Executive Session

EXECUTIVE SESSION

BREAK IN TRANSCRIPT

Mr. GRASSLEY. Mr. President, I choose to do that.

I support the nomination of Samuel Alito. Judge Alito, as we heard in our hearings, and so far in most of the debate on the floor, is a person who is a dedicated public servant, who practices what he preaches: integrity, modesty, judicial restraint, and a devotion to the law and to the Constitution. He understands a judge should not have a personal agenda or be an activist on the bench but should make decisions as they should be decided--do it in an impartial manner, do it with an open mind, and do it with appropriate restraint and, of course, in accordance with the laws and the Constitution.

Listening to a lot of my colleagues on the committee, and last week, I am extremely disappointed that we are looking now at an attempt by Senators--and they are all on the other side of the aisle--to delay and filibuster this nominee. It is too bad Majority Leader Frist had to take the extreme position of filing cloture on this very important nomination. No Supreme Court nomination has ever been defeated by filibuster if a majority of the Senators stood ready to confirm that nominee. Now, that certainly is not the case here because we already know a bipartisan majority of Senators will vote to confirm Judge Alito if we get to that point tomorrow at 11 o'clock. We also know we have had plenty of time to debate this nomination. It is unfortunate that certain Senators will vote against this nominee because they think doing so is a good political issue for them. These Senators are applying a very different standard to what has been the history and the tradition in the Senate of considering Supreme Court nominees. The position being taken by these Senators is that Judge Alito ought to somehow share Justice O'Connor's judicial philosophy in order for him to fill that seat where she has been for the last 25 years.

That sort of thinking is totally at odds with what the Constitution requires, but more importantly than what the Constitution requires, what has been the Senate's tradition in the last 225 years, and that is that Judge Alito does not have to be Justice O'Connor's judicial philosophy soulmate to deserve confirmation by this Senate. Because the Supreme Court does not have seats reserved for one philosophy or another. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of Government.

My colleagues on the other side, then, have it all wrong. There has never been an issue of ideological balance on the Court. If that were the case, do you think President Ford would have nominated Justice Stevens or President Bush 1 would have nominated Justice Souter--two Republican appointees who have turned out to be the most liberal members on the Court appointed by Republicans? Those Presidents did not think in terms of ideological balance.

The Senate's tradition, then, has not been to confirm individuals to the Supreme Court who promote special interests or represent certain causes. The Senate has never understood its role to maintain any perceived ideological balance on the Court. To the contrary, the Senate's tradition has been to confirm individuals who are well qualified to interpret and to apply the law and who understand the proper role of the judiciary to dispense justice.

Recent history, of course, is proof of that because in my years in the Senate, but as recently as 10, 12 years ago, when Ruth Bader Ginsburg was before the Senate, we gave overwhelming confirmation to her--a former general counsel of the very liberal group, the ACLU. She replaced a conservative Justice, Byron White, on the Court at that time. The Senate confirmed Justice Ginsburg. Why? Because President Clinton won an election, campaigning on the basis of the kind of people he was going to nominate, and President Clinton did that. That is what the Constitution says the role of the President, the role of the Senate is.

Now, some of my colleagues have said elections have results and the Constitution says the President gets to nominate Supreme Court candidates. Of course, Justice Ginsburg, whether you agree with her or not, had the requisite qualifications to serve on the Court.

Right after her, Justice Breyer came to the Supreme Court, a liberal as well, appointed by President Clinton. But the Senate confirmed that Justice by a big vote. The President made his choice, sent it to the Senate, the Senate found him qualified, and he was confirmed on an up-or-down vote. No filibuster was ever talked about, and no one talked about maintaining any ideological balance on the Court.

The Supreme Court, then and historically, is not the place to play politics. The Court is supposed to be, and as far as I know is, free of politics. But the Democrats and liberal outside interest groups want to change the rules because they did not win at the ballot box. They want to implement their agenda from the Court. Of course, that is a dangerous path, making the Supreme Court a superlegislature. The Constitution does not presume that. Under our checks-and-balances system of Government, we do not want to go down that path. Going down that path will create a standard that will seriously jeopardize the independence of the judiciary and distort our system of Government, a system based upon the judiciary being the arbiter of the war that often--I should say continually goes on between the executive branch of Government and the legislative branch of Government.

Democrats want the Supreme Court to assume an expansive role well beyond what was originally intended by the Constitution and its writers. They want the Court to take on a role that is closer to the role of the legislative branch, which is to make policy and bring about changes in our society.

Now, this has consequences when you go down this road. It has brought about the politicization of the judicial confirmation process that we have seen evidenced, particularly on the Alito nomination, but also on the Roberts nomination, or go back 3 years previous to the holding up of several circuit court nominees before this body through the threat of filibuster or not just the threat but the use of the filibuster.

Politicizing the judicial confirmation process is wrong. That is because when judges improperly assume the role of deciding essentially political questions rather than legal questions, the judicial confirmation process devolves into one focused less on whether a nominee can impartially and appropriately implement law. Instead, it becomes one more focused on whether a nominee will implement a desired political outcome, and do it from the bench, regardless of the law and regardless of what the Constitution says.

Americans want what the Constitution writers have always called for: judges who will confine their job to interpreting the law as passed by legislative bodies and the Constitution as written rather than having the same group of men and women make policy and societal changes from the bench. We need to reject firmly the notion that the Supreme Court should be in the business of political decisionmaking or in the business of politicians--you and I who were elected to the Senate.

The Constitution provides that the President nominates a Supreme Court Justice and the Senate provides its advice and consent. Alexander Hamilton wrote an awful lot about the role the judiciary was to play and what judges were supposed to do because he had to explain that in relation to the ratification by the original 13 States. So he wrote several papers. But in Federalist 66, he wrote:

[I]t will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they [meaning the Senate] cannot themselves choose--they can only ratify or reject the choice he may have made.

