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Public Statements

Executive Session

Location: Washington, DC



Mr. BIDEN. Mr. President, I will vote no on the nomination of Judge Alito to the Supreme Court for three reasons: first, his expansive view of Executive power; second, his narrow view of the role of the Congress; and third, his grudging reading of antidiscrimination law reflecting a lack of understanding of congressional intent and the nature of discrimination in the 21st century.

First, Judge Alito's expansive view of Presidential power.

In November 2000, Judge Alito said that ``the unitary executive theory ..... best captures the meaning of the Constitution's text and structure.''

Justice Thomas in his Hamdi dissent lays out his views on the power of an unchecked unitary executive to wage war and exercise foreign policy.

Although Judge Alito said his interpretation of the unitary executive was much narrower and that he couldn't recall Justice Thomas using that term, I find Judge Alito's explanation not at all convincing.

I understand the term ``unitary executive'' in the manner in which John Yoo--the administration's legal architect--conceives of executive power.

I asked Judge Alito whether he agreed with Professor Yoo's reasoning that would allow the President under his absolute power--even in the absence of an emergency or imminent threat--to invade another country, to invade Iran tomorrow, no matter what Congress says.

Judge Alito declined to answer this basic, fundamental question.

Traditionally ``conservative'' Justices, such as Robert Jackson, strongly believed in the wisdom of checks and balances.

Judge Alito was asked repeatedly at the hearing about Justice Jackson's famous concurring opinion in the 1952 steel seizure case. During the Korean War, President Truman attempted to nationalize the steel mills in order to avoid a labor work stoppage that would have had negative effects on the war effort. A 6 to 3 Supreme Court ruled against President Truman.

Justice Jackson put it this way about what was at stake:

[N]o doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture..... . That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.

Justice Jackson also laid out a three-part framework for how to view subsequent cases in which the President is arguing he's doing something under his Commander in Chief authority--a framework the Rehnquist Court embraced as ``analytically useful'' in the 1981 case of Dames & Moore v. Regan. First, is the instance in which ``the President acts pursuant to an express or implied'' authorization of Congress. Second, ``when the President acts in absence of either a congressional grant or denial of authority.'' And third, when the President takes ``measures incompatible with the expressed or implied will of Congress.''

Judge Alito showed remarkably little appreciation and understanding of this framework, at one point confusing prong two and prong three of Justice Jackson's framework. Judge Alito's record and his answers at the hearing raise great concern that both individual freedoms and the separation of powers are in jeopardy.

In 1984, Judge Alito wrote that he did not ``question the authority that the Attorney General should have absolute immunity'' in cases involving wiretaps. This again signifies a willingness by Judge Alito to give the President and his officers dangerously expansive powers.

At his hearings, Judge Alito tried to distance himself from his previous statement, claiming he was only doing the bidding of his clients. But at the same time, he refused to definitively say that he did not personally believe his previous assertion.

It is also useful to note that we are currently in midst of a potentially endless war. The war on terror is almost 5 years old; and, unfortunately, shows no signs of abating. Will these expansive Presidential powers become a permanent fixture? What kind of powers do we want our President to have in dealing with a war that may go on for decades? Should our courts have no role?

In 1986, Alito drafted a proposal to make full use of presidential signing statements in order to ``increase the power of the Executive to shape the law.'' It was yet another way to increase the power of the executive at the expense of the other branches.

Senator LEAHY asked Judge Alito at the hearing, ``wouldn't it be constitutional for the Congress to outlaw Americans from using torture?'' This is exactly what the Senate attempted to do in voting overwhelmingly on a bipartisan basis to support the so-called McCain anti-torture amendment.

But when this legislation was signed into law by President Bush on December 30, 2005, he issued a ``Presidential signing statement'' stating basically that no matter what me legislation says on its face, he could still order torture in certain circumstances. Specifically, the statement read that the ``executive branch shall construe this [prohibition] in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch.......''

That is what is at stake with ``Presidential signing statements.'' As my colleague Senator LEAHY has pointed out, President Bush has cited the unitary executive 103 times in these ``Presidential signing statements.''

