U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court
Monday, January 9, 2006; 12:59 PM
Read below the opening statements from the first thirteen senators. The final statements, and Judge Alito's opening statement, can be found in Part II.
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
JUDGE SAMUEL A. ALITO,
NOMINATED TO BE AN ASSOCIATE JUSTICE OF
THE U.S. SUPREME COURT
U.S. SENATOR FRANK LAUTENBERG (D-NJ)
CHRISTINE TODD WHITMAN (R),
FORMER GOVERNOR OF NEW JERSEY
SPECTER: Good afternoon, ladies and gentlemen. The Senate Judiciary Committee will now proceed to the confirmation hearings of Judge Samuel Alito Jr., for the Supreme Court of the United States.
A few matters of administration or housekeeping, and then we will proceed to the opening statements.
Today we will hear first from Judge Alito's introduction of his family.
Judge, the floor is yours to introduce your family.
ALITO: Thank you very much, Mr. Chairman.
Let me introduce my wife Martha, who's here today. And my sister Rosemary, who's a lawyer in New Jersey and a tough trial lawyer. I'm glad that she took time from her schedule to come to the hearing today.
My daughter Laura, who is a senior at James Caldwell High School in West Caldwell, New Jersey, and if a father can be permitted to brag for a second, a really great swimmer who led her high school team to win the county championship last week.
My son Philip who's a second-year student at the University of Virginia.
And when I had my confirmation hearing for the Court of Appeals, Philip was 3 years old. And when I was called up to the chair he took it upon himself to run up and sit next to me in case any hard questions came up.
I don't know whether he's going to try the same thing tomorrow, but probably I could use the help.
I'm glad that my in-laws are able to be here today. My father- in-law, Gene Bomgardner, who is a retired Air Force NCO. And my mother-in-law, Barbara Bomgardner, who is a retired Air Force librarian.
And my cousins, Andrew and Alda Mercurio (ph) from Lynn Valley (ph), Pennsylvania, are also here.
My mother, who turned 91 a couple of weeks ago, unfortunately is not able to be here today, but I'm sure she's watching at home.
ALITO: Thank you very much, Mr. Chairman.
SPECTER: Well, thank you, Judge Alito. You have a beautiful family, and we're delighted to have them with us on the confirmation proceedings.
We will have 10-minute rounds of opening statements: each senator, 10 minutes. We will then turn to the presenters of those who will be presenting Judge Alito formally to the committee. And then we will administer the oath to Judge Alito and we will hear his testimony.
We will begin tomorrow morning at 9:30 for the opening round of questions. Each senator will have 30 minutes on the opening round and we have a second round scheduled of 20 minutes for each senator. And then we will see how we will proceed.
Our practice is to adhere to the time limits. And we do that for a number of reasons. One of them is that senators come and go and if we maintain the schedule which is known to everybody, they know when to return for their next round of questions.
We will take 15-minute breaks at a convenient time. And again, we will hold the breaks to 15 minutes.
I've worked closely with Senator Leahy on scheduling matters and all other matters. And this is the model that we used for the confirmation of Chief Justice Roberts.
It is our intention to conclude the hearings this week. And as Senator Leahy and I worked out the arrangements to have a markup on Tuesday of January 17th, subject to something extraordinary happening.
SPECTER: Now let me yield to the distinguished ranking member, Senator Leahy.
LEAHY: Well, Mr. Chairman, I don't want to hold up your opening statement or the others.
I do appreciate people being here. As the Roberts hearings showed -- for Chief Justice John Roberts -- there will be real questions asked, I would hope. I would hope senators on both sides of the aisle would do that. I think it's important, when we are talking about a position representing 295 million Americans.
On the schedule, I will work with the senior senator from Pennsylvania, the chairman. I understand, as one of our leaders once said, getting senators to all move in order is like having bullfrogs in a wheelbarrow.
But we will continue to work with that. I think the most important thing is we have a good solid hearing this week.
And, Mr. Chairman, you have been totally fair in your procedures for this, as always.
SPECTER: Thank you very much, Senator Leahy.
And now we begin the opening statements.
No senator's vote, except for the declaration of war or the authorization for the use of force, is more important than the confirmation of a nominee for the Supreme Court for a lifetime appointment.
Judge Alito comes to this proceeding with extensive experience as a government lawyer, as a prosecutor and as a judge. He has written some 361 opinions. He has voted in more than 4,800 cases. And it is possible to select a few of his cases to place him at any and every position on the judicial spectrum. By selecting the right cases, he can look like a flaming liberal or he can look like an arch- conservative.
This hearing will give Judge Alito the full opportunity to address the concerns of 280 million Americans on probing questions which will be put to him by 18 senators representing their diverse constituencies.
SPECTER: I have reserved my own nomination on this -- my own vote on this nomination until the hearing is concluded. I'm committed, as chairman, to a full, fair and dignified hearing. Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should be in substance and in perception for all Americans.
There is no firmly established rule as to how much an a nominee must say to be confirmed. While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the court, senators may ask whatever they choose and the nominee is similarly free to respond as he chooses.
It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed.
Last year, when President Bush had two vacancies to fill, there was concern expressed that there might be an ideological change in the court. The preliminary indications are from Chief Justice Roberts' performance on the court and his Judiciary Committee testimony on modesty, stability and not jolting the system, all suggest that he will not move the court in a different direction.
If that holds true, Judge Alito, if confirmed, may not be the swing vote regardless of what position Judge Alito takes on the political spectrum.
Perhaps the dominant issue in these hearings is the widespread concern about Judge Alito's position on a woman's right to choose. This has risen, in part, because of a 1985 statement made by Judge Alito that the Constitution does not provide for the right to an abortion. It has risen, in part, because of his advocacy in the Solicitor General's Office seeking to limit or overrule Roe and from the dissenting portion of his opinion in Casey v. Planned Parenthood in the 3rd Circuit.
This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead, he will weigh factors such as stare decisis -- that is, what are the precedents -- that he will weigh women's and men's, too, reliance on Roe, and he will consider, too, whether Roe is, quote, "embedded," in the culture of our nation.
SPECTER: The history of the court is full of surprises on the issue. The major case upholding Roe was Casey v. Planned Parenthood, where the landmark opinion was written jointly by three justices: Justice O'Connor, Justice Kennedy and Justice Souter.
Before coming to the court, Justice Souter, Justice Kennedy and Justice O'Connor had all expressed views against a woman's right to choose. David Souter, as attorney general of New Hampshire, even opposed changing New Hampshire's law prohibiting abortion, even after the Supreme Court of the United States had declared it unconstitutional.
At the time of Justice Souter's confirmation hearing, there was a Stop Souter rally of the National Organization for Women a few blocks from where we currently are holding this hearing, displaying in red a banner: "Stop Souter or women will die." Stop Souter Rally, a mass lobbying day -- somewhat similar to this morning's press where banners are paraded in front of the Supreme Court, "Save Roe," and brochure circulated again by NOW, "Save women's lives; vote no on Alito."
SPECTER: So the history of this issue has been one full of surprises.
This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act.
This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases, where Justice Jackson wrote, quote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right and all that Congress can delegate. When the president acts in absence of a congressional grant of authority, he can rely only upon his own independent powers. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."
And as Justice Jackson noted, quote, "What is at stake is the equilibrium established in our constitutional system."
Another major area of concern is congressional power. And, in recent decisions, the Supreme Court of the United States has declared acts of Congress unconstitutional, really denigrating the role of Congress.
In declaring unconstitutional legislation designed to protect women against violence, the Supreme Court did so notwithstanding a voluminous record in support of that legislation, but because of Congress', quote, "method of reasoning"; rather insulting to suggest that there is some superior method of reasoning in the court.
SPECTER: When the Supreme Court handled two cases recently on the Americans for Disability Act, they upheld the act as it applied to discrimination as to access and declared it unconstitutional as it applied to discrimination in employment.
They did so by applying a test of what is called "congruent and proportionate," which, candidly stated, no one can figure out.
In dissent, Justice Scalia called it a, "flabby test, where the court set itself up as the taskmaster to see if Congress had done its homework." And Justice Scalia said that it was, "an invitation to judicial arbitrariness by policy-driven decision-making."
And this hearing, I know will involve consideration as to Judge Alito's views on congressional power.
There is reason to believe that our Senate confirmation hearings may be having an effect on Supreme Court nominees on their later judicial duties. Years after their hearings, Supreme Court justices talked to me about our dialogues at these hearings.
This process has now evolved to a point where nominees meet most of the senators. In this process, nominees get an earful. While no promises are extracted, statements are made by nominees which may well influence their future decisions.
SPECTER: Chief Justice Roberts, for example, will have a tough time giving a jolt to the system after preaching modesty and stability.
There is, I think, a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our constitutional process, as the president nominates, the Senate confirms or rejects and the successful nominee ascends to the bench.
While it may be a bit presumptuous, I believe the framers, if they were here, would be proud and pleased to see how well their constitution is being applied.
My red light just went on and I now yield to my distinguished colleague, Senator Leahy.
LEAHY: Thank you, Mr. Chairman.
Good afternoon, Judge and Mrs. Alito and the others.
You know, following up on what the chairman was saying, the challenge for Judge Alito in the course of these hearings is to demonstrate that he's going to protect the rights and liberties of all Americans and, in doing that, serve as an effective check on government overreaching.
I have said that the president did not help his cause by withdrawing his earlier nomination of Harriet Miers in the face of criticism from the narrow faction of his own party who were concerned about how she might vote.
Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure a small faction of our population, while leaving the American people in the dark.
I think we'd all agree, no president should be allowed to pack the courts, especially the Supreme Court, with nominees selected to enshrine presidential claims of government power.
LEAHY: 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.
So this hearing is the opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he -- you, Judge -- will protect their liberty, their privacy and their autonomy from government intrusion.
The Supreme Court belongs to all Americans, not just to the person occupying the White House and not just to a narrow faction of either political party.
The Supreme Court is our ultimate check and balance. Independence of the court and its members is crucial to our democracy and our way of life.
And the Senate should never be allowed to be a rubber stamp. Neither should the Supreme Court. So I will ask the judge to demonstrate his independence from the interest of the president appointing him or nominating him.
This is a nomination to a lifetime seat on the nation's highest court. It's going to a seat that's often represented the decisive vote on constitutional issues, so we have to make an informed decision. That means knowing more about Samuel Alito's work in the government and knowing more about his views.
I will, as the judge knows, ask about the disturbing memorandum he wrote to become a political appointee in the Meese Justice Department. In that, he professed concern with the fundamental principle of one person, one vote, a principle of the equality that's the bedrock of our laws.
LEAHY: And this hearing is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter on the meaning of the Constitution and its laws.
Has he demonstrated commitment to the fundamental rights of all Americans? Will he allow the government to intrude on Americans' personal privacy and freedoms?
