EXECUTIVE SESSION
BREAK IN TRANSCRIPT
Mr. BAUCUS. Mr. President, on the corridor of the first floor of this Capitol building appear the words of Samuel Adams:
Freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country.
America still stands as the world's beacon of individual rights and liberties. Of that I know we are very proud. In large part, it is because of our Supreme Court. Our Founding Fathers were very wise setting up three separate branches of Government, including a very strong, independent judiciary, something many countries have struggled to attain, and their failure to achieve greatness is largely because they do not have a very strong, independent judiciary--and I mean independent.
The Senate protects the independence of the Supreme Court. How? By seriously exercising its responsibility to advise and consent on the nominations to that honorable Court. It is in the Constitution. We all take that duty seriously. We take it seriously by examining nominees. I personally have three criteria I use to examine nominees. They are professional competence, personal integrity, and a view of important issues within the mainstream of contemporary judicial thought. Let me review those three criteria.
First, professional competence. The Supreme Court must not be a testing ground for the development of a jurist's basic values. Nor should a Justice require further training. The stakes are simply too high. The nominee must be an established jurist already. Of that we must be very clear.
A second criteria is personal integrity. Nominees to our Nation's highest court must be of the highest caliber.
Third, the nominee should fall within the broad mainstream of contemporary judicial thought. Justices must possess the requisite judicial philosophy to be entrusted with the Court's sweeping constitutional powers. I believed that then-Judge and now Chief Justice Roberts met those tests. That is why I voted to support his confirmation.
Measuring Judge Alito against these three criteria, I have decided he does not meet these three tests. I do not think he is the right choice for my State of Montana or for our country.
This was not an easy decision. I grappled with it. I took my time. I have reviewed this nomination very carefully. I reviewed Judge Alito's prior writings and case rulings. I reviewed his Judiciary Committee testimony and I met with Judge Alito personally for over an hour.
Nominations to the Supreme Court rank among the Senate's most important decisions. Only the brightest, most objective minds should serve on the bench. But Judge Alito, in my judgment, stands outside the mainstream. I base my decision on what I think is right for my State and my country, and that is why I cannot support this nomination.
I reviewed the Judiciary Committee's hearings. The Judiciary Committee held 5 days of hearings. The committee questioned Judge Alito for 4 days. The committee heard from panels supporting and opposing his nomination. The Judiciary Committee members sought Judge Alito's views on many matters, including States rights, antidiscrimination laws, immigrant rights, due process, privacy, equal protection, ethical considerations, and broad judicial philosophy. Judge Alito responded eloquently, but he provided little detail. Members of the Committee attempted to pin Judge Alito down on many of his views, but Judge Alito did not offer detailed answers to their questions, at least not enough information to get a sense of who he was and where he was. Judge Alito appeared well prepared for these hearings--very well prepared, I might add. He appeared to have been advised to say as little as possible.
On January 24, the Judiciary Committee voted to report Judge Alito's nomination on a party-line vote. Unfortunate, but that is how it turned out; again, I think in part because of the nature of the nominee's views.
Let me take a few moments to examine Judge Alito's nomination in greater detail against the criteria I have laid out. First, professional competence. Mr. Alito received an excellent education. He holds an undergraduate degree from Princeton and a law degree from Yale School of Law. Judge Alito also has extensive experience as a judge, serving 15 years as a judge on the Third Circuit Court of Appeals. In fact, he has served more years on the bench than many nominees to the Supreme Court.
Mr. Alito's work prior to his judicial appointment focused exclusively on representing only one client, the U.S. Government. Some have raised questions about Judge Alito's experience protecting the rights of individuals rather than the Government. I conclude that Judge Alito is professionally competent to serve as a Supreme Court Justice.
Second, personal integrity. Several issues arise from Judge Alito's promise to avoid conflicts of interest as a judge. Some raised questions about Judge Alito's sensitivity to the avoidance of conflicts of interest, and some raised questions about how steadfastly Judge Alito keeps his commitments to the Senate.
In 1990, Judge Alito told the Senate Judiciary Committee that he would disqualify himself from any cases involving five matters with which he had personal connections. Those matters were the Vanguard Companies, the brokerage firm of Smith Barney, the First Federal Savings & Loan of Rochester, New York, his sister's law firm, and matters that he worked on or supervised at the United States Attorney's Office in New Jersey. In the period of 1995 to 2002, however, Judge Alito heard cases related to these matters.
Judge Alito initially blamed the conflicts of interest on a computer glitch. In subsequent correspondence with Senators on the Judiciary Committee, Judge Alito argued that his promise during his 1990 confirmation hearings referred to only his ``initial service.'' He argued that as his service continued, he found unduly restrictive his 1990 promise to recuse himself from cases involving entities in which he had a financial interest. And he argued that the mutual funds in which he was invested were not at issue in the case that he heard.
