[Congressional Record Volume 152, Number 9 (Tuesday, January 31, 2006)]
[Senate]
[Pages S340-S348]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       NOMINATION OF JUDGE SAMUEL ALITO TO THE U.S. SUPREME COURT

  Mr. AKAKA. Mr. President, I rise today in opposition to the 
confirmation of Judge Samuel Alito as an Associate Justice of the 
United States. In the months since President George W. Bush nominated 
Judge Samuel Alito as an Associate Justice on the U.S. Supreme Court, I 
have carefully considered his record. I evaluated his long history of 
government service and his work on the U.S. Court of Appeals for the 
Third Circuit, and I have closely followed his confirmation hearings.
  When I review all the evidence before me, I do not believe Judge 
Alito will be able to fairly apply the principles embodied in the U.S. 
Constitution. Our Constitution sets forth important civil rights and 
privacy protections that are fundamental to our way of life today. In 
recent years, these freedoms have been precariously protected by a 
delicate balance on the Supreme Court, with Justice O'Connor frequently 
tipping the scales in favor of the civil rights and privacy protections 
that so many Americans depend upon. I am disheartened by the reality 
that so many of these freedoms will likely be eroded when Judge Alito 
joins the Court.
  Judge Alito's approach to the law is not merely conservative, it is 
extreme. Judge Alito's opinions in race and gender employment 
discrimination cases have crafted a restrictive interpretation of civil 
rights laws that would make it much more difficult for women and 
minorities to prevail or even receive a jury trial. I am also troubled 
by Judge Alito's statement in his infamous 1985 job application that he 
was ``particularly proud'' of his work in the Reagan administration, 
where he counseled the administration to restrict affirmative action 
and limit remedies for racial discrimination.

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  I cherish our system of checks and balances in Government, where each 
branch of the Government is coequal with the other. I believe that it 
is critical that this balance, which our forefathers so wisely and 
carefully created, is protected and maintained. However, Judge Alito 
supports the ``unitary executive'' theory, an expansive view of 
Presidential powers that he and his colleagues set forth while working 
in the Office of Legal Counsel of the Reagan Justice Department. Since 
joining the Third Circuit, Judge Alito made it clear that he still 
holds the premise of the ``unitary executive'' theory to be true, and 
this approach concerns me, especially in this political climate. This 
approach also undermines Congress's authority to protect the public. 
Judge Alito has ruled that Congress did not have the authority to pass 
the Family Medical Leave Act or to enact a Federal ban on the 
possession or transfer of machine guns. In both cases, the Supreme 
Court disagreed with Judge Alito's conclusions and upheld these 
protections, demonstrating that Judge Alito's opinions are not in the 
mainstream.
  I take my responsibility to provide advice and consent seriously. I 
cannot support Judge Alito's nomination. Unfortunately, Judge Alito is 
expected to be confirmed as Justice Sandra Day O'Connor's replacement. 
This means he will be in the position to affect a number of critical 
issues in the coming years. Important questions on privacy, the 
environment, Presidential power, and women's reproductive rights will 
all come before the Court to be resolved. With Judge Alito sitting on 
the Supreme Court, I am very concerned about the direction the Court 
will take our great Nation. Although during his hearings Judge Alito 
promised that he would not legislate from the bench, his record 
indicates otherwise. For the sake of our country, I am hopeful that 
Judge Alito will take seriously his commitments to uphold the 
principles of our Constitution.
  Ms. CANTWELL. Mr. President I rise to discuss the nomination of Judge 
Samuel A. Alito, Jr., to the Supreme Court to the United States.
  After closely and carefully studying his record and recent testimony 
before the Judiciary Committee, I have decided to vote against Judge 
Alito's confirmation to the Supreme Court of United States.
  Of course, it is vital that any lifetime appointee to the highest 
court in the Nation possess the breadth of experience and character 
necessary to review the most significant, complex, and far-reaching 
legal questions of our time.
  But that is not enough. I see disappointing and clear evidence in 
Judge Alito's long record, rulings, and statements of dangerously 
skewing the balance and relationship between our branches of 
Government. I do not expect any nominee to the Supreme Court to predict 
and promise with certainty how he or she will rule in any and all 
future cases.
  But I do expect nominees to make clear that they would protect the 
most basic rights of individuals and the fundamental structure and 
foundations of our democracy. Yet I cannot be sure that Judge Alito 
would do either. Indeed, I question whether he would show due respect 
for the authority of Congress or apply a necessary check to the reach 
of the executive.
  Serving as that check has long been one of the Court's most solemn 
obligations. Today, that role is more important than ever. We have seen 
evidence of a National Security Agency's eavesdropping program 
operating in question of a legal framework and without due oversight. 
We are seeing literally, in wartime, a President reach without probable 
cause or warrant at the expense of individual rights and the most basic 
protections of the Constitution. Yet it is a question whether Judge 
Alito would adequately control that reach.
  Judge Alito has a record of concern when it comes to placing and 
consolidating the rights of the government over the rights of the 
individual. Consider, for example, how Judge Alito would give virtually 
unfettered authority to the police to trample on the clear privacy 
protections given to every American as demonstrated in his 2004 dissent 
in Doe v. Groody. In this case he would have upheld the strip search of 
a 10-year-old girl and her mother, despite the fact that they were not 
suspected of any crime nor named in any search warrant.
  When asked at his hearing about this case, and his minority opinion, 
Judge Alito repeatedly sought to portray it as ``a rather technical 
issue,'' a question of whether the police affidavit should be 
incorporated into the warrant itself, and suggested that the police 
were operating under time pressure.
  These claims are inconsistent with the facts, as made clear by Judge 
Alito's colleague, then-Judge Michael Chertoff, now Secretary of 
Homeland Security. According to Judge Chertoff, the approach advocated 
by Alito in Groody ``might indeed transform the judicial officer into 
little more than the cliche `rubber stamp.''' The American people 
deserve a Supreme Court Justice who understands how important privacy 
rights are to all Americans, even the most vulnerable. They deserve 
more than just a rubber stamp.
  History shows that our courts have often stood up to Presidential 
overreaching during wartime: protecting the right of habeas corpus 
during the Civil War; forbidding the president from authorizing 
domestic warrantless wiretaps during the Cold War; and in the War on 
Terror by an 8-to-1 margin, the Supreme Court held that the President 
cannot indefinitely detain American citizens without allowing them to 
challenge their detentions before a neutral decisionmaker, another 
power this administration had claimed.
  Worse still, in areas where precedent is sparse or dated--such as the 
war on terror and the executive's power to carry it out--Judge Alito's 
record and testimony suggests that he is far more likely to defer to 
the ideological ambitions of our President than the protection and 
rights of our citizens.
  To be sure, there is nothing wrong with an aggressive executive, 
especially at times of great peril. An aggressive executive, however, 
also requires a strong and functional Congress, the responsive voice of 
the people. I have questions, however, if Judge Alito's rulings will 
narrowly define the law and therefore threaten the authority and 
ability of Congress to govern effectively and affirmatively.
  Writing in Chittister v. Department of Community & Economic 
Development, Judge Alito wrote that parts of the Family and Medical 
Leave Act, FMLA, which allow employees to leave when they or family 
members are seriously ill, were not applicable against the States. When 
passing the legislation Congress had identified the importance of both 
men and women in caring for young children and family members with 
serious health conditions.
  Congress also pointed to the burden that family caretaking imposes on 
women. But Judge Alito denied those findings. He saw no ``existence, 
much less the prevalence, in public employment of personal sick leave 
practices that amounted to intentional gender discrimination in 
violation of the Equal Protection Clause.''
  This view essentially deflated Congress's ability to defend civil 
rights. He wrote: ``Even if there were relevant findings or evidence, 
the FMLA provisions at issue here would not be congruent or 
proportional. Unlike the Equal Protection Clause, which the FMLA is 
said to enforce, the FMLA does much more than require nondiscriminatory 
sick leave practices; it creates a substantive entitlement to leave. 
This is `disproportionate to any unconstitutional conduct that 
conceivably could be targeted by the Act.'''
  The Supreme Court later rejected Alito's position on the FMLA.
  Ultimately, the Commerce clause is about understanding Congress's 
power to protect our families and its ability to respond to threats 
that immediately affect those families. In February, for example, the 
Court is scheduled to hear arguments on the scope of the commerce 
clause in two critical cases that could restrict the geographic 
jurisdiction of the Clean Water Act to one percent of its current 
coverage.
  In my State, we know how fragile our precious natural resources can 
be. The Pacific Northwest is blessed with incredible beauty. But 
habitat loss and other pressures threaten some of my State's most 
iconic species, salmon that spawn our great rivers and birds that 
depend on old growth forests.
  We also know that how we treat those resources and that wildlife 
speaks to our priorities as a people and a nation. How do we value our 
communities and ensure their safety? How do

