Executive Session

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

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Mr. SALAZAR. Mr. President, I rise today to explain why I will vote against Judge Samuel Alito's nomination for Associate Justice to the U.S. Supreme Court.

After reviewing his record, I believe Judge Alito will move the Supreme Court too far to the conservative side of American jurisprudence. I believe Judge Alito's judicial philosophy will also dangerously increase Executive power, injuring the checks and balances built into our Constitution that protect all of us. Judge Alito's confirmation may roll back important civil rights protections, protections which were achieved in our country through the sacrifices of many and are crucial to the future of the United States.

I hope, if Judge Alito is confirmed, history will prove my concerns wrong. But given his record, including his extensive written record, I cannot in good conscience support him.

I thank the Senate Judiciary Committee. It held fair, serious, and dignified hearings. Chairman Specter, Ranking Member Leahy, the members of the committee, and the majority and minority staff have again earned our gratitude.

Judge Alito's confirmation vote is particularly important for our country because this seat on our Supreme Court has been held by a champion of justice and mainstream America for a quarter century: Justice Sandra Day O'Connor. Our Nation owes Justice O'Connor a great debt of gratitude. Justice O'Connor served as an exemplary role model for all of us, including women succeeding at the very highest level of our National Government.

Unfortunately, this nomination signals an undesirable retreat from diversity on the U.S. Supreme Court. Women make up more than half of the people of our country. Yet women have been represented in the Supreme Court in our entire history for more than two centuries by only two female Justices--Justice O'Connor and Justice Ginsburg. Now Justice Ginsburg is left to be the only role model on the Court for the hopes and aspirations of women and for all of us in America who believe that all men and all women are truly created equal.

I regret that result, especially after it was the radical right of America that derailed the nomination of Harriet Miers. We all know there are thousands of highly qualified women lawyers and judges across America, and they could have provided exceptional service to the United States on the Supreme Court. Regardless of the merits or demerits of Judge Alito, I am saddened, at the daybreak of the 21st century, that the United States has retreated from a cause that rightfully embraces the inevitability of the equality of women in our society.

Beyond the principle of gender diversity, Justice O'Connor consistently defined the center of the Supreme Court on many issues. She used her wisdom and her judgment to advance reasonable, commonsense, and mainstream legal doctrines that affect the lives of all Americans. That is why the choice of the replacement for Justice O'Connor is so important for our collective future.

The confirmation of a Supreme Court Justice is a solemn task. It is among the most important constitutional duties of the Senate. I have evaluated Judge Alito's qualifications using the same criteria I used to evaluate Chief Justice John Roberts for whom I voted. I have reviewed Judge Alito's record for evidence of his fairness, impartiality, and his proven record of upholding the law. However, I have decided that my concerns require that I vote against him.

My concerns with Judge Alito start with the 1985 memorandum he included with his job application to the White House. Judge Alito was then 35 years old. To me, this document is a very powerful document. It is evidence of how Judge Alito the man views the law and the Supreme Court. The document is very carefully written. It is packed full of Judge Alito's political and jurisprudential ideas which he has adhered to over the years. In that memorandum, Judge Alito declared he strongly disagreed with the opinions of the Warren Court. Those opinions are now and then widely accepted. They encompass important constitutional protections such as opinions on reapportionment in Baker v. Carr, the case that established the principle of one person, one vote. They concern well-established rules about the relationship between church and state. I find Judge Alito's views to be outside the mainstream of legal thought in 1985.

Since that time, based upon his decisions as an appellate judge and in his other writings, Judge Alito has ruled consistently with the legal philosophy he described in 1985. I believe that legal philosophy is wrong for our Nation. Specifically, I believe Judge Alito's legal philosophy about the structure of our government under our Constitution will harm our country if ultimately adopted by the Supreme Court.

The Framers of our Constitution were geniuses. They created a legal structure for our country that has endured and prospered for more than two centuries. The Framers were not successful because they were abstract thinkers; they were successful because they were practical thinkers, practical Americans. The Framers knew human nature. Their view of human nature focused on the common frailties of people placed in positions of great power, human desires to gather more power, human tendencies to credit one particular view of the world above all others, and a very human unwillingness to understand the perspectives of others.

Out of their genius, the Framers created a system of checks and balances. The Framers made rules which require that the power must be shared. They created a system with three coequal branches. They then distributed the powers of Government among and within the three branches. They created a system with explicit and implicit limits for the power of each branch. They created a system where the people who govern the United States are in constant tension with and against each other, always limiting and checking excesses that are all too human.

Judge Alito's judicial philosophy will diminish our system of checks and balances. He will expand the powers of the executive branch to an extent that is dangerous to us all. I believe Judge Alito would grant the Executive power to overwhelm the congressional and judicial branches.

