NOMINATION HEARING OF JUDGE SAMUEL ALITO OPENING STATEMENT OF SENATOR HERB KOHL
Thank you, Mr. Chairman.
Judge Alito, let me also extend my welcome to you this afternoon and to your family. You are to 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. 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 Courts stand 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 non-conforming victims of prejudice and public excitement."
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 suffering 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 judge you.
In short, before we give we give you the keys to the car, we would like to know where you plan to take us.
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, I asked you what sort of Supreme Court justice you would make. And your answer was fair when you said "if you want to know what sort of Justice I would make, 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 Chittester case as evidence that you will make it harder for working people to care for a family member in need. 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 expressed pride in some of the work you did in the Solicitor General's office. You chose to single out the assistance that you provided in crafting Supreme Court briefs arguing that QUOTE "the Constitution does not protect a 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.
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 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 liberties -- protecting minorities against majority abuses, and protecting individuals against government abuses. Yet, antagonism toward these decisions seems to have motivated your pursuit of the law.
Your supporters 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.
It is our job to sort out the truth about your record -- to 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 your supporters are correct that you are a mainstream conservative who will fairly decide all cases. I hope that these hearings will add to our record in making this critical determination.
This would be an appropriate time to share our perspective on how we will judge a nominee. We have used the same test for each of the previous five 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 which form the core of our political and economic system. In other words, we should not approve any nominee whose extreme judicial philosophy would undermine rights and liberties relied upon by all Americans.
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. We want to know, in general, what is in your heart and in your mind.
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. 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 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.