Executive Session

EXECUTIVE SESSION

BREAK IN TRANSCRIPT

Mr. DeWINE. Mr. President, I met with Judge Alito on the day after his nomination. I was very impressed with him from the start. After spending an hour or so with him, I could tell that he is a modest, honest, and fair man, a person with a solid understanding of the proper role of a judge. At the time, however, I said I would not make a final decision about his nomination at that point.

I started my career as a county prosecuting attorney, and I believe in trials before verdicts. We just had the trial, and during that trial, the hearing, this is what I saw: I saw a man who is forthright and honest. Over the course of 3 days before the Judiciary Committee, Judge Alito was asked 677 questions on issues ranging from abortion to executive power to Vanguard. He answered at least 659 of them, or 97.3 percent of the questions.

To give you some perspective on these numbers, Chief Justice Roberts, when he was in front of our committee, was asked only 574 questions and answered 89 percent of them. Justice Ginsburg was asked just 384 questions, answering only 80 percent of them. Justice Breyer was asked 355 questions, answering 82 percent. Judge Alito was asked more questions and gave more answers than any recent nominee to the U.S. Supreme Court.

At that hearing, I saw a man of character and integrity. Judges do not shed their values when they don their robes. Our Founders themselves recognized this important point. In Federalist No. 78, for instance, Alexander Hamilton said that only a few individuals would really have the expertise in the law to become a Supreme Court Justice. But fewer still would have the ``integrity'' and the ``dignity'' befitting the office. In my opinion, Judge Alito has the integrity, the character, and the dignity befitting the office of Associate Justice of the Supreme Court.

The best evidence on this point is the testimony of those who know Judge Alito best--his colleagues on the Third Circuit, people he has worked with day in and day out. Judge Edward Becker described Judge Alito as ``modest and self-effacing.'' Judge Becker continued:

I have never seen a chink in the armor of his integrity, which I view as total.

Judge Leonard Garth, his first boss, called him a ``morally principled judge.'' Even former Judge Tim Lewis, a man who said he occasionally disagreed with Judge Alito, endorsed his elevation to the High Court.

To me, all of this testimony carries substantial weight. We can judge a man by his record, we can judge him by his judicial philosophy, certainly, but there is no better judge of a man than those who know him best.

Unfortunately, some who hardly know Judge Alito have tried to smear his reputation by raising his recusal in the so-called Vanguard case. This case got a lot of play during the hearing. In my opinion, this attack is clearly frivolous. I wish to talk for a moment about it.

This so-called Vanguard case arose out of a financial dispute between two people. The plaintiff won a suit against a woman by the name of Monga, requiring her to turn over about $170,000 that she had in some Vanguard accounts. Ms. Monga then went to court to prevent Vanguard from turning over the money. So while Vanguard was technically a defendant in the case, in the classic sense of the term, it really was not accused of any wrongdoing. It didn't stand to lose anything. The only question was whether Vanguard would transfer the funds it held for Ms. Monga to another person. They just held the money. Nothing about this case could realistically have affected Vanguard as a company, nor Judge Alito. The judge did not own Vanguard; he held mutual funds that were managed by Vanguard.

Mr. President, that is why everyone who has looked into that matter has concluded that the allegations against Judge Alito are absurd. The ABA looked into this allegation and unanimously concluded that Judge Alito was entitled to its highest rating, a rating which explicitly considers ethics and integrity. Five legal experts concluded that Judge Alito did nothing wrong. Judge Becker, the former Chief Judge of the Third Circuit, said he was ``baffled'' by these allegations. The Washington Post wrote in a January 13 editorial that Judge Alito's own testimony ``revealed the frivolousness of the charge.''

Before these hearings began, one of Judge Alito's opponents, Nan Aron, president of the Alliance for Justice, said, ``you name it, we'll do it'' to defeat Judge Alito.

With Vanguard, Judge Alito's opponents resorted to an outrageous attack on him in an effort to undermine his integrity. This attack clearly failed. Although some waged a full-scale war against Judge Alito, what Judge Becker said at the hearing remains true today: There is simply ``not one chink in the armor of his integrity.''

At the hearing, I saw an experienced judge with a brilliant legal mind. Judge Alito came to the Judiciary Committee with a lengthy and distinguished legal career. He served for several years as a Federal prosecutor, taking on the mob, drug dealers, and white-collar criminals. He argued 12 cases himself before the U.S. Supreme Court. And for more than 15 years, he has served as a judge on the Third Circuit, deciding thousands of cases and authoring hundreds of opinions with his own pen. This background certainly attests to his extraordinary competence and shows why he received a unanimously well-qualified rating from the ABA.

