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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - January 25, 2006)


Mr. KERRY. Mr. President, obviously, today we face one of the most important choices we make as Senators. This is a choice, as colleagues have said, that is going to affect the country for the next several decades.

To replace Justice Sandra Day O'Connor, the President has nominated a man who has consistently deferred to Government action regardless of how egregious that action may be. He has nominated a man whose pattern of decisions erects rather than breaks down barriers in the area of civil rights; a man who, to this day, has never retreated from his declaration that the Constitution does not protect a woman's right to privacy; a man who has demonstrated a persistent insensitivity to the history of racial discrimination in this country and was even, at the Government's request, willing to ignore overwhelming evidence that African Americans were intentionally stricken from an all-White jury in a Black defendant's capital case.

Judge Alito has been nominated to fill the seat, as we know, of an individual who has been the Court's swing vote; a woman who has upheld affirmative action programs; a woman who upheld the right to choose; a woman who upheld State employees' rights to the protections of the Family Medical Leave Act; a woman who recognizes that a declaration of war is not a blank check for the President's actions; a woman who decides each case narrowly on the facts presented, keenly aware of the greater impact that her decisions have.

So this is the contrast. We are being asked to confirm a nominee who will shift the ideological balance of the Court dramatically to the right. And many people are cheering for that.

We are being asked to confirm a nominee whose views will undermine a balance of power that I believe, and many others believe, literally keeps our country strong, a balance of power that helps to bring people together rather than divide them, that helps to apply the Constitution to people in all walks of life, not simply those with power and privilege.

For the reasons of this track record: the of his writings in the Justice Department, the questions unanswered in the hearings, the cases he has decided, where studies have shown a pattern of willingness to ignore our Constitutional rights and deny people access to our court system, for all of these and for other compelling reasons, I oppose this nomination.

In the past, in the 22 years I have been here, like many of my colleagues, I have voted for Federal court nominees despite the fact I disagreed with them ideologically. I have voted, I am confident, literally hundreds of times. In fact, I voted for Justice Scalia because despite our ideological differences, in the confirmation process he promised to be openmindedness that we have not seen in the Court.

So we have learned the hard way. The words of the confirmation hearings simply do not erase ideology, they do not erase a track record. And that ideology cannot be overlooked because a Justice's decisions can and will have a profound impact on the rights that we otherwise take for granted.

So something more is needed. A Supreme Court Justice needs to understand and have a record of respecting the constitutional rights and liberties which we confirm them to uphold. He or she needs to recognize the importance of precedent and the limited situations in which overruling is acceptable.

He or she needs to appreciate the significant struggles that our Nation has endured in the context of racial, sexual, and disability discrimination and to be aware of the road still to be traveled. And that awareness of the road still to be traveled has to be evidenced in the decisions and writings of that nominee. In short, ideology does matter. The Supreme Court's ideologically driven decisions have been the most regrettable in our Nation's history, decisions such as Korematsu, Dred Scott, and Plessy v. Ferguson.

In fact, ideology matters more in this nomination than it would in many others. We are replacing Sandra Day O'Connor, President Reagan's nominee to the Supreme Court, the person who has occupied the center of balance on the Court. She has been the deciding vote in critical cases involving and defining our constitutional rights and liberties. As we contemplate ripping that center out from under the Court, we have to understand what the impact of that action will be.

Given how high the stakes are, our decision simply cannot be based on whether Judge Alito is a smart man or whether he is a nice man or whether he is an accomplished man or even whether he is well respected in legal circles. He is all of those things. But what we need to consider is the impact that a Justice Alito will have on the Court and whether that impact is good for our country, good for our Constitution, and good for the American people.

I believe, based on his track record, the decisions already made, the writings already expressed, the questions that went un-answered, that the he will have a detrimental effect. President Bush had the opportunity to nominate someone who would have united the country. He could have nominated somebody who would have received 100 votes or 98 votes. He chose not to do this, which is his right. We all understand. We have heard the argument about the consequence of elections. The fact is, he chose not to do that.

The way in which this nomination came to us in the Senate tells us a huge amount what this nomination really means. The President was under fire from his conservative base for nominating Harriet Miers, a woman whose judicial philosophy was unmercifully attacked. President Bush, in the end, broke to those extreme rightwing demands. This was an ideological coup. Miers was removed and Alito was installed. The President didn't consult with the Senate, as required by the Constitution. He gave more thought to what the political needs were than to what the country's needs were. Indeed, he made this nomination about his political base. He made it about an ideological shift in the Court. He made it about unassailable conservative credentials and an unimpeachable conservative judicial philosophy.