Judge Alito, at this hearing, responded to Senator LEAHY's question about whether Congress could outlaw torture this way:

Well, Senator, I think the important points are that the President has to follow the Constitution and the laws..... . But, as to specific issues that might come up, I really need to know the specifics.

To me this is a dangerous nonanswer and one that is entirely consistent with President Bush's use of a signing statement to override Congress's outlawing of torture. The implications are very troubling.

Judge Alito's view of the Executive is what worries me most. He referred to Justice Jackson in the Steel Seizure case many times. But I want to read one, short quote by Justice Jackson.

Justice Jackson said in 1952:

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such limitations may be destined to pass away. But it is the duty of the Court to the last, not first, to give them up.

I believe they'll be destined to pass away with this Justice.

To allow the President--whether this one or any future one--to be unconstrained in his or her powers; to be able to pick and choose which laws he or she wants to follow, is unacceptable. The Supreme Court was intended by our Founders to serve as a bulwark against executive overreaching. Any nominee to the Court who doesn't agree is a nominee who should not be confirmed.

Second, Judge Alito has a very narrow view of congressional power.

Judge Alito will very likely join with the present members of the Court who have struck down three dozen federal laws in less than 20 years--laws which said, for example, you can't have guns within 1,000 feet of an elementary school; laws requiring a 5-day background check for a handgun purchase; laws battling violence against women; laws requiring the clean-up of low level nuclear waste; laws designed to ensure freedom of religion; laws saying states can't steal somebody's ideas and inventions.

This recent level of ``conservative'' judicial activism is more than six times the rate over the history of our Republic. Over the first seven decades of the Court's existence, in comparison, only two federal laws were held unconstitutional.

On his 1985 job application, Judge Alito wrote, ``I believe very strongly in ..... federalism''--the principle that has been used by this activist court to knock down Federal law after Federal law.

In an October 27, 1986, draft letter on behalf of Assistant Attorney General for Legislative Affairs, John Bolton, Alito urged President Reagan to veto the ``Truth in Mileage Act.'' Alito drafted these words for President Reagan:

My Administration believes that the Constitution intended to establish a limited Federal government, one that would not interfere with the vast array of activities that have been in the states' traditional concern. Over time, Congress has taken steps to eviscerate that constitutional scheme by legislating in numerous areas that should be governed by State law.

Judge Alito continued his federalist activism on the bench. As a judge, he has fully embraced--and even aggressively sought to broaden--the Supreme Court's federalism opinions, most centrally in his sole dissenting opinion in the Rybar case.

In that case, Judge Alito called federalism ``vital'' and said that ``even today, the normative case for federalism remains strong.'' The majority of his colleagues in that case sharply criticized Judge Alito's opinion:

While the dissent writes in the name of `constitutional federalism' it recognizes that even Lopez abjures such a requirement ..... but overlooks that making such a demand of Congress or the Executive runs counter to the deference that the judiciary owes to its two coordinate branches of government, a basic tenet of the constitutional separation of powers. Nothing in Lopez requires either Congress or the Executive to play Show and Tell with the Federal courts at the peril of invalidation of a Congressional statute.

At his hearings, Judge Alito did nothing to allay concerns that he would continue to push this activist federalism agenda if confirmed to the Supreme Court. For example, he refused to recognize the well-settled nature of some of the Court's bedrock Commerce Clause precedents. And as a Supreme Court Justice, he would no longer be bound to follow these precedents.

When asked about these issues by Chairman SPECTER and others, Judge Alito provided answers that reinforced my view that he has a very low regard for Congress's power to legislate. When Chairman SPECTER asked Judge Alito whether he would ``overturn [] congressional acts because of [Congress's] method of reasoning,'' Judge Alito gave the following answer:

I think that Congress's ability to reason is fully equal to that of the judiciary.

On its face, that may sound like a good answer; but it's not. Under the rational basis test--a cornerstone of constitutional law--the Supreme Court has greatly deferred to Congress's judgment and reasoning ability.

