[Congressional Record Volume 152, Number 8 (Monday, January 30, 2006)]
[Senate]
[Pages S308-S318]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       State of the Union Address

  Mr. DeMINT. Mr. President, today the Democratic leader, Harry Reid, 
gave what was billed as a ``prebuttal'' to the President's upcoming 
State of the Union Address.
  I am, frankly, astounded that he would criticize a speech so harshly 
that has not even been given yet.
  I will let the President speak for himself when he addresses the 
Nation tomorrow night, but this misleading partisan rhetoric put forth 
on this floor by the Senator from Nevada cannot go unanswered, rhetoric 
which, unfortunately, further proves Democrats will say anything but do 
nothing.
  Today, we heard many of the same tired cliches from the minority 
leader. He talks about a credibility gap. Well, the largest credibility 
gap in American politics is between what Democrats say and what they 
do. Democrats promised months ago to bring forth their own legislative 
agenda, but the Nation is still waiting. Day after day, the Democrats 
launch attack after attack on Republicans and our agenda, but how are 
we to take them seriously when they cannot articulate a clear plan of 
their own? They will say anything to get a media sound bite, but when 
it comes to solving today's challenges, Democrats do nothing.
  It has been 4 years since 9/11, and after all their rock-throwing, 
Democrats still have no plan for victory in the war on terror. In fact, 
they have undermined the war effort with partisan attacks on the 
President.
  They have complained about the economy since President Bush took 
office, but almost everything they do makes it harder for American 
businesses to compete.
  Democrats spent the last year criticizing Republican efforts to 
strengthen Social Security but still offer nothing to fix this system 
in crisis. They even refuse to guarantee benefits for today's seniors 
and blocked a bill that would have stopped Congress from spending 
Social Security dollars on other Government programs.
  They have decried looming deficits but offer no map to a balanced 
budget, instead calling for higher taxes and more spending programs.
  How are we to take seriously a party that has no legislative agenda, 
that has no solutions or ideas to solve America's greatest challenges?
  In stark contrast to the Democrats' invisible agenda, Republicans 
have clearly articulated and delivered a bold agenda to secure 
America's future. And while we have had some victories in recent years, 
the truth is that Democrats have fought bitterly to block progress for 
America every step of the way. Then these same Democrats come to this 
floor and blame inaction on Republicans.
  To give just one example, Republicans have been working for decades 
to secure America's energy independence. However, Democrats, at the 
behest of extreme environmental activists, oppose real solutions to 
high energy prices such as increasing production of domestic oil and 
natural gas supplies and removing barriers to oil refinery investment 
such as onerous permitting requirements and a proliferation of boutique 
fuel blends.
  Just last month, Democrats blocked energy exploration and production 
on the Coastal Plain of the Arctic National Wildlife Refuge which would 
provide millions of barrels of oil a day, or about 4.5 percent of the 
current U.S. consumption, with no significant environmental impact.
  It is not just in Alaska where Democrats oppose efforts to access our 
Nation's energy resources. It has been estimated that enough natural 
gas lies under the Outer Continental Shelf and in the interior Western 
States to supply 27 years' worth of natural gas consumption, the 
primary fuel used to heat Americans' homes. Yet Democrats support 
policies that have closed these areas to exploration and production.
  The administration has attempted to cut regulatory redtape, reduce 
regulatory costs, and streamline regulatory processes to allow more 
sensible use of the Nation's energy resources, while maintaining 
environmental standards--efforts that have been largely rebuffed by 
Democrats in Congress.

[[Page S309]]

  The obstacle to America's energy independence is clear: it is the 
blockade formed by the Democratic Party. In seeking to appease far-left 
interest groups, Democrats have blocked Republican efforts to reduce 
our dependence on foreign oil and have needlessly allowed energy prices 
to climb higher and higher for America's families.
  Senator Reid likes to say Democrats can do better. I think he is 
right, Democrats should do better. They have been conducting a war of 
rhetoric for years without offering anything positive to the public 
debate. Americans are rightly frustrated with a Democratic Party that 
will say anything but do nothing.
  Now let me address what has become the favorite sound bite of the 
Democratic Party. Senator Reid said it today and many times over the 
last week, what he likes to call the ``culture of corruption.'' 
Apparently, Democrats believe this media strategy will carry them to a 
sweeping electoral victory in November. I have news for my Democratic 
colleagues: The problem of outside influence on Congress is not a 
partisan issue. This is a bipartisan problem and requires a bipartisan 
solution.
  For those hoping to usher in a new Democratic majority in Congress on 
a media sound bite, history teaches us that elections are won on ideas, 
not rhetoric. Americans are far too smart and today's challenges are 
far too serious for Democrats to expect they can coast to a victory in 
November with no solutions and no ideas.
  Republicans learned this lesson long ago from one of our greatest 
teachers, Ronald Reagan. President Reagan always talked about ideas 
that still resonate with Americans today: limited government, personal 
freedom and responsibility, and peace through strength.
  Republicans did not win on rhetoric in 1994. We won because Americans 
agreed with our solutions: lower taxes, fiscal responsibility, 
traditional values, and strong national defense.
  President Bush has connected with the American people because he has 
run his campaigns on ideas. He promised to lower taxes, and he has. He 
promised to aggressively fight the war on terror to protect American 
families, and he has. He promised to nominate judges who will follow 
the law instead of creating it, and he has.
  Yet, as Senator Reid demonstrated today, Democrats still do not 
understand that Americans want solutions, not more partisan rhetoric. I 
know there are some Democrats who do have some good ideas and desire to 
work together to improve the lives of Americans. I have talked to many 
of my colleagues on the other side of the aisle who do seem to 
understand the reality, but their leadership refuses to allow them to 
break from the party line.
  I urge the Democratic Party to think long and hard about the war of 
rhetoric they are waging. It is poisoning the atmosphere in the Senate, 
and it is turning off Americans from the public debate. The 
consequences of these actions will be fewer and fewer Democrats 
returning next year. This has been proved out during the last 
elections, as I and my fellow freshman Republican Senators can testify.
  If Democrats sincerely want the opportunity to govern again, they 
need to abandon this ``say anything, do nothing'' stance and put 
forward some ideas and solutions. Regardless, the Republican Party will 
not wait around. We will continue to secure America's future with a 
bold, positive agenda.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I wish to amend the unanimous consent 
agreement to add an additional 10 minutes for Senator Baucus, which 
will give him 30 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeMINT. Mr. President, I ask the Senator to add to her request 
that following the Democratic-allowed time that has already been agreed 
to, Senator Inhofe be recognized for up to an hour.
  Mrs. BOXER. Certainly. I ask that at the conclusion of Senator 
Biden's remarks, Senator Inhofe be recognized for up to an hour.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from California.
  Mrs. BOXER. Mr. President, I was listening to the Senator from South 
Carolina. I thought he was going to make some comments about the vote 
that just took place on one of the most important issues facing the 
Senate. Instead, he launched into an attack on Senator Harry Reid.
  Shakespeare once said something to this effect: When someone acts 
that way, he is protesting too much. So Senator Reid must have hit a 
chord with the Senator from South Carolina, and there are reasons for 
it.
  Senator Reid speaks straight from the heart, straight from the 
shoulder. He is fighting for the American people. He wants us to fix 
the mess this President and this Congress made in the Medicare 
prescription drug benefit. He wants us to take care of our men and 
women in uniform. He wants to make sure the budgets are balanced. He 
wants to make sure that our families have health care, that we are 
moving forward on homeland security, and cleaning up the culture of 
corruption which has been brought to us by the ruling party. Remember, 
we have one party that rules Washington.
  So I think his remarks must have deeply touched the Senator from 
South Carolina for him to launch into such a personal attack on the 
Democratic leader. I stand here and say: Keep it up, Senator Reid. You 
must be doing something right to elicit that kind of outrageous 
response.
  Mr. President, many of us have been in elected life for more than a 
decade--in my case, three decades--and we know that when certain issues 
come before us, they are so profound, they are so important to the 
people we represent, they are such a watershed that they need to be 
marked, not rushed.
  The vote on Samuel Alito to be a Justice of the Supreme Court is such 
a moment in our history. Yes, we are having two votes on this 
nomination, one just completed, which gave me and other opponents of 
the nomination an opportunity to signal that this nomination should be 
sent back to the President for a mainstream nominee in the mold of 
Sandra Day O'Connor.
  We fell short of the 41 votes we needed to send this nomination back. 
But yet I am still glad I had the opportunity to go on record twice. 
And do you know why? Because the Supreme Court belongs to the people of 
America. It is their court. It is not George Bush's court. It is not 
any Senator's court. It is the people's court, and the highest court. 
It is their freedoms that are at stake, their protection from a power-
hungry Executive, their right to clean air, to clean water, and safe 
communities, their right to make private decisions with their families, 
not with Senators and Congressmen and a President or Vice President 
breathing down their necks.
  So although we knew the votes were not there for the filibuster of 
Judge Alito, we felt it was appropriate to use that historic Senate 
debate tool so the American people would know that we were willing to 
pursue even a losing effort because the stakes are so high.
  Tomorrow, we will cast our votes on the nomination itself, and I want 
the record to reflect why I will be voting no.
  Mr. President. Every judicial nomination is important, but rarely are 
the stakes as high for the Nation as they are in the case of the 
nomination of Samuel Alito to be an Associate Justice of the Supreme 
Court.
  We now have a divided Court, a divided Congress, and a divided 
electorate, as evidenced in the last two Presidential elections. 
Unfortunately, we also have a President who failed to remember his 
promise, which he made in the campaign of 2000: to govern from the 
center--to be ``a uniter, not a divider.'' If he had kept that promise, 
he would not have nominated Samuel Alito.
  Judge Alito was nominated to take the seat of Justice Sandra Day 
O'Connor, the first woman on the Court. She has long been the swing 
vote, and a commonsense voice of moderation, in some of the most 
important cases to come before the Court, including a woman's right to 
choose, civil rights, and freedom of religion.
  The right thing to do for the court and for the Nation would have 
been to nominate someone in the mold of Justice O'Connor, and that is 
what the President should have done.
  Let me be clear: I do not deny Judge Alito's judicial qualifications. 
He is experienced, intelligent, and capable. His