In his responses to questions concerning Vanguard, Judge Alito testified:
I think that once the facts are set out, I think that everybody will realize that in this instance I not only complied with the ethical rules that are binding on federal judges--and they are very strict--but also that I did what I've tried to do throughout my career as a judge, and that is to go beyond the letter of the ethics rules and to avoid any situation where there might be an ethical question raised.
But Judge Alito also admitted to Senator KENNEDY that ``if I had to do it all over again, I would have handled this case differently.''
Judiciary Committee members also asked about Judge Alito's membership in an organization called Concerned Alumni of Princeton. In his 1985 job application to the Reagan Justice Department, Judge Alito listed Concerned Alumni of Princeton as one of his extracurricular activities. Concerned Alumni of Princeton is an alumni group that took the extreme position of arguing against letting women and minorities attend Princeton. When questioned about Concerned Alumni of Princeton, Judge Alito claimed that he had no recollection of ever having been a member of the group.
Judge Alito testified:
I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time. ..... I have tried to think of what might have caused me to sign up for membership, and if I did, it must have been around that time. And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton and then until it was expelled from campus, and I thought that was very wrong.
Judge Alito's response about Concerned Alumni of Princeton raises concerns. In 1985, he apparently thought that his membership in this discriminatory organization was important enough to put on his page-and-a-half job application. His failure of memory now about that inconvenient position then raises questions about his credibility.
I am also disappointed that the White House has chosen not to release Judge Alito's tax returns for review by the Joint Committee on Taxation. On December 13 of last year, I introduced a bill that would require all Supreme Court nominees to submit 3 years of tax returns to the nonpartisan Joint Committee on Taxation for review on a confidential basis. The Joint Committee would report its findings on the nominee's tax compliance to the Finance and Judiciary Committee.
I might add that all nominees who are referred to the Finance Committee--from Cabinet Secretaries to Tax Court judges--have their tax returns reviewed for compliance. The reviews are discreet and confidential. We protect nominees' personal information. And I might say that in several cases we found errors of facts, matters that had to be attended to--and they were.
I understand the administration does a ``tax check'' for all Supreme Court nominees. They say they already do one. But I believe it is important for Congress to do its own due diligence on a nominee's tax returns. After all, this is a person who serves on the judiciary. That is a separate branch, not the executive, not the judicial. Both entities--namely both the Executive and the congressional--have a stake in making sure that the nominee's tax returns comply with the law.
I might also say, as I mentioned earlier, many so-called tax checks the administration has taken on other nominees have been very inadequate, full of mistakes, and we have had to correct them.
The Finance Committee views proof of the nominee's tax compliance as a testament to the nominee's integrity. What individuals do on their tax returns is a window on their ethical decision making. It is a good test of integrity and character.
The American people expect their national leaders to comply faithfully with the tax laws. A showing that leaders in the Federal Government faithfully comply with the tax laws sends an important message to people who might consider cheating on their taxes.
On January 19, President Bush appeared to agree. He told small business leaders in Sterling, VA, that public officials' tax returns should be public, because public officials have a ``high responsibility to uphold the integrity of the process.''
When I met with Judge Alito, I asked him to release his tax returns for such a review. He initially agreed to do so. But the White House official present at the meeting immediately intervened to block the release saying that he cannot do so.
The President was right when he said in Virginia that the release of public officials' tax returns contributes to the integrity of our whole tax system. And his White House was wrong to withhold that information on Judge Alito. I will continue to press future nominees to allow this kind of neutral review of their tax, returns because I think it is the right thing to do.
Let me turn now to judicial philosophy.
I do not believe that a Senator should oppose a nominee just because the nominee does not share that Senator's particular judicial philosophy. But the Senate must determine whether a nominee is in the broad mainstream of judicial thought. Is this a wise person, not an ideologue of the far left or the far right. The Senate must determine whether a nominee is committed to the protection of the basic Constitutional values of the American people.
What are those values?
One is the separation of powers of our Federal Government--including the independence of the Supreme Court itself.
Another is freedom of speech. Another is freedom of religion. Another is equal opportunity. Another is personal autonomy--the right to be left alone. And yet another is an understanding of the basic powers of the Congress to pass important laws like those providing for protection of the environment.
These are not unimportant matters. They are hugely difficult--all of these are.
The stakes are high. The Senate has a duty to ensure that the nominee will defend America's mainstream Constitutional values.
