[Congressional Record (Bound Edition), Volume 152 (2006), Part 1]
[Senate]
[Pages 346-361]
[From the U.S. 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 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.

[[Page 347]]


  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 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

[[Page 348]]

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 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

[[Page 349]]

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 with the constitutional authority 
of

[[Page 350]]

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.

[[Page 351]]

  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 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

[[Page 352]]

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 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.
  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

[[Page 353]]

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.
  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

[[Page 354]]

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 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

[[Page 355]]

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 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

[[Page 356]]

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 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.

[[Page 357]]

  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, 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

[[Page 358]]

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?
  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

[[Page 359]]

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 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

[[Page 360]]

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 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

[[Page 361]]

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.

                          ____________________