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family should be proud of him, and all Americans should be proud that 
the American dream was there for him and for the Alito family.
  But these facts do not outweigh my deep conviction that Judge Alito's 
extreme views of the law make him the wrong person for this job.
  As a Senator, I have no more solemn duty than to vote on a nomination 
for the Supreme Court of the United States. These are lifetime 
appointments, with extraordinary power to shape the law of the land, 
and to affect the lives of Americans, not just those living now, but 
for generations to come.
  In the 218 years since our Constitution was adopted, our Nation has 
made great strides toward achieving the more perfect Union that the 
Founding Fathers dreamed of Women were given the right to vote. 
African-Americans were given civil rights. A right to personal privacy 
has been recognized for women and families. The accused have a right to 
counsel. Congress has been recognized to have the power to enact laws 
protecting the health and safety of the people. This has led to a 
cleaner environment, safer workplaces and communities, and better 
health care for all Americans.
  We who have enjoyed the fruits of this progress owe it to future 
generations not to let it slip away. Thus, in a vote such as this, 
which will have long lasting effects, it is incumbent on us to consider 
what those effects might be.
  If Judge Alito is confirmed, he will join the far right wing of the 
Court now led by Justices Scalia and Thomas. Should their extreme views 
of the Constitution ultimately prevail--as they may well do in the very 
near future--I fear they will take our Nation on a backward path--
toward a time of fewer rights for individuals and greater restrictions 
on Congress's ability to protect the public health and welfare. In 
addition, I believe that Judge Alito will support Justice Thomas's 
radical ideas about stronger Presidential powers.
  In short, our children could end up living in a very different 
America from the one we treasure. What kind of Nation would that be?
  Abortion undoubtedly would be illegal in many States. Dangerous 
automatic weapons might become broadly available. It might be almost 
impossible to get a claim of workplace discrimination to a jury. Search 
warrants might not have to be issued, or if they were, wouldn't have to 
be specific. The Nation's most important environmental laws might be 
made toothless for lack of enforcement in the courts. Trial by jury, 
one of the most precious of all rights guaranteed to Americans by their 
Constitution, could be tainted by racism in the selection of Jurors.
  This is a harsh picture, but I believe it is not unrealistic. If you 
consider where the Court is now and consider Judge Alito's record and 
views carefully, you must conclude, as I did, that approving his 
nomination could have dire consequences for our Nation.
  In reviewing Judge Alito's record, I asked myself whether, as a 
Supreme Court Justice, he would be likely to vote to preserve 
fundamental American liberties, values, and interests for all the 
people.
  Would Justice Alito vote to uphold Congress's constitutional 
authority to pass laws to protect Americans' health, safety, and 
welfare? The record says no. When his Third Circuit Court of Appeals 
voted to uphold a ban on machine gun possession, Judge Alito voted to 
strike it down because he said Congress lacked the power to enact such 
a law. His colleagues on the court criticized him, saying his position 
ran counter to ``a basic tenet of the constitutional separation of 
powers.''
  Would Justice Alito vote to protect the right to privacy, especially 
a woman's reproductive freedom? Judge Alito's record says no. We have 
all heard about Judge Alito's 1985 job application which he wrote that 
the Constitution does not protect the right of a woman to choose. When 
given the chance to disavow that position during the hearings, he 
refused to do so. He had the chance to say, as Judge Roberts did, that 
Roe v. Wade is settled law, and he refused.

  When given the chance to explain his dissent in the Casey decision, 
in which he argued that the Pennsylvania spousal notification 
requirement was not an undue burden on a woman seeking an abortion 
because it would affect only a small number of women, he refused to 
back away from his position. The Supreme Court, by a 5 to 4 vote, found 
the provision to be unconstitutional, and Justice O'Connor, cowriting 
for the Court, criticized the faulty analysis supported by Judge Alito, 
saying that ``the analysis does not end with the one percent of women'' 
affected. ``it begins there.''
  Judge Alito's ominous statements and narrow-minded reasoning clearly 
signal a hostility to women's rights, and portend a move back toward 
the dark days when abortion was illegal in many States, and many women 
died as a result.
  In the 21st century, it is astounding that a nominee for the Supreme 
Court would not view Roe v. Wade as settled law. The fundamental 
principle of Roe--a woman's right to make reproductive choices for 
herself--has been reaffirmed many times since it was decided.
  Would Justice Alito vote to protect Americans from illegal searches 
in violation of the fourth amendment? Judge Alito's record says no. In 
a 2004 case, he found that a police strip search of a 10-year-old girl 
was lawful, even though she was not named in the warrant. Judge Alito 
said that even if the warrant did not actually authorize the search of 
the girl, ``a reasonable police officer could certainly have read the 
warrant as doing so . . .''
  This cavalier attitude toward one of our most basic constitutional 
guarantees--the fourth amendment right against unreasonable searches--
is stunning. As Judge Alito's own court said regarding warrants, ``a 
particular description is the touchstone of the fourth Amendment.'' 
Americans have reason to fear a Supreme Court justice who does not 
understand this fundamental constitutional protection.
  Would Justice Alito vote to let citizens stop companies from 
polluting their communities? The record says no. In a case involving 
toxic discharges into a major river, Judge Alito voted to stop citizens 
from taking the polluting company to court, as they were authorized to 
do under the Clean Water Act. Fortunately, in another case several 
years later, the Supreme Court overturned Alito's narrow reading of the 
law.
  Would Justice Alito vote to let working women and men have their day 
in court against employers who discriminate against them? Judge Alito's 
record says no. In a 1997 case, Judge Alito was the only judge to say 
that a hotel employee claiming racial discrimination could not take her 
case to a jury. His colleagues on the court said that if his standard 
for getting to a jury were required of a plaintiff, it would 
``eviscerate'' title VII of the Civil Rights Act of 1964, which 
prohibits discrimination in the workplace.
  In another case, a female employee sued for discrimination, alleging 
that after she complained about incidents of sexual harassment, she was 
demoted and marginalized to the point that she was forced to quit. By a 
vote of 10 to 1, the Third Circuit found for the plaintiff. Guess who 
was the one? Only Judge Alito thought the employee should have to show 
that discrimination was the main cause of the employer's action. Using 
his standard would make it almost impossible for a woman claiming 
discrimination in the workplace to get to trial.
  Would Justice Alito be an effective check on an overreaching 
executive branch? Judge Alito's record says no. As a Judiciary 
Department lawyer, Alito wrote a memorandum proposing that the 
President assert his own interpretations of statutes by issuing 
``signing statements'' when the laws are enacted. He said this would 
give the Executive ``the last word'' on interpreting the laws.
  The administration is now asserting vast powers, including spying on 
American citizens without seeking warrants, in clear violation of the 
Foreign Intelligence Surveillance Act, violating international 
treaties, and ignoring laws that ban torture.
  We need Justices who will put a check on such overreaching by the 
Executive, not rubberstamp it. Judge Alito's record and his answers at 
the hearings raise very serious doubts about his commitment to being a 
strong check on an ``imperial President.''
  During the hearings, we all felt great compassion for Mrs. Alito when 
she became emotional in reaction to the