In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially important. It's important to know whether he would serve with judicial independence or as a surrogate for the president nominating him.
And so this public conversation, this hearing over the next few days, is extremely important. It's the people's Constitution and the people's rights that we're all charged with protecting and preserving.
In this hearing, we embark on the constitutional process, one that was designed to protect these rights and has served this country for so very well for more than two centuries.
I'm reminded of a photograph, Mr. Chairman, that hangs in the National Constitution Center in Philadelphia. Shows the first woman ever to serve on the Supreme Court of the United States taking the oath of office in 1981. Justice Sandra Day O'Connor serves as a model Supreme Court justice, widely recognized as a jurist with practical values, a sense of the consequences of the legal decisions being made by the Supreme Court.
And I regret that some on the extreme right have been so critical of Justice O'Connor and have adamantly opposed the naming of a successor who shares her judicial philosophy and qualities. And their criticism actually reflects poorly upon them. It does nothing to tarnish the record of the first woman to serve an associate justice of the Supreme Court of the United States.
She's a justice whose graciousness and sense of duty fuels her continued service, even agreeing to serve more than six months after her retirement date. And I know both you and I commend her for that.
The court that serves America should reflect America. This nomination was an opportunity, of course, for the president to make a nomination based on diversity. He didn't, even though there's no dearth of highly qualified Hispanics and African-Americans, other individuals who could well have served as unifying nominees while adding to diversity.
Actually I look -- but that, of course, is the president's choice, Judge, not yours. But I look forward to the time when the membership of the Supreme Court's more reflective of the country it serves.
LEAHY: Now, as the Senate begins its consideration of President Bush's nominee, his third to this seat, to Justice O'Connor's seat, we do so mindful of her critical role on the Supreme Court. Her legacy is one of fairness. And when I decide how to vote it's because I want to see that legacy preserved.
Justice O'Connor has been a guardian of the protections the Constitution provides the American people. She's come to provide balance and a check on government intrusion into our personal privacy and freedoms.
In the Hamdi decision, she rejected the Bush administration's claim that it could indefinitely detain a United States citizen. She upheld the fundamental principle of judicial review over the exercise of government power.
And she wrote -- and this is one we should all remember -- she wrote that even war is not a blank check for the president when it comes to the rights of the nation's citizens. She held that even this president is not above the law. And of course no president, Democratic or Republican -- no president -- is above the law, as neither are you, nor I, nor anyone in this room.
Her judgment has also been critical in protecting our environmental rights. She joined in 5-4 majorities affirming reproductive freedom and religious freedom and the Voting Rights Act.
Each of these cases -- and I mention them because they make how important a single Supreme Court justice is -- and it's crucial that we determine what kind of justice Samuel Alito would be if confirmed. And of course, Judge, my question will be: Will you be an independent jurist?
It is as the elected representatives of the American people, all the people, nearly 300 million people, that we in the Senate are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee.
LEAHY: The Constitution is their document. It guarantees their rights from the heavy hand of government intrusion and the individual liberties to freedom of speech, to religion, to equal treatment, to due process and to privacy. Actually, this hearing, this is their process.
The federal judiciary is unlike the other branches of government. And once confirmed, a federal judge serves for life. And there's no court above the Supreme Court. So the American people deserve a Supreme Court justice who can demonstrate that he or she will not be beholden to the president, but only to the law.
Last October, the president succumbed to partisan pressure from the extreme right of his party by withdrawing Harriet Miers. And by withdrawing her nomination and substituting this one, the president has allowed his choice to be vetoed by an extreme faction within his party before even a hearing or a vote.
Frankly, that was an eye-opening experience to me. It gives the impression that there are those who do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.
And that's why the questions will be asked so specifically of you, Judge.
The nomination is being considered against the backdrop of another revelation: that the president has, outside the law, been conducting secret and warrant-less spying on Americans for more than four years.
This is a time when the protections of Americans' liberties are directly at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years. The Supreme Court is relied upon by all of to us protect our fundamental rights.
Now, I have not decided how I will vote in this nomination and, like the chairman, I will base my determination on the whole record at the conclusion of these hearings, just as I did in connection with the nomination of John Roberts to be chief justice.
LEAHY: At the conclusion of those hearings, I determined to vote for him.
Stakes for the American people could not be higher. At this critical moment, Senate Democrats serving on this committee will perform our constitutional advice and consent responsibility with heightened vigilance.
But I would urge all senators -- Republicans, Democrats, independents -- to join us with in serious consideration.
The appointment of the next Supreme Court justice must be made in the people's interest and in the nation's interest, not in the interest of any partisan faction.
Mr. Chairman, thank you very much.
SPECTER; Thank you very much, Senator Leahy.
HATCH: Thank you, Mr. Chairman.
I welcome you, Judge Alito, your family members, friends and others who are accompanying you.
This hearing is part of an ongoing evaluation of Judge Samuel Alito's nomination to replace Justice Sandra Day O'Connor as associate justice of the Supreme Court of the United States.
It is remarkable that after a nearly record-long period without a Supreme Court vacancy, we are hear considering a second nominee in less than six months.
Mr. Chairman, let me first commend you for firmly and fairly handling these hearings. The timetable we are following reflects your efforts to accommodate all sides. And the 70 days since President Bush announced the nomination significantly exceeds the average for other Supreme Court nominees.
The debate over this and other judicial nominations is a debate over the judiciary itself. It is a debate over how much power unelected judges should have in our system of government, how much control judges should have over a written constitution that belongs to the people.
Ending up in the right place in this debate requires starting in the right place. The right place to start is the proper discrimination of what judges are supposed to do, and the rest of the process should reflect this judicial job description.
HATCH: The process for evaluating Judge Alito's nomination began when President Bush announced it more than two months ago. It continued with his meetings -- with Judge Alito's meetings -- with more than two-thirds of the senators and a vigorous debate in the media and among analysts, scholars and activists.
As the Senate completes the evaluation process, we must keep some very important principles in mind and follow a few basic rules. The first principle is that in this judicial selection process, the Senate and the president have different roles.
Under the Constitution, the president, not the Senate, nominates and appoints judges. The Senate has a different role. We must give our advice about whether President Bush should actually appoint Judge Alito by giving or withholding our consent.
Abiding by the Constitution's design and our own historical tradition require that after Judge Alito's nomination reaches the Senate floor, we vigorously debate it and then vote up or down.
The second principle is that in our system of government, the judicial and legislative branches have different roles. As Chief Justice Roberts described it when he was before this committee last fall, judges are not politicians. Judges must decide cases, not champion causes. Judges must settle legal disputes, not pursue agendas. Judges must interpret and apply the law, not make the law.
This principle that judges are not politicians lies at the very heart of a judicial job -- of the judicial job description.
In addition to these two principles, a few basic rules should guide how we complete this confirmation process.
First, we must remember that judicial nominees are constrained in what they may discuss and how they may discuss it.
Like Chief Justice Roberts and others before him, Judge Alito is already a federal judge. He not only will be you bound by the canons of judicial ethics as a Supreme Court justice, he is already bound by these canons as an appeals courts judge. Because judges may not issue advisory opinions, judicial nominees may not do so either, especially on issues likely to come before the court. That rule has always been honored.
HATCH: Needless to say, those who will demand such advisory opinions in this hearing will do so precisely on those issues that are likely to come before the court. They have a right to ask those questions. But as The Washington Post editorialized just this morning, however, quote, "He will not and should not tell Americans how he will vote on hotly contested issues," unquote.
When Judge Ruth Bader Ginsburg was before us in 1993, she said that her standard was to give no hints, no forecasts, no previews, and declined to answer dozens of questions.
The second rule we should follow is to consider each part of Judge Alito's record on its own terms for what each part actually is. He wrote memos when he worked for the Justice Department. He has written judicial opinions while on the appeals court. He wrote answers to the questionnaire from this committee in 1990 and again last year. He has written articles and given speeches. He has joined certain groups.
And each of these is different. Each of these must be considered in its own context, on its own terms, rather than squeezed, twisted and distorted into something designed, instead, to support a preconceived position or serve a preplanned agenda.
The third rule we should follow is considering Judge Alito's entire record. Some interest groups focus on -- some would say they obsess about -- one recusal question. Or they cherry pick from the thousands of cases in which Judge Alito participated and the hundreds of opinions he authored or joined. Or they look at the results but ignore the facts and the law in those cases.
Judge Alito comes to us with a record that is long, broad and deep. He deserves, and our constitutional duty requires, that we consider his entire record.
Finally and perhaps most important, we must apply a judicial rather than a political standard to the information before us. And we do have a lot of information. The record includes more than 360 opinions of all kinds -- majority, concurring and dissenting -- written during his judicial tenure.
HATCH: We have more than 36,000 pages of additional material, including unpublished opinions, legal briefs, articles, speeches and Department of Justice documents relating to his service in the Office of Legal Counsel and in the Solicitor General's Office.
We must apply a judicial, not a political, standard to this record. Asking a judicial nominee whose side you will be on in future cases is a political standard. Evaluating Judge Alito's record by asking whose side he's been on in past cases is, again, a political standard.
Scorecards are common in the political process, but they are inappropriate in the judicial process. The most important tools in the judicial confirmation process are not litmus paper and a calculator.
Applying a proper judicial standard to Judge Alito's record means putting aside the scorecards and looking at how he does what judges are supposed to do: namely, settle legal disputes by applying already established law.
A judicial standard means that a judicious decision can be entirely correct, even when the result does not line up with our preferred political positions or cater to certain political interests.
When he was here last fall, Chief Justice Roberts compared judges to umpires, who apply rules they did not write and cannot change to the competition before them.
We do not evaluate an umpire's performance based on which team won the game but on how that umpire applied the rules inning after inning. We do not hire umpires by showing them the roster for the upcoming season and demanding to know which teams they will favor before those teams even take the field.
HATCH: Similarly, we should evaluate judges and judicial nominees based on the general process for applying the law to any legal disputes, not on the specific result in a particular case or dispute.
The fact that Judge Alito is such a baseball fan gives me even more confidence that he knows the proper role of a judge.
I know that there is a pitched battle going on outside the Senate, with dueling press conferences, television ads, e-mail, petition drives and stacks of reports and press releases. The Senate can rise above that battle if we remember the proper role for the Senate and the proper role for judges.
We can rise above that battle if we respect that judicial nominees are limited into what they may discuss, take each part of Judge Alito's record on its own terms, consider Judge Alito's entire record and apply a judicial, rather than a political, standard.
Judge Alito, I know you. I've known you for a long time. You are a good man. You're an exceptional judge as well. I welcome you and your family to this committee. And I hope that the days ahead will reflect more light than heat.
And we congratulate you that you're willing to go through this grueling process to represent your country on one of the three separated powers that means so much to all of us.
