 
agreed with Judge Alito's view in a unanimous opinion authored by 
Justice O'Connor. That case, Reeves v. Sanderson Plumbing Products, can 
be found at 533 U.S. 133, and was decided by the Supreme Court in 2000.
  The job of an appellate court judge is to faithfully interpret the 
Constitution and the Supreme Court's interpretations of statutes. The 
history of this case demonstrates that Judge Alito got it right when he 
examined pleading standards in title VII cases.
  Let's move on to another case, the 1996 case of U.S. v. Rybar, in 
which Judge Alito dissented.
  On January 25, the Senior Senator from Rhode Island said that Judge 
Alito ``advocated striking down Congress's ban on the transfer and 
possession of machine guns.'' He further said that Judge Alito had 
argued that he was ``not convinced by Congress' findings on the impact 
of machine guns on interstate commerce. He substituted his own policy 
preferences in a way that the Third Circuit majority found was, in 
their words, counter to the difference that the owes to its two 
coordinate branches of government.''
  I discussed this case with Judge Alito during his confirmation 
hearings. The description we have just heard does not tell the whole 
story.
  Judge Alito's dissent in that case had nothing to do with being 
``convinced'' by Congress's findings. Rather, Judge

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Alito based his dissent, in part, on the fact that Congress made no 
explicit findings regarding the link between the intrastate activity 
regulated by these laws, the mere possession of a machine gun, and 
interstate commerce. Note that this case was about possession, not 
transfer or commercial activity.
  Second, the dissent had nothing to do with Judge Alito's own policy 
preferences regarding the possession of machine guns. Rather, it was a 
careful application of the then-recent decision in United States v. 
Lopez, which reminded courts to take seriously the limits of Congress's 
powers under the commerce clause. In Lopez, the Supreme Court had held 
that Congress's power to regulate commerce among the several States did 
not include the power to regulate possession of a gun near a school 
where the gun never crossed State lines. It was for the Third Circuit 
to decide whether Congress's power to regulate interstate commerce 
included the power to regulate possession of a machine gun where the 
machine gun never crossed State lines. In Judge Alito's view, the 
Supreme Court's decision ``require[d] [the court] to invalidate the 
statutory provision at issue.'' He relied on and cited Lopez at least 
22 times in his 9-page dissenting opinion.
  Again, this is the job of an appeals court judge: to interpret 
Supreme Court precedent and apply it to new cases.
  I should also point out that Judge Alito's dissenting opinion 
provided a virtual roadmap for how Congress could regulate the 
possession of guns in a way consistent with the Constitution and 
Supreme Court case law. This is hardly the behavior of someone bent on 
imposing a ``policy preference'' against regulating machine guns. 
According to Judge Alito, all Congress had to do was make findings as 
to the link between the possession of firearms and interstate commerce 
or add a requirement that the government prove that the firearm moved 
across State lines.
  Let me add one last word on the Rybar case. It is often said that 
Judge Alito always sides with the government. Well, this case was 
called ``United States versus Rybar,'' and Judge Alito was on the side 
of Mr. Rybar. Of course, he did not think of himself being on anyone's 
side. He was just doing as he believed the Constitution and Supreme 
Court required. And he would have felt the same way if the law required 
the opposite conclusion.
  Let us now move on to another case, that of Riley v. Taylor.
  Speaking at the executive business meeting for the nomination of 
Judge Alito, the senior Senator from Illinois left a misimpression of 
the facts of this case, so I would like to clear up any confusion.
  In that case, Judge Alito found there was insufficient evidence to 
support a criminal defendant's claim that the prosecutor had violated 
his constitutional rights by striking three minorities from the jury 
pool. The Senator said that the prosecutor had ``in three previous 
murder cases, used every challenge they had to make certain that only 
white jurors would stand in judgment of black defendants.'' That is not 
accurate. While it is true that the criminal defendant relied heavily 
on the anemic evidence that in three previous trials no African 
Americans ended up on the jury, it is also the case that the prosecutor 
had struck both Blacks and Whites from those juries. Indeed, Judge 
Alito pointed out in his decision that, of the excluded jurors in the 
previous trials, only 24 percent were African Americans. He suggested 
that this might not even be disproportionately high in a county where 
the most recent census indicated that 18 percent of the population was 
Black.