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tough questions her husband faced in the Judiciary Committee.
  Everyone in politics knows how hard it is for families when a loved 
one is asked tough questions. It is part of a difficult process, and 
whoever said politics is not for the faint of heart was right.
  Emotions have run high during this process. That is understandable. 
But I wish the press had focused more on the tears of those who will be 
affected if Judge Alito becomes Justice Alito and his extreme views 
prevail.
  I worry about the tears of a worker who, having failed to get a 
promotion because of discrimination, is denied the opportunity to 
pursue her claim in court.
  I worry about the tears of a woman who is forced by law to tell her 
husband that she wants to terminate her pregnancy and is afraid that he 
will leave her or stop supporting her.
  I worry about the tears of a young girl who is strip searched in her 
own home by police who have no valid warrant.
  I worry about the tears of a mentally retarded man who has been 
brutally assaulted in the workplace, when his claim of workplace 
harassment is dismissed by the court simply because his lawyer failed 
to file a well-written brief on his behalf.
  These are real cases in which Judge Alito has spoken. Fortunately, 
his views did not prevail in these cases. But if he sits on the Supreme 
Court, he will have a much more powerful voice. His voice that will 
replace one of moderation and balance, and he will join the voices of 
other Justices who share his severe views.
  Perhaps the most important statement Judge Alito made during the 
entire hearing process was when he told the Judiciary Committee that he 
expects to be the same kind of Justice on the Supreme Court as he has 
been a judge on the Circuit Court.
  That is precisely the problem. As a judge, Samuel Alito seemed to 
approach his cases with an analytical coldness that reflected no 
concern for the human consequences of his reasoning.
  Listen to what he said about a case involving an African-American man 
convicted of murder by an all white jury in a courtroom where the 
prosecutors had eliminated all African-American jurors in many previous 
murder trials as well.
  Judge Alito dismissed this evidence of racial bias and said that the 
jury makeup was no more relevant than the fact that lefthanders have 
won five of the last six Presidential elections. When asked about this 
analogy during the hearings, he said it ``went to the issue of 
statistics . . . (which) is a branch of mathematics, and there are ways 
to analyze statistics so that you draw sound conclusions from them. . . 
.''
  That response would have been appropriate for a college math 
professor, but it is deeply troubling from a potential Supreme Court 
Justice.
  As the great Jurist and Supreme Court Justice Oliver Wendell Holmes, 
Jr. wrote in 1881:

       The life of the law has not been logic; it has been 
     experience . . . The law embodies the story of a nation's 
     development through many centuries, and it cannot be dealt 
     with as if it contained only the axioms and corollaries of a 
     book of mathematics.

  What Holmes meant is that the law is a living thing, that those who 
interpret it must do so with wisdom and humanity, and with an 
understanding of the consequences of their judgments for the lives of 
the people they affect.
  It is with deep regret that I conclude that Judge Alito' s judicial 
philosophy lacks this wisdom, humanity, and moderation. He is simply 
too far out of the mainstream in his thinking. His opinions demonstrate 
neither the independence of mind nor the depth of heart that I believe 
we need in our Supreme Court Justices, particularly at this crucial 
time in our Nation's history.
  That is why I must oppose this nomination.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Montana is recognized.
  Mr. BAUCUS. I ask unanimous consent the order for recognition of 
Senator Biden be vitiated.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BAUCUS. Mr. President, on the corridor of the first floor of this 
Capitol building appear the words of Samuel Adams:

       Freedom of thought and the right of private judgment in 
     matters of conscience direct their course to this happy 
     country.

  America still stands as the world's beacon of individual rights and 
liberties. Of that I know we are very proud. In large part, it is 
because of our Supreme Court. Our Founding Fathers were very wise 
setting up three separate branches of Government, including a very 
strong, independent judiciary, something many countries have struggled 
to attain, and their failure to achieve greatness is largely because 
they do not have a very strong, independent judiciary--and I mean 
independent.
  The Senate protects the independence of the Supreme Court. How? By 
seriously exercising its responsibility to advise and consent on the 
nominations to that honorable Court. It is in the Constitution. We all 
take that duty seriously. We take it seriously by examining nominees. I 
personally have three criteria I use to examine nominees. They are 
professional competence, personal integrity, and a view of important 
issues within the mainstream of contemporary judicial thought. Let me 
review those three criteria.
  First, professional competence. The Supreme Court must not be a 
testing ground for the development of a jurist's basic values. Nor 
should a Justice require further training. The stakes are simply too 
high. The nominee must be an established jurist already. Of that we 
must be very clear.
  A second criteria is personal integrity. Nominees to our Nation's 
highest court must be of the highest caliber.
  Third, the nominee should fall within the broad mainstream of 
contemporary judicial thought. Justices must possess the requisite 
judicial philosophy to be entrusted with the Court's sweeping 
constitutional powers. I believed that then-Judge and now Chief Justice 
Roberts met those tests. That is why I voted to support his 
confirmation.
  Measuring Judge Alito against these three criteria, I have decided he 
does not meet these three tests. I do not think he is the right choice 
for my State of Montana or for our country.
  This was not an easy decision. I grappled with it. I took my time. I 
have reviewed this nomination very carefully. I reviewed Judge Alito's 
prior writings and case rulings. I reviewed his Judiciary Committee 
testimony and I met with Judge Alito personally for over an hour.
  Nominations to the Supreme Court rank among the Senate's most 
important decisions. Only the brightest, most objective minds should 
serve on the bench. But Judge Alito, in my judgment, stands outside the 
mainstream. I base my decision on what I think is right for my State 
and my country, and that is why I cannot support this nomination.
  I reviewed the Judiciary Committee's hearings. The Judiciary 
Committee held 5 days of hearings. The committee questioned Judge Alito 
for 4 days. The committee heard from panels supporting and opposing his 
nomination. The Judiciary Committee members sought Judge Alito's views 
on many matters, including States rights, antidiscrimination laws, 
immigrant rights, due process, privacy, equal protection, ethical 
considerations, and broad judicial philosophy. Judge Alito responded 
eloquently, but he provided little detail. Members of the Committee 
attempted to pin Judge Alito down on many of his views, but Judge Alito 
did not offer detailed answers to their questions, at least not enough 
information to get a sense of who he was and where he was. Judge Alito 
appeared well prepared for these hearings--very well prepared, I might 
add. He appeared to have been advised to say as little as possible.
  On January 24, the Judiciary Committee voted to report Judge Alito's 
nomination on a party-line vote. Unfortunate, but that is how it turned 
out; again, I think in part because of the nature of the nominee's 
views.
  Let me take a few moments to examine Judge Alito's nomination in 
greater detail against the criteria I have laid out. First, 
professional competence. Mr. Alito received an excellent education. He 
holds an undergraduate degree from Princeton and a law degree from Yale 
School of Law. Judge Alito also has extensive experience as a judge, 
serving 15 years as a

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judge on the Third Circuit Court of Appeals. In fact, he has served 
more years on the bench than many nominees to the Supreme Court.
  Mr. Alito's work prior to his judicial appointment focused 
exclusively on representing only one client, the U.S. Government. Some 
have raised questions about Judge Alito's experience protecting the 
rights of individuals rather than the Government. I conclude that Judge 
Alito is professionally competent to serve as a Supreme Court Justice.
  Second, personal integrity. Several issues arise from Judge Alito's 
promise to avoid conflicts of interest as a judge. Some raised 
questions about Judge Alito's sensitivity to the avoidance of conflicts 
of interest, and some raised questions about how steadfastly Judge 
Alito keeps his commitments to the Senate.
  In 1990, Judge Alito told the Senate Judiciary Committee that he 
would disqualify himself from any cases involving five matters with 
which he had personal connections. Those matters were the Vanguard 
Companies, the brokerage firm of Smith Barney, the First Federal 
Savings & Loan of Rochester, New York, his sister's law firm, and 
matters that he worked on or supervised at the United States Attorney's 
Office in New Jersey. In the period of 1995 to 2002, however, Judge 
Alito heard cases related to these matters.
  Judge Alito initially blamed the conflicts of interest on a computer 
glitch. In subsequent correspondence with Senators on the Judiciary 
Committee, Judge Alito argued that his promise during his 1990 
confirmation hearings referred to only his ``initial service.'' He 
argued that as his service continued, he found unduly restrictive his 
1990 promise to recuse himself from cases involving entities in which 
he had a financial interest. And he argued that the mutual funds in 
which he was invested were not at issue in the case that he heard.
  In his responses to questions concerning Vanguard, Judge Alito 
testified:

       I think that once the facts are set out, I think that 
     everybody will realize that in this instance I not only 
     complied with the ethical rules that are binding on federal 
     judges--and they are very strict--but also that I did what 
     I've tried to do throughout my career as a judge, and that is 
     to go beyond the letter of the ethics rules and to avoid any 
     situation where there might be an ethical question raised.

