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Public Statements

Executive Session

Location: Washington, DC

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


Mr. KERRY. Mr. President, on countless nominations Democrats have joined Republicans and Republicans have joined Democrats to send a judicial nomination to the floor with a powerful, bipartisan vote. Chief Justice Roberts came to the floor 13 to 5. Justice Breyer came to the floor unanimously. Justice Ginsburg came to the floor unanimously. Justice Breyer won on the floor 87 to 9; Justice Ginsburg, 97 to 3; and Chief Justice Roberts, 78 to 22.

But, in this case, Judge Alito comes to the floor in a straight party line, particularly divided vote. In a divided country, at a time of heightened partisan tensions, at a time of ideology often trumping common sense or broad public interest, the President has chosen to send a Supreme Court nominee who comes directly out of a revolt by the ideological wing of his party in order to satisfy their demand for ideological orthodoxy.

Some people obviously delight in that. We have read about that today in the New York Times. And that is their right. But most don't. Most don't think that is the way to pick a Supreme Court Justice. It doesn't mean it is good for the country, it doesn't mean it fills our current needs, and it doesn't mean it is even the right thing to do.

As we approach this nominee, we can't forget that he was not the President's first choice. His first choice was Harriet Miers, and opposition to her nomination came not from Democrats but from the far right of the Republican Party. They challenged her ideological purity with such conviction that the President capitulated to their demands and gave them Judge Alito instead--a nominee who they received with gleeful excitement.

Jerry Falwell ``applaud[ed]'' his appointment. Ed Whelan called it ``a truly outstanding nomination.'' Rush Limbaugh called the nomination ``fabulous.'' Ann Coulter and Pat Buchanan raved about how it would upset liberals. This rightwing reaction can only mean one thing: they know what kinds of opinions Judge Alito will issue--opinions in line with their extreme ideology.

All of this is to be contrasted with the standard set out by Justice Potter Stewart. He said:

The mark of a good judge is a judge whose opinions you can read and . . . have no idea if the judge was a man or a woman, Republican or Democrat, a Christian or Jew . . . You just know that he or she was a good judge.

What he is saying is not really limited to the status of religion, gender, or politics, or any other trait by which we categorize people. He is saying that a good judge through all their decisions shows no discernible pattern of identity that pigeonholes that judge except for the purity of their legal reasoning, their genuinely open-minded approach to judging.

But in Judge Alito we do see patterns--patterns which demonstrate a bias towards the powerful, patterns which demonstrate a lack of skepticism towards government overreaching, and patterns which demonstrate a hostility to the disadvantaged and the poor. This doesn't mean that Judge Alito never rules in favor of an individual suing the government for an unlawful search or a minority suing a corporation for unlawful discrimination. But it does mean that in the overwhelming majority of cases he has not. And this raises the question of whether he approaches each case with an open mind or whether he comes with a bias that can only be overcome in the rarest of circumstances.

So why should the debate on Judge Samuel Alito continue now? Well, to begin with, there hasn't been that much debate on this nomination in the first place--a nomination of extraordinary consequence. It came to the floor on Wednesday the 25th, and cloture was filed the very next day on Thursday. To this moment, not more than 25 Democratic Senators have had a chance to speak. At this time, the Senate has spent a total of 25 hours on a nomination that will last a lifetime.

The direction our country will take for the next 30 years is being set now and this is the time for debate. This is the time when it counts. Not after the Supreme Court has granted the executive the right to use torture, or to eavesdrop without warrants. Not after a woman's right to privacy has taken away. Is history going to care what we say after the courthouse door is slammed in the faces of women, minorities, the elderly, the disabled, and the poor? No. Except to wonder why we didn't do more when we knew what was coming.

Obviously, I have heard some people try to argue that exercising our rights is ``obstructionist.'' But did people suggest it was obstructionism when the extreme rightwing of the Republican Party scuttled the nomination of Harriet Miers? How many times have we heard our colleagues come to the floor and demand that judicial nominees get an up-or-down vote? She never got an up or down vote. She never even got a hearing. Yet a minority in the Republican Party was able to stop a nominee that they considered unfit for the Supreme Court.

