[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
[[Page S284]]
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
[[Page S294]]
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
[[Page S295]]
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
[[Page S296]]
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
[[Page S297]]
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
[[Page S298]]
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
[[Page S299]]
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
[[Page S302]]
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
[[Page S303]]
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
[[Page S304]]
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
[[Page S305]]
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.
[[Page S306]]
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.