EXECUTIVE SESSION -- (Senate - January 27, 2006)
BREAK IN TRANSCRIPT
Mr. KERRY. I thank the Chair.
Mr. President, let me begin by congratulating the Senator from Minnesota for an absolutely superb presentation of the arguments that are at stake in this choice which the Senate faces. I think he has done a terrific job of summarizing a great many of those issues in the broad scope of those issues, and I particularly appreciate the last comments he made about the absence of unanimity and the divisions in the Senate over their vote.
None of us should forget the debate Harriet Miers met with a storm of criticism--not from this side but from the other, from the rightwing. In fact, she became more unacceptable to the Republicans because she did not make clear which ideological direction she would take the Court, rather than for the very broad-based appeal she would pose to the country.
The reason we are here with this decision is not because of a choice we have made. It is because of a choice the President has made. It is because that is the direction the President wants to move in. We have had countless opportunities in the Senate where we have had votes on nominees which have garnered 100 votes, 98 votes, 95, 90. Anyone who is watching understands that the Senate is divided on this nominee. At this pivotal moment in our country's history with the issues we face, that is not the way to tip the balance of the Court or to move the Court in an ideological direction.
The critical question here is, Why are we so compelled to accept in such a rush a nominee who has so clearly been chosen for political and ideological reasons? That is the real question. Our job is to advise and consent. No one understands better than I do the consequences of an election and what happens when a President wins. I have heard colleagues say: Well, the President won. He has a right to make his choice.
Yes, he does. And the choice he has made is an ideological choice to take the Court in a certain direction. That is his choice.
Our choice depends on our rights as Senators and depends on what the Constitution tells us we should do in terms of giving advice and consent. My question to the Senate is, What is our advice with respect to the rights of a young person to be strip-searched or with respect to people in their homes or with respect to a whole series of other critical things that define this country? What is the advice of the Senate in this year?
These are not small issues to be expedited away by some kind of a symbolic timetable, a State of the Union Message. Our advice and consent ought to be weighed just as carefully and as importantly as the impact this choice is going to have on the Court for years to come. This is not just the vote of Monday afternoon. This is a vote of history.
Deciding on whether to confirm Judge Sam Alito to be an Associate Justice is one of the most important votes I will cast in the time I have been in the Senate because of what it means to the Court and to these critical choices. Confirming Judge Alito to a lifetime appointment on the Supreme Court would have irreversible consequences that are already defined if Senators will take the time to measure them.
In my judgment, it will take the country backward on critical issues. I will not talk about them all now; we do not have time. I know there is a pre-agreement. I understand that, and I respect that.
I am proud to join my friend, the senior Senator from Massachusetts, in taking a stand against this nomination. I know it is an uphill battle. I have heard many of my colleagues. I hear the arguments: Reserve your gunpowder for the future. What is the future if it changes so dramatically at this moment in time? What happens to those people who count on us to stand up and protect them now, not later, not at some future time?
This is the choice for the Court now. I reject those notions that there ought to somehow be some political calculus about the future. This impact is going to be now. This choice is now. This ideological direction is defined now.
This fight is not a fight for the short term. This is a fight over two very fundamentally different views about what defines us, what is appropriate in the relationship between government and citizen, and the right of our citizens to be free from unlawful government action. These are not just words. This is not something we just casually throw out there. ``Unlawful government action'' is part of what motivated people to come here in the first place and to fight for what we love and cherish.
I used to be a prosecutor, and I worked closely with police. I loved my work with the police. I respect the police. They do unbelievably dangerous work on behalf of our country every single day. They may walk into a home, into a dark corner, not knowing who is there or what evil awaits. I understand that. I also understand when you assume that responsibility, you assume a responsibility to uphold the law, to uphold the Constitution, and to help protect people. That is part of the risk, part of what you take on.
What about the right to equal justice under the law? I heard one Senator the other day come to the Senate and say it isn't the job of a Supreme Court Justice to protect the downtrodden or the disenfranchised, it is their job to interpret the law. On countless occasions we all know the weight that comes to bear in that decision-making process between powerful interests and those who do not have a voice. That is also part of what defines us. What makes America different from every country on the face of the Earth is that the average citizen can go into a courthouse in America and hold the most powerful corporation to account for their safety, for their livelihood, for their welfare. These are rights that Americans care about deeply.
