Executive Session

By:  Lindsey Graham
Date: Jan. 25, 2006
Location: Washington, DC



Mr. GRAHAM. Mr. President, I would like to pick up where Senator McCain left off about the Alito nomination and what has changed between the Clinton administration and the President Bush 2 administration regarding judges.

The question I ask the body and really the country is, have the qualifications changed or are the people President Bush has chosen to nominate for the Supreme Court more inferior in terms of qualifications, temperament, and character than the people President Clinton nominated? As individuals, is there a major difference in their legal experience? Are there any character flaws with these two nominees that did not exist with President Clinton's nominees? If you can find an answer to the question other than no, I would like to hear about it. I would like someone to come to the floor and talk about how Justice Roberts and Judge Alito are not in the ball park as to qualifications, character, and disposition with Justice Breyer and Justice Ginsburg.

It is clear to me that President Bush picked two very well qualified people to serve on the Supreme Court when it came his time to choose a Supreme Court nominee. You don't have to take my word for it. Seven judges testified before the committee who served on the Third Circuit with Judge Alito. They were nominated by Lyndon Johnson, Richard Nixon, Ronald Reagan, George H.W. Bush, and Bill Clinton, really a hodgepodge of nominees in terms of their source. These judges had a universal belief regarding Judge Alito, and that belief was that he is a great colleague, a good man, a judge's judge. They came before our committee to his defense.

I ask unanimous consent to print in the RECORD excerpts of these judges' comments.

There being no objection, the material was ordered to be printed in the RECORD, as follows:

Log Judges Testimony Talkers

Five sitting and two former judges from the U.S. Court of Appeals for the 3rd Circuit testified on behalf of Judge Samuel Alito's nomination to the Supreme Court.

The judges included nominees of Presidents Lyndon Johnson, Richard Nixon, Ronald Reagan, George H.W. Bush, and Bill Clinton. Collectively they have served with Judge Alito for more than 75 years, watching him work and evaluating his intellect, character, independence, and judgment.

Judge Becker on working with Judge Alito up close: ``There is an aspect of appellate judging that no one gets to see--no one but the judges themselves: how they behave in conference after oral argument, at which point the case is decided, and which, I submit, is the most critically important phase of the appellate judicial process. In hundreds of conferences, I had never once heard Sam raise his voice, express anger or sarcasm, or even try to proselytize. Rather, he expresses his views in measured and temperate tones.''

Judge Becker on Judge Alito's intellect and open-mindedness: ``Judge Alito's intellect is of a very high order. He's brilliant, he's highly analytical and meticulous and careful in his comments and his written work. He's a wonderful partner in dialogue. He will think of things that his colleagues have missed. He's not doctrinaire, but rather is open to differing views and will often change his mind in light of the views of a colleague.''

Judge Becker on whether Judge Alito is an ideologue: ``The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person, He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants. ..... His credo has always been fairness.''

Chief Judge Scirica on Judge Alito's personal character: ``Despite his extraordinary talents and accomplishments, Judge Alito is modest and unassuming. His thoughtful and inquiring mind, so evident in his opinions, is equally evident in his personal relationships. He is concerned and interested in the lives of those around him. He has an impeccable work ethic, but he takes the time to be a thoughtful friend to his colleagues. He treats everyone on our court, and everyone on our court staff, with respect, with dignity, and with compassion. He is committed to his country and to his profession. But he is equally committed to his family, his friends, and his community. He is an I admirable judge and an admirable person.''

Chief Judge Scirica on Judge Alito's open-mindedness: ``Like a good judge, he considers and deliberates before drawing a conclusion. I have never seen signs of a predetermined outcome or view, nor have I seen him express impatience with litigants or with colleagues with whom he may ultimately disagree. He is attentive and respectful of all views and is keenly aware that judicial decisions are not academic exercises but have far-reaching consequences on people's lives.''

Judge Barry on Judge Alito's service as U.S. Attorney: ``The tone of a United States Attorney's Office comes from the top. The standard of excellence is set at the top. Samuel Alito set a standard of excellence that was contagious--his commitment to doing the right thing, never playing fast and loose with the record, never taking a shortcut, his emphasis on first-rate work, his fundamental decency.''

Judge Aldisert on Judge Alito's judicial independence: ``Judicial independence is simply incompatible with political loyalties, and Judge Alito's judicial record on our court bears witness to this fundamental truth.''

Judge Aldisert on working with Judge Alito for 15 years: We who have heard his probing questions during oral argument, we who have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at first hand his impartial approach to decision-making and his thoughtful judicial temperament and know his carefully crafted opinions, we who are his colleagues are convinced that he will also be a great Justice.

Judge Garth on Judge Alito's lack of an agenda: ``I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda. Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions.''

Judge Garth on Judge Alito's personality: ``Sam is and always has been reserved, soft spoken and thoughtful. He is also modest, and I would even say self-effacing. And these are the characteristics I think of when I think of Sam's personality. It is rare to find humility such as his in someone of such extraordinary ability.''