It is hardly obstructionist to use, as the former chair of the Judiciary Committee Senator Hatch described it, ``one of the few tools that the minority has to protect itself and those the minority represents.'' That is exactly what we are doing here. That is why we have the Senate and the rules we live by. We are protecting basic rights and freedoms that are important to every American: privacy, equality, and justice.

It is important to remember that the rights we are expressing concern about didn't come easily. Access to the court house, civil rights, privacy rights, voting rights, antidiscrimination laws--all of these were hard fought for. They came with bloodshed and loss of life. Their achievement required courage and determination. None of these basic rights were written into law without a fight, and still today it requires constant vigilance to make sure they are enforced and maintained. That commitment for vigilance is one of the characteristics that should leap out in a Supreme Court nominee.

We should remember that even though the 13th, 14th, and 15th amendments outlawed slavery, provided for equal protection under the law, guaranteed citizenship, and protected the right to vote for African American Americans, the fact is the Federal Government took very little action to enforce them until the 1960s. Few politicians were willing to take a stand--to fight for the rights of African Americans. Something besides

grassroots pressure was ultimately needed to prompt the Congress into action. That something was the unanimous Supreme Court decision in Brown v. Board of Education.

Imagine if the Court had not enforced the equality guaranteed by the 14th amendment. Imagine if it still had the ideological outlook it had when Plessy was decided. Or when Dredd Scott was decided. Two of the most ideologically driven--and regrettable--decisions ever. Segregation would still be a fact of life. African American children would be forced to attend their own schools, would be receiving an inferior and inadequate education. And, there would have been no catalyst to start the civil rights movement.

So a vote for a Supreme Court nominee is in fact a vote for the rights and freedoms we care about and fight for. That is exactly what this vote is.

There is no question in anyone's mind. Samuel Alito will have a profound impact on the Supreme Court. This is a pivotal moment in history for the Court. You only need to look at his past opinions to know that much.

Let me share with you the story of David D. Chittister. On February 14, 1997, David requested sick leave from the Pennsylvania Department of Community and Economic Development, where he worked. He was granted leave, but approximately ten weeks later, his leave was revoked, and he was fired. David knew that the Family Medical Leave Act guaranteed him 12 weeks of sick leave. So he sued the Pennsylvania Department of Community and Economic Development for firing him during that time.

Put yourself in David's shoes. Imagine that you become sick. You become so sick that you are hospitalized, completely unable to work. The only reason that you can afford your treatment is because you are still employed. And above all you believe that you are protected by the Family Medical Leave Act.

Now imagine that Judge Alito is on the Supreme Court. He is one of the nine voices that gets to decide whether the Family Medical Leave Act is constitutional. And he votes the way he did on the Third Circuit, invalidating that part of the Family Medical Leave Act which guarantees an individual 12 weeks of sick leave and applies to you. You are out of luck as you face mounting medical bills without any source of income.

This is not hypothetical. That is the decision he made. Health care is a very real problem for many more Americans than ever. Many of us have been pushing for a national approach to health care for years. Our citizens can't get the sick leave they need to take care of themselves. They cannot get adequate health insurance--coverage isn't what it should be. The Family Medical Leave Act was a step in the right direction to deal with family values and health needs. It made sure that people could take the time they needed when they became seriously ill without losing their income. It was enacted with overwhelming bipartisan support in a 71 to 27 vote. But if Judge Alito were on the Supreme Court and he follows his own precedent, it would no longer protect State employees.

So I ask my colleagues who voted for the Family Medical Leave Act: didn't we do exactly want we meant to do? Didn't we need to protect all workers? So is it right, now, to put a person on the Supreme Court who will undo the good that we did with that legislation?

Take another example. Many of us have talked on the floor about how Judge Alito routinely defers to excessive government power. And how he is willing to overlook clear fourth amendment violations in the process. This may seem abstract to a lot of people right now, but listen to the facts of this case.

A family of farmers, the Mellotts, fell on hard times. They had to declare bankruptcy and were ordered to leave their farm--like a lot of farmers these days. They asked for permission to appeal and were denied. They asked that the judge be disqualified and were denied. They didn't accept the eviction order and refused to leave their farm. So the marshals were sent to evict them.

