Executive Session

EXECUTIVE SESSION -- (Senate - January 26, 2006)

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Mr. OBAMA Mr. President, first let me congratulate Senators Specter and Leahy for moving yet another confirmation process along with a civility that speaks well of the Senate.

As we all know, there has been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable and an all-around good guy; that once you get beyond intellect and personal character, there should be no further question as to whether the judge should be confirmed.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe it calls for meaningful advice and consent and that includes an examination of a judge's philosophy, ideology, and record. When I examine the philosophy, ideology, and record of Samuel Alito, I am deeply troubled.

I have no doubt Judge Alito has the training and qualifications necessary to serve. As has been already stated, he has received the highest rating from the ABA. He is an intelligent man and an accomplished jurist. There is no indication that he is not a man of fine character.

But when you look at his record, when it comes to his understanding of the Constitution, I found that in almost every case he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding Americans' individual rights and liberties.

If there is a case involving an employer and employee and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there is a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he will rule in favor of the State. He has rejected countless claims of employer discrimination, even refusing to give some plaintiffs a hearing for their case. He has refused to hold corporations accountable numerous times for dumping toxic chemicals into water supplies, even against the decisions of the EPA. He has overturned a jury verdict that found a company liable for being a monopoly when it had over 90 percent of the market share in that industry at the time.

It is not just his decisions in individual cases that give me pause, though; it is that decisions like these are the rule for Samuel Alito rather than the exception.

When it comes to how checks and balances in our system are supposed to operate, the balance of power between the executive branch, Congress, and the judiciary, Judge Alito consistently sides with the notion that a President should not be constrained by either congressional acts or the check of the judiciary. He believes in the overarching power of the President to engage in whatever policies the President deems to be appropriate.

As a consequence of this, I am extraordinarily worried about how Judge Alito might approach the numerous issues that are going to arise as a consequence of the challenges we face with terrorism. There are issues such as wiretapping, monitoring of e-mails, other privacy concerns that we have seen surface over the last several months.

The Supreme Court may be called to judge as to whether the President can label an individual U.S. citizen an enemy combatant and thereby lock them up without the benefit of trial or due process. There may be consideration with respect to how the President can prosecute the war in Iraq and issues related to torture. In all of these cases, we believe the President deserves our respect as Commander in Chief, but we also want to make sure the President is bound by the law, that he remains accountable to the people who put him there, that we respect the office and not just the man, and that that office is bounded and constrained by our Constitution and our laws. I don't have confidence that Judge Alito shares that vision of our Constitution.

In sum, I have seen an extraordinarily consistent attitude on the part of Judge Alito that does not, I believe, uphold the traditional role of the Supreme Court as a bastion of equality and justice for U.S. citizens. Should he be confirmed, I hope he proves me wrong. I hope he shows the independence that I think is absolutely necessary in order for us to protect and preserve our liberties and our freedoms as citizens. But at this juncture, based on a careful review of his record, I do not have that confidence, and for that reason I will vote no and urge my colleagues to vote no on this confirmation.

Mr. President, I yield the floor.

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