  But Judge Alito also admitted to Senator Kennedy that ``if I had to 
do it all over again, I would have handled this case differently.''
  Judiciary Committee members also asked about Judge Alito's membership 
in an organization called Concerned Alumni of Princeton. In his 1985 
job application to the Reagan Justice Department, Judge Alito listed 
Concerned Alumni of Princeton as one of his extracurricular activities. 
Concerned Alumni of Princeton is an alumni group that took the extreme 
position of arguing against letting women and minorities attend 
Princeton. When questioned about Concerned Alumni of Princeton, Judge 
Alito claimed that he had no recollection of ever having been a member 
of the group.
  Judge Alito testified:

       I really have no specific recollection of that 
     organization. But since I put it down on that statement, then 
     I certainly must have been a member at that time. . . . I 
     have tried to think of what might have caused me to sign up 
     for membership, and if I did, it must have been around that 
     time. And the issue that had rankled me about Princeton for 
     some time was the issue of ROTC. I was in ROTC when I was at 
     Princeton and then until it was expelled from campus, and I 
     thought that was very wrong.

  Judge Alito's response about Concerned Alumni of Princeton raises 
concerns. In 1985, he apparently thought that his membership in this 
discriminatory organization was important enough to put on his page-
and-a-half job application. His failure of memory now about that 
inconvenient position then raises questions about his credibility.
  I am also disappointed that the White House has chosen not to release 
Judge Alito's tax returns for review by the Joint Committee on 
Taxation. On December 13 of last year, I introduced a bill that would 
require all Supreme Court nominees to submit 3 years of tax returns to 
the nonpartisan Joint Committee on Taxation for review on a 
confidential basis. The Joint Committee would report its findings on 
the nominee's tax compliance to the Finance and Judiciary Committee.
  I might add that all nominees who are referred to the Finance 
Committee--from Cabinet Secretaries to Tax Court judges--have their tax 
returns reviewed for compliance. The reviews are discreet and 
confidential. We protect nominees' personal information. And I might 
say that in several cases we found errors of facts, matters that had to 
be attended to--and they were.
  I understand the administration does a ``tax check'' for all Supreme 
Court nominees. They say they already do one. But I believe it is 
important for Congress to do its own due diligence on a nominee's tax 
returns. After all, this is a person who serves on the judiciary. That 
is a separate branch, not the executive, not the judicial. Both 
entities--namely both the Executive and the congressional--have a stake 
in making sure that the nominee's tax returns comply with the law.
  I might also say, as I mentioned earlier, many so-called tax checks 
the administration has taken on other nominees have been very 
inadequate, full of mistakes, and we have had to correct them.
  The Finance Committee views proof of the nominee's tax compliance as 
a testament to the nominee's integrity. What individuals do on their 
tax returns is a window on their ethical decision making. It is a good 
test of integrity and character.
  The American people expect their national leaders to comply 
faithfully with the tax laws. A showing that leaders in the Federal 
Government faithfully comply with the tax laws sends an important 
message to people who might consider cheating on their taxes.
  On January 19, President Bush appeared to agree. He told small 
business leaders in Sterling, VA, that public officials' tax returns 
should be public, because public officials have a ``high responsibility 
to uphold the integrity of the process.''
  When I met with Judge Alito, I asked him to release his tax returns 
for such a review. He initially agreed to do so. But the White House 
official present at the meeting immediately intervened to block the 
release saying that he cannot do so.
  The President was right when he said in Virginia that the release of 
public officials' tax returns contributes to the integrity of our whole 
tax system. And his White House was wrong to withhold that information 
on Judge Alito. I will continue to press future nominees to allow this 
kind of neutral review of their tax, returns because I think it is the 
right thing to do.
  Let me turn now to judicial philosophy.
  I do not believe that a Senator should oppose a nominee just because 
the nominee does not share that Senator's particular judicial 
philosophy. But the Senate must determine whether a nominee is in the 
broad mainstream of judicial thought. Is this a wise person, not an 
ideologue of the far left or the far right. The Senate must determine 
whether a nominee is committed to the protection of the basic 
Constitutional values of the American people.
  What are those values?
  One is the separation of powers of our Federal Government--including 
the independence of the Supreme Court itself.
  Another is freedom of speech. Another is freedom of religion. Another 
is equal opportunity. Another is personal autonomy--the right to be 
left alone. And yet another is an understanding of the basic powers of 
the Congress to pass important laws like those providing for protection 
of the environment.
  These are not unimportant matters. They are hugely difficult--all of 
these are.
  The stakes are high. The Senate has a duty to ensure that the nominee 
will defend America's mainstream Constitutional values.
  Judge Alito's record calls into question his ability to act as a 
check on executive powers. Recently, many have noted with concern the 
National Security Agency's surveillance of American citizens. At the 
Judiciary Committee's hearing, a number of questions focused on Judge 
Alito's interpretations of executive power, and the importance of the 
court's role as an effective check on overreaching presidential power 
and on government intrusion.

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  Judge Alito responded that ``no person is above the law.'' But he did 
not provide assurances that he would act on the Court to balance 
executive authority. His prior statements and court rulings indicate 
that he has an expansive view of the scope of executive power and a 
narrow view of Congress's authority to legislate.
  In a 1984 memorandum, Mr. Alito argued that the Attorney General 
deserves blanket protection from lawsuits when acting in the name of 
national security, even when those actions involve the illegal 
wiretapping of American citizens.
  In a 2000 speech to the Federalist Society, Judge Alito said that 
``the theory of a unitary executive . . . best captures the meaning of 
the Constitution's text and structure.'' Judge Alito said: ``The 
President has not just some executive powers, but the executive power--
the whole thing.'' Some have thus interpreted the theory of a unitary 
executive to support the proposition that the Constitution reserves all 
executive power exclusively for the President. The theory would thus 
prohibit other branches of Government from carrying out any power that 
one could characterize as having executive characteristics. This view 
of executive power could limit Congress's ability, for example, to 
create independent agencies such as the SEC with oversight duties. And 
some believe that this view could allow the President the ability to 
legislate through signing statements.
  When Senator Leahy pressed Judge Alito about his view of the unitary 
executive as well as his strategy of utilizing Presidential signing 
statements to expand executive authority, Judge Alito responded that he 
did not see a connection between these two principles.
  In a 1986 memo, Mr. Alito argued that ``the President's understanding 
of the bill should be just as important as that of Congress.'' He 
argued that signing statements would allow the President to ``increase 
the power of the Executive to shape the law.''
  President Bush has employed this method of Presidential signing 
statements to document his interpretation of congressional legislation, 
again even though he is certainly not a member of Congress. He didn't 
write the law. How could he say what Congress intended to do? He has, 
in fact, issued 108 signing statements expanding his executive 
interpretation of the laws passed by Congress.
  Judge Alito's judicial rulings on the Third Circuit Court of Appeals, 
as well as his 1985 job application to the Reagan Justice Department, 
do not indicate an expansive view of civil rights and civil liberties. 
In his 1985 job application, Judge Alito wrote that he developed a 
``deep interest in constitutional law, motivated in large part by 
disagreement with the Warren Court.'' Many credit the Warren Court with 
expanding civil rights and civil liberties.
  Judge Alito has narrowly construed constitutional criminal procedure 
protections, such as the fourth amendment restrictions on search and 
seizure. In the case of Doe v. Grody, for example, Judge Alito wrote a 
dissent. He argued that the strip search of a mother and her 10-year-
old daughter without a proper search warrant did not violate their 
constitutional rights.
  That is his dissent, that is his view.
  Judge Alito testified:

       It was a rather technical issue about whether the affidavit 
     that was submitted by the police officers was properly 
     incorporated into the warrant for purposes of saying who 
     could be searched. And I thought that it was, and I thought 
     that it was quite clear that the magistrate had authorized a 
     search for people who were on the premises. That was the 
     point of disagreement.

