EXECUTIVE SESSION; Congressional Record Vol. 152, No. 5
(Senate - January 25, 2006)

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[Pages S35-S108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF SAMUEL A. ALITO, JR., TO BE AN ASSOCIATE JUSTICE OF THE 
                   SUPREME COURT OF THE UNITED STATES

  Mr. FRIST. Mr. President, at this point, I ask unanimous consent that 
the Senate proceed to executive session for the consideration of 
Calendar No. 490, the nomination of Samuel Alito to be an Associate 
Justice of the Supreme Court of the United States.


 =========================== NOTE =========================== 

  
  On page S35, January 25, 2006, under ``Executive Session'', the 
following appeared: Calendar No. 486.
  
  The online version has been corrected to read: Calendar No. 490


 ========================= END NOTE ========================= 

  The PRESIDENT pro tempore. Is there an objection?
  Without objection, it is so ordered.
  The Senate will proceed to executive session, and the clerk will 
report.
  The legislative clerk read the nomination of Samuel A. Alito, Jr., of 
New Jersey, to be an Associate Justice of the Supreme Court of the 
United States.
  Mr. McCAIN. Mr. President, will the majority leader yield to me for 1 
minute while I bring up an issue that we were discussing yesterday?

[[Page S36]]

  Mr. FRIST Mr. President, I will be happy to yield.
  The PRESIDENT pro tempore. The Senator from Arizona.


                            Lobbying Reform

  Mr. McCain. Mr. President, I thank the majority leader for his 
efforts to move the issue of lobbying reform forward. We had a good 
meeting yesterday amongst other Members, and Senator Lieberman and I 
and others also, as the majority leader knows, have introduced 
legislation. There has been input made by other Members, and I know the 
majority leader joins me in saying we need to put together a bipartisan 
coalition to address this issue as quickly as possible. We need to sit 
down with Members of both sides of the aisle in whatever format the 
majority leader and the Democratic leader decide so we can get to work 
right away and get legislation done to curb the lobbying excesses that 
have been brought to light that need to be fixed.
  At another time I would like to talk with the majority leader about 
the issue of earmarks, but I thank the majority leader for urging rapid 
action on this issue. We do have a basis for negotiation, and I hope we 
will be able to immediately sit down with Members from the other side 
of the aisle, come to conclusions and agreements--since it is pretty 
obvious the majority of the fixes that need to be made--and move 
forward. I thank the majority leader and the Democratic leader for 
urging rapid action in addressing this issue which is causing us, our 
image and our reputation to be hurt very badly in the eyes of the 
American people.
  I thank the majority leader.
  Mr. FRIST. Mr. President, just a very short comment. I have been in 
discussion with the Democratic leader on this issue as well. As our 
distinguished colleague from Arizona has just said, we on the 
Republican side have put together a working group in terms of how to 
address this very important issue. It has to be done in a bipartisan 
way. America is looking at this body to respond to abuses that we have 
all seen in our Government today. I think we all need to be committed 
to address this in a bipartisan way.
  We have a great structure to build upon in the legislation that has 
been introduced in a bipartisan way with Senators McCain and Lieberman. 
I look forward to working with both sides of the aisle in developing an 
appropriate response over the coming days.
  Mr. President, I now ask unanimous consent that the time from 10 a.m. 
until 8 p.m. tonight be divided, with the time from 10 to 11 under the 
control of the majority leader or his designee, the time from 11 to 
noon under the control of the Democratic leader or his designee, with 
each hour rotating back and forth in that same manner. I further ask 
unanimous consent that on Thursday this same division occur, with the 
first hour from 10 to 11 under the control of the Democratic leader or 
his designee.
  The PRESIDENT pro tempore. Is there an objection?
  Without objection, it is so ordered.
  Mr. FRIST. Mr. President, today, I am honored to open debate on the 
nomination of Judge Sam Alito to be the 110th Associate Justice of the 
Supreme Court of the United States.
  I enthusiastically support his confirmation.
  Judge Alito deserves to become Justice Alito. Those who oppose him 
are smearing a decent and honorable man and imposing an unfair 
political standard on all judicial nominees.
  I support Judge Alito because he is exceptionally qualified to be a 
Supreme Court Justice. I support Judge Alito because he is a man of 
integrity and modest judicial temperament. I support Judge Alito 
because he has a record that demonstrates a respect for judicial 
restraint, an aversion to political agendas on the bench, and a 
commitment to the rule of law and the Constitution.

  There is no question that Judge Alito is exceptionally well 
qualified. He is measured, brilliant, deeply versed in and respectful 
of the law, and a man of character and integrity. But there is another 
reason I support Judge Alito. I support Judge Alito because denying him 
a seat on the Supreme Court could have devastating long-term 
consequences for our judicial nomination process. Let me address these 
issues one at a time.
  Exceptional qualifications: From the moment President Bush nominated 
him last October, Judge Alito's exceptional qualifications had a 
``wow'' factor that impressed Senators of both parties. In every 
respect, Judge Alito is a nominee who meets the highest standards of 
excellence.
  He is a graduate of Princeton and Yale Law School. He has dedicated 
his 30-year legal career to public service as a Federal prosecutor and 
assistant to the Solicitor General, where he argued 12 cases before the 
Supreme Court, and for the last 15 years as a Federal judge on the 
Third Circuit in New Jersey. He has been unanimously confirmed by this 
body not once but twice. On the Federal bench, he has participated in 
more than 3,500 cases and has written more than 300 opinions. The 
American Bar Association gave Judge Alito its highest rating, 
unanimously ``well qualified.'' He is a man of integrity and modest 
judicial temperament.
  Exceptional qualifications only begin to reveal why Sam Alito should 
be confirmed to the Supreme Court. Throughout his career as a 
prosecutor and a judge, Sam Alito earned a reputation as a man of 
integrity who was fairminded and evenhanded. He earned the trust and 
respect of his colleagues, Republicans, Democrats, and Independents. 
That is one reason seven Federal judges endorsed his nomination and 
testified on his behalf.
  Through the Judiciary Committee hearings, we saw a clear picture 
emerge of Judge Alito's modest judicial temperament. Despite enduring 
relentless questioning of his credibility, integrity, and personal and 
political views, Judge Alito remained unflappable, never once raising 
his voice or becoming confrontational, focusing clearly and 
articulately on the facts, the law, and the constitutional questions 
presented to him. He understands the limited role of a judge--judicial 
restraint, impartiality, and a commitment to the rule of law.
  In addition to all of his exceptional qualifications, integrity, and 
temperament, Judge Alito deserves confirmation because he understands 
the limited role of a judge to interpret the law and not legislate from 
the bench. He practices judicial restraint and refuses to prejudge 
cases or apply a personal political agenda on the bench. In his hearing 
before the Judiciary Committee, this philosophy was clear. He said:

       A judge can't have an agenda. A judge can't have any 
     preferred outcome in any particular case. . . . The judge's 
     only obligation--and it's a solemn obligation--is to the rule 
     of law, and what that means is that in every single case, the 
     judge has to do what the law requires.

  In his 15 years on the bench, Judge Alito has done exactly that. Just 
listen to the words of one of Judge Alito's former law clerks, a 
registered Democrat who, by the way, still has a ``Kerry for 
President'' bumper sticker on his car. His words:

       Until I read [Judge Alito's] 1985 Reagan job application, I 
     could not tell you what his politics were . . . When we 
     worked on cases, we reached the same result about 95 percent 
     of the time . . . It was my experience that Judge Alito was 
     (and is) capable of setting aside any personal biases he may 
     have when he judges. He is the consummate professional.

  Long-term consequences for the judicial nominations process: Perhaps 
the most important reason to support Judge Alito has less to do with 
Judge Alito himself and more to do with our judicial nominations 
process. Regardless of their political views, Senators should treat 
judicial nominees with dignity, respect, and fairness, not just because 
it is the right thing to do but because a process that politicizes and 
degrades judicial nominees will drive our very best and our brightest 
away from the bench. I am profoundly disappointed in the unfair and 
unseemly treatment of Judge Alito during this process. His judicial 
record has been distorted and mischaracterized. He has been labeled as 
nonresponsive during his hearings, despite providing candid and 
articulate answers to more than 650 questions and over 18 hours of 
testimony--far more than many, perhaps any Supreme Court nominee in the 
past--and most sadly, he has been the victim of a calculated but 
unsuccessful campaign to smear his character, his integrity, and his 
credibility.
  In an editorial in support of Judge Alito, published on January 15, 
the

[[Page S37]]

Washington Post expressed this concern, even though they would have 
chosen a different nominee than Judge Alito:

       He would not have been our pick for the high court. Yet 
     Judge Alito should be confirmed, both because of his positive 
     qualities as an appellate judge and because of the dangerous 
     precedent his rejection would set . . . Supreme Court 
     confirmations have never been free of politics, but neither 
     has their history generally been one of party-line votes or 
     of ideology as the determinative factor. To go down that road 
     is to believe that there exists a Democratic law and a 
     Republican law--which is repugnant to the ideal of the rule 
     of law. However one reasonably defines ``mainstream'' of 
     contemporary jurisprudence, Judge Alito's work lies within 
     it. While we harbor some anxiety about the direction he may 
     push the court, we would be more alarmed at the long-term 
     implications of denying him a seat. No President should be 
     denied the prerogative of putting a person as qualified as 
     Judge Alito on the Supreme Court.

  I ask unanimous consent that the full text of the Washington Post 
editorial of January 15 entitled ``Confirm Samuel Alito on the Supreme 
Court'' be printed in the Record at the conclusion of my remarks.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. FRIST. Thirteen years ago, a Republican minority in the Senate 
voted to confirm the qualified nominee of a Democratic President by an 
overwhelming vote of 96 to 3. Despite a well-documented liberal record, 
Justice Ruth Bader Ginsburg sits on the Supreme Court today because 
Republican Senators chose to focus on her qualifications and not to 
obstruct her nomination based merely on her judicial philosophy or 
ideology. I urge my colleagues to vote to confirm Judge Alito by 
applying that same fair standard. As we debate this week, I hope we can 
put aside partisan rhetoric and the politics of personal destruction 
and stand on principle. Qualified judicial nominees such as Judge Alito 
deserve respectful debate and a fair up-or-down vote on the Senate 
floor. As Senators, it is our fundamental constitutional duty and 
responsibility.

                               Exhibit 1

               [From the Washington Post, Jan. 15, 2006]

                          Confirm Samuel Alito

       The Senate's decision concerning the confirmation of Samuel 
     A. Alito Jr. is harder than the case last year of now-Chief 
     Justice John G. Roberts Jr. Judge Alito's record raises 
     concerns across a range of areas. His replacement of Justice 
     Sandra Day O'Connor could alter--for the worse, from our 
     point of view--the Supreme Court's delicate balance in 
     important areas of constitutional law. He would not have been 
     our pick for the high court. Yet Judge Alito should be 
     confirmed, both because of his positive qualities as an 
     appellate judge and because of the dangerous precedent his 
     rejection would set.
       Though some attacks on him by Democratic senators and 
     liberal interest groups have misrepresented his 
     jurisprudence, Judge Alito's record is troubling in areas. 
     His generally laudable tendency to defer to elected 
     representatives at the state and federal levels sometimes 
     goes too far--giving rise to concerns that he will prove too 
     tolerant of claims of executive power in the war on terror. 
     He has tended at times to read civil rights statutes and 
     precedents too narrowly. He has shown excessive tolerance for 
     aggressive police and prosecutorial tactics. There is reason 
     to worry that he would curtail abortion rights. And his 
     approach to the balance of power between the federal 
     government and the states, while murky, seems unpromising. 
     Judge Alito's record is complicated, and one can therefore 
     argue against imputing to him any of these tendencies. Yet he 
     is undeniably a conservative whose presence on the Supreme 
     Court is likely to produce more conservative results than we 
     would like to see.
       Which is, of course, just what President Bush promised 
     concerning his judicial appointments. A Supreme Court 
     nomination isn't a forum to refight a presidential election. 
     The president's choice is due deference--the same deference 
     that Democratic senators would expect a Republican Senate to 
     accord the well-qualified nominee of a Democratic president.
       And Judge Alito is superbly qualified. His record on the 
     bench is that of a thoughtful conservative, not a raging 
     ideologue. He pays careful attention to the record and 
     doesn't reach for the political outcomes he desires. His 
     colleagues of all stripes speak highly of him. His integrity, 
     notwithstanding efforts to smear him, remains unimpeached.
       Humility is called for when predicting how a Supreme Court 
     nominee will vote on key issues, or even what those issues 
     will be, given how people and issues evolve. But it's fair to 
     guess that Judge Alito will favor a judiciary that exercises 
     restraint and does not substitute its judgment for that of 
     the political branches in areas of their competence. That's 
     not all bad. The Supreme Court sports a great range of 
     ideological diversity but less disagreement about the scope 
     of proper judicial power. The institutional self-discipline 
     and modesty that both Judge Alito and Chief Justice Roberts 
     profess could do the court good if taken seriously and 
     applied apolitically.
       Supreme Court confirmations have never been free of 
     politics, but neither has their history generally been one of 
     party-line votes or of ideology as the determinative factor. 
     To go down that road is to believe that there exists a 
     Democratic law and a Republican law--which is repugnant to 
     the ideal to the rule of law. However one reasonably defines 
     the ``mainstream'' of contemporary jurisprudence, Judge 
     Alito's work lies within it. While we harbor some anxiety 
     about the direction he may push the court, we would be more 
     alarmed at the long-term implications of denying him a seat. 
     No president should be denied the prerogative of putting a 
     person as qualified as Judge Alito on the Supreme Court.

  Mr. FRIST. I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Cornyn). Without objection, it is so 
ordered.


                      Judiciary Commmittee Agenda

  Mr. SPECTER. Mr. President, before proceeding to the nomination of 
Judge Alito to the Supreme Court of the United States, I think it 
worthwhile to comment very briefly on some of the scheduling items for 
the Judiciary Committee.
  As we all know, the PATRIOT Act was extended from December 31 until 
February 3. I circulated a letter today among our colleagues, and I ask 
unanimous consent that it be printed in the Record at the conclusion of 
my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. SPECTER. It outlines the alternatives which we face at the 
present time. One is to let the act expire on February 3, which I think 
no one would like. Second would be to extend the current bill for a 
period of time. We will be discussing a 4-year extension. Or, third, to 
have cloture imposed on the filibuster which is in effect and then vote 
to utilize the conference report and pass the act. It is always 
possible to take another course of action if there is unanimous 
consent.
  The conference is technically discharged at this point, and the House 
of Representatives has made it emphatically clear that they have gone 
as far as they think it reasonable to go on the compromises.
  There have been very substantial compromises worked out. At one 
juncture, there were three additional requests which we took to the 
House and got all of them, the most important of which was the sunset 
provision changed from 7 years to 4 years. Then additional changes were 
requested, and they could not be accommodated.
  That is where we stand at the present time. I know there are 
discussions underway to try to get some additional changes made. My own 
view is those prospects are somewhere between bleak and nonexistent.
  Mr. LEAHY. Mr. President, will the Senator yield on that point for a 
moment?
  Mr. SPECTER. Certainly.
  Mr. LEAHY. Mr. President, the distinguished senior Senator from 
Pennsylvania has worked as hard on this issue as anybody here. As the 
distinguished Presiding Officer knows, the original PATRIOT Act was 
written by myself, the distinguished Senator from Pennsylvania, and 
others. It was the distinguished Republican leader from Texas, Dick 
Armey, and I who put in the sunset provisions so we would be forced to 
come back and look at different parts of it. Much of the PATRIOT Act is 
permanent law, but we should look at certain parts. Those are the parts 
that are now most in contention because they will expire.
  The distinguished Senator from Pennsylvania and I were at the White 
House on another matter recently and talked briefly about this with the 
President. I know the distinguished Senator from New Hampshire, Mr. 
Sununu, has been working very hard with us. I think the changes that 
still need to be made are relatively minor. I urge parties, especially 
all of us who helped write the original PATRIOT

[[Page S38]]

Act, to make that one last effort. That would include, of course, the 
White House and the other body to do it.
  The chairman of the Judiciary Committee has worked extraordinarily 
hard on this legislation. I, like so many others, am willing to 
continue to work with him. I think with a little nudge from the White 
House--that nudge may have to be a quiet one among the principals in 
both bodies--that can be done. I commend the Senator from New Hampshire 
for the work he is doing on this issue.
  I thank the chairman of the Judiciary Committee for yielding, even 
though it is on his time.
  Mr. SPECTER. Mr. President, I thank the Senator from Vermont for his 
comments. I thank him for the hard work he has done in the past year on 
the Judiciary Committee on many matters, including the PATRIOT Act. I 
think we have set a tone and have been able to agree on almost all 
matters. If there can be some modifications made, agreeable on all 
sides, before February 3, I would be more than willing to be a party to 
that.
  My preference is the bill which passed the Senate, but we have a 
bicameral system, and the House has its own point of view, and I think 
they have been reasonable. We have a good bill, certainly a bill in the 
conference report which is vastly improved with respect to civil rights 
over the current bill. But I am not in favor of having short-term 
extensions. If we have another short-term extension, it will beget 
another short-term extension. I want to fish or cut bait before 
February 3 on that issue.
  The Judiciary Committee, on the second item, is scheduled to hold a 
hearing on the wartime Executive power and NSA's surveillance authority 
on February 6. I think my colleagues will be interested in a letter 
which I have written to the Attorney General dated January 24, 
yesterday, outlining a series of some 15 questions to be addressed in 
advance of the hearing or at the time of the Attorney General's opening 
statement--at least that request--to try to set the parameters and 
issues of that hearing. I ask unanimous consent that the letter to 
Attorney General Gonzalez be printed in the Record at the conclusion of 
my statement today.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 2.)
  Mr. SPECTER. A third item of Judiciary Committee scheduling involves 
the asbestos reform bill. The leader has stated his intention to bring 
it up on February 6. As we customarily do, we meet in the afternoon. I 
intend to absent myself from the Judiciary Committee hearing on NSA to 
come make an opening statement. Then we will proceed on that bill.
  Senator Leahy and I sent a letter yesterday to our colleagues asking 
that, if there are amendments to be offered, and I am sure there will 
be, that they be provided to the managers in advance so we can organize 
proceeding on the bill and seek time agreements. That has been a very 
difficult and contentious issue, but it was passed out of the committee 
last year after numerous executive sessions marking up the bill and 
extended debate on a variety of amendments. Many were accepted, some 
were rejected.
  The Supreme Court of the United States has called upon Congress to 
address this issue. It does not lend itself to a solution in the courts 
on class actions. There are thousands of people who are suffering from 
the injuries of asbestos--mesothelioma, which is deadly, and 
asbestosis, and others--who cannot recover because their employers are 
bankrupt. Over 75 companies have gone bankrupt, and more are threatened 
with bankruptcy.
  The bill which we have reported to the floor is the product of 
enormous effort and enormous analysis by the Judiciary Committee and 
beyond. It was voted out of committee 13 to 5. Senator Leahy and I have 
convened meetings, along with the assistance of Judge Becker, a senior 
Federal judge--he had been Chief Judge of the Court of Appeals for the 
Third Circuit--where we have brought in the so-called stakeholders: the 
insurers, the trial lawyers, the AFL/CIO, and the manufacturers. They 
worked through that bill which has festered in the Congress for more 
than two decades. I first saw it when Gary Hart, then-Senator from 
Colorado, brought in Johns Manville, which was a key constituent of 
his, which was having a problem. I believe it is clear that if we are 
not able to act now, it will be decades before this kind of an effort 
can be mustered again.
  I have one additional comment on the scope of the work. After it was 
passed out of committee in late July of 2003, I asked Judge Becker to 
assist as a mediator. We had meetings in his chambers in Philadelphia--
two full days in August. We have had about 50 meetings since, attended 
by sometimes more than 40 or 50 people.
  We are still open for business to consider modifications. We know the 
legislative process is one where, when it comes to the floor, there are 
amendments. There are more ideas. But this is an issue which is of 
tremendous urgency. The President has spoken about it. The President 
wants it enacted. The majority leader is firmly behind legislation by 
the Senate. The Speaker of the House of Representatives has spoken 
about it. But candidly and openly, we face very powerful interests who 
are opposed to any action.
  There are very substantial dollars involved. There is very 
substantial pain and suffering involved. Those of us who have worked on 
the bill--led by the distinguished Senator from Vermont and myself and 
others--have gone to the well and gone to the wall. We still are open 
for business and invite comments. But anybody who has amendments, we 
would like to hear from you as early as possible so we can consider 
them, try to work out time agreements, and try to move the bill ahead 
in a managers' context.

  I am glad to yield to Senator Leahy.
  Mr. LEAHY. Mr. President, again I agree with what the distinguished 
Senator from Pennsylvania has said. This is a bipartisan bill. In fact, 
to emphasize it, he and I have sent a letter to all of our colleagues, 
signed jointly, asking them, if they have amendments which they plan to 
offer, to let us know.
  It should be emphasized that not only did we have hours upon hours of 
hearings, but we had many open meetings in the office of the Senator 
from Pennsylvania, in my office, and the offices of others. We made 
sure that the stakeholders, all the stakeholders were able to come to 
those meetings. We also made sure that the office of every Senator--
everybody who expressed any interest, Republican or Democrat--was 
invited to those meetings. They were wide open. In fact, almost all of 
the Senators on both sides of the aisle either attended those meetings 
or had staff attend those meetings.
  At these meetings that we had, again, every single stakeholder was 
involved. It was open. It was bipartisan. That was made clear by the 
Senator from Pennsylvania from the beginning, that they would have to 
be open and bipartisan. He, as would be expected, kept his commitment 
all the way through.
  I would highlight two things the Senator from Pennsylvania just said 
that were of concern to me. One, if we do not do it now, we lose the 
opportunity. I believe it will be decades before anybody would put 
together the kind of coalition that it has been possible to put 
together. The other thing he said was that it is not just some of the 
powerful financial stakes involved, but it is a powerful amount of 
suffering that is going on by the people who are suffering from 
asbestos poisoning in all the different forms. They are the ones who 
are held in limbo throughout all this time. We can bring some relief to 
them now; not the possibility of relief 10 years from now after a 
series of lawsuits go through, but now.
  We have had members of the Supreme Court, ranging from the late Chief 
Justice William Rehnquist to Justice Ruth Bader Ginsburg--certainly two 
differing philosophies--who have called upon the Congress to bring 
about a legislative solution because our courts are unable to handle 
all the cases that might come up. Let's be clear about that. There are 
some who say we are litigating forever on this, but the fact is our 
courts are unable to handle it. It cries out for a legislative 
solution.
  I urge people to come to this with an open mind, vote it up or down, 
vote the amendments up or down. I have heard some opponents quoted as 
being prepared to demagog this bipartisan bill. This bill did not just 
suddenly spring

[[Page S39]]

out of nowhere; it was worked on in such a way that it is a bipartisan 
bill. And I might say there is pain in it for everybody. Everybody has 
had to give something in this. The Senator from Pennsylvania did not 
get everything he wanted. I did not get everything I wanted. The 
stakeholders who came to the table, virtually all of them openly and 
honestly, they gave up a lot on it. But the people who are suffering 
from asbestos poisoning in whatever form are the ones waiting for us to 
act.
  The time is right to act. We can pass a bipartisan bill. I believe 
the other body would be glad to see such a bill. The President has 
stated publicly and he certainly stated privately to both Senator 
Specter and myself that he is behind taking action. Everybody cries out 
for some bipartisan action around here. This is one of those cases 
where Republicans and Democrats could come together, where the Congress 
and the White House could work together, and actually those who benefit 
will be the people suffering. We ought to get on with it.

                               Exhibit 1


                                                  U.S. Senate,

                                 Washington, DC, January 25, 2006.
       Dear Colleague: The Patriot Act is due to expire on 
     February 3, 2006 after being extended from its prior 
     expiration date of December 31, 2005.
       The Senate is faced with three options:
       1. Invoke cloture on the Conference Report and pass the 
     Conference Report as the House of Representatives has already 
     done;
       2. Extend the present Act for a period of time. The current 
     discussion with the House is to extend it for four years; or
       3. Let the Act expire.
       To my knowledge, no one wants to let the Act expire.
       Technically, the House/Senate Conference has been 
     discharged with the filing of the Conference Report. While it 
     is always possible to take another course of action such as 
     changing the Conference Report if there is unanimous 
     agreement, the House has taken the emphatic position that 
     there will be no more concessions from the Conference Report 
     and the House is very firm in this position.
       Everyone, including those who are urging further House 
     concessions, agrees that the Conference Report is much more 
     protective of civil rights than the current Patriot Act. I am 
     enclosing a side-by-side comparison. While I would have 
     preferred the Senate bill, we do have a Bicameral System and 
     the Conference Report was hammered out after extensive 
     negotiations with significant concessions by the House. 
     Senate proponents for further House concessions had, at one 
     point, stated their willingness to sign the Conference Report 
     if three conditions were met including a change in the sunset 
     date from seven to four years. Those conditions were met and 
     then there was insistence on further concessions.
       I urge the Senate to invoke cloture and pass the Conference 
     Report as the best of the available alternatives.
           Sincerely,
     Arlen Specter.
                                  ____


                        Side-by-Side Comparison

------------------------------------------------------------------------
      Conference report (2006)          Current law (PATRIOT Act 2001)
------------------------------------------------------------------------
    Requests for Business Records (``Library Provision'') Section 215
------------------------------------------------------------------------
Application to the FISA Court for    No requirement of any factual
 an order under Section 215           showing.
 requires a statement of facts.
Records can be obtained only if the  Records can be obtained if the FBI
 FISA Judge finds that the            merely ``specif[ies] that . . .
 statement of facts shows             they are sought for an authorized
 ``reasonable grounds to believe      investigation.''
 that the tangible things sought
 are relevant to an authorized
 investigation''.
May not be used for threat           May be used for threat assessments.
 assessments.
Encourages the FBI to demonstrate a  No analogous incentive for the FBI
 connection to terrorism or           to demonstrate a connection to
 espionage by providing a             terrorism or espionage.
 presumption of relevance if the
 records sought pertain to: (a) a
 foreign power or an agent of a
 foreign power; (b) the activities
 of a suspected agent of a foreign
 power who is the subject of the
 investigation; or (c) an
 individual in contact with, or
 known to, a suspected agent of a
 foreign power who is the subject
 of the investigation.
Requires the use of minimization     No requirement that minimization
 procedures that will limit ``the     procedures be used.
 retention, and prohibit the
 dissemination'' of information
 concerning U.S. persons.
Explicit right of recipients of      No explicit right of recipients of
 Section 215 requests to consult      Section 215 requests to consult
 legal counsel.                       legal counsel.
Explicit right of recipients of      No explicit right of recipients of
 Section 215 requests to challenge    Section 215 requests to challenge
 their legality in court.             their legality in court.
Requirement that the FBI Director,   No special requirements for
 Deputy Directer, or Executive        sensitive documents such as
 Assistant Director personally        library records.
 approve requests for certain
 sensitive documents, including
 library records, medical records,
 educational records, and gun
 records.
Limits the scope of Section 215      No specified limitation on the
 requests to materials that could     scope of Section 215 requests.
 be obtained via grand jury
 subpoena or a similar court order
 for the production of records.
Adds the Senate Judiciary Committee  ``Fully inform[ed]'' reports given
 as a recipient of the ``fully        only to House and Senate
 inform[ed]'' reports.                Intelligence Committees.
Reporting to Congress on the number  No reporting to Congress on Section
 of orders granted, modified, or      215 requests for sensitive
 denied for the production of         documents.
 certain records from libraries and
 bookstores, firearms sales
 records, tax return records,
 educational records, and certain
 medical records.
Public reporting on the total        No public reporting.
 number of applications under
 Section 215 and the total number
 of such orders granted, modified,
 or denied.
Two comprehensive audits by the      No requirement that the Justice
 Justice Department's Inspector       Department's Inspector General
 General regarding the use,           audit the use of Section 215.
 including any improper or illegal
 use, of Section 215. The first
 report will examine the use of
 Section 215 in 2002-04; the second
 report will examine the use of
 Section 215 in 2005-06. The
 reports will examine ``each
 instance'' in which the government
 submitted an application under
 Section 215, and the Conference
 Report provides detailed
 specifications of what the
 investigation should cover.
Four-year sunset...................
------------------------------------------------------------------------
    Delayed-Notice Searches (``Sneak and Peek'' Searches) Section 213
------------------------------------------------------------------------
Notice to the target of the search   Notice to the target of the search
 must be given ``within a             may be given within a
 reasonable period not to exceed 30   ``reasonable'' time; no limitation
 days after the date of its           on the maximum period of delay.
 execution,'' or on a later date
 certain if the facts justify it.
Extensions on the period of delay    Extensions on the period of delay
 only upon ``an updated showing of    may be granted upon mere ``good
 the need for further delay''.        cause shown''.
Extensions are limited to 90 days    No maximum period of extension.
 or less, unless the facts of the
 case justify a longer period.
Notice may not be delayed if the     Notice may be delayed if the court
 only reason for doing so is that     finds reasonable cause to believe
 the court finds reasonable cause     that immediate notification may
 to believe that immediate            result in unduly delaying a trial.
 notification may result in unduly
 delaying a trial.
Public reporting on the number of    No reporting to Congress or the
 applications for delayed-notice      public.
 warrants and extensions; and the
 number of such warrants and
 extensions granted or denied; the
 duration of delays in giving
 notice.
------------------------------------------------------------------------
                      Roving Wiretaps Section 206
------------------------------------------------------------------------
Application requires ``the           Application requires ``the
 identity, if known, or a             identity, if known, or a
 description of the specific          description of the target'' of the
 target'' of the surveillance.        surveillance.
FISA Court's orders must specify     FISA Court's orders must specify
 ``the identity, if known, of the     ``the identity; if known, or a
 specific target'' of the             description of the target'' of the
 surveillance.                        surveillance.
For so-called John Doe roving        For so-called John Doe roving
 wiretaps, requires the FISA Court    wiretaps, requires the FISA Court
 to ``find[], based upon specific     to ``find that the actions of the
 facts provided in the application,   target of the application may have
 that the actions of the target of    the effect of thwarting the
 the application may have the         identification of a specified
 effect of thwarting the              person''.
 identification of a specified
 person''.
Requires that within ten days of     No requirement that FBI notify the
 beginning of surveillance at any     FISA Court when surveillance
 new facility or place, the FBI       begins at any new facility or
 notify the FISA Court of ``facts     place.
 and circumstances'' justifying
 FBI's belief that each new phone
 is being used or is about to be
 used by the target.
Requires ``fully inform[ed]''        No requirement to report to Senate
 reporting to Senate Judiciary        Judiciary Committee.
 Committee.
Existing reports expanded to         Attorney General to inform the
 include the total number of          Congress twice per year of all
 applications for orders and          roving wiretaps under 206.
 extensions of orders approving
 electronic surveillance where the
 nature and location of the
 facility at which the surveillance
 will be directed is unknown.
Four-year sunset...................
------------------------------------------------------------------------
                  National Security Letters (``NSLs'')
------------------------------------------------------------------------
Explicit right of recipients to      No explicit right of recipients to
 consult legal counsel.               consult legal counsel.
Explicit right of recipients to      No explicit right of recipients to
 challenge NSL in court and have it   challenge NSL in court.
 set aside if the court finds that
 compliance would be
 ``unreasonable, oppressive, or
 otherwise unlawful''.
Detailed mechanism for recipients    No explicit right of recipient to
 to challenge the nondisclosure       challenge the nondisclosure
 requirement in court; provision      requirement in court.
 for subsequent challenges in the
 event that initial challenges are
 unsuccessful.
Two comprehensive audits by the      No requirement that the Justice
 Justice Department's Inspector       Department's Inspector General
 General regarding the use,           audit the use of NSLs.
 including any improper or illegal
 use, of NSLs. The first report
 will examine the use of NSLs in
 2003-04; the second report will
 examine the use of NSLs in 2005-
 06. The Conference Report provides
 detailed specifications of what
 the investigation should cover.
Report to Congress by the Attorney   No requirements with respect to the
 General and the Director of          use of minimization procedures in
 National Intelligence regarding      the context of NSLs.
 the feasibility of applying
 minimization procedures in the
 context of NSLs.
Annual public reporting on the       No public reporting.
 total number of each type of NSL.
------------------------------------------------------------------------
                         Additional Protections
------------------------------------------------------------------------
Reporting to Congress on the total   No such reporting.
 number of emergency employments of
 electronic surveillance and the
 total number of subsequent orders
 approving or denying such
 electronic surveillance.

[[Page S40]]

 
Adds the Senate Judiciary Committee  Reporting to the House and Senate
 as a recipient of these reports.     Intelligence Committees of all
                                      physical searches conducted
                                      pursuant to FISA.
Reporting to Congress on the total   No such reporting.
 number of emergency physical
 searches authorized by the
 Attorney General and the total
 number of subsequent orders
 approving or denying such physical
 searches.
Reporting to Congress on the total   No such reporting.
 number of emergency pen registers
 and trap and trace devices
 authorized by the Attorney General
 and the total number of subsequent
 orders approving or denying the
 installation and use of the same.
Disclosure of the rules of the FISA  No provision requiring disclosure
 Court to the Senate and House        of the rules of the FISA Court to
 Committees on Intelligence and the   Congress.
 Judiciary.
Reporting to the House and Senate    No such reporting.
 Judiciary Committees on good-faith
 emergency disclosures under
 Section 212 of the PATRIOT Act.
Report to Congress on the Justice    No specific provisions concerning
 Department's use of data mining.     data mining.
------------------------------------------------------------------------

                               Exhibit 2

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                 Washington, DC, January 24, 2006.
     Hon. Alberto R. Gonzales,
     Attorney General, U.S. Department of Justice, Washington, DC.
       Dear Attorney General Gonzales: I write to let you know 
     some of the subjects which I would like you to address in 
     your opening statement on the Judiciary Committee hearing 
     scheduled for February 6, 2006, on ``Wartime Executive Power 
     and the NSA's Surveillance Authority.''
       (1) In interpreting whether Congress intended to amend the 
     Foreign Intelligence Surveillance Act (FISA) by the September 
     14, 2001 Resolution (Resolution), would it be relevant on the 
     issue of Congressional intent that the Administration did not 
     specifically ask for an expansion for Executive powers under 
     FISA? Was it because you thought you couldn't get such an 
     expansion as when you said: ``That was not something that we 
     could likely get?''
       (2) If Congress had intended to amend FISA by the 
     Resolution, wouldn't Congress have specifically acted to as 
     Congress did in passing the Patriot Act giving the Executive 
     expanded powers and greater flexibility in using ``roving'' 
     wiretaps?
       (3) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what is 
     the impact of the rule of statutory construction that repeals 
     or changes by implication are disfavored?
       (4) In interpreting statutory construction on whether 
     Congress intended to amend FISA by the Resolution, what would 
     be the impact of the rule of statutory construction that 
     specific statutory language, like that in FISA, trumps or 
     takes precedence over more general pronouncements like those 
     of the Resolution?
       (5) Why did the Executive not ask for the authority to 
     conduct electronic surveillance when Congress passed the 
     Patriot Act and was predisposed, to the maximum extent 
     likely, to grant the Executive additional powers which the 
     Executive thought necessary?
       (6) Wasn't President Carter's signature on FISA in 1978, 
     together with his signing statement, an explicit renunciation 
     of any claim to inherent Executive authority under Article II 
     of the Constitution to conduct warrantless domestic 
     surveillance when the Act provided the exclusive procedures 
     for such surveillance?
       (7) Why didn't the President seek a warrant from the 
     Foreign Intelligence Surveillance Court authorizing in 
     advance the electronic surveillance in issue? (The FISA Court 
     has the experience and authority to issue such a warrant. The 
     FISA Court has a record establishing its reliability for non-
     disclosure or leaking contrasted with concerns that 
     disclosures to many members of Congress involved a high risk 
     of disclosure or leaking. The FISA Court is a least as 
     reliable, if not more so, that the Executive Branch on 
     avoiding disclosure or leaks.)
       (8) Why did the Executive Branch not seek after-the-fact 
     authorization from the FISA Court within the 72 hours as 
     provided by the Act? At a minimum, shouldn't the Executive 
     have sought authorization from the FISA Court for law 
     enforcement individuals to listen to a reduced number of 
     conversations which were selected out from a large number of 
     conversations from the mechanical surveillance?
       (9) Was consideration given to the dichotomy between 
     conversations by mechanical surveillance from conservations 
     listened to by law enforcement personnel with the contention 
     that the former was non-invasive and only the latter was 
     invasive? Would this distinction have made it practical to 
     obtain Court approval before the conservations were subject 
     to human surveillance or after-the-fact approval within 72 
     hours.
       (10) Would you consider seeking approval from the FISA 
     Court at this time for the ongoing surveillance program at 
     issue?
       (11) How can the Executive justify disclosure to only the 
     so-called ``Gang of Eight'' instead of the full intelligence 
     committees when Title V of the National Security Act of 1947 
     provides:
       Sec. 501. [50 U.S.C. 413] (a)(1) The President shall ensure 
     that the congressional intelligence committees are kept fully 
     and currently informed of the intelligence activities of the 
     United States, including any significant anticipated 
     intelligence activity as required by this title. (Emphasis 
     added)
       (2)(e) Nothing in this Act shall be construed as authority 
     to withhold information from the congressional intelligence 
     committees on the grounds that providing the information to 
     the congressional intelligence committees would constitute 
     the unauthorized disclosure of classified information or 
     information relating to intelligence sources and methods. 
     (Emphasis added)
       (12) To the extent that it can be disclosed in a public 
     hearing (or to be provided in a closed executive session), 
     what are the facts upon which the Executive relies to assert 
     Article II wartime authority over Congress' Article I 
     authority to establish public policy on these issues 
     especially where legislation is approved by the President as 
     contrasted to being enacted over a Presidential veto as was 
     the case with the War Powers Act?
       (13) What case law does the Executive rely upon in 
     asserting Article II powers to conduct the electronic 
     surveillance at issue?
       (14) What academic or export opinions does the Executive 
     rely upon in asserting Article II powers to conduct the 
     electronic surveillance at issue?
       (15) When foreign calls (whether between the caller and the 
     recipient both being on foreign soil or one of the callers or 
     recipients being on foreign soil and the other in the U.S.) 
     were routed through switches which were physically located on 
     U.S. soil, would that constitute a violation of law or 
     regulation restricting NSA from conducting surveillance 
     inside the United States, absent a claim of 
     unconstitutionality on encroaching on Executive powers under 
     Article II?
       This letter will further confirm our staffs' discussions 
     that the Committee will require, at a minimum, the full day 
     on February 6th for your testimony.
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Mr. President, I thank my distinguished colleague for 
those comments.
  There is no doubt about the suffering of those who are afflicted with 
mesothelioma and asbestosis and other ailments. There is also no doubt 
about the tremendous impact it has on the economy of the United States. 
It has been estimated that there could be a bigger boost than any kind 
of tax cuts you could have or any sort of economic recovery program you 
could have to be able to deal with the more than 75 companies that have 
gone into bankruptcy and others where bankruptcy is threatened.
  The amount of work that the Senator from Vermont has specified has 
been gigantic. It has been 3 years in process. Senator Hatch took the 
lead with the trust fund concept where the manufacturers and the 
insurers have agreed to put up some $140 billion into the trust fund 
with no government payments and not coming out of the pockets of the 
taxpayers.
  The meetings which have been held and the efforts and the momentum 
which we have had can't be recaptured. I think it is fair to say, 
certainly during my tenure here of 25 years, that I have never seen 
legislation worked on to the extent this legislation has been, with the 
complexity of the problem and the involvement of Senators and staff and 
so-called stakeholders. If it is not now, it is never.
  Mr. SPECTER. Mr. President, I support the nomination by President 
Bush of Circuit Court Judge Samuel A. Alito, Jr., to the Supreme Court 
of the United States because he is qualified.
  In coming to my conclusion, my staff and I have undertaken an 
extensive review of Judge Alito's record and of his some 361 opinions 
in total. We have categorized 238 of those as major decisions while 
serving on the Third Circuit Court of Appeals. We have reviewed 49 of 
the cases that Judge Alito handled during his tenure as U.S. attorney. 
We have made an analysis of 43 speeches and articles Judge Alito 
authorized and evaluations of 38 formal opinions, petitions, and 
Supreme Court briefs which Judge Alito wrote while serving in the 
Department of Justice.
  Additionally, the Judiciary Committee heard testimony of some 30 
hours and 20 minutes where we had 17 hours and 45 minutes of 
questioning of Judge Alito and testimony from 33 outside witnesses.
  It is on the basis of that voluminous record that it is my personal 
view that Judge Alito ought to be confirmed.
  He has a background from a father who was an immigrant from Italy, 
not

[[Page S41]]

born with a silver spoon in his mouth, came up the hard way, had the 
extraordinary academic record at Princeton and the Yale Law School, 
worked as an Assistant U.S. Attorney, then was U.S. Attorney and worked 
in the Department of Justice, and for 15 years has been on the Court of 
Appeals for the Third Circuit.
  I think he answered questions put to him more extensively than any 
other nominee in recent times.
  I ask unanimous consent that the full text of the prepared statement 
be printed in the Record at the conclusion of my remarks, which 
specifies the details of the questions asked and provides analysis of 
many of his cases.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1).
  Mr. SPECTER. Mr. President, Judge Alito came under very extensive 
questioning on the issue of a woman's right to choose because of his 
work on a brief on the Thornburgh case where he advocated not reversal 
of Roe v. Wade but cut back on some of the provisions, and because of a 
statement which he had made in 1985 when applying for a position with 
the Federal Government where he expressed the view that the 
Constitution did not protect the right to an abortion. Judge Alito 
testified at length that he has an open mind on this subject.
  I think it is fair to say that when a comment is made by a lawyer in 
an advocacy capacity that it represents the view of a client on a 
position taken and not a personal view. With respect to the statement 
that he made about his view of the Constitution in 1985, he has since 
gone to great lengths to analyze the Supreme Court's decisions on the 
issue of a woman's right to choose and has made assurances that he has 
an open mind on the subject.
  He was questioned extensively on this issue. I led off with it for 20 
minutes on my first round of questioning. And Judge Alito expressed his 
regard for stare decisis, the Latin expression for let the decision 
stand.
  He commented that he agrees with the position of Chief Justice 
Rehnquist on the Miranda case involving suspects' rights on statements 
and confessions. Chief Justice Rehnquist, earlier in his career, had 
been against Miranda and later changed his view to support Miranda 
once, as the Chief Justice put it, it became embedded in the culture of 
police practices. And Judge Alito stated that he thought there was 
weight to be accorded to cultural changes.
  I think it is fair to have that statement of principle apply on a 
woman's right to choose.
  Judge Alito later testified that he agreed with Justice Harlan's 
dissent in the case of Poe v. Ullman, that the constitution is a living 
document; and that agreed with Justice Carodza in Palko v. Connecticut 
that it reflects the changing values and mores of our society.
  He is not an originalist. He does not look only original intent. He 
does not look only to the static black letter, but he understands the 
importance of evolving values and of evolving reliance.
  I questioned him at length about the reliance factor in Casey v. 
Planned Parenthood. I think Judge Alito went as far as he could go on 
the assurances of maintaining an open mind on this important subject.
  When it came to the issue as to whether he reviewed it and regarded 
it as settled law, his testimony was virtually identical to the 
testimony of Chief Justice Roberts, who testified that it was settled. 
As Chief Justice Roberts put it in his confirmation hearings, it is 
settled beyond that. Chief Justice Roberts left open the unquestionable 
right and duty of the Court to review all cases on the merits when they 
are presented and to afford appropriate weight to stare decisis and to 
precedents, but not to take the position that precedents can never be 
overturned.
  I think a fair reading of the record is that Judge Alito went about 
as far as he could go without answering the question as to how he would 
rule on a specific case, which would be beyond the purview of what a 
nominee ought to do.
  In taking up questions of Executive power, Judge Alito could not 
answer questions posed about the President's authority to go to war 
with Iran. How could a nominee answer a question of that magnitude in a 
nomination proceeding without knowing a lot more about the 
circumstances? And judges make decisions after they have a case and 
controversy, when they have briefs admitted, when they have arguments 
prepared, when they have discussions with their colleagues, and they 
reflect on a matter and come to conclusion, not sitting at a witness 
table in a Judiciary Committee hearing. Judge Alito answered the 
questions as to the considerations which would be involved. Again, he 
went about as far as he could go.

