Executive Session

EXECUTIVE SESSION -- (Senate - January 30, 2006)

BREAK IN TRANSCRIPT

Mr. KYL. Mr. President, I explained last Wednesday that I would support the nomination of Judge Alito. Since then, I have been somewhat frustrated at how this Senate debate has progressed. Time and time again, some Senators have mischaracterized the cases and record of Judge Alito. I would like to take a few minutes and walk through just a few of those misstatements.

First, let me address the case of Sheridan v. DuPont.

On January 26, the junior Senator from Colorado indicated that Judge Alito was unlikely to support principles of diversity because he ruled against a female plaintiff in a gender discrimination case. The Senator said, ``In Sheridan, Judge Alito registered the lone dissent among thirteen judges voting to prevent a woman who had presented evidence of employment gender discrimination from going to trial.'' The Senator's summary of the case requires additional elaboration, though.

According to the record of that case, the plaintiff, Barbara Sheridan, was employed as head captain of the Green Room restaurant in the Hotel DuPont. Initially, she received good performance reviews, but DuPont claimed that her performance began to deteriorate in 1991. At that point, her manager met with her to ask her to stop using the restaurant bar for smoking and grooming. Apparently Sheridan was frequently late to work, and other employees had complained about food and drinks she gave away. In February 1991, the hotel decided to reassign Sheridan to a nonsupervisory position that did not involve the handling of cash. She would not suffer any reduction in pay because of this job transfer. Rather than accept reassignment, Sheridan resigned in April 1992 and sued for gender discrimination.

When the case came before him on appeal, Judge Alito joined a unanimous three-judge panel that ruled for Ms. Sheridan. He held that her case should go to trial because it was plausible that a jury could agree with her. Judge Alito explained, ``a rational trier of fact could have found that duPont's proffered reasons for the constructive termination were pretextual.''

Later, however, the case was heard by the full Third Circuit. At that time, Judge Alito expressed doubt about the applicable Third Circuit precedent. Hesitant about the court's broad rule that affected all cases with varying factual situations, he explained that when the employee makes out a case like this, she should usually, but not always, be accorded a trial. He reached this conclusion after parsing the Supreme Court's 1993 decision in St. Mary's Honor Center v. Hicks. And most importantly for present purposes, the Supreme Court later agreed with Judge Alito's view in a unanimous opinion authored by Justice O'Connor. That case, Reeves v. Sanderson Plumbing Products, can be found at 533 U.S. 133, and was decided by the Supreme Court in 2000.

The job of an appellate court judge is to faithfully interpret the Constitution and the Supreme Court's interpretations of statutes. The history of this case demonstrates that Judge Alito got it right when he examined pleading standards in title VII cases.

Let's move on to another case, the 1996 case of U.S. v. Rybar, in which Judge Alito dissented.

On January 25, the Senior Senator from Rhode Island said that Judge Alito ``advocated striking down Congress's ban on the transfer and possession of machine guns.'' He further said that Judge Alito had argued that he was ``not convinced by Congress' findings on the impact of machine guns on interstate commerce. He substituted his own policy preferences in a way that the Third Circuit majority found was, in their words, counter to the difference that the owes to its two coordinate branches of government.''

I discussed this case with Judge Alito during his confirmation hearings. The description we have just heard does not tell the whole story.

Judge Alito's dissent in that case had nothing to do with being ``convinced'' by Congress's findings. Rather, Judge Alito based his dissent, in part, on the fact that Congress made no explicit findings regarding the link between the intrastate activity regulated by these laws, the mere possession of a machine gun, and interstate commerce. Note that this case was about possession, not transfer or commercial activity.

Second, the dissent had nothing to do with Judge Alito's own policy preferences regarding the possession of machine guns. Rather, it was a careful application of the then-recent decision in United States v. Lopez, which reminded courts to take seriously the limits of Congress's powers under the commerce clause. In Lopez, the Supreme Court had held that Congress's power to regulate commerce among the several States did not include the power to regulate possession of a gun near a school where the gun never crossed State lines. It was for the Third Circuit to decide whether Congress's power to regulate interstate commerce included the power to regulate possession of a machine gun where the machine gun never crossed State lines. In Judge Alito's view, the Supreme Court's decision ``require[d] [the court] to invalidate the statutory provision at issue.'' He relied on and cited Lopez at least 22 times in his 9-page dissenting opinion.

Again, this is the job of an appeals court judge: to interpret Supreme Court precedent and apply it to new cases.

