[Congressional Record Volume 152, Number 9 (Tuesday, January 31, 2006)]
[Senate]
[Pages S334-S340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF SAMUEL A. ALITO, JR., TO BE AN ASSOCIATE JUSTICE OF THE 
                   SUPREME COURT OF THE UNITED STATES

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and resume consideration of 
Calendar No. 490, which the clerk will report.
  The legislative clerk read the nomination of Samuel A. Alito, Jr., of 
New Jersey, to be an Associate Justice of the Supreme Court of the 
United States.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 10:20 a.m. shall be equally divided.
  The Senator from Illinois is recognized.
  Mr. DURBIN. Mr. President, will the Chair clarify before the time 
begins how much time we have now to debate?
  The ACTING PRESIDENT pro tempore. Right now the minority side has 12 
minutes, 30 seconds.
  Mr. DURBIN. I thank the Chair. If he will be kind enough to notify me 
when I have reached 6 minutes.
  The ACTING PRESIDENT pro tempore. Certainly.
  Mr. DURBIN. I ask unanimous consent that Senator Schumer be 
recognized to follow me for the remaining period of time allotted to 
the Democratic side.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, after voting on war, a vote on a Supreme 
Court nominee is the most important vote a U.S. Senator can cast. The 
selection of a Justice to the Supreme Court of the United States is one 
of those moments when 100 Senators speak for the rights, the hopes, and 
the dreams of 300 million Americans. Soon this Senate will vote on a 
lifetime appointment to the Supreme Court for Judge Samuel Alito. Judge 
Alito is likely to receive more ``no'' votes than any confirmed Supreme 
Court Justice in the history of the United States, other than Clarence 
Thomas. Why?
  Two reasons: The first is Sam Alito's legal career which separates 
him from the legal mainstream in America. The second is the judge whom 
Judge Alito would replace. This is no ordinary vacancy. This is the 
Sandra Day O'Connor vacancy on the Supreme Court. In case after case 
during her career, Sandra Day O'Connor has cast the fifth and decisive 
vote. Her votes helped preserve the constitutional rights that many of 
us cherish: workers' rights, disability rights, the right to privacy, 
the separation of church and state, and the principle that in a 
democracy no man or woman is above the law.
  As we prepare to vote for Justice O'Connor's successor, I am reminded 
of the words of Justice Harry Blackmun. Like Justice O'Connor, Justice 
Blackmun was a lifelong Republican. He was chosen to write the majority 
opinion in Roe v. Wade. In his dissent in a 1989 case that narrowed the 
protections of Roe v. Wade, Justice Blackmun wrote:

       For today, the women of this Nation still retain the 
     liberty to control their destinies. But the signs are evident 
     and very ominous, and a chill wind blows.

  I may be wrong about Judge Alito. If I am, no one will be more 
pleased. But I fear on this January morning in the Senate Chamber, a 
chill wind blows, a chill wind which will snuff out the dying light of 
Sandra Day O'Connor's Supreme Court legacy.
  When you read his record as a Justice Department lawyer and a Federal 
judge, it seems unlikely that Justice Alito will preserve Justice 
O'Connor's respected record of measure and moderation. In case after 
case during his 15 years on the bench, Judge Alito has consistently 
sided with powerful special interests, big business, and the heavy hand 
of government against the individual. In many of these cases, Judge 
Alito was the lone voice. More than any of the 29 judges with whom he 
served, Sam Alito stood alone. Rarely did he stand on the side of the 
poor, the powerless, and the dispossessed.

  Over the past several weeks during our hearings, we looked closely at 
the decisions he rendered. We heard about a case in which Sam Alito 
wrote a dissent denying a fair trial to an African-American defendant 
who was forced to stand trial for murder before an all-White jury. We 
heard about the case in which Judge Alito was the only judge on his 
court to rule that the Constitution authorized a strip-search of a 10-
year-old girl not listed in the search warrant. We heard about a case 
in which Judge Alito was the only judge on his court to vote to dismiss 
the case of a mentally retarded man who was the victim of a brutal 
sexual assault in his workplace. He voted to dismiss this man's case 
because his lawyer wrote a poor legal brief.
  Judge Alito has consistently ruled against those whose lives have 
been touched by the crushing hand of fate. As an ambitious young lawyer 
seeking a job with the Reagan administration, Judge Alito wrote flatly:

       The Constitution does not protect a right to an abortion.

  As a judge, he voted to uphold a controversial restriction on 
reproductive freedom, a position later rejected by the Supreme Court 
and Justice O'Connor.
  When I asked Judge Alito at his hearing, is Roe v. Wade settled law 
in America, he did the Federalist Society shuffle, dancing away from 
admitting what he really believes. In all his words, never once would 
he say what John Roberts said, that Roe v. Wade is settled precedent.
  With Sam Alito's nomination, when it comes to privacy rights and 
personal freedom, a chill wind blows for America.
  In the area of Executive power, I fear that Judge Alito will do the 
most damage to our constitutional rights and civil liberties. His 
history tells us he will be more likely to defer to the President's 
power than to defend fundamental rights. Judge Alito is a disciple of a 
controversial theory that gives Presidents extremely broad powers. The 
so-called unitary executive theory has been cited by the administration 
in more than 100 bill signings.
  What it basically says, according to some of its proponents, is that 
a President can ignore the laws he doesn't care to follow. I fear that 
Judge Alito will be an easy ally for this President or any President 
who seizes more power than the Constitution ever envisioned.
  Last Friday I was walking through O'Hare Airport. A woman in an 
airline employee uniform came by and said hello as she passed. Then she 
came back to me.
  She stopped me and she said: Senator, isn't this Alito thing really 
about holding a President back from doing things he should not be 
allowed to do? Isn't this really about checks and balances? It was a 
wonderful moment, a moment when a person who is busy with their life 
and family paused to think about the values that make America so 
unique.
  There are some who will cheer the elevation of Judge Alito to the 
Supreme Court.
  Yesterday, the New York Times ran a story with the headline, ``In 
Alito, G.O.P. Reaps Harvest Planted in '82.'' The article lifted the 
veil behind the Alito nomination. It revealed that

