Hearing of the Senate Judiciary Committee on the Nomination of Judge Samuel Alito, Jr. as Associate Justice on the Supreme Court
Statement of U.S. Senator Herb Kohl on the Nomination of Judge Samuel Alito, Jr. as Associate Justice on the Supreme Court
I want to congratulate you and Senator Leahy on your impartial handling of Judge Alito's confirmation hearings. You allowed us -- on behalf of the people we represent -- to conduct a thorough examination of Judge Alito.
And after that thorough examination I cannot support the nomination of Judge Alito to the Supreme Court. I fear that a Justice Alito will narrow our rights, limit our freedoms and overturn decades of progress. To confirm Judge Alito to the Supreme Court would be to gamble with our liberties, a bet I fear the Constitution -- and the American people -- would lose.
Generations of Americans have looked to the Supreme Court as more than a simple legal tribunal asked to decide cases and controversies. Rather, we expect the Supreme Court to guard our liberties, protect our rights, and -- where appropriate -- expand our freedoms.
This process of bringing life to the promises of the Constitution has never moved predictably -- or smoothly. As Martin Luther King, Jr. once noted, "Human progress is neither automatic nor inevitable. Every step toward the goal of justice requires . . . the tireless exertions and passionate concern of dedicated individuals." Throughout American history, those "dedicated individuals" have fought on many battlegrounds -- from the steps of the White House and Congress, to the dangerous back roads traveled by the Freedom Riders. And somehow the fight always leads to the Supreme Court -- it is there that these brave individuals have found refuge and, through their victories, changed America for the better.
Many of these victories are now identified with individuals through familiar case names -- Brown v. Board of Education, Gideon v. Wainwright, Baker v. Carr and Miranda v. Arizona. Judge Alito has stated his allegiance to the principles of these cases -- and we are grateful for that. But we would expect any nominee to any court in this land to agree that schools should not be segregated and votes should count equally. That is a starting point. But we must dig deeper to discover whether Judge Alito should serve as an Associate Justice on the Supreme Court of the United States.
We must ask ourselves: how will Judge Alito view the next "dedicated individuals" who come before him seeking justice? What of the next Brown? The next Gideon? We do not consider Judge Alito for a seat on the bench in 1954 or 1965 but rather, in 2006, and possibly 2036. Given his narrow judicial philosophy -- on display throughout his legal career -- Judge Alito is unlikely to side with the next "dedicated individual."
This narrow judicial philosophy is clear, for example, in his views on civil rights. In his now famous 1985 job application, he took issue with Warren Court decisions that established one-person/one-vote, Miranda rights and protections for religious minorities. These statements leave the clear impression that his antagonism toward these decisions -- decisions that helped religious and racial minorities receive protection from majority abuses -- motivated Judge Alito's pursuit of the law.
While Judge Alito claimed that he was merely describing his opinions as a young man, his judicial opinions suggest a more well-formed philosophy of limited rights and restricted civil liberties.
He was in the extreme minority of judges around the country when he found that Congress has no ability to regulate machine guns. His efforts to strike down portions of the Family and Medical Leave Act were rejected by then-Chief Justice Rehnquist. He raised the bar to unreachable heights repeatedly in employment discrimination cases, to the point where the majority of his court concluded that he was attempting to "eviscerate" the laws entirely.
His restrictive view of Constitutional liberties was echoed in his thoughts about a woman's right to choose. In a 1985 job application, he expressed a legal view that there was no such right, and worked hard to craft a legal strategy that would chip away at -- and ultimately eliminate -- that right from the Constitution.
When asked about this, Judge Alito has said -- in essence -- that was then, this is now. Yet even years after his work for the Reagan Administration, his narrow views on privacy echoed throughout his opinion in Planned Parenthood v. Casey. He would have placed more restrictions on a woman's freedom than other conservative judges -- including the woman he seeks to replace on the Supreme Court.
Even today, Judge Alito is unwilling to declare that Roe v. Wade is "settled law" -- a pronouncement that Chief Justice Roberts made with ease. Judge Alito felt free to confirm that one person/one-vote, integrated schools, and some privacy rights were settled, but not a woman's right to choose.
In addition, Judge Alito's decisions call into question our right to be free of police intrusion and government power. For example, Judge Alito, in disagreement with his colleagues in the Reagan Justice Department, argued that the police acted reasonably in shooting -- and killing -- a fleeing, unarmed, teenage suspect. In many opinions as a judge, he deferred reflexively to the police in cases involving the interpretation of search warrants -- including one permitting the strip search of a ten year old girl.
At a time in our history when the balance between our security and our civil liberties requires the active involvement of the courts, Judge Alito's deference to Presidential power concerns us. He promoted the radical idea of a "unitary executive" -- the concept that the President is greater than -- not equal to -- the other branches of government. Judges are meant to protect us from unlawful surveillance and detention -- not simply abide the President's wishes.
Although it is the most important standard, judicial philosophy is not the only measure of a nominee. We had hoped that Judge Alito would have been able to satisfy the concerns we had with his record at his hearing. Instead, he chose to avoid answering many of our questions. His inability -- or unwillingness -- to answer those questions in even the most general manner did a disservice to the country and to his nomination.
For example, when questioned on his support for Judge Bork -- calling him "one of the most outstanding nominees of the century" -- Judge Alito answered that he was just supporting the Administration's nominee.
When questioned about his membership in the Concerned Alumni of Princeton he said he could not remember this group -- despite citing it with pride in a job application.
When questioned about whether Bush v. Gore should have been heard by the Supreme Court, Judge Alito said that he had not thought about it as a judge and did not have an opinion.
Mr. Chairman, in each of the six Supreme Court nominations that I have voted on, I have used the same test of judicial excellence. Justices Souter, Breyer, Ginsburg and Roberts passed that test. Judge Alito does not.
Judge Alito's record as a professional - both as a Justice Department official and as a judge -- reflects something more than a neutral judicial philosophy. Instead, it suggests a Judge who has strong views on a variety of issues, and uses the law to impose those views.
Judge Alito has the right to see, read, and interpret the Constitution narrowly. And we have the obligation to decide whether his views have a place on the Supreme Court. I have decided they do not, and so I will oppose Judge Alito's nomination today.