  On the question of congressional power, I questioned him at length on 
concerns I have about what the Supreme Court has had to say about 
declaring acts of Congress unconstitutional because the Supreme Court 
disagrees with our ``method of reasoning.'' The columns of the Senate 
building are lined up exactly with those of the Supreme Court, situated 
across the green. An interesting historical note, in an early draft of 
the Constitution, the Senate was to nominate Supreme Court Justices. 
That would be an interesting process, given the political complexion of 
the Senate today.
  Back to the point. What superior wisdom and what superior method of 
reasoning comes when a person crosses the green to the Supreme Court of 
the United States? Our method of reasoning may not be too good, but it 
is our method of reasoning. To have the Court say that they declare 
acts unconstitutional because they do not like our method of reasoning 
is, candidly stated, highly insulting. Judge Alito said the obvious: 
Our method of reasoning was as good as the Court's.
  Then in the decision on the Americans with Disabilities Act, where 
the Supreme Court has imposed a test of what is proportionate, taking 
it out of thin air in a 1997 decision, what is ``congruent and 
proportionate'' is a test which cannot be applied with any consistency. 
It lends itself to legislation from the bench. Justice Scalia 
characterized it accurately, calling it ``a flabby test,'' where the 
Court was functioning as the taskmaster of Congress to see that we had 
done our homework. Judge Alito's answers showed an appropriate respect 
for separation of powers and congressional authority.
  The decisions of the Supreme Court questioning the constitutionality 
of statutes has led a number of Senators on the committee to prepare 
legislation which would give the Congress standing to go to the Supreme 
Court to argue to uphold our legislation. We thought initially about 
having a Judiciary Committee observe what the Court had done and from 
that, thought about seeking to intervene as amicus curiae, as a friend 
of the court, and took it the final step: Why not go to the Court and 
argue our cases ourselves, through counsel, which is an appropriate 
way. Congress has the authority to grant standing. We can grant 
standing to ourselves to see to it that our views are appropriately 
presented to the Court.
  We respect the Court as the final arbiter of the Constitution. That 
is our system. But the arguments and the considerations and the record 
which Congress amasses ought to be considered by the Court. Now the 
constitutionality of statutes is upheld by the Solicitor General. But 
in cases where there is a conflict between what the Congress has to say 
and what the President has to say, we ought to be in a position to make 
our own submissions to the Court.
  The issue of Executive authority and the current surveillance 
practices came up for discussion in Judge Alito's confirmation 
hearings. Again, he could not say how he would rule on the case if it 
came before him. He would have to read the briefs, hear the arguments, 
consider it. But he responded by giving us the factors and items which 
he would consider.
  Many issues were discussed. Judge Alito approached them with an open 
mind. One subject of particular concern to this Senator is the issue of 
televising the Court, which I think ought to be done. The Supreme Court 
of the United States today makes the final decisions on so many of the 
cutting-edge questions of our time. The American people ought to know 
what is going on. A number of the Justices appear on television 
programs. There is

[[Page S42]]

no reason why the Court proceedings should not be televised. Senator 
Biden and I made that specific request on the case of Bush vs. Gore and 
got a response from Chief Justice Rehnquist denying it; however, they 
released an oral transcript of the proceedings at the end of the day 
and the Court is doing more of that, which is a step forward.
  The Congress has the authority to make decisions on the 
administration of the Court. For example, the Congress decides how many 
Supreme Court Justices there will be. We established the number at 
nine. Remember, in the Roosevelt era there was an effort to pack the 
Court and increase the number to 15. That is a congressional judgment. 
We decide when the Court starts to function: The third Monday in 
October. We decide what is a quorum of the Court: Six. We legislate on 
speedy trial rules. It is within the purview of the Congress to 
legislate, to call for the televising of their proceedings. I recognize 
the ultimate decision would rest with the Court if they decided to 
declare our act unconstitutional. Under separation of powers, that is 
their prerogative. I respect it. We ought to speak to the subject.
  On the subject of television, again, Judge Alito did not give the 
answer I liked to hear--that he is for television in the Court--but he 
said he had an open mind and would consider it. Again, that is about as 
far as he could go.
  One panel of particularly impressive witnesses was seven judges from 
the Court of Appeals from the Third Circuit who had worked with Judge 
Alito. There is precedence for judges testifying. Retired Chief Justice 
Warren Burger came in to testify in the nomination proceedings for 
Judge Bork. That is something for which there is precedent. These 
judges have unique knowledge of Judge Alito because they have worked 
with him in many cases.
  Judge Becker, for example, former Chief Judge of the Third Circuit, 
now on senior status, sat with Judge Alito on more than 1,000 cases. 
Judge Becker has a national reputation as an outstanding jurist. 
Recently, he received the award as the outstanding Federal judge in the 
country. He testified about Judge Alito not having an agenda, not being 
an ideologue and having an open mind.
  Judge Becker is regarded very much as a judge's judge, a centrist 
judge, and pointed out he and Judge Alito have disagreed very few 
times--about 25 times--during the course of considering more than 1,000 
cases.
  After the arguments are concluded, the three judges who sit on the 
panel retire and discuss the case among themselves; no clerks present, 
no secretaries present, just a candid discussion about what went on. 
That is where the judges really let their hair down and talk about the 
cases and get to know what a judge thinks. It is a high testimonial to 
Judge Alito that these judges sang his praises, in terms of openness 
and in terms of studiousness and in terms of not having an agenda.
  One of the witnesses, former Judge Tim Lewis of the Third Circuit, an 
African American, testified about his own dedication to choice for a 
woman's right to choose, his own dedication to civil rights, civil 
liberties, and testified very forcefully on Judge Alito's behalf. He 
said very bluntly he would not be there if he did not have total 
confidence in Judge Alito.
  One further comment: That is on the party-line vote which we seem to 
be coming to. He was voted out of committee, 10 to 8; 10 Republicans 
voting for Judge Alito; 8 Democrats voting against Judge Alito. It is 
unfortunate our Senate is so polarized today. I believe this Senate and 
this body would benefit greatly by more independence in the Senate.
  I have not voted in favor of Judge Alito as a matter of party 
loyalty. If I thought he was not qualified, I would vote no, as I have 
in the past on nominees of my own party from Presidents of my own 
party.
  But we need to move away from the kind of partisanship, which has 
ripped this body in recent times. I think it is important the American 
people have confidence in what the Senate does on the merits and that 
we avoid projecting the appearance of rank politics.
  I believe it is important for Judge Alito to have supporters who 
favor a woman's right to choose so he does not feel in any way beholden 
to or confirmed by people who have one or another idea on some of these 
questions. Without naming names and identifying people, we have more 
than six Republicans who are pro-choice, who support a woman's right to 
choose. So the balance of power will be, if confirmed, not only on one 
side of that issue or another.
  But I think we would do well to reexamine the procedures which we 
utilize in the confirmation process to try to move away from 
partisanship and towards getting an idea of the judge's temperament, 
his background, his jurisprudence, where he stands, without pressing 
him to the wall as to how he stands on any particular issue.
  When we had the nomination of White House Counsel Harriet Miers, she 
was opposed by some because, as one person put it, there was no 
guarantee she would vote to overturn Roe. Well, you cannot get 
guarantees from Supreme Court nominees. I have said before, and I think 
it is worth repeating, guarantees are for used cars and washing 
machines. They are not for nominees to the Supreme Court of the United 
States.
  I think, when we examine temperament and background, including 
jurisprudence, those are the appropriate tests. No one knows with 
certainty how Judge Alito is going to vote. The cases are full of 
surprises. Justice Sandra Day O'Connor was very much opposed to 
abortion rights before she came to the Court. And she has been one of 
the foremost proponents of a woman's right to choose, subject to some 
limitations. Justice Anthony Kennedy spoke very disparagingly about 
abortion rights before coming to the Court, and he has supported Roe v. 
Wade. Justice David Souter, as attorney general for New Hampshire, 
opposed repealing New Hampshire's law banning abortions, even after it 
had been declared unconstitutional by the Supreme Court of the United 
States. The National Organization for Women had a rally on Capitol Hill 
when David Souter was up for confirmation in 1991--I remember it well; 
I was there--with big placards ``Stop Souter or Women Will Die.'' 
Justice Souter, too, has supported Roe v. Wade.
  So no one knows what will happen. President Truman was disappointed 
by his nominees in the famous steel seizure case. Again and again and 
again, there have been surprises. The rule is, there is no rule. So on 
the committee and in the Senate we are left to our best judgment as to 
qualifications without guarantees. The separation of powers entrusts to 
the President the role of making the nominations. It is up to the 
Senate to make an evaluation and then to confirm or not confirm. After 
that, it is up to the Justices to make the decisions on the Court. The 
separation of powers has served us well.
  Those are the facts which have led me to vote Judge Alito out of 
committee affirmatively. And my vote will be cast when the roll is 
called later in this floor debate.

                               Exhibit 1


                         alito floor statement

       Mr. President, today the Senate begins the debate on the 
     confirmation of Judge Samuel A. Alito to be an Associate 
     Justice of the United States Supreme Court.
       It has been 86 days, nearly three months, since President 
     Bush announced his choice of Judge Samuel Alito to fill the 
     seat being vacated by Justice Sandra Day O'Connor. During 
     this time, my staff and I have undertaken an extensive review 
     of Judge Alito's record, including an examination of his 238 
     major decisions while serving on the Third Circuit Court of 
     Appeals, a review of 49 of the cases Judge Alito handled 
     during his tenure as a United States Attorney, analyses of 43 
     speeches and articles Judge Alito authored, and evaluations 
     of the 38 formal opinions, petitions, and Supreme Court 
     briefs which Judge Alito wrote while serving in the 
     Department of Justice. Additionally, the Judiciary Committee 
     held 30 hours and 20 minutes of hearings, which included 17 
     hours and 45 minutes of questioning of Judge Alito and 
     testimony from 33 outside witnesses.
       Based on my thorough review of his record, I intend to vote 
     to confirm Judge Alito as the 110th Justice of the United 
     States Supreme Court. I did not reach this decision lightly. 
     As I have said before, except for a declaration of war or its 
     virtual equivalent, a resolution for the use of force, no 
     Senate vote is as important as the confirmation of a Supreme 
     Court justice. And this vote is one that requires Senators to 
     free themselves from the straight-jacket of party loyalty and 
     exercise independent judgment. Under separation of powers, 
     Senators are separate from

[[Page S43]]

     the executive branch and have a full, independent role in 
     staffing the Third Branch of government. I have long adhered 
     to this view, which led me to vote against Judge Bork's 
     confirmation, even though he was nominated by a President of 
     my own party. If I thought Judge Alito should not be 
     confirmed, I would vote no again.
       Judge Alito has sterling academic credentials, having 
     excelled at Princeton University and the Yale Law School. 
     Judge Alito began his lifetime commitment to public service 
     with a prestigious clerkship for Judge Leon I. Garth of the 
     United States Court of Appeals of the Third Circuit. For the 
     next thirteen years, Judge Alito served his country as an 
     Assistant to the U.S. Solicitor General, a Deputy Assistant 
     Attorney General in the Office of Legal Counsel, and as both 
     the United States Attorney for New Jersey and an assistant 
     United States Attorney in that same office. When Judge Alito 
     was appointed to his current position on the Third Circuit 
     Court of Appeals, the ABA unanimously voted to award Judge 
     Alito its highest possible rating, and Judge Alito enjoyed 
     broad bipartisan support, as reflected by the fact that he 
     was confirmed by unanimous consent.
       Judge Alito's achievements are all the more impressive when 
     one realizes that Judge Alito was not born with a silver 
     spoon in his mouth. Judge Alito's father was brought to this 
     country from Italy as an infant and grew up in poverty. 
     Although his father graduated at the top of his high school 
     class, he had no money for college, and he was set to work in 
     a factory. It was only because at the last minute, a kind 
     person arranged for him to receive a $50 scholarship, that he 
     was able to attend college. Despite the discrimination he 
     faced as an Italian immigrant in 1935, Judge Alito's father 
     eventually became a teacher, served in the Pacific during 
     World War II, and held a nonpartisan position for the New 
     Jersey Legislature. Judge Alito put it best when he said:
       ``my parents taught me through the stories of their lives . 
     . . and it is the story, as far as I can see it, about the 
     opportunities that our country offers and also about the need 
     for fairness and about hard work and perseverance and the 
     power of a small good deed.''
       I have participated in the confirmation hearings for the 
     past eleven nominees to the Supreme Court. Although judgments 
     may differ, I think that Judge Alito went farther in 
     answering questions than most Justices in the past. Indeed, 
     Senator Biden commented, ``you have been very gracious. I 
     appreciate you being responsive.'' By one reckoning, Judge 
     Alito was asked 677 questions and answered some 659--97%. 
     That is far more than Justice Ginsburg, who answered only 307 
     out of 384 questions, or 80%, or Justice Breyer, who answered 
     only 291 out of 355 questions, or 82%. Judge Alito did not 
     refuse to respond because a similar case might come before 
     the Court. He ultimately stopped short of making commitments 
     as to how he would vote, as he should. But for each topic 
     that was raised, Judge Alito discussed the relevant 
     constitutional considerations and his judicial philosophy.
       For example, on the topic of a woman's right to choose, 
     Judge Alito agreed that the Constitution creates a right to 
     privacy. I asked Judge Alito whether he agreed with the 
     Supreme Court's holding in Eisenstadt, which established that 
     unmarried women have a constitutional right to contraception 
     and was an underpinning of the Supreme Court's decision in 
     Roe v. Wade. Judge Alito replied directly, ``I do agree with 
     the result in Eisenstadt.'' When Senator Feinstein asked 
     Judge Alito whether the Constitution guarantees a right to 
     privacy, Judge Alito responded: ``The 14th Amendment protects 
     liberty. The Fifth Amendment protects liberty. And I think it 
     is well accepted that this has a substantive component, and 
     that that component includes aspects of privacy that have 
     constitutional protection.''
       Judge Alito also discussed whether Roe v. Wade is so well 
     established that it should not be overturned. Judge Alito 
     stated: ``I agree that in every case in which there is a 
     prior precedent, the first issue is the issue of stare 
     decisis, and the presumption is that the Court will follow 
     its prior precedents. There needs to be a special 
     justification for overruling a prior precedent.''
       Some Members of the Judiciary Committee have argued that 
     Judge Alito was less forthcoming on this issue than Chief 
     Justice Roberts was during his Supreme Court confirmation 
     hearing, when he called Roe v. Wade ``settled law.'' 
     Comparing the testimony of the two nominees, I cannot see a 
     dime's worth of difference between their responses. I asked 
     Chief Justice Roberts what he meant when, as a nominee for 
     the circuit court, he said Roe was settled law. 
     Specifically, I asked him if he meant it was settled for 
     him as a circuit court judge, or if it was settled beyond 
     that, even as a Supreme Court Justice. He answered: 
     ``beyond that, it's settled as a precedent of the Court, 
     entitled to respect under principles of stare decisis.''
       Similarly, Judge Alito testified that ``Roe v. Wade is an 
     important precedent of the Supreme Court'' and that the 
     Court's reaffirmation of that case ``strengthens its value as 
     stare decisis.'' Moreover, both Chief Justice Roberts and 
     Judge Samuel Alito testified that they agreed with the result 
     in Eisenstadt, that unmarried people may not be denied 
     contraception, and with the foundational case of Griswold v. 
     Connecticut, which guaranteed that same right to married 
     couples. Both Chief Justice Roberts and Judge Samuel Alito 
     agreed that with the view that the Constitution's Due Process 
     Clause includes a substantive protection of privacy--the 
     legal view underpinning Roe v. Wade. And both Chief Justice 
     Roberts and Judge Samuel Alito refused to make commitments on 
     how they would vote in abortion cases, including how they 
     would rule if Roe came before the Court again. This is as it 
     should be: no nominee for the Supreme Court or any other 
     Court should be required to commit to how they would rule on 
     a potential case before them.
       I was pleased to hear Judge Alito confirm that he does view 
     the Constitution as a living document. Judge Alito stated, 
     ``I think the Constitution is a living thing in the sense 
     that matters, and that is . . . it sets up a framework of 
     Government and a protection of fundamental rights that we 
     have lived under very successfully for 200 years, and the 
     genius of it is that it is not terribly specific on certain 
     things. It sets out some things are very specific, but it 
     sets out some general principles, and then leaves it for each 
     generation to apply those to the particular factual 
     situations that come up. . . . As times change, new factual 
     situations come up, and the principles have to be applied to 
     those situations. The principles don't change. The 
     Constitution itself doesn't change, but the factual 
     situations change, and as new situations come up, the 
     principles and the rights have to be applied to them.''
       Judge Alito's record confirms that he is not an ideologue 
     on a crusade to curtail Roe v. Wade. He 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 Medical 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. The case did not involve a question of 
     constitutional law. There was no binding Supreme Court 
     precedent on point. Judge Alito easily could have upheld the 
     abortion restrictions if he wished to. Indeed, another Third 
     Circuit judge appointed by President Reagan voted to do just 
     that. 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 moderate jurist who understands the importance 
     of precedent.
       The fact is that, notwithstanding Senators' concerted 
     efforts, it is not possible to predict how Judge Alito will 
     rule on the issue of abortion. If there is a rule on 
     expectations, it is probably one of surprise. Two or three 
     decades ago, no one would have predicted that Justices 
     O'Connor, Kennedy, or Souter would have voted to uphold a 
     woman's right to choose. At her confirmation hearing, Justice 
     O'Connor testified that she personally viewed abortion with 
     ``abhorrence'' and stated, ``my own view in the area of 
     abortion is that I am opposed to it as a matter of birth 
     control or otherwise.'' Yet, roughly 10 years later, she 
     voted to uphold Roe v. Wade and has done so ever since. 
     Justice Kennedy explained that he ``was brought up to think 
     of abortion as a great evil. He once denounced the Roe 
     decision as the Dred Scott of our time, a reference to the 
     infamous 1857 ruling that sanctioned slavery and helped spark 
     the Civil War.'' Yet, in 1992, Justice Kennedy cast the 
     deciding vote in Casey v. Planned Parenthood to uphold Roe v. 
     Wade. When he was New Hampshire Attorney General, Justice 
     Souter filed a brief arguing that tax payer dollars should 
     not be used to fund ``the killing of unborn children'' and 
     defended abortion laws that had already been undermined by 
     Roe v. Wade. During his confirmation hearing, the National 
     Organization for Women organized a rally against his 
     confirmation entitled ``Do or Die Day'' and distributed 
     flyers proclaiming ``Stop Souter or women will die.'' Yet, on 
     the Supreme Court, Justice Souter has consistently voted to 
     uphold a woman's right to choose.
       Similarly, there have been dire predictions about Judge 
     Samuel Alito. The National Organization for Women has 
     released another flyer--this one declaring ``Save Women's 
     Lives. Vote No on Alito.'' The rule is that there is no rule.
       Judge Alito was also questioned extensively on Executive 
     power and whether the resolution for the authorization of use 
     of force gave the President authority to engage in electronic 
     surveillance. When I asked Judge Alito whether he agreed with 
     Justice O'Connor's statement in Hamdi that ``We have long 
     since made clear that a state of war is not a blank check for 
     the President when it comes to the rights of the Nation's 
     citizens,'' Judge Alito responded, ``Absolutely. That's a 
     very important principle. Our Constitution applies in times 
     of peace and in times of war, and it protects the rights of 
     Americans under all circumstances.'' Judge Alito went 
     somewhat beyond the usual practice of answering just as many 
     questions as he needed to in order to be confirmed. While he 
     would not commit to giving answers to hypothetical situations 
     which may come before the Court, he fully explained his 
     methods of reasoning. For example, when questioned by me and 
     other

[[Page S44]]

     Senators about how he would decide questions dealing with the 
     limits of executive power, he responded that he would apply 
     Justice Jackson's framework from the Youngstown Steel case:
       ``[A]s I said, the President has to follow the Constitution 
     and the laws and, in fact, one of the most solemn 
     responsibilities of the President--and it is set out 
     expressly in the Constitution--is that the President is to 
     take care that the laws are faithfully executed, and that 
     means the Constitution, it means statutes, it means treaties, 
     it means all of the laws of the United States.
       ``But what I am saying is that sometimes issues of 
     Executive power arise and they have to be analyzed under the 
     framework that Justice Jackson set out. And you do get cases 
     that are in this twilight zone and it is--they have to be 
     decided when they come up based on the specifics of the 
     situation.''
       When Judge Alito was similarly questioned about the 
     President's power to control the executive branch, he 
     responded by explaining in full:
       ``[A]s to the agencies that are headed by commissions, the 
     members of which are appointed for terms, and there are 
     limitations placed on removal, the precedents--the leading 
     precedent is Humphrey's Executor and that is reinforced, and 
     I would say very dramatically reinforced, by the decision in 
     Morrison, which did not involve such an agency. It involved 
     an officer who was carrying out what I think everyone would 
     agree is a core function of the executive branch, which is 
     the enforcement of the law, taking care that the laws are 
     faithfully executed. . . .
       ``[W]hat I have tried to say is that I regard this as a 
     line of precedent that is very well developed and I have no 
     quarrel with it and it culminates in Morrison, in which the 
     Supreme Court said that even as to an inferior officer who is 
     carrying out the core executive function of taking care that 
     the laws are faithfully executed, it is permissible for 
     Congress to place restrictions on the ability of the 
     President to remove such an officer, provided that in doing 
     so, there is no interference with the President's authority, 
     and they found no interference with that authority there. 
     That is an expression of the Supreme Court's view on an issue 
     where the claim for--where the claim that there should be no 
     removal restrictions imposed is far stronger than it is with 
     respect to an independent agency like the one involved in 
     Humphrey's Executor.''
       I have expressed my concern, for some time now, about the 
     case of United States v. Morrison, where the Supreme Court 
     declared part of the Violence Against Women Act 
     unconstitutional. The majority opinion in that case dismissed 
     lengthy Congressional findings because five justices 
     disagreed with our ``method of reasoning.'' The inference was 
     that they believed the Court has a superior method of 
     reasoning to the Congress. I believe that the Constitutional 
     separation of powers rejects that kind of view and I know 
     that many of my colleagues share this concern.
       I asked Chief Justice Roberts about this during his 
     confirmation hearings and I raised it again with Judge Alito. 
     Judge Alito said that: ``I would never suggest that judges 
     have superior reasoning power than does Congress . . . I 
     think that Congress' ability to reason is fully equal to that 
     of the judiciary.''
       The Judiciary Committee had the rare, but not 
     unprecedented, opportunity to hear from seven of Judge 
     Alito's current and former colleagues on the Third Circuit. 
     These men and women, Democrat and Republican appointees, know 
     his record best. They have heard cases with him and sat in 
     conference with him, they have worked to craft opinions with 
     him. The process that appellate judges go through in 
     rendering decisions is not familiar to many people and it was 
     very instructive to have the insight of these judges.
       Judge Edward Becker, the former Chief Judge of the Third 
     Circuit is one of the most acclaimed jurists of our time. He 
     recently won the coveted Devitt Award as the Outstanding 
     Federal Jurist of the year. I know Judge Becker very well 
     since our college and law school days, so, I take his views 
     seriously.
       Judge Becker has sat on over a thousand cases with Judge 
     Alito and, as he testified, they only disagreed 27 times. In 
     each of those cases, Judge Becker testified, Judge Alito's 
     ``position was closely reasoned and supportable either by the 
     record or by his interpretation of the law, or both.'' Judge 
     Becker testified that he knows Judge Alito approaches judging 
     with no agenda and was not an ideologue. He said, ``The Sam 
     Alito that I have sat with for 15 years is not an ideologue. 
     He is not a movement person. He is 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.''
       The current Chief Judge of the Third Circuit, Judge Anthony 
     Scirica, confirmed this view of Judge Alito, as did Judge 
     Maryanne Trump Barry, and all the other current and retired 
     judges who testified.
       I thought that the testimony of Judge Timothy Lewis was 
     particularly influential, given his background. He is an 
     African American who described himself at the hearing as 
     ``unapologetically pro-choice'' and as ``a committed human 
     rights and civil rights activist.'' He joked that it was no 
     coincidence that he happened to be sitting at the ``far 
     left'' end of the panel of judges.
       Still, based on his personal knowledge of the kind of judge 
     Judge Alito is, Judge Lewis spoke enthusiastically in his 
     favor. He said: ``having worked with him, I came to respect 
     what I think are the most important qualities for anyone who 
     puts on a robe, no matter what court they will serve on, but 
     in particular the United States Supreme Court, and first and 
     foremost among these is intellectual honesty.''
       He testified that ``I cannot recall one instance during 
     conference or during any other experience that I had with 
     Judge Alito, but in particular during conference, when he 
     exhibited anything remotely resembling an ideological bent. 
     That does not mean that I agreed with him, but he did not 
     come to conference or come to any decision that he made 
     during the time that I worked with him based on what I 
     perceived to be an ideological bent or a result-oriented 
     demeanor or approach. He was intellectually honest, and I 
     would say rigorously so, even with respect to those areas 
     that he and I did not agree.''
       In the area of civil rights, Judge Alito has a strong 
     record. In his tenure as the U.S Attorney for New Jersey, he 
     took steps to diversify the office--hiring and promoting 
     women and minorities. Since taking the bench, he has 
     continued to demonstrate a commitment to civil rights. Of 
     course, when a judge has decided over 4,800 cases, as Judge 
     Alito has, it is possible to select a few of his cases to 
     place him at any and every position on the judicial spectrum. 
     But, on balance, Judge Alito's record in this area is more 
     than satisfactory.
       Again, Judge Lewis's testimony is instructive. He told the 
     Committee that ``[I]f I believed that Sam Alito might be 
     hostile to civil rights as a member of the United States 
     Supreme Court, I can guarantee you that I would not be 
     sitting here today.'' Coming from some one with an 
     unquestioned commitment to civil rights who has worked 
     closely with Judge Alito, that testimony is entitled to 
     considerable weight.
       Judge Lewis' testimony supported my view of Judge Alito 
     from examining his cases. Indeed, I have found many cases 
     where he has defended civil rights and the interests of 
     African Americans. For example:
       In U.S. v. Kithcart, Judge Alito held that the Fourth 
     Amendment does not allow police to target drivers because of 
     the color of their skin. After a police officer received a 
     report that two black men in a black sports car had committed 
     three robberies, she pulled over the first black man in a 
     black sports car she saw. Judge Alito ruled that this 
     violated the Constitution.
       In Brinson v. Vaughn, Judge Alito ruled that the 
     Constitution does not allow prosecutors to exclude African 
     Americans from juries. In that case, the prosecutor had used 
     13 of his 14 ``strikes'' to exclude African-Americans from 
     the jury, but argued that this was not a problem, because he 
     allowed 3 African-Americans onto the jury. Judge Alito 
     explained that the prosecutor could not get around the 
     Constitution by allowing a handful of African-Americans onto 
     the jury.
       In Zubi v. AT&T Corp., Judge Alito authored a lone dissent, 
     opposing the establishment of a stringent limitations period 
     in which civil-rights plaintiffs would have to file a claim. 
     The Supreme Court unanimously vindicated Judge Alito's 
     position four years later.
       In Reynolds v. USX Corporation, Judge Alito ruled in favor 
     of Deborah Reynolds, an African-American woman who was 
     subjected to racial and sexual harassment at work. Her 
     employer claimed that the company shouldn't be liable because 
     the harassment came from her coworkers, rather than 
     supervisors. Alito concluded that her supervisors were aware 
     of the harassment and the company had a duty to end it.
       During Judge Alito's time on the bench he has also 
     demonstrated great sensitivity to the unique challenges faced 
     by people with disabilities. He understands that people with 
     disabilities are still subject to discrimination in our 
     society and that they are entitled to full civil rights. As 
     he testified at his hearing: ``When I have a case involving 
     someone who's been subjected to discrimination because of 
     disability, I have to think of people who I've known and 
     admired very greatly who had disabilities and I've watched 
     them struggle to overcome the barriers that society puts up, 
     often just because it doesn't think of what it's doing, the 
     barriers that it puts up to them.''
       He has issued several important decisions vindicating the 
     rights of people with disabilities. Thomas v. Commissioner of 
     Social Security, which Judge Alito discussed at his hearing, 
     is a good example of this. It is also one of the few cases 
     where Judge Alito was reversed by the Supreme Court--in this 
     instance unanimously--because the Court thought that Judge 
     Alito went too far to protect the ``little guy.''
       In that case, Judge Alito ruled in favor of a woman with 
     disabilities who sought social security benefits. The Social 
     Security Administration concluded that the plaintiff was not 
     entitled to benefits because she could still perform her 
     former job as an elevator operator--even though such jobs no 
     longer exist. Judge Alito thought that such a rigid 
     application of the law ``sets up an artificial roadblock'' to 
     people seeking disability benefits. He saw ``no plausible 
     reason why Congress might have wanted to deny benefits to an 
     otherwise qualified person simply because that person, 
     although unable to perform any job that actually exists in 
     the national economy, could perform a previous job that no 
     longer exists.''

[[Page S45]]

       Thomas is only one example of Judge Alito's strong record 
     on disability rights. He has ruled in favor of numerous 
     workers, students, customers, and disability advocacy groups 
     on disability-related claims. Often times, he has reversed 
     the rulings of lower courts to do so. Other examples include:
       Shapiro v. Township of Lakewood, where Judge Alito authored 
     the majority opinion in favor of an EMT technician who became 
     disabled on the job and was denied an interdepartmental 
     transfer to a position as a police dispatcher.
       Fiscus v. Wal-Mart Stores, Inc., where Judge Alito ruled in 
     favor of a victim of disability discrimination who suffered 
     from end-stage renal disease and sought permission from her 
     employer to self-administer dialysis every four to six hours 
     during the workday. Judge Alito voted to reverse the lower 
     courts ruling that kidney failure was not covered by the 
     Americans with Disabilities Act.
       Mondzelweski v. Pathmark Stores Inc., where Judge Alito 
     ruled in favor of a meat cutter who became injured on the job 
     and could no longer lift heavy objects. He overturned the 
     judgment of a lower court that refused to consider his 
     disability in light of his low education and skill level. 
     Judge Alito believe that the impact of a disability had an 
     individual's inability to work must take into account his 
     particular background and skills.
       Shore Regional High School Board of Education v. P.S., 
     where Judge Alito again reversed a lower court to find in 
     favor of a plaintiff with disabilities. The plaintiff in that 
     case was a child with disabilities who had suffered severe 
     harassment from bullies at his school. Because an 
     Administrative Law Judge had found that the student could not 
     get an appropriate education in this environment, Judge Alito 
     ruled that the students' parents should be reimbursed for 
     tuition at a neighboring public high school.
       Pennsylvania Protection & Advocacy, Inc. v. Houstoun, where 
     Judge Alito sided with a group advocating for the rights of 
     the mentally ill and ordered a state hospital to release 
     internal reports on the death of a patient who attempted 
     suicide and later died under hospital care. He rejected the 
     state of Pennsylvania's arguments that these documents were 
     protected from release under state law.
       Judge Alito has authored a number of other important, 
     progressive, opinions, vindicating the rights of the so-
     called ``little guy''. For example, in Fatin v. INS, Judge 
     Alito held that an Iranian woman could establish a basis for 
     asylum if she showed that compliance with Iran's gender 
     specific laws would be deeply abhorrent to her or that the 
     Iranian government would persecute her because of her gender. 
     This is a landmark case that established gender-based 
     discrimination as possible grounds for asylum.
       In Alexander v. University of Pittsburgh Medical Center 
     System, Judge Alito dissented from the court's ruling in 
     favor of a hospital in a medical malpractice case. A young 
     woman had been hospitalized for a rare illness of the liver. 
     Based on advice from several doctors, her parents waited for 
     one and one-half months before ordering a liver transplant. 
     The young girl died, and the parents sued. The jury ruled for 
     the parents and awarded substantial damages. The majority of 
     the Third Circuit reversed the jury's verdict against the 
     doctors, explaining that the trial court judge should have 
     instructed the jurors to consider whether the parents were 
     partly responsible for the young girl's death. Judge Alito 
     dissented, concluding that the fault for any poor decision 
     rested with the defendant doctors, not the parents. Judge 
     Alito wrote: ``Except perhaps in truly extreme cases, it is 
     not negligent for a patient such as Alyssa or her parents to 
     follow the advice of primary care physicians.''
       In Cort v. Director, Judge Alito wrote an opinion ruling 
     for and awarding benefits to a former coal miner under the 
     Black Lung Benefits Act. An Administrative Law Judge had 
     denied the worker's claim, finding that since he was able to 
     obtain work as a wire cutter, he wasn't disabled. Judge Alito 
     found that the statute and associated regulations established 
     a presumption of total disability due to Black Lung when a 
     claimant worked for more than 10 years as a miner and met one 
     of four medical requirements--which the plaintiff satisfied. 
     He reasoned that the statue focused on the source of 
     disability, not its degree.
       These cases are just a few examples from Judge Alito's 
     lengthy record. My staff has identified and analyzed scores 
     of cases where Judge Alito has ruled for minorities, 
     immigrants, people with disabilities, prisoners, and other 
     disadvantaged plaintiffs. It is this record that has won him 
     the enthusiastic support of his fellow judges on the Third 
     Circuit.
       Judge Alito is anything but a ``stealth'' candidate. Those 
     who opposed Chief Justice Roberts' nomination asked for a 
     nominee with a deeper record to analyze. In Judge Alito, they 
     have such a person. The Committee had the opportunity to 
     review literally thousands of decisions and some 461 written 
     opinions. It also had the opportunity to hear directly from 
     Judge Alito as he gave lengthy testimony. In three days of 
     intense questioning in which he spent over 18 hours in the 
     witness chair, Judge Alito was asked roughly 677 questions. 
     By comparison, Justice Ginsburg was asked 384 questions and 
     Justice Breyer was asked only 355 questions. Clearly, Judge 
     Alito's record has been vetted as thoroughly as any nominee's 
     possibly could be.
       It is on the basis of this record that I reached my 
     conclusion to vote aye on the nomination of Judge Alito to be 
     an Associate Justice of the United States Supreme Court.

  I thank the Chair and I now yield the floor.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank Senator Specter for his 
excellent leadership of the Judiciary Committee during both the Roberts 
and Alito hearings. He squarely addressed the tough issues in the first 
questioning. He made sure every member of the committee had full and 
ample opportunity to ask any question they wanted. We had 30-minute 
rounds. We had opening statements. We had the opportunity to have 
multiple rounds. Basically, I think the people could have asked 
questioned theses nominees for as long as they wanted.
  Of course, both Roberts and Alito were magnificent in their 
testimony, superb in their knowledge of the Constitution and the role 
of a judge in every possible way. That is why they have been favorably 
received by the American public which is why Chief Justice Roberts was 
confirmed, and why Alito will be confirmed.
  We have the greatest legal system in the world. It is the foundation 
of our liberties. It is the foundation of our economic prosperity. But 
the focus and the key ingredient of our legal system is an independent 
judge who makes decisions every day based on the law and the facts, not 
on their personal, political, religious, moral or social views. If we 
descend to that level, if we allow those social, political views to 
affect or infect the decision-making process, justice has been eroded. 
That is contrary to every ideal of the American rule of law.
  What is important today is Judge Alito's legal philosophy. It is not 
his political philosophy that is important. What is his legal 
philosophy? The core of his beliefs as a judge is that a judge should 
be careful, fair, restrained, and honest in analyzing the facts of the 
case and applying the relevant law to those facts. For what purpose? To 
decide that dispute, that discrete issue that is before the Court at 
that time and not to indulge, as he indicated, in great theories. That 
is not what a judge is about.
  So this is what American judges must do for our entire legal system 
to work. That is why I am so proud that President Bush has given us two 
nominees who can explain, articulate that role of a judge in a way 
every American can understand, relate to, and affirm.
  My colleagues, I am afraid, lack a proper understanding of this 
concept. It goes to the core of our differences over judges. They want 
judges, I am afraid, who will impose their own views, their personal 
views, on political issues in the guise of deciding discrete cases 
before them. Oftentimes, these are views that cannot be passed in the 
political, legislative process but can only be imposed by a judge who 
simply redefines or reinterprets the meaning of words in our 
Constitution, and they declare that the Constitution says that same-sex 
marriage must be the law of the land. They just declare that to be so. 
It only takes five unelected, life-time appointed judges to set that 
kind of new standard for America.
  Is there any wonder people are worried about that? It erodes 
democracy at its most fundamental level when political decisions are 
being set by judges with lifetime appointments, unaccountable to the 
public.
  So that is what we are worried about in so many different ways. There 
has been a trend in that regard, no doubt about it, by our courts. I 
think they have abused their authority by taking an extremely hostile 
view toward the expression of religious conviction in public life.
  They have struck down Christmas displays. Our courts have declared 
our Pledge of Allegiance to the Government unconstitutional because it 
has ``under God'' in it. By the way, for those of you who can see the 
words over this door, ``In God We Trust,'' it is part of our heritage, 
written right on the wall of this Chamber.
  This is an extreme interpretation of the separation of church and 
state. It is not consistent with our classical understanding of law in 
America. We had the Supreme Court, in this past year,

[[Page S46]]

redefining the takings clause. The takings clause says you can take 
private property for public use.
  It does not say you can take it for any purpose, like a private mall. 
They redefined the meaning because they thought that was smarter, 
better policy. But we don't appoint judges to set policy. As 
legislators, we have that responsibility. We are the people who will be 
voted out of office if we set bad policy. We are the ones meeting 
people every day and campaigning, trying to understand what the 
American people care about. That is not what judges do, at 80 years 
old, sitting over there reading briefs every day.
  This is an important issue. They declared that illegal aliens, 
despite State laws to the contrary, are entitled to benefits. They 
struck down every partial-birth abortion law. They have declared that 
morality--this is hard to believe but true in recent years--cannot be a 
basis for congressional legislation. Yet they contend that they may 
decide opinions and redefine the meaning of words and the understanding 
of words over hundreds of years based on what they declare to be 
evolving standards of decency.
  Is that a standard or is that just a license for a judge to do 
whatever they feel like doing at a given time? Evolving standards of 
decency, who can define that? Do they have hearings on what these 
standards are?
  These are important issues. The American people are concerned about 
it. President Bush was concerned about it. He promised he would appoint 
judges who show restraint, judges of great ability and integrity but 
who would show restraint and be more modest in the way they handle 
these cases. That is a fair standard. It is a legitimate issue for the 
American people to decide. He talked about it in almost every speech he 
made. That is what he promised to do, and that is what he has done.
  If we were to name judges, there is a legitimate concern that we 
would appoint judges who would promote some conservative agenda. I 
don't favor that; I oppose that. We don't want a judge to promote a 
liberal or a conservative agenda, although the plain fact is, if 
anybody looks at it squarely, they will see that the Court has actually 
been promoting a more liberal agenda. But we are not asking that a 
conservative agenda be promoted. We are asking that the courts maintain 
their role as a neutral umpire to decide cases based on the law passed 
by the legislative branch or State legislatures or passed by the people 
through the adoption of the U.S. Constitution.
  I don't understand the opposition to Judge Alito. He is such a 
fabulous nominee. It does appear, according to the New York Times last 
week, the 19th of January, that our Democratic leader, Senator Harry 
Reid, has urged his colleagues to vote no so they can, for political 
reasons, make it a political issue. We need to be careful about that. I 
am afraid there has been an attempt to change the ground rules of 
confirmations, to set standards we have never set before for nominees. 
That knife cuts both ways. If this is affirmed, then there will be more 
difficulty in the future for Democratic Presidents to have their 
nominees confirmed.
  Judge Alito has a remarkable record. He is the son of immigrants in 
New Jersey. His father was an immigrant to this country. He goes off to 
Princeton, gets his degree with honors, declines to accept an 
invitation to join an eating club that excludes women and others. I 
guess that was beneath the members of that club. He decided while he 
was there that he would just dine with everybody else, the scruff and 
the scrum that you find at Princeton. Then he went to Yale Law School 
where he finished at the top of his class, served as editor of the Yale 
Law Journal, participated in the ROTC at a time when that was not an 
easy thing to do, served in the Army Reserve for 8 years, and was 
offended that Princeton would kick the ROTC from their campus. I am 
sure he was not pleased when the rioters bombed the ROTC building at 
Princeton.
  He is an American. He believes in his country. He was prepared to 
serve his country, go where he was asked to go, if called upon in that 
fashion.
  He was chosen to clerk for the Third Circuit after he graduated, the 
court on which he now sits with Judge Garth. That is quite an honor. 
For 3 years he served as assistant U.S. attorney in that great large 
New Jersey law office for the U.S. attorney where he argued appellate 
cases. He did the appellate work. That is what he will be as a Supreme 
Court judge, an appellate judge, not a trial judge. That is what he did 
when he started out his practice. Then he went to the Solicitor 
General's Office of the Department of Justice, which is often referred 
to as the greatest job for an attorney in the world, to be able to 
stand up in the courts of the United States of America, particularly 
the Supreme Court, and to represent the United States in that court. He 
argued 12 cases before the Supreme Court. Not one-half of 1 percent of 
the lawyers in America have probably argued any case before the Supreme 
Court. He argued 12. That is a reflection of his strength and 
capability.
  Then he became U.S. attorney in New Jersey, which is one of the 
largest U.S. attorney offices in America, where he prosecuted the Mafia 
and drug organizations and was highly successful in that office and won 
great plaudits for his performance. He then was placed, 15 years ago, 
on the Third Circuit Court of Appeals. He has served as a circuit judge 
in the Third Circuit Court of Appeals for 15 years, writing some 350 
opinions and participating in many others.
  He has had his record exposed to the world. What does it look like? 
Without question, it is a record of fairness and decency. Some of us on 
the conservative side have questioned the bar association. They are 
pro-abortion in their positions. They take liberal positions on a lot 
of issues, and some people have criticized them for that. They declare 
their ratings of judges are not based on that. But sometimes they have 
been accused of allowing their personal views to infect that rating 
process.
  How did the American Bar Association rate Judge Alito? They gave him 
their highest possible rating. They found that he was well qualified, 
unanimously, by the 15-member committee that meets to decide that 
issue. They interviewed 300 people, people who have litigated against 
Judge Alito as a private lawyer, people who have been his supervisors, 
people who have worked for him, people who had their cases decided by 
him.
  They go out and talk to these people. They will share with the 
American Bar Association privately what they might not say publicly. So 
they interviewed 300 people, and contacted over 2,000. They concluded 
that Judge Alito has established a record of both proper judicial 
conduct and evenhanded application in seeking to do what is 
fundamentally fair.
  They declare that Judge Alito was held ``in incredibly high regard.'' 
That was said by attorney John Payton, an African American who argued 
the University of Michigan quota case before the U.S. Supreme Court, 
not a rightwinger. He said they found the people they interviewed held 
Judge Alito in incredibly high regard. I asked him if he chose that 
word carefully. He said: I did; yes, sir.
  Judge Alito represents that neutral magistrate that we look for in 
our judges in America. His academic record is superb. His proven 
intelligence is unsurpassed. The experience he brings to the U.S. 
Supreme Court is extraordinary, including 15 years as an appellate 
judge doing in a lower court basically the same thing one would do at 
the Supreme Court level.
  This is what he said at the hearing:
  The PRESIDING OFFICER (Mr. Graham). The majority's time has expired.
  Mr. SESSIONS. Mr. President, I ask unanimous consent for 30 seconds 
to wrap up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I understand our side will also get an additional 30 
seconds.
  Mr. SESSIONS. This is what he said:

       I had the good fortune to begin my legal career as a law 
     clerk for a judge who really epitomized openmindedness and 
     fairness. He read the record in detail in every single case. 
     He insisted on following precedent, both the precedents of 
     the Supreme Court and the decisions of his own court. He 
     taught all of his law clerks that every case had to be 
     decided on an individual basis. He really didn't have much 
     use for grand theories.

  That is what we need on the bench today. I think it would restore the 
public confidence. I am proud to support this nomination.

[[Page S47]]

  Mr. President, I respect Senator Leahy. He is an excellent advocate 
for the Democratic side. I was pleased he supported Judge Roberts, and 
I am not as thrilled he is not supporting Judge Alito. It was a process 
that was a bit rough at times, but fundamentally I think the judge was 
able to have his day in court.
  I yield the floor.
  Mr. LEAHY. Mr. President, I ask unanimous consent that we may go a 
couple of minutes beyond 12 o'clock.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I appreciate the compliment of the Senator 
from Alabama. I have spent 31 years in the Senate. I take my role in 
the Senate very seriously. I believe we should be the conscience of the 
Nation. As I have said many times, only 18 people get to publicly ask 
questions of the Supreme Court nominees. They are the 18 Members of the 
Senate Judiciary Committee. We are asking those questions on behalf of 
almost 300 million Americans, and then 100 of us get a chance to vote 
on it.
  While the Senator from Alabama is still on the floor, I note that 
there seem to be talking points going around that the Democratic 
leader, Senator Reid, has been lobbying to make this a party-line vote. 
I don't know where those talking points came from. I have heard them in 
different places. The Democratic leader was asked about that yesterday 
by the press in open session. He said it is absolutely not so. I am the 
ranking member of the Senate Judiciary Committee. Just as nobody from 
leadership has lobbied me on now-Chief Justice Roberts when I voted for 
him, nobody has lobbied me on Judge Alito; nor have I lobbied anybody 
else, and nor have I heard of anybody who has been lobbied.
  What the distinguished senior Senator from Nevada, the Democratic 
leader, has said over and over again is that this is a vote of 
conscience. Every Senator has to search his or her own conscience. In 
fact, I was also concerned when the distinguished Republican leader 
opened the debate on this nomination by complaining that those opposing 
Judge Alito are smearing a decent and honorable man. Mr. President, 
again, out of almost 300 million Americans, only 100 of us get a chance 
to say whether this man will go on the Supreme Court, where he can sit 
there for years, decades even, and where he is supposed to be the 
ultimate check and balance and guardian of our rights. To say that by 
opposing him is smearing him, that is not so.
  Senator Specter and I held a fair and open hearing on him. Democrats 
had substantive and probing questions to try to learn more about Judge 
Alito, and some Republicans did the same. These complaints about the 
treatment of Judge Alito ring hollow after President Bush was forced by 
an extreme faction of his own Republican Party to withdraw his first 
choice for the vacancy, Harriet Miers. It was a humiliation of the 
President by an extreme faction in his party. Within hours of the time 
he nominated her, many groups on the far right criticized the 
nomination, and a number of Republican Senators raised serious concerns 
calling for a thorough hearing and a probing inquiry in light of their 
concerns about her record.
  The same groups on the right immediately embraced Samuel Alito after 
they had forced Harriet Miers to be withdrawn. The same Republican 
Senators who said they needed to learn more about Harriet Miers' 
judicial philosophy before they could vote to confirm her are now doing 
an about face and criticizing Democrats for saying they want to do the 
same type of inquiry for Judge Alito. President Bush buckled to 
pressure and withdrew the nomination for Harriet Miers because she 
didn't pass the litmus test and because there were those who said they 
were not sure how they would vote.
  The third nomination--Judge Alito's--people applauded, implying that 
here we have somebody who we know how he will vote, so he is fine.
  Democratic Senators are taking their constitutional duties seriously. 
We have a single fundamental question: Will the Senate serve its 
constitutional role and preserve the Supreme Court as a constitutional 
check on the expansion of presidential power?
  A nominee's views on Executive power and the checks and balances 
built by the Founders into our constitutional framework should always 
weigh heavily in hearings for those nominated to the Supreme Court. 
Executive power issues were the first issues I raised with Chief 
Justice Roberts at his confirmation hearing, and they were the first 
issues I raised with Judge Alito.
  The reason presidential power issues have come to dominate this 
confirmation process is that we have clearly arrived now at a crucial 
juncture in our Nation, and on our highest court, over the question of 
whether a President of the United States is above the law. The Framers 
knew that unchecked power leads to abuses and corruption, and the 
Supreme Court is the ultimate check and balance in our system. Vibrant 
checks and balances are instruments in protecting both the security and 
the liberty of the American people.
  This is a nomination that I fear threatens the fundamental rights and 
liberties of all Americans, now and for generations to come. One need 
only look to the White House to see the practical effects of such an 
erosion of those rights and liberties. This President is prone to 
unilateralism and assertions of Executive power that extend all the way 
to illegal spying on Americans.
  This President is in the midst of a radical realignment of the powers 
of the Government and its intrusiveness into the private lives of all 
Americans, Republicans and Democrats. Frankly, this nomination is part 
of that plan for the intrusion into our private lives. I am concerned 
that if we confirm this nominee, it will further erode checks and 
balances that have protected our constitutional rights for more than 
200 years. It is not overstating the case to say this is a critical 
nomination. It is one that can tip the balance on the Supreme Court 
radically away from the constitutional checks and balances and the 
protection of Americans' fundamental rights.
  This past week, I introduced a resolution to clarify what we all 
know, that the congressional authorization for the use of military 
force against Osama bin Laden did not authorize warrantless spying on 
Americans, as the administration has now claimed. I thought--we all 
thought--that when we as Democrats joined in the bipartisan 
authorization of military action against Osama bin Laden more than 4 
years ago, our action would have been more effective and that we would 
have by now succeeded in ridding the world of that terrorist leader. We 
gave the President all the authority he needed to go after Osama bin 
Laden, and we thought with the great power of this country he would 
have gone out and caught him. He didn't. They averted our special 
forces out of Afghanistan and into Iraq before we even announced we 
were going to go to war against Iraq. We lost the opportunity to catch 
Osama bin Laden, the man who did order the attacks on America.
  Now we find the administration, instead of saying sorry we didn't 
catch Osama bin Laden, even though you gave us the authority, we now 
want to use that authority as legal justification for a covert, illegal 
spying program on Americans.
  As Justice O'Connor underscored very recently, even war ``is not a 
blank check for the President when it comes to the rights of the 
Nation's citizens.''
  Now that the illegal spying on Americans has become public, the Bush 
administration's lawyers are contending that Congress authorized it. 
The September 2001 authorization to use military force did no such 
thing. It did not authorize illegal spying on Americans. Republican 
Senators know it, and some have been courageous to say so publicly. The 
fact is, we all know it. The liberties and rights that define us as 
Americans and the system of checks and balances that serve to preserve 
them should not be sacrificed to threats of terrorism or to the 
expanding power of the Government. Security and liberty are not 
mutually exclusive values in America. We should have both, and we can 
have both, so long as we have adequate checks and balances and with the 
extra effort it takes to chart the right course to preserve our 
liberties as we preserve our security.
  We are constantly reminded of what Benjamin Franklin said: People who 
give up their liberties for security deserve neither. The terrorists 
win if they frighten us into sacrificing our

[[Page S48]]

freedoms--something I said in the days following 9/11, and I believe it 
just as strongly today.
  Just after 9/11, I joined with Republicans and Democrats--I was at 
that time chairman of the Judiciary Committee, in round-the-clock 
efforts to update and adapt our law enforcement powers, and we did. The 
law became known as the USA PATRIOT Act. It is obvious they missed a 
lot of the signals that were out there. It is obvious they had ignored 
the evidence that was before them that might have stopped the 
terrorists from striking us, but we didn't make those accusations, we 
didn't say then--let's find out all the things you did wrong that 
allowed us to be hit on your watch. Instead, during those days, we 
asked the Bush administration, what do you need, tell us what you need 
so it doesn't happen again, whether it is on your watch or anybody 
else's.
  In answering that question, they never asked us to amend the Foreign 
Intelligence Surveillance Act to accommodate spying on Americans they 
now say they will undertake, even though the law doesn't allow it. The 
law does contain an expressed reservation for the 15 days following a 
declaration of war. But neither Attorney General Ashcroft nor anyone 
else in the Bush administration at that time or any time afterward 
sought congressional authorization for this illegal NSA spying program.
  Actually, Attorney General Gonzales admitted in a recent press 
conference that the Bush administration did not seek legal 
authorization for this kind of spying on Americans because ``it was not 
something we could likely get.'' We don't know; he never asked. But 
consider that damning admission. It is utterly inconsistent with the 
Bush administration's current argument that Congress authorized 
warrantless spying on Americans, when they now are saying they didn't 
ask for it because they couldn't get it. They can't have it both ways, 
although Lord knows they are trying as hard as they can to have it both 
ways.
  The Bush administration's after-the-fact claims about the breadth of 
that 2001 resolution are the latest in a long line of manipulations and 
another affront to the rule of law, American values, and traditions. We 
have also seen such overreaching in the Justice Department's twisted 
interpretation of the torture statute, in the detention of suspects 
without charges, the denial of access to counsel, and in the 
misapplication of the material witness statute as a sort of general 
preventive detention law. Such abuses serve to harm our national 
security as well as our civil liberties. In fact, sources at the FBI 
reportedly say that much of what was forwarded to them to investigate 
from the NSA spying program was worthless and led to dead ends. That is 
a dangerous diversion of our investigative resources.
  When they talk about thousands of al-Qaida conversations they have to 
monitor going to Americans--thousands? Interesting. So how many people 
have been arrested because of those thousands? Two thousand people? 
Fifteen hundred people? One thousand? Five hundred? Four hundred? Three 
hundred? Thirteen? Seven? Five, three, four, two, one? Or none?
  A central question, therefore, during the hearings of this nomination 
was whether Judge Alito would serve as an effective constitutional 
check on the Presidency. Preventing Government intrusions into the 
personal privacy and freedoms of Americans is one of the hallmarks of 
the Supreme Court. They are not supposed to be in the pocket of any 
administration. After all, this Senate, when it was overwhelmingly 
Democrat, under Democratic control--one of the most popular Democrats 
in my lifetime was President Franklin Roosevelt. When he wanted to pack 
the Supreme Court, when he wanted to manipulate the Court, it was the 
Democrats who stood up and said no because they felt the Court should 
be a check and balance. Here there is no assurance that Judge Alito 
will serve as an effective check and balance on Government intrusions 
into the lives of Americans. In fact, his record suggests otherwise.
  We know that Samuel Alito sought to justify absolute immunity for 
President Nixon's Attorney General John Mitchell from lawsuits for 
wiretapping Americans, among other violations of their privacy. He was 
asking for immunity even if the Attorney General acted willfully to 
violate people's rights. This is the man who is going to be a check and 
balance on our rights?
  We know that as a judge, Samuel Alito was willing to go further than 
even Michael Chertoff, the former head of the Ashcroft Justice 
Department's Criminal Division and the current Secretary of the 
Department of Homeland Security, in excusing Government agents for 
searches not authorized by judicial warrants. This is the man who is 
going to be a check and balance?
  We know Judge Alito would have excused a strip search of a 10-year-
old girl, even though the search warrant did not authorize this. This 
is a man who is going to be a check and balance?

