[Congressional Record (Bound Edition), Volume 151 (2005), Part 19]
[Senate]
[Pages 26062-26063]
[From the U.S. Government Publishing Office, www.gpo.gov]




                     THE NOMINATION OF JUDGE ALITO

  Mr. REID. Mr. President, 2 weeks ago the President nominated Judge 
Samuel A. Alito to serve on the Supreme Court of the United States. I 
congratulate Judge Alito on this high honor. I pledge that the Senate 
Democrats will help ensure a thorough and dignified confirmation 
process. While I approach the confirmation process with an open mind, 
even at this early stage I have a number of significant concerns I want 
to share with my colleagues.
  First, the President's selection of Judge Alito was not at all the 
product of consultation with Senate Democrats, as envisioned by the 
Founding Fathers. On two prior occasions President Bush spoke with me. 
He invited Senator Leahy and me to the White House to discuss the 
future of the Supreme Court. The President listened seriously to our 
views and appeared to understand that the job of filling judicial 
vacancies is a constitutional responsibility that he shares with the 
Senate.
  But this time, instead of an invitation to the White House, I 
received nothing more than a pro forma telephone call from the 
President's Chief of Staff, telling me he had selected Judge Alito 
about an hour before he announced the nomination. In fact, the 
President did consult about the Alito nomination but with the wrong 
people. It wasn't with me and it wasn't with Senator Leahy. According 
to widely recognized press reports, the White House consulted with 
conservative activists to make sure the President would not disappoint 
them with his selection. I think the term conservative activists is 
probably very broad, too broad; with some extremes--extreme on the 
right wing. Some of these extreme Web sites received word of the Alito 
nomination before any Senate Democrat was even consulted or informed.
  Consultation is not just a courtesy; it is a way for the President to 
ensure that a candidate for a lifetime appointment to the Supreme Court 
receives broad bipartisan support in Congress. That was what our 
Founding Fathers talked about. That is why that provision is in the 
Constitution. The constitutional design commands a partnership in this 
endeavor, not mere notification of the coequal branch of Government.
  The second reason I have early concerns about this nomination is that 
it represents an abandonment of the principle that the Supreme Court 
should be comprised of highly qualified individuals with diverse 
backgrounds, experiences, and heritages. It is so striking that 
President Bush has chosen a man to replace Justice Sandra Day O'Connor, 
the first of only two women ever appointed to the Supreme Court. Today, 
unlike 24 years ago, when Sandra Day O'Connor herself was nominated, 
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 and law professors. I cannot 
believe the President searched this country and was unable to find a 
qualified female nominee. But maybe he was unable to find a qualified 
female nominee who happened to satisfy the extreme right wing of the 
Republican Party.
  Meanwhile, for the third time the President has turned down the 
opportunity to make history by nominating the first Hispanic to the 
Supreme Court. How much longer must Hispanics wait before they see 
someone on the Nation's highest Court who shares their ethnic heritage 
and their shared experiences?
  At the same time, the appointment of Judge Alito largely fails to 
diversify the Court in terms of professional experience. Judge Alito is 
a long-serving Federal appellate judge who would join eight other 
justices with that very same professional credential. While his prior 
service as a Federal prosecutor is commendable and worthwhile, he was 
essentially an appellate lawyer like a number of the sitting justices.
  We have come a long way from the days when Senators, bar leaders, 
trial lawyers, leading professors and others with a wide range of life 
experiences were routinely appointed to the Supreme Court. If Judge 
Alito is confirmed, the range of professional diversity on the Court 
will extend all the way from those who served on the D.C. Circuit to 
those who served on the First, Third, Seventh, or Ninth Circuit before 
their promotions.
  The third and most important basis for my early concern about the 
Alito nomination is the fact that he was nominated following the forced 
withdrawal of White House Counsel Harriet Miers. Harriet Miers received 
a raw deal from her critics. This woman had been the managing partner 
of a major American law firm, the first female

[[Page 26063]]

president of the Dallas Bar Association--which, by the way, is larger 
than most State bar associations. She was the first female president of 
the Texas Bar Association. She had been one of the Nation's leaders in 
promoting opportunities for women lawyers and minority lawyers. She has 
been a champion of ensuring legal representation for the poor. She was 
a trial lawyer. The one-dimensional portrait her opponents painted of 
her was malicious and unfair.
  Let's not sugarcoat the truth. The nomination of Harriet Miers was 
derailed by the overwhelming opposition of the extreme right wing. They 
campaigned against her, they ran paid advertising against her, and they 
finally succeeded in having the President cave in to these radical 
right wing activists. They succeeded in defeating her nomination even 
before this fine woman was afforded an opportunity to make her case to 
the Senate Judiciary Committee.
  Earlier this year we heard Senator after Senator on the other side of 
the aisle, and conservative commentators across the airwaves, declare 
that every judicial nominee is entitled to an up-or-down vote. I have a 
question for those Senators, those commentators: When exactly will 
Harriet Miers receive her up-or-down vote?
  The White House made a half-hearted effort to argue that the Miers 
nomination was withdrawn in the face of an impasse over what documents 
would be provided to the Senate. That is a pretext, a laughable cover 
story.
  She was forced to withdraw by conservative activists who want to 
change the legal landscape of America. They decided she was 
inadequately radical or insufficiently aggressive for their purposes, 
so they gave her the boot. You don't have to take my word for it. 
Listen to the words of John Danforth, our former colleague, Senator 
from Missouri and, until recently, President Bush's Ambassador to the 
United Nations. He was asked on CNN recently who he thought were the 
winners in the Miers episode. I quote his answer:

       The big winner is the right wing of American politics. They 
     have scored a big victory. This was a power play on their 
     part. And they won it . . . they took on Harriet Miers for no 
     explainable reason. It was really an outrage, in my opinion, 
     that this happened.

  Senator Danforth is himself a pro-life Republican and an ordained 
Episcopal priest, but listen to what he says about his fellow 
Republicans:

       I am very concerned about the ascendancy of the political 
     right, particularly in the Republican Party. It's very 
     obvious that nobody can do enough to please them. The 
     President certainly can't. . . . They gave him a kick in the 
     teeth. I think [the Republican Party has] been taken over by 
     people I feel uncomfortable with and a lot of Republicans 
     feel uncomfortable with . . . They want a political judge. 
     They want a judicial activist.

  Senator Danforth has revealed an important truth about today's 
Republican Party. His warnings are precisely why the Senate needs to 
take a long, hard look at the Alito nomination.
  Even in the first 2 weeks of the confirmation process, a picture of 
Sam Alito is emerging that may explain why the extreme right wing is 
popping champagne corks. Earlier this week we learned of the 1985 memo 
in which Alito said, ``I am, and always have been a conservative.'' He 
also spoke proudly of his work on behalf of an extremely conservative 
agenda of the Reagan Justice Department.
  We don't have to guess whether Judge Alito's description of himself 
in that memo would predict what kind of a judge he would be. For the 
past 15 years, Judge Alito has been one of the most conservative judges 
in the country--some would say extreme. For example, in civil rights 
cases he has often dissented to argue for higher barriers to recovery 
for people with claims of discrimination. In Bray v. Marriott Hotels, 
his colleagues said Title VII of the Civil Rights Act ``would be 
eviscerated'' if Judge Alito's approach were followed. In Nathanson v. 
Medical College of Pennsylvania, he dissented in a disability rights 
case where the majority said, ``few if any Rehabilitation Cases would 
survive'' if Judge Alito's views were the law. And in Sheridan v. 
DuPont, he was the only one of 11 judges on the court who would apply a 
higher standard of proof in sex discrimination cases.
  In another area of law, Judge Alito has been quick to limit the 
authority of Congress, even when it is working to help people solve 
real problems. In Chittester v. Department of Community Development, he 
held that the Constitution did not allow a State employee to enforce 
the Family and Medical Leave Act. The Supreme Court effectively 
repudiated that view 3 years later in the Hibbs case from my own State 
of Nevada.
  These are a few of Judge Alito's many judicial opinions which merit 
close review by the Senate. By all accounts, Sam Alito is a decent man, 
well liked by his colleagues. He has devoted his entire legal career to 
public service, and for that I admire him. Throughout the confirmation 
process I will work to ensure that Judge Alito is treated with civility 
and respect. But there is nothing disrespectful about an open and fair-
minded review of a nominee's approach to the Constitution and his 
commitment to the core American values such as equality, privacy, 
fairness.
  One final point. This nomination will be governed by the 200-year-old 
rules of the Senate. I was very dismayed to read an essay by the 
majority leader in the Chicago Tribune last week in which he threatened 
to change the rules of the Senate to ensure that Judge Alito would be 
confirmed. Think about that. My friend, the majority leader, wrote:

       If members of the Democratic minority persist in blocking a 
     vote on Alito's nomination, the Senate will have no choice 
     but to change the rules.

  The majority leader's accusation is baseless. Democrats can hardly 
persist in an activity in which we are not engaged. No Democrat has 
even raised the issue of extended debate. At this early stage of the 
process, 2 months before committee hearings on this nomination will 
begin, it is silly to argue about the terms of floor debate. Earlier 
this year, the entire Senate breathed a sigh of relief when the so-
called ``nuclear option'' was averted by an agreement of a bipartisan 
group of Senators. We don't know what is going to happen on this 
nomination. The majority leader should put his sword back in its sheath 
and let the Senate move forward on this nomination without idle 
threats. Let's not talk about changing the Senate rules illegally. 
Let's not start talking about blaming the Democrats for something in 
which they are not engaged.
  I am confident the Senate Judiciary Committee, under the able 
leadership of the senior Senators from Pennsylvania and Vermont, will 
do a good job of illuminating Judge Alito's record and views. The rest 
of the Senate and the rest of our Nation will pay close attention.

                          ____________________