  Most importantly, Judge Alito's opinion rejected the selective use of 
statistics based upon the sample size of three trials. In so ruling, 
Judge Alito was in agreement with multiple State and Federal judges who 
had heard the case before him. On the full Third Circuit, four other 
judges, half of them Democratic appointees, joined in his opinion on 
this point. Not a single judge thought the statistical argument settled 
the case.
  As a postscript, when Riley was given a new trial by the Third 
Circuit, he was again convicted of all charges. When he again appealed, 
the Delaware Supreme Court found that his petition was ``wholly without 
merit.''
  Let me turn to another case, one also discussed by the senior Senator 
from Illinois, but during his January 25 floor speech, that of Pirolli 
v. World Flavors.
  The Senator from Illinois stated: ``Another case involved an 
individual who was the subject of harassment in the work place. This 
person had been assaulted by fellow employees. He was a mentally 
retarded individual.'' The Senator continued, ``His case was dismissed 
by a trial court, and it came before Judge Alito to decide whether or 
not to give him a chance to take his case to a jury. And Judge Alito 
said no. The man should not have a day in court.''
  Several corrections are needed here.
  First, the plaintiff in this case did have his day in court; he just 
did not reach a jury. During the course of the proceedings, the 
plaintiff presented his argument to not one, but four judges--one 
district court judge and three appellate court judges. The rules of the 
Third Circuit require that a plaintiff present his case in a minimally 
adequate fashion in order to be considered. The plaintiff must, at a 
minimum, state what happened to him and provide the basis for his 
claim. But the plaintiff in this case, a man who had a lawyer, never 
did that. The Third Circuit judges in this case were not provided with 
enough facts to make an adequate and informed decision. Judge Alito 
emphasized, ``I would overlook many technical violations of the Federal 
Rules of Appellate Procedure and our local rules, but I do not think it 
is too much to insist that Pirolli's brief at least state the ground on 
which reversal is sought.''
  Second, with regard to the plaintiff's sexual harassment claim, Judge 
Alito refused to accept the arguably demeaning stereotype which the 
plaintiff's lawyer advanced, which was ``that retarded persons are any 
more (or less) sensitive to harassment than anyone else.'' Judge Alito 
required evidence on which to base his ruling and refused to rely on 
the proposed stereotype.
  Let's move on to another case, that of Doe v. Groody.
  This case was mentioned by several Senators but in particular by the 
Junior Senator from Massachusetts on January 25. The Senator said that 
Judge Alito did not support individual rights because he dissented in 
Doe v. Groody. He said, ``Judge Alito's hostility to individual rights 
isn't limited to civil rights. He consistently excuses government 
intrusions into personal privacy, regardless of how egregious or 
excessive they are. In Doe v. Groody,'' the Senator from Massachusetts 
argued, ``dissented from an opinion written by then-Judge Michael 
Chertoff because he believed that the strip search of a ten year-old 
was reasonable.''
  First, let's get the legal question straight. The issue in Doe v. 
Groody was whether police officers should be able to be personally sued 
for money damages when they misunderstand the scope of the search 
warrant they were given.
  Second, let's look at what happened during the event in question. On 
March 6, 1998, as a result of a long-term investigation of a John Doe 
for suspected narcotics dealing, officers of the Schuylkill County Drug 
Task Force sought a search warrant for Doe and his residence. The typed 
affidavit in support of the warrant stated, among other things, that a 
reliable confidential informant had purchased methamphetamine on 
several occasions from John Doe at his residence. The affidavit sought 
permission to ``search all occupants of the residence and their 
belongings.''
  However, the printed sheet entitled ``Search Warrant and Affidavit'' 
contained an entry naming only John Doe under the question, ``specific 
description of premises and/or persons to be searched.'' When the 
officers entered the house to commence the search, they decided to 
search Jane Doe and her daughter, Mary, age 10, for contraband. A 
female officer removed both Jane and Mary Doe to an upstairs bathroom 
where she searched them for drugs. No contraband was found. Once the 
search was completed, both mother and daughter returned to the ground 
floor to await the end of the search.
  As a matter of policy, the sad reality is that drug dealers often 
hide weapons and drugs on children in the home. Judge Alito 
acknowledged in his opinion that he found the fact that the

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search occurred to be unfortunate. Accordingly, police officers 
sometimes request warrants that allow them to search all persons found 
during a drug bust.