  Judge Alito also refused to agree that Congress cannot take away the 
Supreme Court's ability to protect Americans' First Amendment rights.
  In contrast, both Chief Justice Roberts and former Chief Justice 
Rehnquist have agreed to the position that Congress cannot take away 
the Supreme Court's ability to protect Americans' first amendment 
rights. This is sometimes called ``court stripping.'' It is extremely 
critical, extremely important. It is no academic matter. Basically it 
is that the Congress can say to the Supreme Court it does not have 
jurisdiction to hear any cases with respect to, say, the first 
amendment brought by an individual citizen; that is, Congress can take 
away the Court's authority to interpret the Constitution with respect 
to the first amendment. That is what that view held. I think it is an 
outrageous view. I don't understand how anybody can tentatively hold 
that view.
  Judge Alito defended his viewpoint, saying this is an academic debate 
on which scholars are divided. I am astounded at that answer.
  Judge Alito's rulings on civil rights cases appear to set a high bar 
for proving unequal treatment. A review of his record indicates that 
plaintiffs rarely ever prevail. Senator Coburn defended Judge Alito's 
record by noting that Judge Alito ruled for the ``little guy'' in a 
list of 13 cases. Judge Alito's record, however, includes almost 500 
published and unpublished opinions. Thirteen is not very many out of 
500.
  Knight Ridder conducted a survey of Judge Alito's published opinions. 
They concluded that:

       although Judge Alito's opinions are rarely written with 
     obvious ideology, he's seldom sided with a criminal 
     defendant, a foreign national facing deportation, an employee 
     alleging discrimination or consumers suing big business.

  I am also concerned by Judge Alito's responses to privacy questions 
at the Judiciary Committee hearings which conflict with his past 
statements. In his 1985 job application, Mr. Alito wrote:

       It has been an honor and a 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 
     . . . the Constitution does not protect a right to an 
     abortion.

  In June 1985, Mr. Alito wrote a 17-page memo providing a strategy for 
using the Government's brief in the case of Thornburgh v. American 
College of Obstetricians and Gynecologists as an ``opportunity to 
advance the goal of bringing the eventual overruling of Roe v. Wade, 
and in the meantime, of mitigating its effects.'' Judge Alito advocated 
a strategy of creating a series of burdens on a woman's right to 
choose. In the hearings, however, Judge Alito responded to Senator 
Feinstein that he ``did not advocate in the memo that an argument be 
made that Roe be overruled.''
  In his hearings, Judge Alito acknowledged that the Constitution 
protects a right to privacy generally. He agreed with the premise in 
the Griswold case, which protects the right to use contraceptives. It 
is unclear, however, how widely the right to privacy extends for Judge 
Alito.
  When pressed, Judge Alito refused to acknowledge that the 
Constitution protects a woman's right to choose. Judge Alito explained 
that he would approach privacy cases with an open mind.
  On the Third Circuit Court of Appeals, Judge Alito also wrote a 
dissent in the case of Planned Parenthood of Southeastern Pennsylvania 
v. Casey. In that dissent, he argued that upholding Pennsylvania's 
restrictive spousal notification requirement did not place an undue 
burden on women.
  Yet Justice O'Connor, writing for the majority of the Supreme Court, 
wrote that the spousal notification requirement ``embodies a view of 
marriage consonant with the common law status of married women, but 
repugnant of our present understanding of marriage and of the nature of 
the rights secured by the Constitution.''
  When questioned specifically about the landmark case of Roe v. Wade, 
Judge Alito commented that he understands the principle of stare 
decisis--that courts should honor precedents. But he also said that 
this principle is not ``an inexorable command.''
  Here again, Judge Alito's statements contrast with then-Judge 
Roberts' comments during his hearings. Judge Roberts said in his 
hearings that Roe v. Wade was settled law. When Senators asked Judge 
Alito about Judge Roberts' statements, Judge Alito responded that ``I 
think it depends on what one means by the term `settled.' '' Judge 
Alito engaged in some discussion about what ``settled law'' means to 
him. His interpretation of how settled the right to privacy is remains 
unclear.
  Judge Alito answered questions about his judicial philosophy by 
testifying that precedent is entitled to respect. But he would not 
provide great detail about specific precedents such as Roe v. Wade. 
Senator Feinstein pushed

[[Page S314]]

Judge Alito to clarify the discrepancy between answering cases about 
one- person one-vote, but not responding to questions about abortion 
and precedent. Judge Alito did not give a clear answer.
  Judge Alito appears to support deference to the Framers' original 
intent. Judge Alito testified:

       I think we should look to the text of the Constitution, as 
     we should look to the meaning that someone would have taken 
     from the text of the Constitution at the time of its 
     adoption.

  That is called originalism.
  Judge Alito's judicial philosophy of original intent raises concerns 
about whether the Court could adapt to a changing society. And his 
philosophy indicates that he may not take an active role in extending 
Constitutional protections to new situations in the 21st century.
  I have some concern about one ruling that Judge Alito issued related 
to the environment. In 2001, in the case of W.R. Grace & Company v. 
United States Environmental Protection Agency, Judge Alito threw out 
the Environmental Protection Agency order under the Safe Drinking Water 
Act for an ammonia-spill cleanup near Lansing, MI. Judge Alito 
concluded that the government cleanup standard was ``arbitrary and 
capricious.'' He explained that the reason for not upholding the order 
was that the EPA lacked a rational basis for imposing the clean-up 
standards on the company. This case raises sensitivities for me, 
because in my home state, W.R. Grace has acted with complete disregard 
of the health effects for Montanans in Libby, where illness from 
tremolite asbestos caused by W.R. Grace has hit the community hard.

  In 1988, Judge Alito commented that Robert Bork ``was one of the most 
outstanding nominees of this century.'' When I asked Judge Alito about 
that, he did not provide an adequate response. He ducked the question.
  He did not respond adequately to many of my questions. He evaded my 
questions, questions I asked in good faith, intended to elicit what 
kind of Justice he might be.
  He was vague. He seemed not to want to talk to me. He seemed not to 
want to have an honest discussion about what kind of person he is. That 
is why I find it very difficult to support this nominee.
  I supported Judge Roberts for Chief Justice in large part because of 
Judge Roberts' hearing testimony and responses when he met with me 
personally.
  Judge Alito does not meet my standards for a Supreme Court Justice. 
Judge Alito has explained that he will be ``the same person that I was 
on the Court of Appeals.'' Judge Alito's record demonstrates that he is 
a very conservative judge who rules often in favor of expanding 
executive authority and of limiting civil rights and civil liberties. 
If the Senate confirms Judge Alito to Justice O'Connor's seat, he could 
change the balance of the Court, tipping it in a direction that could 
reverse or restrict important constitutional protections.
  Based on all this information, I will vote against this nomination. I 
believe that Judge Alito is out of the mainstream. He is not the right 
choice for our country.
  On a corridor on the first floor of this Capitol building appear the 
words of former Supreme Court Justice Louis D. Brandeis, who said:

       The greatest dangers to liberty lurk in insidious 
     encroachment by men of zeal, well-meaning but without 
     understanding.

