Sen. Patrick Leahy's Statement on the Confirmation Vote of Judge Samuel Alito

SENATOR LEAHY DELIVERS REMARKS AT GEORGETOWN UNIVERSITY

LAW SCHOOL ON THE NOMINATION OF JUDGE SAMUEL ALITO TO

THE U.S. SUPREME COURT

JANUARY 19, 2006

SPEAKER: U.S. SENATOR PATRICK LEAHY (D-VT)

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LEAHY: Thank you.

Dean, I appreciate that. And may I also just offer my compliments to you? You have maintained the level of excellence that this wonderful school is known for. And I appreciate what you do and the work you do.

I want you to know that we have, of course, in our office, people from all over. But we do have in the Judiciary Committee staff lawyers on my staff: Elaine Greenfield (ph), class of '92 -- I see Elaine back there -- and Lydia Grigsby (ph), and Christine Lucius (ph) and Tara Magnar (ph). These are all Georgetown graduates.

We have law clerks Adam Briggs (ph) and Danielle Mitchell (ph). We have had past law clerks, Jenny Pascarella (ph), Joshua Harris (ph), Matt Orsman (ph), Chad Amatorney (ph) and Phil Domecian (ph) from my office, are attending Georgetown now.

I just want you to know we keep it going.

One of the reasons why I appreciate the invite to be here, I started -- just a quick little story: My wife, Marcelle, is here.

She was a nurse in the V.A. hospital when I was going to Georgetown. One of us had to make some money.

(LAUGHTER)

And when I finished law school, we couldn't afford two more weeks' rent on our apartment which didn't cost much anyway at the time. And I had to head back. I couldn't stay for the extra two weeks for graduation; we to head back to Vermont in a rented car where I began the highest-paid law clerkship in Vermont at $65 a week. For any of those of you who think you're underpaid as interns anywhere you're working, I throw that out. And my diploma was mailed to me.

Leo Donovan, the former president of Georgetown, did a wonderful thing: 30 years later, he invited me back to give the graduation speech to the law school. I got my degree, in this case a honorary doctorate. It was a very, very emotional day, very much a feeling of coming home because this is a wonderful and very special school.

Now, in the last few months I have been using everything I ever learned here and everything since, because I have been immersed in the nomination of Judge Samuel Alito to replace Justice Sandra Day O'Connor. Let me talk to you a little bit about what the issues are that have arisen.

LEAHY: Central during the hearings of this nomination was the issue of whether Judge Alito would serve as an effective constitutional check on the presidency, or, instead, would he adhere to unchecked expansions of presidential powers in accordance with the extreme and, I might add, very immodest theory of the unitary executive; something much in the news of late.

Presidential power was the first very subject I explored with Chief Justice Roberts when he was before us for confirmation. And, not surprisingly, it was the very first subject I explored with Judge Alito in the hearings. It's a fundamental question for me.

I told Chief Justice Roberts -- whom I voted for -- that this would be very fundamental in my decision.

But I also think it's a fundamental question for the Senate and for this country, at a time when we have a president prone to unilateralism and arrogant assertions of executive power that range all the way up to illegal spying on Americans.

Can this president or any president order illegal spying on Americans? Can this president or any president authorize torture in defiance of our criminal statutes and our international agreements? Can this president or any president defy our laws and Constitution to hold American citizens in custody indefinitely without any court review?

The reason I felt it was so important to ask these questions: We are a country of almost 300 million people. The Supreme Court is there for all of us, but only 18 people get to publicly ask questions of the nominee -- only 18 people, the 18 members of the Judiciary Committee. And then the 100 of us have to stand in the shoes of all 300 million Americans.

So I reviewed thousands of pages of his rulings and writings and, of course, his testimony -- days of it. And I conclude that the nominee has failed to address these central concerns on the issue of government powers.

Preventing government intrusion into the personal privacy and freedoms of Americans is one of the hallmarks of the Supreme Court. And it is certainly a hallmark in my state of Vermont.

Yet there is no reason to believe that Judge Alito will serve as an effective check and balance on government intrusion into the lives of Americans.

LEAHY: In fact, his record suggests just the opposite.

And at the hearing, he failed this test. Actually, he failed it literally. He twice misstated the generally recognized framework for the court's reviewing claims of government power. He did this in answer to my first question.

I corrected him when he could not distinguish between what Justice Jackson called "the zone of twilight," the situation when Congress has not acted, in which a president claims authority, and the circumstances where Congress has acted. As Justice Jackson said, "When Congress has acted, the president's authority is seen at its lowest ebb. It's subject to more demanding justification."