[[Page S335]]

Judge Alito is among a small group of lawyers who have been precleared 
by the ultraconservative Federalist Society.
  We all remember the fury on the far right when President Bush first 
nominated Harriet Miers for this opening. Ms. Miers was not one of 
their chosen few, so they hounded her until the President withdrew her 
name from consideration.
  But the far right is rejoicing with the name of Sam Alito. For the 
vast majority of Americans, there is no rejoicing. When we look to the 
Supreme Court as the last refuge for our rights and liberties, Sam 
Alito is no cause for celebration; he is a cause for great concern.
  On this January morning, a chill wind blows.
  Mr. President, I yield the floor.
  Mr. SCHUMER. Mr. President, how much time remains before I begin?
  The ACTING PRESIDENT pro tempore. There is 5 minutes 15 seconds 
remaining.
  Mr. SCHUMER. Would it be possible to ask unanimous consent for an 
additional 2 minutes? I also ask unanimous consent that an additional 2 
minutes be given to the other side.
  The ACTING PRESIDENT pro tempore. Is there an objection?
  Mr. SESSIONS. Mr. President, I thought the leaders agreed not to ask 
for additional time. Otherwise, I would not have an objection. I don't 
know what Senators Reid and Frist said. They have the time set for an 
11 o'clock vote. So I am inclined to object unless----
  The ACTING PRESIDENT pro tempore. There is objection. The Senator 
from Illinois is recognized.
  Mr. DURBIN. I renew the request. At the risk of being smitten, I 
think we can afford 4 more minutes on a Supreme Court nominee.
  Mr. SESSIONS. I will not object.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, in a few minutes, we will vote on the 
nomination of Judge Samuel Alito to the Supreme Court. In a few hours, 
we will hear the President tell us about his view of the state of the 
Union. Without doubt, Judge Alito today has the votes to win 
confirmation. Without doubt, the President tonight will boast of his 
nominee's victory in this vote. But I must say that I wish the 
President were in a position to do more than claim partisan victory 
tonight. The Union would be better and stronger and more unified if we 
were confirming a different nominee--a nominee who would have united us 
more than divided us. Had he chosen such a person, the President could 
have taken the lectern this evening and rightfully claimed the mantle 
of leadership in the United States of America. Instead, this is not a 
day of triumph for anybody except the conservative minority who caused 
the President to capitulate to their demands when Harriet Miers was not 
to their liking. There will be more votes against this nominee than on 
any since Clarence Thomas, who was hardly a unifying figure.
  Tonight, when the President announces, to applause, the fact of Judge 
Alito's confirmation, what he should really hear, because of the 
partisan nature of his choice, is the sound of one hand clapping. While 
some may rejoice at Judge Alito's success, millions of Americans will 
come to know that the lasting legacy of this day will be ever more 
power for the President and less autonomy for the individual.
  While some may exalt at the packing of the Court with yet another 
reliable, extreme voice in the mold of Scalia and Thomas, millions of 
Americans will be at risk of losing their day in court when they suffer 
the yoke of discrimination. Some may celebrate the elevation of a Judge 
Alito to the Supreme Court, but millions of Americans will suffer the 
consequences of a jurisprudence that would strip Congress of the power 
to make their lives better in countless ways.
  Why, then, with so many Americans at risk, so many rights at 
jeopardy, will Judge Alito win confirmation? What does his confirmation 
mean for the future of the Supreme Court? I have been thinking about 
this long and hard. It is an important question, and I don't have an 
easy answer, but I believe several things are clear.

  For one thing, even though Judge Alito has demonstrated a record of 
being well out of the mainstream on a host of issues, my friends from 
across the aisle dutifully march in rigid lockstep when the President 
nominates one of their choosing but oppose those who do not share their 
values and visions. Republican Senators should be aghast at Judge 
Alito's endorsement of vast Executive power, and they should be alarmed 
at his rejection of a woman's right to choose.
  The hill will be steeper when a nominee evades, as Judge Alito did, 
answering questions about his core judicial beliefs. All evidence 
points to the fact that he will still hold his constitutional view that 
the right to choose is not protected in the Constitution, that he will 
still believe the Federal Government doesn't have the power to regulate 
machine guns, and the evidence supported the conclusion that he will 
turn back the clock on civil rights. But he was clever enough not to 
say so directly. So that, too, has been a factor.
  In the end, there is one more thing at work here. The American people 
have grown accustomed to the umbrella of protection they have under the 
Constitution. They are loathe to believe that those rights could, with 
one nominee, evaporate into thin air. Who can believe it? Who wants to 
believe it? Even though no nominee since Robert Bork has such a clear 
record of being opposed to so many things the American people hold 
dear, the public doesn't want to believe that Judge Alito will remove 
those protections, even when the record is clear. Who wants to believe 
that after 40 years, a single nominee to the Supreme Court could 
eviscerate title VII? Yet that is just what his colleagues on the Third 
Circuit accused him of attempting to do. Who wants to believe that a 
single nominee, one so seemingly soft-spoken and erudite, would, with 
the stroke of a pen, take average Americans' rights away and not give 
them their day in court?
  People naturally don't want to believe the worst. Perhaps people 
think of Earl Warren and David Souter, who defied their President and 
did not stroke as hard a line as their benefactors might have hoped. 
But I say to the American people, the days of Warren and Souter are 
over. The days of stealth nominees whose views may not match the 
President are over. That is clear when a small minority pushed the 
President to withdraw Harriet Miers.
  In the coming months and years, we will be watching the Court. We 
will be watching the votes. We will be watching our two newest 
Justices. And make no mistake, we will make sure the American people 
understand the implication of these votes today. Elections do have 
consequences. But votes such as these also have consequences on future 
elections, and I believe that when the American people see the actual 
Court decisions which are rendered by the new Court, they will have a 
strong and countervailing reaction.
  Again, I wish President Bush could tonight claim to lead a united 
country, but with this nominee and with this vote, sadly, he cannot.
  I yield the remainder of my time to the Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator.
  Indeed, it has been most distressing to me to see this nominee, the 
epitome of a restrained, principled and highly respected judge, be 
portrayed as some sort of extremist. It is beyond my comprehension, 
frankly. Questions have been raised about different cases. Alito 
answered each and every one of those questions in front of the 
Judiciary committee. Senator Schumer and I serve on the committee. He 
was asked about them repeatedly. He was asked 677 questions, and he 
answered a higher percentage of them than perhaps any judge in 
history--97.3 percent. A Clinton appointee, Justice Ginsburg, for 
example, was only asked 384 questions, and she only answered 80 percent 
of them. Justice Breyer, another Clinton appointee, was asked 355 
questions, and he answered 82 percent.
  So Judge Alito was most forthcoming. He was asked more questions and 
grilled and grilled, and he answered them with skill, fairness, and 
reasonableness. He was unflappable in his testimony and so judicious in 
his approach to every question. It was a tour de force, a real model of 
how a judge should perform. I could not be