  I shall thus vote against this nomination to carry out seriously my 
responsibility as a Senator to Advise and Consent on nominations to 
that honorable Court. I shall vote against this nomination because I 
believe the nominee is well-meaning, but without sufficient 
understanding of the importance of our cherished rights and liberties. 
And I shall vote against this nomination to help keep this great 
country the world's beacon of freedom.
  The PRESIDING OFFICER (Mr. Cornyn). The Senator from Oklahoma.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Connecticut is now recognized for up to 20 minutes.
  Mr. DODD. Mr. President, I wish to commend my colleague, Senator Max 
Baucus from Montana, before he leaves the Floor, for a very fine 
statement. I appreciate his thoughts and comments.
  I rise today to discuss my vote on the nomination of Judge Samuel 
Alito to the United States Supreme Court. First of all, I wish to 
briefly comment on the cloture vote that occurred this afternoon. I 
voted not to invoke cloture on the nomination. I want to explain why.
  As many of my colleagues know, I went through minor surgery to have a 
knee replacement before the holidays and I have been home in 
Connecticut recuperating. I looked forward to coming back to 
participate in the debate on the Judge Alito nomination and I followed 
the confirmation process closely from home. For this reason, I was 
somewhat stunned to learn that Senator Frist filed a cloture motion on 
the nomination a day after it was voted out of the Judiciary Committee.
  I have been a member of this body for a quarter of a century and I 
have voted to confirm the majority of the judicial nominations that 
have come before this Senate. I, too, like my colleague from Montana, 
voted with enthusiasm for the nomination of Chief Justice Roberts only 
a few months ago. The majority leader's action was surprising to me. It 
is exceedingly rare that a cloture motion is filed on debate regarding 
a Supreme Court nomination. In is my experience, cloture motions have 
gotten filed when the majority got frustrated with the minority for 
insisting upon extending debate--beyond a reasonable period of time. In 
this case, I feel strongly that there has not been a reasonable period 
of debate, let alone an extended debate.
  But I am only one Member. Certainly, this institution cannot wait for 
one Member. I was allocated only 5 minutes of time this afternoon to 
comment on this nomination. However, my flight was canceled out of 
Hartford, CT, and thus, I lost that small window of 5 minutes to be 
heard. I consider the matter of confirmation of a Supreme Court Justice 
with great seriousness and solemnity. In my view, some of the most 
important votes that we make in the Senate are to fill vacancies in the 
Judicial Branch, second only to declarations of war. Constitutional 
amendments are not far behind. Therefore, to be notified that I would 
have only 5 minutes to comment on the nomination of a Supreme Court 
Justice who will serve for life, far beyond the tenure of the Chairman 
of the Federal Reserve Board, far beyond the tenure of a President of 
the United States, far beyond the tenure of a Senator or Congressman, I 
found rather disturbing.
  We have always respected one another here, at least we try to, and to 
recognize this is the Senate, different entirely from the body down the 
hall. We are a bicameral body for good reason. This is the place where 
we spend a little more time evaluating issues that come before the 
Senate. To ask for a few more days to have discussion about the nominee 
that has provoked serious controversy in the country, seems little to 
ask.
  Put aside the nominee for a second, put aside your decision to vote 
for or against the nominee, we should respect one another's desire to 
be heard on these matters. Tomorrow is the State of the Union, and 
there will be a photo opportunity for the President. I am deeply 
disturbed that this Senate may have made a decision to rush this 
nomination through, to invoke cloture, in order to provide a photo 
opportunity for a swearing-in ceremony prior to this President's State 
of the Union Message.
  I note the presence of my good friend and colleague from Texas in the 
chair of the Presiding Officer. He serves on the Judiciary Committee. 
He watched the gavel-to-gavel hearing proceedings. While I was at home 
rehabilitating this knee, I had a chance to watch my colleagues do 
their job. The circumstances around this nomination have been 
complicated. The nomination came up after Harriet Miers withdrew. We 
had the Thanksgiving holiday and the recess coming up. In fact, the 
Judiciary Committee met when we were out of session. Obviously, the 
desire was to move this along. I have no objection to that. That seems 
to be a reasonable request to have the committee meet when it did. 
Certainly, we all had an opportunity to watch those proceedings.
  The majority leader stated earlier than we have consumed an excessive 
amount of time on this nomination.

[[Page S315]]

This statement is correct if we measure it by days on the calendar. If 
we measure it by days we have actually been here during the last couple 
of months, it is incorrect. We have been out of session. There have 
been only a limited number of days in session and only a limited number 
of votes. Obviously, the number of days that have been consumed since 
the nominee was presented to this Senate is more than usual due to the 
circumstances surrounding the nomination and holiday session.
  I cannot allow the moment to pass without expressing my concerns 
about it and the rationale regarding why I voted against cloture. I 
would have preferred not to have voted on a cloture motion at all. If 
this were an extended debate, the majority leader might have been right 
to invoke cloture. I am troubled that now we are setting a new 
precedent for invoking cloture within only a short time after a 
nomination comes out of the committee.
  Mr. President, I rise today to explain my vote on this nomination. 
Tomorrow, at 11 a.m., we are going to vote on the Alito nomination.
  I would be remiss, obviously, if I did not thank the distinguished 
chairman of the Judiciary Committee, Senator Specter, and the minority 
ranking member, my good friend from Vermont, Senator Leahy, for the 
extraordinary service they have rendered to the Senate, along with 
their colleagues, during this nomination process.
  Over the last several months, these members have managed three 
separate nominations to the Supreme Court: Chief Justice Roberts, 
Harriet Miers, and now Samuel Alito. They are to be congratulated for 
their commitment to fair hearings and for the manner in which they 
discharged their duties.
  The Constitution, as we know, vests in this great body, the Senate, 
the privilege and the solemn responsibility to advise and give consent 
to the President on Supreme Court nominations--a unique role in our 
governance. The Framers intended for the Senate to take an active role 
in the confirmation process. However, the Constitution does not 
delineate the factors by which each Member of this body should 
determine the fitness of a judicial nominee to serve his or her 
lifetime appointment on the Federal bench. Thus, each Member of the 
Senate, each Senator, must determine for him or herself the acceptable 
criteria in judging a Supreme Court nominee.
  I have never opposed a nominee solely because he or she holds 
different views than my own regarding the Constitution or the Court's 
role in interpreting or applying it. I have supported seven of the last 
nine nominees to the Supreme Court, including the current President's 
nomination of John Roberts to be our country's Chief Justice. As I said 
earlier, I did it with enthusiasm, having witnessed and gone through 
the process and watched the process of his confirmation hearing.
  I, like many of my colleagues, have supported the overwhelming 
majority of the current President's judicial nominees. Of the current 
President's 230 judicial nominees, only 5 have failed to be confirmed, 
a rather remarkable record.
  In the course of my Senate career, I have never imposed a litmus test 
while reviewing Supreme Court nominees. But, due to the nature of a 
lifetime appointment, I feel they are entitled to a higher level of 
scrutiny than other judicial nominees for the Federal bench.
  I have three specific criteria that a Supreme Court must satisfy: 
First, I require that the nominee possess the technical and legal 
skills which we must demand of all Federal judges. Second, the nominee, 
in my view, must be of the highest character and credibility. And, 
finally, I vigorously examine the nominee's record to see whether he or 
she displays a commitment to equal justice for all under the law, in 
order to protect the individual rights and liberties guaranteed by the 
Constitution of the United States.
  Now, I waited until after the committee vote had occurred last week, 
and then, in an interview with my local press in Connecticut, indicated 
how I would vote on this nominee. I have always done that. I have 
always reserved the first judgment to be made by the committee. It 
seems to me to respect the committee process is very important, and the 
views of my colleagues are important to me. Whether I agree with them 
or not, I like to hear how they have arrived at their decisions.
  So on Supreme Court nominees, I have never announced a view on a 
nominee until after the committee has completed its review. Hence, less 
than a week after the committee voted, I find myself having to rush to 
the floor to make a hurried statement on this nominee. I am denied the 
opportunity to debate back and forth with other members of the Senate.
  I waited to make my decision because I felt that Judge Alito deserved 
a hearing before the Judiciary Committee. I felt that each of us who 
are not on the committee should have an opportunity to review the 
transcripts of that hearing and then engage, as nonmembers of the 
committee, in a discussion of the merits and demerits of this nominee. 
That has been denied this Member because of the cloture motion filed by 
the majority leader, provoking what I deeply regret that occurred only 
a few hours ago, and that was actually to have to vote on a cloture 
motion.
  I did not like casting that vote. I did not want to vote for it, but 
I felt I deserved the opportunity to be heard. So I do not regret at 
all that I am a part of a very small minority that voted against 
cloture. I wish more Members had. But I wish the majority leader had 
not filed that cloture motion, which provoked the exact scene we saw 
unfold here a few hours ago.
  Now, there is little question in my mind as to Judge Alito's 
intellectual competence and legal experience, and all of that. If this 
were the only criteria, I would be for him.
  Judge Alito received his legal education from Yale University School 
of Law in my home State of Connecticut. He served as a Government 
attorney in a number of positions including: Assistant Solicitor 
General, Deputy Assistant Attorney General in the Office of Legal 
Counsel, and U.S. Attorney for the District of New Jersey under 
President Reagan. In 1990, Judge Alito was nominated by George H.W. 
Bush to U.S. 3rd Circuit Court of Appeals. In the course of his 15 
years on the Federal bench, Judge Alito has heard more than 3,000 
cases. Furthermore, the American Bar Association has twice unanimously 
awarded Judge Alito with their highest rating of ``well qualified.'' I 
have great respect and admiration for his intellect, legal experience, 
and service to the American people as part of the Judicial Branch.
  ``Next, I turn to character and creditability. The question is: Does 
Judge Alito possess the qualities of mind and temperament expected of a 
Supreme Court Justice? I do not question whether Judge Alito is 
personally decent or if he has integrity. I was impressed by the 
diverse group of former clerks and colleagues who testified before the 
Judiciary Committee who could not have given him higher praise.
  Let me also say I know there were questions raised. I listened 
carefully regarding these concern including those regarding the 
Concerned Alumni of Princeton and the recusal issues that were raised 
by a number of committee members on the Judiciary Committee. These 
questions, while relevant, and certainly need to be explored, would not 
have decided my vote on this nominee. I do not minimize it. But if my 
decision were to be based solely on the recusal question or Judge 
Alito's membership in the Concerned Alumni of Princeton issue, I would 
be here supporting this nomination.
  Those are not the most important issues to this Member. But what is 
important are other issues that were raised during this nomination. 
Indeed, I am troubled that throughout Judge Alito's hearings, Judge 
Alito failed to provide clear and germane responses to legitimate 
questions.
  A few examples. For instance, when Senator Schumer, our colleague 
from New York, asked Judge Alito if he still believed his statement 
from the 1985 memo that said the ``Constitution does not protect the 
right to an abortion,'' rather than reply with a simple yes or no 
answer, Judge Alito deflected the question and instead replied, ``The 
answer to the question is that I would address the issue in accordance 
with the judicial process as I understand it and as I have practiced 
it.''
  When Senator Feinstein of California asked Judge Alito if Roe v. Wade 
was the settled law of the land--not an unpredictable question, a fair 
one, one you might ask about Brown v. Board of