An example of this latter category is wiretapping of Americans, especially in light of the fact that Congress has acted on this. We enacted the FISA courts. These comprehensively controlled government spying on Americans. It is the steps that can be taken if you're going to do this kind of spying.

Now, security and liberty are always intentioned in our society, but especially, in our lifetimes, since September 11th.

But liberty and security don't have to be mutually exclusive. And in this blessed land, with its constitutional legacy, a legacy that's been entrusted us through blood and sacrifice and prayers and hopes of earlier generations of Americans, we can't yield to the temptation to trade our liberty for security.

This is a week when we commemorate Benjamin Franklin's 300th birthday. Keep in mind what he said at the time of our revolution, when they knew if they failed -- if they failed, most of those who want to start this new country would have been hanged.

What he said is: "Those who would give up an essential liberty for temporary security deserve neither liberty nor security."

LEAHY: Now, with enough care and effort and foresight, is there any reason we can't have both?

I chaired the Judiciary Committee right after the 9/11 attacks. And I worked with the White House and with other members of Congress in crafting the USA Patriot Act.

And I pushed hard, as the dean said, to add a variety of checks and balances. We added judicial reviews and sunsets to many of the provisions. In fact, the Bush administration resisted these additions at the time; now they brag on them.

Interestingly enough, as you'll see in the next week, there will be a debate over some of the parts that have been sunsetted. The sunsets were put in there by then-Majority Leader Dick Armey of the House -- a very, very conservative Republican -- and myself.

This is not a political or ideological thing; it's a question of our individual liberties.

Now, the administration, though, makes no mention of their earlier contentions that checks and balances would somehow hinder our anti-terrorism efforts.

Those checks and balances haven't hindered our efforts. We are not going to trade our liberty for security.

But these unilateral assertions have continued through the presidency and they've become a pattern. They've become an easier pattern because the Congress has refused to do the kind of oversight -- of searching oversight -- it should do.

They've been cowed by the White House. They've refused to do the oversight. Too often they've been too timid or too beholden, sometimes sadly too uninterested, to exercise their own authority, including oversight responsibilities.

So the question of Judge Alito's confirmation comes to us at a time when we learn the president's been conducting secret and warrantless eavesdropping on Americans for more than four years. And it was during this backdrop that Judge Alito was vetted by the administration and subsequently picked.

The president has made some of the most expansive claims of powers since American patriots fought the War of Independence to rid themselves of the oppressive rule of King George III.

The president is claiming power to illegally spy on Americans, to allow actions that violate our values and laws protecting human rights, to detaining U.S. citizens and others on his say so without a judicial review, and without due process.

This is a time in our history when the protections of Americans' liberty are at risk. But also at risk are the checks and balances that have served to constrain abuses of power for more than two centuries in this country.

LEAHY: It's the checks and balances -- checks and balances -- checks and balances define our democracy. And once it's taken away or eroded, liberty is rarely restored.

And the Supreme Court is that ultimate check and balance in our system. The independence of the court and its members is crucial to our democracy and our way of life.

The Senate should never be allowed to become a rubber stamp, but neither should the Supreme Court. I asked Judge Alito to demonstrate his independence from the interests of the president and he failed that test.

This nomination is to a lifetime seat on the nation's highest court, to a seat that in our era has often represented the decisive vote on constitutional issues. So the Senate has to carefully consider the suitability of the nominee to serve as the final arbiter of the meaning of the Constitution and the law.

Would he allow the government to intrude on Americans' personal privacies and freedoms?

In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially vital and pertinent. As we learned last week, they're also especially troubling.

It appears that he's chosen to serve as a surrogate for the president when the Supreme Court is called upon to review the president's expansive claims of governmental power to intrude into American lives.

The president wanted a reliable justice who would uphold the president's assertions of power.

Now, he thought he had nominated one when he nominated his White House counsel, Harriet Miers. Almost as soon as he nominated her, many came forward on the far right in his party and said, "You can't have her. You can't have her because we're not sure how she will vote. We're not comfortable with how she will vote."

And finally the president was forced to withdraw her name.

Almost immediately he turned to Judge Alito. And those same people said, "Fine, now we know we have someone we know how he'll vote."

LEAHY: His opening statement at the hearings skipped over the reasons he was chosen for this nomination.

Most importantly, in his testimony he attempted to revise and redefine the theory of the unitary executive to which he subscribes. It is that troubling theory that this president and his supporters are using as a legal underpinning to justify virtually anything the president wants to do and virtually all his unlimited power.

Now, no president should be allowed to pack the courts -- and especially the Supreme Court -- with nominees selected to enshrine a presidential claim of government power. That goes against our system of checks and balances, which is set in there to stop over-reaching of any of the three branches of government.