[[Page S336]]

more proud of him and more proud of President Bush for nominating him.
  They say this nomination divides the country. Whom does it divide? It 
divides the hard left, who wants the Court to eliminate all expression 
of religion from public life. We see the words ``In God We Trust'' 
above the door in this Chamber. We had a chaplain open this Senate with 
prayer. Are we going to have the Supreme Court come in and strike those 
things down? People are very confused about those issues today. We have 
people who want to get rid of religion from the public square. They 
know they cannot achieve this by votes, so they want a judge to do 
these things. They are not happy with the U.S. Constitution. They want 
a judge to quote foreign law to reinterpret the words in our statutes 
and in our Constitution. That is not what the rule of law in America is 
about.

  We have had a lot of extreme cases redefining the meaning of 
marriage. States have defined marriage since the founding of the 
Republic. Now all of a sudden we have lifetime-appointed, unelected 
judges discussing, and some court finding, that the legislature's 
definition of marriage--people who are responsible to the people, the 
legislative branch--is not correct. So the judges are now going to 
reinterpret that definition and make it say what they want it to say. 
They are going to take people's private property, not for public use, 
as the Constitution says. Now the court says we can take even poor 
people's homes so that someone can build a private shopping center. 
That is not what the Constitution says.
  I know of judges who thought it would be better policy if the 
Constitution said what they want it to, so they just made it say that. 
But that is not a principled approach to the law; it is not the 
American approach to law. President Bush said we don't need that kind 
of judge. We want judges who are faithful and principled to the rule of 
law. They say Judge Alito is extreme. That is not so. It is an 
incredibly false charge.
  What about the American Bar Association? Those of us on the 
Republican side have been somewhat critical of them over the years. The 
ABA is pretty liberal in all of the resolutions it passes. Sometimes it 
is very liberal. We felt that liberal persuasion infected their 
evaluation of judicial nominees. But they still evaluate nominees in a 
very careful way.
  The American Bar Association reported to our committee, after 
surveying 2,000 people, personally interviewing 300, having teams of 
scholars read all of the writings Judge Alito ever wrote or 
participated in, and then they voted among themselves. They talked to 
lawyers who litigated against Judge Alito when he was in practice and 
judges who served with him and litigants who appeared before him, 
people who have known him, judges who served with him, and 300 were 
interviewed in depth. This committee of the American Bar Association--
15 of them from all over the country--reviewed all of that. Many of 
them participated directly in the interviews. Sometimes, people will 
tell the ABA things they may not tell the newspaper, things that are 
bad about somebody. They came back with a unanimous conclusion that 
Judge Alito was entitled to the highest possible rating. The American 
Bar Association, after a most intensive review, has given him the 
highest possible rating. Would they have done that if they thought he 
was an extremist? Would they have done that if they thought some of 
these cases we have heard about were wrongly decided or extreme in any 
way? No, they would not. So did his colleagues on the bench. One of the 
most extraordinary panels of witnesses I have ever seen involved judges 
who served with him on the Third Circuit, not a rightwing circuit. The 
Third Circuit, if anything, is considered a moderate to liberal 
circuit. It is in the Northwest, and Philadelphia is the seat of the 
Third Circuit. New Jersey is also in that circuit. Judge Alito served 
on that bench for 15 years.

  People have suggested that somehow he is a tool of President Bush. He 
had a lifetime appointment on the Federal bench in the Third Circuit 
and has served for 15 years. He has not been a part of any of this 
terrorism stuff we have heard about or any of these rulings involving 
the Administration. He hasn't been a part of it at all. He comes to it 
with all his skills and intelligence as an honored graduate at 
Princeton and Yale, where he served on the Yale Law Review. He will 
bring his insight into these cases, which is exactly what we want--an 
unbiased umpire to deal with the issues.
  Mr. Stephen Tober and others explained how one gets a unanimous ABA 
rating. The American Bar Association panel repeatedly gave him high 
marks. They said Judge Alito ``has . . . established a record of both 
proper judicial conduct and evenhanded application in seeking to do 
what is fundamentally fair.''
  One of the three members of the ABA who testified was a civil rights 
attorney, an African American who represented the University of 
Michigan in that famous affirmative action quota case. He said this 
about Alito. He said that all the people they contacted concluded that 
Judge Alito was held in ``incredibly high regard.''
  The ABA witnesses said they were unaware of anyone who has claimed 
that Alito intentionally did anything wrong with regards to the 
Vanguard matter that has been raised repeatedly and I guess dropped now 
since we haven't heard that much about it.
  We now hear this interesting argument that we needed Harriet Miers. 
They are now harkening back to Harriet Miers nomination, claiming the 
Republicans are at fault for her withdrawal. Not one Republican Senator 
I am aware of ever said Harriet Miers should not be voted on or said 
they would vote against Harriet Miers. Some raised questions about her 
experience, as did Senator Schumer, who raised the issue a few moments 
ago. When Harriet Miers was being considered, Senator Schumer said:

       I think there are three places where Harriet Miers yet 
     hasn't sort of met the burden of proof. The first is 
     qualifications, the second is independence, and the third, 
     most importantly, we have to know her judicial philosophy.

