Mr. President, the most momentous votes I have cast during my years in this Senate were on two war resolutions, one against al-Qaida and the Taliban, which I supported, and the other against Iraq, which I opposed. After those…
Mr. President, the most momentous votes I have cast during my years in this Senate were on two war resolutions, one against al-Qaida and the Taliban, which I supported, and the other against Iraq, which I opposed.
After those life-and-death decisions, I cannot recall another vote of more long-lasting importance than on the two nominees for the United States Supreme Court: Chief Justice Roberts and now Judge Alito. The statements of my colleagues which I have witnessed have evidenced the utmost seriousness with which we have undertaken this grave responsibility.
The Constitution does not prescribe any criteria which a President must consider in choosing his nominees for the Supreme Court. Neither does the Constitution prescribe any criteria by which Senators must consider those nominees and decide whether to vote for or against their confirmations. We must each establish our own measures, search our own consciences, and make our own individual decisions.
Most of this process has been appropriately dignified and respectful, as it was with Chief Justice Roberts. I myself was not troubled by the detailed questioning of either nominee during their Judiciary Committee hearings. That is the one and only opportunity for any Senators to question a nominee in a public forum, before all Senators must decide whether or not to confirm that person to be one of nine Supreme Court Justices for the rest of his or her life. No other public office in this country offers such longevity and almost irrevocable security as Federal judiciary.
I want to commend the members of the Judiciary Committee. I certainly want to associate myself with the remarks of Senator Stevens regarding the distinguished chairman, Senator Specter, whose personal courage and integrity are examples for us all, and the ranking member, Senator Leahy, who also holds himself to those high standards. I have read the transcripts from their confirmation hearings. Their questions, and the extensive research which informed them, brought, I believe, great credit upon them and their committee.
Judge Alito's answers were also illuminating about him, although not in the same way as committee members' questions. A New York Times headline best summarized for me Judge Alito's responses: It said, ``700 Answers; Few Glimmers.'' Again and again, his answers were evasive. Some were simply not believable.
I would find it difficult to support Judge Alito's confirmation, given his past opinions, as expressed during his 15 years as a Federal Circuit Court Judge and also prior to that time as an official in the Reagan administration. I find it impossible to support him, given his recent lack of candor and credibility before the Judiciary Committee.
Let me give some examples. On the critical question of whether he continues to believe, as he stated in 1985, that the Constitution does not provide a woman with the right to make her own reproductive decisions, regardless of how they affect her life or her health, Judge Alito would not give an answer. Nineteen times he was asked whether he believed Roe v. Wade was ``settled law,'' as Chief Justice Roberts affirmed during his Judiciary Committee hearings, as ``super precedent'' as the distinguished committee chairman suggested, or simply whether he had changed his 1985 position. He rejected the first two and refused to answer the third. My colleague, Senator Schumer, tried seven times to get a straight answer to a very straightforward question:
In 1985 you stated--you stated it proudly, unequivocally,
without exception--that the Constitution does not protect a
right to an abortion. Do you believe that now?
Judge Alito's replies included:
I would address that issue in accordance with the judicial
process as I understand it and I have practiced it. . . .
and:
Senator, I would make up my mind on that question if I got
to it. . . .
The most Judge Alito would say about Roe v. Wade or the subsequent Casey Supreme Court decisions was that they were precedents. As my sons used to say, ``Well, duh.'' Everyone knows that every prior Supreme Court decision constitutes a precedent. Again and again--and again-- Judge Alito invoked this platitude about respect for stare decisis, even though, as Senator Coburn pointed out, precedents have been overturned by the Supreme Court more than 170 times involving some 225 cases.
Senator Coburn had the candor to state clearly that he wants Roe v. Wade to be overturned, so I can only assume that his pointed historical references were intended to reassure all with similar views that they could continue to rely on Judge Alito to help form a Supreme Court majority which would reverse Roe v. Wade.
Judge Alito is certainly entitled to his personal views and constitutional interpretations. The American people are entitled to know what they are before he is placed on their Supreme Court for the rest of his life, because his views and interpretations will profoundly affect their lives and the lives of future Americans.