The importance of this choice is highlighted by focusing on the seat that this nominee has been chosen to replace. Look at Justice Sandra Day O'Connor, a deciding vote, a vote that will likely be lost if Judge Alito takes her place. Look at the case of Grutter v. Bollinger, which held that State colleges and universities have the right to use affirmative action in their admission policies to increase educational opportunities for minorities and promote racial diversity on campuses.
What about Tennessee v. Lane, which upheld the constitutionality of title II of the Americans with Disabilities Act that required that courtrooms be physically accessible to the disabled. Or Rush Prudential HMO v. Moran, which upheld State laws giving people the right to a second doctor's opinion if their HMO tries to deny them treatment. That is a classic example of power against the powerless. It happens every day in America. An HMO decides, no; an
individual citizen wants the coverage they think they got. Will they have the right to have the access on that?
Hunt v. Cromartie, affirming the right of State legislatures to take race into account to secure minority voting rights and redistricting--we all know what has happened in this country, the challenge to the rights of minorities to vote. We still see it. As recently as in the last election we saw minorities denied opportunities to register, opportunities to have equal numbers of voting machines in their district. These are the things that define us.
Brown v. Legal Foundation of Washington, which maintained the key source of funding for legal assistance for the poor; Alaska Department of Environmental Conservation v. EPA, which allowed the EPA to step in and take action to reduce air pollution under the Clean Air Act when a State conservation agency fails to act--there is not an American that doesn't understand we are going backwards with respect to air quality. What are the rights of the EPA going to be where Justice Sandra Day O'Connor was the swing vote, 5-4, the only one who held the line on the right of the EPA to do that?
Stenburg v. Carhart, which overturned a State law that would have banned abortion as early as the 12th week of pregnancy without providing an exception to a woman's health--the list goes on. These are the issues which are at stake.
Throughout his legal career--these are not things that are made up. These are defined by the writings, by the decisions, by the memoranda, by the speeches that Judge Alito has made. In each of those, in all of those, there is a startling lack of skepticism that is healthy in judges towards government power that infringes on individual rights and liberties. Professor Goodwin Liu of the University of Berkeley Law School concluded after analyzing those:
Judge Alito ``is less concerned about the government overreaching than Federal appeals judges nationwide, less concerned than Republican-appointed appeals judges nationwide, and less concerned than his Republican-appointed colleagues on the Third Circuit.''
Aren't we going to be concerned that he is less concerned than those of the same stripe? Not only is his record outside the mainstream of the judicial spectrum, but ``it is at odds with the Supreme Court's vital role in protecting privacy, freedom, and due process of law.'' That is Professor Liu.
In 1984, for example, Judge Alito wrote a Justice Department memorandum concluding that the use of deadly force against a fleeing unarmed suspect did not violate the fourth amendment. The victim was a 15-year-old African American. He was 5 foot 4. He weighed 100 to 110 pounds. This unarmed eighth grader was attempting to jump a fence with a stolen purse containing $10 when he was shot in the back of the head in order to prevent escape. The Sixth Circuit Court of Appeals found the shooting unconstitutional because deadly force can only be used when there is ``probable cause that the suspect poses a threat to the safety of the officers or a danger to the community if left at large.'' That is what we teach law enforcement officials.
But Judge Alito disagreed. Judge Alito said: No, he believed the shooting was reasonable because ``the State is justified in using whatever force is necessary to enforce its laws''--even deadly force. That is his conclusion. That is the standard that is going to go to the Supreme Court if ratified. It is OK to shoot a 15-year-old, 110 pounds, a 5-foot-4-inch kid who is trying to get over a fence with a purse, shoot him in the back of the head.
Otherwise, Judge Alito believed that any suspect could evade arrest by making the State choose between killing them or letting them escape. That is the conclusion. Think about that. Judge Alito believed that the State could use whatever force was necessary to enforce its laws regardless of whether the suspect was armed or dangerous. Does the Chair believe that? Do the other Senators believe that? I don't think so. Do mainstream Americans believe that?