  So Senator Schumer, who is now asking that we have Harriet Miers, was 
raising serious questions about her a few weeks ago.
  She withdrew. She withdrew because she was sitting at the right hand 
of the President during so many of these matters involving the war on 
terrorism. The other side had already made clear they were going to 
demand her personal conversations, her personal documents, her 
communications with the President, which are legal documents protected 
by client-attorney privilege. She realized it was going to be a matter 
that would probably not be acceptable to the Members of the Senate. It 
would be an uncomfortable process for her, and she withdrew.
  Mr. President, what is the remainder of the time on this side?
  The ACTING PRESIDENT pro tempore. The Senator has 5 minutes 
remaining.
  Mr. SESSIONS. Mr. President, the case we have heard the most about is 
Doe v. Groody. The allegation has been made time and again that Judge 
Alito ordered the strip search of a 10-year-old girl.
  I was a prosecutor for nearly 15 years. I read the case. I was at the 
Judiciary Committee and heard Alito testify. I would like to share some 
thoughts about that case. The reason I would like to talk about it is 
because I would like for everyone who is hearing me talk to understand 
that this is a typical example of distortion and misrepresentations of 
the actions of Judge Alito. It is so wrong and so biased and so unfair 
that it ought to embarrass those who made the charges against him. He 
clearly did the right thing, in my opinion and it has been 
misrepresented. It is symbolic of what has been said about other cases 
that I don't have time to talk about at this late date.
  In Doe v. Groody, police officers were investigating a drug-dealing 
group at a certain house. They went to the judge and presented an 
affidavit to search that house and all persons on the premises. They 
presented adequate probable cause to believe that a drug-dealing 
operation was going on in the house, and the judge agreed.
  There was a form for a search warrant and that said John Doe was to 
be searched. In this case, the judge directly incorporated an affidavit 
attached to the warrant for purposes of probable cause. The affidavit 
is where officers asserted probable cause to search all persons on the 
premises. This was a magistrate in a State court

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years before Judge Alito ever knew the case existed. He was sitting on 
the Federal appellate bench at the time.
  So officers go out and do a search, and a female police officer takes 
the mother, along with the 10-year-old child, into the bathroom. She 
asks them to pull down their trousers and lift up their shirts so that 
she could detect whether there were any hidden drugs or weapons. They 
did not take off their undergarments, nor was there any intrusive 
touching. The female officer saw no drugs hidden on the mother or the 
girl, and that was the end of that until sometime later when the police 
officers were sued personally for money damages.
  When it came before Judge Alito, he concluded that the affidavit had 
been made a part of the warrant that asked for the privilege of 
searching people on the premises, which gave the police officers at 
least a reasonable basis to believe they had the authority to do so. 
They got a warrant. They asked for this privilege. They thought, by 
attaching the affidavit to the warrant that they had the power to 
search everyone on the premises. I don't know what the right answer is 
legally, but I do agree with Judge Alito that the police officer could 
reasonably have felt that they were operating under the law, and should 
not be personally liable for money damages to some dope dealer.

  American police officers need to pay attention to this matter if this 
is what my colleagues think is bad law. They get sued enough trying to 
do their duty.
  One of the more fabulous panels we ever had, I thought, were 
colleagues on the bench who served with Judge Alito. Judge Edward 
Becker has been on the bench for 25 years, the full time that Judge 
Alito has been on that bench. One of the more respected appellate 
judges in America said these things about Judge Alito. This is a man 
they are accusing of being some radical, some extremist. This is what 
Judge Becker, who has been on the Federal bench for 25 years, said: Sam 
Alito ``is gentle, considerate, unfailingly polite, decent, kind, 
patient, and generous. I have never once heard Sam raise his voice, 
express anger or sarcasm or even try to proselytise. He expresses his 
views in measured and tempered ways.''
  On integrity, Judge Becker says:

       Judge Alito is the soul of honor. I have never seen a chink 
     in the honor of his integrity which I view as total.

  On intellect:

       He is brilliant, he is analytical and meticulous and 
     careful in his comments and his written word.

  The ACTING PRESIDENT pro tempore. The Senator's time has expired.
  Mr. SESSIONS. Mr. President, I conclude with these words:

       He is not doctrinaire, but rather open to differing views 
     and will often change his mind in light of the views of a 
     colleague.

  This is the man who has been nominated and who is entitled to 
confirmation by the Senate. I thank the President and yield the floor.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
from 10:24 a.m. to 10:34 a.m. shall be under the control of the Senator 
from Vermont.
  Mr. LEAHY. Mr. President, I yield to the distinguished Senator from 
Delaware.
  The ACTING PRESIDENT pro tempore. The Senator from Delaware.
  Mr. BIDEN. Mr. President, I will vote no on the nomination of Judge 
Alito to the Supreme Court for three reasons: first, his expansive view 
of Executive power; second, his narrow view of the role of the 
Congress; and third, his grudging reading of antidiscrimination law 
reflecting a lack of understanding of congressional intent and the 
nature of discrimination in the 21st century.
  First, Judge Alito's expansive view of Presidential power.
  In November 2000, Judge Alito said that ``the unitary executive 
theory . . . best captures the meaning of the Constitution's text and 
structure.''
  Justice Thomas in his Hamdi dissent lays out his views on the power 
of an unchecked unitary executive to wage war and exercise foreign 
policy.
  Although Judge Alito said his interpretation of the unitary executive 
was much narrower and that he couldn't recall Justice Thomas using that 
term, I find Judge Alito's explanation not at all convincing.
  I understand the term ``unitary executive'' in the manner in which 
John Yoo--the administration's legal architect--conceives of executive 
power.
  I asked Judge Alito whether he agreed with Professor Yoo's reasoning 
that would allow the President under his absolute power--even in the 
absence of an emergency or imminent threat--to invade another country, 
to invade Iran tomorrow, no matter what Congress says.
  Judge Alito declined to answer this basic, fundamental question.
  Traditionally ``conservative'' Justices, such as Robert Jackson, 
strongly believed in the wisdom of checks and balances.
  Judge Alito was asked repeatedly at the hearing about Justice 
Jackson's famous concurring opinion in the 1952 steel seizure case. 
During the Korean War, President Truman attempted to nationalize the 
steel mills in order to avoid a labor work stoppage that would have had 
negative effects on the war effort. A 6 to 3 Supreme Court ruled 
against President Truman.