Unfortunately, Judge Alito denied most of us those answers. It is noteworthy, however, that the Senators who feel most strongly about overturning Roe v. Wade all support Judge Alito and seem comfortable with his nonanswers. I can't imagine such equanimity without other, private assurances that the nominee's bland platitudes belie a bedrock anti-Roe predisposition, as he stated candidly in 1985.
Certainly, the country's anti-abortion activists get it. The thousands of them who marched on the Capitol last Tuesday reportedly cheered every time Judge Alito's name was mentioned. Quoting parts of the New York Times and Washington Post reports:
We must support the confirmation of Judge Alito and other
jurists who will support a strict-constructionist view of the
law and make it possible once and for all to end Roe v.
Wade.'' Rep. Mike Pence (R-Ind.), a leading House
conservative, thundered.
While Mr. Bush made no explicit mention of his nomination
of Judge Samuel A. Alito Jr. to the Supreme Court, the
expectation that the judge would soon win Senate approval and
join a majority in overturning Roe was clearly the
overarching message of the rally. . . .
Most chillingly:
Nellie Gray, the president of March for Life, the group
that organized the rally, said reversing Roe was this year's
theme. Speaking to the crowd in fiery tones, Ms. Gray
predicted that the United States would hold the
equivalent of Nuremberg trials for ``feminist abortionists,''
calling support for a woman's right to choose ``crimes
against humanity.''
Let me turn to other subjects. I agree with my colleague from Oklahoma, who told Judge Alito on the third day of the Judiciary Committee hearings:
Integrity, I think, is the No. 1 issue.
I always feel uncomfortable to stand in judgment of another person's integrity--or other matters of personal character--especially someone whom I do not know personally. No one is perfect. I like to say that there are no saints in politics--only shades of sinners.
Yet I agree with Senator Coburn about the importance of integrity in a candidate for such a high public office as the United States Supreme Court or the U.S. Senate.
So, I am very troubled by Judge Alito's answers to the Senate Judiciary Committee about two incidents: his membership in the Concerned Alumni of Princeton University and his initial failure to recuse himself from the case involving the Vanguard Group.
Judge Alito acknowledged to the committee that he himself listed his membership in the Concerned Alumni of Princeton University in his 1985 application for appointment by then-President Reagan to an important position in the U.S. Department of Justice. Presumably, he considered his membership to be a positive reason for his favorable consideration. Yet he repeatedly professed total ignorance of the organization's repeatedly expressed, very extreme prejudices against the admission of women and minorities to his alma mater. His only acknowledged glimmer of recollection was that he was concerned about the status of ROTC on the Princeton campus, even though, the committee research found ROTC had been readmitted by Princeton way back in 1973, and the only reference to it found in the Concerned Alumni's publication, Prospect, was in 1985, ``ROTC is popular again.''
I find it not believable that Judge Alito would have no recollection of the extreme and extremely controversial views of the Concerned Alumni at the time he joined the organization or listed it as one of his credentials for the Reagan administration 20 years ago. He is too intelligent. His mind is too sharp. He recalls in great detail his judicial decisions and writings during the past 15 years and their precedents from the previous 200 years. He remembers the details of decisions in 1969 about ``one person--one vote.'' He remembers the context for other controversial statements in his 1985 application and subsequently. Yet he professes to be unable to remember why he joined the Concerned Alumni of Princeton University, why the president of Princeton wrote to all Princeton alumni in 1984, calling the organization's extremist views ``callous and outrageous,'' or why he thought his membership would enhance his appeal to the Reagan administration. I find it absolutely unbelievable.
I am also troubled by many of Judge Alito's answers to questions about his initial failure to recuse himself from a case involving the Vanguard Group, in which he had a financial interest that preceded his appointment to the Third Circuit Court in 1990. During those confirmation hearings before the Senate Judiciary Committee, Judge Alito promised, in writing:
I would disqualify myself from any cases involving the
Vanguard Companies. . . .
I could accept--with reluctance, but I could accept--Judge Alito's admission that his failure to recuse himself was an ``oversight'' for which he accepted responsibility, after he and the White House initially tried to pass it off as a computer glitch. As Senator Feingold established, there is no evidence that Judge Alito ever registered his promise to the committee on the Court's recusal form in 1993, 1994, 1995, 1996, or any time before he failed to recuse himself in 2002.