  The Does sued the police officers personally for money damages. The 
issue was how to read the warrant in light of the affidavit. And the 
legal question question was whether a reasonable officer could have 
believed that the search warrant allowed the officers to search 
everyone in the house. Two judges on the panel said no, while Judge 
Alito said yes.
  Why did Judge Alito believe that the police officers should not be 
liable personally? He concluded that a reasonable police officer could 
think that the warrant should be read in conjunction with the attached 
affidavit. Judge Alito reasoned that a ``commonsense and realistic'' 
reading of the warrant authorized a search of all occupants of the 
premises. Judge Alito found that the officers in this case ``did not 
exhibit incompetence or a willingness to flout the law. Instead, they 
reasonably concluded that the magistrate had authorized a search of all 
occupants of the premises.''

  So, on the law, Judge Alito did not, as he has been accused 
repeatedly over the past few days, authorize the strip-search of a 10-
year-old girl. He just tried to sort out a practical, on-the-ground 
problem for law enforcement. It is sad but predictable that this case, 
with its inflammatory facts, would come up repeatedly, but repetition 
is not going to change the record of what happened.
  Mr. President, let's move on.
  I want to address a claim by the junior Senator from Illinois in a 
January 26 speech that, whenever Judge Alito has discretion, he will 
rule against an employee or a criminal defendant. To quote, the Senator 
said, ``If there's a case involving an employer and employee and the 
Supreme Court has not given clear direction, Judge Alito will rule in 
favor of the employer. If there's a claim between prosecutors and 
defendants if the Supreme Court has not provided a clear role of 
decision, then he'll rule in favor of the state.''
  This just is not the case. There are 4,800 cases that could be 
reviewed to demonstrate the inaccuracy of that claim, but let's just 
look at a few.
  In Zubi v. AT&T, an employee claimed that AT&T had fired him based on 
his race, but the record was far from clear. Judge Alito clearly had 
room to rule against the employee. After all, the other two judges 
deciding the case on appeal did so and threw out the employee's claim. 
They held that the employee had waited too long to bring his claim. In 
contrast, Judge Alito issued a lone dissent arguing that the employee 
was entitled to bring his discrimination claim. Later, the Supreme 
Court unanimously vindicated Judge Alito's view.
  As another example to counter the Senator from Illinois's claim, 
consider the case of United States v. Igbonwa. There, a criminal 
defendant argued that the prosecutor had failed to honor his plea 
agreement. The majority of the court voted against the defendant and in 
favor of the prosecutor. Clearly, Judge Alito had legal grounds to do 
the same. Instead, Judge Alito issued a lone dissent arguing that the 
prosecutor was required to fulfill this promise to the defendant.
  In yet another example, in Crews v. Horn, Judge Alito ruled that a 
prisoner was entitled to more time to bring his habeas petition. Again, 
the Supreme Court and Third Circuit had never decided the question, and 
the statute was unclear. Judge Alito could have ruled either way, yet 
he ruled in favor of the prisoner's claim.
  This is a good time to remind the Senate what Third Circuit Judge 
Edward Becker, who served with Judge Alito for 15 years, had to say on 
this point. He testified, ``The Sam Alito that I have sat with for 15 
years is not an ideologue. He's not a movement person. He's a real 
judge deciding each case on the facts and the law, not on his personal 
views, whatever they may be. He scrupulously adheres to precedent. I 
have never seen him exhibit a bias against any class of litigation or 
litigants.'' As Judge Becker summarized Judge Alito's career, ``His 
credo has always been fairness.''
  Mr. President, I want to turn to some of the mischaracterizations of 
Judge Alito's past record as a government official.
  In her January 25 speech, the junior Senator from New York said that 
Judge Alito had written that ``in his estimation it is not the role of 
the federal government to protect the health, safety, and welfare of 
the American people.''
  As best I can tell, the Senator is referring to a 1986 document 
addressing the Truth in Mileage Act, a bill to require States to change 
their automobile registration forms to include the mileage of the car 
every time it was sold. That document did not, as the Senator said, 
offer Alito's ``estimation'' on anything. Judge Alito was drafting a 
veto message for President Reagan. Accordingly, he drafted that message 
in President Reagan's voice and restated President Reagan's policy on 
federalism. The first-person pronoun in that message is President 
Reagan, not Alito.