You go back in history, there was a time when there was a overwhelmingly Democratic majority in the Senate with a Democratic president, one of the most popular ever, Franklin Roosevelt. He proposed a court-packing scheme and the Senate of the United States stood up and said, "No, you cannot do that. No, we will not allow it." And it didn't happen.

Just as then, today the Senate should not be a rubber stamp to this president's efforts to move the law dramatically to the right but, more importantly, to give him unfettered leeway.

I'm not going to lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check -- the final check -- within our democracy. I will not vote to allow that.

We know that Samuel Alito thought that the Constitution, the law, justified absolute immunity for President Nixon's attorney general, John Mitchell, from lawsuits for having authorized wiretapping of Americans, among other violations of their privacy. That is immunity even if the attorney general acted willfully to violate their rights.

Attorney generals are not above the law. The president's not above the law. Senators are not above the law. Judges are not above the law. You don't give that kind of absolute immunity.

And we know that as a judge, Samuel Alito was willing to go further even than Michael Chertoff, former head of Attorney General Ashcroft's Justice Department's Criminal Division. He was a former U.S. attorney. He's now the current secretary of the Department of Homeland Security.

He was willing to go further than Michael Chertoff in excusing government agents for searches not authorized by judicial warrants.

I looked at this especially. I spent eight years as a prosecutor.

LEAHY: When you're a prosecutor, you understand as well as any other thing you might do in life the sense of checks and balances.

And Judge Alito showed this kind of extreme deference in his dissents in Doe v. Groody and Baker v. Monroe Township.

We know that he would have excused the strip search of a 10-year- old girl, a search that was not authorized by a search warrant -- a 10-year-old girl, no threat to anyone.

We know he's a part of the effort within the Meese Justice Department to expand the use of presidential signing statements to increase the president's say regarding what a law passed by Congress means.

And that's a practice that this administration has elevated to an art form, but it's a dark art. It's one in which the president signs a law, but then, by way of a unilateral statement declares he will not follow it or he will construe it as he thinks.

The law makes very clear that, if a president doesn't like a law that comes before him, then veto it.

But once he signs it, he's required by the Constitution to follow that law. Instead, he signs statements and the president has relied upon the theory of the unitary executive more than 100 times.

Somebody reported the other day how unusual it was President Bush has not vetoed any laws. Why should he? He signs a law and then puts one of these presidential statements saying: We'll follow this part or this part; we'll ignore this part.

And that comes from a theory propounded by Judge Alito when he was in the Meese Justice Department.

I'll give you the best-known example of this power grab. I was probably watching the news, for weeks and weeks, even months, the president and Senator John McCain negotiated over a statute on torture.

I followed that very closely because I was one of the co-sponsors of that.

LEAHY: It wasn't any statute to allow torture; it was a statute to make it very clear that this, the greatest democracy, greatest democracy on Earth that condemns torture.

And we passed a bill containing a provision against torture, known as the McCain amendment. And Dean (ph), Senator Durbin, another graduate of this school, and I co-sponsored it. But it was passed overwhelmingly in the Senate and the House. Republicans, Democrats, conservatives, moderates, liberals, voted for it.

It incorporates the language of the Convention against Torture. It ratified treaties like the Geneva Convention. It expressly prohibited cruel, inhumane and degrading treatment of detainees.

The Bush administration had opposed it. Vice President Cheney came up to the Hill personally to lobby against it. The administration tried to create a loophole in the law to get out of following it. But ultimately Congress -- one of the few times it stood up to this administration -- overwhelmingly said no and wrote into law this torture statute.

The president had a widely publicized meeting with Senator McCain. The White House announced they had worked it out. Great deal of publicity when he signed it.

But guess what? At the beginning of the new year's weekend -- Congress is gone, press is gone, most people are gone, the president on December 30th released a signing statement proclaiming his administration shall construe the law in a manner consistent with the constitutional authority of the president to supervise unitary executive branch. In other words, he'll pick and choose what parts of the law to follow.

LEAHY: That's not what the law said. That's what they wanted. That's what we rejected. And that's not what we passed.

If the president doesn't want to follow the law, veto the law. And the reason this one was not vetoed is that the Congress would have overwhelmingly overridden the president's veto.

He proceeded to say he can choose to disregard the law at his discretion, based on his own view of the powers. That's not check and balance. That's not our Constitution.

Now, we know that in his 1985 job application, Judge Alito wrote that he strongly believed in the supremacy of the elected branches over the judiciary.

He backed off from that at his hearing. He told Senator Kennedy the phrase was inapt and it was misleading and inaccurate.