And I'm grateful to personally know you as well as I do.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Hatch.
KENNEDY: Thank you, Mr. Chairman.
Judge Alito, I join in welcoming you and your family to this committee.
I appreciated the opportunity to visit with you in my office a few weeks ago. And I was particularly impressed by your personal family story of how you were encouraged to do well and contribute to your community.
KENNEDY: And I also applaud your dedication to public service throughout your lifetime.
Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong, just and fair. And we must determine whether a nominee has a demonstrated commitment to those basic values.
Will a nominee embrace and uphold the essential meaning of the four words inscribed above the entrance of the Supreme Court building: Equal justice under law?
Justice Lewis Powell spoke for all of us when he said: Equal justice under law is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists.
As we have seen from Justice O'Connor's example, even one justice can profoundly alter the meaning of those words for our citizens. Even one justice can deeply affect the rights and liberties of the American people.
Even one justice can advance or reverse the progress of our journey. So the question before us in these hearings is this: Does Judge Alito's record hold true to the letter and the spirit of equal justice? Is he committed to the core values of our constitution that are at the heart of our nation's progress. And can he truly be even- handed and fair in his decisions?
KENNEDY: In a way, Judge Alito has faced this issue before as a nominee to the court of appeals. I had the privilege of chairing his confirmation hearing in 1990. And at that time, he had practiced law for 14 years, but only represented one client, the United States government.
And I asked whether he believed he could be impartial in deciding cases involving the government. And in that hearing, Judge Alito said on the record that the most important quality for a judge is open- mindedness to the arguments. And he promised the committee that he would make a very conscious effort to be absolutely impartial. We took him at his word and overwhelmingly confirmed him to the 3rd Court of Appeals.
We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago. And I regret to say that the record troubles me deeply.
In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling.
Under the president's spying program, there are no checks and balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the president vows to continue spying on American citizens.
Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.
KENNEDY: I'm gravely concerned by Judge Alito's clear record of support for vast presidential authority unchecked by the other two branches of government.
In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans.
And in his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.
In fact, it is extraordinary that each of the three individuals this president has nominated for the Supreme Court -- Chief Justice Roberts, Harriet Miers and now Judge Alito -- has served not only as a lawyer for the executive branch, but has defended the most expansive view of presidential authority.
Perhaps that is why this president nominated them.
But as Justice O'Connor stated, even a state of war is not a blank check for a president to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.
There are other areas of concern. In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests.
In a study by the well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents.
KENNEDY: To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.
In an era when America is still too divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job: in 15 years on the bench, not one.
And when I look at that record in light of the 1985 job application to the Reagan Justice Department, it's even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities.
It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions.
It expresses outright hostility to the basic principle of one person, one vote, affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.
This application was not a youthful indiscretion. It was a document prepared by a mature, 35-year-old professional.
Finally, many of us are concerned about conflicting statements that Judge Alito has made in response to questions from this committee and others. As Chairman Specter has stated, this confirmation largely depends on the credibility of Judge Alito's statements to us. And we have questions.
When asked about the ideological statements and specific legal opinions in his 1985 application, Judge Alito has dismissed those statements as "just applying for a job."
KENNEDY: When he was before this committee in 1990, applying for a job to the circuit, he promised under oath that he would recuse himself from cases involving Vanguard, the mutual fund company in which he had most of his investments.
But, as a judge, he participated in a Vanguard case anyway and has offered many conflicting reasons to explain why he broke his word. We need to get to the bottom of this matter to assure ourselves that what Judge Alito says in these hearings will not be just words, but pledges that guide him in the future if he is confirmed.
Judges are appointed by and with the advice and consent of the Senate. And it is our duty to ask questions on great issues that matter to the American people and to speak for them.
Many Republican senators certainly demanded answers from Harriet Miers. We should expect no less from Judge Alito. There is no time for a double standard.
If confirmed, Judge Alito could serve on the court for generation or more. And the decisions he will make as justice will have a direct impact on the lives and liberties of our children, our grandchildren, and even our great-grandchildren.
We have only one chance to get it right and a solemn obligation to do so.
So, Judge Alito, I have serious questions to ask. I congratulate you on your nomination and I look forward to your answers in these hearings.
SPECTER: Thank you, Senator Kennedy.
GRASSLEY: I have a much more positive view of Judge Alito.
And I think the record will sustain my view.
But, first, Judge Alito, I welcome you and your proud family to the committee. And congratulations on your nomination.
I first want to remind all Americans who might be listening that the Senate has a very important responsibility to confirm only well- qualified individuals who will faithfully interpret the law and the Constitution.
GRASSLEY: Confirmation should be limited to those individuals who will be fair, unbiased, devoted to addressing the facts and the law before them, without imposing their own values and political beliefs when deciding cases.
Nominees shouldn't be expected to pre-commit to ruling on certain issues in a certain way. Nor should senators ask nominees to pledge to rule on issues in a particular way.
So if we fulfill our responsibility to the Constitution, the Supreme Court will be filled with superior legal minds who will pursue the one agenda that our founding fathers intended in writing the Constitution: justice, rather than political or personal goals.
The Supreme Court will then consist of individuals who meticulously apply the law and the Constitution, regardless of whether the results they reach are popular or not.
If we do our job right, the Supreme Court won't be made up of men and women who are on the side of the little guy or the big guy; rather, the Supreme Court will be made up of men and women who are on the side of the law and the Constitution.
From all accounts, Judge Alito has an impressive and extensive legal and judicial record; certainly one worthy of someone on the Supreme Court.
Judge Alito excelled at top-notch schools, member of Law Review, clerked for a federal judge. He also held important positions at the Department of Justice Office of Legal Counsel, the Solicitor General's Office, and was U.S. attorney for New Jersey before being appointed to the Third Circuit.
I want to remind the American people, this nominee, Judge Alito, has been confirmed unanimously by the United States Senate, not once, but twice. This is a tremendous record of accomplishment and public service, equal to any Supreme Court nominee that I've considered in 25 years I've been on this committee.
Not only that, Judge Alito has a reputation for being an exceptional and honest judge devoted to the rule of law, as well as being a man of integrity.
GRASSLEY: Judge Alito enjoys the support and respect of the people who work with him, practice with him and, therefore, know him best.
Example: 54 of Judge Alito's law clerks -- Democrats, Republicans and independents alike -- signed a letter to the committee that stated, quote: "We collectively were involved in thousands of cases, and it never once appeared to us that Judge Alito has prejudged a case or ruled based on political ideology."
Continuing the quote, "It is our uniform experience that Judge Alito was guided by his profound respect for the Constitution and the limited role of the judicial branch."
Those 54 opinions say a lot about Judge Alito and his approach to judicial function. Like Chief Justice Roberts, it appears that Judge Alito tries to act like an umpire, calling the balls and strikes, rather than advocating a particular outcome.
I'm also impressed with the very complimentary things that some lawyers have had to say about Judge Alito in the Lawyers Evaluation section of the Almanac of the Federal Judiciary.
GRASSLEY: With respect to his legal ability, lawyers praised him, saying that Judge Alito was, quote, "exceptional," quote, a "brilliant jurist."
Another lawyer stated that, "To say that he is outstanding is to use understatement. He's the best judge on the circuit, maybe in the country," end of quote.
With respect to his demeanor and temperament, lawyers found Judge Alito to be measured and judicial while on the bench. One lawyer commented that, "He is demanding, but always courteous." He may occasionally -- quoting -- "demonstrate a little bit of impatience with lawyers that aren't quite getting it. This can be directed at either side. It's just a sign that his mind is working more efficiently than yours. He's never discourteous, never abusive."
Another lawyer said, "He is pleasant and courteous."
Others commented about the impression that Judge Alito is a conservative judge, but certainly not out to impose his own personal agenda while on the bench. One lawyer commented that he, quote, "is a conservative, but reaches honest decisions," while another said, quote, "by reputation, he's known to be one of the more conservative judges on the court, but he is forthright and fair. He tries to decide cases in front of him in the right way," end quote.
And the American Bar Association came out just last week with an evaluation of Judge Alito to be a justice. And they considered things like integrity, judgment, compassion, open-mindedness, and freedom from bias, and commitment to equal justice under the law. The ABA, once again, found Judge Alito to be unanimously well qualified.
This recommendation should have much weight for my colleagues on the other side who have, time and time again, described the rating of the ABA as, quote, "gold standard."
GRASSLEY: Yet, some liberal interest groups have come out in full force and have attempted to paint Judge Alito to be an extremist and to be an activist. They've criticized a nominee who has, from what I see described by these lawyers and fellow judges, a reputation of being a restrained jurist committed to the rule of law and the Constitution.
But that's what these outside-the-mainstream groups always do. They attack individuals who they believe won't implement their agenda before the Supreme Court. So Judge Alito should see criticism as a badge of honor worn by many past and present members of the Court.
Yet, I'm glad to see the public fully participate in this process, because this is the nature of our system of government. But I don't like to see facts twisted, untruths fabricated to give the nominee a black eye, even before he comes before our committee.
So, Judge Alito, now you have that opportunity to set everyone straight on your record and your approach to deciding cases.
These hearings are also an opportunity, a very good opportunity to remind the public about the proper role of a judge in our system of checks and balances and limited government.
Judges are required by our democratic system not to overstep their positions to become policy makers or super-legislators. Supreme Court nominees should know without any doubt that their job is not to impose their own personal opinions of what is right and wrong, but to say what the law is, rather than what they personally think the law ought to be.
Supreme Court nominees should know that this exercise of judicial restraint is the key ingredient of being good judge, as the Constitution constrains judges every bit as much as it constrains we legislators, executives and citizens in their actions.
GRASSLEY: Moreover, Supreme Court nominees should be individuals who not only understand, but truly respect the equal roles and responsibilities of different branches of government and our state governments.
As Alexander Hamilton said Federalist No. 78, quote, "The courts must decide the sense of the law. And if they should be disposed to exercise will instead of judgment, the consequences would be the substitution of their pleasure to that of the legislative body."
Our Framers expected the judicial branch to be the "least dangerous branch of government."
At our meeting in my office in November, I heard Judge Alito place emphasis on the limited role of the courts in our democratic society. He also reiterated this belief in the questionnaire that he submitted to this committee.
So I have some idea of how Judge Alito approaches the law and views the role of a judge. I'm hopeful that his commitment to judicial restraint and to confining decisions to the law and the Constitution will shine through in this hearing. And I believe it will.
And I'm hopeful that my colleagues will give Judge Alito a civil, a fair and a dignified process, as well as an up-or-down vote on the floor because, as always, the Constitution sets the standard; the president nominates; the Senate deliberates; and, then, we are obligated to give our advice and consent in an up-or-down vote.
Judge Alito, I congratulation you.