  It is also worth nothing that Judge Alito did not challenge 
Congress's powers. His cover memo acknowledged that ``Congress may have 
the authority to pass such legislation.'' He did point out that the 
legislation was ``in large part unnecessary since only five states and 
the District of Columbia do not already have'' title forms that meet 
this requirement.
  Let's move to another statement from the Senator from New York. She 
stated that Judge Alito's ``time on the bench shows an unapologetic 
effort to undermine the right to privacy and a woman's right to 
choose.''
  In fact, Judge Alito's record confirms that he is not an ideologue on 
a crusade to curtail Roe v. Wade. In his 15 years on the bench, he has 
confronted seven restrictions on abortion, and he struck down all but 
one. Judge Alito has upheld a woman's right to choose even when he had 
the discretion to limit abortion rights.
  For example, in the 1995 case of Elizabeth Blackwell Health Center 
for Women v. Knoll, Judge Alito struck down two abortion restrictions 
by the State of Pennsylvania. The first provided that a woman who 
became pregnant due to rape or incest could not obtain Medicaid funding 
for her abortion unless she reported the crime to the police. The 
second provided that if a woman needed an abortion to save her life, 
she had to obtain a second opinion from a doctor who had no financial 
interest in the abortion. The question was whether these laws 
conflicted with a Federal regulation issued by the Secretary of Health 
and Human Services. There was no binding Supreme Court precedent on 
point, and Judge Alito easily could have upheld the abortion 
restrictions if he had such a preset agenda. But Judge Alito voted to 
strike down both laws in favor of a woman's right to choose. This is 
not the behavior of someone bent on chipping away at Roe v. Wade. This 
is the behavior of a jurist who understands the importance of 
precedent.
  The junior Senator from New Jersey came to the floor earlier today 
and criticized the work Judge Alito had done on behalf of the Reagan 
Justice Department on abortion cases. He suggested that those efforts 
showed a bias against Roe v. Wade that would matter in the future. But 
the record shows just the opposite, as discussed above. How else to 
explain the Knoll case? Moreover, the Senator said that Judge Alito 
would not describe Roe v. Wade as, quote, ``settled law.'' Judge Alito 
addressed this question repeatedly during the hearing. A judge cannot 
call an area of law ``settled'' when it is likely that cases dealing 
with that area will come before him. This demand to say that Roe is 
settled is little more than a desire to prejudge all those cases, 
including cases pending before the Supreme Court today. Judge Alito 
simply cannot do that without violating his judicial ethics and 
depriving those litigants of their fair day in court.
  I will move on.
  Earlier today, the junior Senator from Michigan said that Judge Alito 
had ``been criticized by his colleagues for trying to legislate from 
the bench in order to reach the result that he desires.'' I am not 
aware of a single example of any member of the Third Circuit, or of any 
other court in the Nation, claiming that Judge Alito had any tendency 
toward quote, ``legislating from the bench.''
  In fact, just the opposite is true. It is especially surprising to 
hear such a claim given the testimony of Judge Alito's colleagues on 
the Third Circuit.

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Would seven current and former Third Circuit judges testify for Judge 
Alito if they believed he was a judicial activist or otherwise 
unqualified for the bench? Those listening now or reading the 
Congressional Record in future years should go to the Judiciary 
Committee records on the Internet and read what those judges had to say 
when they testified on January 12. When I spoke last week, I entered in 
the Record a series of excerpts from that testimony that the Senate 
Republican Policy Committee, which I chair, had compiled. The complete 
testimony is worth reviewing, too. Again, I am not aware of a single 
time that any judge has accused Judge Alito of legislating from the 
bench.
  As one last point, I must address this unitary executive issue. The 
senior Senator from New Jersey and others have said that Judge Alito 
somehow believes in making the executive more powerful than the 
legislative and judicial branches. One wonders how many times this 
misstatement has to be corrected. Judge Alito made clear during his 
testimony that his past comments regarding the unitary executive theory 
only--only, Mr. President--dealt with who has the power to control 
executive agencies. As he said repeatedly, insofar as this theory deals 
with the scope of Presidential power, he does not--repeat, does not--
subscribe to it. What else can he say? He has made this extremely 
clear. He has said it repeatedly.
  Mr. President, there have been other misstatements and mischaracter-
izations of Judge Alito's record. I can only respond to so many. I will 
simply encourage future students of this debate to look at the cases in 
question, and to carefully review the Committee record, before reaching 
conclusions based on floor debate.