I should also point out that Judge Alito's dissenting opinion provided a virtual roadmap for how Congress could regulate the possession of guns in a way consistent with the Constitution and Supreme Court case law. This is hardly the behavior of someone bent on imposing a ``policy preference'' against regulating machine guns. According to Judge Alito, all Congress had to do was make findings as to the link between the possession of firearms and interstate commerce or add a requirement that the government prove that the firearm moved across State lines.

Let me add one last word on the Rybar case. It is often said that Judge Alito always sides with the government. Well, this case was called ``United States versus Rybar,'' and Judge Alito was on the side of Mr. Rybar. Of course, he did not think of himself being on anyone's side. He was just doing as he believed the Constitution and Supreme Court required. And he would have felt the same way if the law required the opposite conclusion.

Let us now move on to another case, that of Riley v. Taylor.

Speaking at the executive business meeting for the nomination of Judge Alito, the senior Senator from Illinois left a misimpression of the facts of this case, so I would like to clear up any confusion.

In that case, Judge Alito found there was insufficient evidence to support a criminal defendant's claim that the prosecutor had violated his constitutional rights by striking three minorities from the jury pool. The Senator said that the prosecutor had ``in three previous murder cases, used every challenge they had to make certain that only white jurors would stand in judgment of black defendants.'' That is not accurate. While it is true that the criminal defendant relied heavily on the anemic evidence that in three previous trials no African Americans ended up on the jury, it is also the case that the prosecutor had struck both Blacks and Whites from those juries. Indeed, Judge Alito pointed out in his decision that, of the excluded jurors in the previous trials, only 24 percent were African Americans. He suggested that this might not even be disproportionately high in a county where the most recent census indicated that 18 percent of the population was Black.

Most importantly, Judge Alito's opinion rejected the selective use of statistics based upon the sample size of three trials. In so ruling, Judge Alito was in agreement with multiple State and Federal judges who had heard the case before him. On the full Third Circuit, four other judges, half of them Democratic appointees, joined in his opinion on this point. Not a single judge thought the statistical argument settled the case.

As a postscript, when Riley was given a new trial by the Third Circuit, he was again convicted of all charges. When he again appealed, the Delaware Supreme Court found that his petition was ``wholly without merit.''

Let me turn to another case, one also discussed by the senior Senator from Illinois, but during his January 25 floor speech, that of Pirolli v. World Flavors.

The Senator from Illinois stated: ``Another case involved an individual who was the subject of harassment in the work place. This person had been assaulted by fellow employees. He was a mentally retarded individual.'' The Senator continued, ``His case was dismissed by a trial court, and it came before Judge Alito to decide whether or not to give him a chance to take his case to a jury. And Judge Alito said no. The man should not have a day in court.''

Several corrections are needed here.

First, the plaintiff in this case did have his day in court; he just did not reach a jury. During the course of the proceedings, the plaintiff presented his argument to not one, but four judges--one district court judge and three appellate court judges. The rules of the Third Circuit require that a plaintiff present his case in a minimally adequate fashion in order to be considered. The plaintiff must, at a minimum, state what happened to him and provide the basis for his claim. But the plaintiff in this case, a man who had a lawyer, never did that. The Third Circuit judges in this case were not provided with enough facts to make an adequate and informed decision. Judge Alito emphasized, ``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.''

Second, with regard to the plaintiff's sexual harassment claim, Judge Alito refused to accept the arguably demeaning stereotype which the plaintiff's lawyer advanced, which was ``that retarded persons are any more (or less) sensitive to harassment than anyone else.'' Judge Alito required evidence on which to base his ruling and refused to rely on the proposed stereotype.

Let's move on to another case, that of Doe v. Groody.

This case was mentioned by several Senators but in particular by the Junior Senator from Massachusetts on January 25. The Senator said that Judge Alito did not support individual rights because he dissented in Doe v. Groody. He said, ``Judge Alito's hostility to individual rights isn't limited to civil rights. He consistently excuses government intrusions into personal privacy, regardless of how egregious or excessive they are. In Doe v. Groody,'' the Senator from Massachusetts argued, ``dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a ten year-old was reasonable.''

First, let's get the legal question straight. The issue in Doe v. Groody was whether police officers should be able to be personally sued for money damages when they misunderstand the scope of the search warrant they were given.