Then, however, Judge Alito reached for the escape hatch that Senator Hatch offered him, i.e., that his 1990 promise applied only to ``conflicts of interest during your initial service in the position to which you have been nominated.''
In the committee transcript, Chairman Specter said:
You, in response to Senator Hatch, did not believe that you
are bound by the promise, because you said in your mind that
you felt that it was just for the initial aspects of it.
Senator Kennedy said:
That's another issue, because initially was meant to
include the investments that you had at that particular time.
You might have those investments and then discard an
investment and, therefore, no longer have a conflict. That is
what the asker of the question had intended. But you've added
another wrinkle to it. You've just indicated that when you
made a pledge to the committee that you were going to recuse
yourself, that you thought that at sometime you were going to
be released. . . .
Judge Alito responded:
Senator, as I said, I can't tell you 15 years later exactly
what I thought when I read that question. It refers to the
initial period of service. And looking at it now, it doesn't
seem to me that 12 years later is the initial period of
service.
I know from my own experience--as Judge Alito should also know--that a financial conflict of interest lasts for as long as the financial interest. It is not in any way limited or mitigated by time. That is a matter of integrity, not interpretation.
In other areas, I am deeply troubled by Judge Alito's well-documented biases against individual Americans and in favor of large and powerful corporations and government organizations. The Knight Ridder Newspapers, which publishes two of Minnesota's three largest newspapers, did an excellent analysis of Judge Alito's judicial record. I would like to quote excerpts from it.
It begins:
A Knight Ridder review of Alito's 311 published opinions on
the 3rd Circuit Court of Appeals--each of singular legal or
public policy importance--found a clear pattern. Although
Alito's opinions are rarely written with obvious ideology,
he's seldom sided with a criminal defendant, a foreign
national facing deportation, an employee alleging
discrimination or consumers suing big businesses.
A review of Alito' s work on dozens of cases that raised
important social issues found that he rarely supports
individual rights claims. The primary exception has been his
opinions about First Amendment protections. Alito has been a
near freespeech absolutist in his writings, and he's been
equally strong on protecting religious freedoms.
But even some of his First Amendment opinions underscore
the bent in the rest of his work. He hasn't strictly enforced
church-state separation, and his love of the First Amendment
seems to stop at the prison walls. He has written opinions
that would deny prisoners access to reading materials and
curtail their rights to practice their religious beliefs.
In other areas, Alito often goes out of his way to narrow
the scope of individual rights, sometimes reaching out to
undo lower-court rulings that affirmed those rights.
Alito has been particularly rigid in employment
discrimination cases.
Many conservative jurists set a high bar for plaintiffs who
allege racial, gender or age bias in the workplace, but Alito
has seldom found merit in a bias claim. In most of the
employment discrimination cases, Alito succeeded in
applying a standard higher than the Supreme Court requires
to plaintiffs' claims, often forcing them to prove that
bias was the motivation behind their misfortunes. In two
cases, Alito dissented from 3rd Circuit rulings that
allowed discrimination claims to proceed. In one, a racial
discrimination case involving a black hotel maid, Alito
agreed that the woman had been treated unfairly, but he
said that the employer had produced enough evidence to
show that the unfair treatment didn't amount to illegal
discrimination.
Although Alito is the son of Italian immigrants, his record
in immigration cases is similar to his perspective in
criminal cases. He's demonstrated an inclination to defer to
the judgment of the immigration courts, which are under the
Justice Department's umbrella. As a result, a noncitizen
fighting deportation is paddling upstream with Alito.
Legal scholars, and some of Alito's supporters, have
pointed to his decision in the case of Parastoo Fatin, a
young Iranian woman who was fighting deportation in the early
1990s, as evidence of his scholarship and his impact on
immigration law. Alito ruled in Fatin's case that gender-
based persecution could be grounds for asylum. But the ruling
was a hollow victory for Fatin. She lost her case when Alito
found that she hadn't shown enough factual evidence to prove
that she'd be persecuted if she were sent back to Iran. It
was typical Alito--an impeccably crafted decision that denied
relief to an individual.