Let me cite a few examples from his record.

First, I am troubled by Judge Alito's 1984 brief in the Mitchell case in which he asserted absolute immunity for high Government officials accused of illegal wiretapping.

I am troubled by his support in 1986 for the idea that Presidential signing statements--a President's remarks accompanying the signing of a bill--can change the intent of Congress, which debated and passed the bill into law. A President executes the law; a President does not rewrite or alter the law.

I am troubled by Judge Alito's firm belief in a unitary executive--in an unwillingness to acknowledge checks and balances that exist within the executive branch itself.

I am troubled by Judge Alito's pattern of great deference to the executive branch. Judge Alito's judicial philosophy in this area is particularly striking against the backdrop of current events. The current administration has adopted a widespread, concerted legal strategy to increase Executive power under our Constitution. It is wrongly pushing beyond the well-established edges of Executive power in many cases, based on a carefully calculated position that the current concentration of political power allows the executive branch to transcend the rule of law. This is not a ``strict construction'' of our Constitution; it is the opposite. It is an activist legal strategy to expand beyond reason our constitutional law that has served our country very well for more than 200 years.

Let me be clear. My concerns are not based exclusively on my view of the current President or my ideas about how he would or would not wield dominant Executive power. We are talking about changes in the Court that could affect our Government for decades, as Presidents of both parties take office and govern.

Dominant Executive power is not a ``safe bet'' for anyone, regardless of one's views of the current President. When considering a potential Supreme Court Justice, we must look beyond the politics of our time and we must protect the basic structure, the system of checks and balances among coequal branches. Administrations of varied ideology and vision must recognize that system of checks and balances.

I briefly want to turn to civil rights.

When I rose on this floor on September 27 of last year to speak on behalf of Chief Justice Roberts, I spoke of the ``age of diversity'' in this country. I spoke of this country's long history of slavery and our lengthy struggles--including our own Civil War--to put behind us the unequal treatment of our citizens.

I talked about Brown v. Board of Education and the central role our Supreme Court played to guide our country on to the path of equality and equal treatment for all. I spoke of the growing diversity of people in our country, and of the need to foster all the powerful strengths our diversity brings to our Nation--a richness of cultures and spirit, a wealth of ideas, and a widely varied community bound together by the common values of truth, honesty, and fair dealing among ourselves.

My life experiences and my years of public service convince me that recognizing and encouraging the strengths of diversity is the true constitutional path for our country. I also believe in the very practical wisdom of this approach. In fact, I believe it is the only way our country will thrive and prosper over the long run. I will vote against Judge Alito because I am convinced he is unlikely to support these principles of diversity.

Here is only a small part of the evidence that Judge Alito will lead our Nation in the wrong direction on issues of equal opportunity and diversity:

In Riley v. Taylor, Judge Alito was overturned by the entire Third Circuit when he, alone, concluded it was proper to exclude all Black jurors from sitting in judgment of a Black man.

In Sheridan v. E.I. DuPont de Nemours, Judge Alito registered the lone dissent among 13 judges, voting to prevent a woman who had presented evidence of employment gender discrimination from going to trial.

In PIRG of New Jersey, Judge Alito again denied access to the courts for a group of environmental plaintiffs who had won below.

In Doe v. Groody, Judge Alito would have upheld the strip search of a 10- year-old girl, denying her access to relief in the courts.

And in Chittester, Judge Alito would have precluded State employees from seeking damages in court under the Federal Medical Leave Act.

Analyses discussed during the Judiciary Committee hearing show Judge Alito almost never ruled for African Americans in employment discrimination cases. Analyses also show Judge Alito rarely sided with individuals in their cases against large and powerful institutions and corporate interests.

I believe Judge Alito will continue to rule that way on the U.S. Supreme Court. I think that is wrong because it will usher in an era of insensitivity to the weakest and the poorest among us. I hope and I pray I am wrong.

In conclusion, I believe Judge Alito will move the Supreme Court too far to the conservative side of American legal jurisprudence. Judge Alito's judicial philosophy will dangerously increase Executive power, injuring the checks and balances built into our Constitution to protect us all.

And Judge Alito's confirmation will roll back important civil rights protections--protections that were achieved in our country through the sacrifices of many and which are critical to our Nation's future.

I, therefore, will vote against this nomination.

Mr. President, I ask unanimous consent that two letters be printed in the RECORD concerning Judge Alito. One is a letter from the League of United Latin American Citizens, and the other is a letter from the Colorado Hispanic Bar Association, in which they raise their opposition to the confirmation of Judge Alito.

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