The way the Senate provides its advice and consent has been by a thorough Judiciary Committee evaluation, and then by an up-or-down vote in the full Senate. The Judiciary Committee has an important job because its members can ask in-depth questions of the nominee. The committee evaluates whether the nominee has the requisite judicial temperament, intellect, and integrity. The committee also looks to see whether a nominee understands the proper role of a Justice and respects the rule of law and the words of the Constitution over any personal agenda because no Justice should be sitting on the Court who has a personal agenda that he wants or she wants to carry out.

I have been a member of the Judiciary Committee for more than 25 years and take this responsibility seriously, as do my colleagues. I thought Judge Alito did a very good job answering our questions and that he was candid. No doubt he was thorough. As far as I am concerned, he was very responsive.

Judge Alito understands the proper role of the judiciary is not to make the law. He will strictly interpret the law as written and do his best to remain faithful to the actual meaning of the Constitution. As Judge Alito said:

Judges don't have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn't change. It does contain some important general principles that have to be applied to new factual situations that come up. But in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary.

To quote Judge Alito again:

A judge can't have any agenda. A judge can't have any preferred outcome in any particular case. And a judge certainly doesn't have a client. The judge's only obligation--and it's a solemn obligation--is to the rule of law, and what that means is that in every single case, the judge has to do what the law requires.

Judge Alito also understands that the Constitution provides justice for all, for everybody. He told the committee this:

No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

He said:

Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.

Judge Alito understands the importance of the independence of the judiciary in our system of checks and balances. We ought to be careful to make sure that we only approve judges who understand that. His colleagues believe Judge Alito will be an independent judge who will apply the law and the Constitution to every branch of Government and every person because Judge Alito knows that no one, including the President, is above the law. When I said ``his colleagues,'' I meant those colleagues who testified before our committee and have worked with him for a long time on that circuit.

One of his colleagues, Judge Aldisert, testified:

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

Former Judge Gibbons, who now represents clients against the Bush administration over its treatment of detainees in Guantanamo, doesn't believe that Judge Alito will ``rubber-stamp'' any administration's policy if it violates the law and Constitution. He said:

I'm confident, however, that as an able legal scholar and a fairminded 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.

Yet Judge Alito's critics claim he is out of the mainstream. That is what the debate last week was all about from the other side, that he is a judge with an agenda hostile to individual rights, civil rights, women, and the disabled. The truth is, Judge Alito's record has been distorted and mischaracterized. First, a statistical analysis that some try to use of how many times a certain kind of plaintiff wins or loses is not the way we dispense justice in America. It is a bad way to look at a judge's record. It is easy to manipulate and cherry pick cases to reach certain desired conclusions of why somebody should not be on the bench. But the bottom line is, who should win in a case depends on the facts presented in that specific case and what the applicable law says. What is important to Judge Alito is that he rules on specific facts in the case and the issue before the Court, in accordance with the law and the Constitution.

As his colleagues attested, Judge Alito doesn't have a predisposed outcome in cases. He doesn't bow to special interests but sticks to the law regardless of whether the results are popular. That is precisely what good judges should do and what good judging is all about.

Moreover, when you consider all these accusations, look at what the ABA said. They unanimously voted to award Judge Alito their highest possible rating, and that is, in their words, ``well qualified.'' A panel of Third Circuit Court judges--I already referred to two of them--who worked with Judge Alito more than 15 years, in their testimony had unqualified support for Judge Alito as they appeared before the committee. These colleagues didn't see Judge Alito to be an extremist, hostile to specific groups, or with having a personal agenda. They testified about Judge Alito's fairness, his impartiality with respect to all plaintiffs.

Judge Lewis, one I have not quoted yet, described himself to the committee to be ``openly and unapologetically pro-choice'' and ``a committed human rights and civil rights activist.'' But yet a person coming from this end of the legal continuum fully endorsed Judge Alito to the Supreme Court, testifying:

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.

The testimony of Judge Lewis continues:

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 ..... 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.

Justice Aldisert summarized these judges' testimony best on the day they appeared before the committee when he said:

We who have heard his probing questions during oral argument, we who would have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at firsthand 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.

What other conclusion can you come to when you listen to people who have been close to him for a long time? We had a lot of people who worked with him on the court, who were not judges, who also appeared from both political parties. How can you come to any conclusion other than Judge Alito is going to do what Justices on the Supreme Court ought to do based upon his 15 years on the circuit court, that he is fair and openminded and will approach cases without bias and without a personal agenda?

The people who know Judge Alito best believe, without reservation, he is a judge who follows the law and the Constitution without a preset outcome in mind. They believe he is a man of great integrity, modesty, intellect, and insight. They believe he is a fair and openminded judge, committed to doing what is right rather than committed to implementing a personal agenda.

After hearing all that, some of my colleagues ought to be ashamed of the blue smoke they are making out of this nomination or the ghosts they are putting up to scare us. Judge Alito will carry out the responsibilities that a Justice on the Supreme Court should, and he will do it in a principled, fair, and effective manner.

If Members have any doubt where I stand, I will cast my vote in support of Samuel Alito. This highly qualified nominee deserves to be confirmed to the Supreme Court. I hope my colleagues will see that as well and vote accordingly, particularly on a very tough vote because of the extraordinary majority it takes to also vote to end a filibuster, the first filibuster of the 110 nominees to the Supreme Court. Hopefully, we will never see another extraconstitutional action taken by our colleagues on the floor of the Senate with such a filibuster once again. Vote to end the filibuster late this afternoon and then vote to confirm Judge Alito tomorrow.

I yield the floor and suggest the absence of a quorum.

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