Executive Session

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

BREAK IN TRANSCRIPT

Mr. BUNNING. Mr. President, I rise to speak in support of Samuel Alito's nomination to the United States Supreme Court.

Judge Alito is supremely qualified.

He has a record of fairness and judicial restraint. He will do a fine job on the Supreme Court.

I will vote for his nomination and any procedural measures necessary to confirm him on the Senate floor.

Confirmation of a Supreme Court Justice is one of the most import jobs we have as Senators.

This will be the second Supreme Court nominee I will have considered since coming to the Senate.

I take this responsibility very seriously.

I have spent time with Judge Alito and I have studied his background and record.

I closely followed his confirmation hearings in the Judiciary Committee. I can say without question that he should be confirmed.

I don't find myself agreeing with the Washington Post or the Louisville Courier-Journal newspapers very often.

But even those papers agree that Judge Alito should be confirmed.

I first met Judge Alito this past fall.

I did not know much about him when his nomination was announced by President Bush.

I reserved judgment about his nomination until I had a chance to meet with him.

From that meeting it became clear that I could support his nomination.

And his performance at his confirmation hearing further solidified my support for his nomination.

We are all familiar with the basics of Judge Alito's background.

He has been on the Third Circuit Court of Appeals for 15 years.

He has participated in several thousand cases and written several hundred opinions.

He attended top schools for both college and law school--Princeton and Yale.

I gather all of my colleagues would agree that those things are important and impressive--but they do not alone qualify him for the job.

There is a lot more to being qualified for the Supreme Court than pedigree and judicial experience.

Judicial philosophy and one's approach to judging and the law are most important.

All these factors and more must be looked at and weighed before deciding if a nominee is qualified.

I have done so and it is clear to me that Judge Alito should be confirmed.

A good place to begin is with Judge Alito's record on the Third Circuit Court of Appeals.

He has participated in over 3,000 cases and written over 300 opinions.

His record in those cases shows that he is fair and impartial. And that he understands the law and the judicial process.

His opinions are written clearly and provide clear guidance to the lower courts.

Clarity is something we certainly need on the Supreme Court.

The clarity and fairness of Judge Alito's opinions speak well to his qualifications.

But what speaks volumes is that his critics have been unable to find a single case he participated in to show that he is unqualified as a judge.

That is not to say that his critics have not tried. But to use any case against him--critics have had to distort the record or confuse the issue.

Judge Alito's opponents are trying to stop his nomination.

They are concerned he will be a vote for the rule of law and the Constitution. And not a judicial activist to their liking on the Supreme Court.

The framers of the Constitution created a system of government where the peoples' voices are to be expressed through their elected representatives.

All Senators and Representatives stand for election and are responsible to the people of their States or districts.

The President is accountable to the entire Nation and must face the people in every State.

The Justices of the Supreme Court never have to face voters.

That is why the framers gave the legislative powers to the Congress.

And that is why they gave the administrative powers to the President.

We--who make policy decisions--are accountable to the voters.

The Justices of the Supreme Court are not.

At its simplest--that is what is meant by the rule of law. We are a Nation of laws--starting with the most basic law, the Constitution.

The Constitution spells out the roles of the branches of Government.

It sets out the role to the courts--which is to settle legal disputes between parties, and not to set national policy.

The Supreme Court is also to be a last check on the legislative and executive branches when they clearly violate the Constitution--but not to override policy decisions when the Constitution is silent.

Judge Alito has a demonstrated record of respecting the rule of law and the will of the people through their elected representatives.

That disturbs some who belong to this body.

It bothers them to know that if Judge Alito and others like him are on the Supreme Court--then the steady advance of courts acting as a policy-making branch of government will be halted.

Judge Alito has shown respect for the rule of law throughout his career on the bench--and even before that when serving in the Reagan Administration.

He understands that each branch of government has a unique role to play.

And he understands that only two are accountable to the people.

I take great comfort in Judge Alito's understanding that there is a place in our system of government for policy making--and that the place is not the courts.

Many of Judge Alito's opponents view the courts as just another policy making branch of government.

In other countries that may be true. But in the United States it is not.

Our judges are insulated from public pressure.

It is this way so that they can make impartial and fair judgments on cases--no matter how popular or unpopular the result.

They are also insulated from the political process to prevent undue influence from Congress or the President.

Does anyone here actually believe the framers of our Constitution insulated judges so they could enact policies without any political consequence?

In fact, the framers rejected proposals to give the courts any policy-making powers.

But that is not good enough for some who oppose Judge Alito.

They want judges who will make broad policy decrees from the bench.

They want liberal judges who will rule by dictating policies that fail at the ballot box.

They want activist judges. And Judge Alito is not an activist judge.