  Justice Jackson put it this way about what was at stake:

       [N]o doctrine that the Court could promulgate would seem to 
     me more sinister and alarming than that a President whose 
     conduct of foreign affairs is so largely uncontrolled, and 
     often even is unknown, can vastly enlarge his mastery over 
     the internal affairs of the country by his own commitment of 
     the Nation's armed forces to some foreign venture. . . . That 
     military powers of the Commander in Chief were not to 
     supersede representative government of internal affairs seems 
     obvious from the Constitution and from elementary American 
     history.

  Justice Jackson also laid out a three-part framework for how to view 
subsequent cases in which the President is arguing he's doing something 
under his Commander in Chief authority--a framework the Rehnquist Court 
embraced as ``analytically useful'' in the 1981 case of Dames & Moore 
v. Regan. First, is the instance in which ``the President acts pursuant 
to an express or implied'' authorization of Congress. Second, ``when 
the President acts in absence of either a congressional grant or denial 
of authority.'' And third, when the President takes ``measures 
incompatible with the expressed or implied will of Congress.''
  Judge Alito showed remarkably little appreciation and understanding 
of this framework, at one point confusing prong two and prong three of 
Justice Jackson's framework. Judge Alito's record and his answers at 
the hearing raise great concern that both individual freedoms and the 
separation of powers are in jeopardy.
  In 1984, Judge Alito wrote that he did not ``question the authority 
that the Attorney General should have absolute immunity'' in cases 
involving wiretaps. This again signifies a willingness by Judge Alito 
to give the President and his officers dangerously expansive powers.
  At his hearings, Judge Alito tried to distance himself from his 
previous statement, claiming he was only doing the bidding of his 
clients. But at the same time, he refused to definitively say that he 
did not personally believe his previous assertion.
  It is also useful to note that we are currently in midst of a 
potentially endless war. The war on terror is almost 5 years old; and, 
unfortunately, shows no signs of abating. Will these expansive 
Presidential powers become a permanent fixture? What kind of powers do 
we want our President to have in dealing with a war that may go on for 
decades? Should our courts have no role?
  In 1986, Alito drafted a proposal to make full use of presidential 
signing statements in order to ``increase the power of the Executive to 
shape the law.'' It was yet another way to increase the power of the 
executive at the expense of the other branches.
  Senator Leahy asked Judge Alito at the hearing, ``wouldn't it be 
constitutional for the Congress to outlaw Americans from using 
torture?'' This is exactly what the Senate attempted to do in voting 
overwhelmingly on a bipartisan basis to support the so-called McCain 
anti-torture amendment.
  But when this legislation was signed into law by President Bush on 
December 30, 2005, he issued a ``Presidential signing statement'' 
stating basically that no matter what me legislation says on its face, 
he could still order torture in certain circumstances. Specifically, 
the statement read that the ``executive branch shall construe this 
[prohibition] in a manner consistent

[[Page S338]]

with the constitutional authority of the President to supervise the 
unitary executive branch. . . .''
  That is what is at stake with ``Presidential signing statements.'' As 
my colleague Senator Leahy has pointed out, President Bush has cited 
the unitary executive 103 times in these ``Presidential signing 
statements.''
  Judge Alito, at this hearing, responded to Senator Leahy's question 
about whether Congress could outlaw torture this way:

       Well, Senator, I think the important points are that the 
     President has to follow the Constitution and the laws. . . . 
     But, as to specific issues that might come up, I really need 
     to know the specifics.

  To me this is a dangerous nonanswer and one that is entirely 
consistent with President Bush's use of a signing statement to override 
Congress's outlawing of torture. The implications are very troubling.
  Judge Alito's view of the Executive is what worries me most. He 
referred to Justice Jackson in the Steel Seizure case many times. But I 
want to read one, short quote by Justice Jackson.
  Justice Jackson said in 1952:

       With all its defects, delays and inconveniences, men have 
     discovered no technique for long preserving free government 
     except that the Executive be under the law, and that the law 
     be made by parliamentary deliberations. Such limitations may 
     be destined to pass away. But it is the duty of the Court to 
     the last, not first, to give them up.

  I believe they'll be destined to pass away with this Justice.
  To allow the President--whether this one or any future one--to be 
unconstrained in his or her powers; to be able to pick and choose which 
laws he or she wants to follow, is unacceptable. The Supreme Court was 
intended by our Founders to serve as a bulwark against executive 
overreaching. Any nominee to the Court who doesn't agree is a nominee 
who should not be confirmed.
  Second, Judge Alito has a very narrow view of congressional power.
  Judge Alito will very likely join with the present members of the 
Court who have struck down three dozen federal laws in less than 20 
years--laws which said, for example, you can't have guns within 1,000 
feet of an elementary school; laws requiring a 5-day background check 
for a handgun purchase; laws battling violence against women; laws 
requiring the clean-up of low level nuclear waste; laws designed to 
ensure freedom of religion; laws saying states can't steal somebody's 
ideas and inventions.
  This recent level of ``conservative'' judicial activism is more than 
six times the rate over the history of our Republic. Over the first 
seven decades of the Court's existence, in comparison, only two federal 
laws were held unconstitutional.
  On his 1985 job application, Judge Alito wrote, ``I believe very 
strongly in . . . federalism''--the principle that has been used by 
this activist court to knock down Federal law after Federal law.
  In an October 27, 1986, draft letter on behalf of Assistant Attorney 
General for Legislative Affairs, John Bolton, Alito urged President 
Reagan to veto the ``Truth in Mileage Act.'' Alito drafted these words 
for President Reagan:

       My Administration believes that the Constitution intended 
     to establish a limited Federal government, one that would not 
     interfere with the vast array of activities that have been in 
     the states' traditional concern. Over time, Congress has 
     taken steps to eviscerate that constitutional scheme by 
     legislating in numerous areas that should be governed by 
     State law.