  In both Doe v. Groody and Baker v. Monroe Township, Judge Alito 
dissented and would have allowed invasive searches beyond the scope of 
warrants. This is a man who is going to be there as a check and 
balance?
  I was a prosecutor for eight years, and I am keenly aware of the 
difficulties faced by police officers in the course of their duties. I 
support vigorous law enforcement tools. But I am also mindful of the 
careful balance that must be struck in order to preserve our individual 
liberties. One of the most important Fourth Amendment protections we 
have for our privacy is the requirement that a judicial officer ensure 
that the Government's intrusion on citizens' privacy is based on 
probable cause and that it is reasonable. It is the judge who 
determines whether to authorize the search and the extent of the search 
to be permitted. The officer's affidavit and the warrant are not mirror 
images of each other. The magistrate is not a rubber stamp. The role of 
the magistrate in issuing warrants, a role Judge Alito has too easily 
cast aside on the bench, is a crucial check in maintaining the right 
balance so that all Americans can have both security and liberty.
  It is worth taking a few moments to recount the facts of these cases, 
because I am concerned that Judge Alito has too little regard for the 
consequences arising from allowing these kinds of invasive searches 
beyond those authorized by warrants.
  In the Doe case, the 10-year-old girl and her mother were subjected 
to what the Third Circuit termed an ``intrusive'' strip search, even 
though they were not suspected of nor charged with any wrongdoing. The 
warrant that the Government agents had obtained from a judicial officer 
authorized a search for a man living at a certain address. Yet when 
they arrived at the address they encountered only the 10-year-old and 
her mother and proceeded to strip search them. There was no contention 
that they posed a risk to the agents.
  Similarly, in Baker v. Monroe Township, a mother and her three teen-
aged children were detained and searched as they arrived at the home of 
the mother's adult son. The woman and her teen-aged children did not 
live at the house, were not suspected of any wrongdoing, were not named 
in the warrant, and were not even inside the premises when the officers 
arrived on the scene. They were nevertheless all ordered at gunpoint to 
lie on the ground. They were subsequently handcuffed, taken into the 
house, further detained, and their property and persons were searched.
  In both cases, the Third Circuit held that the Government agents had 
acted inappropriately and had violated the Fourth Amendment when they 
conducted these invasive searches of innocent persons who were not 
named in the search warrants. When I asked him why he, in contrast, 
looked beyond the ``four corners'' of the warrant that was actually 
signed by the magistrate in Doe, Judge Alito replied that the issue was 
a ``technical'' one. Repeatedly when pressed about this case, Judge 
Alito insisted that the issue was merely ``technical.''
  The illegal strip search was not ``technical'' for the 10-year-old 
girl. Then-Judge Chertoff understood that this issue is far from 
technical, but, rather, embedded in the core protections of our 
individual privacy and dignity from governmental intrusion. In the 
court's opinion, rejecting the rationale of Judge Alito's dissent, 
Judge Chertoff wrote: ``This is not an arcane or legalistic 
distinction, but a difference that goes to the heart of the 
constitutional requirement that judges, and not police, authorize 
warrants.''

[[Page S49]]

  Judge Alito tried to find ``technical'' ways to excuse the 
illegality. Judge Alito's dissent relied on the affidavit accompanying 
the warrant. To the extent the affidavit had requested a search of 
``all occupants'' of the home, it did so based on a concern about 
concealment of drugs by ``frequent visitors that purchase [drugs]'' or 
by ``persons who do not actually reside or own/rent the premises''--not 
by a 10-year-old girl living in the home. Judge Alito ignored this 
language in the affidavit, in order to misconstrue the affidavit more 
broadly and to then substitute it for the magistrate's warrant.
  Judge Alito's rationale was that because the officers' initial 
request was broad, it could be assumed that the magistrate intended to 
grant broader search authority than that set forth in the warrant. The 
Supreme Court had specifically rejected this type of reasoning in the 
case of Ramirez v. Groh, which was decided a month before Judge Alito 
dissented in Doe. In Groh, the Supreme Court held a search warrant 
invalid, citing the sharp distinction the law draws between what is 
authorized in a warrant, and what was requested. Judge Alito went to 
great lengths in a futile and hyper-technical attempt to distinguish 
the Supreme Court's decision in Groh.
  Similarly, in Baker v. Monroe Township, Judge Alito saw the facts in 
the light most favorable to the Government, rather than to the mother 
and her children. That is directly contrary to the standard that should 
be used when reviewing an order granting summary judgment against a 
party. In his dissent, Judge Alito found that although the warrant in 
question did not describe any persons to be searched, it nevertheless 
was appropriate for officers to search and handcuff a mother and her 
three teen-aged children as they approached a relative's home. Judge 
Alito stated in his dissent that even though the mother and her three 
children were not named in the warrant and there was no reason to 
suspect them of any wrongdoing, ``to [his] mind'' the warrant had 
been intended to authorize a search of ``any persons found on the 
premises.'' Judge Alito went so far as to excuse the officers' failure 
to request or obtain a warrant permitting the search of persons on the 
premises as sloppiness.

  The Third Circuit disagreed with Judge Alito, holding that because 
the search warrant did not authorize the search, it was unlawful and in 
violation of the Fourth Amendment. The other judges hearing the case 
found fault with Judge Alito's willingness to look beyond the warrant 
to excuse the unauthorized and unlawful searches. In Baker, Judge Alito 
inserted himself into the case in an active attempt to excuse 
misconduct when the warrant did not authorize the Government intrusion.
  Unfortunately, Doe and Baker are not outliers in Judge Alito's 
record. As troubling as his dissents are in those two cases, they are 
only part of a broader pattern of deference to the Government that 
shows far too little concern for individual liberties and rights, which 
find their ultimate protection in the Supreme Court.
  Judge Alito's record on the use of excessive force is also troubling. 
It goes back at least as far as his time in the Meese Justice 
Department. I find particularly troubling a 1984 memorandum he wrote to 
the Solicitor General regarding a case called Tennessee & Memphis 
Police Department v. Garner. In a long memo in which he repeatedly 
wrote in the first person proclaiming his own beliefs, Samuel Alito 
argued that there were no constitutional problems with a police officer 
shooting and killing an unarmed teenager who was fleeing after 
apparently stealing $10 from a home. A year later, the Supreme Court 
ruled 6-3 against Judge Alito's position in that case and reiterated 
the law against use of ``deadly force'' if a suspect presents no 
danger. In contrast to Justice O'Connor's dissent on federalism 
grounds, Samuel Alito's memo makes no mention of the human tragedy of 
the events nor did he think the Constitution even applied since he 
argued that the unjustified shooting was not technically a ``seizure.'' 
Most troubling is Judge Alito's statement in his legal memo endorsing 
``the general principle that the state is justified in using whatever 
force is necessary to enforce its laws.'' I fear that this deference to 
the Government, which he has continued on the bench, makes him ill-
suited to be an effective check on the Government or protector of 
individual liberties and rights.
  The Supreme Court is the ultimate check and balance in our system. 
The independence of the Court and its members is crucial to our 
democracy and way of life. The Senate should never be allowed to become 
a rubberstamp, and neither should the Supreme Court.
  And so we owe it to the American people of today, and the Americans 
of generations to come, to ask and answer several essential questions: 
Can this President, or any President, order illegal spying on 
Americans? Can this President, or any President, authorize torture, in 
defiance of our criminal statutes and our international agreements? Can 
this President, or any President, defy our laws and Constitution to 
hold American citizens in custody indefinitely without any court 
review? Can this President, or any President, choose which laws he will 
follow and which he will not, by quietly writing a side statement when 
he signs a bill into law? These are some of the most vital questions of 
our era, and these are among the most vital questions that confront the 
Senate in considering this nomination to our highest court. Judge 
Alito's record, and his responses--and his failure to adequately answer 
questions about these issues--are deeply troubling.
  No President should be allowed to pack the courts, and especially the 
Supreme Court, with nominees selected to enshrine presidential claims 
of government power. Our system was designed to ensure a balance and to 
protect against overreaching by any branch.
  A Democratic Senate stood up to one of the most popular and powerful 
Democratic Presidents of all time when it rejected President Franklin 
Roosevelt's court packing scheme. The Senate should not be a rubber 
stamp to this President's effort to pack the court with those who would 
give him unfettered leeway. I will not lend my support to an effort by 
this President to move the Supreme Court and the law radically to the 
right and to remove the final check within our democracy.
  I voted for President Reagan's nomination of Justice Sandra Day 
O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, 
for President Bush's nomination of Justice Souter, and for this 
President's recent nomination of Chief Justice Roberts. I cannot vote 
for this nomination.
  At a time when the President is seizing unprecedented power, the 
Supreme Court needs to act as a check and to provide balance. Based on 
the hearing and his record, I have no confidence that Judge Alito would 
provide that crucial check and balance.
  I see the distinguished senior Senator from Massachusetts in the 
Chamber. I am prepared at this point to yield to the distinguished 
Senator and former chairman of the Judiciary Committee and one whose 
protection of the civil liberties of all of us is unparalleled in the 
history of this body.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I thank my friend and colleague, the 
Senator from Vermont. Again, we do many important things in the 
Judiciary Committee, but none are more important than the selection of 
our Supreme Court Justices. I again thank the Senator from Vermont for 
his leadership in ensuring we're going to have a fair, open, 
appropriate, and a prodding, probing hearing and for the leadership he 
provides for our committee on so many different matters of importance 
to the American people.
  The stakes in this nomination could not be higher. This is the vote 
of a generation. If confirmed, Judge Alito will have enormous impact on 
our basic rights and liberties for decades to come. After all, the 
Supreme Court is the guardian of our most cherished rights and 
freedoms, and they are symbolized in the four eloquent words inscribed 
above the entrance of the Supreme Court of the United States: ``Equal 
justice under law.''

  Those words are meant to guarantee our courts will be an independent 
check on abuses of power by the other two branches of Government. They 
are a commitment that our courts will always be a place where the poor 
and the powerless can stand on equal footing with the wealthy and the 
privileged.

[[Page S50]]

Each of us in the Senate has a constitutional duty to ensure that 
anyone confirmed to the Court will uphold that clear ideal.
  Contrary to what a number of my Republican colleagues have argued, 
the Senate's role is not limited to ensuring that the nominee is 
ethical and possesses a certain level of legal skill and professional 
experience. To end the inquiry there would be a shameful abdication of 
our historic responsibility. The selection of a Supreme Court Justice 
is of great importance to every man and woman in America because the 
decisions rendered by the Court affect their lives every day. Because 
of the enormous authority a successful nominee to the High Court will 
have for decades to come, it is the responsibility of the Senate to 
determine what constitutional values the nominee holds before he or she 
is confirmed.
  Has the nominee learned the great lessons of our Nation's history? 
Will the nominee be fair and openminded or will his judgments be 
tainted by rigid ideology? Is he genuinely committed to the principles 
of equal justice under law?
  The American people will have no second chance to decide whether this 
person should be trusted with such awesome responsibility. As their 
representatives, it is our responsibility to ask the tough questions 
and demand meaningful answers.
  For the Senate to become a rubberstamp for the judicial nominees of 
any President would be a betrayal of our sworn duty to the American 
people. Taking our responsibility seriously and doing the job we were 
sent here to do is not being partisan, as some Republicans have 
charged. In fact, it is those Republicans who are being partisan by 
defending a nominee's right to remain silent when Senators ask him 
highly relevant questions about his constitutional values. To ask a 
nominee for a candid statement of his current belief about what a 
provision of the Constitution means is not asking for a guarantee of 
how he will rule in the future. It is every bit as appropriate as 
reading a Law Review article or a case he wrote last year or a speech 
he gave as a judge.
  Unfortunately, on issue after issue, instead of answering candidly, 
Judge Alito merely recited the existing law but never disclosed his 
view of major constitutional issues. That is a disservice to the 
American people, and Senators on both sides of the aisle should find 
his evasiveness unacceptable. The confirmation process should not be 
reduced to a game of hide the ball. The stakes for our country are too 
high.
  One of the most important of all responsibilities of the Supreme 
Court is to enforce constitutional limitations on Presidential power. A 
Justice must have the courage and the wisdom to speak truth to power, 
to tell even the President he has gone too far. Chief Justice John 
Marshall was that kind of Justice when he told President Jefferson he 
had exceeded his war-making powers under the Constitution. Justice 
Robert Jackson was that kind of Justice when he told President Truman 
he could not misuse the Korean war as an excuse to take over the 
Nation's steel mills. Chief Justice Warren Burger was that kind of 
Justice when he told President Nixon to turn over the White House tapes 
on Watergate. Justice Sandra Day O'Connor was that kind of Justice when 
she told President Bush that ``a state of war is not a blank check for 
the President when it comes to the rights of the Nation's citizens.''
  We need that kind of Justice on the Court more than ever. It is our 
duty to ensure that only that kind of Justice is confirmed.
  Today, we have a President who believes torture can be an acceptable 
practice despite laws and treaties that explicitly prohibit it. We have 
a President who claims the power to arrest American citizens on 
American soil and jail them for years without access to counsel or the 
courts. We have a President who claims he has the authority to spy on 
Americans without the court order required by law.
  The record demonstrates we cannot count on Judge Alito to blow the 
whistle when the President is out of bounds. He is a longstanding 
advocate of expanding Executive power even at the expense of core 
individual liberties.
  One thing is clear: Judge Alito's view of the balance of powers is 
inconsistent with the Supreme Court's historic role of enforcing 
constitutional limits on Presidential power.
  His consistent advocacy of what he calls the gospel of the unitary 
executive is troubling. As Steven Calabresi, one of the originators of 
the unitary executive theory, has said, ``The practical consequence of 
this theory is dramatic: It renders unconstitutional independent 
agencies and counsels to the extent that they exercise discretionary 
executive power.''
  But this bizarre theory goes much further. Its supporters concede 
that without the unitary executive as a foundation, the Bush 
administration cannot even hope to justify its constitutional abuses in 
the name of fighting terrorism.
  Judge Alito refused to discuss his current view of the constitutional 
limits on Presidential power. But in a speech Judge Alito gave in 2004 
to the Federalist Society, he stated that he believed ``the theory of 
the unitary executive best captures the meaning of the Constitution's 
text and structure.'' Under this radical view, all current independent 
agencies would be subject to the President's control. This would 
destroy the independence of agencies such as the Federal Election 
Commission, the Securities and Exchange Commission, the Consumer 
Product Safety Commission, and the Federal Reserve Board.
  He strongly criticized the Supreme Court's ruling rejecting the 
theory of unitary executive and outlined a strategy for bypassing it.
  When Judge Alito made that speech, he had already been serving as 
appellate judge for 10 years, and he was describing his own view of the 
Constitution.
  Similarly, Judge Alito had written earlier that ``the President's 
understanding of a bill should be just as important as that of 
Congress,'' and that Presidents should issue signing statements 
announcing their own legal interpretations in the hope of influencing 
the way the courts would construe the law.
  On Executive power, ``Protective of the Executive Branch, the 
issuance of interpretative signing statements would have two chief 
advantages. First, it would increase the power of the executive to 
shape the law.''
  This is his view. But as Justice Hugo Black wrote in the steel 
seizure case, ``the President's power to see that the laws are 
faithfully executed refutes the idea that he is to be a lawmaker. The 
Constitution limits his functions in the lawmaking process to the 
recommending of laws he thinks wise and the vetoing of laws he thinks 
bad.''
  This is not just a theoretical case. As we all now know, President 
Bush issued such signing statements on a bill that contained Senator 
McCain's ban on torture. In that statement, the President reserved the 
right to ignore the McCain requirements and even asserted that in 
certain circumstances his actions are beyond the reach of the courts.
  I think many of us remember that meeting Senator McCain had with the 
President down in the White House, and the Senator from Arizona thanked 
the President for working out the language that would be included in 
the Defense appropriations bill and the President thanked him for his 
help and assistance in working that out. They both shook hands. This 
picture was on all three networks that night.
  Four or five days later, the President signed the bill, and he issued 
an executive signing statement that said he continued to retain all of 
his constitutional power, and that he was effectively taking any 
question of his Executive power out of the hands of any courts in this 
country. That is a complete reversal to what was agreed to, a complete 
reversal to what was said, a complete reversal to the understanding of 
the Senator from Arizona. The Senator from Arizona has spoken about it. 
That is Executive power.

  We learned in high school there are two branches of Government, the 
House and the Senate. They pass the law, the President signs it. It is 
the law. If he vetoes it, it is not the law. That is not Judge Alito's 
view. He believes the President, by signing it, has an independent 
voice and that voice is a voice that should be listened to and heard, a 
very bizarre view of Executive authority and Executive power.
  In cases involving claims of privacy and freedom from unjustified 
searches

[[Page S51]]

and seizures under the Bill of Rights, Judge Alito has consistently 
deferred to the Government at the expense of core individual rights. In 
the Doe v. Groody case, Judge Alito issued a dissent defending the 
strip search of a 10-year-old girl without authorization from a 
warrant. In his majority opinion, Michael Chertoff, former head of the 
criminal division in the Department of Justice, who is now President 
Bush's Secretary for Homeland Security, sharply criticized Judge 
Alito's view as threatening to turn the requirement of a search warrant 
into little more than a rubberstamp. This is not Democrats saying this; 
this is President Bush's Secretary of Homeland Security saying this. He 
was a judge on that circuit, criticizing this kind of action, extension 
of a search warrant, because of the inclusion of some kind of other 
document into the search warrant. We understand what Michael Chertoff 
was saying, and Judge Alito issued the dissent.
  In Mellott v. Heemer, Judge Alito reported it was reasonable for 
marshals to pump a sawed-off shotgun at a family sitting in their 
living room. The family committed no crime. Seven marshals had detained 
and terrorized a family and friends, ransacked their home while 
carrying out an unresisted civil eviction. Yet Judge Alito's decision 
meant the family never got a trial before a jury of their peers.
  Judge Alito's record in cases involving civil and individual rights 
shows a judge who repeatedly rules against individuals seeking justices 
for wrongs by the powerful. In Bray v. Marriott Hotels, a hotel worker 
claimed she was denied a promotion because she was an African American. 
The Third Circuit held she was entitled to a trial because the employer 
falsely stated she was unqualified and had evaluated her qualifications 
differently compared to White applicants. Judge Alito would have denied 
her the chance to prove her case. His colleagues on the court--not the 
Democrats on the committee--his colleagues on the court wrote that his 
dissent would have eviscerated key provisions of the landmark Civil 
Rights Act of 1964.
  His record in other areas of civil rights is also troubling. In the 
case in which a disabled person sought physical access to a medical 
school under the Rehabilitation Act of 1973, the court's majority wrote 
that few, if any, Rehabilitation Act cases would survive if Judge 
Alito's view prevailed. That is the majority, not Members of the 
Democratic Party. That is the majority of the court members, looking at 
his view.
  There it is--issues on race, issues on disability, individual rights 
and liberties, those individuals, farmers, and others in a home 
involving a civil action, who committed no crime, where marshals used 
gestapo-like tactics. They were denied an opportunity for a court to 
give a hearing. Judge Alito said no. That is why many Members wonder 
what kind of an opportunity the average American is going to have.
  Does Judge Alito tip more to the powerful and the entrenched 
interests and the Executive authority? Does he give those individuals--
women, minorities, disabled workers--a fair shake?
  Judge Alito said, let's look at the record. We have looked at the 
record. We looked at primarily the dissents, as pointed out in the 
previous discussions.
  Ruth Bader Ginsburg, who is considered to be a more progressive 
figure on the Court, Judge Bork, a conservative figure who was proposed 
for the court, agreed 91 percent of the time. It is in the dissent that 
we understand whether an individual and individual rights are 
protected. Those are the indicators. As we have seen from studies--not 
just from the members of the Judiciary Committee but by independent 
sources--Knight Ridder, Yale Law School Study Group, even the 
Washington Post, Cass Sunstein, a distinguished authority and 
thoughtful individual about constitutional law--all have reached a very 
similar conclusion that I have outlined here. We will hear on the other 
side: Well, they are only finding a few cases. We have suggested and 
included in the record of the Judiciary Committee this happens to be 
the prevailing position of the nominee.
  In another case, a jury ruled a woman had provided enough evidence to 
show that she had wrongly lost her job because of sex discrimination. 
Ten members of the Third Circuit who heard the case on appeal agreed. 
Only Judge Alito argued that she had not provided adequate proof of 
discrimination. Who is out of step? Who is out of step? Who is out of 
the mainstream?
  In the Riley v. Taylor case, Judge Alito dissented from a ruling 
prohibiting the removal of African-American jurors because of their 
race. It is unbelievable in today's America, in a case involving a 
minority defendant, that he was willing to ignore the overwhelming 
evidence that the Government insisted on an all-White jury for a Black 
defendant. He found no problem with that and with their inclusion for 
the death penalty. Eventually, that case was overturned, as it should 
have been. What was going on in the mind? We talk of equal justice 
under law. We see what has happened to individuals. We see what has 
happened in this extremely important judicial proceeding.
  Many of Judge Alito's other decisions demonstrate a similar tendency 
against the individual. In Rouse v. Plantier, a group of diabetic 
inmates sued prison officials for being deliberately insensitive to 
medical needs. The trial court held there was enough evidence for the 
jury to decide whether the inmates' constitutional rights had been 
violated. Judge Alito refused to allow the jury to decide whether the 
Government was responsible for a broad systematic failure to provide 
the necessary medical group. These inmates had diabetes. We know the 
dangers of diabetes. One out of four of our Medicare dollars is spent 
on diabetes. One out of 10 of all health dollars is spent on diabetes. 
It can be devastating, leading to blindness, or the losing of a limb, 
more often the leg. They need attention and treatment.
  This is a serious problem that is increasing in our society. There 
was a systematic failure in terms of providing for that. They thought 
it should go to the jury. Was it or was it not a factual issue? The 
lower court said they ought to be able to go, but not Judge Alito. He 
reached a different conclusion.
  In case after case, Judge Alito's decisions demonstrate a systematic 
tilt toward powerful institutions and against individuals attempting to 
vindicate their rights. He cites instances where he has decided for the 
little guy, but they are few and far between. We have an independent 
duty to evaluate Supreme Court nominees to determine whether their 
confirmation is in the best interests of our Nation. That is the test. 
It is a test with which Judge Alito himself seems to agree. He said we 
should look at his record and decide whether he should be confirmed. I 
have done so. I have compared the challenges the Court will face in the 
future with Judge Alito's record and I cannot support his nomination.
  In this new century, the Court will undoubtedly consider sweeping new 
claims to expand Executive power at the expense of core individual 
rights, including detention of Americans on American soil without 
access to counsel or the court, and eavesdropping on Americans in 
violation of Federal law.

  The Court will decide new issues in America's struggle against 
prejudice and discrimination. It must remain a fair and impartial 
decisionmaker for ordinary Americans seeking justice.
  Justice Alito's record shows he should not be entrusted with these 
vital decisions facing our Nation's Court, and I urge my colleagues to 
join me in opposing Judge Alito's nomination.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Thank you, Mr. President. I thank my colleague from the 
Commonwealth of Massachusetts for his statement.
  Those who are following this debate--my colleagues and those in the 
audience--should know this is a historic moment in the Senate. It is 
rare that Members of the Senate are given an opportunity to review a 
Justice to the Supreme Court. It has been 11 years. Recently, we have 
had two. Chief Justice John Roberts came before the Senate, and today 
we consider the nomination of Judge Sam Alito to fill the vacancy of 
Sandra Day O'Connor on the Supreme Court.
  I take this very seriously. As Senator Kennedy said yesterday in 
another meeting: Next to a vote on war, there is nothing more serious 
than this decision. The man or woman whom we choose to serve on the 
Supreme Court

[[Page S52]]

is there for the rest of their natural life. For 10, 20, or 30 years, 
that person will be making critical decisions on the highest Court in 
the land, the Court which is the refuge for our freedoms and our 
liberties.
  That Court, across the street from this Capitol Building, has made 
momentous and historic decisions which have literally changed America. 
In the 1950s, nine members of the Supreme Court made the decision that 
we would no longer have segregated public education in America. It was 
not the leadership of a President or the Congress, but it was the 
Court.
  Similarly, that same Court, in the 1960s, established a new right 
under our Constitution, a word which you cannot find within the 
confines of that document, the right of privacy. That Court--nine 
Justices across the street--said that when it came to the most personal 
and basic decisions in our lives, they were reserved to us as 
individuals, not to the Government. That was not a finding by a 
President. It was not a law passed by Congress. It was a decision of 
the Supreme Court.
  And time and again, whether we are speaking of the rights of 
minorities in America, women in America, those who are disabled, that 
Court and the nine Justices who sit on the bench make decisions which 
change America for generations to come. That is why the selection of a 
nominee to the Supreme Court is so important and so historic. It is 
made even more so by the fact that the vacancy we are filling on the 
Supreme Court is not another run-of-the-mill vacancy, it is the vacancy 
of Sandra Day O'Connor, the first woman ever appointed to the U.S. 
Supreme Court.
  As important as her gender is, the fact is, she brought unique 
leadership to the Court. You see, over the last 10 years, there have 
been 193 decisions in that Court that were decided 5 to 4. One 
Justice's vote made the difference. If one Justice had voted the other 
way, the decision would have been the opposite--193 times in 10 years. 
And in 148 of 193 cases, Justice Sandra Day O'Connor was the deciding 
vote.
  So we are not only faced with a historic and constitutional challenge 
in filling this vacancy, we have a special responsibility because the 
vacancy that is being filled is a vacancy that will tip the scales of 
justice in America one way or the other way.
  What kind of cases did Sandra Day O'Connor provide the decisive vote 
on? Cases which safeguarded Americans' right to privacy in the area of 
reproductive freedom, the rights of women; cases that required 
courtrooms to be accessible to people with disabilities, decided 5 to 
4; preserving the rights of universities to use affirmative action 
programs, decided 5 to 4; affirming the right of State legislatures to 
protect the voting rights of minorities in America, decided 5 to 4; 
upholding State laws giving individuals the right to a second doctor's 
opinion if their HMO denied them treatment, decided 5 to 4; reaffirming 
the Federal Government's authority to protect the environment that we 
live in, a 5-to-4 case; and reaffirming America's time-honored 
principle of the separation of church and State, 5 to 4.

  In every single case, the fifth vote was Sandra Day O'Connor. And now 
she leaves, after many years of service to America, with an 
extraordinary record of public service. Many of us are listening, 
watching, and reading to make certain the person replacing her can rise 
to the challenge, and not only the challenge of serving in the Court 
but the challenge of fighting for the same values she fought for. 
Sandra Day O'Connor came to the Supreme Court with the support of Barry 
Goldwater, the preeminent conservative in American politics in the 
1960s and beyond. Many expected her to be of the same stripe, that she 
would follow his basic philosophy. In many ways, she did because if you 
measure Barry Goldwater's contribution to American politics, you will 
find him starting in a very conservative position and, over the years, 
moving to a more libertarian position, a position that valued personal 
freedom more.
  The same thing happened to Sandra Day O'Connor. Starting as a 
conservative, over the years she moved toward a more libertarian 
position, a position which, in many instances, was critical for 
protecting our basic rights.
  It has been said she was the most important woman in America. And it 
is easy to see why. Time and again, Sandra Day O'Connor was the crucial 
fifth vote on civil rights, human rights, women's rights, and workers' 
rights. That is why we have looked so closely and so carefully at Judge 
Sam Alito.
  And there is more. His was not the first name to be suggested by the 
President for this vacancy. The first name was the President's personal 
attorney in the White House, Harriet Miers, a person he obviously 
respects very much. Do you recall what happened to her nomination? Her 
name was brought forward, and there was a firestorm of criticism about 
Harriet Miers' nomination. Did it come from the Democrats? Did it come 
from liberals? No. It came from the other side. Time and again, the 
most rightwing on the American political scene said Harriet Miers was 
not acceptable, and they raised questions about whether she could be 
trusted to be on the Supreme Court to advance their rightwing agenda.
  Their opposition to her nomination grew to a level and reached a 
point people did not think would happen. President Bush withdrew 
Harriet Miers' name as a nominee. In the wake of withdrawing Harriet 
Miers' name, in sailed Judge Sam Alito--not the best circumstance for 
someone who is coming to this position arguing they have no political 
agenda.
  Well, we looked carefully to see what the same rightwing 
organizations would say about Sam Alito. They had rejected Harriet 
Miers. They gave Harriet Miers the back of a hand. They gave Sam Alito 
their blessing. They said: He is fine. We support him. He is the right 
person for the job.
  Now, does that raise a question in your mind as to whether Judge 
Alito will come to this position without an agenda, without professing 
some allegiance to extreme views these organizations hold? Will it 
raise the question in the minds of many of us?
  And then, during the course of his nomination, there emerged a 
document, a document he had personally written. In 1985, Sam Alito 
wrote a document to the Justice Department of the Reagan 
administration, then headed by Attorney General Ed Meese, looking for a 
job. In the course of that document he was supposed to lay out why he, 
Sam Alito, was in step with the Reagan administration's thinking and 
philosophy. And, in 1985, that memo was explicit. It went through page 
after page of the things he felt qualified him to serve in that 
administration.
  Some have said: Wait a minute, that was 20 years ago. People change. 
And it is true. I have changed my positions on some issues. It is well 
known and documented. It happens. But to say it was a document given 
without conviction overlooks the obvious. Sam Alito, at that moment in 
1985, was 10 years out of Yale Law School. He had served in the 
military. He served a year as a clerk to a Federal judge. He had served 
4 years as an assistant U.S. attorney, prosecuting cases, and 4 years 
as an assistant to the Solicitor General of the United States.
  So rather than suggesting that document reflected the casual 
observations of someone looking for a job at a very early age, I think 
that document told us much more.
  What it told us was that he questioned some very fundamental things 
about law in America. In his essay, he wrote that ``the Constitution 
does not protect a right to an abortion.'' He said he was proud of his 
work in the Justice Department, fighting abortion rights and 
affirmative action. He wrote that he was skeptical of Warren court 
decisions which embraced the principle of ``one person, one vote'' and 
the separation of church and state. And he pointed with pride to his 
membership in two very conservative organizations: The Federalist 
Society and the Concerned Alumni of Princeton.
  His listing of the Concerned Alumni of Princeton, of which he was a 
graduate, was troubling because that organization was once dedicated to 
establishing a quota at Princeton that each year they would accept no 
fewer than 800 men, and the Concerned Alumni of Princeton wanted to 
stop what they considered to be the infiltration of the Princeton 
student body by women and minorities. Some of the things they wrote and 
said were outrageous. In fairness, Judge Alito at the hearing

[[Page S53]]

said he would not associate himself with their remarks, but it is 
interesting that he would identify this organization as one of his 
memberships that would qualify him to serve in the Justice Department.
  As an examination of Judge Alito's 15-year track record on the U.S. 
Court of Appeals evidences, there are other elements that suggest a 
very conservative judge. University of Chicago law professor Cass 
Sunstein examined his dissenting opinions over 15 years and concluded:

       When they touch on issues that split people along political 
     lines, Alito's dissents show a remarkable pattern: They are 
     almost uniformly conservative.

  People say to me: If he was found ``well qualified'' by the American 
Bar Association, what is wrong with that? Why don't you just go ahead 
and approve the man? The bar association is an important part of this 
process, but they only look to three main things. They look to whether 
he has legal skills. That is important. They look to whether he is an 
honest person. That is equally important. And they look to his 
temperament. They said he is well qualified by those three standards. 
But the American Bar Association doesn't look to his values. It doesn't 
look to his philosophy, how he is likely to rule in critical cases for 
America.
  I wanted to ask Judge Alito at the hearing: Where is your heart? What 
do you feel about the power you will have as a Supreme Court Justice? I 
asked him an obvious question in the lead-up to my inquiry: I asked if 
he was a fan of Bruce Springsteen. You might wonder why that would come 
up in this case. Judge Alito is from New Jersey, as is Bruce 
Springsteen. He said to me in his answer:

       I am--to some degree.

  That is a qualified answer, but I took it and went on. The reason I 
raised it was this: Many people have asked Bruce Springsteen, Where do 
you come up with the stories in your songs? How do you talk about all 
these people who are struggling in America? He answered:

       I have a familiarity with the crushing hand of fate.

  The reason I asked that question was to go to some specific cases 
Judge Alito had decided and ask him about the crushing hand of fate. 
Senator Kennedy just mentioned one of them.
  An African American, charged with murder, facing the possibility of 
the death penalty, argues on appeal that his verdict was unfair because 
the prosecutor went out of his way to exclude every African American 
from the jury so that it was an all-White jury judging a Black man. He 
presented his evidence that in three other murder trials, one involving 
an African American, the other two White defendants, the prosecutor had 
done the same thing--kept the Blacks off the jury systematically. The 
Third Circuit Court on which Judge Alito served said that defendant was 
right; that is not something we accept in America; we are going to send 
this case back to be retried by a jury of this defendant's peers. They 
saw the importance of a justice system that is blind to race.
  But not Judge Alito. He said establishing the fact that four murder 
trials came before the same prosecutor with all White juries is like 
establishing that five out of six of the last Presidents were left 
handed. I thought that was a rather casual dismissal of an important 
case and an important principle. When I asked Judge Alito about it, he 
seemed more committed to the principles of statistics than the 
principles of racial justice which the majority in his court applied.
  Another case involved an individual who was the subject of harassment 
in the workplace. This person had been assaulted by fellow employees. 
He was a mentally retarded individual. He was so brutally assaulted in 
a physical manner that I did not read into the record of the hearing, 
nor will I today, the details. Trust me, they are gruesome and grisly. 
His case was dismissed by a trial court, and it came before Judge Alito 
to decide whether to give him a chance to take his case to a jury. 
Judge Alito said no, the man should not have a day in court. Why? Not 
because he didn't have a case to argue, but Judge Alito believed that 
his attorney had written a poorly prepared legal document before his 
court. Was there justice in that decision? Did the crushing hand of 
fate come down on an individual who was looking for a day in court who 
happened to have an attorney without the appropriate skills?
  When it came to health and safety questions involving coal mines, a 
topic we see in the news every day, Judge Alito was the sole dissenter 
in a case as to whether a coal mining operation would be subject to 
Federal mine and safety inspection. He argued in the committee hearing 
that he just read the law a little differently.

  What we find in all these cases is a consistent pattern. Time and 
again, it is the poor person, the dispossessed person, the one who is 
powerless who has finally made it to his court, who is shown the door. 
That troubles me. It troubles me because what we are looking for in a 
Justice is wisdom.
  If you are a student of the Bible--and I am not--you know this: The 
person who embodies the virtue of wisdom was a man named Solomon. In 
the Bible, the Lord came to Solomon and said: I will give you a gift. 
What gift would you have? And Solomon said: I want a caring heart. He 
didn't ask for riches or knowledge; he asked for a caring heart. This 
wise man wanted that as part of who he was.
  That is what I looked for with Judge Alito. Sadly, in case after 
case, I couldn't find it. I worry that if Judge Alito goes to the 
Highest Court in the land for a lifetime appointment, he will tip the 
balance of the scales of justice. He will tip the balance against 
protecting our basic privacy and personal freedoms. He will tip the 
balance in favor of Presidential power, even when it violates the law. 
He will tip the balance when it comes to recognizing the rights of the 
powerful over the powerless. He will tip the balance on workers' rights 
and civil rights and human rights and women's rights and protecting the 
environment. That is why I cannot support his nomination.
  I call on the President to send to us a conservative like Sandra Day 
O'Connor. She was a woman who demonstrated, in a lifetime of service, 
that she understands the values of this country and committed her life 
to protecting them. I am sorry that Judge Sam Alito does not live up to 
her standard.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Texas.
  Mr. CORNYN. Madam President, before I make the remarks I have 
prepared about Judge Alito, I extend my gratitude to members of my 
staff who, as a member of the Judiciary Committee, have been so 
instrumental in my ability to prepare for this confirmation process.
  In particular, I note the contribution of Brian Fitzpatrick, who has 
been a member of my staff and worked on both the Roberts and Alito 
Supreme Court nominations. He is leaving next week after Judge Alito is 
confirmed to the U.S. Supreme Court, as he will be, to go teach at NYU, 
New York University. NYU's gain is our loss. I certainly wish Brian 
well in his new career. I put him on notice that the next vacancy that 
President Bush gets to the U.S. Supreme Court, I am going to be calling 
him and asking him to come back for another gig.
  Madam President, I rise today to explain why I intend to vote to 
confirm Judge Alito to the U.S. Supreme Court. Those who were just 
listening to the eloquent words of the distinguished Democratic whip 
might wonder how in the world anybody could ever vote for this nominee; 
how Judge Alito survived for the last 15 years serving as a member of 
the circuit court of appeals in Philadelphia without getting impeached; 
how in the world his former law clerks, the people who have worked most 
closely with the judge, and who happened to be Democrats and have a 
different political view, a different world view, a different agenda, 
could come in as they did before the Senate Judiciary Committee and 
extol the qualifications and temperament of this fine public servant 
and this fine human being; or how, possibly, in listening to the 
criticisms we have heard of this nominee and of the President for 
having the temerity to nominate him, you can reconcile that impression 
with the fact that we heard on the Senate Judiciary Committee virtually 
all of the current and former members of the Third Circuit Court of 
Appeals who have worked closely with Judge Alito day in and day out, 
who to a person

[[Page S54]]

came in and said this is exactly the kind of judge we would want and we 
think the American people would have a right to expect, and urged us to 
favorably vote on his confirmation.
  It is clear to me, though, during the course of the confirmation 
process, that the reason I support Judge Alito his philosophy of 
judicial restraint is exactly the reason his detractors oppose his 
nomination. The sad fact is that there are some in this country who 
don't want judges who respect the legislative choices made by the 
American people. Rather, they want judges who will substitute their own 
personal ideological or political agenda for those choices made in the 
Halls of Congress by the elected representatives of the American 
people.
  There are some in this country who have views that are so out of the 
mainstream that they don't have any chance to persuade the American 
people to accept them. For example, there are some who want to end 
traditional marriage between one man and one woman. There are some who 
want to continue the barbaric practice of partial-birth abortion. Some 
even want to abolish the Pledge of Allegiance. But they know if they 
brought some of those issues to the floor of the Senate and to the 
floor of the U.S. House of Representatives, these are not the views 
that would be expressed through the elected representatives of the 
American people because the American people themselves don't agree with 
these far left, out-of-the-mainstream views.
  For these advocates of these out-of-the-mainstream views, the only 
way they will ever see their views enacted into law is to circumvent 
the American people and pack the courts with judges who will impose 
their agenda on the American people. They believe in judicial activism 
because judicial activism is all they have.
  Of course, Judge Alito's detractors will never say they believe in 
judicial activism. They know the American people don't favor it. They 
know the American people believe fervently in democracy and self-
determination, and they don't want unelected judges making the laws of 
this country. So Judge Alito's detractors are forced to oppose his 
nomination on the basis of certain pretexts. They are forced to grasp 
for any means they can to try to defeat his nomination. As one of Judge 
Alito's detractors put it, ``you name it, we will do it'' to defeat 
Judge Alito.
  One of their favorite pretexts--and we have heard some of it this 
morning--is that Judge Alito embraces this view of an omnipotent 
executive branch; that he believes the President's powers are without 
limitation. This pretext is a complete canard. It is based on the claim 
that Judge Alito once endorsed an academic theory called the unitary 
executive. But a unitary executive is not the same as an all-powerful 
executive. It is, after all, a theory that says there are three coequal 
branches of Government--executive, legislative, and judicial. And each 
official within that each branch is accountable to the people for the 
power they exercise and is delegated to them by the Constitution and 
laws of the country.
  But to show how misplaced this criticism is, according to Judge 
Alito's opponents, the father of the unitary executive theory is 
Justice Scalia on the U.S. Supreme Court. The problem they have is that 
the facts show that Justice Scalia does not favor an all-powerful 
President. No one does. We know this in particular from the decision he 
wrote in the Hamdi case 2 years ago. This was a case where the 
detention status of some of the terrorists who are kept at Guantanamo 
Bay was being reviewed by the Supreme Court. In that case, in the 
opinion written by Justice Sandra Day O'Connor, the Supreme Court held 
that the President had the power as Commander in Chief, during a time 
of war, to indefinitely detain even American citizens who were 
suspected of terrorism without filing criminal charges against them. 
Justice Scalia, perhaps one of the most conservative members of the 
Court, dissented from that, saying the President had no such power; 
that it was unconstitutional for him to do so. His views did not carry 
the day, but indeed of all of the Justices, Justice Scalia, the father 
of this unitary executive theory, was least deferential to the powers 
of the President. Judge Alito doesn't believe the President's powers 
are unlimited any more than Justice Scalia does.
  Now, one of the witnesses we had during the course of the hearing--I 
mentioned several former and current members of the Third Circuit Court 
of Appeals. One of them who testified interestingly and relevant to the 
point was Judge John Gibbons who has since left the judiciary and has a 
law practice where he represents the detainees at Guantanamo Bay. He 
said:

       The committee members should not think for a moment that I 
     support Judge Alito's nomination because I am a dedicated 
     defender of the Bush administration. On the contrary, I and 
     my firm have been litigating with that administration over 
     its treatment of detainees held at Guantanamo Bay.

  He said:

       I am confident that as an able legal scholar and a fair-
     minded justice, Judge Alito will give the arguments, legal 
     and factual, that may be presented on behalf of our clients 
     careful and thoughtful consideration, without any 
     predisposition in favor of the position of the executive 
     branch.

  That is another example of how those who know this man best simply 
believe that he will be a fair-minded judge and he will not be unduly 
deferential to the President, the executive branch, or anyone else for 
that matter, and that he will faithfully discharge his responsibilities 
under the Constitution and laws.
  Another favorite pretext of the opponents of this nomination is that 
as a replacement for Justice O'Connor, this nominee, Judge Alito, will 
shift the Supreme Court radically to the right. But in order to believe 
this or support this supposed theory, they have to radically rewrite 
history. It requires them to paint Justice O'Connor as some sort of 
liberal.
  But the truth is far different. For example, according to the Harvard 
Law Review, over the last decade, the Justice on the Court with whom 
Justice O'Connor agreed most frequently--over 80 percent of the time--
was former Chief Justice William Rehnquist.
  I think we will all acknowledge that Chief Justice Rehnquist was no 
liberal. Yet Sandra Day O'Connor and Chief Justice William Rehnquist 
agreed with each other more than 80 percent of the time.
  Indeed, in subject matter after subject matter, Justice O'Connor sees 
eye to eye with what Judge Alito has demonstrated on the bench and said 
how he will approach his job on the Supreme Court. Both believe in 
federalism, that Congress is not above the law and its powers are not 
unlimited but, rather, they are, under the Constitution, limited and 
enumerated, and that some powers are still reserved to the States and 
the people.
  That is not an out-of-the-mainstream view. Justice O'Connor shares 
that view. The Founders of this country shared that view, and I believe 
the American people believe that the people have retained some rights 
and the States have retained some rights against an all-powerful 
Federal Government. Judge Alito happens to believe that as well.
  Justice O'Connor and Judge Alito both struck down some affirmative 
action programs that resulted in reverse discrimination based on strict 
numerical quotas. And yes, both have even criticized Roe v. Wade. The 
truth is that if Justice O'Connor were the nominee today, she would 
meet with just as much opposition as Judge Alito has. The confirmation 
process has simply become a no-win situation.
  Another favorite pretext of the opponents of this nominee is that he 
is somehow biased against the mythical little guy. That he always rules 
against the little guy in favor of the big guy. The basis for this 
pretext is a litany of cases his opponents cite where Judge Alito has 
sided against a sympathetic plaintiff. This pretext suffers from a 
number of flaws.
  The first flaw is a selective reading of Judge Alito's record. Judge 
Alito has been a judge for 15 years. He has decided plenty of cases in 
favor of consumers, medical malpractice victims, employment 
discrimination victims, and other plaintiffs. In other words, he has 
decided plenty of cases for the little guy. But his opponents ignore 
all of these cases and focus only on the cases where he has decided 
against a sympathetic plaintiff. Anyone who has looked at his entire 
record has found the claim of bias to be completely without merit, 
indeed, including the Washington Post. The Washington Post did an 
analysis of

[[Page S55]]

Judge Alito's entire record and found he is no more likely than the 
average appeals court judge to rule for businesses, for example, over 
individuals. And, yes, I said the Washington Post and not the Wall 
Street Journal.
  Moreover, any notion that Judge Alito has a special bias against 
victims of racial discrimination is as false as it is demeaning. The 
people who know Judge Alito best testified at length that he applies 
the law in a fair and evenhanded manner without fear or favor. Indeed, 
perhaps most instructive is the evidence from the late Judge Leon 
Higginbotham. He has passed on, but his comments are part of the 
record.
  Judge Higginbotham was something of a civil rights hero, as many 
people know. He was president of the Philadelphia chapter of the NAACP, 
was awarded the Presidential Medal of Freedom, and was appointed to the 
U.S. Civil Rights Commission by President Clinton. This is what he had 
to say about Judge Alito:

       Sam Alito is my favorite judge to sit with on this court. 
     He is a wonderful judge and a terrific human being. Sam Alito 
     is my kind of conservative. He is intellectually honest. He 
     doesn't have an agenda. He is not an ideologue.