  I look forward to Samuel Alito serving on the Supreme Court for many 
years to come.
  The PRESIDING OFFICER. Under the previous order, the majority leader 
or his designee will be recognized for the final 15 minutes prior to 
the vote on the motion to invoke cloture.
  Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I urge my colleagues to invoke cloture on 
the nomination of Judge Alito to the Supreme Court and to support him 
on the final vote.
  As the chairman of the Judiciary Committee, I sat through every 
minute of the proceedings, reviewed in advance some 250 cases of Judge 
Alito's, his work in the Justice Department, his work as U.S. Attorney, 
as Assistant U.S. Attorney, his academic record, and I found him to be 
eminently well qualified.
  The objections which have been raised to the nomination turn on those 
who think he should have been more specific on answering certain 
questions. But to have been more specific, he would have had to in 
effect state how he would rule on cases to come before the Court, and 
that is going too far. He went about as far as he could go.
  With the critical question of women's right to choose, his testimony 
was virtually identical to Chief Justice Roberts, and he affirmed the 
basic principles of stare decisis, a Latin phrase which means ``let the 
decision stand.''
  He is not an originalist. He characterized the Constitution as a 
living document, as Cardozo did, reflecting the values of our country, 
the importance of the reliance on precedent, and articulated those 
views. He also indicated that he had an open mind on the issue of a 
woman's right to choose, notwithstanding what he had done in an 
advocacy role for the Department of Justice, notwithstanding any views 
he had expressed at an earlier date.
  When it came to the critical question of Executive power, as to how 
he would handle cases, he subscribed to Justice Jackson's concurrence 
in the steel seizure cases, which is the accepted model. And here 
again, he went about as far as he could go in discussing the 
considerations and the factors which would guide his decisions.
  When it came to Executive power, again he discussed the 
considerations which would guide him on his decisions but necessarily 
stopped short of how he would decide a specific case.
  He disagreed with the Supreme Court of the United States, which has 
declared acts of Congress unconstitutional because of our method of 
reasoning, saying that our method of reasoning somehow was defective 
compared to the Court's method of reasoning. Judge Alito rejected that.
  Perhaps most importantly in evaluating the prospects as to how Judge 
Alito will rule, we have to bear in mind that history shows the rule to 
be that there isn't a rule. Justice Sandra Day O'Connor, Justice 
Anthony Kennedy, Justice David Souter before coming to Court all 
expressed their sharp disagreement with abortion rights; once they got 
to the Court they have upheld a woman's right to choose. Then there is 
the classic case of President Truman's nominees on the big Youngstown 
case on steel seizure, voting contrary to what the President, their 
nominator, had expected.
  We heard enormously powerful testimony coming from seven circuit 
judges, some past, some senior, and some currently active who have 
worked with Judge Alito. There were precedents for other judges coming 
forward to testify on behalf of a nominee--but not quite in this 
number, not quite in this magnitude. The seven judges were uniform in 
their assessment that Judge Alito has no agenda and has an open mind. 
These are jurists who know his work well, jurists who go with him after 
oral arguments into a closed room--no clerks, no secretaries, no 
recording--they see how he thinks and how he considers cases.
  I think two judges were especially significant. The first was Judge 
Edward R. Becker, the winner of the Devitt Award as the outstanding 
Federal jurist a couple of years ago. Judge Becker has sat with Judge 
Alito on more than 1,000 cases. He is well known as a centrist and is a 
highly respected judge. He testified that Judge Alito and he had 
disagreed on a very small number of cases, about 25. The second was 
Judge Timothy Lewis, an African American who identifies himself as 
being very strongly pro-choice, very strong for civil rights. He was 
seated on the left-hand side of the panel--he made a reference to that 
reflecting his position on the philosophical spectrum--and testified 
very strongly on Judge Alito's behalf, saying that if he did not have 
every confidence in Judge Alito he would not have appeared as a witness 
in the proceeding.
  The prepared statement which I filed in the record last week details 
a great many cases where Judge Alito has decided in favor of the so-
called little guy.
  In the context of the hundreds of decisions that Judge Alito has 
written and the thousands of cases where he has sat, you could pick out 
a few and put him with any position on the philosophical spectrum of 
the court.