Lucky for us, we did not have to answer that question. Why? Because in 1985, Justice White rejected Judge Alito's position, and the court held that deadly force is not justified ``where the suspect poses no immediate threat to the officer and no threat to others''. The court stated unequivocally, ``a police officer may not seize an unarmed, nondangerous suspect by shooting him dead.''
So Judge Alito is out of touch with mainstream juris prudence with respect to the use of force in America. Becoming a Federal judge did not make Judge Alito any more protective of an American's personal privacy and freedoms when it comes to government intrusion. That ought to concern every conservative in this Nation. Every conservative in America ought to care about the government's power to just walk into your home, to intrude on the rights of individual Americans.
In Baker v. Monroe Township, over a dozen local and Federal narcotics agents raided the apartment of Clement Griffin, just as his mother and her three children were arriving for a family dinner. Officers forced the family down to the ground, pointed guns at them, handcuffed and searched them. Two Reagan appointees to the court held that a jury should decide whether excessive force was used, but Judge Alito disagreed. He agreed that the search was ``terrifying'' and ``most unfortunate''. But he did not believe that the family had a right to make their case to a jury in court. He would have denied those American citizens, terrified as they were, their day in court.
Judge Alito, I regret to say, often goes out of his way to justify excessive government actions. Many have talked in the Senate about Doe v. Groody, where Judge Alito, dissenting in an opinion by our current head of the Department of Homeland Security, then-Judge Michael Chertoff, concluded that the strip-search of a 10-year-old girl was unreasonable. That was the conclusion of Judge Chertoff. Judge Alito concluded that the strip-search of a 10-year-old girl was reasonable.
He reached this astonishing conclusion on a technicality. Rather than relying on the search warrant to determine whether the strip search of a child was authorized, Judge Alito argued that the court ought to look to the police officer's supporting affidavits.
As a rule, however--now, I can say this as a former prosecutor because we used to labor over those warrants very carefully, knowing they were going to be scrutinized--affidavits are not part of the search warrants unless the trial judge decides they are. That ``goes to the heart of the constitutional requirement that judges, not the police, authorize the warrants. But Judge Alito said: No, no, no, no, it is OK to go look behind what they were intending, and decided they must have intended to include the search of the entire family, including a 10-year-old child. Is that the standard we want on the Court?
Judge Alito's minimalist view of the fourth amendment's right to privacy is not limited to claims of excessive force. In United States v. Lee, he upheld the FBI's installation of a video and audio surveillance device in a hotel room in order to record conversations between the target of a bribery sting and a police informant. The FBI conducted the surveillance without a warrant, arguing, first, that the target had no expectation of privacy in a hotel room, and, second, that the device was turned on only when the informant was in the room. Judge Alito accepted the FBI's argument, and found no constitutional violation.
His eagerness to buy the FBI's arguments, particularly in light of the Supreme Court decisions to the contrary, raises serious questions about how he would approach serious constitutional violations to the National Security Agency's program of domestic eavesdropping. Americans across the board are concerned about the violation of the law with respect to what we passed in the Congress overwhelmingly. After all, with the eavesdropping in Lee and the eavesdropping being conducted now, we see some startling similarity. Both are defended on the basis of Executive discretion and self-restraint.
The fourth amendment is not defined that way. It is defined by judicial restraint itself, not the Executive restraint, and by judicial review.
We also should never forget, as we think about this issue, the words of an eminent Justice, Justice Brandeis, who said:
Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. ..... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
I believe that is what we need to protect ourselves against. That is what the Framers created the judiciary to do. And that is what I fear the record shows Judge Alito has not been willing to do.
Now, if his judicial opinions and legal memoranda do not convince you of these things, you can take a look at the speech he gave to the Federalist Society in which, as a sitting judge, he ``preached the gospel'' of the Reagan Justice Department nearly 15 years after he left it; a speech in which he announced his support of the ``unitary executive theory'' on the grounds that it ``best captures the meaning of the Constitution's text and structure.''
