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Public Statements

Executive Session

Location: Washington, DC



Mr. COBURN. Mr. President, as a member of the majority and sitting as the President of the Senate yesterday, I was able to hear several hours of debate on the nomination of Judge Sam Alito, Jr.

I heard time and again dire predictions that Judge Alito is going to give the executive branch complete authority over our Government, including himself on the Supreme Court. Those who oppose him never mentioned one single case where Judge Alito ruled in favor of the President or expanded Executive power--not once. They think if they just keep repeating the same far-left smear--one dreamt up by far-left groups such as Ralph Neas' People for the American Way and Nan Aron's Alliance for Justice--the American people will fall for it.

It is disturbing to me that those who oppose Sam Alito are taking their cues from people such as Nan Aron and the Alliance for Justice who, even before the hearings began, before we had any hearings whatsoever, bragged, ``You name it, we'll do it,'' to sink Judge Alito.

I think the American people and their elected representatives would rather base their views on the lawyers and judges from across the political spectrum who had actually known Judge Alito.

Former Third Circuit Judge Gibbons explained his faith in Judge Alito's ability to fairly judge cases in which the government is asserting its executive power. He said: ``The committee members should not think for a moment that I support Judge Alito's nomination because I am a dedicated defender of that 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. I am 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.''

Defense lawyers who litigated against Judge Alito confirm that when Judge Alito was part of the executive branch, he had a modest view of its power.

The New York Times reported that one defense attorney, Dan Ruhnke, said that Judge Alito lacked the ``cop mentality'' of many career prosecutors and was ``never a cheerleader for law enforcement.''

Another defense attorney, Drew Barry, said that Judge Alito was ``not a bloodthirsty United States attorney,'' and that he was ``a vigorous prosecutor who went after a wide variety of bad guys, but his reputation was not someone who would ask for the heaviest sentences.''

As a member of the Judiciary Committee and in my time in the Senate, this is a sorrowful time for me.

The politics of personal destruction were all too evident in the Senate hearing and continue on the floor of this body.

The ``guilt by association'' standard of those who oppose Sam Alito would disqualify anybody who would be nominated no matter who the President is.

The idea that politics guides the Supreme Court nominations process in the Senate is new. The idea of the ``results only in my eyes qualification'' proves that those who challenge the integrity of Sam Alito require standards that they themselves could never live up to.

To be critical is fair to the process of confirmation, but destruction and absolute mischaracterization of one's record the way we have seen reaffirms the lack of fairness and conscience of those who carry out such tactics.

As a member of the Judiciary Committee, I spent 4 days listening, questioning, and watching--not only Sam Alito but all those who came to testify for him and those who came to testify against him.

Here is what I observed--not as a lawyer, not as a Senator, but as a physician trained in the art of observation and the art of listening.

Sam Alito is a man of high moral character. You do not hear the direct words challenging that, but you hear everything indirectly.

He is also a man of intellectual brilliance, impressing everyone who comes in contact with him.

He is a man of dedication to the law, to equal justice under the law.

He is a man who has shown dedicated commitment to the things that are important in our country.

He is a man who is completely sold out to one thing, and one thing only: His record and his life has demonstrated equal justice under the law.

What I also observed was a great diversity of political background of those who support him, those who know him, those who have worked with him for the last 15 years, regardless of their political views, either liberal or conservative, regardless of their gender or their color, regardless of their view on abortion.

Those who know him uniformly support him as a great jurist, a man of integrity and conscience, and one who is completely sold out to the idea that everyone in this country has equality under the law.

Those who know him, those who testified, of all stripes, of all political persuasions, would and are challenging what we have been hearing on the floor by those who oppose him--the mischaracterization of his rulings, the mischaracterization of his beliefs, the mischaracterization of his actions.

What I also observed, which concerns me even more, was that those who don't know him but have a political agenda to keep the Court activist and beyond its constitutional bounds oppose him. They do not know him. But what they do know is judicial activism, making law where none exits, which they put before a judiciary committed to equal justice under the law.

That is why he is being opposed. Their greatest fear is the Court will return to a place where the Constitution, the statutes, and treaties are interpreted, but personal political agendas are left at the door.

They fear the battles lost in the legislatures will no longer be carried out by judicial fiat. The former Soviet Union is the great example. They had a constitution but there was not equal justice under that constitution.

During Chief Justice Roberts' opening statement to the Judiciary Committee, he referenced the fact that the most powerful entity in the world, the U.S. Government, deferred to the rule of law when the Court was convinced that a private client was right on the law and the Government was not. He referenced President Reagan's speeches about the Soviet Constitution and how it purported to grant wonderful rights of all sorts to people, but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. Roberts concluded:

We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Under our law, the mighty can be defeated by the meager.

We heard yesterday the philosophy of those who oppose this great jurist. Let me quote it exactly because it is very dangerous. This quote is from the Senator from Rhode Island:

..... in truth the Supreme Court is the Constitution.

If that is so, we are no longer a nation of laws but rather a nation of judges. That is not America. That is not freedom. That creates nine kings, the exact opposite of what our Founders intended. That is the very thing the American people rejected in the election of 2004. It was about judges.

Finally, let's talk about the real issue that will cause most people to oppose him. They fear he may truly believe in liberty for all. That is their fear. Let me explain. Senator Kennedy had a very eloquent quote during the hearing. I would like to repeat it:

America is noblest when it is just to all of its citizens in equal measure. America is freest when the rights and liberties of all are respected. America is strongest when we can all share fairly in its prosperity. And we need a court that will hold us true to these guiding principles today and into the future.

But he did not mean ``all,'' he meant all those except the truly innocent and truly weak, the preborn child. Behind me are two pictures, one of a 26-week-old preterm infant in a neonatal IC unit, smaller than your hand; and the other picture is of a 26-week preborn child's face seen by ultrasound.

The Declaration of Independence states:

We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness .....

So, America, ask yourself, how did we get to the point that the accidental killing of a 26-week unborn infant is a felony but taking of that same life by abortionists is legal? It is schizophrenic. Why should your liberty be based on your location inside the womb or out?

The Court's jurisprudence on liberty and privacy interests is fundamentally flawed. They fear a correction in that flaw.

To quote Robbie George of Princeton University:

On what constitutional basis can we say that abortion is protected by ``due process'' but a right to assisted suicide ..... is not? Why is sodomy protected and prostitution unprotected? Why does the right to privacy not extend to polygamy or the use of recreational drugs?

That is the kind of justice you have when you are a nation of judges and not law. Hopefully, someone of Sam Alito's character can steer the ship back to liberty for all, including the weakest and most innocent of all. Sam Alito was sold out to this document, the U.S. Constitution. He sold out to equal justice under the law. We need to speak truthfully about the opposition to him. We need to speak truthfully about the problems that have been created by an activist Court, and about the opposition to bring back and steer the ship to where the judges make judgment based on the Constitution, laws, and the treaties of this country, not their political philosophies.

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

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