  Candidly, it is a heavy responsibility to cast a vote on a Supreme 
Court nominee, especially one who is taking the place of Justice 
O'Connor, a swing vote. But when we look at the traditional standard as 
to intellect, this man is an A plus. When we look at the traditional 
standard of character, again he is an A plus. When you look at the 
standard of experience and public service, he is an A plus. When you 
look at his analytical style as a jurist, again he is an A plus.
  Some have objected to nominees because, as some have put it, there is 
no guarantee. Guarantees are for used cars and washing machines, not 
for Supreme Court nominees.
  I believe Judge Alito is well qualified to receive an affirmative 
vote by the Senate and be confirmed as an Associate Justice of the 
Supreme Court.
  I note the distinguished majority leader on the floor. The time left 
before the cloture vote--almost a full minute--I yield to Senator 
Frist.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, I will be using some leader time. For my 
colleagues, the vote will be in about 10 minutes or so.
  In a few moments the Senate will decide whether to invoke cloture to 
close debate on the nomination of Sam Alito to be the 110th Associate 
Justice of the Supreme Court.

[[Page S307]]

  Before we vote, I want to take a minute to reflect just a bit on the 
progress that we have made in this overall judicial confirmation 
process over the last 12 months.
  In the Senate, I really wear three hats. One is the Senator from the 
great State of Tennessee; second, the Republican leader; and third, 
majority leader. Wearing the third hat as majority leader, I have 
become a steward of our institution, steward in the sense of its rules 
and its precedents, its practices and the customs of this Senate.

  My job is to bring Senators together, both sides of the aisle, to 
govern. That is why we are here, to govern with meaningful solutions to 
people's real problems, problems today, problems in the future, to 
identify what those problems are and then to resolve them and to secure 
America's future by honoring its past and by building on a record of 
accomplishment every day as we move forward.
  Three years ago, when I assumed this position as majority leader, 
there was probably no single greater challenge or obstacle than the 
judicial confirmation process. In a word, it was broken. The minority 
party had decided to put partisanship first in the judicial 
confirmation process by, at that time, orchestrating regular, almost 
routine filibusters to block what we all know were highly qualified 
nominees from getting fair up-or-down votes. This partisan 
obstructionism began in 2001, it continued into 2002, in 2003, and then 
2004.
  If we look back to the 108th Congress alone, the Senate voted 20 
times to end debate on 10 different nominees. Each time, cloture 
failed. We spent more time debating judicial nominations during those 2 
years than in any previous Congress. This partisan obstructionism was 
unprecedented. This routine use of the filibuster was wrong. Never in 
214 years had a minority denied a nominee with majority support that 
fair up-or-down vote. The minority had used the filibuster to seize 
control of the appointments process. They used it unfairly to apply a 
new political standard to judicial nominees and to deny a vote to any 
nominee who did not subscribe to a liberal, activist, ideological 
agenda.
  To justify this unprecedented obstruction, Democratic leaders 
unfairly attacked the character of these nominees. They sought to paint 
them as extremists and radicals and threats to our society and our 
institutions. But the American people saw through the attacks. They saw 
them for what they were, purely partisan.
  Finally, early this year the Republican leadership said: Enough is 
enough; enough obstruction, enough partisanship, enough disrespect to 
these good, decent, and accomplished professionals. We put forward a 
very simple, straightforward principle. A nominee with the support of a 
majority of Senators deserves a fair up-or-down vote. And we led on 
that principle. Because we did that, seven nominees who had been 
previously filibustered, or blocked, obstructed in the last Congress--
and we were told at the time would be blocked in this Congress--got 
fair up-or-down votes and were confirmed and now sit on our circuit 
courts. A new Chief Justice of the United States, Chief Justice 
Roberts, now sits at the helm of the High Court.
  If we had not led on principle, there would have been no Gang of 14. 
Filibusters would have become even more routine and led to more 
obstruction. However, the sword of the filibuster has been sheathed 
because we are placing principle before politics, results before 
rhetoric.
  With the nomination of Sam Alito before the Senate, this Senate must 
again choose principle or partisanship. Should we choose to lead on the 
principle that judicial nominees, whether nominated by a Republican or 
a Democrat, deserve an up-or-down vote, or should we revert to the 
partisan obstructionism of the past? I believe a bipartisan group of 
Senators will choose today to put principle first.
