[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.
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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
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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.
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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
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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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