SPECTER: Thank you very much, Senator Grassley.
BIDEN: Thank you, Mr. Chairman.
Mrs. Alito and your family, welcome.
It's an incredible honor to be nominated by a president of the United States to be associate justice of the Supreme Court.
BIDEN: And you're to be congratulated.
Judge, this may be one of the most significant or consequential nominations that the Senate will vote on since I've been here in the last three decades. And I think history has delivered you, fortunately or unfortunately, to a moment where Supreme Court historians far into the future are going to look back on this nomination and make a judgment whether or not with your nomination and if you are confirmed, whether the jurisprudence of the Supreme Court began to change from the consensus that existed the last 70 years or whether it continued on the same path it has over the past six or seven decades.
And that moment is right now. And lest we think -- it's kind of like we all go through this process, and I liked the phrase "minuet," that the chairman used -- we all act like there is not an elephant in the room.
The truth of the matter is there is significant debate among judicial scholars today as to whether or not we've gone off on the wrong path with regard to Supreme Court decisions.
There's a very significant dispute that's existed in 5-4 decisions over the past two decades in a court that's very closely divided on the critical central issues of the day.
And so just to make it clear, I'm puzzled by some of the things you said, and I'm sure you're going to get a chance to tell me what you meant by some of the things you wrote and said.
But in your job application you talked about being proud, as you should be, to be proud of your subscription to and adhering to notions put forward in the National Review; that you're a proud member of the Federalist Society; the National Conservative Political Action Committee; the American spectator is something you look to, et cetera.
BIDEN: These are really very bright folks. They all have a very decided opinion on the issues of the day; very decided.
And those very organizations I've named think, for example, we misread the Fifth Amendment and have been misreading it for the past three decades. Those same groups argue that we have, in fact -- there is no right of privacy in the Constitution, et cetera.
So people aren't making this up. In a sense, this is not about you. You find yourself in the middle of one of the most significant national debates in modern constitutional history.
And so because you've been nominated to replace a woman, in addition, who has been the deciding vote on a significant number of these cases -- since 1995 there have been 193 5-4 decisions. And Justice O'Connor 77 percent of the time has been the deciding vote.
And for 70 years there's been a consensus among scholars and the American people on a reading to the Constitution that protects the right of privacy, the autonomy of individuals, while at the same time empowering the federal government to protect the less powerful.
Only recently has the debate come that states' rights are being trumped in a fundamental way, reading of the 10th Amendment and 11th Amendment. That's a legitimate debate, totally legitimate.
But anybody who pretends that how you read the 10th and 11th Amendment doesn't have a fundamental impact on the things we care about is kidding themselves. They're either uninformed or they're kidding themselves.
So, Judge, there's a genuine struggle going on well beyond you, well beyond the Congress, in America about how to read the Constitution.
And I believe at its core we have a Constitution, as our Supreme Court's first great justice, Marshall, said in 1819, and I quote, "intended to endure for the ages to come and consequently to be adapted to the various crises of human affairs."
That's the crux of the debate we're having now: whether it is an adaptable Constitution.
BIDEN: A lot of my friends make very powerful and convincing arguments, and they may be right that, "No, no, no, no, it is not adaptable. It is not adaptable."
And since our country's founding, we've tried to keep government's heavy hand out of our personal lives, while ensuring that we do the most important thing, which is to protect those who cannot protect themselves.
And the debate raging today is about whether we'll continue along that path or whether our courts will continue -- and whether our courts will continue to be one of the places where society puts the little guy -- and I know this is not something you're supposed to say -- the little guy on the same footing with the big guy. The one place that David is equal to Goliath is in the Supreme Court.
And it's also important to note that you're slated to replace the first woman ever nominated to the Supreme Court. We can pretend that's not the fact but it is. And through no fault of your own, we're cutting the number of women in half on the court.
And now, as I said, that's not your fault, but I think it means that have to take -- at least speaking for myself -- a closer look at your stands on issues that are important to women.
And moreover, Justice O'Connor brought critical qualities to the high court that not everybody thinks are qualities -- I happen to think they are -- her pragmatism and her state craft. Not that I've always agreed with what she said -- far from it -- but Justice O'Connor has been properly lauded, in my view, as a judge who approached her duties with open-mindedness and with a sensitivity that affects her decisions would have on everyday, ordinary people.
She, unlike, Judge Bork, did not think that being on the court would be an "intellectual feast," to quote Judge Bork.
BIDEN: Justice O'Connor also brought balance to our highest court; most recently, as been repeated many times, when she cautioned about how war doesn't give a blank check.
Her decisions reflect, in my view, that our society has worked very hard to improve the workaday world, to open doors to workers confronted by powerful employers and for women facing harassment and stereotypes.
Now, I acknowledge these are very tough jobs a judge has in determining whether or not there is an openness that is required under the Constitution. But I also acknowledge that prejudice runs very deep in our society. And, in the real world, discrimination rears its ugly head in the shadows, where it's very difficult to root it out. But Justice O'Connor was not afraid to go into the shadows.
The Constitution provides for one democratic moment, Judge, before a lifetime of judicial independence, when the people of the United States are entitled to know as much as we can about the person that we're about to entrust with safeguarding our future and the future of our kids.
And, Judge, simply put: That is this moment, the one democratic moment in a lifetime of absolute judicial independence. And that's what these hearings are about, in my view.
In the coming days, we want to know about what you believe, Judge, how you view the Constitution, how you envision the role of the federal courts, what kind of justice you would seek to become.
As I said, this one democratic moment when the people, through their elected representatives, get to ask questions of a president's choice for the highest court. And I hope you'll be forthcoming.
I cannot imagine, notwithstanding what many of my colleagues who I have great respect for believe, I can't imagine the founders when they sat down and wrote the document and got to the appointments clause said: You know what? The American people are entitled know before we make him president, before we make her senator, before we make him congressman what they believe on the major issues of the day.
BIDEN: But judges, Supreme Court nominees, as long as they're smart and honest and decent, it really doesn't matter what they think. We don't have to know.
I can't fathom -- can't fathom that that was the intent of the founders. They intended the American people to know what their nominees thought.
And I might add -- and I'll end with this -- we just had two Supreme Court justices before our caucus, just as they were before, I think, the Republican Caucus. They ventured opinions on everything, on everything, things that were going to come before the court. It did not in any way jeopardize their judicial independence.
So, Judge, I really hope that this doesn't turn out to be a minuet. I hope it turns out to be conversation.
I believe we -- you and I and this committee -- owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They're entitled to know what you think.
And I remind my colleagues, many of which are on this committee, they sure wanted to know what Harriet Miers thought about everything. They sure wanted to know in great detail. They were about ready to administer a blood test.
The good news is, no blood test here. The good news is, no blood test, just a conversation. And I hope you'll engage in it with us because I'm anxious to get a sense of how you're going to approach these big issues.
I thank you very much, Judge.
SPECTER: Thank you, Senator Biden.
KYL: Thank you, Mr. Chairman.
Welcome, Judge Alito, to your confirmation hearing.
At the outset, I'm pleased to note that you have more judicial experience than any Supreme Court nominee in more than 70 years.
KYL: Indeed, only one Supreme Court justice in history, one Horace Lurton, nominated by President Taft, had more federal appeals court experience.
Moreover, you've devoted virtually your entire professional life to public service, and the nation owes you gratitude for that service.
I look forward to a dignified hearing followed by a fair up-or- down vote on the Senate floor.
Before discussing your nomination, I'd like to take a moment to express my respect and admiration for the justice whom you're nominated to replace, my fellow Arizonian, Sandra Day O'Connor, whom I've known for more than 30 years.
Justice O'Connor has served with great distinction during her career in the Arizona legislature, on the Arizona Court of Appeals and for what has been a quarter of a century on the United States Supreme Court.
Arizonians are deeply proud of Justice O'Connor's service to this country. She will always be remembered by Arizonans and all Americans as an extraordinary public servant.
Judge Alito, I'd like to discuss your background and experience in the context of other justices on the Supreme Court so that everyone understands how well you satisfy what we have come to expect from our top judges.
Like all the sitting justices, you had an outstanding education. One of your classmates at Yale Law School, Tony Kronman, who later went on to be the dean of the law school and could I believe fairly be described as a political liberal has recently remarked, and I quote, "He impressed me," speaking of you, "as being more interested in the technical, intellectual challenges of the law and its legal reasoning than its political uses or ramifications."
Thus, even in your early 20s, it appears you were focused on the law as an independent pursuit, rather than using law to influence political ends.
With your intellect and education, you could have become a wealthy attorney, but instead you devoted virtually all of your legal career to the public service.
KYL: In doing so, you meet and even exceed the stellar examples set by Justices Thomas and Souter, each of whom devoted most of their pre-judicial careers to public service.
Perhaps this is because, like Justices Ginsburg and Scalia, you had a father who was an immigrant to this nation. It seems that immigrants often have a special understanding of the incredible opportunities that this nation affords its citizens.
Moreover, your father's long service to the people of New Jersey, both as a school teacher and as a civil servant in the state legislature, plainly served as a model for you.
I also note that you served in the U.S. Army Reserves from 1972 until 1980. If confirmed, only you and Justice Stevens would have any military experience. You would also be the first Supreme Court justice to have served in the Army reserve since Justice Frank Murphy did so during World War II.
You've spent much of your career as a federal prosecutor, pursuing terrorists, mob kingpins, drug dealers and others who threaten our safety and our security. Justice Souter had a distinguished career as a state prosecutor, but no justice sitting justice has served as a federal prosecutor. Again, this experience could prove helpful, given that approximately 40 percent of the Supreme Court docket involves criminal matters.
You also served as attorney in the executive branch. Like Chief Justice Roberts, you served in the Solicitor General's Office representing our government before the Supreme Court. And like Justice Scalia, you served in the Office of Legal Counsel, providing constitutional advise to the president and to the rest of the executive branch.
In both of these roles, your job was to advance the policies of a president who twice won an electoral college landslide. He set the agenda and you helped him implement it.
Similarly, Justice Thomas served Presidents Reagan and Bush in political legal capacities, and Justice Breyer also worked in political jobs, both in President Johnson's Justice Department and as a lawyer to this committee.
I note that you were just 39 when nominated to serve on the 3rd Circuit. Justice Kennedy was only 38 when nominated to the 9th Circuit, and Justice Breyer only 42 when nominated to the 1st Circuit. Like them, you now have a great deal of hands-on experience that you can bring to the court for years to come.
During your judicial service, you amassed an impressive record for the Senate to review, including more than 350 authored opinions. It is this judicial record that should be the focus of this committee, just as it was with all of the other sitting justices on the court.
It appears to me that you easily fit into the mold of what this nation has come to expect from Supreme Court justices: a first-rate intellect, demonstrated academic excellence, a life of engagement with serious constitutional analysis, and a reputation for fair-mindedness and modesty.