  Judge Higginbotham, a hero to the civil rights movement in this 
country, would never have made such glowing remarks if he believed for 
an instant that Sam Alito was guilty of some of the false charges being 
made against him.
  More fundamentally, however, the claims that Judge Alito is biased 
against the little guy are based on a misconception of how judges are 
supposed to behave. Judges are not supposed to decide cases on 
sympathy. Just as we ask jurors when they come into our courtrooms all 
across this great country to put aside their sympathies, biases, and 
prejudices and decide the cases based on the evidence they hear in 
court and the law as given to them by the judges--and they do it, day 
in and day out, faithfully and to really an exceptional degree--of 
course, we expect judges not to decide cases on sympathy. The kind of 
arguments we are hearing suggest that judges ought to pick out the 
party they like best, the most sympathetic, and rule in their favor 
without regard to the facts and without regard to the law.
  One would not know by listening to some of Judge Alito's opponents 
that he is a fairminded judge. In the America of his opponents, no 
plaintiff ever loses a case; no entrepreneur ever wins no matter how 
frivolous the claim of employment discrimination; police departments 
never win a case no matter how desperate the claim of a criminal 
defendant; Government agencies, including the Environmental Protection 
Agency and the Social Security Administration, could never win a case 
no matter how outlandish the request for Government benefits. In their 
utopia, the economy is wrecked by frivolous litigation, criminals run 
free on technicalities, and the public Treasury is plundered.
  This admittedly, and thankfully, is not Judge Alito's America. He 
believes that no one is above the law--not the President, not the 
Congress, not even the little guy. That is why Lady Justice has always 
been blindfolded.
  America is a nation of laws, not of men and women, not of little 
guys, not of big guys, but a nation of laws. It should not matter who 
you are, how you pronounce your last name, what your country of origin 
is, your race, or any other extraneous consideration when you enter the 
halls of justice. We are all guaranteed, under the words that are 
etched over the marble leading into the Supreme Court, ``equal justice 
under the law.''
  Everything in his record shows that these extraneous considerations 
don't matter to Judge Alito. This is why people of good faith from all 
across the political spectrum have testified and given testimonials in 
support of his work as a judge and on behalf of his nomination to the 
Supreme Court. This is also why I believe he will be confirmed by the 
Senate.
  Madam President, I could not be happier to throw my support behind 
this good man, this good judge, and this public servant.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. ALLEN. Madam President, I rise to echo and add to the remarks of 
the Senator from Texas, Mr. Cornyn. On this first day of debate, I rise 
to express my strong support for the confirmation of Judge Samuel Alito 
to be a Justice on the Supreme Court of the United States of America.
  There has been much discussion, advertising on the radio, in 
newspapers, and on television. There has been commentary about Judge 
Alito, and that is fine. That is the way it should be. Federal judges 
are appointed for life. This is the only time that the people's 
representatives--those of us in the Senate--have an opportunity to 
scrutinize an individual who has been nominated for the Federal bench 
in a lifetime appointment. So that scrutiny is appropriate. I am 
hopeful that this scrutiny and this discussion will be of a civil 
nature. Sometimes it has not been, over the last several years in this 
body.
  I do believe, though, that all nominees who are reported out of a 
committee, whether the Judiciary Committee--for that matter, any 
committee--Foreign Relations, or other committees, ought to be accorded 
the fairness of an up-or-down vote at the end of this gauntlet. If you 
are going to make someone go through all of this, have all these slings 
and arrows, some relevant, some tangential, and some completely 
irrelevant. If they are going to go through all of this, they ought to 
be accorded the fairness of an up-or-down vote.
  I believe if the approaches taken over the last several years for 
certain nominees continue, as a threat or as an actual practical 
impediment to someone receiving a vote, it will make it much more 
difficult for any President to be able to recruit from the private 
sector qualified men and women who have the experience, the 
personality, the insight, the leadership, and the ability to serve our 
Government. That might be in a variety of different fields. That is why 
I think it is important that we as Senators change and stop this 
practice of holding up nominees and not according them the fairness of 
an up-or-down vote.
  With John Roberts to be Chief Justice of the Supreme Court, we 
allowed a lot of commentary and a vote. I hope the same will occur for 
Judge Alito.
  There have been indications from those on the other side of the aisle 
that they are reserving the right to filibuster, or require a 60-vote 
majority to have a vote on the confirmation of Judge Alito. My reaction 
is if they move forward with such a filibuster, ``make my day.'' We 
will enjoy pulling the constitutional trigger to allow Judge Alito a 
fair or up-or-down vote.
  I don't think it is too much to ask Senators to come here when the 
nomination is called forth to get off these cushy seats, stand up 
straight, and vote yes or vote no. That is a matter of fairness. It is 
also our constitutional responsibility in advise and consent.
  When analyzing or determining whether I am going to support a 
particular judicial nominee, what matters most to me for these lifetime 
appointments is trying to discern that nominee's judicial philosophy. 
Trying to determine whether they believe what they are saying as to 
what they think the proper role of a judge will be.
  We have seen through the years that certain individuals get appointed 
for a lifetime appointment, and they end up being completely different 
than what they have said in the hearings, in interviews with the 
President, or interviews with the Senators. Past performance is, in my 
view, usually a reliable indicator of future action.
  In my view, regarding this particular nomination of Judge Alito, the 
best way to determine what kind of Justice Samuel Alito will be on the 
Supreme Court is to look at his 15 years of services as a circuit court 
judge. In his years on the bench, he has embodied the philosophy I like 
to see in judges. I believe the proper role of a judge is to apply the 
law, not invent the law. Judges are to uphold the Constitution, not 
amend it by judicial decree.
  The proper role of a judge is to protect and indeed defend our God-
given rights, not to create or deny rights out of thin air. They are 
not to act as a legislator.
  In Judge Alito's case, no matter the issue, whether or not they are 
politically charged issues in the realm of electoral politics, he 
seems, from my reading and review, to have followed a

[[Page S56]]

consistent, thoughtful, deliberative process to decide cases.
  This is what judges are supposed to do. They are not supposed to be 
issuing cases based on predetermined ideology, or an eye toward future 
confirmation hearings. They should faithfully apply the law. They ought 
to apply the evidence before the court to the law in that particular 
case before the court.
  As he stated in his opening statement before the Judiciary Committee, 
Judge Alito recognized a judge's only obligation is to the rule of law. 
And in every single case, the judge has to do what the law requires. In 
my opinion, that is the essence of the fair adjudication of disputes. 
There is credibility, there is reliability, and there is integrity in 
that approach. Judge Alito has exemplary, scholarly, and experienced 
qualifications--and especially the proper judicial philosophy--to serve 
honorably as a Justice on the Supreme Court of the United States.
  In Judge Alito's 15 years on the Third Circuit Court of Appeals, he 
has demonstrated his understanding of the proper role of a judge in our 
constitutional system of Government, and will apply the law fairly and 
equally.
  Judge Alito, in my view, genuinely respects the rule of law in our 
representative democracy. In recognition of Judge Alito's outstanding 
service on the Federal bench, the American Bar Association has given 
him their highest rating of well qualified. The American Bar 
Association's criteria for their evaluation are integrity, 
professionalism, competence, and judicial temperament.
  Let me share with my colleagues what Stephen Tober, the chairman of 
the American Bar Association Standing Committee, had to say.
  He said:

       On The Federal Judiciary: ``Needless to say, to merit an 
     evaluation of well-qualified, the nominee must possess 
     professional qualifications and achievements of the highest 
     standing. . . . We are ultimately persuaded that Judge Alito 
     has, throughout his 15 years on the Federal Bench, 
     established a record of both proper judicial conduct and 
     even-handed application in seeking to do what is 
     fundamentally fair. . . . His integrity, his professional 
     competence and his judicial temperament are, indeed, found to 
     be of the highest standard.''

  That came from Chairman Tober on January 12 of this year.
  Judge Alito also provided to all of us an indication of his 
temperament and qualifications during his confirmation hearings, which 
went on for several days and many hours of hearings. He answered over 
700 questions, explaining his thought processes, judicial philosophy, 
and I think very credibly dispelling some of the misstatements about 
his record of service.
  Judge Alito was even forced to defend the statements of others when 
he was questioned about the Concerned Alumni of Princeton. That is a 
group that apparently Judge Alito joined when he was a member of the 
Armed Services because he didn't agree with the way the military was 
treated on the Princeton campus. As a result, some of the Democratic 
Senators tried to diminish Judge Alito. The Wall Street Journal had an 
editorial on January 12 of this year where they said they are trying to 
find him guilty by ``ancient association.'' Let me quote from the Wall 
Street Journal editorial page of that date.

       They can't touch him on credentials or his mastery of 
     jurisprudence, so they're trying to get him on guilt by 
     ancient association. Senators Ted Kennedy and Chuck Schumer 
     did their best yesterday to imply that Judge Alito was racist 
     and sexist by linking the nominee with the views of some 
     members of Concerned Alumni of Princeton, which back in the 
     1970s and 1980s took issue with university policies on 
     coeducation and affirmative action.

  Of course, Judge Alito said he didn't agree with any of that. He was 
concerned about fair access for our military recruiters on campus.
  The closing lines in the Wall Street Journal editorial stated:

       As for Judge Alito's prospects, if this irrelevant arcania 
     is the most his opponents have, he can start measuring his 
     new judicial robes.

  Another comment made by some members of the Judiciary Committee is 
they don't have the assurance that the judge firmly believes in 
precedent. They criticize him for apparently having an open mind.
  What some Senators choose to do is not recognize that there are times 
where precedent should be overturned such as the Court overruling 
Plessy v. Ferguson and Korematsu v. United States.
  Also, as time changes and our country develops, the case law that 
comes before the Supreme Court also changes, to recognize the advances 
in technology and science.
  In Roe v. Wade, Justice Blackmun recognized that advancements in 
medical science will impact the trimester standard for when the State's 
interest in life begins.
  As constitutional jurisprudence moves forward, Judge Alito, with his 
understanding that stare decisis is not an ``inexorable command,'' 
makes a great deal of sense. We have seen that throughout the history 
of our country.
  There were some comments made during his confirmation process by the 
groups objecting to the nomination of Judge Alito that they disagree 
with the conclusion he reached after an independent review of the facts 
of a particular case. While these groups, and all Americans, have an 
important role in a free society and deserve to state their view, they 
also in some cases are distorting the proper role of a judge. On the 
bench, Judge Alito has not been a partisan activist. To the contrary, 
there have been no substantive claims that any litigant before Judge 
Alito did not have a fair and impartial hearing of their case. Factors 
whether a President should be overturned, or modified--there are many 
factors, such as the nature of the original decision, whether that 
precedent has been changed, or there is a desire on the part of the 
people who are the owners of the Government to change it. Another 
factor could be whether the precedent has been undermined by subsequent 
decisions or new facts or new laws.

  Court decisions have been changed over the years because they have 
proven to be unworkable. The Court has overruled many decisions. Of 
course, Brown v. Board of Education overruling Plessy v. Ferguson is 
probably the prime example and illustrates that no precedent is 
untouchable. The Court should not be required to stick to bad law--in 
that case, separate but equal.
  Judges do not run for office. They cannot and should not make 
campaign promises that are, in fact, prohibited. They are prohibited 
from doing so by the Code of Judicial Conduct of the American Bar 
Association. They also should not be judged on the basis of statements 
they made when working for elected public servants in the legislative 
or executive branches of Government. They should be judged by their 
record of service.
  Again, with Judge Alito, we see a person with 15 years of judicial 
experience. We have seen, in too many cases, with the lifetime-
appointed Federal judges, a complete disregard for the will of the 
people and their elected representatives who are supposed to be making 
the laws reflecting the will and the values of the people in particular 
States or maybe the Nation in our representative democracy.
  People wonder: Why do we care about the activist judges? Why does 
judicial philosophy matter? I will go through recent decisions by 
activist judges who forget their role is to apply the law, not invent 
the law.
  In California, certain counties thought it was a good idea to have 
children in schools say the Pledge of Allegiance. When I was Governor 
of Virginia, we passed such a law. But someone out there in the Ninth 
Circuit thought, no, we cannot have the Pledge of Allegiance in public 
schools in California because of the words ``under God.'' That is an 
example of judges completely ignoring the will of the people in those 
regions of California and striking down the Pledge of Allegiance 
because of the words ``under God.'' This is a ludicrous decision.
  We also see judges ignoring the will of the people in a variety of 
other ways. They struck down some laws in Virginia within the last 2 
years because of international standards. Friends, colleagues, we make 
the laws. We represent the people of this country. It is our 
Constitution. It is not the U.N. constitution or various 
conglomerations or what confederations of other countries may think our 
laws should be. The laws are made by the people of this country.
  A continuing debate has to do with parental notification. People in 
Virginia, when I was Governor, and other

[[Page S57]]

States thought, if an unwed minor daughter is going through the 
surgery, the trauma of an abortion, and is 17 years old or younger, a 
parent ought to be involved. After all, if a child is going to get a 
tattoo or their ears pierced, they need parental consent. So the laws 
are passed by various States, there is one in contention dealing with 
New Hampshire. Federal judges, ignoring the will of the people in 
various States, strike down and allow those laws to be overturned.
  Last year, in the summer, the Supreme Court got involved in a case 
that created a great deal of concern because the city of New London, 
CT, the city council, acting akin to commissars, decided they were 
going to take people's homes, the American dream, and condemn those 
homes, take them not for a school, not for a road or any such public 
purpose, but rather they wanted to derive more tax revenue off of that 
property. This is part of the Bill of Rights, the fifth amendment. The 
Supreme Court, in a very narrow decision, allowed New London, CT, in 
the Kelo case, to take away people's homes. This is an example of 
Supreme Court Justices, Federal judges, selected and serving for life, 
amending our Bill of Rights, the Constitution--the Bill of Rights is 
the most important part of all the Constitution--by judicial decree. 
That is wrong. This is why it is important we have men and women 
serving on the Federal bench that understand their role is to apply the 
law and not take away our God-given rights enshrined in the Bill of 
Rights and in our Constitution.
  I met with Judge Alito in my office and discussed with him my 
concerns about this troubling trend of judges who ignore the will of 
the people and start inventing laws themselves. I was actually very 
encouraged by his scholarship, his knowledge, and what I feel was a 
very genuine, sincere understanding that we need a respectful, 
restrained judiciary. And also his ability to cite examples from his 
very distinguished career of cases where he was presented with 
decisions where he put aside his personal view and followed the law.
  I asked: What do you do if you do not like a law? He said: You have 
to apply the law, but it may be appropriate after the decision is made, 
for a judge or panel of judges to communicate with the legislature and 
advise them they may wish to revisit a certain issue. However, when it 
came to issuing a decision, he felt very strongly that judges would 
follow their duty and should incorporate the law as written.
  Another quality of Judge Alito is his deep knowledge of the law and 
his sincere and deep commitment of being a student of our Constitution. 
When I asked Judge Alito about his role, his view of the role of the 
State to pass laws, he gave a thoughtful answer. He had a considered 
analysis of the dormant commerce clause. It was similar to being back 
in law school, learning some of these things again. His answer shows 
most importantly a deep understanding not only of the Constitution but 
also a commitment to the fundamental principles upon which this country 
was founded, that Government power should remain closest to the people.
  In our system of government, it is essential the people in the States 
be free to experiment in public policy and that Washington, the Federal 
Government, should not dictate policy through the use of Federal funds 
in areas reserved to the States or to the people.
  Opponents of this nomination have referenced half a dozen cases out 
of the more than 1,500 he has been involved in while serving on the 
Third Circuit Court of Appeals. The fact is, no matter how Judge Alito 
answered the questions posed to him, his detractors would continue to 
oppose his nomination. On the particularly important charge that he 
favors an expansive view of the Executive power, Judge Alito reiterated 
his view that no branch of Government has more power and that no person 
in this country, no matter how high or powerful, is above the law; no 
person in this country is beneath the law.
  Aside from this very unambiguous answer, one can point to a litany of 
cases where Judge Alito came down against the authority of the 
Government, or for the little guy as some people like to call it.
  Another criticism of this nomination has been that Judge Alito, if 
confirmed, will replace a moderate on the Court, retiring Justice 
Sandra Day O'Connor. Sandra Day O'Connor by the way, in Kelo v. New 
London, CT, ``commissar taking of homes'' case, ruled on the side of 
the Constitution, so there will be no change there. We will need to get 
another Justice if the States are not able to rein in such takings of 
homes.
  Justice O'Connor is a person for whom I have a great deal of respect. 
She served with great distinction on the Court for many years and has a 
compelling, interesting life story. The fact that President Reagan 
appointed her as the first woman on the Supreme Court of the United 
States as a pioneer in so many ways has been an inspiration to many 
young people, regardless of gender. Particularly many young women who 
think, There is a future for me in the law. We have seen a great 
increase in the number of young women interested in studying in our law 
schools.
  They will say that we have to have someone who has the exact same 
philosophy as whoever was being replaced. We ought to remember the 
Founders, in drafting article III of the Constitution that creates the 
Supreme Court, provides no requirement there must be an ideological 
balance on the Court. For over 200 years, the Senate has respected the 
prerogative of the President and performed their advice-and-consent 
function and ultimately voted for qualified judges, despite their 
political orientation.
  So, therefore, let me conclude in this statement to my colleagues 
that if you look at Judge Alito's 15 years of exemplary judicial 
experience, his incredible, well-reasoned answers in the confirmation 
hearings. If you look at this individual, who has the qualifications, 
the judicial philosophy, the knowledge of the law, the respect for the 
law and, indeed, the respect for the people, the owners of this 
Government, and those of us in the Senate and the House of 
Representatives, and other bodies, Judge Alito is a perfect person to 
be an Associate Justice on the Supreme Court of the United States. I 
respectfully urge my colleagues to vote affirmatively for Judge Alito 
to serve this country on the Supreme Court.
  I thank you for your attention, Madam President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Madam President, I also rise today to express my 
support for the confirmation of Judge Samuel Alito as an Associate 
Justice of the U.S. Supreme Court.
  The Constitution demands that the President's nominees to the Supreme 
Court receive the advice and consent of a majority of Senators. The 
standard to be used is not spelled out in the Constitution, but 200 
years of tradition offers a guide. That guide, that standard, applied 
to nominees throughout our history, is the very same standard we should 
apply today to Judge Samuel Alito. By that standard, Judge Alito is 
well qualified.
  Since graduating from Yale Law School in 1975, Judge Alito has had an 
exemplary legal career, serving as U.S. attorney, Assistant U.S. 
Solicitor General, and 15 years as a member of the Third Circuit Court 
of Appeals. During that lengthy tenure in court, we have had the 
benefit of seeing Judge Alito's commitment to the rule of law and his 
commitment to an impartial review of the law and the facts of any given 
case.
  As Alexander Hamilton noted in Federalist No. 78, if the courts are 
to be truly independent, judges cannot substitute their own preferences 
to the ``constitutional intentions of the [legislative branch].''
  Judge Alito clearly expressed during his confirmation hearings, and 
his judicial career attests to the fact, that he would not impose his 
personal views over the demands of the law and precedent. I find that 
refreshing, I find that encouraging, and I find that a strong reason 
for supporting the nomination of Judge Alito.
  I take great comfort in the fact that Judge Alito has received the 
unanimous approval of the American Bar Association's committee that 
reviews judicial candidates. This is a committee that is greatly 
respected by the legal profession, as well as the general public, for 
their impartiality and demand and insistence on and careful watch over 
a quality judiciary. The American

[[Page S58]]

Bar Association's committee that reviews judicial candidates is 
interested and committed to a quality judiciary.
  Judge Alito not only received their unanimous approval, but he 
received their most qualified rating. That means each and every one of 
the members of that committee gave Judge Alito their highest, most 
qualified rating. This should weigh heavily in favor of the 
confirmation of Judge Alito.
  What we know--after the confirmation hearings, after extensive 
interaction with Members of the Senate, after 3 days of testimony 
before the Judiciary Committee, and responses to a wide range of 
written questions by Senators after the hearings--is that Judge Alito 
is a humble and dispassionate judge, with a deep understanding and 
modest view of his judicial role in the governance of our Nation and 
respect for the limitations of precedent.
  He has an awareness of the dangers of looking to foreign 
jurisdictions for guidance in shaping the laws of our land and a 
commitment to respecting the proper role of the courts in the 
interpretation of the law.
  I am persuaded that Judge Alito will look to establish precedents, be 
respectful of the doctrine of stare decisis, and will use the 
Constitution and the law as his guideposts as opposed to any personal 
whim or political agenda.
  There are those who would say they are troubled by what they 
perceive, that Judge Alito would not side with the ``little guy'' when 
deciding cases. Let my tell you, I am someone who, for 25 years, took 
clients' matters to court, more often than not representing the little 
guy. But even with that experience, I am more committed than ever to 
the belief I had when I took a client to court, whether a little guy or 
a big guy. My hope, my prayer, was that my client would find an 
impartial judge.

  It is unthinkable to me to suggest this standard today should be that 
we should look for whether a judge will purposely lean in favor of one 
side of the litigation or another before selecting who our judges ought 
to be. Our judges must be impartial. Our judges must not be there for 
the little guy or for the big guy. Judges need to take the facts and 
the law, interpret them and utilize them to reach a fair and just 
verdict, as dictated by the laws of our Nation, not because they favor 
a little guy, not because they favor a big guy. If the law and the 
facts happen to be on the side of the little guy, the little guy should 
prevail. If the law and the facts happen to be on the side of the big 
guy, then our system of justice demands that the big guy should 
prevail.
  I love the analogy that Chief Justice Roberts used during the course 
of his confirmation. In selecting a Justice to the Supreme Court, he 
said we are looking for an umpire. We are not looking for a pitcher. We 
are not looking for a batter. We are looking for the umpire--the guy 
who will call the balls and the strikes fairly and impartially to all 
litigants before the Court.
  Our long-held traditions in our system of justice demand fairness, 
demand integrity, demand judicial temperament. Judge Alito fulfills all 
of those requirements amply, and I am satisfied he will make an 
exceptional Justice of the Supreme Court.
  Judge Alito has made it abundantly clear that his personal views have 
absolutely no place in performing his judicial role in our 
constitutional structure. Rather, the Constitution, statutes, and 
controlling prior decisions, as applied to the facts of the case at 
hand, are the sole basis for his judicial determinations. I find that, 
as it should be, the correct standard to apply to a judicial nominee 
for determining his fitness for this high office.
  At the end of the day, we know that elections have consequences. The 
fact that the voters have placed President Bush in the office of 
President now for a second term has also been an indication that 
President Bush deserves and should be allowed to have his pick for the 
Court.
  It is our tradition that Presidents nominate, select, and fill 
vacancies to the Court, while the Senate's role is one of advice and 
consent. We simply do not have the prerogative of deciding who it is we 
would prefer to see on the Court or who it is we might find more 
philosophically suitable to us or more to our liking. Our role as 
Senators is to provide the President with the advice and consent on the 
qualifications of those he seeks to put in this high office.
  I see an evolving new standard before us. I heard from the members of 
the Judiciary Committee who did not support this nominee the setting of 
a brand new standard, and it is no longer qualifications, but it is now 
whether they philosophically will judge this person to be the kind of 
person they would want based on their political philosophy. That, I 
would suggest, is wrong. It has never been the standard applied or 
utilized by our Nation as we have sought to confirm Justices to our 
Court for over 200 years. I would say it is absolutely wrong to begin 
that new standard and leave it unchallenged as we seek the confirmation 
of one more Justice to the Supreme Court.
  My advice and consent is that Judge Alito is one of the select few 
Hamilton had in mind as having the character, intelligence, and 
temperament to guard the liberties secured by our Constitution. I 
strongly urge my colleagues to support his nomination to the Supreme 
Court.
  Thank you, Madam President. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BYRD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Coal Mining Tragedies in West Virginia

  Mr. BYRD. Madam President, while the Senate was in recess, the State 
of West Virginia lost 14 proud sons.
  On January 2, 13 hard-working, God-fearing men were simply earning 
their daily bread at the Sago coal mine in Upshur County, WV, when an 
explosion killed 1 man and trapped 12 others 260 feet below its 
surface. For 41 long hours, these men waited for help. They waited, 
they waited, they waited, and they prayed. They wrote farewell messages 
to their loved ones. How gripping. They waited as the air they breathed 
gave out and their lungs filled with toxic gases.
  Above the ground, we all prayed for a miracle such as we had enjoyed 
with the nine miners who had been trapped at the mine at Quecreek, PA, 
in 2002 and were found alive. But this time, there was only one 
miracle. My wife Erma and I, like many others in my great State of West 
Virginia, continue to pray for the recovery of the sole survivor of the 
Sago explosion, Mr. Randal McCloy, Jr. But tragically, there were no 
miracles for Tom Anderson, Alva Bennett, Jim Bennett, Jerry Groves, 
George ``Junior'' Hammer, Terry Helms, Jesse Jones, David Lewis, Martin 
Toler, Jr., Fred Ware, Jr., Jackie Weaver, and Marshall Winans. Once 
again, a small coal-mining town in West Virginia went into deep 
mourning, and an entire State wept with them.
  And then, incredibly, 17 days later, a mine fire broke out on a 
conveyor belt at the Aracoma Alma Mine No. 1 in Logan County, WV, 
trapping two miners underground. In shock and disbelief, the State once 
again fell to its knees and prayed and pleaded for a miracle. Forty 
hours later, we learned that two more miners--Don Bragg and Ellery 
Hatfield--had perished. Another small coal-mining town in West Virginia 
went into deep mourning, and again an entire State wept with them.
  Once again, the national media rushed in to report the disaster to 
the world. Once again, editorials filled newspapers across the country 
decrying the dangers of mining coal, denouncing the callousness of coal 
companies, and questioning the commitment of State and Federal 
officials to mine safety.
  Madam President, as a child of the Appalachian coalfields, as the son 
of a West Virginia coal miner, as a U.S. Senator representing one of 
the most important coal-producing States in the Nation, let me say I 
have seen it all before. Yes, I have seen it all before.
  First, the disaster. Then the weeping. Then the outrage. And we are 
all too familiar with what comes next. After a few weeks, when the 
cameras are gone, when the ink on the editorials has dried, everything 
returns to business as usual. The health and the safety of America's 
coal miners, the men and women upon whom the Nation depends so much, is 
once again forgotten until the next disaster. But not this time.

[[Page S59]]

Let me say that this U.S. Senator and the West Virginia delegation in 
the House and in the Senate will do all that we can to prevent that. 
There is blame to be assessed in the wake of these tragedies and plenty 
of it to go around.
  Let us begin with the coal company that operated the Sago mine, which 
had been issued 276 safety and health violations in 2004 and 2005. Let 
me try to put that into perspective. Could any automobile driver or any 
truckdriver rack up 276 tickets for reckless driving and still keep a 
license? What if someone had 276 mistakes on a tax return? One can bet 
that taxpayer would be looking at serious penalties and possibly time 
in a Federal prison. But here was a coal company with 276 Federal mine 
safety violations still operating. While some of these were minor 
transgressions, too many of them were ``significant and substantial'' 
or, simply put, very serious, and yet business went on as usual. It is 
quite possible that not one of these specific violations contributed to 
the explosion at Sago. But 276 violations is certainly indicative of a 
company's sloppy attention toward the well-being of its employees. That 
should be obvious on its face.
  What about the agency that is responsible for making sure that coal 
operators comply with the spirit and the letter of the law--the Mine 
Safety and Health Administration. Let me be clear that I have nothing 
but praise for the brave rescue teams that went into the Sago and Alma 
mines. Anybody who has been around a mine explosion knows the dangers 
that still lurk not just hours but days after such an accident. To go 
into a mine after a disaster, after an explosion, and to risk one's own 
life in an effort to save other lives, as these rescuers do, takes 
guts. It takes a love for one's fellow man.
  Coal miners are a special breed. I have seen these miners go into a 
mine after an explosion, risking their own lives, realizing that 
another explosion might occur and another tragedy would follow in the 
wake of the first tragedy.
  Yes, MSHA is filled with good, well-intentioned, and dedicated 
professionals, but something is terribly wrong with the leadership at 
MSHA.
  Consider that for 4 straight years, President Bush has proposed to 
cut the budget for coal safety enforcement below the level enacted by 
Congress the previous year, and for 4 straight years the Congress has 
had to struggle to partially restore those cuts. Some 190 coal 
enforcement personnel have been lost over the last 4 years through 
attrition, and they have not been replaced. The priorities reflected by 
the Bush administration through MSHA's budget certainly are not 
indicative of a proper concern for the health and safety of miners.
  On the day of the Sago disaster, 2 hours went by--2 hours, with 60 
golden minutes each, went by--before MSHA even knew about the 
explosion. It took another 2 hours before MSHA personnel arrived at the 
scene. It took 1\1/2\ hours before the rescue teams arrived. Another 5 
hours passed before the first team entered the mine. The Mine Act 
requires that rescue teams be available to mines in the event of an 
emergency, and yet it took 10\1/2\ hours before the first rescue team 
began its effort at Sago.
  A short 2 weeks later, similar horrors emerged from a second tragedy 
at the Aracoma Alma mine and, again, MSHA did not know of the incident 
for 2\1/2\ hours. Something is incredibly wrong. It is obvious 
something is very, very wrong at MSHA. The rescue procedures for miners 
are woefully inadequate.
  The Sago mine had been cited for 276 violations over the past 2 
years, and yet the mine operator never paid a fine larger than $440 and 
often only paid a minimal $60 fine. Few people realize that even when a 
fine is assessed, the coal operator can negotiate the fine to a 
piddling amount.
  Congress recognized a long time ago that mine safety and health 
depends on financial penalties that ``make it more economical for an 
operator to comply'' with the law ``than it is to pay the penalties 
assessed and continue to operate while not in compliance.'' Clearly, 
the 276 penalties assessed--whatever the amount of the fine--weren't 
enough to convince this company to take a hard look at safety for its 
employees.
  The Sago mine was a habitual violator--a habitual violator. It was 
being assessed only the minimum penalties allowed by the law. The 
maximum penalty could be $220,000 or $1 million, but it makes no 
difference unless MSHA is willing to impose and collect that maximum 
amount. Habitual violators must be brought to a state of fearing the 
consequences of a heavy fine to be paid when assessed. We have to get 
tough about enforcing the law.
  At MSHA, complacent attitudes and arrogance rule at the top. At the 
Senate Appropriations Labor-HHS Subcommittee hearing on Monday, Acting 
MSHA Secretary David Dye was asked directly about the issue of 
communications technology: Why are the miners trapped underground not 
able to communicate with the rescue teams, and can rescue teams better 
locate trapped miners? Dye was asked directly if technology exists to 
correct these problems, and he stated for the record that such 
technology did not exist.
  Now get that. Let me say that again. At this hearing, conducted by 
one of the finest Senators on either side of the aisle here, Republican 
Senator Specter of Pennsylvania, at that record hearing, Acting MSHA 
Secretary David Dye was asked directly about the issue of 
communications technology: Why are the miners trapped underground not 
able to communicate with the rescue teams, and can rescue teams better 
locate trapped miners? Dye was asked directly if technology exists to 
correct these problems, and he stated for the record that such 
technology did not exist.

  How about that. That statement proved to be utterly, utterly, utterly 
false. Minutes later, after Dye was asked if such technology existed, 
the subcommittee heard from a former MSHA Secretary, Davitt McAteer, 
who verified that such communications technology certainly does exist, 
and Mr. McAteer put tracking and communications devices on the table--
on the table--right in front of the subcommittee.
  What does that say about the people leading this agency when they 
don't even know about the existence of lifesaving technology that ought 
to be in the mines? What does that say? Shame, shame on them. I am 
talking about the people leading the agency when they testified that 
they don't even know about the existence of lifesaving technology that 
ought to be in the mines. Why is the Acting Administrator of MSHA, 
charged with protecting the health and safety of coal miners, so 
abysmally ignorant of these technologies? The families of these miners 
and the Members of this Congress are owed an explanation.
  In this day and age of cell phones, BlackBerrys, and text messaging, 
it is absolutely unacceptable that safe telecommunications technology 
was not available to the Sago and Alma miners. These weaknesses in mine 
emergency preparedness are unacceptable. Where is MSHA? Repeating the 
first question that was ever asked in the history of mankind when God 
sought Adam in the Garden of Eden in the cool of the day. God said: 
Adam, where art thou? Well, where was MSHA? Where was MSHA? What is 
that agency waiting for?
  Ask the leadership at MSHA. At Sago and Alma, we have seen the 
disastrous results of complacent attitudes at the top--at the top. A 
quick look at the list of rules approved and scuttled at MSHA in recent 
years--from regulations governing mine rescue teams to the use of belt 
entries for ventilation to inspection procedures to emergency breathing 
equipment to escape routes, any one of which might figure into the 
deaths and disasters at the Sago and Alma mines--suggest that 
something, something, something is terribly wrong. Something is 
terribly, terribly, terribly wrong, and it ought to be fixed.
  In 1995, labor and industry jointly proposed a number of initiatives 
on mine emergency preparedness to improve mine rescue technology and 
communications. Perhaps one of the most important was to address the 
dwindling number of mine rescue teams. MSHA has ignored the report and 
its recommendations. In 2003, the General Accountability Office made a 
list of recommendations to the Secretary of Labor to help MSHA protect 
the safety and health of the miners. What happened? MSHA ignored the 
recommendation. Shame, shame.
  Our Nation's coal miners are vital to our national economy. During 
World War I, coal miners put in long, brutal

[[Page S60]]

hours to make sure that the Nation had coal to heat our homes, power 
our factories, and fuel our battleships. In World War II, American coal 
miners again provided the energy to replace the oil that was lost with 
the outbreak of that global conflict. During the oil boycott-induced 
energy crisis of the 1970s, our Nation once again called upon--yes, our 
Nation once again turned, yes, to the coal miners to bail the Nation 
out of trouble, and the coal miners did.
  Coal produces over half of the electricity we use every day in these 
United States. Here is an example of it all around the ceiling here, 
the lights that are burning making it bright as day right here in this 
Chamber. That is coal. That is energy that comes from coal, burning 
coal--coal that is produced by hard, backbreaking labor in the 
dangerous mines. Coal is dug out, scratched out by the coal miner.
  So today America's coal miners provide the electricity--the 
electricity right here--the electricity that lights the streets of 
Washington, New York City, Sacramento, and all over this country, and 
it heats our homes in winter, lights our homes in summer.
  Those coal miners could provide the key to our Nation's future energy 
security. You can bet on those coal miners--and they are of a different 
breed, a special breed. If we made better use of this abundant natural 
resource, coal, we could reduce our country's dangerous dependency on 
foreign oil.
  We could make ourselves less dependent on the rule of despots, and 
less of a target for the fanatics and the terrorists of the Middle 
East.
  God blessed our country. Yes, the Almighty who was there at the 
beginning blessed our Nation, especially West Virginia with an 
abundance of coal, and God provided us with the good, the brave, the 
hard-working coal miners to dig that coal and bring it from the Earth, 
the bowels, the dark, the black, the darkness. The coal miners have 
never failed our Nation.
  I know. I grew up in a coal miner's home. I married a coal miner's 
daughter. Her brother-in-law died from black lung. His father was 
killed under a slate fall.
  We have lived--my family has lived--with coal miners. We have coal 
miners in our families. We have lost loved ones.
  The test of a great country such as ours is how serious we are about 
protecting those among us who are most at risk, whether it be innocent 
children who need guarding from hunger and disease or our elderly and 
sick who cannot afford medication. Those men and women who bravely 
labor in such dangerous occupations as coal mining to provide our 
country with critical energy should be protected from exploitation by 
private companies with callous attitudes about health and safety. That 
is why MSHA exists. That is why we created MSHA. That is why I was here 
when that agency was created. But MSHA is just a paper tiger without 
aggressive leadership. If we are truly a moral nation, and I believe 
that we should be, moral values must be reflected in government 
agencies that are charged with protecting the lives of our citizens. 
The last thing that we need is ho hum, arrogant attitudes from this 
administration and its officials. Such calumny abuses the public trust 
and results in the kind of loss of life that so grieves families today 
in Upshur and Logan Counties and all across my home State of West 
Virginia.
  Madam President, in memory of the Sago and Alma Miners, and all those 
who labor and have labored in our nation's coal mines, I ask unanimous 
consent that the eulogy of Homer Hickam, from the Sago Memorial Service 
on January 15, 2006, be printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       Families of the Sago miners, Governor Manchin, Mrs. 
     Manchin, Senator Byrd, Senator Rockefeller, West Virginians, 
     friends, neighbors, all who have come here today to remember 
     those brave men who have gone on before us, who ventured into 
     the darkness but instead showed us the light, a light that 
     shines on all West Virginians and the nation today:
       It is a great honor to be here. I am accompanied by three 
     men I grew up with, the rocket boys of Coalwood: Roy Lee 
     Cooke, Jimmie O'Dell Carroll, and Billy Rose. My wife Linda, 
     an Alabama girl, is here with me as well.
       As this tragedy unfolded, the national media kept asking 
     me: Who are these men? And why are they coal miners? And what 
     kind of men would still mine the deep coal?
       One answer came early after the miners were recovered. It 
     was revealed that, as his life dwindled, Martin Toler had 
     written this: It wasn't bad. I just went to sleep. Tell all 
     I'll see them on the other side. I love you.
       In all the books I have written, I have never captured in 
     so few words a message so powerful or eloquent: It wasn't 
     bad. I just went to sleep. Tell all I'll see them on the 
     other side. I love you.
       I believe Mr. Toler was writing for all of the men who were 
     with him that day. These were obviously not ordinary men.
       But what made these men so extraordinary? And how did they 
     become the men they were? Men of honor. Men you could trust. 
     Men who practiced a dangerous profession. Men who dug coal 
     from beneath a jealous mountain.
       Part of the answer is where they lived. Look around you. 
     This is a place where many lessons are learned, of true 
     things that shape people as surely as rivers carve valleys, 
     or rain melts mountains, or currents push apart the sea. 
     Here, miners still walk with a trudging grace to and from 
     vast, deep mines. And in the schools, the children still 
     learn and the teachers teach, and, in snowy white churches 
     built on hillside cuts, the preachers still preach, and God, 
     who we have no doubt is also a West Virginian, still does his 
     work, too. The people endure here as they always have for 
     they understand that God has determined that there is no joy 
     greater than hard work, and that there is no water holier 
     than the sweat off a man's brow.
       In such a place as this, a dozen men may die, but death can 
     never destroy how they lived their lives, or why.
       As I watched the events of this tragedy unfold, I kept 
     being reminded of Coalwood, the mining town where I grew up. 
     Back then, I thought life in that little town was pretty 
     ordinary, even though nearly all the men who lived there 
     worked in the mine and, all too often, some of them died or 
     was hurt. My grandfather lost both his legs in the Coalwood 
     mine and lived in pain until the day he died. My father lost 
     the sight in an eye while trying to rescue trapped miners. 
     After that he worked in the mine for fifteen more years. He 
     died of black lung.
       When I began to write my books about growing up in West 
     Virginia, I was surprised to discover, upon reflection, that 
     maybe it wasn't such an ordinary place at all. I realized 
     that in a place where maybe everybody should be afraid after 
     all, every day the men went off to work in a deep, dark, and 
     dangerous coal mine instead they had adopted a philosophy of 
     life that consisted of these basic attitudes:
       We are proud of who we are. We stand up for what we 
     believe. We keep our families together. We trust in God but 
     rely on ourselves.
       By adhering to these simple approaches to life, they became 
     a people who were not afraid to do what had to be done, to 
     mine the deep coal, and to do it with integrity and honor.
       The first time my dad ever took me in the mine was when I 
     was in high school. He wanted to show me where he worked, 
     what he did for a living. I have to confess I was pretty 
     impressed. But what I recall most of all was what he said to 
     me while we were down there. He put his spot of light in my 
     face and explained to me what mining meant to him. He said, 
     ``Every day, I ride the mantrip down the main line, get out 
     and walk back into the gob and feel the air pressure on my 
     face. I know the mine like I know a man, can sense things 
     about it that aren't right even when everything on paper says 
     it is. Every day there's something that needs to be done, 
     because men will be hurt if it isn't done, or the coal the 
     company's promised to load won't get loaded. Coal is the life 
     blood of this country. If we fail, the country fails.''
       And then he said, ``There's no men in the world like 
     miners, Sonny. They're good men, strong men. The best there 
     is. I think no matter what you do with your life, no matter 
     where you go or who you know, you will never know such good 
     and strong men.''
       Over time, though I would meet many famous people from 
     astronauts to actors to Presidents, I came to realize my 
     father was right. There are no better men than coal miners. 
     And he was right about something else, too:
       If coal fails, our country fails.
       The American economy rests on the back of the coal miner. 
     We could not prosper without him. God in His wisdom provided 
     this country with an abundance of coal, and he also gave us 
     the American coal miner who glories in his work. A television 
     interviewer asked me to describe work in a coal mine and I 
     called it ``beautiful.'' He was astonished that I would say 
     such a thing so I went on to explain that, yes, it's hard 
     work but, when it all comes together, it's like watching and 
     listening to a great symphony: the continuous mining 
     machines, the shuttle cars, the roof bolters, the ventilation 
     brattices, the conveyor belts, all in concert, all 
     accomplishing their great task. Yes, it is a beautiful thing 
     to see.
       There is a beauty in anything well done, and that goes for 
     a life well lived.
       How and why these men died will be studied now and in the 
     future. Many lessons will be learned. And many other miners 
     will live because of what is learned. This is right and 
     proper.

[[Page S61]]

       But how and why these men lived, that is perhaps the more 
     important thing to be studied. We know this much for certain: 
     They were men who loved their families. They were men who 
     worked hard. They were men of integrity, and honor. And they 
     were also men who laughed and knew how to tell a good story. 
     Of course they could. They were West Virginians!
       And so we come together on this day to recall these men, 
     and to glory in their presence among us, if only for a little 
     while. We also come in hope that this service will help the 
     families with their great loss and to know the honor we wish 
     to accord them.
       No matter what else might be said or done concerning these 
     events, let us forever be reminded of who these men really 
     were and what they believed, and who their families are, and 
     who West Virginians are, and what we believe, too.
       There are those now in the world who would turn our nation 
     into a land of fear and the frightened. It's laughable, 
     really. How little they understand who we are, that we are 
     still the home of the brave. They need look no further than 
     right here in this state for proof.
       For in this place, this old place, this ancient place, this 
     glorious and beautiful and sometimes fearsome place of 
     mountains and mines, there still lives a people like the 
     miners of Sago and their families, people who yet believe in 
     the old ways, the old virtues, the old truths; who still lift 
     their heads from the darkness to the light, and say for the 
     nation and all the world to hear:
       We are proud of who we are.
       We stand up for what we believe.
       We keep our families together.
       We trust in God.
       We do what needs to be done.
       We are not afraid.

  Mr. BYRD. Mr. President, I yield the floor. I suggest the absence of 
a quorum.
  The PRESIDING OFFICER (Mr. Thune). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BUNNING. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Vitter). Without objection, it is so 
ordered.
  Mr. KERRY. Mr. President, could we have an agreement on the time? I 
apologize, I was supposed to have the time between 1:30 and 2. Since 
the Senator from Kentucky is waiting--I wanted, obviously, to be able 
to complete my statement--we have agreed to switch times. He will speak 
for 15 minutes, with the agreement that I would then speak after.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERRY. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. BUNNING. Mr. President, I rise to speak in support of Samuel 
Alito's nomination to the United States Supreme Court.
  Judge Alito is supremely qualified.
  He has a record of fairness and judicial restraint. He will do a fine 
job on the Supreme Court.
  I will vote for his nomination and any procedural measures necessary 
to confirm him on the Senate floor.
  Confirmation of a Supreme Court Justice is one of the most import 
jobs we have as Senators.
  This will be the second Supreme Court nominee I will have considered 
since coming to the Senate.
  I take this responsibility very seriously.
  I have spent time with Judge Alito and I have studied his background 
and record.
  I closely followed his confirmation hearings in the Judiciary 
Committee. I can say without question that he should be confirmed.
  I don't find myself agreeing with the Washington Post or the 
Louisville Courier-Journal newspapers very often.
  But even those papers agree that Judge Alito should be confirmed.
  I first met Judge Alito this past fall.
  I did not know much about him when his nomination was announced by 
President Bush.
  I reserved judgment about his nomination until I had a chance to meet 
with him.
  From that meeting it became clear that I could support his 
nomination.
  And his performance at his confirmation hearing further solidified my 
support for his nomination.
  We are all familiar with the basics of Judge Alito's background.
  He has been on the Third Circuit Court of Appeals for 15 years.
  He has participated in several thousand cases and written several 
hundred opinions.
  He attended top schools for both college and law school--Princeton 
and Yale.
  I gather all of my colleagues would agree that those things are 
important and impressive--but they do not alone qualify him for the 
job.
  There is a lot more to being qualified for the Supreme Court than 
pedigree and judicial experience.
  Judicial philosophy and one's approach to judging and the law are 
most important.
  All these factors and more must be looked at and weighed before 
deciding if a nominee is qualified.
  I have done so and it is clear to me that Judge Alito should be 
confirmed.
  A good place to begin is with Judge Alito's record on the Third 
Circuit Court of Appeals.
  He has participated in over 3,000 cases and written over 300 
opinions.
  His record in those cases shows that he is fair and impartial. And 
that he understands the law and the judicial process.
  His opinions are written clearly and provide clear guidance to the 
lower courts.
  Clarity is something we certainly need on the Supreme Court.
  The clarity and fairness of Judge Alito's opinions speak well to his 
qualifications.
  But what speaks volumes is that his critics have been unable to find 
a single case he participated in to show that he is unqualified as a 
judge.
  That is not to say that his critics have not tried. But to use any 
case against him--critics have had to distort the record or confuse the 
issue.
  Judge Alito's opponents are trying to stop his nomination.
  They are concerned he will be a vote for the rule of law and the 
Constitution. And not a judicial activist to their liking on the 
Supreme Court.
  The framers of the Constitution created a system of government where 
the peoples' voices are to be expressed through their elected 
representatives.
  All Senators and Representatives stand for election and are 
responsible to the people of their States or districts.
  The President is accountable to the entire Nation and must face the 
people in every State.
  The Justices of the Supreme Court never have to face voters.
  That is why the framers gave the legislative powers to the Congress.
  And that is why they gave the administrative powers to the President.
  We--who make policy decisions--are accountable to the voters.
  The Justices of the Supreme Court are not.
  At its simplest--that is what is meant by the rule of law. We are a 
Nation of laws--starting with the most basic law, the Constitution.
  The Constitution spells out the roles of the branches of Government.
  It sets out the role to the courts--which is to settle legal disputes 
between parties, and not to set national policy.
  The Supreme Court is also to be a last check on the legislative and 
executive branches when they clearly violate the Constitution--but not 
to override policy decisions when the Constitution is silent.
  Judge Alito has a demonstrated record of respecting the rule of law 
and the will of the people through their elected representatives.
  That disturbs some who belong to this body.
  It bothers them to know that if Judge Alito and others like him are 
on the Supreme Court--then the steady advance of courts acting as a 
policy-making branch of government will be halted.
  Judge Alito has shown respect for the rule of law throughout his 
career on the bench--and even before that when serving in the Reagan 
Administration.
  He understands that each branch of government has a unique role to 
play.
  And he understands that only two are accountable to the people.
  I take great comfort in Judge Alito's understanding that there is a 
place in our system of government for policy making--and that the place 
is not the courts.
  Many of Judge Alito's opponents view the courts as just another 
policy making branch of government.
  In other countries that may be true. But in the United States it is 
not.
  Our judges are insulated from public pressure.
  It is this way so that they can make impartial and fair judgments on 
cases--no matter how popular or unpopular the result.

[[Page S62]]

  They are also insulated from the political process to prevent undue 
influence from Congress or the President.
  Does anyone here actually believe the framers of our Constitution 
insulated judges so they could enact policies without any political 
consequence?
  In fact, the framers rejected proposals to give the courts any 
policy-making powers.
  But that is not good enough for some who oppose Judge Alito.
  They want judges who will make broad policy decrees from the bench.
  They want liberal judges who will rule by dictating policies that 
fail at the ballot box.
  They want activist judges. And Judge Alito is not an activist judge.
  Judge Alito will stand up to the activists on the Supreme Court and 
help make sure the Court follows its proper and vital role.
  The confidence of the citizens in the courts is harmed when the 
courts overstep their bounds.
  Like Chief Justice Roberts, I am confident Judge Alito will only act 
within the Supreme Court's proper role.
  And I am confident he will help restore the American people's faith 
in our court system.
  I press upon my colleagues to support this nomination.
  I will vote for Judge Alito and whatever measures and procedures 
necessary to ensure he gets a final vote up or down.
  I am proud to support him.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. Mr. President, I rise today to support Judge Samuel 
Alito's confirmation to the Supreme Court of the United States. Judge 
Alito's 15 years of experience on the Third Circuit Court of Appeals 
and his 15 years serving the Justice Department, including his position 
as U.S. attorney for the District of New Jersey, make him well prepared 
to be an Associate Justice on our Highest Court.
  One of the best insights into Judge Alito's judicial ability is 
gained from listening to his colleagues on the Third Circuit. 
Colleagues from both sides of the political aisle praise him for his 
judicial excellence. Judge Aldisert, a nominee of President Lyndon 
Johnson, stated before the committee:

       We who have heard his probing questions during oral 
     argument, we who have been privy to his wise and insightful 
     comments in our private decisional conferences, we who have 
     observed first hand his approach to decision-making and his 
     thoughtful judicial temperament and know his carefully 
     crafted opinions, we who are his colleagues are convinced 
     that he will also be a great Justice.

  Moreover, after an exhaustive investigation, Mr. Steve Tober, 
chairman of the ABA Standing Committee on the Federal Judiciary, 
declared that Judge Alito's ``integrity, his professional competence 
and his judicial temperament are indeed found to be of the highest 
standard.''
  Mr. President, I have to say that anyone who watched Judge Alito at 
his Senate hearing would agree that his professional competence and 
judicial temperament were certainly on display. I believe that showed 
very well why he will be confirmed as a Supreme Court Justice.
  The American Bar Association gave Judge Alito its highest rating. 
Most important, Judge Alito has a firm belief in the rule of law upon 
which our country is based. As he stated on the first day of his 
hearings, ``No person in this country, no matter how high or how 
powerful, is above the law, and no person is beneath the law.'' Judge 
Alito recognizes that, in our system, judges interpret the law, but 
should not create policy. They should not decide what they would like 
to have the law be; rather, they simply should determine what the law 
states.
  He said on his second day of hearings:

        . . . it is not our job to try to produce particular 
     results. We are not policymakers and we shouldn't be 
     implementing any sort of policy agenda or policy preferences 
     that we have.