[[Page S316]]

Education, Griswold v. Connecticut, and there is a long list of cases 
that are considered established law, settled law--when she asked the 
nominee whether Roe v. Wade--one in that litany of cases--is settled 
law, instead of answering it directly one way or the other, as Justice 
Roberts did, in very unequivocal terms--others might have said 
absolutely not; that would have been a very straightforward answer--
what did we hear? He said--this is reminiscent of some comments that 
were heard earlier--``I think it depends on what one means by the term 
`well settled.' ''
  When Senator Durbin of Illinois asked the same question, Judge Alito 
offered the convoluted response: ``It is--if settled means that it 
can't be re-examined, then that's one thing. If settled means that it 
is a precedent then that is entitled to respect of stare decisis . . . 
then it is a precedent that is protected, entitled to respect under the 
doctrine of stare decisis in that way.''
  Imagine giving that answer to Brown v. Board of Education. Imagine 
giving that answer to the long list of cases we now have as settled 
law. Now, the answer is, as Justice Roberts said: ``It is settled 
law''. But what you have here with Judge Alito is this dance going on 
here, instead of a direct yes or no. A no answer would have been a very 
honest answer. In fact, I suspect that is what his answer is, but he 
did not have the courage, in my view, to say that, which I would have 
respected. I might have disagreed with it, but I would have respected 
it. That is troublesome to me.
  Finally, I think we should vigorously examine the nominee to see 
whether he or she is capable of and committed to upholding the 
Constitution of the United States and its promise of freedom and 
equality for all. Protecting the constitutional rights of all Americans 
is perhaps the most fundamental duty of a Supreme Court Justice. 
Therefore, I am deeply concerned in his 1985 memo Judge Alito explained 
that his interest in constitutional law was ``motivated in large part 
by disagreement with Warren Court decisions, particularly in the areas 
of criminal procedure, the Establishment Clause, and reapportionment.''
  That is a fairly sophisticated answer in 1985. Many of these 
decisions, of course, compromise the cornerstone of the Supreme Court's 
modern jurisprudence, in enforcing the fundamental democratic principle 
of one person, one vote, in preventing the violation of an individual's 
privacy by the state--a matter that concerns everybody in this country; 
we see a lot of it going on today--and in ensuring procedural fairness 
in criminal trials. To wholeheartedly reject this legacy is also to 
reject the continued pursuit of the constitutional ideals of liberty 
and equality, in my view.
  Before the Judiciary Committee, Judge Alito defended himself by 
saying he wrote the comments 20 years ago. Twenty years ago, he was 
well into his thirties. This is not some 18-year-old who is writing 
these thoughts. Of course, before becoming a judge, in that case, he 
was merely outlining the development of his thinking about 
constitutional law at the time and pledged to keep an ``open mind'' if 
confirmed to the Supreme Court. Well, that is nice to know. I am glad 
to hear he is going to have an open mind.
  The seven current and former members of the Third Circuit Court of 
Appeals stated Judge Alito is ``not an ideologue,'' ``has no agenda,'' 
and ``is attentive and respectful of all views and is keenly aware that 
judicial decisions are not academic exercises but have far-reaching 
consequences on people's lives.'' I think those were certainly 
worthwhile comments to make, and certainly the comments of his fellow 
peers on the court I found to be compelling arguments on his behalf. 
However, I must say, having said all of that--I respect the fact they 
said it in our hearings--Judge Alito's long record as a Third Circuit 
judge, particularly in cases involving questions of individual rights, 
indicates a personal intent on stripping away many of these so-called 
Warren Court era achievements. In Reynolds v. Simms, for instance, 
Justice Warren wrote:

       The right to vote freely for the candidate of one's choice 
     is of the essence of a democratic society, and any 
     restrictions on that right strike at the heart of 
     representative government. And the right of suffrage can be 
     denied by a debasement or dilution of the weight of a 
     citizen's vote just as effectively as by wholly prohibiting 
     the free exercise of the franchise.

  Yet, in Jenkins v. Manning, Judge Alito was part of a decision to 
dismiss a suit brought by African-American voters who argued that the 
district's voting system diluted the voting strength of minorities. In 
that case, the dissenters argued that the decision failed to give 
effect to ``the broad sweep of the Voting Rights Act.''
  Judge Alito's long record of opinions and dissents in these, and 
other divided cases lead me to believe that he has a legal philosophy 
which lies outside the mainstream. Several newspapers and scholars 
provided support for this concern. One study conducted by University of 
Chicago Professor Cass Sunstein, found that when there was a conflict 
between institutions and individual rights, Judge Alito's dissenting 
opinions supported the institutional interest over individual rights 84 
percent of the time. Moreover, 91 percent of Alito's dissents take 
positions more conservative than his colleagues--including those 
appointed by Presidents Bush and Reagan.
  Judge Alito has set an incredibly high standard for individuals to 
meet when bringing a claim against the Government or a Corporation. He 
has repeatedly dissented in cases where the majority has ruled in favor 
of an individual alleging racial or gender discrimination. In Bray v. 
Marriott Hotels, for example, a housekeeper manager alleged that she 
was denied a promotion because she was black. While the Third Circuit 
Court of Appeals ruled that the plaintiff had established the essential 
elements of a case of race discrimination and therefore was entitled to 
go to trial by a jury, Judge Alito dissented. He argued for a 
heightened evidentiary burden in order to protect employers who, in the 
future, would have to choose between--and I quote--``competing 
candidates of roughly equal qualifications and the candidate who is not 
hired or promoted claims discrimination.'' The majority again 
criticized Alito's approach stating that ``Title VII would be 
eviscerated if our analysis were to halt where the dissent suggests.''
  I also fear that if confirmed, Judge Alito may pose a threat to the 
laws that protected disabled citizens from discrimination. In Nathanson 
v. Medical College of Pennsylvania the majority held that the 
plaintiff, a victim disabled by a terrible car accident, should be 
allowed to present, to the jury, evidence that the college had failed 
to make reasonable accommodation for her disability. Alito dissented, 
and again the majority reacted strongly to Alito's analysis: ``few if 
any Rehabilitation Act cases would survive summary judgment if such an 
analysis were applied to each handicapped individual's request for 
accommodations.''
  But, I am especially troubled about Judge Alito's dissent in the 
Third Circuit Case of Chittester v. Department of Community and 
Economic Development. That case involved an employee who was fired 
while taking sick leave and who sought to enforce his rights under the 
Family and Medical Leave Act, which became law in 1993. I was the 
original author of this law which has enabled more than 50 million 
workers to take leave for medical reasons or to care for a child or 
family member. A primary objective of the act is to ensure that both 
male and female workers have access to leave, and that they were not 
punished or discriminated against because of their family 
responsibilities. However, Judge Alito found that the law was not a 
valid exercise of Congressional power to enforce the Equal Protection 
Clause. He said:

       Unlike the Equal Protection Clause, which the Family 
     Medical Leave Act is said to enforce, the Family Medical 
     Leave Act does much more than require nondiscriminatory sick 
     leave practices; it creates a substantive entitlement to sick 
     leave.