These are the standards for a Supreme Court justice, and you plainly meet these expectations. As a consequence, I view your nomination with a heavy presumption in favor of confirmation.
KYL: Before I conclude, I'd like, though, to address two other points.
First, some of my colleagues are fond of asking the question: Which side are you on? You've heard that today.
Politicians must pick sides regularly; every time they vote. So it's perhaps natural that they see the world as a battle between competing groups.
But it is wholly inappropriate as an approach to the judicial role. The only relevant side is that of the law and the Constitution. We do great injury to the integrity of the court system when we start speaking of sides and stop devoting ourselves to the pursuit of impartial justice.
During Chief Justice Roberts' confirmation hearings, I was struck by the way he answered the question. Then Judge Roberts explained that he had been asked earlier in the confirmation process: Are you going to be on the side of the little guy? Roberts explained that this question troubled him, and this is how he answered.
He said, "If the question says that the little guy should win, the little guy is going to win. But if the Constitution says that the big guy should win, well, then, the big guy is going to win because my obligation is to the Constitution. That's the oath. The oath that a judge takes is not that I will look out for particular interests. The oath is to uphold the Constitution and the laws of the United States."
And this is the essence of justice. Our courts provide a neutral forum for the adjudication of disputes under the law, not based on economic or political power, on race, on sex or any other personal characteristics.
KYL: Big guy and little guy, it should make no difference. The rule of law demands neutrality.
Second, I want to address the proper scope of questioning during these hearings, a matter that's also come up already.
As I reminded Chief Justice Roberts at his hearings, the American Bar Association Model Code of Judicial Conduct dictates that, and I quote: "A judge or a candidate for election or appointment to judicial office shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."
In other words, no judicial nomination should answer any question that is designed to reveal how the nominee will rule on any issue that could come before the court.
This rule has come to be known as the Ginsburg standard because Justice Ginsburg stated during her own confirmation hearings that she would give no forecasts, no hints about how she would rule on issues.
And I was pleased to see that Chief Justice Roberts refused to prejudge issues or make promises in exchange for confirmation votes. We're all better off because of his principled stand.
Soon after his confirmation, Justice Ginsburg was asked about this Ginsburg standard as applied to the Roberts hearings and she said: "Judge Roberts was unquestionably right. My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court," end quote.
In other words, Justice Ginsburg reaffirmed the Ginsburg standard.
In light of the chief justice's confirmation hearings and Justice Ginsburg's later remarks, I ask my colleagues for basic fair play.
KYL: Apply the same standards to Judge Alito that we applied to John Roberts, Stephen Breyer, Ruth Bader Ginsburg and all of the other sitting justices.
Let's not invent a new standard for Judge Alito or change the rules in the middle of the game. Politicians must let voters know what they think about issues before the election. Judges should not.
And it's not a hypothetical matter. Senator Kennedy in his opening statement expressed concern about the extent of the executive branch's authority to conduct surveillance of terrorists and said, ultimately, the courts will decide whether the president has gone too far. Indeed, they will.
Judge Alito, I'll tell you the same thing I told John Roberts. I expect you to adhere to the Code of Judicial Conduct.
And I want you to know that I will strongly defend your refusal to give any indication of how you might rule on any matter that might come before you as a judge or to answer any question that you believe to be improper under those circumstances.
Congratulations, Judge Alito, on your nomination.
SPECTER: Thank you, Senator Kyl.
KOHL: I thank you, Mr. Chairman.
Judge Alito, let me also send my welcome to you this afternoon and to your family. You are to be could be congratulated on your nomination.
Through its interpretation of the Constitution, the Supreme Court hugely shapes the fabric of our society for us and for future generations.
Over the course of more than 200 years, it has found a right to equal education regardless of race. It has guaranteed an attorney and a fair trial to all Americans, rich and poor alike. It has allowed women to keep private medical decisions private. And it has allowed Americans to speak, vote and worship without interference from their government.
Through these decisions and many more, the judicial branch has, in its finest hours, stood firmly on the side of individuals against those who would trample their rights.
In the words of Justice Black, "The Court stands against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice or public excitement."
KOHL: As the guardian of our rights, the Supreme Court makes decisions every year which either protect the individual or leave him at the mercy of more powerful forces in our society.
They consider questions like, "When can a disabled individual sue to gain access to a courthouse? When can a parent leave work to care for a sick child? When should the government be allowed to listen to a private conversation? And when will the courthouse doors open or close to an employee covering discrimination at work?"
Whether interpreting the Constitution or filling in the blanks of a law or a regulation, every word of the court's opinion can widen or narrow our rights as Americans and either protect us or leave us more vulnerable to any winds that blow.
If confirmed, you will write the words that will either broaden or narrow our rights for the rest of your working life. You will be interpreting the Constitution in which we as a people place our faith and on which our freedoms as a nation rest. And on a daily basis, the words of your opinions will affect countless individuals as they seek protection behind the courthouse doors.
Despite your enormous power, you will be free of all constraints, unaccountable and unrecallable.
We give Supreme Court justices this freedom because we expect them to remain above the pull of politics, to avoid the effects of public excitement and allow a broader view, not tied to the whims of the majority at a certain moment in history.
So for only a short time this month will the people, through their senators, be able to question and to judge you. In short, before we give you the keys to the car, we'd like to know where you plan to take us.
KOHL: To a certain extent, we know more about what is in your heart and your mind than we did with now-Justice Roberts. You have a long track record as a judge and as a public official in the Justice Department.
When we met privately and I asked you what sort of Supreme Court justice you would make, your answer was fair when you said, "If you want know what sort of a justice I would make, then look at what sort of a judge I have been."
Taking this advice, your critics argue that your judicial record demonstrates that you will not sufficiently protect the individual, but will, instead, side with more powerful interests, narrow the rights we enjoy and leave individual Americans more vulnerable to abuse.
For example, they cite your Casey dissent as diminishing the power of married women over their own bodies. They identify your decision in the Chichester case as evidence that you will make it harder for working people to care for a family. They cite the Bray case and others where you often side with corporations to block the victims of discrimination from getting their day in court. Others raise concerns about your views on the rights of the accused when faced with the government's enormous power in the criminal justice process.
In addition to your record on the bench, your opponents identify memos you wrote while in the Justice Department as further evidence of your hostility to individual rights.
For example, in your now-famous 1985 job application, you express pride in some of the work you did in the Solicitor General's Office. You choose to single out the assistance that you provided in crafting Supreme Court briefs urging that, quote, "the Constitution does not protect the right to an abortion."
While these statements came in the context of your work on behalf of the Reagan administration, they were, nevertheless, your self- proclaimed personal views.
KOHL: In the same job application, you wrote that you had pursued a legal career because you disagreed with many of the decisions of the Warren court, especially, and I quote, "in the areas of criminal procedure, the establishment clause and reapportionment."
These Warren court decisions establishing one person, one vote, Miranda rights and protections for religious minorities are some of the most important cases protecting our rights and our liberties, protecting minorities against majority abuses, and protecting individuals against government abuses. And yet antagonism toward these decisions seems to have motivated your pursuit of the law.
Your supporters, on the other hand, contend that it is not fair to select a few specific cases in light of a career as a judge spanning 15 years.
Further, they dismiss some of your early memos in the Justice Department as old and not particularly relevant. They argue that you are well within the mainstream of judges, especially Republican- appointed judges.
So it is our job to sort out the truth about your record, separate the rhetoric from the reality and decide where you will lead the country. We will need to examine whether, as your critics contend, you will consistently side against the individual, or whether, as your supporters contend, that you are a mainstream conservative who will fairly decide all cases.
I hope these hearings will add to our record in making this critical determination.
This would be an appropriate time to share my perspective on how we will judge a nominee. We have used the same test for each of the five previous Supreme Court nomination hearings, a test of judicial excellence.
Judicial excellence, it seems to me, involves at least four elements.
First, a nominee must possess the competence, character and temperament to serve on the bench.
Second, judicial excellence means that a Supreme Court justice must have a sense of the values from which our core of our political- economic system goes. In other words, we should not approve any nominee whose extreme judicial philosophy would undermine rights and liberties relied upon by all Americans.
KOHL: Third, judicial excellence requires an understanding that the law is more than an intellectual game and more than a mental exercise. He or she must recognize that real people with real problems are affected by the decisions rendered by the court. Justice, after all, may be blind, but it should not be deaf.
And, finally, judicial excellence requires candor before confirmation. We are being asked to give the nominee enormous power. So we want to know what is in your mind and in your heart.
Judge Alito, we are convinced that your intellect and experience qualify you for this position. I enjoyed meeting you a few weeks ago and appreciated our discussion.
Your legal talents are undeniably impressive, and your opinions are thoughtful and well-reasoned.
We are now familiar with your abilities and your long tenure as a judge. And, yet, we do not know whether the concerns some have raised about your judicial philosophy are overstated or whether we need to have serious doubts about your nomination.
I'll look forward to these hearings as an opportunity to learn more and measure whether you meet our test of judicial excellence.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Kohl.
DEWINE: Thank you, Mr. Chairman.
Judge Alito, I want to welcome you and your family. I appreciate you being here with us today.
The Constitution gives the Senate a solemn duty, a solemn duty when it comes to the nomination of any individual to sit on the United States Supreme Court.
DEWINE: While the president is to nominate that individual, we in the Senate must provide our advice and consent. This function is not well-defined. The Constitution does not set down a road map. It does not require hearings. In fact, it does not even require questioning on your understanding of the Constitution nor the role of the Supreme Court.
To me, however, these things are certainly important. The reason is obvious. When it comes to the Supreme Court, the American people have only two times when they have any input into how our Constitution is interpreted and who will have the privilege to do so.
First, we elect a president who has the power to nominate justices to the Supreme Court.
Second, the people, acting through their representatives in the Senate, have their say on whether the president's nominee should in fact be confirmed.
Judge Alito, I want to use our time together today to make a point about democracy.
When it comes to our Constitution, judges perform, certainly, an important role. But the people, acting through their elected representatives, should play an even more important role.
After all, our Constitution was intended as a popular document. It was drafted and ratified by the people. It established democratic institutions. It entrusts the people with the power to make the tough decisions. And, in most cases, it prefers the will of the people to the unchecked rule of judges.
DEWINE: If confirmed, Judge, you should always keep this in mind.
In my opinion, Chief Justice Roberts put it best during his recent confirmation hearings. And he said, and I quote, "The framers were not the sort of people, having fought a revolution to get the right of self-government to sit down and say, 'Well, let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind," end of quote.
Sometimes, Judge, however, I fear that the Supreme Court forgets this advice.
In the last 15 years, in fact, the court has struck down, in whole or in part, more than 35 acts of this Congress and nearly 60 state and local laws.