  Last week, the distinguished minority leader said there has been 
adequate time for people to debate. No one can complain in this matter 
that there has not been sufficient time to talk about Judge Alito, pro 
or con. I could not agree more with my colleague and friend. It is time 
to end debate. It is time to move on. Since President Bush announced 
Judge Alito's nomination on October 31, Senators have had 91 days to 
review his nomination, to review his records, his writings.
  To put that in perspective, Chief Justice John Roberts' confirmation 
took 72 days, even including an extra week's delay to pay respects to 
his predecessor, Chief Justice Rehnquist. Justice O'Connor, who Judge 
Alito will replace, was confirmed in 76 days. President Clinton's two 
Supreme Court nominees, Justices Ginsburg and Breyer, got a fair up-or-
down vote in an average of 62 days. Judge Alito today is at 91 days.
  During this 3-month period since Judge Alito was nominated, Members 
have had an abundance of his written materials, documents, and opinions 
to review. They have had over 4,800 opinions from his tenure on the 
Third Circuit Court of Appeals spanning 27,000 pages; another 1,000 
pages of documents from Judge Alito's service at the Department of 
Justice; numerous speeches and news articles. The list goes on and on.
  Members have had 30 hours of testimony from Judge Alito's judicial 
committee hearings; statements of 33 witnesses, including 7 who are 
Judge Alito's colleagues on the Third Circuit; Judge Alito's answer to 
over 650 questions, doubling the number of questions that either of 
President Clinton's Supreme Court nominees answered; and 4 days of 
debate in the Senate.

  Despite all this, some Members have launched a partisan campaign to 
filibuster this nominee and have forced the Senate to file cloture 
which we will be voting on. Certainly, it is any Senator's right to 
force this vote, but it sets an unwelcome precedent for the Senate.
  As a reminder to my colleagues, the Senate did not have a cloture 
vote on any of the nine Justices currently sitting on the Supreme 
Court. Judge Alito has majority support. A bipartisan majority of 
Senators stands ready to confirm him and have announced their support. 
Judge Alito deserves to be Justice Alito. He has the professional 
qualifications, the judge temperament and integrity our highest Court 
deserves.
  Whether Members agree with me, whether Members support him, we should 
not prevent Judge Alito from getting a vote. I urge my colleagues to 
join me in voting for cloture. It is our constitutional obligation of 
advise and consent, because it is fair and because it is the right 
thing to do.
  Senators stand for election; judges should not. Absent some 
extraordinary evidence, we should not challenge a nominee's personal 
character, credibility, or integrity. Continuing down this path could 
deter qualified men and women from putting their names forward for 
nomination, from volunteering to serve their country as Federal judges. 
It could threaten the quality Americans most desire in their judiciary: 
fairness and independence.
  A vote today for cloture is a vote to support all we have done over 
the past 3 years to repair what was broken. True, it is a vote to bring 
Sam Alito's nomination to a fair up-or-down vote, but it is also a vote 
that is so much more. It is a vote to demonstrate Members working 
together to end partisan obstructionism and to lead on that simple 
principle that every judicial nominee, with majority support, deserves 
a fair up-or-down vote.
  In closing, if I may borrow the words of my good friend Senator 
Kennedy from 1998:

       We owe it to Americans across the country to give these 
     nominees a vote. If our [colleagues] don't like them, vote 
     against them. But give them a vote.

  I agree with Senator Kennedy's statement. I say to my colleagues, if 
you do not like Judge Alito, vote against him. That is your right. But 
let's give him a vote. That is our constitutional duty.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. REID. Mr. President, I will use leader time.
  I want the record spread with the fact that Senator Ensign will miss 
the vote today. The Senate is very fortunate. He was in a head-on 
collision in Las Vegas going to the airport to return to Washington, 
DC. I spoke to him from the hospital. He is going to be fine. He has no 
head injuries. The bags inflated, and I am sure saved him great bodily 
pain. I talked to him. He was under some medication. He said he is sore 
but he is going to be fine.

[[Page S308]]

  With all the travel we do, we all live on the edge of something 
happening. I am so happy Senator Ensign is fine. He is a wonderful man. 
He has great faith. He is a good friend of mine and to all of the 
Senate. I know all of our thoughts and prayers will be with him. I am 
confident he is going to be fine.
  As indicated, I spoke with him. I want Darlene, especially, to know 
our thoughts are with her and the children.