  The decision reflects a proscriptively narrow conception of what 
``equal protection'' required. Real equality cannot be achieved, and 
the very real effects of discrimination cannot be remedied, without 
meaningful, substantive action. This is precisely why Congress enacted 
the Family and Medical Leave Act. The Supreme Court recognized this in 
Nevada Department of Human Resources v. Hibbs. In a 6-3 decision 
authored by Chief Justice Rehnquist, the Court held that contrary to 
what Judge Alito said in Chittester, a worker can sue a State employer 
who fired

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him for taking family leave to care for his sick wife. This finding is 
critical to ensure that workers and their families can continue to take 
leave without fearing for their job. This right might be jeopardized if 
Judge Alito is confirmed, as during the hearing Judge Alito continued 
to reject evidence of discrimination in personal sick leave even though 
there is compelling evidence in the legislative history of this law.
  In these cases, the very judges who talked about our nominee as being 
fair and not being an ideologue, in their majority opinions had very 
different things to say about their colleague on some very critical 
cases on which this Appellate Court Judge reached different opinions, 
such as I have cited here, as well as in several others that came 
before that circuit.
  I am also concerned about Judge Alito's ruling regarding the Family 
and Medical Leave Act, which I authored. The Family Medical Leave Act 
has provided meaningful relief to millions of Americans. Judge Alito 
would have made significant changes, if not eliminated the law 
altogether, a great setback, in my view. The Supreme Court strongly 
overruled his decision.
  Finally, I am troubled that the rights of privacy which are so deeply 
valued by Americans could be eroded by a Justice on the bench who does 
not appreciate the importance of these issues.
  I am alarmed by Judge Alito's unwillingness to explain his previous 
statements on the unitary executive theory of Presidential power. In a 
November 2000 speech to the Federalist Society, Judge Alito expressed 
strong support for the unitary executive theory calling it ``Gospel 
according to the Office of Legal Counsel'' referring to the position he 
held in the Reagan Justice Department. Proponents of this theory 
believe that the Constitution vests in the executive complete control 
over the administrative and regulatory branches. Judge Alito's failure 
to shed any light on his professed support for a powerful, unitary 
executive is troubling. In Hamdi v. Rumsfeld, Justice O'Connor 
acknowledged that the executive power must have reasonable limits, 
asserting that ``a state of war is not a blank check for the President 
when it comes to the rights of the Nation's citizens.'' Judge Alito 
refused to comment on O'Connor's statement, and instead remarked that 
``no person is above the law, and that includes the President.'' Unlike 
Chief Justice Roberts at his confirmation hearing, Judge Alito did not 
identify an affirmative obligation of the courts to block an executive 
action if the Executive acts unconstitutionally. Judge Alito' s answer 
fails to adequately explain in any substantial way, his views on 
limitations to executive power.
  This failure is of particular significance given the current 
political landscape. President Bush and his lawyers adopted an 
expansive interpretation in their view of executive power, particularly 
in relation to the War on Terror and the conflict in Iraq. In fact, 
President Bush has cited the ``unitary executive'' theory in several 
recent instances to override congressional provisions he finds 
objectionable. I am disturbed that the President has claimed, for 
himself, the authority to overrule the will of the Congress in passing 
its antitorture legislation--legislation which received the 
overwhelming support of congressional Members. This undermines the 
separation of powers and democratic principles. I am further troubled 
that in the course of the Judiciary Committee hearing, Judge Alito did 
not adequately distance himself from the current administration's 
belief that this theory provides justification for the NSA to engage in 
the warrantless wirewrapping of U.S. citizens in defiance of the 
Foreign Intelligence Surveillance Act, and for the detention of U.S. 
citizens accused of being enemy combatants.
  Defining permissible boundaries of Presidential power is among the 
most pressing of today's constitutional questions, and will almost 
inevitably arrive before the Supreme Court in the years to come. It is 
for this reason that Judge Alito' s inability to shed light on his past 
comments and his current beliefs is so significant. These failures call 
into question whether Judge Alito has sufficiently demonstrated that 
his jurisprudential philosophy allows for the degree of respect for 
democratic checks and balances, and the protection of individual rights 
and freedoms that the Constitution--and the public--demands.
  A Supreme Court Justice influences the most critical issues facing 
this and future generations of Americans. I believe that the Court may 
now be at a pivotal point in which the future direction of our law is 
at stake. Judge Alito, if confirmed, will take the seat of Justice 
Sandra Day O'Connor on the Supreme Court. While all Supreme Court 
Justices have the same unique obligation--to serve as the ultimate 
guardians of the Constitution, the rule of law, and the rights and 
liberties of every individual citizen--Justice O'Connor has long 
provided a voice of reason and open-mindedness as she has carried out 
this weighty responsibility. With a moderate temperament and judicial 
independence, Justice O'Connor has often supplied the deciding vote to 
protect fundamental American rights and freedoms. We cannot 
underestimate how much is at stake in filling this critical seat on the 
Court.

  When I spoke on this floor regarding the nomination of Chief Justice 
John Roberts, I stated that for those of us concerned about keeping 
America strong, free and just, his confirmation was no easy matter. 
However, I ultimately concluded that although he was a conservative 
nominee, Judge Roberts was within the mainstream of judicial thinking--
in his judicial philosophy, his respect for precedent and his belief 
that the Constitution cannot be read as a document frozen in time. 
While his responses to questions in the Judiciary Committee may not 
have been as open as I had hoped, I decided that there was sufficient 
evidence to believe that he would honor and protect the individual 
rights and freedoms enshrined in our Constitution as the majority of 
his record showed him to be a persuasive advocate for his clients 
rather than a radical judge out of the mainstream of judicial thought.
  I regret to say that, having reviewed his judicial record and his 
responses to the committee, I cannot be convinced that Judge Alito 
falls within the judicial mainstream. His evasiveness in the face of 
questioning by the committee, his established record on the bench of 
taking a restrictive view of individual rights, and his inability to 
explain his past comments on executive power all lead me to harbor 
significant concern. Determining whether to confirm a nominee to the 
Supreme Court is never an easy decision. Whether a nominee is 
sufficiently within the mainstream of judicial thinking is often a 
question of degree. While Judge Alito is clearly intellectually 
qualified and legally experienced, I am not convinced that Judge 
Alito's judicial philosophy will allow for the faithfulness to the 
constitutional rights and freedoms, and the protection of equality 
before the law we have come to expect from a Supreme Court Justice.
  After a review of Judge Alito's extensive record, his decisions as a 
judge on the Third Circuit, and his testimony before the Senate 
Judiciary Committee, I must oppose this nomination. I have concluded 
that Judge Alito's judicial temperament is out of step with our 
fundamental constitutional values and that his confirmation would not 
be in the best interests of the United States.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. DODD. So, Mr. President, for the reasons I have stated, I will 
oppose this nomination. I say this with regret because it will only be 
the fourth occasion in 25 years I will have voted against a nominee for 
the Supreme Court. I will do so tomorrow at 11 a.m.

  I deeply regret that I didn't have the opportunity to engage in a 
fuller discussion. It is somewhat disturbing, that I was only allocated 
20 minutes. Because of the constraints on time, this is all this 
Senator can say about a lifetime appointment to a coequal branch of 
Government, a nominee that will have a huge impact on the course of 
America in the 21st century.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized for up 
to 1 hour.
  Mr. INHOFE. Mr. President, I say to my good friend from Connecticut, 
I was surprised to find out he was not a member of the conservative 
caucus. Now I know. But I would agree with him insofar as the 
significance of the confirmation vote that will take place

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tomorrow. There is nothing more solemn, nothing more significant that 
we have to deal with than confirming judges, whether they are nominated 
by Democrats or by Republicans.
  However, I respectfully disagree with the Senator from Connecticut. I 
look forward to voting for the successful confirmation of Judge Alito. 
I have had a chance to talk about him. I believe he will be a strict 
constructionist and will do a good job for the United States, 
specifically for my 20 kids and grandkids.

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