When Bonnie Mellott answered the front door, a deputy marshal entered, pointed his gun ``right in her face,'' pushed her into a chair, and kept his gun aimed at her for the remainder of the eviction. Another deputy entered, ``pumped a round into the barrel'' of his sawed-off shotgun, pointed it at Wilkie Mellott, and told him ``to sit still, not move and to keep his mouth shut.'' When he did this, the marshals knew Wilkie Mellott was recovering from heart surgery.

But that wasn't all. Another marshal ran into the kitchen where a guest was on the telephone with a local sheriff. He ``pumped'' his semi-automatic gun, ``stuck it right in [her] face and ..... said: `Who are you talking to, hang up the phone.''' When she continued talking, the marshal put his gun ``to the back of her head'' and repeated the order.

I won't go into further details, but you get the picture. Now obviously the Mellotts were in the wrong to stay in their farm. They were ordered by the court to leave, and they should have. We all understand that.

But there is no fact in evidence suggesting that once the marshals got in the house there was resistance--no facts suggesting there was need for force or intimidation. Nothing justified running into a house, waiving sawed-off shotguns and screaming at the occupants. These folks weren't criminals. They weren't armed. They weren't resisting arrest. You know what, it is tough enough to get kicked off your property; it is another thing to be treated like a felon, absent cause, with pumped shotguns shoved in your face. Most reasonable people would conclude that the government's actions were excessive. But Judge Alito did not, and he wrote the majority opinion for two of the three judges hearing the case calling the law enforcement conduct reasonable. The dissenting judge disagreed. He said that once the marshals arrived and realized that the Mellotts were neither armed nor dangerous, the use of force was ``clearly not objectively reasonable.''

Where do you come out on this? Which view do you want on our Supreme Court?

Let me also share another story this one about Beryl Bray. Beryl was an African-American female who worked her way up from a room attendant to a Housekeeping manager for Marriott Hotels in less than three years. When the position of Director of Services opened up, Beryl applied. A Caucasian woman got the job, and Beryl sued claiming discrimination.

Now, as a Housekeeping manager, Beryl probably did not make a lot of money. She probably used a lot of her resources to bring her discrimination claim. She wanted her day in court. If Judge Alito had his way, she wouldn't have gotten it. Critical facts were in dispute. Facts which, if resolved as Beryl claimed they should be, would establish a clear case of discrimination. As the lawyers here know, the factual disputes should have been resolved by a jury of her peers. Beryl was entitled to her day in court. Judge Alito, however, did not agree. He would have resolved the facts on his own in favor of Marriott Hotels. He would have ended the case then and there.

Or let's talk about Harold Glass. Mr. Glass worked at Philadelphia Electric Company, of PECO as it is known, for 23 years before he retired. While working full-time, Harold attended school to improve his career opportunities. Over the years, he earned two associate degrees, a bachelor of science degree in industrial and management engineering and a bachelor of science degree in engineering.

In addition to his full-time work and continuing education, Harold was a long-time activist on behalf of PECO employees. In 1968, he helped organize the Black Grievance Committee to respond to problems of racial fairness, including inadequate representation of minorities by PECO's uncertified labor organization. He served as an officer. He represented employees in handling routine individual grievances before management and negotiated with management about employee concerns. In addition, he took the lead in organizing witnesses in three legal actions against PECO concerning racially discriminatory employment practices.

Over the years, Harold applied for promotions to new positions, but each time he was rejected. In addition, he was not able to apply for positions he would have liked to have because they were never posted by the company. This despite the fact that, in 23 years of employment with PECO, Harold received only one performance evaluation which was less than fully satisfactory--when he was serving as a junior technical assistant. Harold claimed that racial harassment at that time from his coworkers and a hostile work environment had affected his job. But the trial judge did not allow him to demonstrate these facts.

On appeal, a divided three-judge panel reversed the trial judge's decision. Two of Judge Alito's colleagues believed that Mr. Glass should have been allowed to present the evidence of racial discrimination to the jury. Judge Alito, however, disagreed. He thought that allowing Mr. Glass to tell his side of the story might cause ``substantial unfair prejudice.'' He called the trial judge's refusal to allow Mr. Glass's evidence ``harmless.''