Second, let's look at what happened during the event in question. On March 6, 1998, as a result of a long-term investigation of a John Doe for suspected narcotics dealing, officers of the Schuylkill County Drug Task Force sought a search warrant for Doe and his residence. The typed affidavit in support of the warrant stated, among other things, that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe at his residence. The affidavit sought permission to ``search all occupants of the residence and their belongings.''

However, the printed sheet entitled ``Search Warrant and Affidavit'' contained an entry naming only John Doe under the question, ``specific description of premises and/or persons to be searched.'' When the officers entered the house to commence the search, they decided to search Jane Doe and her daughter, Mary, age 10, for contraband. A female officer removed both Jane and Mary Doe to an upstairs bathroom where she searched them for drugs. No contraband was found. Once the search was completed, both mother and daughter returned to the ground floor to await the end of the search.

As a matter of policy, the sad reality is that drug dealers often hide weapons and drugs on children in the home. Judge Alito acknowledged in his opinion that he found the fact that the search occurred to be unfortunate. Accordingly, police officers sometimes request warrants that allow them to search all persons found during a drug bust.

The Does sued the police officers personally for money damages. The issue was how to read the warrant in light of the affidavit. And the legal question question was whether a reasonable officer could have believed that the search warrant allowed the officers to search everyone in the house. Two judges on the panel said no, while Judge Alito said yes.

Why did Judge Alito believe that the police officers should not be liable personally? He concluded that a reasonable police officer could think that the warrant should be read in conjunction with the attached affidavit. Judge Alito reasoned that a ``commonsense and realistic'' reading of the warrant authorized a search of all occupants of the premises. Judge Alito found that the officers in this case ``did not exhibit incompetence or a willingness to flout the law.

Instead, they reasonably concluded that the magistrate had authorized a search of all occupants of the premises.''

So, on the law, Judge Alito did not, as he has been accused repeatedly over the past few days, authorize the strip-search of a 10-year-old girl. He just tried to sort out a practical, on-the-ground problem for law enforcement. It is sad but predictable that this case, with its inflammatory facts, would come up repeatedly, but repetition is not going to change the record of what happened.

Mr. President, let's move on.

I want to address a claim by the junior Senator from Illinois in a January 26 speech that, whenever Judge Alito has discretion, he will rule against an employee or a criminal defendant. To quote, the Senator said, ``If there's a case involving an employer and employee and the Supreme Court has not given clear direction, Judge Alito will rule in favor of the employer. If there's a claim between prosecutors and defendants if the Supreme Court has not provided a clear role of decision, then he'll rule in favor of the state.''

This just is not the case. There are 4,800 cases that could be reviewed to demonstrate the inaccuracy of that claim, but let's just look at a few.

In Zubi v. AT&T, an employee claimed that AT&T had fired him based on his race, but the record was far from clear. Judge Alito clearly had room to rule against the employee. After all, the other two judges deciding the case on appeal did so and threw out the employee's claim. They held that the employee had waited too long to bring his claim. In contrast, Judge Alito issued a lone dissent arguing that the employee was entitled to bring his discrimination claim. Later, the Supreme Court unanimously vindicated Judge Alito's view.

As another example to counter the Senator from Illinois's claim, consider the case of United States v. Igbonwa. There, a criminal defendant argued that the prosecutor had failed to honor his plea agreement. The majority of the court voted against the defendant and in favor of the prosecutor. Clearly, Judge Alito had legal grounds to do the same. Instead, Judge Alito issued a lone dissent arguing that the prosecutor was required to fulfill this promise to the defendant.

In yet another example, in Crews v. Horn, Judge Alito ruled that a prisoner was entitled to more time to bring his habeas petition. Again, the Supreme Court and Third Circuit had never decided the question, and the statute was unclear. Judge Alito could have ruled either way, yet he ruled in favor of the prisoner's claim.

This is a good time to remind the Senate what Third Circuit Judge Edward Becker, who served with Judge Alito for 15 years, had to say on this point. He testified, ``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.'' As Judge Becker summarized Judge Alito's career, ``His credo has always been fairness.''

Mr. President, I want to turn to some of the mischaracterizations of Judge Alito's past record as a government official.

In her January 25 speech, the junior Senator from New York said that Judge Alito had written that ``in his estimation it is not the role of the federal government to protect the health, safety, and welfare of the American people.''