If you want proof of that, all you have to do is look at the comments of people such as Ms. Ann Coulter. We all know Ms. Coulter is capable of being as inflammatory and conservative as anyone in the country, often engaging in character assassination. She denounced the nomination of John Roberts. She attacked the nomination of Harriet Miers, calling her completely unqualified and lamenting that President Bush had ``thrown away a Supreme Court seat.'' Yet she celebrated the nomination of Sam Alito, stating that Bush gave the Democrats a ``right hook'' with this ``stunningly qualified'' nominee. This from a woman who said that the Republicans need to nominate a person who ``wake[s] up every morning . . . chortling about how much his latest opinion will tick off the left.''

Failed Supreme Court nominee Robert Bork had a similar reaction. He denounced the Miers nomination as ``taking the heart out of a rising generation'' of conservative constitutional scholars and ``widen[ing] the fissures within the conservative movement.'' Yet he praised Alito's nomination as ``substantially narrowing'' that rift. In fact, he called the nomination something to ``rejoice'' because if Alito were confirmed, it would only take ``one more Justice of the Roberts-Scalia-Thomas-Alito stripe to return the Court to so-called jurisprudential respectability.''

Let's not forget conservative stalwart Pat Buchanan who denounced the Miers nomination as revealing the President's lack of desire ``to engage the Senate in fierce combat to carry out his now suspect commitment to remake the Court in the image of Scalia and Thomas.'' Apparently, Mr. Buchanan believes that the Alito nomination demonstrates the President's change of heart. He heralded the nomination as one that would unite and rally the base, a nomination for the base, not the country.

They say you can tell a lot by somebody's friends. These three individuals are consistently on the furthest edge of the ideological spectrum. Their positions rarely advance the interests of average working folk in America. So perhaps it should come as no surprise that these folks have jumped to support Judge Alito.

After reviewing more than 400 of Judge Alito's opinions, law school professors at Yale concluded:

In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants. . . . Judge Alito seems relatively willing to defer to the claims of employers and the government over those of advancing civil rights claims.

Similarly, a Knight Ridder review of Judge Alito's opinions concluded that Judge Alito ``has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the Nation's laws'' and that he ``seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination, or consumers suing big business.''

After reviewing 221 of Judge Alito's opinions in divided cases, the Washington Post concluded that Judge Alito is ``clearly tough minded . . . having very little sympathy for those asserting rights against the government.'' The pattern is clear, and I think it is unacceptable.

I don't think you should put somebody on the Court

who makes access to justice in the United States harder and more elusive for people who already face incredible obstacles when trying to have their voices heard in court. I don't think we should put somebody on the Court who will fail to serve as an effective check on excessive Executive power.

If this pattern is not enough, as has been described by others, then all we to have to do is look at some individual cases. In Sheridan v. E.I. duPont De Nemours and Company, Judge Alito wrote a lone dissent opposed by all of the other judges on the court, eight of whom were Republicans. His opinion would have made it more difficult for victims of discrimination to sue their employers.

Applying a similarly high standard of proof, one that the majority believed would eviscerate the protections of title VII, Judge Alito dissented from a decision to allow a racial discrimination claim to go to trial in Bray v. Marriott Hotels.

These are all cases where people were trying to have their rights adjudicated, and disagreeing with his colleagues, including Republican-appointed judges, Judge Alito said no.

What is the practical impact of these decisions? Simple: They keep victims of discrimination from having their day in court.

If it is not enough to see this kind of insensitivity toward the victims of discrimination evidenced in those judicial opinions, in his 1985 job application to President Reagan's Justice Department, Judge Alito wrote that his interest in constitutional law was driven in part by a disagreement with Warren Court decisions on reapportionment, decisions which established the principle of one person, one vote. And he said that he was ``particularly proud'' of his work to end affirmative action programs.

Judge Alito's hostility to individual rights isn't limited to civil rights. He consistently excuses government intrusions into personal privacy, regardless of how egregious or excessive they are. In Doe v. Groody, for example, he dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a 10-year-old was reasonable. He also thought the Government should not be held accountable for shooting an unarmed boy who was trying to escape with a stolen purse or even for forcibly evicting farmers from their land in a civil bankruptcy proceeding where there was no show of resistance from those farmers. He believed a show of force from the enforcers was reasonable.

This pattern of deference to power is reinforced by a speech he gave as a sitting judge to the Federalist Society just 5 years ago.

In that speech, Judge Alito ``preached the gospel'' of the Reagan administration's Justice Department, the theory of a unitary executive. And though in the hearings Judge Alito attempted to downplay the significance of this theory by saying it didn't address the scope of the power of the executive branch but, rather, addressed the question of who controls the executive branch, don't be fooled. The unitary executive theory has everything to do with the scope of Executive power.

In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ``[t]he practical consequences of the theory are dramatic. It renders unconstitutional independent agencies and councils.'' That means that Congress would lose the power to protect public safety by creating agencies like the Consumer Products Commission, which ensures the safety of products on the marketplace, or the Securities and Exchange Commission which protects Americans from corporations such as Enron. And who would gain the power? The Executive, the President.

Carried to its logical end, the theory goes much further than simply invalidating independent agencies. The Bush administration has already used this theory to justify its illegal domestic spying program and its ability to torture detainees. The administration seems to view this theory as a blank check for Executive overreaching.