Judge Alito will stand up to the activists on the Supreme Court and help make sure the Court follows its proper and vital role.

The confidence of the citizens in the courts is harmed when the courts overstep their bounds.

Like Chief Justice Roberts, I am confident Judge Alito will only act within the Supreme Court's proper role.

And I am confident he will help restore the American people's faith in our court system.

I press upon my colleagues to support this nomination.

I will vote for Judge Alito and whatever measures and procedures necessary to ensure he gets a final vote up or down.

I am proud to support him.

Mr. President, I yield the floor and suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The bill clerk proceeded to call the roll.

Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mrs. HUTCHISON. Mr. President, I rise today to support Judge Samuel Alito's confirmation to the Supreme Court of the United States. Judge Alito's 15 years of experience on the Third Circuit Court of Appeals and his 15 years serving the Justice Department, including his position as U.S. attorney for the District of New Jersey, make him well prepared to be an Associate Justice on our Highest Court.

One of the best insights into Judge Alito's judicial ability is gained from listening to his colleagues on the Third Circuit. Colleagues from both sides of the political aisle praise him for his judicial excellence. Judge Aldisert, a nominee of President Lyndon Johnson, stated before the committee:

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 first hand his 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.

Moreover, after an exhaustive investigation, Mr. Steve Tober, chairman of the ABA Standing Committee on the Federal Judiciary, declared that Judge Alito's ``integrity, his professional competence and his judicial temperament are indeed found to be of the highest standard.''

Mr. President, I have to say that anyone who watched Judge Alito at his Senate hearing would agree that his professional competence and judicial temperament were certainly on display. I believe that showed very well why he will be confirmed as a Supreme Court Justice.

The American Bar Association gave Judge Alito its highest rating. Most important, Judge Alito has a firm belief in the rule of law upon which our country is based. As he stated on the first day of his hearings, ``No person in this country, no matter how high or how powerful, is above the law, and no person is beneath the law.'' Judge Alito recognizes that, in our system, judges interpret the law, but should not create policy. They should not decide what they would like to have the law be; rather, they simply should determine what the law states.

He said on his second day of hearings:

..... it is not our job to try to produce particular results. We are not policymakers and we shouldn't be implementing any sort of policy agenda or policy preferences that we have.

During the 2004 Presidential campaign, President Bush made clear that he planned to nominate to the bench judges who would respect the rule of law, judges who would interpret but not legislate. In particular, he drew attention to his desire to nominate people who would strictly interpret the Constitution. Knowing Supreme Court nominations were on the horizon and knowing the President's views, the American people re-elected President Bush.

With the previous nomination of Chief Justice John Roberts and now with the nomination of Judge Alito, the President is fulfilling his promise to the American people. Now it is time for the Senate to play its constitutional role in the nomination process to ensure the President's nominee meets the high standards we set for members of the Supreme Court of our land. Judge Alito is extremely capable, he is highly qualified, and he deserves the support of this body.

I wish to also rebut one statement that was made earlier today. I believe Judge Alito was unfairly criticized for his opinion in Pirolli v. World Flavors, Inc. This was a case involving a mentally disabled man who claimed he was sexually harassed at work. They have alleged that by ruling against the plaintiff in the appellate court, Judge Alito showed he is ``results-oriented.'' Their criticisms are unfair and misleading. Judge Alito was not even able to form an opinion on the merits of the case because the plaintiff's lawyer presented an incomplete brief.

Judge Alito made clear in his dissent that had the plaintiff's lawyer raised the argument in a minimally adequate fashion, he might well agree and join the majority in voting to reverse. He continued to say:

I would overlook many technical violations of the Federal Rules of Appellate Procedure and our local rules, but I do not think it is too much to insist that Pirolli's brief at least state the ground on which reversal is sought.

It is very important to understand that an appellate judge cannot create the facts. The appellate judge cannot argue the lawyer's case when he is not equipped with the facts or the reason for the request for a reversal. So I believe it is important that we set the record straight on that.

Judge Alito has shown by his manner during the hearing and his 15 years on the bench that he is fully qualified under the constitutional requirements and from every neutral observer with whom I have talked for this position. I hope there will not be further delay.

I am so hopeful that the people who would vote against him would at least let us have the vote. He has been thoroughly vetted. He has been thoroughly questioned. The Senate has fulfilled its constitutional responsibility, and I think by the end of this week we should allow Judge Alito to be able to start preparing for the very important cases that are going to come before the Court right away. Let him have the chance to be fully prepared and do the job we are asking him to do. It is the least we should expect of the Senate. It is the responsible approach for the U.S. Senate. The Supreme Court and the people of America deserve no less.

Thank you, Mr. President. I yield the floor.

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