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we honor an individual's freedom and his or her rights?
  While I do not expect any judicial nominee to prejudge future cases, 
I do expect all nominees to make their positions clear on protecting 
the most basic rights of individuals and the fundamental structure and 
foundations of our democracy. In the end, I cannot be sure that Judge 
Alito would do either.
  As I mentioned earlier, I believe that Judge Alito has a record of 
concern when it comes to placing and consolidating the rights of the 
government over the rights of the individual, and he has not provided 
the answers to adequately reassure the people of our Nation. I must 
conclude that he would neither show due respect for the authority of 
Congress nor apply a necessary check to the reach of the executive. 
With great respect for the institution, I cannot vote to confirm Judge 
Alito to the Supreme Court of the United States.
  Mr. CHAFEE. Mr. President, President Bush has nominated Judge Samuel 
Alito to replace Justice Sandra Day O'Connor on the Supreme Court. 
Justice O'Connor has had a remarkable career of public service. Her 
strong and moderate voice on the Supreme Court will be missed. I was 
lucky to get to socialize with her and her husband through mutual 
acquaintances and recommend her book about growing up on a ranch in 
arid Arizona--The Lazy B. She is an exceptional person.
  As is the custom, Judge Alito sought a meeting with any Senator so 
interested. For our meeting, I suggested the Capitol steps and he 
agreed since it was a warm sunny day. I thought it was appropriate to 
be visually connected to two of the three branches of government as we 
talked about constitutional issues. If confirmed, the decisions he will 
make on the Supreme Court will affect the lives of Americans 
profoundly.
  Judge Alito has outstanding legal credentials and an inspiring life 
story. However, I am greatly concerned about his philosophy on some 
important constitutional issues. In particular, I carefully examined 
his record on executive power, women's reproductive freedoms and the 
commerce clause of article 1, section VIII of the Constitution.
  On executive power, it is likely that cases dealing with the fourth 
amendment will be heard by the Supreme Court. The fourth amendment 
reads:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures, shall not be violated, and no Warrants shall 
     issue, but upon probable cause, supported by Oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  To me this language is very clear that a warrant is required for a 
search. That premise is now being questioned regarding warrantless 
wiretaps.
  At the Judiciary Committee hearings, Judge Alito was asked a question 
on executive powers and warrantless wiretapping. He said he would have 
to determine ``whether the President's power, inherent powers, the 
powers given to the President under article 2 are sufficient, even 
taking away congressional authorization, the area where the President 
is asserting a power to do something in the face of explicit 
congressional determination to the contrary''.
  The only power in article 2 that Judge Alito could be referring to 
would be:

       The President shall be Commander in Chief of the Army and 
     Navy of the United States. . . .

  Judge Alito was also asked ``. . . is it possible under your 
construct that an inherent Constitutional power of the President could, 
under some analysis or some case, override what people believe to be a 
Constitutional criminal statue?'' Judge Alito responded that this was 
possible, noting a ``possibility that that might be justified''.
  How far do we want Commander in Chief stretched? As Justice O'Connor 
wrote in a recent case, ``a state of war is not a blank check for the 
President when it comes to the rights of the Nation's citizens''.
  On the issue of Roe v. Wade as with other issues, I am less 
interested in what Judge Alito wrote or said as a lawyer for his client 
the Reagan Administration, than how he has ruled as a judge and how he 
testified at his nomination hearing. As an appellate court judge, Judge 
Alito was the lone dissenter on Planned Parenthood v. Casey, a court 
case reviewing the Pennsylvania Abortion Control Act.
  The Supreme Court wrote on this landmark affirmation of Roe v. Wade:

       These matters, involving the most intimate and personal 
     choices a person may make in a lifetime, choices central to 
     personal dignity and autonomy, are central to the liberty 
     protected by the Fourteenth Amendment. At the heart of 
     liberty is the right to define one's own concept of 
     existence, of meaning, of the universe, and of the mystery of 
     human life. Beliefs about these matters could not define the 
     attributes of personhood were they formed under compulsion of 
     the state.

  The five majority Justices, who wrote that, were all Republican 
appointees: two Reagan appointees, one each of Bush ``41'', Ford and 
Nixon.
  An important standard of law is the concept of stare decisis--it 
stands decided. At the hearing Chairman Specter asked Judge Alito to 
discuss his view of stare decisis. He responded:

       It's not an inexorable command, but it is a general 
     presumption that courts are going to follow prior 
     precedents''. In the Supreme Court dissent on Casey, the 
     justices who arguably wanted to overturn Roe v. Wade wrote 
     ``stare decisis is not . . . a universal inexorable command.

  Not only did Judge Alito rule in favor of the Pennsylvania Abortion 
Control Act as a lower court judge, he used the same language as the 
high court dissenters at his Supreme Court nomination hearing. Stare 
decisis is not an inexorable command.
  Additionally, at his nomination hearing Judge Roberts was willing to 
call Roe v. Wade ``settled law'' but Judge Alito refused to make a 
similar statement.
  The last point I would like to make concerning constitutional law is 
on the commerce clause. As you know the Constitution creates a 
Government of limited power--Congress can only enact legislation in 
areas that are specifically set out under the Constitution. Congress is 
expressly prohibited from enacting legislation in other areas, leaving 
this authority to the States per the tenth amendment:

       The powers not delegated to the United States by the 
     Constitution . . . are reserved to the States respectively, 
     or to the people.