Harmless. Was it harmless to Mr. Glass? What do you think? Do you think its harmless error to keep a discrimination plaintiff from showing evidence of discrimination? I think most reasonable people would disagree with Judge Alito.

I believe that is the problem here: Judge Alito has demonstrated a pattern of looking at discrimination claims with a high degree of skepticism. In the dozens of employment discrimination cases involving race that Judge Alito has participated in, he ruled in favor of African Americans on the merits in only two instances. He has never authored a majority opinion favoring African Americans in such cases. He has dissented from rulings of his colleagues in favor of African-American plaintiffs, and in doing so has required an unrealistic amount of evidence before he is willing to step in on behalf of wronged individuals. He is not willing to give them the benefit of the doubt even to just let a jury decide their case.

This is an unacceptable view of the way our country works. Americans know that what sets us apart from almost any other country is the right of any citizen no matter where they come from, what their lot in life is to have their day in court. That is what makes America special. This little guy can hold the big corporations accountable.

Our nation is defined by the great struggle of individuals to earn and protect their rights--particularly the disadvantaged. We have worked hard to ensure that no one is denied their civil rights. Judge Alito's track record casts serious doubt on his commitment to that struggle. The legislation we pass protecting individuals against discrimination requires the courts to fully enforce it. And we just don't keep faith with ourselves if we empower individuals to sue large corporations who act unlawfully and then have the courts refuse to hold them accountable.

Judge Alito's hostility to civil rights claims is not my observation alone. It is an observation shared by many people who have reviewed his record. Let's not forget that after reviewing more than 400 of Judge Alito's opinions, law professors at Yale Law School--Judge Alito's alma matter--concluded that:

In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age and disability claimants. . . Judge Alito seems relatively willing to defer to the claims of employers and the government, over those advancing civil rights claims.

That is the opinion of those who have studied his record. Similarly, Knight- Ridder concluded that Judge Alito ``has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation's laws'' and that he ``seldom-sided with . . . an employee alleging discrimination or consumers suing big business.''

Judge Alito may believe that it is his duty to keep these types of cases away from the jury. He may, and in fact probably does, believe that he is doing the right thing. That is

his right. But, it is my right to judge the facts of these cases and disagree. It is my right to say that the record of his reaction to the same facts should not be elevated to the Supreme Court.

A fair amount has been said about Judge Alito's endorsement of the unitary executive theory. This is a complicated and somewhat abstract theory of constitutional interpretation, but if it is ever endorsed by a majority of the Court, it will have a significant practical impact on our everyday lives.

What it says is that the President alone is responsible for enforcing the laws. At its most simplistic, it seems somewhat reasonable: Congress makes the laws, the President enforces the laws, and the judiciary interprets the laws. The theory, in fact, dates back to the administration of Franklin Roosevelt, and it has been championed by liberal and conservative scholars and administrations as a way of asserting the President's ability to retain control over independent agencies. But, use of the theory in recent times has been changing.

During Judge Alito's tenure, the Reagan administration developed new uses for the theory. It was used to support claims of limitless presidential power in the area of foreign affairs--including the actions that became the Iran-contra affair. And, this view of Presidential power has been carried on by the current Bush administration, claiming in Presidential signing statements, that the President can ignore antitorture legislation overwhelmingly passed here in Congress. Not only is the substance of that message incredible, but the idea that the President can somehow alter congressional intent--the meaning of legislation agreed upon by 100 Senators--with a single flick of a pen is absolutely ludicrous. It turns the meaning of legislative intent on its head.

In the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch, but rather, addressed the question of who controls the executive branch. Don't be fooled by that explanation. The unitary executive theory has everything to do with the scope of executive power.

In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ``[t]he practical consequence of this theory is dramatic.'' It is just common sense that if the unitary executive theory means that the President can ignore laws that Congress passes, it necessarily expands the scope of Presidential power--and reduces the scope of Congress.