Without question, the court does play a vital role in our constitutional system. Sometimes local, state and federal laws so clearly run afoul of the Constitution that the court must step in and strike them down. In most cases, the court performs this admirably and with great restraint.
But in recent years, the court has struck down some laws that, in my opinion, did not serve such a fate.
Take, for instance, the Americans with Disabilities Act. It passed this Congress with overwhelming bipartisan support. The law was supported by an extensive factual record and was based on our government's longstanding constitutional power to fight discrimination wherever it exists.
DEWINE: When the court considered the ADA in the Garrett case, however, it ignored the act's broad support, cast aside the legislative record and struck down a portion of the law.
The decision was a close one, 5-4. The majority relied on a highly controversial legal theory and the case evoked a vigorous dissent.
This is precisely my problem with Garrett. In such a difficult case, where the Constitution does not clearly support the majority's decision, the proper response is not to strike down the law. In such a case, the court should defer to the will of the people.
In other ways, Judge, the court's recent decisions have made life more difficult for the democratic institutions that perform the day- to-day work of our nation.
Recent cases involving affirmative action and the posting of the Ten Commandments on public property would seem to me at least to prove the point.
The court has upheld one affirmative action program at the University of Michigan but struck down another one, and has allowed the posting of the 10 Commandments outside of a public building but banned it on the inside in another case.
To add to the confusion, some of the court's decisions involved multiple concurrences and dissents, making it hard even for lawyers and judges to figure out what the law is and why.
Chief Justice Roberts mentioned this problem at his hearing, and in one of his final statements as chief justice, William Rehnquist noted that one of the court's decisions had so many opinions within it that he, and I quote, "didn't know we had so many justices on the court."
What has emerged in certain areas, therefore, is a patchwork, a patchwork that leaves local officials, state legislators, members of Congress and the public guessing what the law permits and what it does not.
DEWINE: In 1937, President Franklin Roosevelt reminded us that the Constitution is, and I quote, "a layman's document, not a lawyer's contract."
But that very document does little to serve people when Supreme Court decisions are written so that even high-priced lawyers can't figure them out.
Now, I'm not the first to have raised these democratic concerns. Many have faulted the court for its lack of clarity in certain cases and many have criticized its recent lack of deference to decisions made by state legislatures and Congress.
In fact, some have even suggested that this recent trend has transformed our democracy from one founded on, "We the people," to one ruled by, "We the court."
To me, the criticism has some force. The Constitution empowers the people to resolve our day's most contentious issues. When judges forget this basic truth, they do a disservice to our democracy and to our constitution.
Judges are not members of Congress, they're not state legislators, governors, nor presidents. Their job is not to pass laws, implement regulations, nor to make policy.
To use the words of Justice Byron White, words that I quoted at our last Supreme Court hearing, "The role of the judge is simply to decide cases" -- to decide cases, nothing more.
DEWINE: And, Judge, from what I've seen so far, you don't need much reminding on this score. Your decisions are usually brief and to the point. You write with clarity and common sense. And in most cases, you defer to the decision-making of those closest to the problem at hand.
I don't expect to agree with every case that you decide, but your modest approach to judging seems to bode well for our democracy.
Over the next several days, the members of this committee will question you to find out what kind of justice you will be. This hearing is really our opportunity to try to answer that question.
Our constitutional system is founded on democracy: the will of the people, not the unchecked rule of judges. If confirmed, it will be your job to faithfully interpret our Constitution and to defend our democracy, case by case.
I wish you well.
SPECTER: Thank you, Senator DeWine.
FEINSTEIN: Thank you very much, Mr. Chairman.
Welcome, Judge Alito.
I'm one that believes that your appointment on the Supreme Court is a pivotal appointment. And because you replace Sandra Day O'Connor and because she was the fifth vote on 148 cases, you well could be a very key and decisive vote.
And so during these hearings, I think it's fair for us to try to determine whether your legal reasoning is within the mainstream of American legal thought and whether you're going to follow the law regardless of your personal views about the law.
FEINSTEIN: And since you have provided personal and legal opinions in the past, I very much hope that you will be straightforward with us, share your thinking and share your legal reasoning.
Now, I'd like to use my time to discuss with you some of my concerns. I have very deep concern about the legacy of the Rehnquist court and its efforts to restrict congressional authority to enact legislation by adopting a very narrow view of several provisions of the Constitution, including the commerce clause and the 14th Amendment.
This trend, I believe, if continued, would restrict and could even prevent the Congress from addressing major environmental and social issues of the future.
As I see it, certain of your decisions on the 3rd Circuit raised questions about whether you would continue to advance the Rehnquist court's limited view of congressional authority. And I hope to clear that up.
But let me give you one example here, and that's the Rybar case. Your dissent argued that Congress lacked the authority to ban the possession and transfer of machine guns based essentially on a technicality that congressional findings from previous statutes were not explicitly incorporated in the legislation.
You took this position, even though the Supreme Court had made clear in 1939, the Miller case, that Congress did have the authority to ban the possession and transfer of firearms and even though Congress had passed three federal statutes that extensively documented the impact that guns and gun violence has on interstate commerce.
FEINSTEIN: I'm concerned that your Rybar opinion demonstrates a willingness to strike down laws with which you personally may disagree by employing a narrow reading of Congress' constitutional authority to enact legislation.
Now, the subject of executive power has come up. And indeed it is a very big one.
I think we're all concerned about how you approach and decide cases involving expanded presidential powers.
And recently there have been several actions taken by the administration that highlight why the constitutional checks and balances between the branches of government are so essential. These include the use of torture, whether an expansive reading of law or disregarding Geneva Conventions, including the Convention on Torture; whether the president is bound by ratified treaties or not; allowing the detention of American citizens without providing due process -- of course, Sandra Day O'Connor was dispositive in the Hamdi case -- whether the president can conduct electronic surveillance on Americans without a warrant, despite legislation that establishes a court process for all intelligence for all electronic surveillance.
I'm also concerned with the impact you could have on women's rights, and specifically a woman's right to choose. In the 33 years since Roe was decided, there have been 38 occasions on which Roe has been taken up by the court.
FEINSTEIN: The court has not only declined to overrule Roe, but it has also explicitly reaffirmed its central holding.
In our private meeting, when we spoke about Roe and precedent, you stated that you could not think of a case that's been reviewed or challenged more than Roe. You also stated that you believe that the Constitution does provide a right of privacy and that you have a deep respect for precedent.
However, in 1985, you clearly stated that you believed Roe should be overturned and that the Constitution does not protect a woman's right to choose.
So despite voting to sustain Roe on the Third Circuit, your opinions also raise questions about how you might rule if not bound by precedent. And of course, obviously, I'd like to find that out.
I'm also concerned about the role the court will play in protecting individual rights in this and the next century.
Historically, the court has been the forum to which individuals can turn when they believed their constitutional rights were violated. This has been especially noteworthy in the arena of civil rights.
And, as has been mentioned, in that same 1985 job application, you wrote that while in college, you developed a deep interest in constitutional law, and then you said, motivated in part by disagreement with the Warren court's decision, particularly in the areas of criminal procedure, the establishment clause and reapportionment.
Now, of course, it was the Warren court that brought us Brown v. the Board of Education and, of course, reapportionment is the bedrock principle of one man, one vote.
So exactly what you mean by this, I think is necessary to clear up.
FEINSTEIN: Now, additionally, Justice O'Connor was a deciding vote on a critical affirmative action case involving the University of Michigan, Grutter v. Bollinger, so your views may well here be pivotal. So I think the American people deserve to know how you feel, how you think, how you would legally reason affirmative action legislation.
When you served in the Solicitor General's Office during the Reagan administration, you argued in three cases against the constitutionality of affirmative action programs. Then once on the 3rd Circuit you sided against the individual alleging discrimination in about three-quarters of the cases before you.
So we have a lot to learn about what your views are, your legal reasoning, and how you would apply that legal reasoning. So I really look forward to the questions. And once again, because this appointment is so important, I hope you really will be straightforward with us and thereby be really straightforward with the American people.
So thank you and welcome.
SPECTER: Thank you, Senator Feinstein.
SESSIONS: Thank you, Mr. Chairman.
And I'd like to also extend my congratulations to you, Judge Alito, and your family. It's a very special day, a great honor to be nominated to the Supreme Court, the greatest court in the world, in my view.
And this will be a good, vigorous process. The Senate does have an obligation to make inquiry, and they'll do so.
I just hope and truly believe that when the end comes to these hearings, your answers will be heard, the charges that I've heard made that I know will be rebutted, people will listen and see the answers that you give.
SESSIONS: And when they do, they'll feel great confidence in you as a member of the Supreme Court.
You have a record as a brilliant but modest jurist, one who follows the law, who exercises restraint and does not use the bench as an opportunity to promote any personal or political agenda. This is exactly what I believe the American people want in a justice to the Supreme Court. It's exactly what President Bush promised to nominate.
You represent philosophically that kind of judge who shows restraint, but at the same time you bring extraordinary qualifications and abilities here.
As has been said, judges are not politicians. They must decide discrete cases before them based on facts and the law of that case.
They're not policy-makers. Every lawyer that's practiced in America knows that. That's what they want in a judge. That's what I understand they believe you are. That's why the ABA has given you their top rating in my view.
This is the ideal of American law. It's the rule of law. It's the American ideal of justice, not to have an agenda, not to allow personal views to impact your decision-making. And I am real proud to see that your record indicates that.
I like Judge Roberts' phrase of modesty. I believe that is your philosophy also.
We had the opportunity for a time to serve as United States attorneys together. You are the top prosecutor in the office in New Jersey, one of the largest in the country.
SESSIONS: And you had the whole state -- much larger than my office. But I think -- I do know your reputation as one of ability but modesty.
In fact, I remember distinctly somebody told me, "Don't underestimate Sam Alito. He's a modest kind of guy, but he's probably the smart guy in the Department of Justice." And I think that's the reputation you had and it's one that you can be quite proud of.
Your record of achievement is extraordinary. You were Phi Beta Kappa at Princeton, a Woodrow Wilson scholar. You attended Yale Law School. You were an editor of the Law Review, elected by your colleagues.
And, of course, for a graduating law student at a prestigious law school or any law school, being an editor of the Law Review is an extraordinary honor.
You clerked for a federal judge on the 3rd Circuit. And you were an assistant United States attorney. You did appellate work handling criminal cases. And as United States attorney, you prosecuted cases.
As I've checked the record, you would be the first person since Harry Truman to serve on the Supreme Court that had actual federal prosecutorial experience, which I think is of great value. As a matter of fact, I know it's of value.
And I've seen instances of Supreme Court rulings where errors have been made mostly as a result of just not understanding the system and how it operates.