  Every law enacted by Congress must be based on one of the powers 
enumerated in the Constitution. The Framers of the Constitution gave 
Congress broad power to regulate immigration, national security and 
economic activity between the states, and left most other power with 
the States.
  However, section VIII of article 1 states that ``the Congress shall 
have the power to regulate Commerce . . . among the several states''. 
This is the commerce clause and it is the most powerful provision in 
the Constitution providing Congress the authority to enact legislation 
in a host of areas--including environmental protection. A key Supreme 
Court case regarding the commerce clause was in 1942 when the Supreme 
Court upheld legislation that allowed USDA to set quotas on local wheat 
growing. The Court noted that while crops regulated may never actually 
enter into interstate commerce, such local activity, coupled with 
similar activity in other States as an aggregate has a direct impact on 
interstate commerce. Since then using the ``aggregate effects test'' or 
``substantial effects test'' Congress has passed broad ranging 
environmental legislation such as the Clean Air Act, Clean Water Act 
and the Endangered Species Act, all of which were signed into law by 
Republican President Nixon.
  While I agree there should be constitutional limits on legislative 
power, Judge Alito seems to have agreed with Justice Thomas who wrote:

        I believe we must further reconsider our substantial 
     effects test with an eye toward constructing a stand that 
     reflects the text and history of the Commerce Clause.

  Indeed in a dissent to a gun case heard before his court Judge Alito 
wrote:

       In sum, we are left with no appreciable empirical support 
     for the proposition that the purely intrastate possessions of 
     machine guns, by facilitating the commission of certain 
     crimes, has a substantial effect on interstate commerce, and 
     without such support I do not see how the statutory provision 
     at issue here can be sustained.

  What is noteworthy in this dissent is that Judge Alito was alone with 
all members of his appeals court ruling the other way.
  If ``the aggregate or substantial effects tests'' are overruled as 
Justice

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Thomas has advocated, federal environmental laws could be ruled 
unconstitutional. Indeed on February 21, the Court is scheduled to hear 
arguments on two cases, Carabell v. United States and United States v. 
Rapanos.
  In both cases the lower court upheld protection of wetlands, which 
are currently protected under the Clean Water Act. Environmentalists 
argue that these wetlands are critical to the health of our nation's 
water supply and wildlife habitat.
  Industry groups argue that the Army Corps of Engineers has no 
authority under the Clean Water Act to regulate ``isolated wetlands'' 
that have no connection with ``navigable waters.'' This would be a 
major setback to the Clean Water Act.
  The critical issue is whether under the commerce clause, Congress has 
the authority to regulate non-navigable bodies of water within a single 
State. Based on the writing of Judge Alito, he would appear to side 
with the faction what would greatly limit the ability of Congress to 
protect such ``intrastate'' issues.
  These constitutional issues, the scope of executive power, women's 
reproductive freedoms and the commerce clause are likely to be heard by 
the Supreme Court in the coming months. I care deeply about these 
issues.
  Believe me, having been an executive in government, I want to support 
President Bush's choice to the Supreme Court. The President did win the 
election. He has made his promises and I have made mine.
  I am a pro-choice, pro-environment, pro-Bill of Rights Republican and 
I will be voting against this nomination.
  Ms. LANDRIEU. Mr. President, confirmation of a Supreme Court Justice 
is one of the most important duties the Senate performs under the 
Constitution. We should consider the nomination of Judge Alito 
carefully and conduct our debate on this nominee with dignity and 
respect.
  The Supreme Court is the final arbiter of whether the laws of our 
land conform to the Constitution. Once confirmed to the Court, Justices 
serve for life, beholden only to the Constitution and the rule of law. 
It is an awesome responsibility; and for such an important event, we 
must have a confirmation process fitting of that responsibility. Too 
often in recent years, we have not.
  Though the judicial branch of our government is supposed to be 
independent of politics, the nomination and confirmation process has 
become far too political to the point that it no longer serves the 
Nation's interests, regardless of partisan or philosophical 
differences.
  Judge Alito, whom I have met and found to be an honorable, 
intelligent man, was placed in the unfortunate position of having been 
selected as a result of this process. As my colleagues know, he was not 
the President's first choice to fill Justice Sandra Day O'Connor's 
seat. John Roberts was. After his nomination was switched to become 
Chief Justice, Harriet Miers became the President's second choice. 
After she was attacked by members of the President's own party, her 
nomination was withdrawn. Again, politics prevailed.
  Judge Alito's nomination was the President's third choice for this 
seat and, in many ways, a gesture to the organized interest groups of 
the President's party who had derailed Ms. Miers' nomination. 
Unfortunately, it was a nomination of, by, and for politics.
  This highly charged political process spilled over into the 
confirmation hearings before the Judiciary Committee. To secure 
confirmation, Judge Alito said as little as possible. The strategy was 
clear: hide, don't explain or embrace, your judicial philosophy.
  The Supreme Court nomination and confirmation process has become a 
game of hide-the-ball. It is a process that does not help to inform 
Senate deliberations, and it sadly leaves the American people 
uninformed about who will be sitting on this highest of American courts 
until it may be too late.
  The chairman and ranking member of the Judiciary Committee are not to 
blame for what has happened to the confirmation process. I also thank 
Judge Alito for his willingness to appear before the committee for as 
long as he did. But the entire process is clearly not what the Framers 
of our Constitution intended. No one in America should be afraid to 
speak his or her mind openly and honestly. The American people are 
poorly served by a process that places tactical politics above guiding 
principle.
  If confirmed, Judge Alito will replace one of the most important 
justices on the Court today, Sandra Day O'Connor. Justice O'Connor is a 
conservative, appointed by a conservative President. Over time, she 
became a consensus builder on the Court who took great pains to strike 
a careful balance in her opinions, never forgetting that the Court's 
decisions have real consequences for real people. She was open-minded 
and independent. Her influence on the Court was tremendous and her 
reasoning always carried great weight. She did not prejudge cases and 
applied the law to the facts in a fair manner.
  Justice O'Connor, who was appointed by President Reagan, was a swing 
vote on a number of important decisions. Whether you or I agree with 
her individual opinions or not, I think she acted responsibly: someone 
committed to equal justice under the law, who applied the law to the 
facts as presented to her and did not ``overreach'' from the bench. She 
showed proper respect for the legislative branch and was careful not to 
cater to Executive authority.
  While Samuel Alito has solid qualifications to become a Supreme Court 
Justice, it is our duty to look deeper. Though we can never know how a 
Justice will decide a case before it is presented and argued, it is 
important to know, during the confirmation process, which principles of 
judicial philosophy will underlie a potential Justice's future 
constitutional interpretations. We can give advice and consent to a 
Supreme Court nomination without this information or these insights, as 
this Senate is about to do. But without this information and these 
insights, we cannot give informed advice or informed consent.
  It was never intended that the Senate be a rubberstamp, approving 
everyone the President nominated simply because he sent them to us. The 
Framers expected Senators to bring wisdom and understanding to the 
task, not to simply check off boxes on an application form.
  Judge Alito's record gives me cause for concern. And his testimony 
during the confirmation hearings unfortunately did very little to 
lessen that concern. His opinions and dissents on the bench leave open 
very serious questions as to how he views fundamental civil rights for 
all Americans and how he views protecting the individual rights of 
average citizens, especially when they are threatened by powerful 
forces, including the government itself. Judge Alito's nonanswers to so 
many questions presented to him at the confirmation hearing added to 
those troubling concerns.
  I have voted for conservative judges nominated by Republican 
Presidents many times. John Roberts was the most recent. But I must 
oppose this nomination. I want my vote against confirmation to send a 
signal to all who care that the Supreme Court nomination process has 
become far too political and far too removed from the original purposes 
set forth by the Framers of the Constitution.
  It is time for all of us, Republicans and Democrats of every possible 
philosophical persuasion, to stand up against a process that so poorly 
serves the people of the States we represent in this great body.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, on this rainy morning in our Nation's 
Capital, we just learned the sad news of the passing of Coretta Scott 
King. We are reminded again of the crucial role our courts played in 
making real the promises of our national charter, the Constitution. It 
was the courts to whom Dr. Martin Luther King spoke, and they 
responded.
  The Nation mourns the loss of another civil rights leader and is 
reminded again of the vital role our courts play as the place where 
ordinary Americans can turn for justice when justice is denied them. 
Coretta Scott King and her late husband, Dr. Martin Luther King, Jr., 
put their lives on the line to bring those promises to untold millions 
of Americans. Let us never