  During the 2004 Presidential campaign, President Bush made clear that 
he planned to nominate to the bench judges who would respect the rule 
of law, judges who would interpret but not legislate. In particular, he 
drew attention to his desire to nominate people who would strictly 
interpret the Constitution. Knowing Supreme Court nominations were on 
the horizon and knowing the President's views, the American people re-
elected President Bush.
  With the previous nomination of Chief Justice John Roberts and now 
with the nomination of Judge Alito, the President is fulfilling his 
promise to the American people. Now it is time for the Senate to play 
its constitutional role in the nomination process to ensure the 
President's nominee meets the high standards we set for members of the 
Supreme Court of our land. Judge Alito is extremely capable, he is 
highly qualified, and he deserves the support of this body.
  I wish to also rebut one statement that was made earlier today. I 
believe Judge Alito was unfairly criticized for his opinion in Pirolli 
v. World Flavors, Inc. This was a case involving a mentally disabled 
man who claimed he was sexually harassed at work. They have alleged 
that by ruling against the plaintiff in the appellate court, Judge 
Alito showed he is ``results-oriented.'' Their criticisms are unfair 
and misleading. Judge Alito was not even able to form an opinion on the 
merits of the case because the plaintiff's lawyer presented an 
incomplete brief.
  Judge Alito made clear in his dissent that had the plaintiff's lawyer 
raised the argument in a minimally adequate fashion, he might well 
agree and join the majority in voting to reverse. He continued to say:

       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.

  It is very important to understand that an appellate judge cannot 
create the facts. The appellate judge cannot argue the lawyer's case 
when he is not equipped with the facts or the reason for the request 
for a reversal. So I believe it is important that we set the record 
straight on that.
  Judge Alito has shown by his manner during the hearing and his 15 
years on the bench that he is fully qualified under the constitutional 
requirements and from every neutral observer with whom I have talked 
for this position. I hope there will not be further delay.
  I am so hopeful that the people who would vote against him would at 
least let us have the vote. He has been thoroughly vetted. He has been 
thoroughly questioned. The Senate has fulfilled its constitutional 
responsibility, and I think by the end of this week we should allow 
Judge Alito to be able to start preparing for the very important cases 
that are going to come before the Court right away. Let him have the 
chance to be fully prepared and do the job we are asking him to do. It 
is the least we should expect of the Senate. It is the responsible 
approach for the U.S. Senate. The Supreme Court and the people of 
America deserve no less.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. McCAIN. Mr. President, I thank the Senator from Texas for her 
remarks and her strong support of this very decent American and the 
continued leadership she exercises in our party and in our caucus.
  We know that elections have consequences. When President Bush ran for 
reelection, he stated plainly and often that if given the opportunity, 
he would nominate judges to the U.S. Supreme Court who strictly 
interpret the Constitution of the United States. True to his promise, 
the President nominated John Roberts to become the 18th Chief Justice 
of the United States. Just as true to his promise, he nominated Samuel 
Alito to serve as Associate Justice of the Supreme Court.
  I was pleased that President Bush nominated Judge Alito, as were many 
other Members of this body. I reserved final judgment, as most of us 
did, until we saw the confirmation process proceed. I don't take the 
Senate's advice and consent role lightly. I didn't want to encourage a 
rush to judgment.
  The hearings have occurred, and I believe Judge Alito has performed 
admirably. There were 18 hours and 700 questions, and there probably 
would have been a lot more questions if there

[[Page S63]]

had not been the length of the questions, sometimes lasting as long as 
a half hour.
  Anyway, I believe he is worthy of our support. As has been stated 
time after time on the floor, he earned the highest ratings of the 
American Bar Association.
  Let me tell you what impresses me, Mr. President, probably as much as 
anything else. It is the strong endorsement Judge Alito got from the 
people who used to work for him. There is nobody who knows people 
better than those who work for you. There is a very impressive list of 
former law clerks of Judge Alito writing to urge the Senate to confirm 
him. As they state in their letter:

       Our party affiliations and views on policy matters span the 
     political spectrum. We have worked for Members of Congress on 
     both sides of the aisle and have actively supported and 
     worked on behalf of Democratic, Republican, and Independent 
     candidates.

  And they go on to say in their letter:

       What unites us is our strong support for Judge Alito and 
     our deep belief that he will be an outstanding Supreme Court 
     Justice.

  That impresses me, when the clerks, the people who work alongside 
these judges every single day--and it is a very long list; it looks to 
me like there are 60 to 75 names on there--are all supporting him. As 
they state, they are of all beliefs and party affiliations. There is no 
person or persons who know a judge better than those who clerked for 
him.
  Finally, they go on to say:

       It never once appeared to us that Judge Alito had prejudged 
     a case or ruled based on political ideology. To the contrary, 
     Judge Alito meticulously and diligently applied controlling 
     legal authority to the facts of each case after a full and 
     careful consideration of all relevant legal arguments. It is 
     our uniform experience that Judge Alito was guided by his 
     profound respect for the Constitution and the limited role of 
     the judicial branch.

  That is what Judge Alito is all about from the people who know him 
best, other than his family. Frankly, that has a significant effect on 
my view of him.
  I will make one other comment. We are dragging out this process for 
no good reason. We all know what the outcome of the vote is going to 
be. We have other pressing business, including lobbying reform, which 
needs to be taken up by this body. We have pending the issue of the 
PATRIOT Act. There are many issues we should be addressing and at least 
beginning to work on, rather than dragging out this process. I wish my 
colleagues on the other side of the aisle would see fit to bring this 
process to a close and let us vote on Judge Alito and move on to other 
pressing issues.
  The fact that there will probably be a large number of votes on that 
side of the aisle against Judge Alito doesn't upset me as much as it 
saddens me. I didn't agree with the judicial philosophy of Justice 
Breyer or Justice Ginsburg. I knew that Justice Ginsburg worked for the 
ACLU and held liberal views. But I also believe that elections have 
consequences. The President of the United States--at that time, 
President Clinton--nominated them as his selection. There were very 
few--a handful of votes against either Justice Breyer or Justice 
Ginsburg.
  When there is a large number of votes against this highly qualified 
individual, it is a symptom of the rather bitter partisanship that 
exists in this body today, and I regret that very much. There are 
pressing issues, such as Iran and their rapid acquisition of nuclear 
weapons, which spring to mind. We have to sit down in an atmosphere of 
mutual trust and respect and work on these things. I will be very sad 
when I see this large vote against this good and decent American, but, 
more importantly, I will be upset because we continue to engage in the 
kind of partisanship which has even been ratcheted up lately on 
lobbying reform, when we should be working out a common approach and a 
common cure for a significant illness that afflicts this body and the 
Capitol today.
  I hope we can finish this debate as soon as possible, vote on Judge 
Alito, and then move forward.
  I thank my colleagues, and I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina is recognized.
  Mr. GRAHAM. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so 
ordered.
  Mr. GRAHAM. Mr. President, I would like to pick up where Senator 
McCain left off about the Alito nomination and what has changed between 
the Clinton administration and the President Bush 2 administration 
regarding judges.
  The question I ask the body and really the country is, have the 
qualifications changed or are the people President Bush has chosen to 
nominate for the Supreme Court more inferior in terms of 
qualifications, temperament, and character than the people President 
Clinton nominated? As individuals, is there a major difference in their 
legal experience? Are there any character flaws with these two nominees 
that did not exist with President Clinton's nominees? If you can find 
an answer to the question other than no, I would like to hear about it. 
I would like someone to come to the floor and talk about how Justice 
Roberts and Judge Alito are not in the ball park as to qualifications, 
character, and disposition with Justice Breyer and Justice Ginsburg.
  It is clear to me that President Bush picked two very well qualified 
people to serve on the Supreme Court when it came his time to choose a 
Supreme Court nominee. You don't have to take my word for it. Seven 
judges testified before the committee who served on the Third Circuit 
with Judge Alito. They were nominated by Lyndon Johnson, Richard Nixon, 
Ronald Reagan, George H.W. Bush, and Bill Clinton, really a hodgepodge 
of nominees in terms of their source. These judges had a universal 
belief regarding Judge Alito, and that belief was that he is a great 
colleague, a good man, a judge's judge. They came before our committee 
to his defense.
  I ask unanimous consent to print in the Record excerpts of these 
judges' comments.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                      Log Judges Testimony Talkers

       Five sitting and two former judges from the U.S. Court of 
     Appeals for the 3rd Circuit testified on behalf of Judge 
     Samuel Alito's nomination to the Supreme Court.
       The judges included nominees of Presidents Lyndon Johnson, 
     Richard Nixon, Ronald Reagan, George H.W. Bush, and Bill 
     Clinton. Collectively they have served with Judge Alito for 
     more than 75 years, watching him work and evaluating his 
     intellect, character, independence, and judgment.
       Judge Becker on working with Judge Alito up close: ``There 
     is an aspect of appellate judging that no one gets to see--no 
     one but the judges themselves: how they behave in conference 
     after oral argument, at which point the case is decided, and 
     which, I submit, is the most critically important phase of 
     the appellate judicial process. In hundreds of conferences, I 
     had never once heard Sam raise his voice, express anger or 
     sarcasm, or even try to proselytize. Rather, he expresses his 
     views in measured and temperate tones.''
       Judge Becker on Judge Alito's intellect and open-
     mindedness: ``Judge Alito's intellect is of a very high 
     order. He's brilliant, he's highly analytical and meticulous 
     and careful in his comments and his written work. He's a 
     wonderful partner in dialogue. He will think of things that 
     his colleagues have missed. He's not doctrinaire, but rather 
     is open to differing views and will often change his mind in 
     light of the views of a colleague.''
       Judge Becker on whether Judge Alito is an ideologue: ``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. . . . His credo has 
     always been fairness.''
       Chief Judge Scirica on Judge Alito's personal character: 
     ``Despite his extraordinary talents and accomplishments, 
     Judge Alito is modest and unassuming. His thoughtful and 
     inquiring mind, so evident in his opinions, is equally 
     evident in his personal relationships. He is concerned and 
     interested in the lives of those around him. He has an 
     impeccable work ethic, but he takes the time to be a 
     thoughtful friend to his colleagues. He treats everyone on 
     our court, and everyone on our court staff, with respect, 
     with dignity, and with compassion. He is committed to his 
     country and to his profession. But he is equally committed to 
     his family, his friends, and his community. He is an I 
     admirable judge and an admirable person.''
       Chief Judge Scirica on Judge Alito's open-mindedness: 
     ``Like a good judge, he considers

[[Page S64]]

     and deliberates before drawing a conclusion. I have never 
     seen signs of a predetermined outcome or view, nor have I 
     seen him express impatience with litigants or with colleagues 
     with whom he may ultimately disagree. He is attentive and 
     respectful of all views and is keenly aware that judicial 
     decisions are not academic exercises but have far-reaching 
     consequences on people's lives.''
       Judge Barry on Judge Alito's service as U.S. Attorney: 
     ``The tone of a United States Attorney's Office comes from 
     the top. The standard of excellence is set at the top. Samuel 
     Alito set a standard of excellence that was contagious--his 
     commitment to doing the right thing, never playing fast and 
     loose with the record, never taking a shortcut, his emphasis 
     on first-rate work, his fundamental decency.''
       Judge Aldisert on Judge Alito's judicial independence: 
     ``Judicial independence is simply incompatible with political 
     loyalties, and Judge Alito's judicial record on our court 
     bears witness to this fundamental truth.''
       Judge Aldisert on working with Judge Alito for 15 years: We 
     who have heard his probing questions during oral argument, 
     we who have been privy to his wise and insightful comments 
     in our private decisional conferences, we who have 
     observed at first hand his impartial approach to decision-
     making and his thoughtful judicial temperament and know 
     his carefully crafted opinions, we who are his colleagues 
     are convinced that he will also be a great Justice.
       Judge Garth on Judge Alito's lack of an agenda: ``I can 
     tell you with confidence that at no time during the 15 years 
     that Judge Alito has served with me and with our colleagues 
     on the court and the countless number of times that we have 
     sat together in private conference after hearing oral 
     argument, has he ever expressed anything that could be 
     described as an agenda. Nor has he ever expressed any 
     personal predilections about a case or an issue or a 
     principle that would affect his decisions.''
       Judge Garth on Judge Alito's personality: ``Sam is and 
     always has been reserved, soft spoken and thoughtful. He is 
     also modest, and I would even say self-effacing. And these 
     are the characteristics I think of when I think of Sam's 
     personality. It is rare to find humility such as his in 
     someone of such extraordinary ability.''
       Judge Gibbons on Judge Alito's independence from the 
     executive: ``The committee members should not think for a 
     moment that I support Judge Alito' s nomination because I'm a 
     dedicated defender of [the Bush] administration. On the 
     contrary, I and my firm have been litigating with that 
     administration for a number of years over its treatment of 
     detainees held at Guantanamo Bay, Cuba, and elsewhere. And we 
     are certainly chagrined at the position that is being taken 
     by the administration with respect to those detainees.
       ``It seems not unlikely that one or more of the detainee 
     cases that we are handling will be before the Supreme Court 
     again. I do not know the views of Judge Alito respecting the 
     issues that may be presented in those cases. I would not ask 
     him. And if I did, he would not tell me. I'm confident, 
     however, that, as an able legal scholar and a fair-minded 
     Justice, he will give the arguments--legal and factual--that 
     may be presented on behalf of our clients careful and 
     thoughtful consideration, without any predisposition in favor 
     of the position of the executive branch.''
       Judge Lewis on his own liberal politics: ``I am openly and 
     unapologetically pro-choice and always have been. I am 
     openly--and it's very well known--a committed human rights 
     and civil rights activist and am actively engaged in that 
     process as my time permits. . . . I am very, very much 
     involved in a number of endeavors that one who is familiar 
     with Judge Alito's background and experience may wonder--
     `Well, why are you here today saying positive things about 
     his prospects as a Justice on the Supreme Court?' And the 
     reason is that having worked with him, I came to respect what 
     I think are the most important qualities for anyone who puts 
     on a robe, no matter what court they will serve on, but in 
     particular, the United States Supreme Court.''
       Judge Lewis on Judge Alito's honesty and integrity: ``As 
     Judge Becker and others have alluded to, it is in conference, 
     after we have heard oral argument and are not propped up by 
     law clerks--we are alone as judges, discussing the cases--
     that one really gets to know, gets a sense of the thinking of 
     our colleagues. And I cannot recall one instance during 
     conference or during any other experience that I had with 
     Judge Alito, but in particular during conference, when he 
     exhibited anything remotely resembling an ideological bent.''
       Judge Lewis on Judge Alito and civil rights: ``If I 
     believed that Sam Alito might be hostile to civil rights as a 
     member of the United States Supreme Court, I guarantee you 
     that I would not be sitting here today. . . . My sense of 
     civil rights matters and how courts should approach them 
     jurisprudentially might be a little different. I believe in 
     being a little more aggressive in these areas. But I cannot 
     argue with a more restrained approach. As long as my argument 
     is going to be heard and respected, I know that I have a 
     chance. And I believe that Sam Alito will be the type of 
     Justice who will listen with an open mind and will not have 
     any agenda-driven or result-oriented approach.''
       Judge Lewis on why he endorses Judge Alito: ``I am here as 
     a matter of principle and as a matter of my own commitment to 
     justice, to fairness, and my sense that Sam Alito is 
     uniformly qualified in all important respects to serve as a 
     Justice on the United States Supreme Court.''

  Mr. GRAHAM. Mr. President, I have limited time, so I am not going to 
read them all. But I ask each Member of the body to look, if they can, 
at these short quotes, or if they want to listen to the whole 
testimony, they can certainly retrieve it and ask the question of 
themselves: Why would these judges from a variety of different 
philosophies be coming before our committee and testifying on behalf of 
Judge Alito if he truly was an ideologue or out of the mainstream, if 
he held positions on abortion or any other line of cases that were 
extreme in nature or outside the judicial mainstream of what a judge 
should do?
  Why would the American Bar Association, after looking at hundreds of 
opinions and thousands of cases in which Judge Alito participated, come 
to the conclusion that he is a judge's judge, that he has the 
temperament, the disposition, and that there is no bias when you look 
at all the cases where he favors one class of Americans over another? 
Why would so many law clerks, as Senator McCain mentioned, come to the 
judge's aid if he was a person who exhibited a hard heart, for lack of 
a better way of saying it, a person who took the law and applied it to 
individuals in this country coming before him in a statistical manner, 
not a human manner?
  I would argue that of all the records that have ever been amassed for 
a nominee Judge Alito's record is on par with Ginsburg, Breyer, and 
anyone else who has ever been nominated, in terms of being highly 
qualified--15 years on the bench and a good person.
  Those who know him best, those who work with him when the cameras are 
not on and when nobody else is around all have the same view of Judge 
Alito: He is a good person who takes his job seriously. He follows the 
law, and he is conservative, but he is mainstream in terms of what we 
expect a judge to be.
  Who is in the mainstream in America when it comes to judging? And who 
is to determine what the mainstream is? If you would ask me to judge a 
Democratic nominee as to whether they were in the mainstream of legal 
thought I would try to give you an honest answer. But if you wanted to 
ask someone other than me--I am a Republican--I would probably 
understand why you want to ask somebody other than me.
  How do we determine if a person is in the mainstream of being a 
judge? Rather than asking a politician, maybe we should go to a source 
outside the political moment, outside a political body, who believes 
that this is a hugely important decision not only for the country but 
has political consequences.
  The reason this is an important political decision is because special 
interest groups are watching our every move. Millions of dollars have 
been spent on advertising for and against Judge Alito. There are groups 
out there that have made it their reason for existing to deny this man 
a vote or to defeat him. There are groups out there that are bent on 
supporting him.
  What do nonpolitical people say? What do people who have no political 
ax to grind say? What do the people who have sat with him a decade plus 
say, his fellow judges, African-American judges? They say he is not an 
ideologue, that he is a good judge.
  What does the American Bar Association say? That he has a 
temperament--over 2,000 people were interviewed, I think it was; some 
amazing amount of interviews conducted--a temperament beyond question; 
that he approaches each case without a bias, but he tries to find the 
best he can, looking through his philosophy of judging, to get the 
right answer. Those who worked with him as a prosecutor, who have been 
his clerks, all have nothing but admiration for this man.
  So why will he get, at best, five or six Democratic votes? Why did 
Justice Ginsburg get 96 votes? I would argue she deserved 96 votes, but 
she was no better qualified than Judge Alito. The same things that were 
said about Justice Ginsburg, in terms of her temperament and her legal 
abilities, are being said about Judge Alito.
  Politics has changed. Some members of our committee openly said 
things are different now than they were then. This is replacing Justice 
O'Connor. The

[[Page S65]]

country is more divided. All I can say is, don't start down a road that 
you will regret because Justice Ginsburg replaced Justice White, and if 
we are going to base our vote on Roe v. Wade, what somebody might do, 
then a pro-life Senator would have a very difficult time casting a vote 
for Justice Ginsburg because she openly embraced a constitutional right 
to abortion and supported public funding of abortion. That is a view 
held by many Americans. It is a legitimate view to have. But from a 
pro-life point of view, it was clear that she was going to probably be 
different than Justice White because Justice White dissented in Roe v. 
Wade.
  If that is the only reason you were voting for Justice Ginsburg, you 
knew with a high degree of certainty the balance of power on the Court 
would change when it came to that one issue.
  Somehow back then people of a pro-life persuasion set that aside and 
looked at her qualifications. She was never attacked, that I can find 
in the Record, for being the general counsel for the American Civil 
Liberties Union, a left of center organization, from a conservative's 
point of view, that embraces many causes with which I personally 
disagree. But people understood there was a difference between 
lawyering and judging.

  I would argue forcefully that the unpopular cause needs the best 
lawyer. Instead of holding it against her for representing politically 
unpopular causes, causes with which I completely disagree, I would give 
her credit as a lawyer because the unpopular cause needs the best 
lawyers in the country. The more popular it is, the worse lawyer you 
can have because you are likely to win.
  Something has changed, and I would argue that change is being driven 
by the political moment, not by the record, and it has huge 
consequences for this country.
  The Presidency is a political office. To become President, you have 
to go through a lot--a lot of commercials are run and a lot of 
scrutiny. To become a Senator, you have to go through a lot--a lot of 
commercials are run against you, and you go through a lot of scrutiny. 
We sign up for the process knowing what we are getting into.
  Traditionally, judges who come before the Senate, recommended by the 
President to the body, do not have to mount political campaigns and 
have traditionally not been subject to political campaigns. The reason 
being there has to be one place in America where politics is parked at 
the door. How many people want their case decided by a political judge? 
I don't; even if they agree with me I don't because that is dangerous. 
We are running with warp speed toward a day when the judiciary is 
politics in another form. There is plenty of blame to go around. I am 
not saying the Republican Party is blameless, but when it comes to 
evaluating Supreme Court nominees, I would argue there has been a 
change from President Clinton's term to the current time and that the 
model that Senator Hatch used with Justices Breyer and Ginsburg would 
be a good model for your vote on qualifications and where you do not 
take dissents and political attacks as the way to try to undermine the 
nominee.
  I honestly challenge anyone in this body to say that in terms of 
legal ability, legal experience, and personal character, there is a 
dime's worth of difference between Roberts, Alito, Ginsburg, and 
Breyer. There is not. The record in Judge Alito's case and in Judge 
Roberts' case shows beyond any doubt they are well-qualified lawyers 
who have practiced before the Supreme Court, who have the admiration of 
their colleagues, their associates, and those they have opposed in 
court, and that they are without any doubt historically well-qualified 
nominees.
  You can take a record and make it what you want to make it for 
political reasons. You can take anyone's life and snip and cut and cut 
and paste and make that life anything you want it to be in a 30-second 
commercial. It can happen to me, it can happen to you, Mr. President, 
it can happen to any American because if you have been involved in the 
law as long as Judge Alito, you can cut and paste his life as a lawyer, 
as a judge, and as a person. I just ask that we reject the politics of 
cut and paste and we look at the entire record and the complete person.
  If we look at the complete person, we find a good father, a good 
husband, a good man who comes from a humble background and who has 
ascended to the highest levels of the law known in our country. If we 
look at his time as a judge, we will find someone respected by his 
colleagues who is serious as a judge, who is analytical in his thought 
process, who is, by no means, an ideologue. If we step back, we see in 
Judge Alito one of the most qualified conservative judges in the land.
  I end with this thought. Elections do matter. President Clinton 
earned the right from the American people to make two selections. He 
picked people of known liberal philosophy and inclination to be on the 
Court. These are legitimate philosophies to embrace and to have. He 
picked extremely well-qualified people to be on the Court. They are on 
the Court now with an overwhelming vote.
  President Bush and his nominees have been treated differently. I 
worry more about the future of the judiciary than I worry about 
President Bush because his time will come and it will go. He may have 
another pick. But what we are doing on his watch is going to forever 
change the way the Senate relates to the judicial confirmation process 
if we don't watch it.
  For someone such as Judge Alito to be rejected by 80 percent of the 
Democratic caucus is not healthy for the country because, quite 
frankly, he has earned a better showing than that. He has lived his 
life well.
  He has been a good judge. He is a good man. His record, his 
colleagues, his associates, and everything he has done as a lawyer, 
judge, and person needs to be considered in its entirety--not for 
political ends for the moment.
  This vote we are about to take in the next few days is going to 
change the way the Senate works for a long time to come. My belief is 
it is going to change it for the worse.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Ms. MIKULSKI. Mr. President, on behalf of the Democratic leader, I 
ask unanimous consent that the hour of Democratic time be controlled as 
follows: Mikulski, Clinton, and Kerry up to 20 minutes each, and 
Senator Nelson of Florida up to 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I rise to voice my opinion on the 
nomination of Judge Alito. I view this process with enormous 
seriousness. It is not like a political campaign because the Supreme 
Court is a lifetime appointment.
  Senators are called upon to make two decisions that are irrevocable 
and irretrievable. One is the decision to go to war and put our troops 
in harm's way. A very serious decision. You can't say the next day, 
Whoops, I made a mistake. The other is the confirmation of a Justice of 
the Supreme Court. When that person goes on the Court, he or she is 
there for a lifetime unless they commit an impeachable offense.
  This vote will have an immense impact on future generations. Judge 
Alito is 55 years old. We can presume that he will be blessed with good 
health and will serve if confirmed for at least another 20 years. He 
will rule on thousands of cases, which themselves will be around for 
decades after he has left the court. His decisions will affect the 
lives of virtually all Americans for generations.
  This vote will have an immense impact because of who the judge is 
replacing, Justice Sandra Day O'Connor, the very first female ever 
appointed to the Supreme Court. Wow. She has been a terrific Justice of 
the Supreme Court, a historical figure indeed. She broke the glass 
ceiling of the highest Court in our land to become the first female 
justice on the United States Supreme Court. She has been a true pioneer 
in helping to pave the way for women in the legal profession. Justice 
O'Connor's impact on women in America reached beyond being a mentor and 
a role model. Because it is not only what she did for women--it was the 
outstanding Justice she was. She brought new perspectives to the Court, 
a great intellectual ability, and she brought a strong sense of 
independence. That is why I think she was picked by Ronald Reagan. She 
has been squarely in the mainstream, and often a critical swing vote, 
which determined which way a key case was decided. She brought the

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``i'' word to the Court--not ego but intellectual rigor and integrity 
and independence. That is why she was such a key vote, and often her 
vote determined whether fundamental rights were protected or not often 
depended on Justice O'Connor's vote.
  When we pick the nominee to replace Justice Sandra Day O'Connor, I 
hoped the President would have picked another woman. When he nominated 
Harriet Miers, I was shocked, stunned, and even repulsed by the 
vitriolic, vicious attack on Harriet Miers.
  After Harriet Miers was withdrawn, who did they give us? Certainly, I 
think in all of the United States of America there was a qualified 
woman who could have been nominated to serve on the Court. It would 
have been nice if we had taken the time to find one, but I don't know 
if they were really looking because if you seek you shall find.
  Who did the President nominate? Judge Alito.
  I want to be very clear at the outset: I am going to vote to oppose 
the confirmation of Judge Alito, and I do so for a variety of reasons.
  One, I don't know who the real Judge Alito is. Is he the Judge Alito 
who, when he applied for a job at the Reagan Justice Department, 
pandered to every right-wing cliche, message-driven focus group 
identified cause, attack affirmative action, one person, one vote, and 
all of that? Is that the Judge Alito we will have serving on the 
Supreme Court? He says, No, I wrote that because I was applying for a 
job. Hey, what is he doing here right now in the confirmation process? 
He is applying for a job.
  The process has occurred in the public and transparent arena.
  But who is he? Is he a so-called new, moderate, mainstream, ``Gee, I 
have always been in the middle'' kind of guy or is he the person who 
applied to work at Reagan Justice Department whose writings validate 
his pattern of thinking?
  Judge Alito failed to answer too many questions during the 
confirmation hearing. Judge Alito refused to clarify his views and his 
philosophy. He has written many, many decisions as a Circuit Court 
Judge which are clearly out of the mainstream. He failed to clarify his 
positions on the constitutional right to privacy, other fundamental 
rights and settled law. It is also unclear if he will be able to keep 
his strong personal views from influencing his decisions on the highest 
court of the land. In the end, Judge Alito failed to answer too many 
questions; he appears to be out of the mainstream.

  Let me tell you my criteria for deciding on a Justice--actually on 
any judge.
  First, is the nominee competent? Judge Alito is competent. He has the 
highest rating of the American Bar Association. I listen to them very 
carefully because we consider them an important advisory group that 
weighs in to the Senate. I hope that same standard of looking to the 
American Bar is applied to other nominees in the future.
  Second, does he have the highest personal and professional integrity? 
Personal integrity: I would say yes. By all accounts, he is an honest 
man. He pays his bills. His wife is devoted to him. He seems to have 
wonderful children.
  Professional integrity: I have some flashing yellow lights here. One 
is the concern about how he says he is this fairminded person, always 
open, doesn't believe in discrimination.
  I am troubled by his past membership in that very conservative 
Concerned Alumni for Princeton which Senator Frist and other prominent 
Princeton alumni repudiated. But Alito didn't. He boasted about his 
membership when he applied with the Reagan administration. That was the 
same group that didn't want women in Princeton; women weren't their 
kind. There are a lot of other decisions he ruled on as a judge against 
people who ``just weren't our kind.'' He claims he doesn't remember 
that he was a member of this group, but he used it to get a job. Now he 
doesn't want to use it to get this job.
  The third criterion I have is will the nominee protect core 
constitutional values and guarantees that are central to our system of 
government?
  Based on his own statements and testimony at the hearings, I have 
serious doubts about safeguarding civil rights, the right to privacy, 
and equal protection of the law for all Americans. That is the bedrock 
of our democracy. We are left to wonder if he will protect fundamental 
rights--the right to be free from unnecessary Government intrusion. In 
the hearings, he had many opportunities to let us know whether he would 
secure those rights.
  Then he didn't clear up uncertainties. He didn't clarify his record. 
He didn't candidly and completely answer the key questions that would 
tell the American people where he stands on critical issues. With the 
hearings over I am still asking who is the real Judge Alito?
  First, let's take the issue of civil rights. One of the most 
important civil rights is the right to vote. Yet Alito left me with 
serious doubts on what his true views are. When applying for a job in 
the Reagan administration, Alito said he strongly disagreed with the 
Warren Court on legislative reapportionment which became the bedrock 
principle of one person, one vote. That Supreme Court decision changed 
the face of America. It changed the face of how districts were drawn 
up, and made sure, therefore, that people truly could be represented in 
legislative bodies.
  He later said in the judiciary hearings that the one person, one vote 
doctrine is settled law. But he couldn't explain why he wrote the other 
statement on his job application or why his opposition to the Warren 
Court's decisions inspired him to go to law school.
  Another fundamental principle is the ability for an individual to go 
to court when his or her rights are violated. An open courthouse door 
is fundamental to our democracy. Yet Judge Alito's record is troubling. 
In one case involving race discrimination, a woman sued her employer 
for racial discrimination. Yet Judge Alito argued that the woman 
shouldn't be allowed to present her case to the jury. The majority 
disagreed with Alito and allowed the woman to have her trial. In fact, 
the majority stated if they had applied Alito's analysis Title VII of 
the Civil Rights Act would have been eviscerated.
  There are many other cases in the area of civil rights and race 
relations I find troubling, that show Judge Alito is not a moderate or 
a mainstream judge as he seem to suggest he was at the hearings.
  Then there is this issue of unchecked Executive power. The Supreme 
Court is the critical check on the other branches of government by 
making sure that the checks and balances in the Constitution are 
maintained. Increasing Presidential power has been a hallmark of this 
administration--not just the recent discovery about spying on Americans 
without warrants but also secret meetings with energy company CEOs, 
preventing disclosure of how executive decisions are made and so on.
  When asked about whether or not this President could ignore laws 
passed by Congress, Alito would only say no one is above the law. That 
was not an answer--that is an empty slogan. We want to know how he 
would interpret the scope of executive branch power.
  During his time on the bench, Judge Alito has been very deferential 
to the executive branch. His answers suggest he will continue to be. We 
need a member of the Supreme Court who is part of the Court and not 
part of the executive branch. We can't afford to have the Supreme Court 
duck its responsibility to check the executive branch.
  So I am troubled about his position. We are at a benchmark in our 
society and this is the time when we have to be very clear on the 
executive powers and prerogatives.
  Then there is the right to privacy. In the area of the 
constitutionally protected right of privacy, it is unclear what Judge 
Alito believes the Constitution protects. Again, I go back to the 
statements he made when he applied to work in the Reagan 
administration. He was 35 years old, so he wasn't some kid who wasn't 
sure about himself. He was exploring big theories and big ideas. He was 
35 years old. He was applying for a job at the Justice Department. You 
have to be a pretty experienced professional to even think you are 
qualified to apply for a job at the Justice Department. He was 
seasoned, and he was experienced, but he also wrote in that application 
that he was proud he would have argued that the Constitution does not 
protect the right to an abortion.

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  Let me say these are his words, not Senator Mikulski's. Not only did 
he take the position to eliminate the rights in Roe v. Wade, he thought 
it was important that he emphasized it in his job application.
  Now at the hearings he presents a different view. The key question 
for Judge Alito on the constitutionally protected right to privacy was 
whether he considered Roe to be settled law.
  Judge Roberts at his confirmation hearing said he believed Roe was 
settled law. Repeatedly, Alito was also asked at the hearings if he 
considered Roe to be settled law and if he agreed with Judge Roberts. 
Alito refused to say. He repeatedly refused to answer how he would 
protect the fundamental and explicit right of privacy--implicit right 
of privacy--in our Constitution. He himself refused to clarify his 
previous dismissal of Roe v. Wade.
  He refused to clarify also his position on why a woman should have to 
notify her husband in order to get an abortion, a requirement Justice 
O'Connor ruled was clearly unconstitutional. Nor would he elaborate on 
what the right of privacy actually includes over and above reproductive 
rights.
  What does it mean in general? Our Constitution is a living and 
breathing document. Twenty years ago when we talked about the rights of 
privacy, we didn't know about the Internet, we didn't know about data 
mining, we didn't know about the fact that we would have to have a 
national debate on national security and the right to privacy. Was it 
overreaching? When does the U.S. Government become the Grim Reaper, or 
what do they need to do to protect us? These are real issues. They 
require real debate. They require independence in the judiciary to help 
set the boundaries and the parameters on what other branches of 
government can and can't do.

  Don't you as a citizen want to be protected, when going to a library 
to borrow a book, from somebody snooping on you? If a citizen checks 
out a paper or a book because you want to know what the enemies of the 
United States think about our way of life or philosophy, for example, 
you check out books like ``Mein Kampf'' or ``Das Kapital'' because you 
want to know what our enemies thought, so you could be prepared to 
refute them with your own ideas on democracy, you don't want the 
government spying on you. Yet, what happens if something gets triggered 
and something is sent over to the peepers at a Government agency about 
what you are reading.
  Sure, we have to look out for terrorists, but should every book 
checked out of a library trigger the government spying on you? Do you 
want them listening while you talk to your girlfriend? Do you want them 
monitoring you and what church you go to?
  These are big questions we are facing as a nation. We need to have 
mindful judges who help set the appropriate parameters to protect 
citizens against the predators in our society, to be sure our 
Government itself does not become a predator on the ordinary citizen's 
privacy. These are big issues.
  So we are left to ask, Where was Alito on the right to privacy? We do 
not know. His answers and non-answers clearly suggest that he will not 
protect this fundamental right. Issue after issue leaves me with great 
concern.
  One last area of concern I want to talk about is Judge Alito's 
apparent predisposition to rule against ordinary Americans. I look at 
the seat Judge Alito has been nominated to replace. It is a seat of 
moderation. Justice O'Connor represented mainstream America. She 
understood as a justice for the highest court in the land that her 
decisions impacted real people and their lives. Her decisions were not 
made in the abstract. Judge Alito has stated he looks at the facts of 
each case. Yet time and time again his decisions show support for big 
business, for the executive branch but not so much for everyday 
Americans. A justice of the Supreme Court must be able see through 
abstractions and understand the role of the law in the lives of all 
Americans not just the powerful and influential. A justice must make 
the marble motto over the Supreme Court ``Equal Justice Under the Law'' 
a reality for all Americans. That is also an important role for every 
Supreme Court justice. Judge Alito's opinions, writings and answers 
suggest to me that he does not understand this role either.
  I have given careful consideration to this nomination. I have 
carefully watched the Judiciary Committee hearings. I may not be a 
member of the Judiciary Committee, but I have paid close attention to 
the hearings and watched them on C-SPAN. I went over his past writings, 
his decisions as a judge and the testimony of others.
  In the end, I have too many doubts about what Judge Alito will mean 
on the Supreme Court, what he will mean for civil rights, our civil 
liberties, checks and balances on executive power, caused by what he 
said--and even more by what he refused to say. I am concerned he is out 
of the mainstream, that he is willing to say what he needs to say to 
get a job, that he is an ideologue and that his personal views will 
influence his decisions. It is not acceptable that Judge Alito has 
explained that he either forgot why he wrote something or that his 
early writings were simply for a job application. What he believes is 
what he is. It will shape the Supreme Court for the next 20 years.
  After careful review of the record before the Senate, I have too many 
doubts, too many unanswered questions. Doubts about his commitment to 
providing access to courts for Americans, ensuring appropriate checks 
and balances among the three branches of government and the fundamental 
right to privacy. The Supreme Court nomination is too important a 
decision to roll the dice; I am afraid I will come up with snake eyes. 
Therefore, when my name is called in the United States Senate for his 
nomination, I will vote no.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. CLINTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CLINTON. Mr. President, I associate myself with the eloquent 
remarks of the Senator from Maryland. Once again, she evidences the 
rare combination of high intellect, quick wit, and a savvy 
understanding of what is important to the people she represents.
  The nomination of Judge Samuel A. Alito, Jr., to the Supreme Court of 
the United States is a matter of great, even monumental, importance to 
all--to our children and to future generations of Americans.
  I have spent a lot of time in my State over the last 2 weeks. I have 
traveled from one end of it to the other, from Long Island to Buffalo. 
I have to say, Judge Alito's name is not on the lips of most of my 
constituents. They want to talk to me about the complex and confusing 
Medicare prescription drug benefit. They want to ask about the culture 
of corruption that seems to have taken over Washington under the 
Republican leadership. They have questions about their health care 
which is at risk, even if you are employed, or the pensions which seem 
to disappear with regularity these days. They are concerned about the 
day-to-day, bread-and-butter, table-top issues that we all live with.

  I say this vote we are going to take in the Senate will end up having 
a great deal to do with how they live their lives, with the balance of 
power within our country, with the quality of life and liberty and 
pursuit of happiness available to Americans.
  The Constitution commands the Senate provide the President with 
meaningful advice and consent on judicial nominations. I take this 
constitutional charge very seriously. I have carefully reviewed the 
committee's hearings and Judge Alito's extensive record. I have met 
with the judge. I have spoken with people who have strong opinions on 
both sides of this nomination. I have concluded I cannot give my 
consent to his nomination to the Supreme Court.
  The way I read American history is that the key to American progress 
has been the ever-expanding circle of freedom and opportunity. That has 
been the common thread through all periods of our history--greater 
rights and greater responsibilities of citizenship and equality.
  Each time we have made strides forward, there have been vocal voices 
of opposition. There have been those who have wanted to go back. At 
those moments of profound importance to our

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country, the Federal courts have been the guardians of our liberties, 
have stood on the side of greater freedom and opportunity.
  We all know the famous cases cited as representing this forward march 
of progress: Brown v. Board of Education, which struck down the notion 
of separate but equal; Baker v. Carr, which invalidated discriminatory 
State voting apportionment schemes and paved the way for the concept of 
one man, one vote; Griswold v. Connecticut, which recognized a right to 
privacy in the Constitution; Roe v. Wade, which established that women 
have a right to choose.
  We need judges who will maintain that forward progress. Despite his 
distinguished academic credentials, Judge Alito has not shown himself 
to be that kind of judge. He does not have the dedication to civil 
rights or women's rights or the right to privacy that I believe we need 
in the next Supreme Court Justice.
  Time and again, when given the choice, he has voted to narrow the 
circle, to restrict the rights Americans hold dear. Now is not the time 
to go backward.
  Without the progress we have made in the past 230 years, without that 
expansion of the circle of equality and freedom and opportunity, I 
certainly would not be standing here, nor would a number of my 
colleagues. There would be no opportunities for women in public life.
  But mine is hardly the only example. Voting rights would be 
restricted. Equal opportunities in education and in the workplace would 
not exist. And none of us would have a constitutional right to privacy. 
Simply put, our Nation would not be what it is today.
  Our greatest strength has always been our commitment, generation 
after generation, with some fits and starts, to enlarging the circle of 
rights and equality. That great American commitment has made us a 
beacon of freedom around the world. This nomination could well be the 
tipping point against constitutionally based freedoms and protections 
we cherish as individuals and as a nation. I fear Judge Alito will roll 
back decades of progress and roll over when confronted with an 
administration too willing to flaunt the rules and looking for a 
rubberstamp. The stakes could not be higher.
  To be sure, Roe v. Wade is at risk, the privacy of Americans is at 
risk, environmental safeguards, laws that protect workers from abuse or 
negligence, laws even that keep machine guns off the streets--all these 
and many others are in peril.
  I don't believe millions of Americans are aware of that yet. This 
debate is carried on in Washington. It is at a high level of legalisms 
and debates about jurisprudence and the meaning of the Constitution. 
But I am confident the Supreme Court will have a dramatic effect on our 
Nation and on what we believe America stands for.
  When I ran for the Senate, I told New Yorkers that I would only vote 
for judges who would affirm constitutional precedents, such as Roe and 
Brown and other landmark achievements and expanding rights and the 
reach of equality for all Americans. This is about more than rhetoric. 
This is very real. The American people are counting on us not to be a 
rubberstamp but counting on us to make sure the President's nominee 
will not take us backward.
  I also view this nomination through the prism of the Justice that 
Judge Alito will replace. I have not always agreed with Justice Sandra 
Day O'Connor. But she has shown, throughout her career of distinguished 
service to the Court that one Justice makes a big difference. One 
Justice can protect our constitutional rights. Justice O'Connor is a 
true conservative, a mainstream jurist. She appreciated the 
advancements we have made as a society because she lived them. Anyone 
who has ever read her autobiography about this little cowgirl growing 
up on a ranch in Arizona, going off to school, eventually going to 
Stanford Law School, graduating near the top of her class and being 
unable to find a job simply because she was a woman does not only 
intellectually understand why our history is about moving forward and 
removing the obstacles to God-given human potential, she feels it. She 
understands it.
  Time and time again, she showed she appreciated the advancements we 
have made as a society. She has fought to ensure they continue. Her 
vote was often the defining vote on which key civil liberties and 
rights rested. She exercised it with care and independent judgment.
  Any fair reading, in my view, of Judge Alito's record does not 
demonstrate that same independence of judgment, nor does it illustrate 
a grasp, either intellectual or emotional, of the day-to-day struggles 
that tens of millions of Americans face. On the contrary, Judge Alito 
proudly announced his personal opposition to a woman's right to choose 
early in his career in the now infamous 1985 job application for a 
position in the Reagan administration. Although he has tried to 
distance himself from the comments he made in that document, his time 
on the bench shows an unapologetic effort to undermine the right to 
privacy and a woman's right to choose.
  I believe, and I have said so for many years, abortion should be 
safe, it should be rare, but it should be legal. I understand it is a 
difficult and even tragic choice for many women. It is a decision of 
conscience. Therefore, it should be a constitutionally protected 
decision made not by the Government, not by the majority--whoever the 
majority might be--but between a woman, her doctor, and her faith in 
God.
  Judge Alito does not share this view. And I think we can be certain 
that, freed from the constraints of Supreme Court precedent, he will 
intensify his campaign to roll back these important privacy rights.
  The extreme rightwing of the Republican Party was up in arms when 
President Bush nominated Harriet Miers to the Court to replace Justice 
O'Connor. It was quite a spectacle to see this good woman, who had 
risen to the top of her profession in Texas--not, I would imagine, an 
easy place to be the president of a State bar and be the managing 
partner of a large law firm, but had done so by dint of hard work and 
intelligence--be turned on by members of her own party because they 
could not be sure she would agree with them no matter what the facts or 
circumstances. Their reaction to Judge Alito's nomination, in contrast, 
has been enthusiastic, effusive, even ecstatic. Why? Because they know 
exactly what they are getting.
  Judge Alito's constrained views have not been limited to issues of 
privacy. While on the Third Circuit, he has rarely sided with 
individuals seeking relief from discrimination on the basis of race, 
age, gender, or disability. In fact, in the vast majority of civil 
rights cases, Judge Alito has sided with those who would infringe on 
the civil rights of Americans. For example, in several dissents, he has 
called for curtailing what is called title VII of the Civil Rights Act 
of 1964, the landmark statute prohibiting discrimination against women 
and minorities in the workplace.
  These individual views, as manifested by his writings, his work in 
the Government, and his opinions on the bench, are even more troubling 
because he seems to favor Executive power so much over the other 
branches of Government. So I also fear he will not respect the system 
of checks and balances that our Founders so carefully set out in the 
Constitution. No one who has read the Federalist Papers or the debate 
that our Founders had when constructing the Constitution or who 
understands the historical context in which our Declaration of 
Independence and our Revolution occurred could underestimate the 
importance they placed on having three truly independent and equal 
branches of Government.
  The Founders understood human nature. They got it. They knew that 
unchecked power would lead to abuses. And we have seen some of that 
right here in Washington over the last 5 years. They realized that we 
had to check and balance against power centers in order to bring out 
the better ``angels'' of our nature, but also to keep a watch on each 
other.
  I do not believe, after reviewing Judge Alito's record, he 
understands or respects this central principle to the way America is 
set up. He has sought to expand the power and purview of the executive 
branch at nearly every turn, while simultaneously stripping Congress of 
its authority and curtailing the rights enjoyed by private citizens. 
For example, while working for the

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Reagan administration, he made the argument that Cabinet officials who 
are charged with authorizing illegal wiretaps of Americans in this 
country should be entitled to absolute immunity. At a time when this 
President and his political party stand accused of political 
overreaching and abuse of power, we must demand from our judiciary a 
respect for the proper role of each of our three branches of 
Government. But Judge Alito's excessive deference to Presidential 
authority, coupled with his restrictive view of congressional 
authority, tells me he does not have the proper reverence for 
separation of powers.
  What is worse is that in supporting the expansion of the reach of 
Presidential power, Judge Alito also holds a harshly limited view of 
what the Government can or should do to help ordinary Americans. Judge 
Alito said it all in 1986, when he was a young lawyer with the Reagan 
administration. He wrote that in his estimation, it is not the role of 
the Federal Government to protect the ``health, safety and welfare'' of 
the American people. Well, I guess that explains the inept, slow, and 
dangerous response to Hurricane Katrina. If you are not responsible to 
protect the health, safety, and welfare, why should you be held 
accountable when people suffer, when their Government leaves them 
neglected without any help?
  Judge Alito has long advocated a limited congressional authority 
view. Now, if that were adhered to, it would undermine a whole host of 
civil rights protections, health and safety regulations, standards for 
protecting our air and water, food and drug quality regulations, laws 
regulating firearms as well as vital programs such as Social Security, 
Medicare, and Medicaid.
  Since his appointment to the Third Circuit, Judge Alito has 
aggressively sought to promote this theory of limited congressional 
power. In 1996, he voted to invalidate parts of our Federal gun laws, 
arguing there was no evidence in the record to determine that Congress 
had the power under the Constitution's commerce clause to enact 
legislation that regulated the sale of machine guns. In another case, 
Judge Alito wrote an opinion striking down Congress's right to make a 
State agency comply with the Family and Medical Leave Act. And just 3 
years later, the Supreme Court, with a similar set of facts, reached 
precisely the opposite conclusion.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mrs. CLINTON. Mr. President, I ask unanimous consent for 5 more 
minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mrs. CLINTON. In several criminal cases, Judge Alito has shown 
blatant disregard for a defendant's fundamental right to be tried by an 
impartial jury--what any one of us would want if we or a loved one were 
ever in this position--chosen free of racial or gender prejudice. He 
has also narrowly construed other constitutional criminal procedure 
protections, arguing often in favor of granting law enforcement 
officials the greatest of latitude to conduct unauthorized searches and 
seizures.
  Judge Alito's opinions on these and many other topics remind us that 
judicial activism comes in many guises. Adopting an unnecessarily 
narrow view of the Constitution or of our laws to reach a desired 
outcome is a form of judicial activism that is no less offensive than 
subscribing to an overboard interpretation of the law in order to reach 
a specific result.
  Judge Alito, if confirmed, may hold a seat on the Supreme Court for a 
generation--long after this President has left office. Perhaps through 
8 to 10 Presidential elections, decades of progress would fall prey to 
his radical ideology, jeopardizing not only civil rights, civil 
liberties, health and safety and environmental protections, but also 
fundamental rights such as the right to privacy. Our Federal Government 
could be transformed into one where Congress is largely irrelevant and 
the President is permitted to make up the rules as he goes. I do not 
believe Judge Alito's vision of that America is what our Founders 
intended for us. He would take us backward, when it has never been more 
important to move forward together.
  I sincerely hope my concerns about Judge Alito are unfounded, but I 
suspect they are not, and our children and grandchildren will pay the 
price. He has not demonstrated a proper respect for the rule of law, 
our Constitution, and the principles, freedoms, rights, and privileges 
that Americans hold most dear. I, therefore, cannot give my consent to 
his confirmation.
  Mr. President, I ask unanimous consent that letters written to 
Senators Specter and Leahy opposing this nomination be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              National Organization for Women,