Judge Gibbons on Judge Alito's independence from the executive: ``The committee members should not think for a moment that I support Judge Alito' s nomination because I'm a dedicated defender of [the Bush] administration. On the contrary, I and my firm have been litigating with that administration for a number of years over its treatment of detainees held at Guantanamo Bay, Cuba, and elsewhere. And we are certainly chagrined at the position that is being taken by the administration with respect to those detainees.

``It seems not unlikely that one or more of the detainee cases that we are handling will be before the Supreme Court again. I do not know the views of Judge Alito respecting the issues that may be presented in those cases. I would not ask him. And if I did, he would not tell me. I'm confident, however, that, as an able legal scholar and a fair-minded Justice, he will give the arguments--legal and factual--that may be presented on behalf of our clients careful and thoughtful consideration, without any predisposition in favor of the position of the executive branch.''

Judge Lewis on his own liberal politics: ``I am openly and unapologetically pro-choice and always have been. I am openly--and it's very well known--a committed human rights and civil rights activist and am actively engaged in that process as my time permits. ..... I am very, very much involved in a number of endeavors that one who is familiar with Judge Alito's background and experience may wonder--`Well, why are you here today saying positive things about his prospects as a Justice on the Supreme Court?' And the reason is that having worked with him, I came to respect what I think are the most important qualities for anyone who puts on a robe, no matter what court they will serve on, but in particular, the United States Supreme Court.''

Judge Lewis on Judge Alito's honesty and integrity: ``As Judge Becker and others have alluded to, it is in conference, after we have heard oral argument and are not propped up by law clerks--we are alone as judges, discussing the cases--that one really gets to know, gets a sense of the thinking of our colleagues. And I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference, when he exhibited anything remotely resembling an ideological bent.''

Judge Lewis on Judge Alito and civil rights: ``If I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today. ..... My sense of civil rights matters and how courts should approach them jurisprudentially might be a little different. I believe in being a little more aggressive in these areas. But I cannot argue with a more restrained approach. As long as my argument is going to be heard and respected, I know that I have a chance. And I believe that Sam Alito will be the type of Justice who will listen with an open mind and will not have any agenda-driven or result-oriented approach.''

Judge Lewis on why he endorses Judge Alito: ``I am here as a matter of principle and as a matter of my own commitment to justice, to fairness, and my sense that Sam Alito is uniformly qualified in all important respects to serve as a Justice on the United States Supreme Court.''

Mr. GRAHAM. Mr. President, I have limited time, so I am not going to read them all. But I ask each Member of the body to look, if they can, at these short quotes, or if they want to listen to the whole testimony, they can certainly retrieve it and ask the question of themselves: Why would these judges from a variety of different philosophies be coming before our committee and testifying on behalf of Judge Alito if he truly was an ideologue or out of the mainstream, if he held positions on abortion or any other line of cases that were extreme in nature or outside the judicial mainstream of what a judge should do?

Why would the American Bar Association, after looking at hundreds of opinions and thousands of cases in which Judge Alito participated, come to the conclusion that he is a judge's judge, that he has the temperament, the disposition, and that there is no bias when you look at all the cases where he favors one class of Americans over another? Why would so many law clerks, as Senator McCain mentioned, come to the judge's aid if he was a person who exhibited a hard heart, for lack of a better way of saying it, a person who took the law and applied it to individuals in this country coming before him in a statistical manner, not a human manner?

I would argue that of all the records that have ever been amassed for a nominee Judge Alito's record is on par with Ginsburg, Breyer, and anyone else who has ever been nominated, in terms of being highly qualified--15 years on the bench and a good person.

Those who know him best, those who work with him when the cameras are not on and when nobody else is around all have the same view of Judge Alito: He is a good person who takes his job seriously. He follows the law, and he is conservative, but he is mainstream in terms of what we expect a judge to be.

Who is in the mainstream in America when it comes to judging? And who is to determine what the mainstream is? If you would ask me to judge a Democratic nominee as to whether they were in the mainstream of legal thought I would try to give you an honest answer. But if you wanted to ask someone other than me--I am a Republican--I would probably understand why you want to ask somebody other than me.

How do we determine if a person is in the mainstream of being a judge? Rather than asking a politician, maybe we should go to a source outside the political moment, outside a political body, who believes that this is a hugely important decision not only for the country but has political consequences.

The reason this is an important political decision is because special interest groups are watching our every move. Millions of dollars have been spent on advertising for and against Judge Alito. There are groups out there that have made it their reason for existing to deny this man a vote or to defeat him. There are groups out there that are bent on supporting him.

What do nonpolitical people say? What do people who have no political ax to grind say? What do the people who have sat with him a decade plus say, his fellow judges, African-American judges? They say he is not an ideologue, that he is a good judge.

What does the American Bar Association say? That he has a temperament--over 2,000 people were interviewed, I think it was; some amazing amount of interviews conducted--a temperament beyond question; that he approaches each case without a bias, but he tries to find the best he can, looking through his philosophy of judging, to get the right answer. Those who worked with him as a prosecutor, who have been his clerks, all have nothing but admiration for this man.