Judge Alito had numerous opportunities in the hearings to define the limits of the unitary executive, but he refused to answer my colleagues' questions. He didn't answer when Senator Leahy asked him whether it would be constitutional for the Congress to prohibit Americans from using torture. He didn't answer when Senator Durbin asked whether he shared Justice Thomas's view that a wartime President has inherent powers--beyond those explicitly given to Congress. He didn't answer when Senator Feingold asked what, if any, limits there are on the President's power.

We all understand that under article II, the President has primary responsibility for the conduct of foreign affairs. But, the idea that the President can simply disregard existing law or redefine statutory limits at will in the areas of foreign affairs, national security, and war is a startling one. And it is one that I cannot accept.

We needed to know what limits Judge Alito would place on the executive branch. We needed him to go beyond simple recitations of Supreme Court case law. We needed to know what he actually thought.

Sadly, however, Judge Alito did not give us those answers. In fact, he failed to give us answers on many questions of critical importance. He refused to answer questions from Senator Leahy, Senator Kennedy, Senator Feingold, and Senator Biden on the question of the power of the presidency. He refused to answer questions from Senator Schumer, Senator Durbin, and Senator Feinstein on whether Roe v. Wade was settled law--an

answer that even Chief Justice Roberts was willing to give. He refused to answer Senator Leahy's questions on court stripping; Senator Leahy's and Senator Feinstein's questions on congressional power and the commerce clause; Senator Feingold's questions on affirmative action and criminal law; Senator Schumer's questions on immigration.

These are all questions about issues that routinely come before the Court. Judge Alito had an obligation to answer them. He had an obligation to explain and clarify the positions he took in his speeches, judicial opinions, and Justice Department memoranda. But he did not.

Why are we supposed to think that is OK? Since when is it acceptable to secure a lifetime appointment to the Supreme Court by hiding behind a smokescreen of nonanswers?

I understand that, for many, voting for cloture on a judicial nomination is a very difficult decision, particularly on this Supreme Court nominee. I also understand that, for some of you, a nomination must be an ``extraordinary circumstance'' in order to justify that vote. I believe this nomination is an extraordinary circumstance. What could possibly be more important than this?

This is a lifetime appointment to a Court where nine individuals determine what our Constitution protects and what our laws mean. Once Judge Alito is confirmed, we can never take back this vote. Not after he prevents many Americans from having their discrimination cases heard by a jury. Not after he allows more government intrusions into our private lives. Not after he grants the President the power to ignore Federal law under the guise of protecting our national security. Not after he shifts the ideological balance of the Court far to the right.

As I have said before, Judge Alito's nomination was a direct result of the rightwing's vehement attacks on Harriet Miers, an accomplished lawyer whose only failing was the absence of an ideologically bent record. The rightwing didn't wait for the next nominee. The rightwing didn't leave any of the tools in their arsenal unused. The rightwing attacked with every option available to them to prevent Harriet Miers' confirmation, secure in their conviction that it was the right thing for them to do.

We believe no less. And we should do no less. We did allow the confirmation of three of the most objectionable appellate court nominees. There was no talk of prolonged debate on Chief Justice Roberts. Now we are presented with a nominee whose record raises serious doubt about serious questions that will have a profound impact on everyday lives of Americans. What on Earth are we waiting for?

Many on my side oppose this nomination. They say they understand the threat he poses, but they argue that cloture is different. I don't believe it is. It is the only way that those of us in the minority have a voice in this debate. It is the only way we can fully complete our constitutional duty of advice and consent. It is the only way we can stop a confirmation that we feel certain will cause irreversible damage to our country.

I will oppose cloture on the nomination of Judge Alito. And, I sincerely hope my colleagues will join me.


Mr. KERRY. Mr. President, I have heard a lot of my colleagues rely on the ABA's determination that Judge Alito is ``well qualified'' as a reason--sometimes as reason enough--to vote for his confirmation. But there is a reason why an ABA ranking alone is not all that is required to be confirmed to the bench, let alone the highest Court in the land.

With a decision as fundamental--as irrevocable--and as important to the American people as the confirmation of a Supreme Court Justice, it is important we tell the Americans the full story about the ABA and those rankings.