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squander or take for granted all that has been achieved. Let us keep 
their dream alive.
  That is why, since this debate began last Wednesday, I posed the 
fundamental question this nomination raises: whether the Senate is 
going to serve its constitutional role as a check on the President by 
preserving the Supreme Court as a constitutional check on the expansion 
of Presidential power.
  This nomination now before us is an unacceptable threat to the 
fundamental rights and liberties for all Americans now and for 
generations to come. This President is in the midst of a radical 
realignment of the powers of the Government and its intrusiveness into 
the private lives of Americans.
  I am concerned that if confirmed, this nominee is going to further 
erode the checks and balances that have protected our constitutional 
rights for more than 200 years. This is a crucial nomination, one that 
can tip the balance of the Supreme Court radically away from 
constitutional checks and balances and from the protection of 
Americans' fundamental rights.
  The vote that the Senate is about to take has real consequences, not 
just for the 100 of us in this body but for 295 million Americans. We 
stand in their shoes. We stand in the shoes of generations to come. The 
vote will determine whether Samuel Alito, Jr., replaces Justice Sandra 
Day O'Connor on the Supreme Court of the United States. A vote for this 
nomination is a vote against constitutional checks and balances. A vote 
for this nomination is a vote against maintaining the fundamental 
rights and liberties of ordinary Americans.
  Republican Senators have pretended that judicial philosophy and 
personal views do not matter because judges simply apply the rule of 
law, as if it were some mechanical calculation. Personal views and 
judicial philosophy often come into play on close and controversial 
cases. We all know this to be true. Why else did Republican supporters 
force President Bush to withdraw his previous nominee for this vacancy, 
Harriet Miers, before she even had a hearing? It mattered to them when 
the nominee was Harriet Miers. And it matters now. The only difference 
is that those who hounded Harriet Miers to withdraw are confident that 
Judge Alito will pass their litmus tests. Harriet Miers failed their 
litmus tests because, despite all the backroom whispers and public 
winks and nods, her conservative opponents were not confident that she 
would rule the way they wanted. Those from among the President's 
supporters who castigated Ms. Miers wanted certain results. The 
President allowed his choice to be vetoed by an extreme faction within 
his party, before hearings or a vote. As Chairman Specter has said, 
they ran her out of town on a rail. Like the more than 60 moderate and 
qualified judicial nominees of President Clinton on whom Republicans 
would neither hold hearings or votes--by what was in essence a pocket 
filibuster. They do not want an independent federal judiciary. They 
want certain results.
  The President says he is fulfilling a campaign promise. I remind him 
of his biggest campaign promise to be a uniter and not a divider. He 
could have nominated so many people who would have united this country, 
would have gotten 90 to 100 votes in the Senate. Republicans and 
Democrats would have felt united, and the country would have felt 
united. But instead of uniting the country through his third choice--
and this was his third choice--to succeed Justice O'Connor, the 
President has chosen to reward a faction of his party at the risk of 
dividing the country.
  Those so critical of his choice of Harriet Miers were the very people 
who rushed to endorse the nomination of Judge Alito. Unlike what has 
been said on this floor, the criticism of his choice of Harriet Miers 
came from the Republican Party. But instead of rewarding his most 
virulent supporters, the President should have rewarded the American 
people for the unifying choice that would have broad support.
  Think how much better America could have done. America can do better 
if we have consultation--here we didn't have it--to select one of the 
many consensus conservative Republican candidates who could have 
overwhelmingly been approved by the Senate.
  Judge Alito was asked at the hearing how he got to this nomination. I 
think we understand the real answer to that question. It has little to 
do with Judge Alito's family story and a great deal to do with the 
pressures that forced the President to withdraw the nomination of 
Harriet Miers and this President's efforts to avoid any check on his 
expansive claims of additional powers.

  This is a President who has been conducting secret and warrantless 
eavesdropping on Americans for more than 4 years. This President has 
made the most expansive claims of powers since America's patriots 
fought the War for Independence to rid themselves of the overbearing 
power of King George III. He has done so to justify illegal spying on 
Americans without the essential check of judicial oversight to justify 
actions that violate our values and laws against torture and protecting 
human rights, and in order to detain U.S. citizens and others on his 
say-so--just on his say-so--without any judicial review or due process. 
This is a time in our history when the protections of Americans' 
liberties are at risk, as are the checks and balances that have served 
to constrain abuses of power for more than 200 years.
  The President wanted a reliable Justice who would uphold his 
assertions of power, his most extreme supporters want someone who will 
revisit the constitutional protection of privacy rights, and his 
business supporters wanted somebody favorable to powerful special 
interests.
  A Supreme Court nomination should not be conducted through a series 
of winks and nods designed to reassure the most extreme factions while 
leaving the American people in the dark. No President should be allowed 
to pack the courts, but especially the Supreme Court, with nominees 
selected to enshrine Presidential claims of Government power. The 
checks and balances that should be provided by the courts, Congress, 
and the Constitution are too important to be sacrificed to a narrow, 
partisan agenda. A Democratic-controlled Senate stood up to Democratic 
President Franklin Roosevelt when he proposed a Court-packing scheme. 
The Senate acted as the Senate should and so rarely does today, to say 
``no'' to a President. I will not lend my support to an effort by this 
President to undermine our constitutional checks and balances or to 
move the Supreme Court radically to the right.
  The Supreme Court belongs to all Americans, not just the person 
occupying the White House, not just to a narrow faction of a political 
party. The President continues to choose confrontation over consensus 
and to be a divider rather than the uniter he promised Americans he 
would be. Rather than sending us a nominee for all Americans, the 
President chose a divisive nominee who raises grave concerns about 
whether he would be a check on Presidential power and whether he 
understands the role of the courts in protecting fundamental rights.
  The Supreme Court is the ultimate check and balance in our system. 
Independence of the courts and its members is crucial to our democracy 
and way of life. The Senate should never be allowed to become a rubber 
stamp, and neither should the Supreme Court.
  As the Senate prepares to vote on this nomination, we should be 
mindful of Justice O'Connor's critical role on the Supreme Court. Her 
legacy is one of fairness I want to see preserved. Justice O'Connor has 
been a guardian of the protections of the Constitution provides the 
American people. Of fundamental importance, she has come to provide 
balance and a check on Government intrusion into our personal privacy 
and freedoms. In the Hamdi decision she rejected the President's claim 
he could indefinitely detain a U.S. citizen. She said not even the 
President is above the law. She upheld the fundamental principle of 
judicial review. She wrote that even war ``is not a blank check for the 
President when it comes to the rights of the Nation's citizens.''
  The American people deserve a Supreme Court Justice who inspires 
confidence that he or she will not be beholden to the President, but 
will be immune to pressures from the Government or from partisan 
interests. The stakes for the American people could not be higher. The 
appointment of the next Supreme Court Justice must be made in the 
people's interest and in the Nation's interest, not partisan interest 
or the President's interest.
  It is as the elected representatives of the American people, all the 
people,