Judge Alito's record calls into question his ability to act as a check on executive powers. Recently, many have noted with concern the National Security Agency's surveillance of American citizens. At the Judiciary Committee's hearing, a number of questions focused on Judge Alito's interpretations of executive power, and the importance of the court's role as an effective check on overreaching presidential power and on government intrusion.
Judge Alito responded that ``no person is above the law.'' But he did not provide assurances that he would act on the Court to balance executive authority. His prior statements and court rulings indicate that he has an expansive view of the scope of executive power and a narrow view of Congress's authority to legislate.
In a 1984 memorandum, Mr. Alito argued that the Attorney General deserves blanket protection from lawsuits when acting in the name of national security, even when those actions involve the illegal wiretapping of American citizens.
In a 2000 speech to the Federalist Society, Judge Alito said that ``the theory of a unitary executive ..... best captures the meaning of the Constitution's text and structure.'' Judge Alito said: ``The President has not just some executive powers, but the executive power--the whole thing.'' Some have thus interpreted the theory of a unitary executive to support the proposition that the Constitution reserves all executive power exclusively for the President. The theory would thus prohibit other branches of Government from carrying out any power that one could characterize as having executive characteristics. This view of executive power could limit Congress's ability, for example, to create independent agencies such as the SEC with oversight duties. And some believe that this view could allow the President the ability to legislate through signing statements.
When Senator LEAHY pressed Judge Alito about his view of the unitary executive as well as his strategy of utilizing Presidential signing statements to expand executive authority, Judge Alito responded that he did not see a connection between these two principles.
In a 1986 memo, Mr. Alito argued that ``the President's understanding of the bill should be just as important as that of Congress.'' He argued that signing statements would allow the President to ``increase the power of the Executive to shape the law.''
President Bush has employed this method of Presidential signing statements to document his interpretation of congressional legislation, again even though he is certainly not a member of Congress. He didn't write the law. How could he say what Congress intended to do? He has, in fact, issued 108 signing statements expanding his executive interpretation of the laws passed by Congress.
Judge Alito's judicial rulings on the Third Circuit Court of Appeals, as well as his 1985 job application to the Reagan Justice Department, do not indicate an expansive view of civil rights and civil liberties. In his 1985 job application, Judge Alito wrote that he developed a ``deep interest in constitutional law, motivated in large part by disagreement with the Warren Court.'' Many credit the Warren Court with expanding civil rights and civil liberties.
Judge Alito has narrowly construed constitutional criminal procedure protections, such as the fourth amendment restrictions on search and seizure. In the case of Doe v. Grody, for example, Judge Alito wrote a dissent. He argued that the strip search of a mother and her 10-year-old daughter without a proper search warrant did not violate their constitutional rights.
That is his dissent, that is his view.
Judge Alito testified:
It was a rather technical issue about whether the affidavit that was submitted by the police officers was properly incorporated into the warrant for purposes of saying who could be searched. And I thought that it was, and I thought that it was quite clear that the magistrate had authorized a search for people who were on the premises. That was the point of disagreement.
Judge Alito also refused to agree that Congress cannot take away the Supreme Court's ability to protect Americans' First Amendment rights.
In contrast, both Chief Justice Roberts and former Chief Justice Rehnquist have agreed to the position that Congress cannot take away the Supreme Court's ability to protect Americans' first amendment rights. This is sometimes called ``court stripping.'' It is extremely critical, extremely important. It is no academic matter. Basically it is that the Congress can say to the Supreme Court it does not have jurisdiction to hear any cases with respect to, say, the first amendment brought by an individual citizen; that is, Congress can take away the Court's authority to interpret the Constitution with respect to the first amendment. That is what that view held. I think it is an outrageous view. I don't understand how anybody can tentatively hold that view.
Judge Alito defended his viewpoint, saying this is an academic debate on which scholars are divided. I am astounded at that answer.
Judge Alito's rulings on civil rights cases appear to set a high bar for proving unequal treatment. A review of his record indicates that plaintiffs rarely ever prevail. Senator COBURN defended Judge Alito's record by noting that Judge Alito ruled for the ``little guy'' in a list of 13 cases. Judge Alito's record, however, includes almost 500 published and unpublished opinions. Thirteen is not very many out of 500.
Knight Ridder conducted a survey of Judge Alito's published opinions. They concluded that:
although Judge Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business.
I am also concerned by Judge Alito's responses to privacy questions at the Judiciary Committee hearings which conflict with his past statements. In his 1985 job application, Mr. Alito wrote:
It has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that ..... the Constitution does not protect a right to an abortion.