                                Washington, DC, December 13, 2005.
       Dear Senator, NOW is strongly opposed to the elevation of 
     Judge Samuel Alito to the Supreme Court of the United States, 
     and with every passing day more information appears that 
     reconfirms our opposition. We urge you to review his record, 
     writings and judicial philosophy and join us in opposing his 
     nomination.
       Not only is NOW disappointed that President Bush has 
     proposed to replace Justice Sandra Day O'Connor with yet 
     another white male ultra-conservative, but we are deeply 
     disturbed by the twenty-year track record that places Judge 
     Alito on the far right of the judicial spectrum, especially 
     when it comes to women's and civil rights. If Samuel Alito is 
     confirmed by the U.S. Senate, many of our fundamental rights 
     will be at great risk and could well be lost entirely.
       A bedrock principle for NOW is full Constitutional rights 
     for women and at the heart of that equality is self 
     determination for women when they deal with their 
     reproductive health care and childbearing decisions. When 
     applying for a position in the Reagan administration in 1985, 
     Alito stated he was ``particularly proud'' of his work on 
     cases arguing ``that the Constitution does not protect a 
     right to an abortion.'' A memo released later shows that 
     Alito told his boss that two pending cases provided an 
     ``opportunity to advance the goals of overruling Roe v. Wade 
     and, in the meantime, of mitigating its effects.'' These are 
     not the actions of someone simply trying to please his boss, 
     but proud convictions that we have no reason to believe have 
     altered in the past two decades.
       Also troubling is his proud touting of his membership in a 
     conservative Princeton alumni group that complained about the 
     admission of women and the number of minority students on the 
     elite college campus. How will Judge Alito deal with 
     educational opportunity and Title IX? How will Judge Alito 
     deal with pay equity and workplace policies as well as 
     affirmative action and job benefit issues that 
     disproportionately affect women? How will Judge Alito deal 
     with challenges to federal legislation guaranteeing 
     disability rights, lesbian and gay rights, and freedom from 
     domestic and sexual violence? We believe he will rule on the 
     side of narrowing our freedoms and barring our redress in 
     court.
       Please consider all of these issues as you review Samuel 
     Alito's fitness to serve on our highest court in the land. 
     Based on his record, he will not come down on the side of 
     fairness and equality for all. We ask that you vote against 
     his nomination.
       Sincerely,
                                                        Kim Gandy,
     President.
                                  ____



                                               Legal Momentum;

                                 Washington, DC, January 10, 2006.
     Senator Arlen Specter,
     Chairman, Committee on the Judiciary,
     U.S. Senate
     Senator Patrick Leahy,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate
       Chairman Specter and Senator Leahy: Legal Momentum, the 
     nation's oldest women's legal rights organization, opposes 
     the confirmation of Judge Samuel Alito as Associate Justice 
     to the Supreme Court of the United States. Throughout his 
     career he has pursued legal approaches that raise questions 
     about his ability to respect the balance of power between the 
     three branches of government. Judge Alito defers to agency 
     decisions in many settings, while showing skepticism toward 
     individual litigants' claims, appears to support a narrow 
     view of civil rights, prisoners' rights, and workers' rights, 
     appears willing to uphold legislative restrictions on the 
     right to privacy and is willing to limit congressional power 
     while showing excessive deference to the executive branch. 
     This agenda poses a danger to an inclusive society, and a 
     representative democracy with constitutionally required 
     checks and balances that serves the needs of the whole 
     electorate. The legacy of conservative centrist, Justice 
     Sandra Day O'Connor, deserves a replacement that does not 
     rule based on political considerations, but can fairly and 
     justly interpret the laws and Constitution of the United 
     States.
       Judge Alito's available record reveals a judicial 
     philosophy that would undermine critical civil and privacy 
     rights and protections. In his public statements, he speaks 
     about the restrained role of judges. Put into practice, 
     however, these views translate into higher burdens for 
     plaintiffs seeking to vindicate their rights, deference to 
     states or institutional defendants and employers, and limits 
     on the ability of Congress to require certain conduct from 
     states. For example, Judge

[[Page S70]]

     Alito often favors a restrictive reading of the law, which 
     results in the narrowest interpretation of civil rights. 
     Thus, individuals may be unable to enjoy the full reach of 
     these protections at crucial times. Stressing the need for 
     judicial restraint and discouraging judges from legislating 
     from the bench, he has used these themes as a means to limit 
     access to the ability of individuals to have their day in 
     court. And, he frequently argues to constrain the power of 
     the courts and the power of Congress, with regard to binding 
     states. The end result is that individuals, courts, and 
     Congress have less ability to hold states accountable to 
     ensure compliance with the law and remedy legal violations.
       Judge Alito has taken a very restrictive approach in 
     employment discrimination cases, resulting in few successes 
     for plaintiffs. In Bray v. Marriott, he would have let stand 
     an employer's decision not to promote an African American 
     female employee even though there was considerable evidence 
     of irregularities in the hiring and interview process. Judge 
     Alito argued in dissent that the employer's failure to follow 
     its own rules was not sufficient to prove discrimination 
     against the plaintiff. For him, the employer's argument that 
     the plaintiff was not the best qualified should have been 
     accepted at face value. In contrast, the majority concluded 
     there were enough questions about the employer's motives and 
     conduct to allow the plaintiff her day in court. Moreover, 
     the majority chided Judge Alito's analysis for effectively 
     eviscerating the antidiscrimination purposes of the law, by 
     accepting the employer's reasoning without adequate review to 
     determine whether racial bias influenced the hiring decision. 
     They stressed that what mattered was not whether the company 
     was seeking the ``best'' candidate, but ``whether a 
     reasonable factfinder could conclude that Bray was not deemed 
     the best because she is Black.'' In his fifteen years on the 
     bench, Judge Alito has almost never ruled for African-
     American plaintiffs in employment discrimination cases. The 
     Supreme Court deserves a Justice that is willing to consider 
     the full circumstances of the case at hand, not deny 
     plaintiffs their right to be heard.
       While Congress has made efforts to protect workers who need 
     time off work to care for a sick family member or to heal 
     from a long-term illness, Judge Alito would make it harder 
     for workers to challenge state employers for violating the 
     Family & Medical Leave Act. In Chittister v. Department of 
     Community and Economic Development, Judge Alito wrote for a 
     Third Circuit panel that the state of Pennsylvania was immune 
     from lawsuits by state workers alleging violations of the 
     FMLA's medical leave provisions. The decision effectively 
     insulated the state from FMLA, claims, and undermined the 
     ability of workers to access medical leave when needed. 
     Meanwhile, Justice O'Connor, who Judge Alito would 
     replace, voted to uphold a key provision of the Family and 
     Medical Leave Act. If the Supreme Court adopted Judge 
     Alito's views, millions of workers could lose their 
     ability to vindicate their rights under the Family & 
     Medical Leave Act.
       Judge Alito's record strongly indicates that he would 
     question the constitutional right to privacy and undermine 
     existing Court precedent on the issue. In a 1985 job 
     application, he touted his work on Reagan Administration-era 
     cases which argued that the Constitution does not protect a 
     right to an abortion--a position with which he indicated he 
     personally agreed. In a memorandum discussing the strategy 
     for the government's amicus brief in a pending case involving 
     a Pennsylvania abortion regulation, he stressed the 
     importance of finding a way to give states maximum latitude 
     to adopt abortion restrictions to undermine, if not overrule, 
     Roe v. Wade. After leaving the Administration and becoming a 
     judge on the Third Circuit, he wrote a dissent in Planned 
     Parenthood of Southeastern Pennsylvania v. Casey, arguing to 
     uphold burdensome restrictions and hurdles aimed at women 
     seeking an abortion. The Supreme Court ultimately rejected 
     his position, but he once again underscored a desire to place 
     new limits on a woman's ability to make her own reproductive 
     health decisions.
       Judge Samuel Alito's rulings on Americans' privacy rights 
     extend even further his support for increased power for the 
     executive branch. As a lawyer in the Solicitor General's 
     Office in 1984, Alito wrote a memo supporting absolute 
     immunity from civil liability for cabinet officials who 
     authorized illegal wiretaps of Americans due to national 
     security concerns. Later, he co-authored a brief to the 
     Supreme Court in which the government argued for absolute 
     immunity--an argument rejected by the Supreme Court. In 
     contrast, Justice O'Connor, writing for an 8-1 majority in 
     the case of American-born detainee Yaser Esam Hamdi (Hamdi v. 
     Rumsfeld), in which the court ruled that an American citizen 
     seized overseas as an ``enemy combatant'' must be allowed to 
     challenge the factual basis of his or her detention, said the 
     Court has ``made clear that a state of war is not a blank 
     check for the president when it comes to the rights of the 
     nation's citizens.''
       After becoming a judge, Alito wrote in several opinions 
     that would have extended the reach of search warrants for the 
     executive branch. In a dissenting opinion in Doe v. Groody, 
     he argued that police officers did not violate the 
     Constitution when they strip-searched a mother and her ten 
     year-old daughter, despite the fact that neither was named in 
     the search warrant. The majority opinion, written by now-
     Homeland Security Secretary Michael Chertoff, asserted that 
     Judge Alito's position would effectively nullify the Fourth 
     Amendment's warrant requirement and ``transform the judicial 
     officer into little more than the cliche rubber stamp.'' In 
     another dissent, in Baker v. Monroe Twp., Judge Alito voted 
     to keep a jury from hearing whether a police supervisor 
     unlawfully allowed his officers to handcuff, hold at gunpoint 
     and search a woman and her teenage children who happened to 
     stop by to visit the home of a relative in the midst of a 
     search.
       Alito's stance on executive branch powers is further 
     revealed in a Feb. 5, 1986 draft memo where he argued that 
     the White House should issue ``interpretive signing 
     statements'' when signing a bill into a law, and that courts 
     might be persuaded to consider this 'executive intent' 
     equally with legislative intent. The balance of power between 
     the three branches is imperiled when White House 
     interpretation is accorded equal weight with congressional 
     support.
       In conclusion, Judge Alito has consistently articulated 
     legal opinions that are outside the mainstream, that 
     undermine legal protections against employment 
     discrimination, that distorts the law in favor of extending 
     power to the executive branch, and that resorts to judicial 
     activism, blatantly ignoring the clear intention of the 
     legislature to push his arch-conservative political agenda. 
     Therefore, we urge you to oppose his nomination to the U.S. 
     Supreme Court.
       If you have any further questions, please contact Lisalyn 
     Jacobs at Legal Momentum, (202) 326-0040.
           Sincerely,
                                                Lisalyn R. Jacobs,
     Vice President for Government Relations.
                                  ____

                                                Eliminating Racism


                                             Empowering Women,

                                  Washington DC, January 10, 2006.
     Hon. Arlen Specter,
     Chairman,
     Hon. Patrick J. Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: On behalf 
     of the YWCA USA, representing over 2 million women and girls 
     with 300 associations nationwide, I am writing to write to 
     express our opposition to the confirmation of Judge Samuel A. 
     Alito, Jr. to the Supreme Court of the United States. His 
     views are not consistent with the value of equality that our 
     country holds dear, nor are they consistent with the YWCA USA 
     mission of eliminating racism and empowering women. Over the 
     past 50 years the Supreme Court's jurisprudence has often 
     served to protect the fundamental constitutional rights of 
     all Americans. After closely examining his record, the YWCA 
     USA has concluded that if Judge Alito were to replace Justice 
     O'Connor on the Court, this protection would likely halt and 
     in fact reverse with regard to individual rights. Judge 
     Alito's record reveals a history of troubling decisions in 
     the areas of civil rights, civil liberties, and fundamental 
     freedoms. The YWCA USA is extremely concerned that the 
     confirmation of Judge Alito to the Supreme Court would be 
     harmful for women and people of color.
       If Judge Alito were confirmed, he has the potential to 
     change the direction of the court and devastate the rights of 
     women. For example, in the landmark case Planned Parenthood 
     of Southeastern Pennsylvania v. Casey, Judge Alito concluded 
     that it was not an ``undue burden'' for a married woman 
     seeking an abortion to have to notify her husband, a position 
     that the Supreme Court later struck down. This case raises 
     key questions about whether, if confirmed to a seat on the 
     Supreme Court, Alito would vote to overturn Roe v. Wade. 
     Furthering the YWCA USA's concerns, about whether Judge Alito 
     would seek to strip away women's reproductive freedoms, are 
     his own words. As a lawyer in the Reagan administration, 
     Samuel Alito wrote, that he ``personally believed'' that 
     ``the Constitution does not protect a right to an abortion.'' 
     In addition, during his tenure with the Solicitor General's 
     Office he was one of the chief engineers of a multi-tiered, 
     strategy to reverse Roe V. Wade. Alito wrote that an amicus 
     brief in Thornburgh v. American College of Obstetricians and 
     Gynecologists was an ``opportunity to advance the goals of 
     bringing about the eventual overruling of Roe v. Wade and, in 
     the meantime of mitigating its effects.'' While it is 
     impossible to know for certain how Alito would rule in a 
     particular case before the Supreme Court, these statements 
     along with Judge Alito's past opinions make it difficult to 
     believe that he would effectively uphold the fundamental 
     freedoms of women. The rights, health, and safety of women 
     are too important to the YWCA USA to justify this risk.
       The YWCA USA is also concerned with Judge Alito's record on 
     civil rights and affirmative action. It is quite troubling 
     that Samuel Alito touts his work as a lawyer in the Reagan 
     administration opposing certain affirmative action programs 
     as something he Was ``particularly proud'' of. One example of 
     Alito's work against affirmative action during the Reagan 
     administration is the case of Local 28 of the Sheet Metal 
     Workers' International Association v. EEOC. Alito and the 
     Solicitor General's office argued that it was illegal for 
     courts to order remedies including

[[Page S71]]

     affirmative action even in cases of intentional, on-going and 
     ``egregious racial discrimination.'' Alito signed a brief 
     arguing the extraordinary theory that relief in Title VII 
     cases could be granted only to ``identifiable victims of 
     discrimination,'' contradicting an earlier view of the Equal 
     Employment Opportunity Council (EEOC) itself. The Supreme 
     Court rejected Alito's argument, stating that affirmative 
     action relief ``may be ordered by a court as a remedy for 
     past discrimination even though the beneficiaries may be non-
     victims.'' Furthermore, in the 1970s and 1980s Alito was a 
     member of Concerned Alumni of Princeton (CAP), an 
     organization that actively sought to limit the number of 
     women and minorities accepted to the university. In contrast, 
     Justice O'Connor cast the decisive vote in Grutter v. 
     Bollinger, upholding affirmative action in higher education. 
     If Judge Alito's views on affirmative action were to replace 
     Justice O'Connor's on the Supreme Court, institutes 
     throughout the country would be harmed. Eliminating this 
     important tool for promoting diversity would deny 
     universities, workplaces and other organizations the 
     enlightenment provided by a greater variety of backgrounds.
       In addition to a restrictive approach towards affirmative 
     action, Judge Alito's record strongly questions the 
     legitimacy of employment discrimination claims, and in a 
     number of instances, Judge Alito issued opinions that made it 
     far more difficult for victims of discrimination to get to 
     court and prove their cases. Again, this is an area where 
     Justice O'Connor has often been the swing vote in protecting 
     and advancing civil rights. In contrast, Alito has ruled 
     against three of every four people who claimed to have been 
     victims of discrimination.
       In one such gender discrimination case, Sheridan v. E.I. 
     Dupont de Nemours, Alito was the sole dissenter in a 10-1 
     decision; arguing that he would require victims of 
     discrimination to present much more evidence before they 
     would be entitled to take their case to trial. Were this 
     position adopted more broadly, it would make it much more 
     difficult for victims of discrimination to have their day in 
     court and remedy these actions of prejudice. In another 
     employment discrimination case, this one dealing with race, 
     Alito went even further than upping the level of evidence 
     needed for a trial stating that even if discrimination 
     occurred it may not be against the law. In Bray v. Marriott 
     Hotels, Ms. Bray, an African-American woman, applied for a 
     promotion but a white woman was hired for the job instead. 
     Her employer, Marriott, did not follow its own guidelines for 
     hiring and several of the key employees involved in the 
     process gave conflicting statements about how the decision to 
     hire the white woman was ultimately made. Judge Alito argued 
     in his dissent that it might not be illegal for an employer 
     to overlook a qualified person of color even if the 
     employer's belief that it had selected the `best' candidate 
     was the result of conscious racial bias.'' The majority 
     opinion responds to this analysis by noting that Title VII 
     would be eviscerated if the analysis were to halt where the 
     dissent suggests. In addition to the troubling interpretation 
     of Title VII, Alito's dissent demonstrates skepticism about 
     the legitimacy of discrimination claims. He closed his 
     dissent with the disturbing pronouncement that a percentage 
     of discrimination cases are manufactured by disgruntled 
     employees, rather than victims of discrimination. This shows 
     a lack of sensitivity about the on-going national problem of 
     discrimination in the workplace. In contrast to Judge Alito, 
     70% of Americans believe racism is a problem in the workplace 
     today. This again illustrates that Samuel Alito is out of 
     step with mainstream America in the area of discrimination.
       Finally, it is important to look at the make-up of the 
     court. Given the role that Justice O'Connor plays on the 
     court, it is necessary to review Judge Alito not only on his 
     merits but also in the context of whom he will be replacing 
     on the bench. Justice O'Connor has added an important, 
     independent and unique voice to the Supreme Court. As the 
     first women to sit on the nation's highest court, she has 
     broken barriers for women not only by blazing a trail but 
     also by providing a voice and a vote on the Court for all 
     women. Indeed, time and again on those issues that affect 
     civil rights, and women's rights, including reproductive 
     freedoms, Justice O'Connor is the deciding fifth vote. 
     Numerous laws have been shaped and upheld by this 5 to 4 
     margin. Thus it is important to evaluate not only if Judge 
     Alito is qualified to sit on the Supreme Court, but also if 
     he will protect and honor the legal and social legacy of the 
     woman he would be replacing.
       The concern that Alito would overturn well-established 
     legal principles and social achievement in the areas of 
     women's rights and civil rights, that the YWCA has worked to 
     protect for almost 150 years, is too great to ignore. That is 
     what his record indicates and furthermore, during his 
     confirmation hearing he stated, ``If I'm confirmed . . . I'll 
     be the same person I was on the Court of Appeals.'' For these 
     reasons, the YWCA USA feels that Judge Alito's confirmation 
     to the Supreme Court would negatively impact the lives of 
     women and people of color and therefore is urging you to 
     reject the nomination of Judge Samuel Alito to the United 
     States Supreme Court. Senators must stand up and protect the 
     rights of the people they represent by voting against Alito's 
     lifetime appointment to the Supreme Court. The nation has 
     come too far in the fight for equality and worked too hard to 
     protect the rights of all individuals.
           Sincerely,
                                              Peggy Sanchez Mills,
                                                     YWCA USA CEO.
                                           American Association of


                                             University Women,

                                  Washington, DC, January 9, 2006.
     Hon. Arlen Specter,
     Chair, Senate Judiciary Committee, Dirksen Senate Office 
         Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Senate Judiciary Committee, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senators: On behalf of the more than 100,000 
     bipartisan members of the American Association of University 
     Women (AAUW), we write to express our opposition to the 
     confirmation of Third Circuit Court of Appeals Judge Samuel 
     A. Alito, Jr. to be associate justice of the United States 
     Supreme Court. As the Senate Judiciary Committee opens its 
     confirmation hearings today, you will be faced with critical 
     questions and, ultimately, a critical decision that will 
     affect the balance of the nation's highest court--which will 
     in turn impact the everyday lives of generations to come.
       After a careful review of Judge Alito's record, including 
     15 years of appellate opinions, AAUW finds him to be a 
     troubling choice with red flags in areas critical to our 
     mission and membership, including workplace discrimination, 
     reproductive choice, and affirmative action. Judge Alito's 
     appellate judgments provide little reassurance that he would 
     apply the law in ways that would uphold fundamental civil and 
     women's rights precedents should he ascend to the highest 
     court in the land. Indeed, taken as a whole, his publicly 
     available record--both from his government service and his 
     tenure on the Third Circuit--illustrate a judicial philosophy 
     at odds with AAUW's Public Policy Program. For all these 
     reasons, AAUW has opposed the confirmation of Judge Alito to 
     the U.S. Supreme Court.
       AAUW believes it is more important than ever to ensure the 
     moderate balance of the U.S. Supreme Court by confirming a 
     justice who reflects mainstream America. Decades of progress 
     for women and girls hang in the balance. Further, given that 
     Judge Alito has been nominated to replace the often-deciding 
     vote of Justice Sandra Day O'Connor, this nomination has much 
     at stake. AAUW is concerned that the confirmation of a 
     potentially extremist justice would turn back the clock on 
     decades of progress for women and girls. Two key areas in 
     particular have led to AAUW's opposition to Judge Alito's 
     confirmation:
       Equal opportunity and legal protections against 
     discrimination: Judge Alito has a troubling record on a range 
     of civil rights issues, revealing a philosophy that would 
     weaken workplace protections that are central to addressing 
     discrimination against women. A number of Judge Alito's 
     opinions would make it harder for employees to win their 
     suits or even get their case to trial. Judge Alito has also 
     demonstrated opposition towards affirmative action, dismissed 
     constitutional protections against sexual harassment in 
     schools, and aggressively sought to curb congressional 
     authority to legislate on issues such as family and medical 
     leave. In several of these cases, U.S. Supreme Court 
     decisions have later espoused views opposite to those put 
     forward by Judge Alito, showing him to be far outside the 
     mainstream.
       Reproductive rights and approach to precedent: Judge Alito 
     has actively rejected a woman's constitutional right to 
     choose, supported limits on abortion, and consistently upheld 
     limits to this fundamental right. While Judge Alito has been 
     careful to stress the importance of stare decisis, his 
     recognition of the importance of precedent is not a predictor 
     that he would follow the principle if confirmed. As a member 
     of the nation's highest court, the obligation to follow 
     settled law is different. Since Judge Alito helped develop 
     the strategy for undermining women's reproductive rights, it 
     stands to reason that Roe v. Wade and related cases 
     maintaining the right to privacy could fall within the 
     exceptions Judge Alito has set for himself regarding 
     adherence to stare decisis.
       As you know, the Senate has few constitutional duties more 
     significant than that of advising on and consenting to U.S. 
     Supreme Court nominations. AAUW believes you should confirm 
     only a nominee that exhibits the impartiality and 
     independence that are so critical to this third, co-equal 
     branch of our government.
       No nominee is presumptively entitled to confirmation. After 
     a thoughtful review of his well-established judicial 
     philosophy, AAUW cannot conclude that Judge Samuel A. Alito, 
     Jr. is the appropriate choice for a lifetime position on the 
     U.S. Supreme Court. AAUW urges senators to reject Alito's 
     nomination and let their votes be a true measure of their 
     commitment to equity for women and girls.
           Sincerely,

                                                Lisa M. Maatz,

                                       Director, Public Policy and
                                             Government Relations.

[[Page S72]]

     
                                  ____
                                               National Council of


                                        Women's Organizations,

                                 Washington, DC, January 11, 2006.
     Senator Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate.
     Senator Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate.
       Chairman Specter and Senator Leahy: The National Council of 
     Women's Organizations, the oldest and largest coalition of 
     the nation's women's groups, urges the Senate to reject the 
     nomination of Samuel Alito to the United States Supreme 
     Court. Judge Alito's extreme position on a range of issues, 
     including reproductive rights, workplace discrimination and 
     violence against women, make him the wrong choice to replace 
     retiring Justice Sandra Day O'Connor.
       In nominating Samuel Alito after Harriet Myers withdrew 
     from consideration, President Bush chose to put political 
     expediency ahead of the rights and well-being of this 
     nation's women and girls. Mr. Bush's right-wing base clamored 
     for rejection of Ms. Myers because, as conservative as she 
     is, they felt she was not 100 percent pure on their issues. 
     Samuel Alito, however, is apparently their man.
       Judge Alito has a long record demonstrating hostility to 
     women's reproductive rights. In the 1980's, he repeatedly 
     advocated the overturning of Roe v. Wade. In the 1990's, as 
     an appellate judge, he argued to uphold a Pennsylvania 
     statute requiring women to notify their husbands before 
     having an abortion--a position rejected by Justice O'Connor's 
     5-4 opinion in Planned Parenthood v. Casey. Nowhere in his 
     writings, however, does he express any concern that the days 
     of back-alley abortions could return if women do not have 
     safe, legal means to terminate unwanted pregnancies. Nor have 
     we been able to find any statement of concern, in any of his 
     writings, for women's fundamental right to be in control of 
     their own reproductive health decisions.
       Indeed, Judge Alito has even expressed hostility to 
     contraception. In 1985, as a Justice Department attorney, he 
     wrote that some forms of birth control are 
     ``abortifacients,'' and saw no constitutional problem with a 
     state law restricting women's access to them. Extreme anti-
     abortion organizations have long argued that the IUD and some 
     birth control pills are ``abortifacients''--subject to the 
     same kinds of restrictions that may be placed on women's 
     access to abortion--because they may prevent a fertilized egg 
     from becoming implanted on the uterine wall. This view runs 
     counter to accepted medical understanding, which is that 
     pregnancy does not begin until after implantation. Yet it is 
     the view embraced by Samuel Alito.
       Judge Alito's opinions demonstrate an abiding deference to 
     the powerful at the expense of ordinary people. He has 
     argued, in cases such as Sheridan v. DuPont and Bray v. 
     Marriott Hotels, for erecting higher and higher procedural 
     hurdles that would prevent victims of employment 
     discrimination from being able to present their case to a 
     jury. He argued, in Doe v. Groody, to uphold a police strip 
     search of a woman and her ten-year-old daughter even though 
     they were not named in the search warrant and were simply at 
     home when the house was searched. He ruled, on all but one 
     issue, against a female police officer who was subjected to 
     two years of pervasive sexual harassment in Robinson v. City 
     of Pittsburgh. He has repeatedly criticized affirmative 
     action policies, and struck down a school district's 
     affirmative action plan in Taxman v. Board of Education. He 
     ruled, in Chittister v. Dept. of Community and Economic 
     Development, that state governments did not have to comply 
     with provisions of the Family and Medical Leave Act. Women 
     have fought hard over the last four decades, against 
     resistance, skepticism and backlash, to win fundamental 
     rights. If confirmed, Judge Alito will be in a position to 
     undermine our gains for generations to come. We urge you to 
     stand firm for women's rights and reject this nomination.
           Sincerely,
     Susan Scanlan,
       Chair 
     Terry O'Neil,
       Executive Director.
                                  ____



                                   National Women's Law Center

                                  Washington, DC, January 9, 2006.
     Hon. Arlen Specter, Chair,
     Hon. Patrick J. Leahy, Ranking Member,
     Senate Committee on the Judiciary, Dirksen Senate Office 
         Building, Washington, DC.
       Dear Chairman Specter and Senator Leahy: On behalf of the 
     National Women's Law Center, an organization that has worked 
     since 1972 to advance and protect women's legal rights, we 
     write to reiterate the Center's opposition to the nomination 
     of Samuel A. Alito, Jr. to the United States Supreme Court. 
     As a result of its extensive review of Judge Alito's record, 
     the Center has concluded that the confirmation of Judge Alito 
     to the Supreme Court would endanger core legal rights for 
     women, with profound and harmful consequences for women 
     across the country and for decades to come. This letter 
     summarizes the basis for the Center's conclusions, which are 
     set forth more fully in the Center's December 8, 2005 letter 
     and detailed report.
       Judge Alito has worked to limit a woman's right to choose. 
     While in the Solicitor General's office, Alito urged the 
     government to file an amicus brief in Thornburgh v. American 
     College of Obstetricians and Gynecologists in order to 
     ``advance the goals of bringing about the eventual overruling 
     of Roe v. Wade and, in the meantime, of mitigating its 
     effects.'' His memo argued in favor of upholding even the 
     most burdensome and dangerous barriers to abortion. Alito 
     then volunteered to work on the government's Thornburgh 
     brief, and researched and wrote key portions. The Court 
     rejected the brief's extreme positions--it struck down 
     dangerous burdens on the right to choose the brief had argued 
     to uphold, and it refused to overturn Roe v. Wade as the 
     brief had urged. In plain reference to his role in the 
     Thornburgh case, Alito later wrote: ``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.'' He wrote this in 
     an application for a promotion a few months after the 
     Thornburgh brief was filed.
       Judge Alito's record on the Third Circuit reinforces the 
     concerns about his approach to the right to choose. In 
     Planned Parenthood v. Casey, he not only would have upheld a 
     law requiring married women to notify their husbands before 
     having an abortion, but took an approach to the law that 
     would eviscerate Roe v. Wade by upholding many dangerous 
     barriers to the right to choose. For example, he failed to 
     focus on women who would be hurt by the restrictions (such as 
     victims of domestic abuse), and would have given husbands the 
     same kind of control over their wives' most personal 
     decisions that parents have over their children. A 
     majority of the Supreme Court, in an opinion co-authored 
     by Justice O'Connor, soundly rejected his analysis.
       Judge Alito has ruled to limit Congress's authority to 
     protect public safety and welfare. Judge Alito would have 
     struck down a federal law prohibiting the transfer and 
     possession of machine guns, arguing in a dissenting opinion 
     in United States v. Rybar that Congress did not have the 
     authority to enact the statute under the Commerce Clause of 
     the Constitution. Judge Alito's Third Circuit colleagues, and 
     eight other circuit courts to date, have disagreed with him. 
     In another case, Chittister v. Department of Community and 
     Economic Development, Judge Alito wrote an opinion that 
     barred state employees from suing for damages when their 
     employers violate their right to take medical leave under the 
     Family and Medical Leave Act (FMLA). A 6-3 majority of the 
     Supreme Court, including even Justice Rehnquist, subsequently 
     upheld another provision of the FMLA against a similar 
     challenge on the ground that the FMLA was enacted to address 
     sex discrimination in the workplace. Judge Alito gave short 
     shrift to this argument.
       Judge Alito has ruled to make it more difficult for 
     plaintiffs to prove discrimination. Judge Alito's opinions in 
     employment discrimination cases raise significant concerns. 
     For example, he dissented from Sheridan v. E.I. DuPont De 
     Nemours and Company, a sex discrimination case in which all 
     10 of the other members of the Third Circuit joined in 
     reversing the trial court's rejection of a jury verdict for 
     the plaintiff. Judge Alito ignored applicable legal standards 
     to urge overturning the jury verdict, inappropriately 
     credited the employer's explanations for its actions, and, 
     standing in for the jury, downplayed the plaintiff's 
     evidence. Alito also dissented in Bray v. Marriott Hotels, a 
     race discrimination case, and again would have prevented the 
     plaintiff from bringing her case before a jury by giving the 
     employer the benefit of the doubt. The majority said that 
     under his approach to the evidence, ``Title VII [of the Civil 
     Rights Act of 1964] would be eviscerated.''
       Judge Alito's publicly available record does not reveal his 
     views on the constitutional protection against sex 
     discrimination under the Equal Protection Clause of the 
     Fourteenth Amendment. But in his 1985 job application he 
     expressed support for at least some of the central legal 
     tenets of the Reagan Administration, and the Justice 
     Department under Attorney General Ed Meese favored the 
     ``originalist'' approach to constitutional interpretation 
     advocated by Robert Bork, which would permit almost any 
     gender-based distinctions in law or government policy. Judge 
     Alito's views in this area must be carefully explored at his 
     confirmation hearing.
       Throughout his career, Judge Alito has taken positions and 
     issued rulings detrimental to women in other areas of the 
     law, including through his membership in an organization that 
     was openly hostile to the admission of women and minorities 
     to his alma mater, Princeton; his participation in cases 
     where the Solicitor General argued against affirmative action 
     policies; his vote to uphold a strip search of a woman and 
     her ten-year-old daughter, even though they were not named in 
     a search warrant, in Doe v. Groody, his opinion in Sabree v. 
     Richman strongly suggesting that if he were to join the 
     Supreme Court, he would change the law to limit, and 
     potentially preclude, the ability of individuals to enforce 
     federal rights such as rights to Medicaid, public housing, 
     child support enforcement, and public assistance; and his 
     denial of an asylum claim by an Iranian woman who asserted 
     that if she returned to Iran she would be persecuted for her 
     feminist beliefs.
       This is a watershed moment for women's legal rights. In 
     recent years, the Supreme Court has decided cases affecting 
     women's legal rights by narrow margins. Justice Sandra Day 
     0'Connor, the first woman on the Supreme Court, often has 
     cast the decisive vote

[[Page S73]]

     in these cases. With the retirement of Justice O'Connor, the 
     Court will lose not only its first female Justice, but also 
     the Justice whose vote often has been pivotal on issues 
     critical to women. Judge Alito's record demonstrates that if 
     he is confirmed to the Supreme Court, he is likely to 
     eviscerate core rights that American women rely upon, and 
     shift the Court in a dangerous and harmful direction. Based 
     on the information available at this time, as summarized 
     above, we conclude that Judge Alito should not be confirmed 
     to the Supreme Court.
           Sincerely,
     Nancy Duff Campbell,
     Marcia D. Greenberger, Co-President.

  Mrs. CLINTON. Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Massachusetts.
  Mr. KERRY. Mr. President, obviously, today we face one of the most 
important choices we make as Senators. This is a choice, as colleagues 
have said, that is going to affect the country for the next several 
decades.
  To replace Justice Sandra Day O'Connor, the President has nominated a 
man who has consistently deferred to Government action regardless of 
how egregious that action may be. He has nominated a man whose pattern 
of decisions erects rather than breaks down barriers in the area of 
civil rights; a man who, to this day, has never retreated from his 
declaration that the Constitution does not protect a woman's right to 
privacy; a man who has demonstrated a persistent insensitivity to the 
history of racial discrimination in this country and was even, at the 
Government's request, willing to ignore overwhelming evidence that 
African Americans were intentionally stricken from an all-White jury in 
a Black defendant's capital case.
  Judge Alito has been nominated to fill the seat, as we know, of an 
individual who has been the Court's swing vote; a woman who has upheld 
affirmative action programs; a woman who upheld the right to choose; a 
woman who upheld State employees' rights to the protections of the 
Family Medical Leave Act; a woman who recognizes that a declaration of 
war is not a blank check for the President's actions; a woman who 
decides each case narrowly on the facts presented, keenly aware of the 
greater impact that her decisions have.
  So this is the contrast. We are being asked to confirm a nominee who 
will shift the ideological balance of the Court dramatically to the 
right. And many people are cheering for that.
  We are being asked to confirm a nominee whose views will undermine a 
balance of power that I believe, and many others believe, literally 
keeps our country strong, a balance of power that helps to bring people 
together rather than divide them, that helps to apply the Constitution 
to people in all walks of life, not simply those with power and 
privilege.
  For the reasons of this track record: the of his writings in the 
Justice Department, the questions unanswered in the hearings, the cases 
he has decided, where studies have shown a pattern of willingness to 
ignore our Constitutional rights and deny people access to our court 
system, for all of these and for other compelling reasons, I oppose 
this nomination.
  In the past, in the 22 years I have been here, like many of my 
colleagues, I have voted for Federal court nominees despite the fact I 
disagreed with them ideologically. I have voted, I am confident, 
literally hundreds of times. In fact, I voted for Justice Scalia 
because despite our ideological differences, in the confirmation 
process he promised to be openmindedness that we have not seen in the 
Court.
  So we have learned the hard way. The words of the confirmation 
hearings simply do not erase ideology, they do not erase a track 
record. And that ideology cannot be overlooked because a Justice's 
decisions can and will have a profound impact on the rights that we 
otherwise take for granted.
  So something more is needed. A Supreme Court Justice needs to 
understand and have a record of respecting the constitutional rights 
and liberties which we confirm them to uphold. He or she needs to 
recognize the importance of precedent and the limited situations in 
which overruling is acceptable.
  He or she needs to appreciate the significant struggles that our 
Nation has endured in the context of racial, sexual, and disability 
discrimination and to be aware of the road still to be traveled. And 
that awareness of the road still to be traveled has to be evidenced in 
the decisions and writings of that nominee. In short, ideology does 
matter. The Supreme Court's ideologically driven decisions have been 
the most regrettable in our Nation's history, decisions such as 
Korematsu, Dred Scott, and Plessy v. Ferguson.
  In fact, ideology matters more in this nomination than it would in 
many others. We are replacing Sandra Day O'Connor, President Reagan's 
nominee to the Supreme Court, the person who has occupied the center of 
balance on the Court. She has been the deciding vote in critical cases 
involving and defining our constitutional rights and liberties. As we 
contemplate ripping that center out from under the Court, we have to 
understand what the impact of that action will be.
  Given how high the stakes are, our decision simply cannot be based on 
whether Judge Alito is a smart man or whether he is a nice man or 
whether he is an accomplished man or even whether he is well respected 
in legal circles. He is all of those things. But what we need to 
consider is the impact that a Justice Alito will have on the Court and 
whether that impact is good for our country, good for our Constitution, 
and good for the American people.
  I believe, based on his track record, the decisions already made, the 
writings already expressed, the questions that went un-answered, that 
the he will have a detrimental effect. President Bush had the 
opportunity to nominate someone who would have united the country. He 
could have nominated somebody who would have received 100 votes or 98 
votes. He chose not to do this, which is his right. We all understand. 
We have heard the argument about the consequence of elections. The fact 
is, he chose not to do that.
  The way in which this nomination came to us in the Senate tells us a 
huge amount what this nomination really means. The President was under 
fire from his conservative base for nominating Harriet Miers, a woman 
whose judicial philosophy was unmercifully attacked. President Bush, in 
the end, broke to those extreme rightwing demands. This was an 
ideological coup. Miers was removed and Alito was installed. The 
President didn't consult with the Senate, as required by the 
Constitution. He gave more thought to what the political needs were 
than to what the country's needs were. Indeed, he made this nomination 
about his political base. He made it about an ideological shift in the 
Court. He made it about unassailable conservative credentials and an 
unimpeachable conservative judicial philosophy.
  If you want proof of that, all you have to do is look at the comments 
of people such as Ms. Ann Coulter. We all know Ms. Coulter is capable 
of being as inflammatory and conservative as anyone in the country, 
often engaging in character assassination. She denounced the nomination 
of John Roberts. She attacked the nomination of Harriet Miers, calling 
her completely unqualified and lamenting that President Bush had 
``thrown away a Supreme Court seat.'' Yet she celebrated the nomination 
of Sam Alito, stating that Bush gave the Democrats a ``right hook'' 
with this ``stunningly qualified'' nominee. This from a woman who said 
that the Republicans need to nominate a person who ``wake[s] up every 
morning . . . chortling about how much his latest opinion will tick off 
the left.''
  Failed Supreme Court nominee Robert Bork had a similar reaction. He 
denounced the Miers nomination as ``taking the heart out of a rising 
generation'' of conservative constitutional scholars and ``widen[ing] 
the fissures within the conservative movement.'' Yet he praised Alito's 
nomination as ``substantially narrowing'' that rift. In fact, he called 
the nomination something to ``rejoice'' because if Alito were 
confirmed, it would only take ``one more Justice of the Roberts-Scalia-
Thomas-Alito stripe to return the Court to so-called jurisprudential 
respectability.''
  Let's not forget conservative stalwart Pat Buchanan who denounced the 
Miers nomination as revealing the President's lack of desire ``to 
engage the Senate in fierce combat to carry out his now suspect 
commitment to remake the Court in the image of Scalia

[[Page S74]]

and Thomas.'' Apparently, Mr. Buchanan believes that the Alito 
nomination demonstrates the President's change of heart. He heralded 
the nomination as one that would unite and rally the base, a nomination 
for the base, not the country.
  They say you can tell a lot by somebody's friends. These three 
individuals are consistently on the furthest edge of the ideological 
spectrum. Their positions rarely advance the interests of average 
working folk in America. So perhaps it should come as no surprise that 
these folks have jumped to support Judge Alito.
  After reviewing more than 400 of Judge Alito's opinions, law school 
professors at Yale concluded:

       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 of advancing civil 
     rights claims.

  Similarly, a Knight Ridder review of Judge Alito's opinions 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 a criminal defendant, a foreign national 
facing deportation, an employee alleging discrimination, or consumers 
suing big business.''
  After reviewing 221 of Judge Alito's opinions in divided cases, the 
Washington Post concluded that Judge Alito is ``clearly tough minded . 
. . having very little sympathy for those asserting rights against the 
government.'' The pattern is clear, and I think it is unacceptable.
  I don't think you should put somebody on the Court who makes access 
to justice in the United States harder and more elusive for people who 
already face incredible obstacles when trying to have their voices 
heard in court. I don't think we should put somebody on the Court who 
will fail to serve as an effective check on excessive Executive power.

  If this pattern is not enough, as has been described by others, then 
all we to have to do is look at some individual cases. In Sheridan v. 
E.I. duPont De Nemours and Company, Judge Alito wrote a lone dissent 
opposed by all of the other judges on the court, eight of whom were 
Republicans. His opinion would have made it more difficult for victims 
of discrimination to sue their employers.
  Applying a similarly high standard of proof, one that the majority 
believed would eviscerate the protections of title VII, Judge Alito 
dissented from a decision to allow a racial discrimination claim to go 
to trial in Bray v. Marriott Hotels.
  These are all cases where people were trying to have their rights 
adjudicated, and disagreeing with his colleagues, including Republican-
appointed judges, Judge Alito said no.
  What is the practical impact of these decisions? Simple: They keep 
victims of discrimination from having their day in court.
  If it is not enough to see this kind of insensitivity toward the 
victims of discrimination evidenced in those judicial opinions, in his 
1985 job application to President Reagan's Justice Department, Judge 
Alito wrote that his interest in constitutional law was driven in part 
by a disagreement with Warren Court decisions on reapportionment, 
decisions which established the principle of one person, one vote. And 
he said that he was ``particularly proud'' of his work to end 
affirmative action programs.
  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, for example, he dissented from an opinion written by then-Judge 
Michael Chertoff because he believed that the strip search of a 10-
year-old was reasonable. He also thought the Government should not be 
held accountable for shooting an unarmed boy who was trying to escape 
with a stolen purse or even for forcibly evicting farmers from their 
land in a civil bankruptcy proceeding where there was no show of 
resistance from those farmers. He believed a show of force from the 
enforcers was reasonable.
  This pattern of deference to power is reinforced by a speech he gave 
as a sitting judge to the Federalist Society just 5 years ago.
  In that speech, Judge Alito ``preached the gospel'' of the Reagan 
administration's Justice Department, the theory of a unitary executive. 
And though in the hearings Judge Alito attempted to downplay the 
significance of this theory by saying it didn't 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. 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 consequences of the theory are 
dramatic. It renders unconstitutional independent agencies and 
councils.'' That means that Congress would lose the power to protect 
public safety by creating agencies like the Consumer Products 
Commission, which ensures the safety of products on the marketplace, or 
the Securities and Exchange Commission which protects Americans from 
corporations such as Enron. And who would gain the power? The 
Executive, the President.
  Carried to its logical end, the theory goes much further than simply 
invalidating independent agencies. The Bush administration has already 
used this theory to justify its illegal domestic spying program and its 
ability to torture detainees. The administration seems to view this 
theory as a blank check for Executive overreaching.
  Judge Alito's endorsement of the unitary executive theory is not the 
only cause for concern. In 1986, while working at the Justice 
Department, he endorsed the idea that Presidential signing statements 
could be used to influence judicial interpretation of legislation. His 
premise was that the President's understanding of legislation is just 
as important in determining legislative intent as Congress's, which is 
absolutely startling when you look at the history of legislative intent 
and of the legislative branch itself. President Bush has taken the 
practice of issuing signing statements to an extraordinarily new level. 
Most recently, he used a signing statement to reserve the right to 
ignore the ban on torture that Congress overwhelmingly passed. He also 
used signing statements to attempt to apply the law restricting habeas 
corpus review of enemy combatants retroactively, despite our 
understanding in Congress that it would not affect cases pending before 
the Supreme Court at the time of passage.
  The signing statements have been used to specifically negate or make 
an end run around very specific congressional intent. The implication 
of President Bush's signing statements are absolutely astounding. His 
administration is reserving the right to ignore those laws it doesn't 
like. Only one thing can hold this President accountable, and it is 
called the Supreme Court. Given Judge Alito's endorsement of the 
unitary executive and his consistent deference to government power, I 
don't think Judge Alito is prepared to be the kind of check we need. 
Reining in excessive government power matters more today to the average 
American than perhaps at any recent time in our memory, as we work to 
try to provide a balance between protecting our rights and our safety. 
As Justice O'Connor said: The war on terror is not a blank slate for 
government action. We can and must fight that in a manner consistent 
with our Constitution.
  Last but certainly not least, I have grave concerns about Judge 
Alito's ability and willingness to protect a woman's right to choose. 
In his 1985 job application, Judge Alito wrote that he was 
``particularly proud'' of his work arguing before the Supreme Court 
that ``the Constitution does not protect a right to abortion.'' Now, 
all of us know this is an extraordinarily complicated issue. I don't 
know anybody here who is pro-abortion. But we are in favor of the right 
of people individually to make that choice for themselves rather than 
having the Government make that choice for them. And, the fact is that 
the Constitution protects that right.