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that we are charged with the responsibility to examine whether to 
entrust their precious rights and liberties to this nominee. The 
Constitution is their document. It guarantees their rights from the 
heavy hand of Government intrusion and their individual liberties to 
freedom of speech and religion, to equal treatment, to due process and 
to privacy. I want all Americans to know that the Supreme Court will 
protect their rights. I want a Supreme Court that acts in its finest 
tradition as a source of justice. The Supreme Court must be an 
institution where the Bill or Rights and human dignity are honored.
  This is Judge Alito's single moment in his lifetime, the only moment 
in his lifetime, of accountability before the prospect of a lifetime on 
our Nation's highest Court. But it is also an accountability moment for 
each of the 100 Senators in the decision we reach on this crucial 
nomination because we have to speak for 295 million Americans.
  I urge all Senators to consult their consciences and their best 
judgment before casting their votes on this critically important 
nomination. But, in good conscience, based on the record, I cannot, I 
will not, vote for this nomination.
  Mr. President, what is the parliamentary situation?
  The ACTING PRESIDENT pro tempore. The Senator has 25 seconds 
remaining.
  Mr. LEAHY. Mr. President, obviously I am distressed for many reasons 
about this nomination, not the least of which is everything Judge Alito 
said indicated he would not be a check and balance. I so wish--and I 
have said this to President Bush personally--I so wish he had been a 
uniter and not a divider. We could be here with a Senate unanimously 
approving a nominee, instead of this divisive battle.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
from 10:34 until 10:44 shall be under the control of the Senator from 
Pennsylvania. He is now recognized.
  Mr. SPECTER. I thank the Chair.
  Mr. President, as the Senate moves toward the vote on the nomination 
of Judge Samuel A. Alito, Jr., to be Associate Justice of the Supreme 
Court, we are mindful of the very heavy responsibility under the 
Constitution which the Senate has for confirmation of a Supreme Court 
Justice for a lifetime appointment. There is no vote as important, 
except for a declaration of war or the resolution authorizing the use 
of force, which is the practical equivalent of a declaration of war.
  In our society, the Supreme Court of the United States is the final 
decisionmaker in, as the process has worked out, many cutting-edge 
questions that come before the Supreme Court. The Supreme Court decides 
the issue of who shall live, who shall die--the decision which they had 
recently on the Oregon law or the application of the death penalty. It 
is the final protector of civil rights, the adjudicator of the Commerce 
clause, as to what Congress can do by way of legislation, and its 
authority and power is magnified because so many of the decisions of 
the Court are on a 5-to-4 count. When we have Justice O'Connor retiring 
as the swing vote on so many cases, there is an even heavier air of 
responsibility as we move through the confirmation process of Judge 
Alito.
  It is our responsibility to examine the nominee in terms of his 
qualifications. Those qualifications have been established by virtue of 
his educational background and his professional background. We have to 
make a determination of his temperament, and I believe we saw poise and 
patience under a very difficult confirmation process. The confirmation 
process has evolved and, candidly, I think Judge Alito's was a little 
tougher, a little more confrontational than most. That is the right of 
the Senators. But he certainly had ample poise and ample calm and 
demonstrated steadfastness and temperament.
  The tougher inquiry is when we bear in and focus on what he is going 
to do if confirmed? What are his jurisprudential approaches? I think we 
have come too much to the point in our confirmation process of looking 
for definite answers. Some have objected to the confirmation of 
nominees because there is no guarantee on how they will vote in certain 
cases. A nominee to the Supreme Court is not supposed to give 
guarantees. A nominee to the Supreme Court is supposed to respond as to 
factors to be considered and give us an idea of his or her reasoning 
power. He or she is not supposed to give us guarantees on how they 
would rule. This goes back to President Lincoln, who said we should 
loathe somebody who told us in advance how he or she would rule when 
nominated to the Supreme Court of the United States.
  There is a lot of anxiety about a woman's right to choose. I share 
that anxiety and I share that concern. We have seen in the history of 
the Court that early indications as to how an individual may feel about 
a woman's right to choose will not necessarily be the determinant as to 
how that nominee will vote when the nominee is a Justice on the Supreme 
Court. We have the operative case on a woman's right to choose. It is 
Casey v. Planned Parenthood, decided in 1992. It retained the woman's 
right to choose but modified the rationale from Roe v. Wade in 1973. 
The opinion was written jointly by Justice O'Connor, Justice Anthony 
Kennedy, and Justice David Souter. Prior to their becoming Supreme 
Court Justices, all had expressed opposition to abortion rights, 
opposition to a woman's right to choose. But when they came to the 
Court and they took a look at the precedents, when they took a look, as 
their joint opinion said, on reliance, they sustained the principle of 
a woman's right to choose.
  While you had Judge Alito's statement in 1985, 21 years ago, about 
his own view on the subject, he made it emphatic that as a jurist he 
would look to precedent and his own personal views would not dominate 
his thinking as he applied the law in a constitutional setting.
  He was also questioned at length about his work in the Solicitor 
General's Office on the Thornburgh case. Too much is made of what an 
individual does in an advocacy capacity representing a client. But 
Judge Alito was questioned at great length about the philosophical 
underpinnings of a woman's right to choose. He agreed with Justice 
Harlan's dissent in Poe v. Ullman about the Constitution being a living 
document. And he agreed with Cardozo in Palko v. Connecticut, that 
constitutional interpretation represents the values of an evolving 
society. He went about as far as he could go without making a 
commitment in advance.
  When it came to the question of Executive power, here again he 
described the philosophical underpinnings of the President's authority 
and he agreed with Justice O'Connor that a state of war does not give a 
President a blank check. He outlined the considerations going to 
Justice Jackson's concurrence in the steel seizure case, about how he 
would face an issue on Executive power.
  The Congress of the United States can do considerably more by way of 
oversight on what the Executive does, and we are going to have a 
hearing next Monday on the President's power for surveillance. What is 
the President's authority in the face of a statute, the Foreign 
Intelligence Surveillance Act, which requires court approval for 
certain surveillance operations? What are the President's article II 
powers as Commander in Chief? There could be a great deal more activism 
by the Congress. You don't have to wait for these cases to come to the 
Supreme Court of the United States. But if, as, and when the question 
does arise, I think Judge Alito outlined the jurisprudential 
considerations, and he is on target.
  When it comes to congressional power, we could also do a lot more. 
The Supreme Court has been insulting in its characterization of our 
reasoning power, striking down legislation to protect women against 
violence, disagreeing with our method of reasoning, or striking down 
portions of the Americans With Disabilities Act, as Justice Scalia 
said, being a taskmaster. We are preparing legislation in the Judiciary 
Committee to grant Congress standing to go to court to uphold the 
constitutionality of our statutes.
  Mr. President, how much time do I have remaining?
  The PRESIDENT pro tempore. The Senator has 40 seconds.
  Mr. SPECTER. When you take a look at the values of an individual, who 
knows him better than the judges with whom he worked?