  Judge Alito continued his federalist activism on the bench. As a 
judge, he has fully embraced--and even aggressively sought to broaden--
the Supreme Court's federalism opinions, most centrally in his sole 
dissenting opinion in the Rybar case.
  In that case, Judge Alito called federalism ``vital'' and said that 
``even today, the normative case for federalism remains strong.'' The 
majority of his colleagues in that case sharply criticized Judge 
Alito's opinion:

       While the dissent writes in the name of `constitutional 
     federalism' it recognizes that even Lopez abjures such a 
     requirement . . . but overlooks that making such a demand of 
     Congress or the Executive runs counter to the deference that 
     the judiciary owes to its two coordinate branches of 
     government, a basic tenet of the constitutional separation of 
     powers. Nothing in Lopez requires either Congress or the 
     Executive to play Show and Tell with the Federal courts at 
     the peril of invalidation of a Congressional statute.

  At his hearings, Judge Alito did nothing to allay concerns that he 
would continue to push this activist federalism agenda if confirmed to 
the Supreme Court. For example, he refused to recognize the well-
settled nature of some of the Court's bedrock Commerce Clause 
precedents. And as a Supreme Court Justice, he would no longer be bound 
to follow these precedents.
  When asked about these issues by Chairman Specter and others, Judge 
Alito provided answers that reinforced my view that he has a very low 
regard for Congress's power to legislate. When Chairman Specter asked 
Judge Alito whether he would ``overturn [] congressional acts because 
of [Congress's] method of reasoning,'' Judge Alito gave the following 
answer:

       I think that Congress's ability to reason is fully equal to 
     that of the judiciary.

  On its face, that may sound like a good answer; but it's not. Under 
the rational basis test--a cornerstone of constitutional law--the 
Supreme Court has greatly deferred to Congress's judgment and reasoning 
ability.
  Under the rational basis test, the Supreme Court has historically and 
rightfully deferred to Congress's reasoning as to why it did what it 
did--after all, this is the branch that can hold hearings; the branch 
that can call witnesses; and the branch that can build a record . . . 
all things the Court can't do. Judge Alito's answer seems to question 
this bedrock principle.

  What does this mean? What is at stake here? Does Judge Alito agree 
with those on the intellectual right who are attempting to reverse a 
healthy consensus going back to the days of the Great Depression that 
our government can act as a shield to protect Americans from the abuse 
of powerful interests?
  Michael Greve of the American Enterprise Institute puts it straight 
forwardly:

       I think what is really needed here is a fundamental 
     intellectual assault on the entire New Deal edifice. We want 
     to withdraw judicial support for the entire modern welfare 
     state.

  What is at stake if this view gains ascendancy in our Supreme Court?
  If the Court is allowed to second-guess congressional judgment, a 
broad range of vital Federal legislation could potentially hang in the 
balance.
  Can we protect the air we breathe? Can we keep arsenic out of our 
drinking water? Can we keep tobacco companies from targeting our kids? 
Can we establish minimum national standards to provide equal 
opportunity and human dignity for society's most vulnerable members--
our elderly, our disabled, women victimized by violence? That is all at 
stake.
  Listen to the debates going on behind these constitutional issues. 
It's about devolution of government. It is about stripping--as a matter 
of law--the right of the Federal Government to do much of anything 
other than provide the national defense.
  Justice Thomas has voted to strike down over 65 percent of the 
Federal laws that have been challenged before the Supreme Court. 
Justice Thomas wrote in one of his opinions recently, ``If anything, 
the wrong turn was the Court's dramatic departure in the 1930s.'' What 
most view as a ``healthy consensus,'' Judge Thomas and others call ``a 
wrong turn.''
  What is at risk if this view of the Constitution ever gained full 
ascendancy? The Clean Air Act, the Safe Drinking Water Act, the Clean 
Water Act, and the Endangered Species Act, all rely on the Congress's 
commerce clause power.
  The intellectual right is also determined to elevate private property 
at the expense of protecting our safety, well-being, and communities. 
Under their reading of the appropriate language in the Constitution--
the takings clause of the fifth amendment--the only way to keep a 
chemical plant out of your neighborhood would be to compensate the 
chemical plant to not build because you are taking their property.
  Our bedrock civil rights laws are also based on post-1937 
constitutional interpretations.
  There also could be no Federal minimum wage and no maximum hour laws. 
We wouldn't be having a debate about increasing the minimum wage 
because there wouldn't be one.
  The consequence of this judicial philosophy is to shift power to the 
already

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powerful and eliminate the ability of the less powerful to use the 
democratic branches of government to rebalance the playing field.
  And the intellectual right understands that in order to shift power, 
you need to focus on the courts. In 1988, a Reagan Justice Department 
document stated:

       There are few factors that are more critical to determining 
     the course of the nation and yet are more often overlooked 
     than the values and philosophies of the men and women who 
     populate the third co-equal branch of the government, the 
     federal judiciary.