As Beth Nolan, former White House counsel to President Clinton, describes it:
``Unitary executive'' is a small phrase with almost limitless import: At the very least, it embodies the concept of Presidential control over all Executive functions, including those that have traditionally been exercised by ``independent'' agencies and other actors not subject to the President's direct control. Under this meaning, Congress may not, by statute, insulate the Federal Reserve or the Federal Election Commission ..... from Presidential control.
Judge Alito believes you can.
The phrase is also used to embrace expansive interpretations of the President's substantive powers, and strong limits on the Legislative and Judicial branches. This is the apparent meaning of the phrase in many of this Administration's signing statements.
Now, most recently, one of those signing statements was used to preserve the President's right to just outright ignore the ban on torture that was passed overwhelmingly by the Congress. We had a long fight on this floor. I believe the vote was somewhere in the 90s, if I recall correctly. Ninety-something said this is the intent of Congress: to ban torture. But the President immediately turned around and did a signing in which he suggested an alternative interpretation. And Judge Alito has indicated his support for that Executive power.
During the hearings, Judge Alito attempted to convince the committee that the unitary executive theory is not about the scope of Presidential power. But that is just flat wrong. Not only does the theory read Executive power very broadly, but, by necessity, it reads congressional power very narrowly. In other words, as the President gains exclusive power over a matter, the Constitution withholds Congress's authority to regulate in that field. That is not, by any originalist interpretation, what the Founding Fathers intended.
Let me give you a real-life example, as described again by Beth Nolan:
[W]hen the Reagan Administration undertook the covert arms-for-hostages operation that eventually grew into the Iran-Contra scandal, it triggered the requirement of the National Security Act that the Administration provide Congress ``timely notification'' of the covert operation.
Reading the phrase ``timely notification'' against the background of the unitary executive theory, the Justice Department stated, ``The President's authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from the applicable provisions of the Constitution itself.''
According to Justice, under that interpretation, Congress's role in this matter was limited because its only constitutional powers in the area of foreign affairs were those that directly involved the exercise of legal authority over American citizens. Justice even qualified this statement, saying that by ``American citizens'' it meant ``the private citizenry'' and not the President or other executive officials.
According to Ms. Nolan:
[I]f such claims are taken seriously, then the President is largely impervious to statutory law in the areas of foreign affairs, national security, and war, and Congress is effectively powerless to act as a constraint against presidential aggrandizement in these areas.
Does that sound familiar? It ought to sound familiar. The Bush administration's legal opinion on torture, the administration's response to the McCain antitorture amendment, and the justifications given for the NSA's domestic spying program have all been based, in large part, on this exact same theory of the unitary executive.
Given Judge Alito's history in the Reagan Justice Department, given his writings on the Third Circuit, given the year 2000 speech to the Federalist Society, a central question is whether you can trust that he, in fact, is going to protect the rights of the Congress and the legislative branch as well as those personal freedoms of individual Americans from those governmental intrusions?
I believe the record says ``no.''
Now, as I mentioned earlier, I know this is flying against some of the sort of political punditry of Washington. I understand that. But this is a fight worth making because it is a fight for a lifetime appointment on the Supreme Court of the United States, with a series of decisions that suggest a view--however brilliant a legal mind--he has a brilliant legal mind. I met with him. He is a nice fellow--we all understand that--well regarded by some people in the judicial system. He was looked at by the ABA. And they make a judgment based on sort of just legal decisions, not necessarily the ideological impact, the larger implication, all the other conditions that we need to consider as we give advice and consent.
Perhaps Professor Liu of the Berkeley Law School put it best when he wrote this. He said: Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some.
[T]his is not the America we know. Nor is it the America we aspire to be.
So these are the reasons we need to take a hard look at what we are doing, even if it means swimming upstream. There are consequences to this nomination that I do not believe all the American people got out of the hearings because the hearings did not answer questions. And when you pose some of these choices to Americans, they come down on the side that I have described: being protected, not making those kinds of choices about a young kid, making sure that our privacy is protected.
So for those reasons, and others I will discuss starting on Monday, I oppose Judge Alito's nomination. And I hope that colleagues, others, will join in that effort in the end.
I yield the floor and suggest the absence of a quorum.