[[Page S346]]

  Seven judges came before the Committee to testify and they all 
authenticated the conclusion that he does not have a predetermined set 
of values that he is going to try to force upon the country.
  All factors considered, I think he is worthy of confirmation by this 
body.
  I thank the Chair, and I yield the floor.
  Mr. ROBERTS. Mr. President, I rise today to offer my support for 
Judge Samuel Alito, Jr., for Associate Justice to the U.S. Supreme 
Court. I am honored to have the opportunity to again participate in a 
nomination for the Supreme Court. The casting of our votes from our 
Senate desks, as set forth by Senate tradition, is indicative of the 
meaningfulness and the importance of the confirmation vote for a 
judicial nomination to the Supreme Court. As before, I am humbled and 
honored to represent my fellow Kansans in this manner.
  Over the course of the hearings, the Nation has had an opportunity to 
learn more about Judge Alito's character, professional experience, and 
approach to the law. It is clear that Judge Alito's educational 
background is quite impressive. The son of public school teachers, 
Judge Alito grew up in a family in which the importance of education 
and hard work were firmly rooted. His father, who arrived in the United 
States as an infant, knew firsthand the struggles of growing up in 
poverty. His ability to pull himself up by his bootstraps and 
emphasizing education as the window to a better life laid a firm 
foundation for his family.
  It is no surprise that Judge Alito's exceptional educational 
background boasts of two formidable Ivy League universities--a notable 
accomplishment resulting from hard work and a keen mind. However, 
during his testimony, his statements demonstrated that he fully 
recognized what an opportunity it was to attend these renowned 
universities and took full advantage. He said:

       It was a time of turmoil at colleges and universities. And 
     I saw some very smart people and very privileged people 
     behaving irresponsibly. And I couldn't help making a contrast 
     between some of the worst of what I saw on the campus and the 
     good sense and the decency of the people back in my own 
     community.

  It is this type of commonsense that resonates with my Kansas 
constituents.
  One only needs to look at Judge Alito's resume to see his extensive 
experience in both prosecuting and applying the law. His distinguished 
career includes almost 15 years as a Federal prosecutor within the 
Department of Justice, 3 years as the U.S. Attorney for New Jersey, and 
most recently, 15 years as a Federal judge on the U.S. Court of Appeals 
for the Third Circuit. Judge Alito is well versed in the law. While 
some have alleged that his decisions are biased and that he is an 
ideologue with a political agenda, his record, his testimony, and the 
testimony of his colleagues and others who have worked with him dispel 
those allegations. During his confirmation hearing before the Senate 
Judiciary Committee, Judge Alito stated:

       The role of a practicing attorney is to achieve a desirable 
     result for the client in the particular case at hand, but a 
     judge can't think that way. A judge can't have any agenda. A 
     judge can't have any preferred outcome in any particular 
     case. And a judge certainly doesn't have a client. The 
     judge's only obligation--and it's a solemn obligation is to 
     the rule of law, and what that means is that in every single 
     case, the judge has to do what the law requires.

  His fellow colleagues on the U.S. Court of Appeals affirm his 
openmindedness, impartiality, and decisions based on the facts and the 
law. Notably, the American Bar Association--long viewed as the gold 
standard among my colleagues on the other side of the aisle--reviewed 
Judge Alito's judicial background and gave him their highest rating of 
``Well Qualified.''
  In a time of judicial encroachment in which courts are increasingly 
imposing their political will on the Nation, Judge Alito's judicial 
record demonstrates his efforts to stem that tide. In his testimony he 
refers to the role of the judiciary as very important, but limited by 
the authorities set forth in the Constitution. The judicial branch's 
responsibility lies in interpretation and application of the law and 
not enacting policy judgements. In other words, he is guided by the 
rule of law set forth by the Constitution. Others describe Judge 
Alito's judicial philosophy as a philosophy of restraint and in 
accordance with the rule of law. Other witnesses from a broad range of 
ideologies who know Judge Alito confirm that he is measured and 
judicial in his decisions.
  In closing, I would like to comment on the increasing political 
nature in which judicial nominees are subjected to during the 
nominations process. During my remarks on the nomination of now Chief 
Justice John Roberts, I highlighted the elevated level of partisanship 
in the Senate. This trend of partisan bickering further threatens the 
comity and respect that has long been the standard for conducting 
Senate business. The tenor and manner of questioning, or grilling as 
referred to in the news headlines, of Judge Alito frays the spirit of 
our constitutional fabric under which we operate. I call on my 
colleagues to work together to raise the level of discourse in these 
hallowed Halls of Congress.
  Mr. SHELBY. Mr. President, I rise today to support the nomination of 
Judge Samuel Alito to be an Associate Justice of the U.S. Supreme 
Court.
  Judge Alito's education, legal training, and judicial record have 
positioned him well to serve our Nation with honor and dignity on the 
Supreme Court. A graduate of Princeton and Yale, Judge Alito has more 
than 30 years of legal experience. Over the years, he has served as a 
judicial clerk, a prosecutor, an appellate lawyer before both the U.S. 
Court of Appeals and the U.S. Supreme Court. He has served as legal 
counsel to the U.S. Government and most recently as a judge on the U.S. 
Court of Appeals for the Third District. Judge Alito has a full breadth 
of experience in both criminal and civil cases as well as the trial and 
appeals phases of the judicial system.
  I believe Judge Alito's record on the U.S. Court of Appeals for the 
Third District shows that he is a fair and impartial jurist. During his 
tenure on that court, it has been clear that he takes all legal 
theories and arguments into account when making decisions and issuing 
rulings. Judge Alito is well respected by his colleagues and has even 
received their praise for the manner and tone he takes in working 
through the facts to arrive at a decision. I do not recall anyone 
questioning his ability to do the job and in fact, he received a 
unanimous ``well-qualified'' rating from the American Bar Association, 
its highest rating.
  While many have criticized Judge Alito's supposed judicial 
philosophy, I believe that his written decisions and statements as well 
as his appearance before the Judiciary Committee confirmed his ability 
to set personal views and ideology aside so as to not cloud his 
interpretation of the law. I commend Judge Alito for his poise and 
composure throughout one of the most arduous hearings in recent memory.
  The time has come for Congress and the President to serve as a check 
on the judicial activism that has become so prevalent in the judiciary 
today.
  I believe that we must have judges that interpret the Constitution 
and the law rather than manipulate it to meet their personal 
ideologies. Judge Alito fits that mold.
  Mr. President, I am proud to support Judge Alito and look forward to 
him becoming the next Associate Justice on the United States Supreme 
Court.
  The PRESIDENT pro tempore. Under the previous order, the Democratic 
leader is recognized time until 10:54.
  Mr. REID. Mr. President, in his opening statement to the Judiciary 
Committee, Judge Samuel Alito asked, ``How in the world did I get 
here?'' That rhetorical question raises a serious concern about him, 
and it has shadowed his nomination from the very beginning. The fact 
is, Judge Alito became President Bush's candidate to replace Justice 
Sandra Day O'Connor only after the radical rightwing torpedoed the 
nomination of White House counsel Harriet Miers and insisted that 
someone with Sam Alito's ideology be put in her place. That is how 
Judge Alito ``got here.''
  I continue to believe that Harriet Miers received a raw deal. She is 
an accomplished lawyer, a trailblazer for women, and a strong advocate 
of legal services for the poor. Not only was she denied the up-or-down 
vote that my Republican colleagues say every nominee deserves, but she 
was never even