  Yet, in 1985, Judge Alito wrote a memo outlining a strategy for 
chipping away at Roe v. Wade, an approach he believed would be more 
successful than asking for an outright reversal. In his

[[Page S75]]

hearings, Judge Alito stated these statements were accurate reflections 
of his views in 1985. But what is more disturbing is what he refused to 
say. He refused to say his views have changed, that he accepted Roe v. 
Wade as settled law, which even Chief Justice Roberts did during his 
confirmation hearings. In other words, Judge Alito refused to give any 
assurances that his concept of the Constitution's protected liberty is 
consistent with mainstream America's.
  I realize Judge Alito has promised he is going to keep an open mind, 
but I don't think any of us can be reassured by those words. We heard 
those very same words before. Justice Thomas repeatedly told the 
Judiciary Committee he would keep an open mind on this issue. But we 
all know that once safely on the Supreme Court, Justice Thomas voted to 
overturn Roe v. Wade months later, writing a dissent in Casey that 
likened abortion to polygamy, sodomy, incest, and suicide. Given 
Justice Thomas's success, you can almost imagine Karl Rove whispering 
to Judge Alito: Just say you have an open mind; say whatever it takes.
  We cannot rely on these empty platitudes, and we obviously cannot 
rely on any promises of open-mindedness given to the Judiciary 
Committee, particularly when they are absent an acknowledgment of what 
is or what is not a settled law, particularly when the nominee's entire 
professional history suggests something very different, and 
particularly when the past promises of that very nominee have already 
been rendered meaningless by his actions once safely on the bench. In 
Judge Alito's 1990 Judiciary Committee hearings, he promised that he 
would recuse himself in any cases involving the Vanguard Company given 
his ownership of Vanguard mutual funds. In his Supreme Court hearings, 
he admitted he could not remember having put Vanguard on his permanent 
recusal list. We know it did not appear on his 1993, 1994, 1995, or 
1996 list. So how do we know he kept his word to the Judiciary 
Committee? We don't. How can we trust him now? We can't.
  I am deeply concerned about where we are heading with this 
ideological choice for the Court. I am deeply concerned about 
maintaining the integrity of our constitutional rights and liberties. I 
fear that the most disadvantaged in our society be locked out of our 
system of justice, a system that is already becoming increasingly 
harder for them to access. I fear that the President's powers will grow 
beyond what the Framers intended them to be, and I fear that Congress's 
hands will be tied even further and we will be unable to do the work of 
the American people.
  Therefore, I cannot and will not vote to confirm a nominee who will 
shift the Court in this ideological way. I believe that Judge Alito had 
the burden of proving not just to me, but to the American people, that 
he would not be a Justice who would move the Court far to the right, 
that he would understand what was settled law and what was not. I 
believe he failed to carry that burden. I believe if he moves the Court 
in the direction that I think he will--I hope I am proven wrong, but if 
he moves it far to the right, then I think that those rights and values 
which we cherish so deeply will be set back and the country will move 
backwards with them.
  Mr. President, I ask unanimous consent that letters to Senator Leahy 
and Senator Specter in opposition to this nomination from the Women's 
Caucus, Black Caucus, and Hispanic Caucus all be printed in the Record 
at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                  Washington, DC, January 9, 2006.
     Hon. Arlen Specter,
     Chairman, Senate Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: As women 
     Members of Congress who work hard to enact legislation and 
     promote policies that protect women and ensure equality 
     within our society, we fear our work, and the contributions 
     of our colleagues who served before us, will be dismantled 
     with the confirmation of Judge Samuel Alito to the U.S. 
     Supreme Court.
       We believe that Judge Alito poses a direct threat to the 
     rights of women in America. As the attached memorandum 
     details, Judge Alito has a long record of extreme views on 
     women's reproductive health, sexual and workplace 
     discrimination, the Family Medical Leave Act and civil 
     rights. He has worked to thwart established precedent and has 
     affiliated himself with radical organizations that have 
     actively sought to keep women and minorities from advancing 
     educationally and economically.
       Under the scrutiny of the nomination process, it is not 
     surprising that Judge Alito now disavows his positions on 
     issues important to women and families in order to secure 
     confirmation votes. But his record speaks to his true views 
     and it speaks loudly. Rather than offering a balanced 
     successor to the moderate views of Justice Sandra Day 
     O'Connor and the majority of this nation, Judge Alito's 
     nomination radically tips the scales of justice against 
     women.
       As guardians of the Constitution, Supreme Court Justices 
     play a key role in protecting and ensuring our liberties. 
     They are given life tenures and are expected to stay above 
     the political fray so their decisions will be fair and 
     unbiased. They must judge cases with impartiality and open 
     mindedness, and they must respect settled law.
       You have a responsibility to ensure that the highest court 
     is not stacked against the hard fought rights that protect 
     women across the country. When you consider the nomination of 
     Judge Alito to the U.S. Supreme Court, we hope you will 
     reflect on the milestones in women's rights and determine 
     that America cannot afford to abandon these fundamental 
     protections. We encourage you to review the attached 
     memorandum which details many of the disturbing examples of 
     Judge Alito's extreme views of women's rights in law. We urge 
     you to consider that this lifetime appointment will have 
     detrimental consequences for American women, and oppose the 
     confirmation of Judge Alito as the next U.S. Supreme Court 
     Justice.
           Sincerely,
         Louise M. Slaughter, Tammy Baldwin, Lois Capps, Jane 
           Harman, Barbara Lee, Doris O. Matsui, Juanita 
           Millender-McDonald, Hilda L. Solis, Corrine Brown, Rosa 
           L. DeLauro, Eddie Bernice Johnson, Carolyn B. Maloney, 
           Betty McCollum, Gwen S. Moore, Grace F. Napolitano, 
           Linda T. Sanchez, Ellen O. Tauscher, Diane E. Watson, 
           Jan Schakowsky, Debbie Wasserman Schultz, Nydia 
           Velazquez, Lynn Woolsey.
                                  ____

                                    Congress of the United States,


                                     House of Representatives,

                                  Washington, DC, January 6, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, Hart 
         Senate Office Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Russell Senate Office Building, Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: As you 
     examine the nomination of Judge Samuel Alito to the United 
     States Supreme Court, we ask that you consider the particular 
     implications that Judge Alito's confirmation would have on 
     the Latino community.
       We are deeply disappointed that President Bush did not take 
     this third opportunity to nominate a qualified Latino to the 
     Supreme Court. Given the size of the Hispanic community in 
     the United States, the under-representation of Hispanics in 
     the judiciary and the abundance of Hispanics qualified for 
     appointment, it is difficult to comprehend the President's 
     decision other than in the harsh light of political factors 
     trumping all other considerations.
       We do not need to stress to you the importance of this 
     nomination and the impact that the Court has on the lives of 
     our citizens. We are equally confident that you understand 
     the critical role that the Supreme Court has played in 
     safeguarding the rights of minorities. Oftentimes it is the 
     Court to which minorities must turn for protection from 
     discriminatory laws and practices. It is therefore important 
     that nominees are sensitive to the experiences and struggles 
     that minorities have faced in securing their constitutional 
     rights.
       While Judge Alito's background and record on the bench have 
     been largely discussed in the public forum his opportunity to 
     explain his opinions and philosophy will come during the 
     confirmation hearings. Like all Americans, we deserve and 
     expect clear answers on his record both on and off the bench, 
     as many of his opinions and writings give us reason to be 
     concerned. In order to better gauge his current attitudes, we 
     respectfully request that you consider asking Judge Alito the 
     attached questions or questions similar to these during the 
     confirmation hearings in the Senate Judiciary Committee.
       While we should not expect any Supreme Court justice to 
     consistently rule in a manner that we agree with, we hope 
     that the successor to Justice Sandra Day O'Connor will share 
     her tradition of being fair, open-minded and unbiased towards 
     any specific group.
       Thank you for taking these views into consideration as you 
     proceed with fulfilling your constitutional duty to provide 
     advice and consent on Judge Alito's nomination.
           Sincerely,
     Grace F. Napolitano,
                             Chair, Congressional Hispanic Caucus.
     Charles A. Gonzalez,
                               Chair, CHC Civil Rights Task Force.

[[Page S76]]

     
                                  ____
   Congressional Hispanic Caucus Questions to Supreme Court Justice 
                   Nominee Judge Samuel A. Alito, Jr.


A. Racial (Ethnic) Discrimination: Pemberthy v. Beyer, 19 F.3d 857 (3d 
                               Cir. 1994)

       Facts: Alito wrote majority opinion allowing ``peremptory 
     challenges'' by the prosecution of bilingual prospective 
     jurors because of concerns that ability to understand Spanish 
     would jeopardize jurors' acceptance of official translations 
     of tape recorded conversations.
       Question: This holding would provide a vehicle for striking 
     jurors based on ethnicity (i.e., Latinos more likely to speak 
     Spanish) under the guise of ``language concerns''. Why isn't 
     this unconstitutional as it relates to the prospective juror 
     being struck (deprivation of right to serve on jury, 
     participate in government)? Why isn't this unconstitutional 
     as to the defendant per Batson precedent?


 B. Voting Rights Act: Jenkins v. Manning, 116 F.3D 685 (3d Cir. 1997)

       Facts: The issue was the ``at-large'' election of school 
     board members. After reversing and remanding the District 
     Court's ruling that no violation of the VRA took place, the 
     District Court considered additional evidence and again found 
     no violation. Judge Alito appears to have joined the majority 
     in affirming the District Court's ruling. Judge Rosen's 
     dissent is insightful and a good example of a judge's 
     exercise of discretion in viewing the same evidence and 
     reaching a decision that gives meaning to the VRA.
       Question: The ``Senate Factors'' (after finding Gingles 
     factors present) were additional and necessary considerations 
     and consisted of (1) the extent to which minority group 
     members had been elected to public office in the jurisdiction 
     and (2) the extent to which voting in the elections of the 
     political subdivision is racially polarized. Judge Alito 
     found that the Senate Factors were met when historically only 
     3 of 10 black candidates over a 10 year period were 
     successful (one in a never-repeated plurality win and one by 
     a black candidate defeating another black candidate). Would 
     Judge Alito please elaborate on his ``judicial philosophy'' 
     when it comes to VRA and ``at-large'' voting districts?


  C. Immigrant Rights: 1986 Deputy Attorney General Alito Memo to FBI 
                        Director William Webster

       Facts: The memo reflects Judge Alito's legal analysis that 
     ``. . . illegal aliens have no claim to nondiscrimination 
     with respect to non-fundamental rights.''
       Question: In light of Plyler v. Doe, 457 U.S. 67 (1982), 
     how does he reconcile his conclusions that appear to be based 
     on the 1976 case of Matthews v. Diaz, 426 U.S. 67 (1976), 
     obviously a case decided PRIOR to Plyler? Does he follow 
     precedent only when convenient? If he is not willing to 
     follow existing precedent (is there any other kind?), then it 
     would appear that if he is able to establish ``precedent'' 
     (that's what the Supreme Court does), he will do it readily 
     and easily.
                                  ____

                                       Congressional Black Caucus,


                                              Rayburn Building

                                 Washington, DC, January 17, 2006.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: On December 8, 2005, the Congressional 
     Black Caucus (CBC) announced its opposition to the 
     confirmation of Judge Samuel Alito to the United States 
     Supreme Court. We announced this decision prior to the Senate 
     Judiciary Committee's confirmation hearings after making an 
     extensive review of his record as a judge and as a high-level 
     government official and after Judge Alito and the 
     Administration failed to respond to our request for a meeting 
     with the nominee. Unfortunately, nothing transpired at the 
     hearings before the Judiciary Committee to change our view 
     that Judge Alito should not be confirmed.
       If the Senate values its own work on federal statutes in 
     many areas of American life, it will find unacceptable Judge 
     Alito's record as a frequent dissenter in commerce clause and 
     other cases involving of long established congressional 
     authority to enact laws benefiting Americans of every 
     background. For example, his dissent in United States v. 
     Rybar, in which he unsuccessfully sought to restrict 
     congressional authority to regulate machine guns, is an 
     example of a dangerous retrenchment that could have far-
     reaching consequences for many kinds of federal legislation 
     that have long been considered well within congressional 
     power.
       However, the CBC is most especially concerned that Judge 
     Alito's record on matters of race reflects a consistent 
     pattern of hostility to race discrimination cases and 
     remedies. This pattern places at extreme risk important work 
     of the Supreme Court and the Congress to eliminate 
     discrimination in voting, employment and other critical areas 
     in which Judge Alito's dissents have left little doubt about 
     his views. If he is promoted to the Supreme Court, where 
     stare decisis is less constraining and where his views are no 
     longer subject to reversal, his dissents can be expected to 
     become the law of the land. In that case, we have no doubt 
     that racial progress would be reversed, especially in light 
     of the delicate 5-4 balance that has existed on the Court. 
     We, therefore, believe that a vote for Judge Alito would 
     radically change the Court and lead to an erosion of 50 
     years of jurisprudence on matters of race and equality. 
     Our country moves in that direction at its peril.
       We find extremely troubling the consistency and 
     predictability of Judge Alito's hard-right views in an area 
     that has been so critical to African Americans and where his 
     views could become the decisive vote. The best evidence that 
     Judge Alito is a judge of extreme views is the often strongly 
     critical written opinions of his judicial colleagues. Faced 
     with Supreme Court precedents upholding remedies for 
     discrimination, Judge Alito has sought instead to close the 
     Federal courts to job discrimination claims by using 
     unprecedented technical evidentiary standards long rejected 
     by the Supreme Court. For 40 years in an unbroken record of 
     thousands of job discrimination cases, the Supreme Court and 
     every federal circuit have left no doubt that discrimination 
     claims must not be prematurely destroyed by requiring 
     significant upfront evidence before trial. Consequently, all 
     the Third Circuit judges in an en banc review in Sheridan v. 
     E.I. DuPont de Nemours and Company criticized Judge Alito, 
     the only dissenter, for seeking to elevate the standard 
     necessary for a woman, who alleged her employer failed to 
     promote her, to even get access to the Federal courts to 
     attempt to prove discrimination. Undeterred, the next year in 
     Bray v. Marriott Hotels, Judge Alito was similarly admonished 
     by the Circuit's majority in a racial discrimination case in 
     which a hotel employee was denied a promotion. In sharply 
     criticizing Judge Alito, the majority said that if they 
     followed his lead, ``Title VII [the basic job discrimination 
     statute] would be eviscerated.''
       Habitually attempting to use procedural technicalities to 
     get around precedents, Judge Alito has been a virtually 
     automatic vote to deny discrimination claims in 14 of the 18 
     job discrimination cases he has considered. In one of the 
     cases, he favored white civil rights complainants, Pittsburgh 
     police officers who sued alleging reverse discrimination, and 
     in another he ruled in favor of a mentally disabled employee. 
     Alito's hostility to discrimination cases could not be more 
     systematic, carrying over to claims against the disabled as 
     well, where the Third Circuit criticized his dissent that 
     would allow ``few if any'' Rehabilitation Act plaintiffs 
     access to the courts (Nathanson v. Medical College of 
     Pennsylvania).
       Considering the distance the Nation has come on race and 
     the distance still to go, in our view the confirmation of 
     Judge Alito would mark a dangerous step backwards. In our 
     view, no one who reads his opinions can believe that he has 
     the open mind required of a Supreme Court justice. Judge 
     Alito moved from his days in the Reagan Justice Department, 
     where he sought unsuccessfully to get the Supreme Court to 
     restrict discrimination remedies, to the Third Circuit, where 
     he has compiled a striking record as a dissenter, rather than 
     follow employment discrimination precedents.
       The evidence is too clear to leave any doubt about where 
     Judge Alito would stand, for example, on fragile 5-4 rulings 
     in which Justice O'Connor has been the deciding vote. Among 
     these cases are the University of Michigan case upholding 
     affirmative action in law school admissions (Grutter v. 
     Bollinger) and other cases where the Court has allowed race 
     to be considered as a factor to rectify discrimination. As we 
     approach reauthorization of the Voting Rights Act in 2007, 
     the Congressional Black Caucus cannot afford to forget that 
     the 5-4 cases also include redistricting cases such as Hunt 
     v. Cromartie.
       A critical election year of accountability for the Congress 
     must begin with how members of the Senate vote on this 
     nominee. All that we have fought for in order to secure 
     rights long denied African Americans is put at risk by this 
     nomination. For African Americans, the stakes don't get any 
     higher. Therefore, the members of the CBC are asking you and 
     all of your colleagues to vote against the confirmation of 
     Judge Alito.
           Sincerely,
     Melvin L. Watt,
                                                       Chair, CBC.
     Eleanor Holmes Norton,
                                   CBC Judicial Nominations Chair.

  Mr. KERRY. I yield the floor and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SANTORUM. Mr. President, I rise today to give my full support to 
Judge Alito to be an Associate Justice of the Supreme Court. I am sure 
that will be no great surprise to those who have followed my career.
  I want to lay out in brief why I believe Judge Alito is exactly the 
kind of Justice this country needs at this time and, candidly, is 
exactly the kind of Justice this country, for the most part, has had, 
in keeping with its constitutional traditions over the last 200-plus 
years.
  Judge Alito is not from Pennsylvania, although he claims to be a 
Phillie fan, which is fine by me. I somewhat prefer the Pirates, being 
from

[[Page S77]]

Pittsburgh. I certainly respect him. He comes from the Third Circuit, 
which includes the Commonwealth of Pennsylvania. I have had an 
opportunity to talk to many of his colleagues on the court, Republicans 
and Democrats. Both Republicans and Democrats--everyone I have spoken 
to, and I have spoken to several--have praised him in the highest terms 
possible. Colleagues of his have stepped forward and have used terms of 
respect you don't often hear. Unfortunately, you don't often hear it 
around this body--certainly not lately--but you certainly heard it from 
them both privately and publicly, saying how much integrity the man 
has, how much his legal acumen is right on, as are his demeanor, 
jurisprudence, and humility--all of the things one would want to see 
out of a judge, and they speak in glowing terms about him. So that was 
my introduction to him.
  I had never met Judge Alito prior to his nomination. When he was 
nominated, one of the first things I did was call some of his 
colleagues. I did it to get a sense of the kind of man he was. The 
response I received was overwhelming.
  One of the things I want to cover is how I believe that his view of 
the role of a judge is very similar to John Roberts' view of the role 
of a judge. In fact, his record, in my opinion, and the way he 
approaches the law is remarkably similar to the judge who is now a 
Justice confirmed here in the Senate by 70-plus votes. I am somewhat at 
a loss to see why Judge Alito is not receiving similar support, because 
their records and their approach to the law are remarkably similar, in 
my mind. He is a judge who, when I met him, used very much the same 
terms as Justice Roberts--terms such as humility and modesty in dealing 
with the matters before them; that he was not to be a judge who was to 
impose his views on the case before him.
  Many have tried to claim that somehow or another he is ideological. I 
don't think there is anything in the Record that would indicate Judge 
Alito applies his own personal viewpoints to the case at hand. He looks 
at the law, looks at the facts of the case and does his best on the 
narrowest grounds possible to decide the cases before him. That is what 
a judge is supposed to do--not say, gee, here is my opportunity to 
change the law, my opportunity to right a wrong that I think Americans 
or a particular State or the Government has done that I disagree with; 
here is my opportunity to change the law by using the force of the 
Constitution to impose my values. That is not what he does. Again, what 
he also doesn't do--and it strikes me as a very odd discussion when it 
comes to analyzing a judge's rulings on who he rules for, does he rule 
for the little guy or the big guy, as if little guys are always right 
and big guys are always wrong, or vice versa, for that matter. It is 
the idea that you don't decide the case before you based on the law and 
the facts but based on whether you like the plaintiff, or you like the 
defendant, or what is a sympathetic figure on one side or the other--
that is about the worst kind of justice you can possibly acknowledge.
  My colleagues who say he rules for the big guys or the big 
corporations, or whoever it is, are you saying every action that comes 
before the Court where a little guy is in a case, he automatically 
should win? Is that what it is? If you are not a judge who rules for 
the little guy all the time, is it true that somehow you don't have a 
proper view of the law? This is a remarkable discussion I keep hearing. 
I heard over and over again in the Judiciary Committee about the result 
of these cases and who he sides with. Is that somehow a point which is 
legitimate when it comes to a judge? The question is, is he an 
appellate jurist who was following the law? Was he properly applying 
the law to the case? It is not who won or lost the case. I find it very 
disturbing that we are reducing this confirmation process to whose side 
he ruled on and whether ideologically he fits a particular Senator's 
view of a particular issue or particular issues. That is not how we 
have ever viewed Justices in the Senate. We do not keep scorecards of 
whether you side with the little guy or big guy or how you came down on 
cases. We certainly have not had ideological litmus tests in the past 
on judicial nominations.
  Those two things, I have to tell you, that have been some of the more 
frequent criticisms of Judge Alito trouble me as to how we are morphing 
the judicial process or the selection, approval, and confirmation 
process into sort of a campaign process, into a process of how we elect 
legislators and Presidents. We are not electing a legislator or a 
President, someone who we have a right to know their ideology or what 
side they are going to come down on.
  We are electing someone whose job it is to play it right down the 
middle, whose job it is to be blind justice, who is going to weigh the 
facts in the law and do what it dictates, not do what they believe, in 
their ideological viewpoint, is right.
  I am disturbed by the criticism, but I am very encouraged by Judge 
Alito and the way he has conducted himself and the way he answered the 
questions and how he has, in fact, laid out a very concise and well-
reasoned approach to his making decisions on the Court in the past.
  He obviously has impeccable credentials. The Senator from Utah is in 
the Chamber right now, and I heard him say over and over that no one 
has the credentials this man has and the experience he brings to the 
Supreme Court. No one, in my view, has been more personally decent, 
humble, and modest dealing with a rather rancorous hearing process. He 
came off, at least from my view, as exactly the kind of temperament we 
would want of a Supreme Court Justice--of any judge. He is obviously 
highly intelligent, battling wits with some of the best minds in the 
Senate. During this process, both privately and publicly, he has been 
gracious. He is, again, someone I am very proud to support.
  If I can, for a moment, talk again about where we are in the context 
of the role of the judiciary in our democratic process. We often talk 
about the tyranny of the judiciary--many on our side of the aisle do--
how the judiciary has run amok in its ever-unceasing quest to take 
responsibilities and decisions away from the elected democratic bodies 
of our country and hoist it onto the backs of the Supreme Court or the 
courts in our country. That is a very dangerous precedent we have seen 
over the last 30 and 40 years in our courts, that increasingly 
decisions are being made by the judicial system and, in so doing, 
barring the House, the Senate, and the President from regulating or 
legislating in that area in the future, in a sense making these 
substantive decisions as to how we should live our lives, how our 
economy will function, how our laws will be written across the street 
in an unelected body as opposed to how the democratic process works--to 
have the people's collective will reflected in their laws.
  One of the reasons I think these nominations are so important and 
maybe so contentious is because we are at a point right now where there 
has been a movement for many years to bypass the democratic process, 
bypass the people's Houses and go to the courts to get an extreme 
agenda passed and into law in this country.
  The voices we have heard over the past couple of months during this 
nomination and which we heard somewhat more muted during the Roberts 
nomination were of those trying to hold onto power by holding onto a 
majority on the Supreme Court of the United States to continue to 
promulgate a far-left-of-center agenda on a variety of issues, using 
the Court as the place to silence the people in their collective 
judgments.
  One of the reasons that I think is vitally important for putting a 
Judge Alito on this Court, and hopefully future Judge Alitos as other 
vacancies occur, is that we will have an opportunity to return a 
balance of power in this country away from nine unelected people across 
the street from the Senate to the halls of the people's bodies, to the 
living rooms of America, for them to be able to make these decisions 
that are important to the future of our country and not have those 
decisions taken from them by radical judges on our courts.
  So this is an important step. Do I believe that we are going to see, 
as a result of Judge Alito's confirmation, which appears to be all but 
certain, a dramatic change in the precedents of the U.S. Supreme Court? 
I sort of doubt that we will see dramatic change, certainly not any 
time soon. But I think what we will see is a more

[[Page S78]]

modest approach to dealing with the problems with which the Supreme 
Court is confronted. We will not see cases where the Court could decide 
a case on a narrow issue and settle the dispute at hand and instead of 
doing so take the opportunity, ``while we are at it,'' to overturn a 
variety of precedents they don't need to overturn and create new 
legislation, if you will, through their judicial opinions. We see that 
happen time and again. It threatens the very foundation of our country.
  Thomas Jefferson understood that. Jefferson in 1821--this was after 
he was President, 5 years before he died, obviously a great student of 
our Constitution, obviously a great student of the powers of the 
Congress and the judiciary and obviously of the Presidency--he said, in 
reflecting on this very delicate system and the balance of power among 
the executive, the judicial, and the legislative branch:

       The germ of destruction of our Nation is in the power of 
     the judiciary, an irresponsible body working like gravity by 
     night and by day, gaining a little today and a little 
     tomorrow and advancing its noiseless step like a thief over 
     the field of jurisdiction until all shall render powerless 
     the checks of one branch over the other and will become as 
     venal and oppressive as the government from which we 
     separated.

  He saw the power of an immodest, a brash, a bold judiciary in its 
ability by using the ultimate law of the land, the Constitution, in 
grabbing power by day and by night quietly--drip, drip, drip--taking 
the power away from the people and ceding it to itself so that, to 
paraphrase Jefferson, they would be like the monarchs we left, ruling 
from their kings' benches.
  This is a true threat, in my opinion, to the democracy in America 
today. Jefferson, as he did with many issues, had it right here too. 
There have been times in American history where the pendulum has swung 
in favor of one branch of Government to the other. I think this is such 
a time when we have seen that pendulum swing to the Supreme Court, and 
it is incumbent upon all of us to make sure that equilibrium is 
restored.
  I know there are a lot of folks who are listening who say: I like the 
decisions the Supreme Court has made; that is why I am out here 
arguing, to make sure we can preserve that. I can say what is good for 
the goose is good for the gander. There may, indeed, come a day--
although I hope it will not come--there may, indeed, come a day when 
this Court decides, since we have power to make laws in favor of those 
who like the recent decisions of the courts or decisions over the last 
30, 40 years, there may come a time when they take that same authority 
and make a whole host of decisions that you don't like.
  Whether I am in the Senate or somewhere else at that point in time, I 
hope I will have the integrity and the ability to stand up and 
criticize that Court such as I am criticizing the courts over the last 
30 years for their activities. There is no place for the Court imposing 
its will and making laws. There is no place for that in our 
Constitution. That is not their role.
  I am very pleased the President understands that and that he has put 
forth judges who I believe understand that point of view as a member of 
the judiciary. I am hopeful that we will confirm Judge Alito and that 
we will continue this process of creating a better balance of powers 
among the Congress, the executive branch, and the judiciary. This is a 
very important, in my opinion, second step in that process.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I enjoyed my colleague's remarks. We are in 
the final stretch of considering the nomination of Samuel Alito to the 
Supreme Court of the United States, and by any reasonable objective or 
traditional standard, Judge Alito deserves overwhelming confirmation, 
without question.
  The first reason Judge Alito should be confirmed is that he is highly 
qualified to serve on the Supreme Court. It amazes me that some parties 
to this debate practically ignore his qualifications altogether. They 
are so intent on manufacturing a case against this nominee that they 
brush aside this seemingly minor detail of his qualifications as if it 
were just an annoyance.
  After serving in the Department of Justice and as a highly regarded 
Federal prosecutor, Judge Alito has served on the U.S. Court of Appeals 
for the Third Circuit since 1990, has participated in nearly 5,000 
cases, and has written more than 360 opinions. He has more judicial 
experience than any Supreme Court nominee in the last three-quarters of 
a century.
  The American Bar Association, which conducts perhaps the most 
comprehensive and exhaustive evaluation of Supreme Court nominees, 
interviewed more than 300 people who know and have worked with Judge 
Alito. The American Bar Association, after all those interviews, 
unanimously gave Judge Alito its highest well-qualified rating. Here, 
too, it is amazing how some Senators and leftwing interest groups brush 
aside this ABA rating as if they were dusting the mantel.
  While the ABA's role in the judicial appointment process has been 
controversial at times, certainly no one has ever charged it with a 
conservative bias--no one. It was my Democratic colleagues and their 
leftwing interest groups that once lauded the ABA rating as the 
veritable gold standard for evaluating judicial nominees.
  The criteria for the ABA's highest well-qualified rating includes 
Judge Alito's compassion, openmindedness, freedom from bias and 
commitment to equal justice under the law. Judge Samuel Alito is 
eminently qualified to serve on the Supreme Court of the United States.
  The second reason Judge Alito should be confirmed is that he is a man 
of character and integrity. Anybody watching those proceedings would 
have to conclude that. I have been struck, throughout this process, at 
the level of respect and praise for Judge Alito's character and 
integrity, how it is directly related to how well people know him, how 
closely they have worked with him. Without exception, those sounding 
the most dire warnings, creating the most negative caricatures, and 
painting the scariest picture of Judge Alito are those who know him the 
least or who do not know him at all.
  We have heard from those who worked with him at the Department of 
Justice and in the U.S. Attorney's Office in New Jersey. We have heard 
from Judge Alito's law clerks and fellow judges, and there were dozens 
of those law clerks from all across the ideological spectrum who were 
supportive of Judge Alito.
  Make no mistake, this is not a bunch of rightwing clones but a 
diverse group of men and women, liberals and conservatives of different 
religions and backgrounds. They do not agree with him on every issue 
or, in some cases, they don't agree with him on virtually any issue at 
all, but they all praise Judge Alito as a man of character and 
integrity. Judge Samuel Alito possesses the character and integrity 
necessary to serve on the Supreme Court of the United States.
  The third reason Judge Alito should be confirmed is that he 
understands and is committed to the appropriately limited role of the 
judiciary. America's Founders established a system of limited 
Government containing three branches, each with its category of power 
and ability to check the others. The judicial branch is as much a part 
of this system of Government and must remain as limited as the 
legislative and executive branches.
  The fight over judicial appointments is a fight over whether we 
should stick with the system America's Founders established.
  Some want to change that system because, frankly, it does not give 
them everything they want.
  Self-government, after all, can be a little messy and sometimes very 
frustrating.
  Letting the people and their elected representatives make the law and 
define the culture means that, on any given day, certain political 
interests win and others lose.
  Some who lose in the political process pick themselves up and try 
again another day.
  Others leave the political process behind and go to the courts, 
trying to persuade judges to impose upon the American people policies 
and priorities the people would not choose for themselves, or they 
could never get through the elected representatives of the people.

[[Page S79]]

  The fight over judicial appointments is whether we should have judges 
willing to take such political bait.
  It is fashionable in some circles to put the Supreme Court on a 
pedestal, pretending that a few unelected judges are supposed to lead 
us to some kind of promised land.
  During the debates about Chief Justice John Roberts' nomination last 
fall and Judge Alito's nomination now, we have heard all sorts of grand 
descriptions of the judiciary's role and purpose.
  The judiciary, we are told, is the engine of social progress, the 
protector of all our rights and liberties, even the savior of the 
environment.
  Yesterday, in the Judiciary Committee's businss meeting, the ranking 
Democratic member said that the very reason the Supreme Court exists is 
to be ``a constitutional check on the expansion of presidential 
power.''
  The Senator from Massachusetts, Senator Kennedy, said the very same 
thing yesterday, that the Supreme Court's historic role is ``enforcing 
constitutional limits on presidential power.''
  These grand descriptions give the impression that the Supreme Court 
alone polices our system of separated power, hands down decrees about 
issues, opines on abstract theories, and decides how best to order the 
universe.
  It does no such thing. The last time I checked, most of the Supreme 
Court's cases have nothing whatsoever to do with issues such as 
presidential power, abortion, religion, or the environment.
  The Supreme Court does not exist to run the country, right all 
wrongs, and usher in peace and domestic tranquility.
  The judiciary is part of our system of limited government; it is not 
a system unto itself. It is that whole system of government, not anyone 
part of it, that protects our rights and liberties, checks excessive 
government power, provides for social progress, and all the rest.
  As a part of that system, judges who exceed their proper role and 
power are no less a threat to liberty than legislators or the president 
who do so.
  In the famous case of Marbury v. Madison, Chief Justice John Marshall 
wrote that the Constitution was designed for the government of courts 
as much as of legislatures.
  As Chief Justice Roberts put it last fall, judges are not 
politicians.
  The tendency of some in this debate simply to look at the results 
judges deliver is, therefore, misguided because it suggests that 
judges, as politicians, are free to take whatever side they choose and 
the only thing that matters is whose side judges are on.
  This politicized approach misleads our fellow citizens about the 
judiciary and its proper place in our system of government.
  America's founders had a very different view and, I am glad to say, 
Judge Alito sides with them.
  As the Constitution puts it, judges exercise judicial power in the 
context of cases and controversies. Judges do not make the law they 
apply. Judges are neither school boards nor inspectors general. Judges 
are neither legislative oversight commissions nor political 
provocateurs. Instead, judges settle legal disputes by applying already 
established law to cases that come before them.
  Because that is what they do, it is impossible to properly evaluate 
judges or judicial nominees the way we evaluate politicians, by the 
results they can be expected to deliver.
  Yet that is exactly what we see in this judicial confirmation 
process.
  To hear some of my Democratic colleagues and their left-wing interest 
group friends talk, there is absolutely nothing that is not the 
judiciary's job. That is ridiculous.
  To hear some of them talk, everything is fair game for judges and the 
only thing that matters is who wins that game.
  America's founders rejected that view, and Judge Alito should be 
confirmed because he rejects that view.
  I hope we find more qualified men and women who believe there is 
something, anything, that is not a judge's job and appoint them to the 
judiciary right away.
  While scorecards are familiar in the political process, they have no 
place in the judicial process.
  Again, I quote Judge Alito: ``I don't think a judge should be keeping 
a scorecard about how many times the judge votes for one category of 
litigant versus another in particular types of cases. That would be 
wrong. We are supposed to do justice on an individual basis in the 
cases that come before us.''
  Who can disagree with that? Yet, they seem to on the other side.
  I hope that my fellow citizens are watching this debate, either live 
right now or when it is replayed later.
  I ask my fellow citizens, do you agree with Judge Alito? Do your 
expect judges to do justice on an individual basis, to take each case 
on its own facts and its own merits, and to decide it solely according 
to the law? Or do you expect a judge to look at a case not as a legal 
dispute between real parties, but as a political issue, deciding it 
based on his opinion of the issue, practically before the case even 
comes before him?
  Judge Alito rejects scorecards and tallies, he rejects percentages 
and patterns, and looks at each case based on its own facts and the law 
that applies.
  I might add that at one time in the proceedings one of the Democratic 
Senators said he never ruled in favor of labor. We immediately showed a 
number of cases where he did. You can find rulings by Judge Alito 
across the spectrum with respect to people who should have won those 
cases.
  Let me describe another revolutionary idea. Let me read it.
  At his hearing, Judge Alito said that ``although the judiciary has a 
very important role to play, it's a limited role. . . . Judges don't 
have the authority to change the Constitution. . . . The Constitution 
is an enduring document and the Constitution doesn't change.''
  Let me speak again to my fellow citizens out there who may be 
watching.
  The first three words of the Constitution are ``we the people.''
  The Constitution belongs to the people.
  It does not belong to judges.
  The Constitution, your Constitution--I am speaking to the people out 
there--already has a specific process for changing it, and the only 
branch of government involved in that process is this one, the 
legislative branch, the one you directly elect.
  If America's founders explicitly excluded the judiciary from the 
process of changing the Constitution, do you think instead that judges 
should now be able to change the Constitution?
  Do you believe that the Constitution, your Constitution, is whatever 
judges say it is?
  It is the Constitution that ultimately protects our rights and 
liberties.
  If the Constitution means whatever judges say it means, then our 
rights and liberties are whatever judges say they are. They are not 
elected. They are nominated, appointed and confirmed for life.
  If that is what my Democratic colleagues and their left-wing interest 
group allies mean when they say the judiciary protects us, then do not 
sign me up for that protection package.
  Our rights and liberties, and particularly the rights and liberties 
of the minority, are secure only when the constitution is solid.
  Judge Alito is precisely the kind of judge who will protect our 
rights and liberties because he does not believe that he defines them.
  So the case for Judge Alito's confirmation is overwhelming. He is 
highly qualified, he is a man of character and integrity, and he 
understands and is committed to the properly limited role of judges in 
our system of government.
  In the past, this would have been enough for confirmation by a wide 
bipartisan margin.
  Perhaps because this case for confirmation is so strong, Judge 
Alito's opponents have tried a host of attacks that not only have 
failed but have degraded this process along the way.
  One is the familiar guilt-by-association tactic, trying to smear 
Judge Alito by attacking a group of conservative Princeton alumni to 
which he once belonged. Membership in this group, mind you, was nothing 
more than a magazine subscription. Imagine if someone tried to 
attribute to each of you everything published in every magazine or 
newsletter you receive.
  Some Democratic Senators used this very illegitimate tactic on Judge 
Alito, selecting the most salacious or controversial articles which 
Judge Alito never read. One Senator even tried to

[[Page S80]]

pass a parody of such outrageous views off as the real thing. That is 
how denigrating this process became.
  Our staff spent hours pouring through boxes of documents related to 
this group and the name Samuel Alito never appeared on a single scrap 
of paper--not one.
  The disinformation was even worse in the media.
  The group in question, or at least some of its members, wanted to 
preserve Princeton's all-male tradition and opposed affirmative 
action--in other words, affirmative action.
  On January 6, a well-known pundit claimed on the FOX News Channel 
that Judge Alito himself was personally ``trying to keep women and 
minorities out of Princeton.''
  I have been around for a long time, and I have seen a lot of bad 
journalism, but this goes beyond the pale. This goes beyond spin, 
beyond any reasonable characterization of the facts. In fact, it is 
ridiculous.
  When I asked what the media characterizes as a softball question, 
sarcastically asking it, are you really against having women or 
minorities in colleges, anybody listening to that had to conclude I was 
being sarcastic. He said, Of course not.
  When I said I thought that is what he thinks, I couldn't have been 
more sarcastic. But apparently I am so serious on most matters that 
people thought I was serious on that. But it is ridiculous, this guilt 
by association that went on, even in the committee, in something as 
important as the Judiciary Committee of the Senate.
  Let me address a few of the other arguments by Judge Alito's 
opponents. Yesterday, at the Judiciary Committee markup, the Senator 
from New York, Mr. Schumer, tried once again to paint Judge Alito as an 
out-of-control judge, wantonly disregarding and seeking to disrupt his 
own court's past decisions. The political rhetorical value of the 
tactic is obvious. If Judge Alito played fast and loose with his 
present court's precedence, the story goes he would certainly do so on 
the Supreme Court.
  The problem is that this claim, this picture of Judge Alito as an 
activist judge out to remake precedent in his own image is patently 
wrong. It bears no relationship to reality.
  At Judge Alito's hearing, the Senator from New York cited a few cases 
in which colleagues disagreed with how Judge Alito treated the court's 
prior decisions. The Senator from New York made no attempt whatever to 
determine whether Judge Alito's position in those cases was right or 
wrong. He simply grabbed quotes supporting his preconceived point of 
view.
  With all due respect to the judges who disagreed with Judge Alito in 
those cases, they could very well be the ones who misread or misapplied 
the Third Circuit's prior decisions.
  What the Senator from New York never said was that Judge Alito has 
dissented in just 79 of the more than 5,000 cases in which he 
participated. That is a rate below the average for appeal court judges 
around the country.
  Something else the Senator from New York has not revealed is Judge 
Alito has voted to overturn his own court's precedence just four times 
in his whole 15 years on the bench. In each of those cases in which all 
the judges of the circuit participated, Judge Alito was in the 
majority, and two of them were unanimous in each of those cases. He was 
in the majority, and two of them had a unanimous majority.
  My colleagues will remember that seven of Judge Alito's current and 
former judicial colleagues appeared before the Judiciary Committee. Who 
better to give the Senate real insight of Judge Alito's approach to 
cases, his attitude toward litigants, and his perspective on the law? 
Better yet, what a unique opportunity to hear from those fellow judges 
about how Judge Alito handled precedent.
  I might add that earlier in the hearing, for example, the Senator 
from New York quoted a passage critical of Judge Alito from the 
majority opinion in Dia v. Ashcroft. Chief Judge Anthony Scirica joined 
that opinion. Chief Judge Scirica was sitting right there in front of 
the committee.
  The Senator from New York also quoted a passage critical of Judge 
Alito from Judge Leonard Garth's dissent in Bray v. Marriott Hotels. 
Judge Garth visited with us via teleconference from Arizona. That would 
have been a great opportunity to question the very judges on the side 
of the Senator from New York of evidence of Judge Alito's activism and 
disregard for precedent. Hearing it from them could be more meaningful 
than cutting and pasting a few selected quotes from poster board. Yet 
the Senator from New York did not ask those judges questions about this 
issue. In fact, he did not ask any questions at all because he did not 
attend that portion of the hearing. That was his right.
  I asked him about it. I referred to the claims by the Senator from 
New York and asked the judges whether Judge Alito disregards precedent, 
whether he has an agenda to disrupt the court's prior decisions. Judge 
Edward Becker, former Chief Judge of the Third Circuit Court of 
Appeals, participated with Judge Alito in more than 1,000 cases. Judge 
Becker said he never saw Judge Alito disregard or ignore precedent. 
Judge Alito followed precedent unless he believed the precedent was 
distinguishable or was what judges called dicta--in other words, not 
binding language in a particular case.
  Another judge on that distinguished panel was Judge Ruggero Aldisert, 
appointed nearly 40 years ago by President Lyndon Johnson, and still 
serving on the court. In addition to his many years of service in both 
the State and Federal courts, Judge Aldisert has written a well-known 
textbook on the judicial process. Judge Aldisert was a Democrat. I know 
him very well. I tried one of my first jury trials in front of Judge 
Aldisert in the common pleas court in the highest trial court in 
Pennsylvania. I got tears in my eyes when he appeared. But he, too, a 
Democrat, defended as sound Judge Alito's treatment of precedent.
  I might add, chatting with Judge Aldisert afterwards, he had had a 
number of health problems. He risked his life to come back to right 
this wrong that had been done to one of his colleagues on the Third 
Circuit Court of Appeals. Judge Aldisert, when I knew him, and I have 
known him all these years, but when I knew him as a young trial lawyer 
in Pittsburgh, Judge Aldisert was the national president of the Italian 
Sons and Daughters of America. And proudly so. I was very proud of him 
when he went to the Third Circuit Court of Appeals and have been very 
proud of him since and proud of the scholarship he has written. He 
knows the difference between a good judge and a bad judge, and he has 
had a world of experience. I got very emotional when I saw him once 
again.

  As I mentioned earlier, some of my Democrat colleagues are 
particularly fond of scorecards and tallies, thinking that tells 
anything useful about a judge's approach to the law. Perhaps they can 
create something like a confirmation rate card listing the percentage 
of cases in different categories that one side or the other is supposed 
to win. Plaintiffs should win this percentage of employment 
discrimination, the prosecution is allowed to win this percentage of 
criminal cases, and so on. Perhaps it can be a list titled ``Whose Side 
Are You Supposed To Be On'' as a judge. That is about the way it comes 
off. Before anyone dismisses this as ridiculous or farfetched, this is 
exactly what some of my Democrat colleagues and many of their leftwing 
interest group friends have done to Judge Alito.
  In his opening statement on January 9, the Senator from 
Massachusetts, Mr. Kennedy, cited a so-called study by University of 
Chicago law professor Cass Sunstein claiming that Judge Alito voted 
against the individual in 84 percent of his dissents. The Senator from 
Massachusetts did not quote from Professor Sunstein's letter that such 
statistics must be taken with ``many grains of salt and with 
appropriate qualifications,'' or Professor Sunstein's own admission 
that his analysis was done under what he called considerable time 
pressure, rendering his conclusions only tentative and preliminary. 
And, of course, the Senator from Massachusetts did not examine any of 
the dissents on the merits. He let the calculator do the talking. 
Remember, these are appeals. Most of the appeals are upheld on appeal.
  Actually, the Senator from Massachusetts went much further than that. 
On the basis of this one tentative and preliminary statistic from this 
one study, he claimed that ``average Americans have had a hard time 
getting a

[[Page S81]]

fair shake in [Judge Alito's] courtroom.'' That is an outrageous claim, 
one that would not be at all justified even if the supposed evidence 
behind it were more legitimate.
  Let us be honest about this. Saying a pattern of past decisions shows 
an entire group of litigants will have a hard time getting a fair shake 
in the future is to accuse Judge Alito of bias.
  Before the Senator from Massachusetts or anyone else using this 
tactic gets indignant, throws up his hand and claims he never accused 
Judge Alito of bias, there is simply no other meaning to what was said.
  I again call into contention the testimony of those seven judges, all 
circuit court of appeals Federal judges from all across the spectrum, 
who said Judge Alito has never demonstrated any bias toward anybody. I 
would much rather have their confirmation than any law professors in 
this country, especially any liberal law professor in this country, or 
conservative law professor. What else could the words ``average 
Americans have a hard time getting a fair shake'' actually mean?
  Another example last week, Thursday, the Senator from Massachusetts 
claimed that while on the appeals court Judge Alito literally bent over 
backwards to ``help the powerful.''
  He said:

       The record is clear that the average person has a hard time 
     getting a fair shake in Judge Alito's courtroom.

  These are his words, not mine. Saying that Judge Alito bends over 
backwards to help the powerful means only one thing. Saying that a 
category of litigants will have a hard time getting a fair shake before 
Judge Alito means only one thing. If Senators wish to accuse Judge 
Alito of bias, they should do so up front, not through innuendo or 
hiding behind statistics.
  Evaluating judges with a calculator is wrong, misguided, and misleads 
our fellow citizens about what judges do and the role they play in our 
system of government. Again, I call attention to the judges who 
appeared, all of whom spoke in favor of Judge Alito. In all honesty, 
let me choose the most liberal of those judges. He has some very 
interesting things to say. That was Judge Lewis who is retired now. He 
said:

       I am openly and unapologetically pro-choice and always have 
     been. I am openly--and it's very well known--a committed 
     human rights and civil rights activist and actively engaged 
     in that process as my time permits. . . .
       I am very, very much involved in a number of endeavors that 
     one who is familiar with Judge Alito's background and 
     experience may wonder--``Well, why are you here today saying 
     positive things about his prospects as a justice on the 
     Supreme Court?''
       And the reason is that having worked with him, I came to 
     respect what I think are the most important qualities for 
     anyone who puts on a robe, no matter what court they will 
     serve on, but in particular the United States Supreme Court.

  He went on to say:

       As Judge Becker and others have alluded to, it is in 
     conference, after we have had oral argument and are not 
     propped up by law clerks--we are alone as judges discussing 
     the case--that one really gets to know, gets a sense of the 
     thinking of our colleagues. I cannot recall one instance 
     during conference or doing any other experience that I had 
     with Judge Alito, but in particular during conference, when 
     he exhibited anything remotely resembling an ideological 
     bent.