When making its determination, the ABA considers analytical skills. They consider knowledge of the law. They consider integrity, professional competence, and judicial temperament. But United States Senators must consider more than these criteria.

What the ABA does not look at is the balance of the Supreme Court. What they do not look at is ideology. What they do not look at is judicial activism. What they do not look at is the consequences of a judge's ideologically driven decisions for those who have been wronged and who just want to get their day in court. No matter how smart he may be, no matter how cleverly his opinions may be written, no matter how skillfully he manipulates the law, their standards don't consider the impact of his decisions on average Americans. In short, they don't measure what will happen to average Americans if Judge Alito becomes Justice Alito. That is our job.

None of these measurements consider whether Judge Alito routinely cuts off access to justice for the most disadvantaged Americans--those that need it the most. They don't ask whether he consistently excuses excessive government force when it intrudes into the privacy of individuals. They don't consider that the only statement he has ever made about a woman's right to privacy is that she doesn't have one.

These are things that we must consider here in the United States Senate. These are things that are on the line in this vote this afternoon. And these are the things that I believe most Americans want us to consider. We have to consider whether a judge we confirm to a lifetime appointment to the Supreme Court will undermine the laws that we have already passed that benefit millions of Americans, like the Family Medical Leave Act. We have to consider whether Judge Alito will place barriers in the way of addressing discrimination, whether he will serve as an effective check on the abuse of executive power, whether he will roll back women's privacy rights or whether he will enforce the rights and liberties that generations of Americans have fought and bled and even died to protect. None of the rights we are talking about came easily in this country. There were always those in positions of power who fought back and resisted. What we need in a Justice is somebody who is sensitive to that history. Senator after Senator has described specific cases and the way in which Judge Alito has had a negative impact in these areas--often standing alone, in dissent against mainstream beliefs.

This long record is a record that gave the extreme right wing cause for public celebration with his nomination. That just about tells you what you need to know. The vote today is whether we will take a stand against ideological courtpacking.

Nothing can erase Judge Alito's record. We all know what we are getting. No one will be able to say, in 5 to 10 years, that they are surprised by the decisions Judge Alito makes from the bench. People who believe in privacy rights, who fight for the rights of the most disadvantaged, who believe in balancing the power between the President and Congress need to take a stand now.

I understand that, for many, voting for cloture on a judicial nomination is a very difficult decision, particularly on this Supreme Court nominee. I also understand that, for some, a nomination must be an ``extraordinary circumstance'' in order to justify that vote. Well, I believe this nomination is an extraordinary circumstance. What could possibly be more important than this--an entire shift in the direction of the Court?

This is a lifetime appointment to a Court where nine individuals determine what our Constitution protects and what our laws mean. Once Judge Alito is confirmed, we can never take back this vote. Not after he prevents many Americans from having their discrimination cases heard by a jury. Not after he allows more government intrusions into our private lives. Not after he grants the President the power to ignore Federal law rather than protecting our system of checks and balances. These questions do not arise out of speculation. They do not arise out of mere statement. They arise out of the record the judge has carved for himself.

These issues and the threat that Judge Alito's nomination poses to the balance that the Supreme Court has upheld in all the years that Justice O'Connor has served there--all of this constitutes an ``extraordinary circumstance.''

I understand that many Senators oppose this nomination, and I believe the vote tomorrow will indicate that if we are not successful today. They say that they understand the threat Judge Alito poses, but they argue that somehow a vote to extend debate, when there have been a mere 30 hours or so of debate, is different. I do not believe it is. I believe it is the only way that those of us in the minority have a real voice in the selection of this Justice or any Justice. It is the only way we can fully complete our constitutional duty of advice and consent. It is the only way we can be a voice for those Americans who do not have a voice today. It is the only way we can stop a confirmation that we feel will certainly cause irreversible harm to the principles and values that make a real difference in the lives of average Americans. It is the only way we can keep faith with our belief, and the Constitution's promise, of equal justice. That is a position that we can and we should defend anywhere, at any time.

I thank those who have stood to be counted in this effort and who will continue to take a stand with their vote. I particularly thank my senior colleague from Massachusetts, Senator Kennedy.

I think the remainder of the time Senator Kennedy will use.

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