Judge Alito's endorsement of the unitary executive theory is not the only cause for concern. In 1986, while working at the Justice Department, he endorsed the idea that Presidential signing statements could be used to influence judicial interpretation of legislation. His premise was that the President's understanding of legislation is just as important in determining legislative intent as Congress's, which is absolutely startling when you look at the history of legislative intent and of the legislative branch itself. President Bush has taken the practice of issuing signing statements to an extraordinarily new level. Most recently, he used a signing statement to reserve the right to ignore the ban on torture that Congress overwhelmingly passed. He also used signing statements to attempt to apply the law restricting habeas corpus review of enemy combatants retroactively, despite our understanding in Congress that it would not affect cases pending before the Supreme Court at the time of passage.

The signing statements have been used to specifically negate or make an end run around very specific congressional intent. The implication of President Bush's signing statements are absolutely astounding. His administration is reserving the right to ignore those laws it doesn't like. Only one thing can hold this President accountable, and it is called the Supreme Court. Given Judge Alito's endorsement of the unitary executive and his consistent deference to government power, I don't think Judge Alito is prepared to be the kind of check we need. Reining in excessive government power matters more today to the average American than perhaps at any recent time in our memory, as we work to try to provide a balance between protecting our rights and our safety. As Justice O'Connor said: The war on terror is not a blank slate for government action. We can and must fight that in a manner consistent with our Constitution.

Last but certainly not least, I have grave concerns about Judge Alito's ability and willingness to protect a woman's right to choose. In his 1985 job application, Judge Alito wrote that he was ``particularly proud'' of his work arguing before the Supreme Court that ``the Constitution does not protect a right to abortion.'' Now, all of us know this is an extraordinarily complicated issue. I don't know anybody here who is pro-abortion.

But we are in favor of the right of people individually to make that choice for themselves rather than having the Government make that choice for them. And, the fact is that the Constitution protects that right.

Yet, in 1985, Judge Alito wrote a memo outlining a strategy for chipping away at Roe v. Wade, an approach he believed would be more successful than asking for an outright reversal. In his hearings, Judge Alito stated these statements were accurate reflections of his views in 1985. But what is more disturbing is what he refused to say. He refused to say his views have changed, that he accepted Roe v. Wade as settled law, which even Chief Justice Roberts did during his confirmation hearings. In other words, Judge Alito refused to give any assurances that his concept of the Constitution's protected liberty is consistent with mainstream America's.

I realize Judge Alito has promised he is going to keep an open mind, but I don't think any of us can be reassured by those words. We heard those very same words before. Justice Thomas repeatedly told the Judiciary Committee he would keep an open mind on this issue. But we all know that once safely on the Supreme Court, Justice Thomas voted to overturn Roe v. Wade months later, writing a dissent in Casey that likened abortion to polygamy, sodomy, incest, and suicide. Given Justice Thomas's success, you can almost imagine Karl Rove whispering to Judge Alito: Just say you have an open mind; say whatever it takes.

We cannot rely on these empty platitudes, and we obviously cannot rely on any promises of open-mindedness given to the Judiciary Committee, particularly when they are absent an acknowledgment of what is or what is not a settled law, particularly when the nominee's entire professional history suggests something very different, and particularly when the past promises of that very nominee have already been rendered meaningless by his actions once safely on the bench. In Judge Alito's 1990 Judiciary Committee hearings, he promised that he would recuse himself in any cases involving the Vanguard Company given his ownership of Vanguard mutual funds. In his Supreme Court hearings, he admitted he could not remember having put Vanguard on his permanent recusal list. We know it did not appear on his 1993, 1994, 1995, or 1996 list. So how do we know he kept his word to the Judiciary Committee? We don't. How can we trust him now? We can't.

I am deeply concerned about where we are heading with this ideological choice for the Court. I am deeply concerned about maintaining the integrity of our constitutional rights and liberties. I fear that the most disadvantaged in our society be locked out of our system of justice, a system that is already becoming increasingly harder for them to access. I fear that the President's powers will grow beyond what the Framers intended them to be, and I fear that Congress's hands will be tied even further and we will be unable to do the work of the American people.

Therefore, I cannot and will not vote to confirm a nominee who will shift the Court in this ideological way. I believe that Judge Alito had the burden of proving not just to me, but to the American people, that he would not be a Justice who would move the Court far to the right, that he would understand what was settled law and what was not. I believe he failed to carry that burden. I believe if he moves the Court in the direction that I think he will--I hope I am proven wrong, but if he moves it far to the right, then I think that those rights and values which we cherish so deeply will be set back and the country will move backwards with them.

Mr. President, I ask unanimous consent that letters to Senator Leahy and Senator Specter in opposition to this nomination from the Women's Caucus, Black Caucus, and Hispanic Caucus all be printed in the RECORD at this time.

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