  Obviously, every judge could impact the course of the Nation; but 
most important are the nine Justices on the United States Supreme 
Court.
  And that is why Judge Alito was selected to our highest Court, a 
consequence of which will be to threaten Congress's power to protect 
the American people.
  Third, Judge Alito lacks an understanding as to how prejudice plays 
out in the real world and has a very restrictive view of the 
antidiscrimination legislation Congress has passed.
  Earlier this month, I was thinking about my vote as I was preparing 
to speak before a Martin Luther King, Jr., event. And I reread his 
letter from the Birmingham jail.
  Everybody was telling him, ``We won. Give it up. Give it up.'' And 
here is what he wrote, laying out a standard by which to measure 
ourselves.
  Dr. King wrote:

       When you are harried by day and haunted by night by the 
     fact you are Negro, living constantly at tiptoe stance, never 
     quite knowing what to expect next, and are plagued with inner 
     fears and outer resentments; when you [are] forever fighting 
     a degenerating sense of `nobodiness,' then you will 
     understand why we find it difficult to wait.

  We shouldn't wait. We should own up to the fact that prejudice is 
still around and has evolved. It's not the prejudice of the '60s when 
they would say, ``we don't want any blacks here,'' or more descriptive 
terms.
  Now it's more subtle. They say, ``we're not sure you'd fit in.'' New 
words, for old sins.
  All public officials, including judges, must understand prejudice 
still lurks in the shadows. Judge Alito's record demonstrates that he 
does not look into the shadows.
  There is no question Judge Alito has ruled a number of times for the 
little guy, women, and minorities, but it's mostly in cases where the 
outcome was clear. When it was a close call, time and again Judge Alito 
ended up almost inevitably on the other side, many times dissenting 
from every one of his colleagues looking at the case.

  Judge Alito disagreed with all 10 of his colleagues and would have 
overturned the jury in Barbara Sheridan's case, stating that an 
employer ``may not wish to disclose his real reasons'' for making 
personnel decisions.
  In another solo dissent, he would have deferred to a corporation's 
``subjective business judgment.'' His other colleagues said his 
approach would ``eviscerate'' antidiscrimination law.
  Our courts are where the less powerful are supposed to get a fair 
shake. Our courts are supposed to safeguard individuals against 
powerful institutions; they are where a single individual--even one 
who's not wealthy or well-connected--is on the same footing as a 
powerful corporation.
  I focused on discrimination cases to try to find out how Judge Alito 
reasoned. What I found troubled me, as did how he reasoned in other 
cases I asked him about, including the Family and Medical Leave Act 
case.
  Judge Alito told me that he ``can't know everything about the real 
world.'' So, in this case, he discounted any gender-related connection 
to the sick leave provisions, despite the fact that one in four people 
taking sick leave under the Act were women with difficult pregnancies, 
and one of the reasons we wrote the law was because we know about the 
stereotyping of women.
  Now, I don't think Judge Alito is a bad guy, but it is clear he has a 
blind spot; a dangerous blind spot for millions of Americans who still 
suffer from discrimination and stereotypes--however subtle or 
sophisticated.
  To my colleagues who would say it is inappropriate to look at the 
judicial philosophy or substantive rulings of our nominees to the 
Supreme Court, I would ask the following rhetorical question. Can you 
imagine on that hot, steamy Philadelphia summer in 1787, with the 
Founders sitting on the second floor so no one could hear what they 
were doing; can you imagine them saying, by the way, we are going to 
have three coequal branches of government. Two of them will be 
scrutinized by the American people, and the presumption will be that 
they are not entitled to the office unless a majority of the people 
conclude they should hold the office. But as for the third branch, all 
we want to know is are they honorable, decent, and straightforward?
  It is also useful to point out that it is right to subject nominees 
to the Supreme Court to more exacting standards than nominees to the 
lower courts, for as the highest court in the land, the Supreme Court 
dictates the judicial precedents that all lower courts are bound to 
respect.
  As a result, there are hundreds of lower court nominees I would 
neither have personally nominated nor would have voted for confirmation 
to the Supreme Court, but whom I did support for lower courts.
  But the Supreme Court is different. Because the Supreme Court is not 
bound by precedent in the way lower courts are--a point Judge Alito 
agreed to at his hearing--the judicial philosophy of Supreme Court 
nominees is not only fair game; it is crucial. This is the reason I 
have voted against a much higher percentage of Supreme Court nominees 
than lower court nominees during my time in the Senate, from Bork to 
Thomas, from Rehnquist to Roberts.
  It is also important to remember that we currently have a Justice 
serving on the Supreme Court nominated by President Ford. We even have 
judges still serving in the lower courts appointed by Presidents 
Kennedy and Eisenhower. From the early 1800s, in fact, the average time 
federal judges spend on the bench has increased from 15 years to 24 
years. By that count, a Justice Alito may still be handing down 
decisions in the year 2030.
  Judge Alito, like Justice Thomas before him, has supported the 
theories of strict construction and originalism. He stated:

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

  According to originalist logic, many Supreme Court decisions that are 
fundamental to the fabric of our country are simply wrong. Perhaps even 
more importantly, how would a Justice Alito deal with the big issues of 
the future: for instance, can microscopic tags be implanted in a 
person's body to track his every movement? Can patents be issued for 
the creation of human life? Can brain scans be used to determine 
whether a person is inclined toward criminal behavior? What about the 
questions we can't even conceive of from this vantage point?
  Twenty or 30 years into the future, what would a Justice Alito be 
saying about important issues of the day? That is what makes today's 
vote so momentous.
  And when I look at all the evidence before us--Judge Alito's 
writings, his statements, his judicial records, his opinions, and the 
little we learned about him in these hearings--I am forced to conclude 
that he should not serve on the Supreme Court. That is why I am voting 
no.
  I yield the floor and thank my colleague.
  Mr. KOHL. Mr. President, I rise today after a thorough examination of 
the nomination of Judge Samuel Alito, Jr., to the Supreme Court. After 
that thorough examination, I cannot support the nomination of Judge 
Alito to the Supreme Court. I fear that a Justice Alito will narrow our 
rights, limit our freedoms, and overturn decades of progress. To 
confirm Judge Alito to the Supreme Court would be to gamble with our 
liberties, a bet I fear the Constitution--and the American people--
would lose.
  Generations of Americans have looked to the Supreme Court as more 
than a simple legal tribunal asked to decide cases and controversies. 
Rather, we expect the Supreme Court to guard our liberties, protect our 
rights, and--where appropriate--expand our freedoms.
  This process of bringing life to the promises of the Constitution has 
never