So why will he get, at best, five or six Democratic votes? Why did Justice Ginsburg get 96 votes? I would argue she deserved 96 votes, but she was no better qualified than Judge Alito. The same things that were said about Justice Ginsburg, in terms of her temperament and her legal abilities, are being said about Judge Alito.

Politics has changed. Some members of our committee openly said things are different now than they were then. This is replacing Justice O'Connor. The country is more divided. All I can say is, don't start down a road that you will regret because Justice Ginsburg replaced Justice White, and if we are going to base our vote on Roe v. Wade, what somebody might do, then a pro-life Senator would have a very difficult time casting a vote for Justice Ginsburg because she openly embraced a constitutional right to abortion and supported public funding of abortion. That is a view held by many Americans. It is a legitimate view to have. But from a pro-life point of view, it was clear that she was going to probably be different than Justice White because Justice White dissented in Roe v. Wade.

If that is the only reason you were voting for Justice Ginsburg, you knew with a high degree of certainty the balance of power on the Court would change when it came to that one issue.

Somehow back then people of a pro-life persuasion set that aside and looked at her qualifications. She was never attacked, that I can find in the RECORD, for being the general counsel for the American Civil Liberties Union, a left of center organization, from a conservative's point of view, that embraces many causes with which I personally disagree. But people understood there was a difference between lawyering and judging.

I would argue forcefully that the unpopular cause needs the best lawyer. Instead of holding it against her for representing politically unpopular causes, causes with which I completely disagree, I would give her credit as a lawyer because the unpopular cause needs the best lawyers in the country. The more popular it is, the worse lawyer you can have because you are likely to win.

Something has changed, and I would argue that change is being driven by the political moment, not by the record, and it has huge consequences for this country.

The Presidency is a political office. To become President, you have to go through a lot--a lot of commercials are run and a lot of scrutiny. To become a Senator, you have to go through a lot--a lot of commercials are run against you, and you go through a lot of scrutiny. We sign up for the process knowing what we are getting into.

Traditionally, judges who come before the Senate, recommended by the President to the body, do not have to mount political campaigns and have traditionally not been subject to political campaigns. The reason being there has to be one place in America where politics is parked at the door. How many people want their case decided by a political judge? I don't; even if they agree with me I don't because that is dangerous. We are running with warp speed toward a day when the judiciary is politics in another form. There is plenty of blame to go around. I am not saying the Republican Party is blameless, but when it comes to evaluating Supreme Court nominees, I would argue there has been a change from President Clinton's term to the current time and that the model that Senator Hatch used with Justices Breyer and Ginsburg would be a good model for your vote on qualifications and where you do not take dissents and political attacks as the way to try to undermine the nominee.

I honestly challenge anyone in this body to say that in terms of legal ability, legal experience, and personal character, there is a dime's worth of difference between Roberts, Alito, Ginsburg, and Breyer. There is not. The record in Judge Alito's case and in Judge Roberts' case shows beyond any doubt they are well-qualified lawyers who have practiced before the Supreme Court, who have the admiration of their colleagues, their associates, and those they have opposed in court, and that they are without any doubt historically well-qualified nominees.

You can take a record and make it what you want to make it for political reasons. You can take anyone's life and snip and cut and cut and paste and make that life anything you want it to be in a 30-second commercial. It can happen to me, it can happen to you, Mr. President, it can happen to any American because if you have been involved in the law as long as Judge Alito, you can cut and paste his life as a lawyer, as a judge, and as a person. I just ask that we reject the politics of cut and paste and we look at the entire record and the complete person.

If we look at the complete person, we find a good father, a good husband, a good man who comes from a humble background and who has ascended to the highest levels of the law known in our country. If we look at his time as a judge, we will find someone respected by his colleagues who is serious as a judge, who is analytical in his thought process, who is, by no means, an ideologue. If we step back, we see in Judge Alito one of the most qualified conservative judges in the land.

I end with this thought. Elections do matter. President Clinton earned the right from the American people to make two selections. He picked people of known liberal philosophy and inclination to be on the Court. These are legitimate philosophies to embrace and to have. He picked extremely well-qualified people to be on the Court. They are on the Court now with an overwhelming vote.

President Bush and his nominees have been treated differently. I worry more about the future of the judiciary than I worry about President Bush because his time will come and it will go. He may have another pick. But what we are doing on his watch is going to forever change the way the Senate relates to the judicial confirmation process if we don't watch it.

For someone such as Judge Alito to be rejected by 80 percent of the Democratic caucus is not healthy for the country because, quite frankly, he has earned a better showing than that. He has lived his life well.

He has been a good judge. He is a good man. His record, his colleagues, his associates, and everything he has done as a lawyer, judge, and person needs to be considered in its entirety--not for political ends for the moment.

This vote we are about to take in the next few days is going to change the way the Senate works for a long time to come. My belief is it is going to change it for the worse.

I yield the floor.


Help us stay free for all your Fellow Americans

Just $5 from everyone reading this would do it.