As an assistant solicitor general, you argued 12 cases before the Supreme Court. That's an extraordinary number. Very, very few people in our country have had the opportunity to do that.
SESSIONS: Very few lawyers will ever in their career do one case, much less 10.
You did a great job. I think that is why the ABA, American Bar Association, has rendered their views on you.
It's a 15-member committee. All of them participate on Supreme Court nominees. They take this very seriously. They interviewed judges with whom you worked, they interviewed your colleagues, they interviewed people who litigated against you, they interviewed litigants who'd lost before you as well as those who had won before you, your co-counsel. And at the conclusion of all of that, they unanimously gave you their highest possible rating. I think that is an important thing.
Some of us on our side of the aisle have criticized the ABA. We say they tilt a little to the left.
But their analysis process and the way they go about it provides valuable insight to this committee and to the people of America that the people of the country can know that they have interviewed a host of people who've dealt with you in every single area of your life, and they found you highly qualified, the best recommendation that they can get. And that is something you should take great pride in.
We don't want an activist judge. That's not what we want in this country.
By activist, I mean a judge who allows his personal views to overcome a commitment to faithfully following the law; following the law as it is, not as you would like it to be, good or bad, following that law. That's what we count on.
And when we violate that, we undermine law, we undermine respect for law and endanger this magnificent heritage of law that we've been given.
So from what I understand your approach to law, you've got it right, and your record indicates that.
The judicial oath you take is important. Some might say you have to follow precedent, and precedent is a very big part of what you do. But you take the oath to swear that you will support and defend the Constitution of the United States.
That oath you will take, if confirmed -- and you've already taken it previously -- it is an oath not to decide whether a decision is good policy or not; that's for the legislative branch. It's not an oath to defend the wall the Supreme Court has enclosed sometimes around itself. It's not an oath to avoid admitting error in previous decisions.
But let me be more direct: The oath you take is not an oath to uphold precedent whether that precedent is super-duper or not.
SESSIONS: If you love the Constitution -- which I hope you do; and intend to inquire about that -- you will enforce the Constitution as it is, good and bad. That's your responsibility in our democracy.
You know, we've already had this morning some matters that have been raised and I think are worthy of just responding to briefly, because allegations get made in these hearings. You may never get a chance, by the time this hearing's over, to rebut some of the things that have already been raised.
Senator Kennedy claimed that you've not offered an opinion or a dissent siding with a claim of racial discrimination. I would point him to U.S. v. Kithcart. There you made it clear the Constitution does not allow police officers to racially profile black drivers.
A police officer received a report that two black males in a black sports car had committed three robberies. Later, they pulled over a driver because he was a black man in a black sports car.
You wrote that this violated the Fourth Amendment. You stated that the mere fact that Kithcart was black and the perpetrators had been described as two black males was plainly insufficient.
And they also may want to look at your majority opinion in Brinson v. Vaughn, where you ruled that the Constitution does not allow prosecutors to exclude African-Americans from jurors.
SESSIONS: And you granted the petition -- habeas petition -- in that case, reversing the conviction. You stated the Constitution guarantees, quote, "that a state does not use peremptory challenges of jurors, to remove any black jurors because of his race. Thus, a prosecutor's decision to refrain from discriminating against some African-American voters does not cure discrimination against others," closed quote.
And as for dissents, you were the lone dissenter, calling for an expansive interpretation of civil rights laws. Your dissent complained in an employer case that the majority had substituted its own opinion for the law, and you dissented and later the Supreme Court vindicated you 9-0.
So I would also note you were questioned about judicial independence. I think some of our people have mentioned that.
But an academic study of federal appeals court opinions rated you the fourth-most independent judge in the federal judiciary. That's out of about 900. And they took that based on issues such as whether or not you were most likely to disagree with judges or agree with judges of a different political party.
So, Mr. Chairman, I thank you for your leadership.
I look forward to a vigorous hearing. I'm confident this nominee has the skills and graces to make an outstanding Supreme Court justice.
SPECTER: Thank you, Senator Sessions.
We're going to turn to one more senator, Senator Feingold, for an opening statement.
SPECTER: And then we're going to take a 15-minute break. We will have concluded the opening statements of 12 of our 18 Judiciary Committee members. That will leave us four more.
And then Senator Lautenberg and Governor Whitman to make the formal presentation of Judge Alito. And then Judge Alito's opening statement. So, at this time, we will adjourn and we will reconvene at 2:10.
Pardon me. We're going to proceed with you, Senator Feingold.
FEINGOLD: Thank you, Mr. Chairman, I think.
SPECTER: This is called the potted plant routine, Russ.
FEINGOLD: Thank you, Mr. Chairman.
SPECTER: I was so anxious for the recess, I jumped the gun a little.
FEINGOLD: Mr. Chairman, I too want to welcome our nominee and thank him in advance for the long hours that he'll put in this week.
Judge, I do greatly admire your legal qualifications and, of course, your record of public service and I wish you well here. And, as with the hearing on the nomination of Chief Justice Roberts, I approach this proceeding with an open mind.
Judge Alito, I know that, as a longtime student of the law in the Supreme Court, you appreciate the importance of the process that we begin today.
A position on the Supreme Court is one of the highest honors and greatest responsibilities in our country. The Constitution requires the Senate to offer its advice and decide whether to grant its consent to your nomination.
And the Senate has duly delegated to the Judiciary Committee the task of examining your record and hearing your testimony in responses to questions about your views.
FEINGOLD: So it is our job in these hearings to try to get a sense for ourselves, for our colleagues who are not on the committee and for the American people of whether you should be given the enormous responsibility of protecting our citizens' constitutional freedoms on the Supreme Court.
So you will obviously face tough questions here, Judge. No one is entitled to a seat on the Supreme Court simply because he has been nominated by the president.
I think the burden is actually on the nominee to demonstrate that he should be confirmed.
We begin these hearings today in an important time. Less than a month ago, we learned that this administration has for years been spying on American citizens without a court order and without following the laws passed by Congress.
Americans are understandably asking each other whether our government believes it is subject to the rule of law.
Now, more than ever, we need a strong and independent judicial branch. We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress. We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even -- even -- when the president of the United States is telling the country that he should be able to decide unilaterally -- unilaterally -- how far these freedoms go.
To win my support, Judge Alito will have to show that he is up to the challenge. His instincts sometimes seem to be to defer to the executive branch, to minimize the ability of the courts to question the executive in national security cases, to grant prosecutors whatever powers they seek and to deny relief to those accused of crimes who assert that their constitutional rights were violated.
FEINGOLD: So it will be up to Judge Alito to satisfy the Senate that he can be fair and objective in these kinds of cases. We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and that the American people expect.
And in these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach.
In 1990, when the judge appeared before this committee in connection with his nomination to the court of appeals, Judge Alito promised to recuse himself from cases involving a mutual fund company with which he had substantial investments, Vanguard. He kept those investments throughout his service the court of appeals and still has them today.
But, in 2002, he sat on a panel in a case involving Vanguard. Since his nomination to the Supreme Court, we have now heard different explanations from the nominee and his supporters about why he failed to do recuse himself.
Needless the say, the shifting explanations and justifications are somewhat troubling. I hope that we will get the full and final story in these hearings.
Before we grant lifetime tenure to federal judges, and particularly, justices of the Supreme Court, we must make sure that they have the highest ethical standards.
The stakes for this nomination could hardly be higher. Justice O'Connor, as many have said, was the swing vote in many important decisions in the past decade. Her successor could well be the deciding vote in a number of cases that have already been argued this term that may have to be re-argued after a new justice is confirmed. The outcome of these cases could shape our society for generations to come.
FEINGOLD: Now, we don't have the right to know how a nominee would rule on those cases. Indeed, we should all hope that the nominee doesn't know either.
But we do have a right to know what and how a nominee thinks about the important legal issues that have come to the court in recent years. Commenting on past Supreme Court decisions, in my view, would no more disqualify a nominee from hearing a future case on a similar topic than would a current justice participating in those past decisions.
Mr. Chairman, it simply cannot be that the only person in America who can't express an opinion on a case where Justice O'Connor cast the deciding vote is the person who has been nominated to replace her on the court.
So I look forward to questioning you, Judge Alito, about executive power, the death penalty, employment discrimination, criminal procedure and other important topics.
And I look forward to your candid answers.
I'll have to say that I was rather pleased that the judge was actually less guarded in our private meeting than were the other two Supreme Court nominees who I have had the privilege to meet. I hope he's even more forthcoming in this hearing.
Given his long judicial record and the memos we have seen that express his personal views on legal issues, I expect complete answers and I think my colleagues do, too.
If a nominee expresses a personal view on a legal issue in a memo written over a decade ago, I think we and the American people have the right to know if he still holds that view today.
Mr. Chairman, if confirmed to the Supreme Court, Judge Alito is likely to have a profound impact on the lives of Americans for decades to come. That is a fact.
It is clear, Mr. Chairman, from how you have planned these hearings that you recognize that.
Thank you for your efforts to ensure a full and fair evaluation of this nominee, and I not only look forward to the questioning but I want to note that I have caused the recess to occur three minutes and 40 seconds earlier than it normally would have.
Thank you, Mr. Chairman.
SPECTER: Thank you, Judge (sic) Feingold, for your brevity.
We will now take a 15-minute recess until 2:15.
SPECTER: Senator Graham, you may begin.
GRAHAM: Thank you, Mr. Chairman.
And welcome back, Judge. I'd hate for you to miss my opening statement.
It would be a loss for the ages.
Welcome to the committee. Welcome to one of the most important events in your life.
You've got the people that mean the most here with you today, your family. And I know they're proud of you. And I'm certainly proud of what you have been able to accomplish.
And to say the least, you come to the Senate in interesting political times.
There is going to be a lot of talk by the senators of this committee about concepts that are important to Americans.
But what I worry the most about -- your time, believe it or not, will come and go. You will not be here forever; it may seem that way. But I think you're going to be just fine. I don't know what kind of vote you're going to get, but you'll make it through.
It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines. I feel very comfortable with you being on the Supreme Court based on what I know.
And the hearings will be helpful to all of us to find out some issues that are important to us.
We had a talk recently about executive power. That's very important to me. In a time of war, I want the executive branch to have the tools to protect me, my family and my country.
But also I believe even during a time of war, the rule of law applies. And I've got some problems with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly.
And we've talked about those things and we'll talk more about it.
But I'm going to talk a little bit about some of the points my colleagues have been making.
Everybody knows you're a conservative.
GRAHAM: The question is: Are you a mainstream conservative?
Well, the question I have for my colleagues is: Who would you ask to find out? Would you ask Senator Kennedy? Probably not.
If you asked me who a mainstream liberal is, I would be the worst person to pick, because I do not hang out over there.
I expect that most all of us, if not all of us, will vote for you. And I would argue that we represent from the center line to the right ditch in our party and, if all of us vote for you, you've got to be pretty mainstream.