Well, you learn long ago -- if not in grade school, at least high school -- that we have three separate and co-equal branches. The judiciary was intended by the founders to serve as a check on the elected branches, including the president.

But Judge Alito in his writings and even more recently a week ago at his hearings was far from clear on that point. He testified he had not changed his mind on these matters since 1985, but he wouldn't clarify further.

I have no reason to believe that he will fulfill the proper role of the courts when the political process is corrupt or breaks down and an elected branch cannot or will not fix the problem.

The Supreme Court has a long-standing rationale for stepping in when the political process fails. Think of Brown v. Board of Education. Think of the Watergate era.

But we heard nothing in Judge Alito's testimony that showed that he understands this critical role of the courts.

LEAHY: He produced material for about 21 of the 50 speeches he says he's given. But we do have the transcript of his November 2000 appearance before the Federalist Society.

He took time from his busy schedule; this was right after the presidential elections. He attended their convention. He discussed his adherence to the theory of the unitary executive. And he criticized the Supreme Court, criticized it rather roundly, for upholding the constitutionality of the independent counsel statute.

Is this a man who thinks of checks and balances?

He went so far as to call the unitary executive "gospel" and to say that in his view it best captures the meaning of the Constitution's text and structure.

Now, he has moved to distance himself during the hearings from other membership, but he's not denied his membership in this society that touts this theory.

But the audition before the Federalist Society in the year 2000 appeared to work. It reminded those advising the new president that they had a known quantity in Samuel Alito. Some of the same people who felt they did not have a known quantity in the president's counsel felt they did in Samuel Alito.

It led to a White House interview in connection with a possible future Supreme Court vacancy shortly thereafter, in 2001. And he had other meetings and interviews.

But the key one took place in May 2005 with Vice President Cheney, Scooter Libby, Karl Rove and others at the White House. It was months before Justice O'Connor made her announcement to retire; that came in July. But in May he was called in to meet with the president's key political strategists.

LEAHY: I thought of that meeting when Judge Alito sat before the committee and asked "How did I get here? How did I get here?"

I got a pretty good idea. I think some of you do too, by the chuckles in the room.

He must have gotten this critical nomination because of his deference to government power, his adherence to unitary executive, his rulings in favor of government intrusions. And whatever he said in those meetings, the White House believed they had a reliable vote against challenges to presidential power.

Certainly the same people who objected to Harriet Miers, not on her abilities, but on a sense of how she would vote, those same people came out immediately in favor of Judge Alito.

In last week's hearings, Judge Alito responded to hundreds of questions, but he adequately answered only a few of them. His answers often amounted to a scholastic or technical discussion. They may be adequate in the classroom, but I suspect that neither the professors here nor the students would allow it in an abstract.

In my mind, his answers were not sufficient about his own approach to the law and the Constitution.

This was his one moment of accountability. This was the one time that almost 300 million Americans got a chance to ask questions before he could potentially take a seat on the highest court in the land. And there was too little substance and too little accountability to the American people and to the Senate.

Now, he spent his entire legal career working for the government. Indeed, since he graduated from law school, his sole employer, and in essence his one client, has been the government. He was given political appointments by President Reagan, by former President Bush. He's now nominated by the current President Bush to the most important position to which any lawyer could be named.

In an extraordinary era of governmental intrusions into the lives of ordinary Americans, where it's been left to the Supreme Court to restore balance, it's difficult to have confidence in a nominee who will not serve as an effective check on his patron or on the government he spent his legal practice representing.

LEAHY: I voted for President Reagan's nomination of Justice Sandra Day O'Connor. I voted for President Reagan's nomination of Justice Anthony Kennedy. I voted for President Bush's nomination of Justice Souter. I voted for this president's recent nomination of Chief Justice Roberts.

I cannot vote for this nomination. I will not vote for this nomination.

(APPLAUSE)

Let me conclude.

You know, I value the law. I value what I learned here. I value what I learned in the private practice of the law. I value what I learned in eight years as a prosecutor and now my years here.

I voted on every single member of the Supreme Court presently serving.

But I want a Supreme Court that acts in its finest tradition of preventing government intrusion into the personal privacy and freedoms of all Americans.

I want all Americans to know that the Supreme Court will protect their rights and will respect the authority of Congress to act in their interest. The Supreme Court must be an institution where the Bill of Rights and human dignity are honored, are cherished, are protected.

And, at a time when the president is seizing unprecedented power, the Supreme Court needs to be a check and balance. It needs to provide balance.

I have no confidence that Judge Alito would provide that check and balance. So in good conscience -- and my conscience ultimately guides me in all these votes -- I cannot and I will not support the nomination.

Thank you for giving me this forum.

(APPLAUSE)