Under the rational basis test, the Supreme Court has historically and rightfully deferred to Congress's reasoning as to why it did what it did--after all, this is the branch that can hold hearings;

the branch that can call witnesses; and the branch that can build a record ..... all things the Court can't do. Judge Alito's answer seems to question this bedrock principle.

What does this mean? What is at stake here? Does Judge Alito agree with those on the intellectual right who are attempting to reverse a healthy consensus going back to the days of the Great Depression that our government can act as a shield to protect Americans from the abuse of powerful interests?

Michael Greve of the American Enterprise Institute puts it straight forwardly:

I think what is really needed here is a fundamental intellectual assault on the entire New Deal edifice. We want to withdraw judicial support for the entire modern welfare state.

What is at stake if this view gains ascendancy in our Supreme Court?

If the Court is allowed to second-guess congressional judgment, a broad range of vital Federal legislation could potentially hang in the balance.

Can we protect the air we breathe? Can we keep arsenic out of our drinking water? Can we keep tobacco companies from targeting our kids? Can we establish minimum national standards to provide equal opportunity and human dignity for society's most vulnerable members--our elderly, our disabled, women victimized by violence? That is all at stake.

Listen to the debates going on behind these constitutional issues. It's about devolution of government. It is about stripping--as a matter of law--the right of the Federal Government to do much of anything other than provide the national defense.

Justice Thomas has voted to strike down over 65 percent of the Federal laws that have been challenged before the Supreme Court. Justice Thomas wrote in one of his opinions recently, ``If anything, the wrong turn was the Court's dramatic departure in the 1930s.'' What most view as a ``healthy consensus,'' Judge Thomas and others call ``a wrong turn.''

What is at risk if this view of the Constitution ever gained full ascendancy? The Clean Air Act, the Safe Drinking Water Act, the Clean Water Act, and the Endangered Species Act, all rely on the Congress's commerce clause power.

The intellectual right is also determined to elevate private property at the expense of protecting our safety, well-being, and communities. Under their reading of the appropriate language in the Constitution--the takings clause of the fifth amendment--the only way to keep a chemical plant out of your neighborhood would be to compensate the chemical plant to not build because you are taking their property.

Our bedrock civil rights laws are also based on post-1937 constitutional interpretations.

There also could be no Federal minimum wage and no maximum hour laws. We wouldn't be having a debate about increasing the minimum wage because there wouldn't be one.

The consequence of this judicial philosophy is to shift power to the already powerful and eliminate the ability of the less powerful to use the democratic branches of government to rebalance the playing field.

And the intellectual right understands that in order to shift power, you need to focus on the courts. In 1988, a Reagan Justice Department document stated:

There are few factors that are more critical to determining the course of the nation and yet are more often overlooked than the values and philosophies of the men and women who populate the third co-equal branch of the government, the federal judiciary.

Obviously, every judge could impact the course of the Nation; but most important are the nine Justices on the United States Supreme Court.

And that is why Judge Alito was selected to our highest Court, a consequence of which will be to threaten Congress's power to protect the American people.

Third, Judge Alito lacks an understanding as to how prejudice plays out in the real world and has a very restrictive view of the antidiscrimination legislation Congress has passed.

Earlier this month, I was thinking about my vote as I was preparing to speak before a Martin Luther King, Jr., event. And I reread his letter from the Birmingham jail.

Everybody was telling him, ``We won. Give it up. Give it up.'' And here is what he wrote, laying out a standard by which to measure ourselves.

Dr. King wrote:

When you are harried by day and haunted by night by the fact you are Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you [are] forever fighting a degenerating sense of `nobodiness,' then you will understand why we find it difficult to wait.

We shouldn't wait. We should own up to the fact that prejudice is still around and has evolved. It's not the prejudice of the '60s when they would say, ``we don't want any blacks here,'' or more descriptive terms.

Now it's more subtle. They say, ``we're not sure you'd fit in.'' New words, for old sins.

All public officials, including judges, must understand prejudice still lurks in the shadows. Judge Alito's record demonstrates that he does not look into the shadows.