His judicial opinions attest to his competence as well. He writes crisply and clearly without any kind of overstatement. For the most part, he decides only the issues before him and has proven himself capable of tackling complex areas of the law with clear and yet simple language.

In my mind, however, the way Judge Alito answered our questions is perhaps the best example of his extraordinary legal talent. During our hearings, he demonstrated a mastery of constitutional law and his own voluminous jurisprudence. Over the course of 3 days, he spoke clearly and succinctly without using notes. It was an amazing performance. He provided us with detailed information about how he thinks, how he reasons, how he comes to his conclusions. I found his testimony thorough, forthcoming, and informative, and I believe the American people felt the same way.

At the hearing, I also saw a man who is openminded and fair, a man who is compassionate. During our hearings, some complained that Judge Alito has a bias toward Government or big business. But that is not what was said by those who, again, know him best. Take, for example, the testimony of Judge Alito's former law clerks.

Kate Pringle, a self-described ``committed and active Democrat,'' said that Judge Alito ``approached each case without a predisposition toward one party or the other.'' She said he treated all litigants ``in a fair and openminded way.''

Jack White, a member of the NAACP and the ACLU, said that Judge Alito had an ``abiding loyalty to a fair judicial process,'' not ``an enslaved inclination toward a political or personal ideology.'' In fact, Mr. White ``never witnessed an occasion when personal or ideological beliefs motivated a specific outcome in a case.''

Finally, Professor Nora Demleitner, who described herself as ``a left-leaning Democrat, a member of the ACLU, a woman, and an immigrant,'' also had praise for Judge Alito:

In the years I have known the judge, he has never decided a case based on a larger legal theory about the Constitution or conservative worldview, but instead has looked at the merits of each individual case.

Judge Alito also understands that judicial opinions are more than ink in the Federal Reporter. He understands that they are decisions that affect real people and have real consequences. The judge himself put it best:

[W]hen a case comes before me involving, let's say, someone who is an immigrant ..... I can't help but think of my own ancestors because it wasn't that long ago when they were in that position. .....[W]hen I look at those cases, I have to say to myself, and I do say to myself, this could be your grandfather. This could be your grandmother. They were not citizens at one time, and they were people who came to this country. When I have cases involving children, I can't help but think of my own children and think about my children being treated in the case that's before me. .....When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account. When I have a case involving someone who has been subjected to discrimination because of disability, I have to think of people whom I've known and admired very greatly who had disabilities, and I've watched them struggle to overcome the barriers that society puts up[.]

To me, this testimony accurately reflects Judge Alito's record while on the bench. No matter who comes before him and no matter what the case, Judge Alito approaches each case with an open mind and a real-world sense of the consequences of his actions. To me, that is truly the approach of a fair, openminded, and compassionate judge.

Finally, I saw a man who understands the proper role of a judge. I believe judges play a limited, but obviously important, role in our constitutional system. Judges are not Members of Congress, State legislators, Governors, or Presidents. Their job is not to pass laws or make policy. Instead, it is the job of a judge--to use the words of Justice Byron White--simply ``to decide cases.'' Nothing more.

Judge Alito seems to embody this thinking as well. Several years ago at a ceremony honoring one of his Third Circuit colleagues, Judge Alito reminded his colleagues about the attributes of a good judge. Always remember, he said, to ``act like a judge.''

He went on to say:

Do what good judges do, what they have done for a long time. Decide the cases that come before you, decide them as best you can. .....Speak straightforwardly on the matters that are properly before you. Exercise the important powers that are rightfully yours, but keep in mind that you are a judge.

On the first day that I met Judge Alito, I was impressed with him, but I am even more impressed today. He is a good, decent, and honest man. He has extraordinary legal talent, and he approaches each case with an open mind and understanding heart.

In spite of some of the frivolous attacks on his reputation and character, Judge Alito has conducted himself with dignity, patience, and, yes, poise. He is an excellent judge and, in my opinion, will make an outstanding addition to the Supreme Court. I am proud to support his confirmation.

I conclude by noting that when Judge Roberts was sworn in as our Nation's 17th Chief Justice, he reminded us of a ``bedrock principle.'' And that is that ``judging is different from politics.'' Similar to John Roberts, Samuel Alito understands the difference, and when he takes a seat on the Supreme Court, as I expect he will, I know he will remember that. When tough cases come up, he will, in fact, I am sure, act like a judge.

I thank the Chair, and I yield the floor.

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