[[Page S347]]

afforded the chance to make her case to the Judiciary Committee.
  I believe radical elements in the President's own party demanded that 
Miers withdraw not because of her lack of judicial experience as some 
exclaimed but because they were insufficiently confident she would 
support their extreme agenda. Remember, approximately 40 percent of all 
people who have ever served on the Supreme Court had no judicial 
experience.
  The rightwing distrust of Harriet Miers and their immediate elation 
when Judge Alito was named raised my suspicions on the day that he was 
nominated. Those suspicions were heightened when Alito's 1985 
application for a job in the Reagan administration came to light. In 
it, Alito stated, ``I am and always have been a conservative.'' He 
spoke proudly of his work on behalf of the extreme agenda of the Reagan 
Justice Department, his disagreement with landmark rulings of the 
Warren Court in favor of equal rights, and his membership in rightwing 
organizations. In effect, the 1985 document amounted to Judge Alito's 
pledge of allegiance to conservative, radical Republican ideology.
  I don't propose the Alito nomination is on the basis of a 20-year-old 
job application. Instead, I view that document as a roadmap to Judge 
Alito's subsequent judicial opinions and speeches.
  Judge Alito's judicial opinions have been largely consistent with his 
ideological signals; that is, the signals he sent in the 1985 job 
application. One of the most prominent and eminent legal scholars in 
all of America, Professor Cass Sunstein of the University of Chicago 
Law School, who generally supported the nomination of Chief Justice 
John Roberts, analyzed Alito's opinions and found ``a remarkable 
pattern'' of ``almost uniformly conservative'' dissents. Professor 
Sunstein concluded that ``the real question about Alito involves the 
disturbingly close link between his political convictions and his legal 
conclusions.''
  My concern about Judge Alito falls into three broad categories. 
First, I fear he will not vindicate the role of the judiciary as a 
check on executive branch power. Second, he is a leader in the so-
called federalism movement which would limit congressional power to 
pass environmental laws and remedy other national problems. Third, in 
disputes between ordinary American citizens and the powerful 
corporations and government, Judge Alito is often--and too often--on 
the side of the powerful and against the interests of the individual.
  First, I am disturbed by Judge Alito's overall bowing to Executive 
pressure, bowing to Executive power. At a time when President Bush 
asserted unprecedented authority over the lives of American citizens 
and the Republican-controlled Congress seems too willing to cede those 
powers to him, I cannot support the nomination of a judge predisposed 
to giving the President the benefit of every doubt.
  In matters ranging from domestic spying to the use of torture, the 
current President has effectively declared himself above the law. 
Meanwhile, a Congress controlled by the President's party has stripped 
the courts of jurisdiction to hear habeas corpus cases brought by 
Guantanamo detainees, some of whom have absolutely nothing to do with 
terrorism. In the face of such profound threats to the separation of 
powers in our Constitution, we need a Supreme Court comprised of 
independent and impartial judges willing to stand up to imperial 
Presidencies.
  Rather than serving as a check on President Bush's abuses of power, I 
worry that Judge Alito will instead serve as a rubberstamp. Both on and 
off the bench, Alito's writings and opinions show a record of extreme 
deference to Executive power, whether exercised by the President or by 
Federal and local law enforcement officials.
  Even before he was a judge, Alito made a name for himself arguing for 
expansive Executive power. As a Justice Department attorney, he wrote 
that the Attorney General should have absolute immunity from lawsuits 
arising from illegal wiretaps. He also argued on the side of a 
Tennessee police officer who shot and killed an unarmed 15-year-old boy 
not because the officer believed the boy was armed, but to prevent 
escape from a petty crime.
  Alito's judicial rulings on executive power heighten my concerns in 
this area. In the recent decision of United States v. Lee, he found 
that an FBI undercover probe that included audio and video surveillance 
of the defendant's hotel suite without a warrant did not violate the 
Fourth Amendment.
  The government wins, you lose.
  In an earlier case in which Judge Alito voted to uphold the strip-
search of a 10-year-old girl, then-Judge Michael Chertoff, now 
President Bush's Secretary of Homeland Security, criticized Alito's 
views as threatening to ``transform the judicial officer into little 
more than the cliche `rubber stamp.' ''
  Again, government wins, you lose.
  Judge Alito's unshakable deference to police officers conducting 
intrusive searches seems to extend to his view at the power of the 
President to act unilaterally when setting national policies.
  In a speech to the Federalist Society in November 2000, he professed 
his strong belief in the so-called ``unitary executive'' theory of 
constitutional law, a theory embraced by those who advocate for 
expanding executive powers at the expense of the judicial and 
legislative branches of government.
  Judge Alito's disturbing views on the constitutional separation of 
powers is also reflected in his refusal to condemn laws in which 
Congress strips courts of jurisdiction to hear certain disputes. For 
example, Senator Leahy asked the nominee if Congress could strip the 
Supreme Court of jurisdiction over all cases arising under the First 
Amendment. Alito declined to respond directly, saying the matter was 
the subject of academic dispute.
  These comments lead me to doubt that Judge Alito fully appreciates 
that the role of the courts is to protect constitutional rights and 
liberties in the face of an overreaching majority.
  Second, I am concerned that Judge Alito would limit the authority of 
Congress to address environmental protection and other national needs. 
I fear that Alito would join Justices Scalia and Thomas in their 
activist campaign to narrow congressional power under the Commerce 
Clause, a movement that threatens important public health and welfare 
laws in the name of ``federalism.''
  Once again, the roots of Judge Alito's ideology can be found in his 
work during the Reagan Administration. As Deputy Attorney General in 
1986, Judge Alito recommended that President Reagan veto the Truth in 
Mileage Act, a law designed to prevent odometer tampering, because ``it 
violates the principles of federalism.''
  And again, Judge Alito seems to have carried his Reagan-era ideology 
with him when he joined the Third Circuit. In the Chittester case, for 
example, he held that Congress lacks authority to allow State employees 
to enforce aspects of the Family and Medical Leave Act. His logic would 
cripple the ability of Congress to help people with real problems, such 
as those who are disabled. Again, government wins, you lose.
  There is every reason to fear that Judge Alito will work to continue 
the Court's unwarranted restriction of Congressional power in these 
areas.
  Third and finally, Judge Alito's nomination troubles me because in 
his 15 years on the bench he has repeatedly and consistently favored 
the power of government and corporations over the rights of individual 
American citizens. As many commentators have observed, Judge Alito 
hardly ever sides with the proverbial ``little guy.''
  The government wins, you lose.
  A Knight-Ridder review of Alito's 311 published opinions on the 3rd 
Circuit Court of Appeals found that Judge Alito very rarely supports 
individual rights claims. In a separate study, Professor Sunstein found 
that Judge Alito ruled against the individual in 84 percent of his 
dissent--84 percent of the time.
  Again, government wins, you lose.
  In civil rights cases, Judge Alito has often voted to impose higher 
barriers for people with claims of discrimination.
  In Bray v. Marriott Hotels--a case dealing with race discrimination--
his colleagues said Title VII of the Civil Rights Act ``would be 
eviscerated'' if Alito's approach were followed. Again, big business 
would win, and you would lose. And in Nathanson v. Medical College of 
Pennsylvania, he dissented in a