There is no question Judge Alito has ruled a number of times for the little guy, women, and minorities, but it's mostly in cases where the outcome was clear. When it was a close call, time and again Judge Alito ended up almost inevitably on the other side, many times dissenting from every one of his colleagues looking at the case.

Judge Alito disagreed with all 10 of his colleagues and would have overturned the jury in Barbara Sheridan's case, stating that an employer ``may not wish to disclose his real reasons'' for making personnel decisions.

In another solo dissent, he would have deferred to a corporation's ``subjective business judgment.'' His other colleagues said his approach would ``eviscerate'' antidiscrimination law.

Our courts are where the less powerful are supposed to get a fair shake. Our courts are supposed to safeguard individuals against powerful institutions; they are where a single individual--even one who's not wealthy or well-connected--is on the same footing as a powerful corporation.

I focused on discrimination cases to try to find out how Judge Alito reasoned. What I found troubled me, as did how he reasoned in other cases I asked him about, including the Family and Medical Leave Act case.

Judge Alito told me that he ``can't know everything about the real world.'' So, in this case, he discounted any gender-related connection to the sick leave provisions, despite the fact that one in four people taking sick leave under the Act were women with difficult pregnancies, and one of the reasons we wrote the law was because we know about the stereotyping of women.

Now, I don't think Judge Alito is a bad guy, but it is clear he has a blind spot; a dangerous blind spot for millions of Americans who still suffer from discrimination and stereotypes--however subtle or sophisticated.

To my colleagues who would say it is inappropriate to look at the judicial philosophy or substantive rulings of our nominees to the Supreme Court, I would ask the following rhetorical question. Can you imagine on that hot, steamy Philadelphia summer in 1787, with the Founders sitting on the second floor so no one could hear what they were doing; can you imagine them saying, by the way, we are going to have three coequal branches of government. Two of them will be scrutinized by the American people, and the presumption will be that they are not entitled to the office unless a majority of the people conclude they should hold the office. But as for the third branch, all we want to know is are they honorable, decent, and straightforward?

It is also useful to point out that it is right to subject nominees to the Supreme Court to more exacting standards than nominees to the lower courts, for as the highest court in the land, the Supreme Court dictates the judicial precedents that all lower courts are bound to respect.

As a result, there are hundreds of lower court nominees I would neither have personally nominated nor would have voted for confirmation to the Supreme Court, but whom I did support for lower courts.

But the Supreme Court is different. Because the Supreme Court is not bound by precedent in the way lower courts are--a point Judge Alito agreed to at his hearing--the judicial philosophy of Supreme Court nominees is not only fair game; it is crucial. This is the reason I have voted against a much higher percentage of Supreme Court nominees than lower court nominees during my time in the Senate, from Bork to Thomas, from Rehnquist to Roberts.

It is also important to remember that we currently have a Justice serving on the Supreme Court nominated by President Ford. We even have judges still serving in the lower courts appointed by Presidents Kennedy and Eisenhower. From the early 1800s, in fact, the average time federal judges spend on the bench has increased from 15 years to 24 years. By that count, a Justice Alito may still be handing down decisions in the year 2030.

Judge Alito, like Justice Thomas before him, has supported the theories of strict construction and originalism. He stated:

I think we should look to the text of the Constitution and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.

According to originalist logic, many Supreme Court decisions that are fundamental to the fabric of our country are simply wrong. Perhaps even more importantly, how would a Justice Alito deal with the big issues of the future: for instance, can microscopic tags be implanted in a person's body to track his every movement? Can patents be issued for the creation of human life? Can brain scans be used to determine whether a person is inclined toward criminal behavior? What about the questions we can't even conceive of from this vantage point?

Twenty or 30 years into the future, what would a Justice Alito be saying about important issues of the day? That is what makes today's vote so momentous.

And when I look at all the evidence before us--Judge Alito's writings, his statements, his judicial records, his opinions, and the little we learned about him in these hearings--I am forced to conclude that he should not serve on the Supreme Court. That is why I am voting no.

I yield the floor and thank my colleague.

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