As best I can tell, the Senator is referring to a 1986 document addressing the Truth in Mileage Act, a bill to require States to change their automobile registration forms to include the mileage of the car every time it was sold. That document did not, as the Senator said, offer Alito's ``estimation'' on anything. Judge Alito was drafting a veto message for President Reagan. Accordingly, he drafted that message in President Reagan's voice and restated President Reagan's policy on federalism. The first-person pronoun in that message is President Reagan, not Alito.

It is also worth nothing that Judge Alito did not challenge Congress's powers. His cover memo acknowledged that ``Congress may have the authority to pass such legislation.'' He did point out that the legislation was ``in large part unnecessary since only five states and the District of Columbia do not already have'' title forms that meet this requirement.

Let's move to another statement from the Senator from New York. She stated that Judge Alito's ``time on the bench shows an unapologetic effort to undermine the right to privacy and a woman's right to choose.''

In fact, Judge Alito's record confirms that he is not an ideologue on a crusade to curtail Roe v. Wade. In his 15 years on the bench, he has confronted seven restrictions on abortion, and he struck down all but one. Judge Alito has upheld a woman's right to choose even when he had the discretion to limit abortion rights.

For example, in the 1995 case of Elizabeth Blackwell Health Center for Women v. Knoll, Judge Alito struck down two abortion restrictions by the State of Pennsylvania. The first provided that a woman who became pregnant due to rape or incest could not obtain Medicaid funding for her abortion unless she reported the crime to the police. The second provided that if a woman needed an abortion to save her life, she had to obtain a second opinion from a doctor who had no financial interest in the abortion. The question was whether these laws conflicted with a Federal regulation issued by the Secretary of Health and Human Services. There was no binding Supreme Court precedent on point, and Judge Alito easily could have upheld the abortion restrictions if he had such a preset agenda. But Judge Alito voted to strike down both laws in favor of a woman's right to choose. This is not the behavior of someone bent on chipping away at Roe v. Wade. This is the behavior of a jurist who understands the importance of precedent.

The junior Senator from New Jersey came to the floor earlier today and criticized the work Judge Alito had done on behalf of the Reagan Justice Department on abortion cases. He suggested that those efforts showed a bias against Roe v. Wade that would matter in the future. But the record shows just the opposite, as discussed above. How else to explain the Knoll case? Moreover, the Senator said that Judge Alito would not describe Roe v. Wade as, quote, ``settled law.'' Judge Alito addressed this question repeatedly during the hearing. A judge cannot call an area of law ``settled'' when it is likely that cases dealing with that area will come before him. This demand to say that Roe is settled is little more than a desire to prejudge all those cases, including cases pending before the Supreme Court today. Judge Alito simply cannot do that without violating his judicial ethics and depriving those litigants of their fair day in court.

I will move on.

Earlier today, the junior Senator from Michigan said that Judge Alito had ``been criticized by his colleagues for trying to legislate from the bench in order to reach the result that he desires.'' I am not aware of a single example of any member of the Third Circuit, or of any other court in the Nation, claiming that Judge Alito had any tendency toward quote, ``legislating from the bench.''

In fact, just the opposite is true. It is especially surprising to hear such a claim given the testimony of Judge Alito's colleagues on the Third Circuit.

Would seven current and former Third Circuit judges testify for Judge Alito if they believed he was a judicial activist or otherwise unqualified for the bench? Those listening now or reading the Congressional Record in future years should go to the Judiciary Committee records on the Internet and read what those judges had to say when they testified on January 12. When I spoke last week, I entered in the RECORD a series of excerpts from that testimony that the Senate Republican Policy Committee, which I chair, had compiled. The complete testimony is worth reviewing, too. Again, I am not aware of a single time that any judge has accused Judge Alito of legislating from the bench.

As one last point, I must address this unitary executive issue. The senior Senator from New Jersey and others have said that Judge Alito somehow believes in making the executive more powerful than the legislative and judicial branches. One wonders how many times this misstatement has to be corrected. Judge Alito made clear during his testimony that his past comments regarding the unitary executive theory only--only, Mr. President--dealt with who has the power to control executive agencies. As he said repeatedly, insofar as this theory deals with the scope of Presidential power, he does not--repeat, does not--subscribe to it. What else can he say? He has made this extremely clear. He has said it repeatedly.

Mr. President, there have been other misstatements and mischaracter-Ðizations of Judge Alito's record. I can only respond to so many. I will simply encourage future students of this debate to look at the cases in question, and to carefully review the Committee record, before reaching conclusions based on floor debate.

I look forward to Samuel Alito serving on the Supreme Court for many years to come.

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