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moved predictably--or smoothly. As Martin Luther King, Jr., once noted, 
``Human progress is neither automatic nor inevitable. Every step toward 
the goal of justice requires . . . the tireless exertions and 
passionate concern of dedicated individuals.'' Throughout American 
history, those ``dedicated individuals'' have fought on many 
battlegrounds--from the steps of the White House and Congress, to the 
dangerous back roads traveled by the Freedom Riders. And somehow the 
fight always leads to the Supreme Court--it is there that these brave 
individuals have found refuge and, through their victories, changed 
America for the better.
  Many of these victories are now identified with individuals through 
familiar case names: Brown v. Board of Education, Gideon v. Wainwright, 
Baker v. Carr and Miranda v. Arizona. Judge Alito has stated his 
allegiance to the principles of these cases--and we are grateful for 
that. But we would expect any nominee to any court in this land to 
agree that schools should not be segregated and votes should count 
equally. That is a starting point. But we must dig much deeper to 
discover whether Judge Alito should serve as an Associate Justice on 
the Supreme Court of the United States.
  We must ask ourselves: how will Judge Alito view the next ``dedicated 
individuals'' who come before him seeking justice? What of the next 
Brown? The next Gideon? We do not consider Judge Alito for a seat on 
the bench in 1954 or 1965 but, rather, in 2006, and possibly 2036. 
Given his narrow judicial philosophy--on display throughout his legal 
career--Judge Alito is unlikely to side with the next ``dedicated 
individual.''
  This narrow judicial philosophy is clear, for example, in his views 
on civil rights. In his now famous 1985 job application, he took issue 
with the Warren Court decisions that established one-person/one-vote, 
Miranda rights, and protections for religious minorities. These 
statements leave the clear impression that his antagonism toward these 
decisions--decisions that helped religious and racial minorities 
receive protection from majority abuses--motivated Judge Alito's 
pursuit of the law.
  While Judge Alito claimed that he was merely describing his opinions 
as a young man, his judicial opinions suggest a more well-formed 
philosophy of limited rights and restricted civil liberties.
  He was in the extreme minority of judges around the country when he 
found that Congress has no ability to regulate machine guns. His 
efforts to strike down portions of the Family and Medical Leave Act 
were rejected by then-Chief Justice Rehnquist. He raised the bar to 
unreachable heights repeatedly in employment discrimination cases, to 
the point where the majority of his court concluded that he was 
attempting to ``eviscerate'' the laws entirely.
  His restrictive view of constitutional liberties was echoed in his 
thoughts about a woman's right to choose. In a 1985 job application, he 
expressed a legal view that there was no such right and worked hard to 
craft a legal strategy that would chip away at--and ultimately--
eliminate that right from the Constitution.
  When asked about this, Judge Alito has said--in essence--that was 
then and this is now. Yet even years after his work for the Reagan 
administration, his narrow views on privacy echoed throughout his 
opinion in Planned Parenthood v. Casey. He would have placed more 
restrictions on a woman's freedom than other conservative judges--
including the woman he seeks to replace on the Supreme Court.
  Even today, Judge Alito is unwilling to declare that Roe v. Wade is 
``settled law''--a pronouncement that Chief Justice Roberts made with 
ease. Judge Alito affirmed that one person/one-vote, integrated 
schools, and some privacy rights were settled, but not a woman's right 
to choose.
  In addition, Judge Alito's decisions call into question our right to 
be free of police intrusion and government power. For example, Judge 
Alito, in disagreement with his colleagues in the Reagan Justice 
Department, argued that the police acted reasonably in shooting--and 
killing--a fleeing, unarmed, teenage suspect. In many opinions as a 
judge, he deferred reflexively to the police in cases involving the 
interpretation of search warrants--including one permitting the strip 
search of a 10-year-old-girl.
  At a time in our history when the balance between our security and 
our civil liberties requires the active involvement of the courts, 
Judge Alito's deference to Presidential power concerns us. He promoted 
the radical idea of a ``unitary executive''--the concept that the 
President is greater than, not equal to, the other branches of 
Government. Judges are meant to protect us from unlawful surveillance 
and detention--not simply abide the President's wishes.
  Although it is the most important standard, judicial philosophy is 
not the only measure of a nominee. We had hoped that Judge Alito would 
have been able to satisfy the concerns we had with his record at his 
hearing. Instead, he chose to avoid answering many of our questions. 
His inability or unwillingness to answer those questions in even the 
most general manner did a disservice to the country and to his 
nomination.
  For example, when questioned on his support for Judge Bork--calling 
him ``one of the most outstanding nominees of the century''--Judge 
Alito answered that he was just supporting the administration's 
nominee.
  When questioned about his membership in the Concerned Alumni of 
Princeton, he said he could not remember this group--despite citing it 
with pride in a job application.
  When questioned about whether Bush v. Gore should have been heard by 
the Supreme Court, Judge Alito said that he had not thought about it as 
a judge and did not have an opinion.
  In each of the six Supreme Court nominations that I have voted on, I 
have used the same test of judicial excellence. Justices Souter, 
Breyer, Ginsburg, and Roberts passed that test. Judge Alito does not.
  Judge Alito's record as a professional--both as a Justice Department 
official and as a judge--reflects something more than a neutral 
judicial philosophy. Instead, it suggests a judge who has strong views 
on a variety of issues, and uses the law to impose those views.
  Judge Alito has the right to see, read, and interpret the 
Constitution narrowly. And we have the obligation to decide whether his 
views have a place on the Supreme Court. I have decided they do not, 
and so I will oppose Judge Alito's nomination today.

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