In June 1985, Mr. Alito wrote a 17-page memo providing a strategy for using the Government's brief in the case of Thornburgh v. American College of Obstetricians and Gynecologists as an ``opportunity to advance the goal of bringing the eventual overruling of Roe v. Wade, and in the meantime, of mitigating its effects.'' Judge Alito advocated a strategy of creating a series of burdens on a woman's right to choose. In the hearings, however, Judge Alito responded to Senator FEINSTEIN that he ``did not advocate in the memo that an argument be made that Roe be overruled.''
In his hearings, Judge Alito acknowledged that the Constitution protects a right to privacy generally. He agreed with the premise in the Griswold case, which protects the right to use contraceptives. It is unclear, however, how widely the right to privacy extends for Judge Alito.
When pressed, Judge Alito refused to acknowledge that the Constitution protects a woman's right to choose. Judge Alito explained that he would approach privacy cases with an open mind.
On the Third Circuit Court of Appeals, Judge Alito also wrote a dissent in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey. In that dissent, he argued that upholding Pennsylvania's restrictive spousal notification requirement did not place an undue burden on women.
Yet Justice O'Connor, writing for the majority of the Supreme Court, wrote that the spousal notification requirement ``embodies a view of marriage consonant with the common law status of married women, but repugnant of our present understanding of marriage and of the nature of the rights secured by the Constitution.''
When questioned specifically about the landmark case of Roe v. Wade, Judge Alito commented that he understands the principle of stare decisis--that courts should honor precedents. But he also said that this principle is not ``an inexorable command.''
Here again, Judge Alito's statements contrast with then-Judge Roberts' comments during his hearings. Judge Roberts said in his hearings that Roe v. Wade was settled law. When Senators asked Judge Alito about Judge Roberts' statements, Judge Alito responded that ``I think it depends on what one means by the term `settled.' '' Judge Alito engaged in some discussion about what ``settled law'' means to him. His interpretation of how settled the right to privacy is remains unclear.
Judge Alito answered questions about his judicial philosophy by testifying that precedent is entitled to respect. But he would not provide great detail about specific precedents such as Roe v. Wade. Senator FEINSTEIN pushed Judge Alito to clarify the discrepancy between answering cases about one- person one-vote, but not responding to questions about abortion and precedent. Judge Alito did not give a clear answer.
Judge Alito appears to support deference to the Framers' original intent. Judge Alito testified:
I think we should look to the text of the Constitution, as we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption.
That is called originalism.
Judge Alito's judicial philosophy of original intent raises concerns about whether the Court could adapt to a changing society. And his philosophy indicates that he may not take an active role in extending Constitutional protections to new situations in the 21st century.
I have some concern about one ruling that Judge Alito issued related to the environment. In 2001, in the case of W.R. Grace & Company v. United States Environmental Protection Agency, Judge Alito threw out the Environmental Protection Agency order under the Safe Drinking Water Act for an ammonia-spill cleanup near Lansing, MI. Judge Alito concluded that the government cleanup standard was ``arbitrary and capricious.'' He explained that the reason for not upholding the order was that the EPA lacked a rational basis for imposing the clean-up standards on the company. This case raises sensitivities for me, because in my home state, W.R. Grace has acted with complete disregard of the health effects for Montanans in Libby, where illness from tremolite asbestos caused by W.R. Grace has hit the community hard.
In 1988, Judge Alito commented that Robert Bork ``was one of the most outstanding nominees of this century.'' When I asked Judge Alito about that, he did not provide an adequate response. He ducked the question.
He did not respond adequately to many of my questions. He evaded my questions, questions I asked in good faith, intended to elicit what kind of Justice he might be.
He was vague. He seemed not to want to talk to me. He seemed not to want to have an honest discussion about what kind of person he is. That is why I find it very difficult to support this nominee.
I supported Judge Roberts for Chief Justice in large part because of Judge Roberts' hearing testimony and responses when he met with me personally.
Judge Alito does not meet my standards for a Supreme Court Justice. Judge Alito has explained that he will be ``the same person that I was on the Court of Appeals.'' Judge Alito's record demonstrates that he is a very conservative judge who rules often in favor of expanding executive authority and of limiting civil rights and civil liberties. If the Senate confirms Judge Alito to Justice O'Connor's seat, he could change the balance of the Court, tipping it in a direction that could reverse or restrict important constitutional protections.
Based on all this information, I will vote against this nomination. I believe that Judge Alito is out of the mainstream. He is not the right choice for our country.
On a corridor on the first floor of this Capitol building appear the words of former Supreme Court Justice Louis D. Brandeis, who said:
The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
I shall thus vote against this nomination to carry out seriously my responsibility as a Senator to Advise and Consent on nominations to that honorable Court. I shall vote against this nomination because I believe the nominee is well-meaning, but without sufficient understanding of the importance of our cherished rights and liberties. And I shall vote against this nomination to help keep this great country the world's beacon of freedom.
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