[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
[[Page S337]]
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
[[Page S339]]
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
[[Page S340]]
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.
____________________