Finally, I am very concerned with Judge Alito's view of executive power which reigns supreme over Congress and the judiciary. That radical view threatens the checks and balances the Constitution created among the three coequal branches of government to protect our democracy and the rights of all American citizens.
All Senators--not just those on my side of the aisle--should be deeply troubled about Judge Alito's position on Executive power. He believes the President has the right to interpret laws as
he wishes, rather than as they are written.
As one illustration, while he served as Deputy Assistant Attorney General in the Reagan administration, Judge Alito recommended the use of interpretive presidential ``signing statements''--statements issued by the President when signing a bill not only to explain why the President signed it into law but also to provide his view of how the law should be interpreted.
The apparent purpose of such statements is to encourage the courts to pay as much attention to the President's interpretation of a law as they do to the legislative branch and give the President the ``last word on questions of interpretation.'' Judge Alito explained that such statements would ``increase the power of the Executive to shape the law.''
He also wrote in that memo: A ``President's understanding of a bill should be just as important as that of Congress.'' As a recent Los Angeles Times editorial stated, ``On its face, the assertion threatens to undermine the fundamental constitutional principle that it is for Congress to write the laws and for the executive to well execute them.''
President Bush has issued over 100 signing statements since 2001. The most notable was his signing statement a couple days after he signed into law H.R. 2863, the Department of Defense emergency supplemental appropriations, which contained Senator McCain's amendment banning inhumane treatment of detainees by U.S. personnel. The President, in his signing statement, basically asserted he could ignore parts of the law he had just signed under his constitutional authority.
Nowhere in the Constitution does it say a President can ignore the parts of a law he doesn't like.
Nowhere in the Constitution is there mention of ``signing statements.'' The Constitution makes it very clear under article I, section 7 what the President can do with legislation that Congress has enacted. He can sign it into law as it is written by Congress or he can veto it. There is no other option.
For almost 190 years, our country's first 39 Presidents followed this very clear language of the Constitution. However, then-Deputy Assistant Attorney General Alito in 1985 decided that he could ignore all those precedents and try to fabricate this ill-considered power for the President.
As yet, the Supreme Court has not been called upon to decide whether this unprecedented exaggeration of Presidential power is Constitutional. Can there be any doubt, however, how Judge Alito would vote in such a case?
In closing, some critics are blaming the Senators who oppose Judge Alito for the absence of bipartisan unanimity in support of the President's nominee. Their blame is misplaced. The way to get broad, bipartisan consensus for a Supreme Court nominee is for the President to nominate someone from near the middle of the judicial mainstream, a nominee who promises to be a Justice for all of the American people, not just for those on one side of the social spectrum.
President Bush initially proposed someone who might have offered that possibility: Harriet Miers. In addition to her moderately conservative views, she would have maintained the Court's gender imbalance at two women and seven men. By contrast, if Judge Alito is confirmed, that appalling under-representation of America's women will become even worse. Our nation's highest court, the ultimate arbiter of the rights and protections for all citizens, will be comprised of eight men and only one woman, of eight Caucasians and only one minority.
Unfortunately, the activist extremists on the country's political right erupted against Ms. Miers. Their vicious denunciations of the nominee and threats of political reprisals against her supporters prevailed, before her capabilities could be reasonably considered.
Now some of that nominee's destroyers are sanctimoniously bemoaning the absence of unanimous support for this nominee.
Unfortunately, their sound and fury, as Shakespeare said, signify nothing. Sadly, their winning this confirmation will not be a victory for this country because, tragically, they profoundly misunderstand the essential reason for the Supreme Court, which is to protect each one of us from all the rest of us, to protect the ``life, liberty, and pursuit of happiness'' of a minority of Americans from the potential domination by the majority.
The nine men and women on the Supreme Court must protect everyone by belonging to no one. The goal of ``taking over'' the Supreme Court is shortsighted, narrow-minded, and wrong. Their success is America's peril. For our great Nation to continue to succeed, any and every such effort must fail. That failure is America's victory.