[[Page S348]]

disability rights case where the majority said: ``few if any 
Rehabilitation Act cases would survive'' if Judge Alito's view were the 
law.
  Again, big business and government wins, you lose.
  Perhaps the most important instance when the rights of an individual 
conflict with the interests of the government are when the state seeks 
to carry out the death penalty.
  How anyone could come up with the conclusion of Judge Alito's is 
really hard to understand.
  Senators Leahy and Feingold asked Judge Alito whether it would be 
unconstitutional to execute an ``unquestionably innocent man.''
  The obvious answer from anyone would be quite clear. It would be 
plainly unconstitutional. But Judge Alito refused to say so. Instead, 
he spoke in bland bureaucratic terms about the need for the innocent 
person to file the proper petitions under proper Federal rule.
  Remember, the question was, ``Would it be unconstitutional to execute 
an unquestionably innocent man?'' Of course, it would.
  That was a chilling moment. If the Constitution means anything it 
means that the state cannot put to death an ``unquestionably innocent'' 
person. If Judge Alito cannot say that without equivocation, he is not 
the kind of judge I want on the Supreme Court of the United States.
  These three broad concerns about Judge Alito's record on the bench 
are all the more troubling in light of the fact that Judge Alito has 
been nominated to replace Justice Sandra Day O'Connor, a national icon 
who has been a voice of moderation and reason on the Court for the last 
quarter of a century.
  President Bush was not obligated to nominate a clone of Justice 
O'Connor. But this President has no mandate to move the Supreme Court 
and American law in a radical rightward direction. That is precisely 
what replacing Justice O'Connor with Judge Alito will accomplish.
  That Judge Alito has been nominated to replace Justice O'Connor is 
relevant in another sense. Justice O'Connor was the first of only two 
women ever to sit on the Supreme Court. It remains disturbing to me 
that she would be replaced by a man, leaving only one woman on the 
nine-member Court.
  Today, more than half of the nation's law students are women. There 
are countless qualified women on the bench, in elective office, in law 
firms, and serving as law school deans. I can't believe the President 
searched the country and was unable to find a qualified female nominee. 
But maybe he was unable to find a qualified female nominee who 
satisfied the radical far right wing of the Republican Party.
  Meanwhile, for the third time, this President has turned down the 
opportunity to make history by nominating the first Hispanic to the 
Court. How much longer must Hispanics across America wait before they 
see someone on the nation's highest court who shares their ethnic 
heritage and their shared experiences?
  I have no doubt that Sam Alito is a decent man.
  But a confirmation debate is not a popularity contest. The rights and 
liberties of the American people are at stake. This particular 
nomination raises profound questions about our system of checks and 
balances.
  We need to ask whether a Justice Alito will serve as an effective 
check on a swaggering President and his reckless policies.
  At this critical moment in our Nation's history, I cannot support the 
confirmation of this nominee to fill this vacancy on the Supreme Court 
of the United States.
  The PRESIDENT pro tempore. Under the previous order, the majority 
leader is recognized.
  Mr. FRIST. Mr. President, at the end of a debate in the Senate there 
is rarely a question of whether everything has been said--only whether 
every Senator has said it.
  After 92 days since this nomination was announced, after 30 hours of 
Judiciary Committee hearings, after Judge Alito answered more than 650 
questions, and after 5 days of debate on the floor of the Senate, there 
is little left to be said. So I will be brief.
  To President Bush I say thank you. To President Bush I say thank you 
for nominating such an exceptionally qualified individual as Sam Alito 
to serve on the Supreme Court.
  To my Senate colleagues I say well done to the supermajority of 
Senators who joined yesterday to elevate principle above partisan 
politics and defeat an unjustified filibuster of this nomination.
  And to Judge Alito I say: You deserve the seat on the Supreme Court. 
Today, you will become the 110th Justice to serve on the Court 
throughout America's history. It is a seat that is reserved for a few 
but that impacts millions. May the Constitution and rule of law be the 
light that illuminates each case that comes before you.
  So, momentarily, we will vote from our desks, a time-honored 
tradition that demonstrates, once again, how important and 
consequential every Member takes his duty under the Constitution to 
provide advise and consent on a Supreme Court nomination and to give 
the nominee the fair up-or-down vote he deserves. It is time to call 
the roll.
  There is only one thing left to say. I ask for the yeas and nays on 
the nomination of Samuel Alito to serve as Associate Justice of the 
Supreme Court of the United States.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Samuel A. Alito Jr., of New Jersey, to be an Associate Justice of 
the Supreme Court of the United States? On this question, the yeas and 
nays have been ordered. Senators are requested to vote from their 
seats.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDENT pro tempore. The Chair admonishes all present that no 
reaction to a Senate vote is permitted under Senate rules.
  The result was announced--yeas 58, nays 42, as follows:

                       [Rollcall Vote No. 2 Ex.]

                                YEAS--58

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Roberts
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--42

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carper
     Chafee
     Clinton
     Dayton
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden
  The nomination was confirmed.
  The PRESIDENT pro tempore. The majority leader.
  Mr. FRIST. I move to reconsider the vote.
  Mr. McCONNELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. FRIST. Mr. President, I ask unanimous consent that the President 
be immediately notified of the Senate's action.
  The PRESIDENT pro tempore. Without objection, it is so ordered.

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