So the answer to the question, "Are you a mainstream conservative?" will soon be known. If every Republican member of the Judiciary Committee votes for you, and you're not mainstream, that means we are not mainstream. It is a word that means what you want it to mean.
Advise and consent means what? Whatever you want it to be. Advise and consent means the process has got to work to the advantage of people I like and with people I don't want on the court, it is a different process. That is politics.
Every senator will have to live within themselves as to what they would like to see happen for the judiciary.
My main concern here is not about you; it's about us. What are we going to be doing as a body to the judiciary when it is all said and done?
Roe v. Wade and abortion: If I wanted to work for Ronald Reagan, one of the things I would tell the Reagan administration is I think Roe v. Wade was wrongly decided. They are likely to hire me because they were trying to prove to the court that the court took away from elected officials a very important right, protecting the unborn.
I was on the news program with Senator Feinstein this weekend, who is a terrific person. She made very emotional, compelling argument that she can remember back alley abortions and women committing suicide when abortion was illegal.
I understand that is very seared in her memory banks and that is important to her.
Let me tell you, there's another side to that story. There are millions of Americans -- a bunch of them in South Carolina -- who are heartsick that millions of the unborn children have been sent to a certain death because of what judges have done.
GRAHAM: It's a two-sided argument. It's an emotional event in our society.
They're talking about filibustering maybe if you don't give the right answer. Well, what could possibly be the right answer about Roe v. Wade? If you acknowledge it's a precedent the court, well, then you would be right. If you refused to listen to someone who's trying to change the way it's applied or to overturn it and you will say, "Here, I will never listen to them," you might talk me out of voting for you.
I don't think any American should lose the right to challenge any precedent that the Supreme Court has issued because the judge wanted to get on the court.
And you may be a great fan of Roe v. Wade and you think it should be there forever. There may be a case where someone disagrees with that line of reasoning.
What I want from the judge is an understanding that precedent matters but the facts, the brief and the law is what you're going to base your decision on as to whether or not that precedent stands, not some bargain to get on the court.
Because I can tell you, if that ever becomes a reason to filibuster, there are plenty of people that I personally know, if it became fashionable to stand on the floor of the Senate to stop a nominee on the issue of abortion, feel so deeply, so honestly held belief that an abortion is certain death for an unborn child that they would stand on their feet forever.
And is that what we want? Is that where we're going as a nation? Are we going to take one case and one issue, and if we don't get the answer we like that represents our political view on that issue, are we going to bring the judiciary to their knees? Are we going to say as a body, "It doesn't how matter how smart you are, how many cases you decided, how many things you've done in your life as a lawyer, forget about it; it all comes down to this one issue"?
If we do, if we go down that road, there will be no going back. And good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels.
What we're saying and what we're doing here is far more important than just whether or not Judge Alito gets through the process.
GRAHAM: What is the proper role of a senator when it come to advise and consent?
I would argue that, if we start taking the one or two cases we cherish the most and make that a litmus test, that we've let our country down and we've changed a historical standard.
Elections matter. Values debates occur all owe this country. They occur in presidential elections. It is no mystery as to what President Bush would do if he won. He would pick people like John Roberts and Sam Alito.
That's what he said he would do. That's exactly what he's done. He's picked solid, strict constructionist conservatives who have long, distinguished legal careers.
What did President Clinton do? He picked people left of the center who worked for Democrats. It cannot surprise anybody on the other side that two people we picked worked for Ronald Reagan. We like Ronald Reagan.
President Clinton picked Ginsburg and Breyer. Justice Ginsburg was the general counsel for the ACLU. If I'm going to base my decision based on who you represented as a lawyer, how in the world could I ever vote for somebody that represented the ACLU?
If I'm going to make my decision based on whether or not I agree with the Princeton faculty and administration policies on ROTC students and quotas and I am bound by that, I'll get killed at home.
What the president does with their admission policies and whether or not an ROTC unit should be on a campus is an OK thing to debate. At least I hope it is OK.
And I think most American are going to be with the group that you're associated with, not the policies of Princeton.
The bottom line is you come here as an individual with a life well-lived. Everybody who seems to work with you as a private lawyer, public lawyer, as a judge, admires you, even though they may disagree with you.
GRAHAM: My biggest concern, members of this committee, is if we don't watch the way we treat people like Judge Alito, we're going to drive good men and women away from wanting to be served.
There'll be a Democratic president one day. I do not know when, but that's likely to happen. There'll be another Justice Ginsburg come over. If she came over in this atmosphere, she wouldn't get 96 votes. Judge Scalia wouldn't get 98 votes. And that's sad to me.
I hope we'll use this opportunity to not only treat you fairly but not use a double standard. I hope we'll understand that this is bigger than you, this is bigger than us. And the way we conduct ourselves and what we expect of you, we better be willing to expect when we're not in power.
SPECTER: Thank you, Senator Graham.
SCHUMER: Thank you, Mr. Chairman.
And, Judge Alito, welcome to you, Mrs. Alito, your two children, the rest of your family. I join my colleagues in congratulating you on your nomination.
If confirmed, you'll be one of nine people who collectively hold power over everyone who lives in this country. You'll define our freedom, you'll affect our security and you'll shape our law. You will determine on some days where we pray and how we vote. You'll define on other days when life begins and what our schools may teach. And you will decide from time to time who shall live and who shall die.
These decisions are final and appeals impossible.
SCHUMER: That's the awesome responsibility and power of a Supreme Court justice. And it's, therefore, only appropriate that everyone who aspires to that office bear a heavy burden when they come before the Senate and the American people to prove that they're worthy.
But while every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high.
First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.
So, first, as this committee takes up your nomination, we can't forget recent history, because that history increases your burden and explains why the American people want us to examine every portion of your record with great care.
Harriet Miers' nomination was blocked by a cadre of conservative critics who undermined her at every turn. She didn't get to explain her judicial philosophy, she didn't get to testify at the hearing, and she did not get the up-or-down vote on the Senate floor that her critics are now demanding that you receive.
Why? For the simple reason that those critics couldn't be sure that her judicial philosophy squared with their extreme political agenda.
They seem to be very sure of you.
The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you, Judge Alito.
SCHUMER: We'd be remiss if we didn't explore why.
And there's an additional significance to the Miers precedent, which is this: Everyone now seems to agree that nominees should explain their judicial philosophy and ideology.
After so many of my friends across the aisle spoke so loudly about the obligation of nominees to testify candidly about their legal views and their judicial philosophy when the nominee was Harriet Miers, I hope we will not see a flip-flop now that the nominee is Sam Alito.
The second reason your burden is higher, of course, is that you're filling the shoes of Sandra Day O'Connor. Those are big shoes, to be sure, but hers are also special shoes. She was the first woman in the history of the Supreme Court, is the only sitting justice with experience as a legislator, and has been the most frequent swing vote in a quarter century of service.
While Sandra Day O'Connor has been at the fulcrum of the Court, you appear poised to add weight to one side. That alone is not necessarily cause for alarm or surprise, but it's certainly a reason for pause.
Are you in Justice O'Connor's mold or, as the president has vowed, are you in the mold of Justices Scalia and Thomas?
Most importantly, though, you burden is high because of your record. Although I haven't made up my mind, I have serious concerns about that record. There are reasons to be troubled. You're the most prolific dissenter in the 3rd Circuit.
SCHUMER: This morning, President Bush said, Judge Alito has the intellect and judicial temperament to be on the court. But the president left out the most important qualification, a nominee's judicial philosophy.
Judge Alito, in case after case, you give the impression of applying careful legal reasoning, but, too many times, you happen to reach the most conservative result.
Judge Alito, you give the impression of being a meticulous legal navigator but, in the end, you always seem to chart a rightward course.
Some wrongly suggest that we're being results-oriented when we question the results you have reached. But the opposite is true. We're trying to make sure you're capable of being fair, no matter the identity of the party before you.
Sometimes you give the government a free pass but refuse to give plaintiffs a fair shake. We need to know that presidents and paupers will receive equal justice in your courtroom.
If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair.
In many areas, we'll expect clear and straightforward answers because you have a record on these issues -- for example, executive power, congressional power and personal autonomy, just to name a few.
The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions.
SCHUMER: Will your judicial philosophy preserve these principles? Or will it erode them?
In each of these areas, there is cause for concern. In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the "unitary executive."
Your deferential and absolutist view of separation of powers raises questions. Under this view in times of war, the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.
We need to know: When a President goes too far, will you be a check on his power, or will you issue him a blank check to exercise whatever power alone he thinks appropriate? Right now, that is an open question, given your stated views.
Similarly, on the issue of federalism, you seem to have taken an extreme view, substituting your own judgment for that of the legislature. Certainly, in one important case, you wrote in Rybar v. U.S. that Congress exceeded its power by prohibiting the possession of fully automatic machine guns.
Do you still hold these cramped views of congressional power? Will you engage in judicial activism to find ways to strike down laws that the American people want their elected representatives to pass and that the Constitution authorizes?
And, of course, you have made statements expressing your view that the, quote, "Constitution does not protect a right to an abortion," unquote. In fact, you said in 1985, that you "personally believe very strongly" this is true.
SCHUMER: You also spoke, while in the Justice Department, of, quote, "the opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade."
It should not be surprising that these statements will bring a searching inquiry, as many of my colleagues have already suggested.
So we'll ask you: Do you still personally believe very strongly that the Constitution does not protect a right to an abortion?
We will ask: Do you view elevation to the Supreme Court, where you'll no longer be bound by high court precedent, as the long-sought opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade, as you stated in 1985?
Judge Alito, I sincerely hope you'll answer our questions. Most of the familiar arguments for ducking direct questions no longer apply and certainly don't apply in your case.
For example, the logic of the mantra repeated by John Roberts at his hearing, that one could not speak on a subject because the issue was likely to come before him, quickly vanishes when the nominee has a written record, as you do, on so many subjects.
Even under the so-called Ginsburg precedent, which was endorsed by Judge Roberts, Republican senators, the White House, you have an obligation to answer questions on topics that you have written about.
On the issue of choice, for example, because you've already made blanket statements about your view of the Constitution, and your support for overruling Roe, you've already given the suggestion of prejudgment on a question that will likely come before the court.
So I respectfully submit you cannot use that as a basis for not answering.
SCHUMER: So I hope, Judge Alito, that when we ask you about prior statements you've made about the law, some strong, some even strident, you will simply not answer, in effect, "No comment." That will not dismiss prior expressions of decidedly legal opinions as merely personal beliefs and that will enhance neither your credibility nor your reputation for careful legal reasoning.
I look forward, Judge, to a full and fair hearing.
SPECTER: Thank you, Senator Schumer.
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Courtesy FDCH e-Media