  He endorsed Judge Alito in no uncertain terms.
  Let me close by noting a few things I find encouraging. First, I am 
encouraged the attacks, distortions, and misleading claims about Judge 
Alito have not persuaded the American people. The leftwing interest 
groups have thrown everything they have against this nominee. It is 
shameful the way they act. One of their leaders said at the beginning 
of this campaign: You name it, we will do it. That is the type of 
opposition this man has had to endure.
  They did it. We have seen millions of dollars spent week after week 
on petition drives, television ads, rallies, phone banks, and 
grassroots lobbying. The net result of that barrage of propaganda has 
been that support for Judge Alito's nomination among the American 
people has steadily increased--not a very good return on their 
investment.
  In early November, Newsweek found that 40 percent of Americans 
thought Judge Alito should be confirmed. In December, even polls 
conducted for liberal groups found that support had risen to nearly 50 
percent. And this month, polls by CNN, FOX News, and Reuters find 
support even higher with Americans backing the nomination by a ratio of 
more than 2 to 1. A new Gallup poll conducted after Judge Alito's 
hearing last week shows support has risen by about 10 percent since 
early December. This is particularly significant because Judge Alito's 
opponents have issued all sorts of apocalyptic warnings and 
predictions. They have cast Judge Alito as a radical extremist, a 
threat to the environment and individual rights.
  The Senator from Vermont has repeatedly said that all by himself, 
Judge Alito is a threat to the rights and liberties of all Americans 
literally for generations to come. The critics have said that Judge 
Alito would give the executive branch a blank check to invade your 
privacy, strip search children, and tap your phones.
  According to the critics, if Judge Alito has his way, machine guns 
will flood our streets, big business will pollute the air and water, 
and the poor and down trodden will be unable to find justice.
  I am pleased to say despite all of this propaganda, as CBS News 
found, the percentage of Americans having a favorable impression of 
Judge Alito has risen 50 percent since the end of October. I am also 
encouraged that not all Democrat leaders have abandoned reasonable, 
traditional, judicial confirmation standards.
  Pennsylvania governor Ed Rendell, a past general chairman of the 
Democratic National Committee, yesterday described a confirmation 
standard that I hope his fellow Democrats would once again embrace.
  He said that if a nominee is qualified and passes the test of 
integrity, elections matter and disagreement with some of nominee's 
positions or decisions are not enough to deny the President his 
appointment.
  That was the standard that allowed President Clinton to appoint two 
liberal justices with minimal opposition.
  I wish my Democratic colleagues would follow Governor Rendell's lead.
  Finally, Mr. President, I am encouraged that Judge Alito will indeed 
be confirmed.
  A highly qualified judge, a man of character and integrity, and 
someone who understands and is committed to the judiciary's properly 
limited role, will soon join the Supreme Court of the United States.
  When Judge Samuel Alito becomes Justice Samuel Alito, our system of 
limited government under the rule of law will be stronger and the 
freedoms that system makes possible will be more secure.
  I urge my colleagues to vote to confirm Judge Samuel Alito to the 
Supreme Court.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, we have Senators who wish to speak.
  On several occasions, but publicly and privately, I have asked the 
distinguished senior Senator from Utah if he purports to quote me, to 
try to at least get within the ballpark of accuracy. I realize that is 
probably a failing and useless request after hearing him misquote me 
again the last few minutes, but I renew the request, and I hope that he 
would do that.
  Mr. HATCH. Will the Senator yield?
  Mr. LEAHY. To suggest that I have said--I would like to find the 
quote where I said that Judge Alito, all by himself, would do away with 
all the liberties of Americans.
  I see the distinguished senior Senator from Florida, and I yield to 
the Senator.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, some things can get hot here, 
particularly when we get into personalities. Well, the senior Senator 
from Florida came here not to speak about personalities but to talk 
about the substance of the issue in front of us.
  In the Good Book, the Gospel promises all of us impartiality at 
judgment. And I would suggest impartiality--or justice for all--is a 
principle embedded deep in our constitutional democracy.
  I believe in an America where courts address injustice and correct 
it. I believe in an America where our judges serve the people by 
interpreting the Constitution, without agenda. I may have no greater 
responsibility in the Senate than to be charged by our Constitution 
with advising the President

[[Page S82]]

on his picks for the U.S. Supreme Court. And in assuming this awesome 
responsibility, I rise to oppose Judge Alito's confirmation to the 
Supreme Court.
  Soon, the Supreme Court likely will hear cases about protecting our 
personal privacy from Government and corporate intrusion and about the 
sharing of power between Congress and the President. These decisions 
will have an important effect on each of our lives and on the future of 
our Nation.
  In the break we had over the holidays, I had numerous townhall 
meetings all over my State of Florida. The residents shared with me 
their thoughts about Judge Alito. So I took all of that information, 
and that is why, then, I carefully studied his record over the past 15 
years as a judge on the Third Circuit Court of Appeals.
  During his time on the bench, Judge Alito ruled on cases ranging from 
the rights of individuals to the stewardship of the environment. After 
his testimony before the Judiciary Committee, and after studying his 
judicial record, I am concerned that he, more often than not, ruled in 
favor of big Government and big corporations over the ordinary 
American, putting trust in an authoritarian type of institution. That 
is a concern.
  Following the hearings, I had the pleasure of personally meeting with 
Judge Alito to discuss my concerns. It was a very amiable and friendly 
conversation. He seems to be a very nice gentleman. But I explained to 
him some of my concerns. I explained how a recent Supreme Court 
decision has frightened many of our constituents who fear their homes 
can now be seized by the Government to make way for a private 
developer's project.
  While he expressed sympathy for the parties whose homes had been 
seized, in this personal meeting with him, he offered no misgivings 
about the legal reasoning that led to that outcome.
  I am concerned about his rulings in other cases pitting the 
Government against individuals, in the area of the environment, 
workers' rights, and racial discrimination.
  In Public Interest Research Group of New Jersey v. Magnesium 
Elektron, he, Judge Alito, established high barriers to prevent 
individuals from being able to sue polluters for violations of the 
Clean Water Act. The U.S. Supreme Court later rejected this reasoning 
by a vote of 7 to 2.
  In Chittister v. Department of Community and Economic Development, he 
ruled that State employees could not sue for damages to enforce their 
rights under the Federal Family and Medical Leave Act. The Supreme 
Court later reversed this ruling by a vote of 6 to 3. I might say that 
both of those acts under consideration by the Court I had the privilege 
of voting for when I was a Member of the House of Representatives.
  And then in Riley v. Taylor, he ruled there was no basis for appeal 
in a death penalty case in which prosecutors had used their preemptory 
challenges to exclude Black jurors from the jury pool. The full Third 
Circuit later heard the case and overturned Judge Alito's ruling.
  These cases highlight the broader concerns I have with Judge Alito's 
record.
  During my years in the Senate, I have voted for almost all of 
President Bush's judicial nominees. All told, I have voted for 216 of 
the President's 226 judicial picks, including Chief Justice John 
Roberts. That is 96 percent.
  I greeted Judge Alito's nomination with an open mind. But his many 
legal writings, his judicial opinions and evasive answers, both at his 
hearing and in my private meeting with him, convinced me that he would 
tilt the scales of justice ever so slightly against the average Joe. I 
do not want that outcome.
  And because he is not the voice I believe this Nation needs to 
replace the retiring Justice Sandra Day O'Connor, who fiercely defended 
the rights and liberties of all Americans--because of this--I am going 
to vote no on his confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, before I comment on the nomination, I would 
like to recognize and thank several people who have been very helpful 
in preparing my comments: Kara Stein, Justin Florence, and Sharon 
Rapport.
  Mr. President, I also ask unanimous consent to have printed in the 
Record a series of letters from national organizations with respect to 
issues of church and state separation and the nomination of Judge 
Alito.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                   Americans United for Separation


                                          of Church and State,

                                 Washington, DC, January 10, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, Hart 
         Office Building, Washington, DC.
     Hon. Patrick Leahy,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Russell Office Building, Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: Americans 
     United for Separation of Church and State urges you to oppose 
     the confirmation of Judge Samuel A. Alito, Jr. to be 
     Associate Justice of the Supreme Court of the United States. 
     Americans United for Separation of Church and State 
     represents more than 75,000 individual members and 9,500 
     clergy nationwide, as well as cooperating houses of worship 
     and other religious bodies committed to the preservation of 
     religious liberty. We oppose the confirmation of Judge Alito 
     to the Supreme Court because his record demonstrates that he 
     would fundamentally alter First Amendment law and immediately 
     put at risk many of the crucial protections for religious 
     minorities that the Supreme Court has recognized and 
     consistently enforced over the past sixty years.
       Legal scholars have understood the First Amendment's 
     religion clauses as striking a balance between the religious 
     and political rights of individuals and groups within our 
     society. There is a necessary tension between the Free 
     Exercise Clause and the Establishment Clause, which serves to 
     balance the sometimes competing interests of individuals' 
     freedom of conscience against the requirement that the state 
     be neutral with respect to religious viewpoints. Justice 
     O'Connor has been successful in ensuring that public 
     expression did not turn into government favoritism or state 
     coercion of religious beliefs.
       During his fifteen year tenure on the United States Court 
     of Appeals for the Third Circuit, however, Judge Alito has 
     shown himself to have a view of the First Amendment, 
     particularly of the Establishment Clause, that differs 
     dramatically from both Justice O'Connor's judicial philosophy 
     and the settled understanding of fundamental Establishment 
     Clause principles that has guided the Supreme Court's 
     decisions for at least six decades. Indeed, early on, Judge 
     Alito acknowledged his disagreement with the Supreme Court on 
     its Establishment Clause jurisprudence. When applying for a 
     position in the Reagan Administration Department of Justice, 
     Judge Alito declared that his ``deep interest in 
     constitutional law [was] motivated in large part by 
     disagreement with the Warren Court decisions, particularly in 
     areas [such as] the Establishment Clause. . . .'' As 
     evidenced by his longstanding appeals court record, we remain 
     concerned that such a motivation taints his view today.
       There is much at stake for the future of religious liberty 
     as a result of Justice O'Connor's retirement and Judge 
     Alito's nomination to take her place on the Supreme Court. As 
     Justice O'Connor has recognized, it is vital that our 
     longstanding Establishment Clause protections remain in 
     place:
       ``At a time when we see around the world the violent 
     consequences of the assumption of religious authority by 
     government, Americans may count themselves fortunate: Our 
     regard for constitutional boundaries has protected us from 
     similar travails, while allowing private religious exercise 
     to flourish. . . Those who would renegotiate the boundaries 
     between church and state must therefore answer a difficult 
     question: Why would we trade a system that has served us so 
     well for one that has served others so poorly?'' (McCreary 
     County, Kentucky v. ACLU of Kentucky, 125 S. Ct. 2722, 2746 
     (O'Connor, J., concurring)).
       In the Establishment Clause area, replacing Justice 
     O'Connor with Judge Alito likely would have a profound effect 
     on the religious freedoms that our dual constitutional 
     commitments to free exercise and separation of church and 
     state have long ensured. Both the straightforward holdings 
     and the underlying tenor of Judge Alito's decisions in 
     Establishment Clause cases contrast sharply with Justice 
     O'Connor's views. Throughout her career on the Court, Justice 
     O'Connor has been keenly attuned to the plight of religious 
     minorities in society as a whole, and most especially in the 
     public schools. But Judge Alito's focus has been elsewhere: 
     on religious majorities' ability to express their views 
     through governmental instrumentalities, at government owned 
     facilities, and in government-organized enterprises like the 
     public schools. Judge Alito has given broad license to 
     religious majorities to use the public schools and other 
     official settings to broadcast their religious messages 
     without regard for the competing rights and interests of 
     religious minorities.
       Because Judge Alito has not extended the same protections 
     to all Americans that he has granted to politically powerful 
     religious majorities, the Senate should decline to confirm 
     his appointment as an associate justice of the U.S. Supreme 
     Court.

[[Page S83]]

       If you have any questions on Americans United's position on 
     this nomination, please contact Aaron D. Schuham, Legislative 
     Director.
           Sincerely,
                                           Reverend Barry W. Lynn,
     Executive Director.
                                  ____

                                       B'nai B'rith International,
                                  Washington, DC, January 6, 2006.
     Hon. Patrick Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: On behalf of B'nai B'rith International 
     and our more than 110,000 members and supporters, we write to 
     ask that the confirmation hearings of Judge Samuel Alito 
     deeply probe the nominee's judicial philosophy with regard to 
     issues of great concern to our organization. Founded in 1843, 
     B'nai B'rith is America's pioneer Jewish agency, with a wide 
     range of domestic and international public policy priorities. 
     Included in our agenda are several issues that we would like 
     to ask the Judiciary Committee to raise with Judge Alito:
       (1) Church-State Relations. We hope the Committee will ask 
     Judge Alito which judicial test should be applied to 
     determine whether a particular government action violates the 
     First Amendment's Establishment Clause. It might be helpful 
     to ask if the nominee feels it is permissible for public 
     school officials to lead students in prayer or scriptural 
     readings, or whether he believes that public funds and public 
     property may be used for religious displays. We also would be 
     interested to learn whether Judge Alito believes that a 
     statute or ordinance requiring schools to give ``equal time'' 
     to instruction in creationism or intelligent design would 
     violate constitutional principles.
       (2) Asylum. B'nai B'rith hopes the Committee will ask the 
     nominee what standard should be applied to asylum claims by 
     individuals facing persecution in their homelands. We would 
     be interested to know what threshold of harm, or risk of 
     harm, a person fleeing a repressive society must demonstrate 
     before receiving asylum in the United States.
       (3) Workplace Discrimination. B'nai B'rith would like to 
     hear Judge Alito's views on the standard that should be 
     applied to cases of age, disability, or sexual discrimination 
     in the workplace. It would be useful to know the nominee's 
     position on the burden of proof an older worker must meet to 
     demonstrate that he or she has been passed over for 
     promotion, denied accommodation, or unfairly rejected as a 
     job applicant because of his or her age or disability.
       Thank you for your attention and consideration. B'nai 
     B'rith looks forward to remaining in communication with you 
     about this and other matters of mutual interest in the months 
     to come.
           Respectfully,
     Joel S. Kaplan,
       President.
     Daniel S. Mariaschin,
       Executive Vice President.
                                  ____

         Unitarian Universalist Association of Congregations,
                                Washington, DC, December 15, 2005.

Unitarian Universalist Association of Congregations Urges Opposition to 
the Confirmation of Judge Samuel Alito Jr. to the United State Supreme 
                                 Court

       Dear Senator: On behalf of the over 1,000 congregations 
     that make up the Unitarian Universalist Association, I urge 
     you to oppose the confirmation of Judge Samuel Alito Jr., to 
     the United States Supreme Court. After a careful review of 
     his decisions, and in particular dissents, we have concluded 
     that Judge Alito does not show sufficient respect for civil 
     liberties. His deciding vote on the court could undermine 
     fundamental rights for decades.
       The decision to take a position on a judicial nominee is 
     not one the UUA takes up lightly--or frequently. Indeed, it 
     was only in 2004 that our highest policy-making body approved 
     language explicitly stating that the Association would oppose 
     nominees whose records demonstrated insensitivity to civil 
     liberties. We did not take a position on the confirmation of 
     either Judge John Roberts or Harriet Myers.
       The nomination of Judge Samuel Alito Jr. is significantly 
     different, in that he has an extensive judicial record--more 
     than 15 years on the 3rd Circuit Court of Appeals--that 
     clearly reveals his judicial philosophy on a wide range of 
     issues. After extensive research, Unitarian Universalist 
     Association staff agreed that Judge Alito's rulings 
     demonstrate a pattern of views that were outside the 
     mainstream and hostile to established precedent favoring 
     civil liberties. In case after case, Judge Alito found 
     against the rights of individuals in relation to government 
     or corporations. In at least six cases, the Supreme Court 
     voted to overturn decisions of the Third Circuit or Alito's 
     dissent in Third Circuit cases. Several notable cases and 
     patterns are mentioned below.
       Police Power: In the case of Doe v. Groody, Judge Alito 
     dissented from a Third Circuit ruling that police officers 
     had violated clearly established constitutional rights. 
     Police had strip-searched a mother and her ten-year-old 
     daughter while executing a search warrant authorizing only 
     the search of her husband and their home. Then-Third Circuit 
     Judge Michael Chertoff, now Secretary of Homeland Security, 
     held that the unauthorized search violated ``clearly 
     established'' rights. Alito disagreed, arguing that even if 
     the warrant did not authorize the search, an officer still 
     could have read the warrant as allowing it.
       Religious Liberty: In the case of ACLU-NJ v. Schundler, 
     Judge Alito held that religious symbols displayed on 
     government property during the holiday season (in this case a 
     creche and menorah) were not unconstitutional when 
     ``secular'' decorations such as Frosty the Snowman and Santa 
     Claus were subsequently added to the display. While Justice 
     O'Connor has voted to allow secular holiday displays, she has 
     rejected efforts for religious symbols, including the Ten 
     Commandments, to stand alone in public display.
       In ACLU of New Jersey v. BlackHorse Pike Regional Board of 
     Education, Judge Alito joined a dissent from the Third 
     Circuit's ruling which struck down a public school board 
     policy allowing high school seniors to vote on whether to 
     include student-led prayer at their school-sponsored 
     graduation ceremonies. In a subsequent case (Santa Fe 
     Independent School District v. Doe), the Supreme Court, with 
     Justice O'Connor in the majority, struck down a public school 
     board policy allowing students to vote on whether to include 
     student-led prayer at high school football games.
       Limiting Access to the Courts: Among the most troubling 
     pattern is Judge Alito's consistent finding that plaintiffs 
     in discrimination cases did not have enough evidence to bring 
     their cases to trial. By denying even the opportunity for 
     judicial remedies, Judge Alito's philosophy undermines one of 
     the most fundamental checks and balances in our system of 
     government. For example:
       Judge Alito has strongly disagreed with Third Circuit 
     rulings protecting the civil rights of African Americans. In 
     Bray v. Marriot Hotels, Alito disputed a ruling by Theodore 
     McKee--the Circuit's only African American judge--allowing a 
     race discrimination case to go to trial. McKee said that 
     Alito's position would ``immunize an employer from the reach 
     of Title VII if the employer's belief that it had selected 
     the `best' candidate, was the result of conscious racial 
     bias.''
       Judge Alito has narrowly construed statutes in gender 
     discrimination cases. In Sheridan v. E.I. DuPont de Nemours 
     and Co., Alito was the only judge to dissent from a ruling 
     clarifying the nature of evidence permitting a jury to find 
     an employer engaged in discrimination. Alito's position would 
     have denied the plaintiff the opportunity to go to trial 
     despite significant evidence of discrimination.
       Judge Alito's dissents would have made it harder for 
     victims of discrimination based on disability to prove their 
     cases. In Nathanson v. Medical College of Pennsylvania, the 
     majority lamented that under Alito's restrictive standard for 
     proving discrimination based on disability under the 
     Rehabilitation Act of 1973, ``few if any Rehabilitation Act 
     cases would survive summary judgment.''
       Reproductive Freedom: Dissenting in Planned Parenthood v. 
     Casey, Judge Alito wrote that the right to reproductive 
     freedom does not prevent states from requiring women to 
     notify their spouses, except in limited circumstances, before 
     getting an abortion. Justice O'Connor cast the deciding vote 
     rejecting Judge Alito's position. Joined by Justices Kennedy 
     and Souter, O'Connor held that the provision Alito supported 
     harkened back to the days when ``a woman had no legal 
     existence separate from her husband'' and created an undue 
     burden on a woman's ability to obtain an abortion.


                            We Are Not Alone

       When the Unitarian Universalist Association makes a 
     decision to adopt a particular stance, we generally find 
     ourselves in the company of other religious organizations 
     with similar views. This holds true for our opposition to the 
     confirmation of Judge Alito.
       In late November, the biennial convention of the Union for 
     Reform Judaism--the largest branch of Judaism in North 
     America--voted overwhelmingly to oppose Judge Alito's 
     confirmation, saying that it ``would threaten protection of 
     the most fundamental rights'' that the Reform Movement 
     supports. ``On choice, women's rights, civil rights and the 
     scope of federal power,'' Alito would ``shift the ideological 
     balance of the Supreme Court on matters of core concern to 
     the Reform Movement,'' according to the resolution adopted by 
     the more than 2,000 voting delegates from more than 500 
     congregations in all 50 states.
       Both our denominations reviewed Judge Alito's rulings and 
     found that his record did not support our stated values. The 
     Unitarian Universalist Association of Congregations criteria 
     and supporting materials are available at http://
www.uua.org/. Materials from the Union for Reform Judaism can 
     be found at http://urj.org.
       Liberty is at the core of our Unitarian Universalist faith. 
     Civil liberties are at the heart of our American experiment 
     in democracy. Those civil liberties guaranteed by the Bill of 
     Rights are as fundamental to our practice of democracy as 
     freedom of conscience is to our religion. We believe that 
     Judge Alito's philosophy does not sufficiently respect these 
     fundamental rights, and we urge you to oppose his 
     confirmation.
           In Faith,
                                                Robert C. Keithan,
                                                         Director.

[[Page S84]]

     
                                  ____
                                          Women of Reform Judaism,
                                    New York, NY, January 9, 2006.
     Hon. Patrick J. Leahy,
     Ranking Member, Senate Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Senator Leahy: Recognizing the profound significance 
     of the Judiciary Committee hearings on the nomination of 
     Judge Samuel Alito, Jr. to the United States Supreme Court 
     for the future of jurisprudence in the United States, Women 
     of Reform Judaism, comprised of 75,000 members in 550 
     affiliates in North America urges you to oppose his 
     confirmation.
       Women of Reform Judaism rarely opposes judicial 
     nominations. Its resolution ``Judicial and Executive Branch 
     Nominations'' adopted in 2004, however, emphasizes the need 
     for balance of legal and social perspectives on the federal 
     bench. This resolution also enables Women of Reform Judaism 
     to oppose judicial candidates whose record demonstrates 
     opposition to the core values, rights and principles 
     supported by our organization.
       In his years in the Reagan Administration and on the Third 
     Circuit Court of Appeals, Judge Alito has been a strong and 
     consistent voice for restricting women's rights, extending 
     police powers and destroying the wall separating church and 
     state in schools and in community religious displays. Judge 
     Alito has also taken anti-affirmative action positions and 
     has supported stringent barriers in discrimination cases. 
     Judge Alito's vote could be a crucial one on the court in all 
     these areas and more, replacing the balance provided by 
     Justice Sandra Day O'Connor with a marked shift that would 
     endanger the civil liberties and civil rights of the people 
     of the United States.
       Committed to the precepts of our tradition and adhering to 
     the words of Deuteronomy, which tell us to pursue justice 
     (Deuteronomy 16:20), we look to the Supreme Court to protect 
     the civil liberties and civil rights of all Americans. Based 
     on his record, we are concerned that Judge Alito will be 
     unable to put aside his private views to dispense equal 
     justice for all and oppose his confirmation.
           Respectfully,
     Shelley Lindauer,
     Rosanne M. Solfon.
                                  ____

                                           Religious Action Center


                                            of Reform Judaism,

                                 Washington, DC, January 11, 2006.
     Hon. Arlen Specter,
     U.S. Senate, Hart Senate Office Building, Washington, DC.
     Hon. Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senators Specter and Leahy: As you consider the 
     nomination of Judge Samuel Alito Jr. to the Supreme Court of 
     the United States, we write on behalf of the Union for Reform 
     Judaism, encompassing 1.5 million Reform Jews in 900 
     congregations across' North America, to express our 
     opposition to Judge Alito's nomination.
       Our decision to oppose Judge Alito's nomination was not 
     taken lightly. During the debate on the nomination at our 
     recent Biennial General Assembly Reform Jews old enough to 
     remember the significant role the Supreme Court played in 
     extending basic human and civil rights to all Americans 
     cautioned the delegates about the danger of a Court whose 
     members have records in opposition to defending those rights. 
     Our Movement's youth spoke of cherished constitutional rights 
     that, with but one Supreme Court justice's vote changing the 
     balance of the court, could be undone, altering their lives 
     and those of the generations to follow. The older members did 
     not want to leave this legacy, and the youth did not want to 
     inherit it.
       In 2002, the Union for Reform Judaism adopted a resolution 
     that established our criteria for considering nominees to the 
     federal courts. Under these criteria, which are not limited 
     to issues of character or professional competence, we will 
     oppose a nominee in those rare cases in which after 
     consideration of what the nominee has said and written, and 
     his or her record, a compelling case can be made that the 
     appointment would threaten protection of the most fundamental 
     rights which our Movement supports. Based on these criteria, 
     in November of 2005 we resolved to oppose the nomination of 
     Judge Samuel Alito Jr. to the Supreme Court of the United 
     States believing that:
       Judge Alito's elevation to the Supreme Court would threaten 
     protection of the most fundamental rights which our Movement 
     supports including, but not limited to, reproductive freedom, 
     the separation between church and state, protection of civil 
     rights and civil liberties, and protection of the 
     environment;
       On choice, women's rights, civil rights, and the scope of 
     federal power (particularly as it relates to civil rights and 
     environmental protection), Judge Alito's nomination has 
     sparked a national debate on one or more issues of core 
     concern to the Reform Movement so that the outcome of the 
     nomination is likely to be perceived as a referendum on that 
     issue and will have significant implications beyond the 
     individual nomination;
       Many of his rulings have been contrary to our core values 
     and differed from the views of Justice Sandra Day O'Connor 
     (who was so often the moderate ``swing vote'' on a closely 
     divided Supreme Court), and, consequently, Judge Alito's 
     elevation would shift the ideological balance of the Supreme 
     Court on matters of paramount concern to the Reform Movement; 
     and
       Judge Alito's elevation to the Supreme Court would likely 
     contribute significantly to reshaping American jurisprudence 
     in a direction that would jeopardize our core values.
       Judge Alito's government service, and especially his 
     fifteen-year record on the 3rd Circuit Court of Appeals, 
     provide clear insight into his judicial philosophy and 
     understanding of the Constitution. His rulings from the bench 
     in many areas of great import to the Reform Movement, and the 
     views he expressed while working at the Department of 
     Justice, demonstrate to us that he should not be confirmed.
       As a religious minority, our community has historically 
     been committed to maintaining a strong wall of separation 
     between church and state. We see nothing in Judge Alito's 
     background to suggest he shares our commitment. In fact, in 
     his 1985 job application to the Reagan Justice Department, 
     Judge Alito wrote that one of the very reasons he became 
     interested in constitutional law was his ``disagreement'' 
     with the Warren Court's decisions regarding the Establishment 
     Clause. His opinions as a sitting judge have been consistent 
     with this claim. In ACLU-NJ v. Schundler, Judge Alito said it 
     was constitutional to have a holiday display consisting of a 
     creche (a representation of the infant Jesus in the manger), 
     a menorah, a Christmas tree, and other ``secular holiday'' 
     displays in front of the entrance to the main city government 
     building. Again evidencing his lack of commitment to 
     Establishment Clause values, in ACLU of New Jersey v. Black 
     Horse Pike Regional Board of Education, Judge Alito's 
     dissenting opinion argued that it was constitutional for a 
     public school district to allow prayer at graduation 
     ceremonies. Later, in a similar case involving school prayer 
     the Supreme Court disagreed. The statements in Judge Alito's 
     1985 job application and the aforementioned cases illustrate 
     his indifference (at best) to the constitutional protections 
     separating church and state; safeguards that have been the 
     linchpin protesting religious liberty for all Americans.
       A longtime advocate for women's rights and reproductive 
     choice, the Reform Movement is also deeply concerned by Judge 
     Alito's views on reproductive rights. During his time as an 
     attorney in the Solicitor General's office, Judge Alito 
     helped author the Reagan Administration's amicus brief in 
     Thornburgh v. American College of Obstetricians and 
     Gynecologists which argued for overturning the Roe v. Wade 
     decision. Judge Alito also authored a 17-page memo to the 
     Solicitor General on how to ``advance the goals of 
     bringing about the eventual overturning of Roe v. Wade . . 
     .'' Further, in his 1985 job application to the Reagan 
     Justice Department he wrote of his work in the Solicitor 
     General's office saying, ``it has been a source of 
     personal satisfaction to me . . . to help advance legal 
     positions in which I personally believe very strongly. I 
     am particularly proud of my contributions to recent cases 
     in which the government has argued in the Supreme Court 
     that . . . the Constitution does not protect a right to an 
     abortion.'' This dedication to the ``advancement'' of 
     reversing Roe is also clearly illustrated by his 
     dissenting opinion in Casey v. Planned Parenthood (1991). 
     Judge Alito would have upheld a provision of 
     Pennsylvania's restrictive anti-abortion law requiring a 
     woman to notify her husband before obtaining an abortion. 
     His colleagues on the Third Circuit disagreed and the 
     Supreme Court overturned the Pennsylvania provision (with 
     Justice O'Connor casting the deciding vote). The Court's 
     majority opinion found that the provision Judge Alito 
     would have upheld reverted back to the days when ``a woman 
     had no legal existence separate from her husband.''
       So often our nation's courts ensure civil rights and civil 
     liberties that are otherwise unprotected by flawed systems 
     and discriminatory actions. In order to continue 
     administering justice and equality for all, individuals with 
     grievances must have access to the courtroom. Here, too, the 
     record suggests that Judge Alito does not share our 
     commitment to this fundamental principle. In split decisions 
     on the merits of claims alleging violations of the civil 
     rights of racial minorities, women, seniors, and people with 
     disabilities, Judge Alito has consistently ruled with the 
     defendants. In 16 of 24 such cases, Judge Alito has voted to 
     deny litigants the right to even bring their suit before the 
     court. For example, in Bray v. Marriott Hotels, involving 
     claims of race discrimination, the Court majority sharply 
     criticized Judge Alito's dissent, stating that his ``position 
     would immunize an employer from the reach of Title VII'' in 
     certain circumstances. In Public Interest Research Group v. 
     Magnesium Elektron, another case involving access to the 
     courtroom, Judge Alito again voted to make it harder for 
     citizens to establish standing to sue, this time concerning 
     toxic emissions that violate the Clean Water Act.
       Judges, especially those selected to serve on the highest 
     court in our land, must be committed to upholding our 
     foundational principles of liberty and equality. Judge 
     Alito's record leaves us with serious doubts as to his 
     ability to safeguard these rights that we as a Movement, and 
     a nation, hold so dear. Here, with the stakes so high--a 
     lifetime appointment to the nation's highest court, replacing 
     a pivotal Justice who was often the ``swing vote'' in key 
     areas--we cannot afford such doubts.
       We, therefore, urge you to oppose the nomination of Judge 
     Samuel Alito Jr. to the Supreme Court of the United States, 
     and we

[[Page S85]]

     stand ready to discuss our concerns with you or your staff in 
     greater detail.
           Respectfully,
     Rabbi David Saperstein,
       Director, Religious Action Center of Reform Judaism.
     Jane Wishner,
       Chair, Commission on Social Action of Reform Judaism.
                                                  National Council


                                              of Jewish Women,

                                                November 29, 2005.
     Hon. Arlen Specter,
     Chairman, Senate Judiciary Committee, Hart Senate Office 
         Building, Washington, DC.
       Dear Chairman Specter: I am writing to you on behalf of 
     90,000 members and supporters of the National Council of 
     Jewish Women (NCJW) to express our strong opposition to the 
     nomination of Judge Samuel A. Alito, Jr. to fill the seat of 
     Justice Sandra Day O'Connor on the U.S. Supreme Court. We 
     have decided to oppose Judge Alito for many reasons, most 
     notably because of his record concerning the right to 
     privacy, his views on civil rights and women's equality, and 
     his support for weakening the wall of separation between 
     religion and state. In light of this record, NCJW believes 
     that Judge Alito should not be confirmed for a lifetime 
     position on the Supreme Court.
       When Justice Sandra Day O'Connor announced her intention to 
     retire from the Supreme Court, NCJW called upon President 
     Bush to seek a mainstream consensus nominee that would unite 
     and not divide the nation. Instead, he has selected a nominee 
     who is deeply ideological with a demonstrated commitment to 
     pulling the court to the far right.
       Judge Alito is clearly not a nominee in the tradition of 
     Justice O'Connor, who sought to balance competing interests 
     and adopted a pragmatic approach to the law. Rather, over the 
     course of his career, Judge Alito has ruled to severely 
     restrict a woman's constitutional right to abortion and 
     against civil rights protections for both women and 
     minorities. He has shown a cramped view of the power of 
     Congress to legislate, ruling, for example, that Congress 
     lacked authority to ban fully automatic machine guns and that 
     Congress overstepped its bounds in passing the Family and 
     Medical Leave Act.
       With the withdrawal of the nomination of Harriet Miers to 
     the Supreme Court, it became clear that the extreme right 
     wing was determined to see a justice confirmed who would 
     implement their agenda from the bench. Judging from his 
     record, Samuel Alito appears to be just such a nominee. We 
     are extremely disappointed that the President chose this path 
     and gave in to those forces demanding a nominee dedicated to 
     rolling back fundamental constitutional rights, rather than 
     protecting them. We urge the Senate to reject Judge Alito's 
     nomination.
       We applaud your intention to hold hearings that will 
     thoroughly explore Judge Alito's views and judicial 
     philosophy. While we hope that he will be candid in his 
     answers, the hearing is only part of the record that senators 
     must take into consideration as they determine whether or not 
     a nominee is fit to be confirmed to be an Associate Justice 
     of the Supreme Court. With the stakes so high, it is all the 
     more critical that the Senate take into account Alito's 
     entire record--not just his brief appearance before the 
     Judiciary Committee. President Bush must immediately turn 
     over all of the records requested by the senators. And Judge 
     Alito must now be forthcoming regarding his judicial 
     philosophy and views on settled legal questions.
       NCJW believes that the most basic qualification for a 
     lifetime seat on the federal bench is a commitment to 
     fundamental rights and freedoms. What we know of Judge 
     Alito's record raises sufficient doubt that he meets that 
     essential qualification and therefore we urge the Committee 
     to reject his confirmation.
           Sincerely,
                                                   Phyllis Snyder,
                                                   NCJW President.

  Mr. REED. Mr. President, nearly two centuries ago, Alexis de 
Tocqueville observed that ``there is hardly a political question in the 
United States which does not sooner or later turn into a judicial 
one.''
  As was the nomination of John Roberts to replace Chief Justice 
Rehnquist, the nomination of Samuel Alito to replace Associate Justice 
Sandra Day O'Connor, upon her retirement, is an extremely important 
moment for our Nation.
  The Constitution makes the Senate an active partner, along with the 
President, in the confirmation of a Supreme Court nominee. Article II, 
section 2, clause 2 of the Constitution states that nominees to the 
Supreme Court shall only be confirmed ``by and with the Advice and 
Consent of the Senate.'' The Senate's role in the confirmation process 
places an important democratic check on America's judiciary.
  As a result, this body's consent is both a constitutional requirement 
and a democratic obligation. It is in upholding our constitutional duty 
as Senators to give the President advice and consent on his nominations 
to Federal courts that I believe we have our greatest opportunity and 
responsibility to support and defend the Constitution of the United 
States.
  In our consideration of the nomination of Chief Justice Roberts last 
fall, I stated my test for a nominee to the Supreme Court. It is a 
simple test, one drawn from the text, the history, and the principles 
of the Constitution. As I said then, a nominee's intellectual gifts, 
experience, judgment, maturity, and temperament are all important. But 
these alone are not enough.
  In addition, a nominee to the Supreme Court must live up to the 
spirit of the Constitution. A nominee must not only commit to enforcing 
the laws, but to doing justice. A nominee must give life and meaning to 
the great principles of the Constitution: equality before the law, due 
process, freedom of conscience, individual responsibility, and the 
expansion of opportunity.
  It is these principles that ensure full and equal participation in 
the civic and social life of America for all Americans. A nominee to 
the Supreme Court must make these constitutional principles resonate in 
a rapidly changing world.
  In my view, Judge Alito has not met this test. In his personal 
writings from his time in the Reagan Department of Justice, he has 
outlined a view of the Constitution that is narrow, restrictive, and 
backward-looking on issue after issue. He has pursued this vision 
through both the clients he has chosen to represent and the causes he 
has chosen to advocate.
  In addition, his opinions on the Third Circuit Court of Appeals have 
shown the impact of his personal philosophy on his role as a judge. Too 
many times he has read constitutional clauses and statutes in a narrow 
and cramped way to protect the Government or big corporations instead 
of ordinary Americans. In case after case, and in his testimony before 
the Judiciary Committee, Judge Alito has failed to show a commitment to 
protecting the spirit of the Constitution.
  Indeed, during his hearings, he had a chance to answer questions 
about his prior writings and rulings in a clear manner. Instead, Judge 
Alito opted to speak in broad platitudes and failed to answer key 
questions in a manner that would qualify or put in adequate context his 
prior writings and rulings.
  Part of the genius of the Constitution that our Founding Fathers 
drafted is that it fulfills two functions at once. It is a blueprint 
for our Nation to govern itself through a system of checks and 
balances. It is also a charter of the rights and liberties of the 
American people. I am deeply concerned about Judge Alito's views in 
both of these areas. Judge Alito's record on the Third Circuit shows he 
has joined or agrees with a movement to undermine the ability of 
Congress to protect the American people through restrictive 
interpretations of the Commerce Clause and the 14th amendment. The 
Supreme Court, in recent years, has struck down more acts of Congress 
than ever before. By narrow 5-to-4 margins, in cases such as United 
States v. Lopez and United States v. Morrison, the Court has drifted 
from longstanding Supreme Court precedents to invalidate portions of 
the Gun-Free School Zones and the Violence Against Women Acts.
  Judge Alito would go even further. In his dissent in the case of 
United States v. Rybar, he advocated striking down Congress's ban on 
the transfer and possession of machineguns. Alito's opinion diverged 
not just from the majority in his own Third Circuit but also from five 
other courts of appeals that had already found the law to be a 
constitutional expression of Congress's authority.
  Yet Judge Alito argued that he was not convinced by Congress's 
findings on the impact of machineguns 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 deference that the 
judiciary owes to its two coordinate branches of government.'' Every 
other circuit has since disagreed with Judge Alito's views on this 
case, and the Supreme Court has concurred in these circuit court 
decisions.
  Judge Alito's divergence from mainstream constitutional views on this 
issue is particularly disturbing because it echoes personal views on 
congressional authority he has expressed in other contexts. For 
example, while

[[Page S86]]

working in the Reagan administration, he argued in a memo that the 
Truth in Mileage Act of 1986 ``violates the principles of freedom'' and 
should be vetoed by the President. This Federal law requires a seller 
to disclose the vehicle's mileage on the title when ownership is 
transferred. Congress enacted this law to prohibit odometer tampering 
and to protect consumers from mileage fraud. Samuel Alito argued that 
it was the States, and ``not the federal government,'' that should 
protect American citizens.
  Not only does Judge Alito have an unusually narrow view of the 
Commerce Clause, it also appears that he would restrict Congress's 
ability to pass laws under section 5 of the 14th amendment. This clause 
states that ``Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article.'' Those provisions include 
some of our most fundamental constitutional principles, including due 
process and the equal protection of the law.
  Congress has acted under the authority of this clause to protect the 
rights of women and minorities, to ensure religious freedom, and to 
guarantee civil rights for the elderly and the disabled. But based upon 
his writings and rulings, Judge Alito would severely limit the meaning 
of this clause. In Chissiter v. Department of Community and Economic 
Development, he found the sick leave provisions of the Family and 
Medical Leave Act to be unconstitutional because he believed that 12 
weeks of leave was ``out of proportion'' to the gender discrimination 
that Congress wished to remedy. Here again, Judge Alito relied on his 
own policy preferences to strike down the measured judgment of 
Congress.
  In the case of Nevada Department of Human Resources v. Hibbs, the 
Supreme Court explicitly upheld the family leave provisions of the act 
by a 6-to-3 vote. Where Alito had questioned the judgments of Congress, 
the Hibbs majority, including Justices Rehnquist and O'Connor, found 
that, in their words:

       The [Family Medical Leave Act] is narrowly targeted at the 
     fault line between work and family--precisely where sex-based 
     overgeneralization has been and remains strongest.

  The possible consequences of this tendency by Judge Alito to second-
guess the policy judgments of Congress and to replace them with his own 
policy preferences are profound. They go beyond any single act of 
Congress or any single area of policy. As just one example, this year 
the Supreme Court will consider a pair of cases on the 
constitutionality of the Clean Water Act. These cases challenge whether 
Congress can protect wetlands and tributaries through its commerce 
clause power. If the Supreme Court, with a recently confirmed Judge 
Alito, adopts a more restrictive view of the commerce clause and the 
14th amendment, it could limit our ability to protect our country's 
wetlands, let alone our national interests in area after area.
  At the same time that Judge Alito has advocated for a narrower vision 
of Congress's constitutional authority, he has argued that the powers 
of the executive branch should be nearly unlimited. In a 2001 speech to 
the Federalist Society, Judge Alito stated that since the 1980s, he had 
believed in the ``theory of the unitary executive.'' In the Judiciary 
Committee hearings, Judge Alito denied any connection between the 
unitary executive theory and the scope of Executive power. But scholars 
and judges have drawn from this theory to advance expansive views of 
the executive.
  For example, in Hamdi v. Rumsfeld, the Supreme Court reviewed the 
President's claim that he could indefinitely detain an American citizen 
without bringing charges or giving him a day in court to challenge the 
detention. Eight of the nine Supreme Court Justices rejected the 
President's claim, and Justice O'Connor wrote in her plurality opinion 
that ``a state of war is not a blank check for the President when it 
comes to the rights of the Nation's citizens.''
  In a lone dissenting opinion, Justice Thomas deployed the unitary 
executive theory to support broad Presidential powers. He wrote that 
congressional or judicial interference in foreign affairs or national 
security ``destroys the purpose of vesting the primary responsibility 
in a unitary Executive.''
  In view of the long scope of American constitutional history, the 
unitary executive theory is a relatively recent invention. It was a 
creation of the Reagan Justice Department in the 1980s. And according 
to his speeches, Judge Alito has subscribed to it since working there. 
While he worked in the Reagan administration, Judge Alito proposed a 
particular idea to, in his words, ``increase the power of the Executive 
to shape the law.''
  In a 1986 memorandum, Alito argued that the President should issue 
statements when signing a bill because the President's ``understanding 
of the bill should be just as important as that of Congress.'' The 
administration has followed Judge Alito's 1986 advice. For example, 
just recently, the President issued a signing statement regarding the 
McCain amendment which prohibits torture. In that statement, the 
President wrote that he would construe the McCain amendment ``in a 
manner consistent with the constitutional authority of the President to 
supervise the unitary executive branch.''
  The practice Judge Alito first advocated in the mid-1980s arguably 
helps the executive to thwart the will of Congress when it passes a 
law. While the current Supreme Court has not given weight to these 
signing statements interpreting the meanings of acts of Congress, I 
worry how a possible Justice Alito would view these Presidential 
statements should they come before him on the Supreme Court.
  I think Judge Alito's view of the unitary executive is wrong and 
violates the text and the spirit of the Constitution. In Federalist 
Paper No. 47, James Madison explained how the Constitution deliberately 
divided power among the branches of Government. Rather than create a 
unitary executive, the Framers created a careful and thoughtful system 
of checks and balances between all three branches of Government. They 
were very weary of concentrating too much power in any one branch of 
Government. As the McCain amendment demonstrates, Congress plays a 
vital role in placing limitations on Executive power, but so do and 
must the courts.
  In the near future, the Supreme Court will hear further cases in this 
area. Perhaps the President's claimed authority to conduct warrantless 
surveillance of Americans in violation of congressional statutes will 
come before the Court. In this time of crisis in particular, we need to 
have Supreme Court Justices committed to the balance and separation of 
powers between the three branches of Government. Despite Judge Alito's 
statements that no one is above or beneath the law, Judge Alito's 
record and views on the unitary executive give me pause. If Judge Alito 
believes that under the Constitution the President can determine what 
laws apply to him and how they apply, then he is essentially giving 
away the power of the Supreme Court as well as the power of Congress.

  Ever since Marbury v. Madison, it has been ``emphatically the 
province and duty of the judicial department to say what the law is. 
Those who apply the rule to particular cases must of necessity expound 
and interpret that rule. If two laws conflict with each other, the 
courts must decide on the operation of each.'' That settled doctrine, 
Marbury v. Madison, clashes with this notion of a unitary executive who 
can declare the law for himself and thus make himself exempt from the 
law.
  Judge Alito's support for a powerful and unitary executive is 
exacerbated by his 15-year circuit court record of repeatedly deferring 
to government officials when American's civil rights and liberties lie 
in the balance. As I mentioned earlier, this is the other function the 
Founding Fathers created for the Constitution. The Framers included the 
fourth amendment in the Bill of Rights to protect Americans against 
unreasonable government searches and seizures. It was a response to the 
abuses of the British in the years leading up to the American 
Revolution. Yet time and again, Judge Alito has deferred to police, 
prosecutors, and other governmental agents instead of ordinary 
Americans.
  Judge Alito wrote in his now famous 1985 job application essay that 
he disagreed with the Warren Court's criminal procedures decisions. 
These include famous cases in the development of American liberties--
for example, Miranda v. Arizona, which sets forth

[[Page S87]]

rights for the accused; or Katz v. the United States, which prohibited 
warrantless electronic surveillance; or Gideon v. Wainwright, which 
guaranteed every American the right to a lawyer. There is little doubt 
that Judge Alito's personal views in this area have carried over to his 
time on the bench.
  As Professor Goodwin Liu testified before the Judiciary Committee, in 
fourth amendment cases, Judge Alito has not one time taken a position 
more protective of individual rights than his colleagues on the Third 
Circuit. These include cases where there were defective warrants, where 
agents conducted warrantless electronic surveillance, or where police 
used excessive force against unarmed individuals. Indeed, the 
Washington Post found that Judge Alito had sided with the government in 
these cases over 90 percent of the time, whereas other appeals court 
justices nationwide only sided with the government 54 percent of the 
time. In the face of government officials, the dignity, autonomy, and 
rights of individual Americans have carried less weight for Judge 
Alito.
  As just one example, his dissent in the 2004 case of Doe v. Groody 
would have upheld the strip search of a mother and her 10-year-old 
daughter even though they were not named in the search warrant for the 
house. Judge Michael Chertoff, who wrote the majority opinion in the 
case and who is now the Secretary of Homeland Security, said that Judge 
Alito's opinion of the case, if adopted, could ``transform the judicial 
officer into little more than the cliche `rubber stamp.'''
  Judge Chertoff's quote is an apt summation of my concern over the 
nomination of Judge Alito. American courts cannot become a rubberstamp 
blotting out the constitutional rights of our citizens. But from 
women's rights to workers' rights and reproductive freedom to religious 
freedom, Judge Alito's writings and rulings reveal insensitivity to the 
judiciary's role in protecting the charter of freedoms enshrined in our 
Constitution.
  The first amendment protects Americans' religious liberties through 
two clauses that work in tandem: the free exercise clause and the 
establishment clause. I worry that if confirmed, Judge Alito would 
upset the careful balance the Founders sought in constructing the first 
amendment. In fact, Judge Alito seems to interpret the establishment 
clause as a rarely applicable part of the first amendment. He applies 
the free exercise clause on a much broader basis, often interpreting 
establishment clause cases as free exercise cases. He seems to see a 
plaintiff's complaint of establishment clause violations as attempts to 
block the free exercise of religion.
  Judge Alito's views appear to have been developed well over 20 years 
ago on these issues. In his 1985 job application essay, Judge Alito 
wrote that he disagreed with the Warren Court's establishment clause 
decisions. These rulings prohibited government-sponsored prayer in 
public schools, protected students who are members of minority 
religious faiths, and prevented State interference with and 
entanglement in America's religious liberty.
  Judge Alito's record on the bench supports a troubling view of the 
establishment clause. For example, he joined a dissenting opinion in 
the case of ACLU of New Jersey v. Black Horse Pike Regional Board of 
Education, supporting student-led prayer at official, school-sponsored 
high school graduation ceremonies. The Supreme Court, in an opinion 
joined by Justice O'Connor, has since explicitly rejected this approach 
in Santa Fe Independent School District v. Doe and as recently as last 
year has sought a careful balance in establishment clause cases such as 
ACLU v. McCreary County.
  In summary, in ACLU of New Jersey v. Black Horse Pike Regional Board 
of Education, the Third Circuit majority determined that a student-led 
prayer at a graduation ceremony violated the establishment clause.
  Judge Alito joined the dissent in arguing that the establishment 
clause does not prohibit a high school graduation prayer. The school 
board involved had decided to allow graduating students to vote whether 
they wished to have a prayer, a moment of silence, or neither at their 
graduation ceremony. The students voted for prayer. Citing Wallace v. 
Jaffree and Board of Education v. Barnette, the Third Circuit majority 
said:

       An impermissible practice cannot be transformed into a 
     constitutionally acceptable one by putting a democratic 
     process to an improper use.

  Judge Alito joined the dissenting opinion written by Judge Mansmann, 
stating that ``the establishment clause should not be read to prohibit 
activity which the free exercise clause protects.'' The dissent argued 
that the Supreme Court in Lee had not decided any broad constitutional 
precedents against prayer at graduation ceremonies, stating the facts 
in the case were wholly different, as the graduates, not the principal, 
maintained control over the ceremony, thereby avoiding the appearance 
of a state actor. The dissenters wrote:

       The establishment clause should not be used for imposing 
     content-based restrictions on religious speech in a public 
     forum under the appropriate scrutiny analysis.

  The dissent further criticized the Lemon test established in Lemon v. 
Kurtzman, pointing to a ``division'' existing on the Supreme Court ``as 
to whether the establishment clause precludes the government from 
conveying a message that endorses or encourages religion in a generic 
sense, or especially acknowledges or accommodates the broad Judeo-
Christian heritage of our civil and social order.'' It also concluded:

       [A]n absolute prohibition on ceremonial prayer at 
     graduation would . . . violate the Free Exercise Clause by 
     unduly inhibiting the practice of religion, and would also 
     implicate the free speech guarantees of the First Amendment.

  In another case, Child Evangelism Fellowship of New Jersey v. 
Stafford Township School District, Judge Alito wrote an opinion 
requiring a school to distribute a proselytizing religious group's 
literature to elementary school students under the Equal Access Act. 
Judge Alito dismissed the school district's concerns that students 
would perceive distribution of the religious fliers as endorsement of 
religion. Again, Judge Alito's view in this area of the law differed 
from that of the Supreme Court. Justice O'Connor's opinion in Board of 
Education v. Mergens, for example, carefully distinguished between 
requiring access to school facilities--which was acceptable under the 
Equal Access Act--and requiring the active involvement of school 
officials and teachers, which could have an inappropriately coercive 
effect.
  Although I could discuss more cases, the basic point I want to make 
here is that I believe Judge Alito would upset the careful balance 
between the Free Exercise and Establishment Clauses of the First 
Amendment, allowing majority religious views to prevail over minority 
views, and leading to an inappropriate Government coercive effect on 
religious practice.
  As Justice O'Connor states in McCreary:

       At a time when we see around the world the violent 
     consequences of the assumption of religious authority by 
     government, Americans may count themselves fortunate: Our 
     regard for the constitutional boundaries has protected us 
     from similar travails, while allowing private religious 
     exercise to flourish . . . Those who would renegotiate the 
     boundaries between church and state must therefore answer a 
     difficult question: Why would we trade a system that has 
     served us so well for one that has served others so poorly?

  I believe Judge Alito would make that trade.
  Consider another area. The Federal Courts play an important role in 
enforcing American workers' access to fair and safe working conditions, 
while protecting their right to organize, and providing a forum for 
remedying wrongful discrimination. Yet, as a judge, Alito has 
consistently tried to limit the reach of Congress' workplace statutes, 
and to make it more difficult for plaintiffs to bring legal claims. For 
example, in RNS Services v. Secretary of Labor, the Third Circuit 
majority found that the Mine Safety and Health Review Commission had 
jurisdiction over the work and safety conditions of employees at coal 
processing sites. But Judge Alito disagreed, siding with the employer 
by interpreting the statute and case law restrictively. One academic 
study has found that Judge Alito has sided with the employee or union 
in only 5 out of 35 labor opinions he has written. These are decisions 
that have real world effects on working people, as the recent mining 
accidents in West Virginia demonstrate all too clearly.

[[Page S88]]

  As far as a woman's right-to-choose is concerned, in his 1985 job 
application, Samuel Alito wrote that he was proud of his work in the 
Reagan administration advancing a ``legal position'' that he 
``personally believe[d] very strongly.'' Namely, that ``the 
Constitution does not protect the right to an abortion.'' Let me make 
clear, he did not say that he thought abortion was wrong; he wrote that 
the Constitution did not protect a woman's right to choose. This is a 
view that he advanced as a lawyer and then a circuit judge, and that he 
did nothing to dispel in his Judiciary Committee hearings.
  In his work for the Reagan Justice Department, Alito wrote a memo 
with a strategy for ``bringing about the eventual overruling of Roe v. 
Wade'' by chipping away gradually at privacy and reproductive rights. 
In the case of Planned Parenthood of Southeastern Pennsylvania v. 
Casey, Judge Alito used his dissent to argue for a constitutional 
interpretation that would do just that, chip away at the protections 
for the freedom to choose. The Supreme Court explicitly rejected 
Alito's opinion, with Justice O'Connor writing that the State ``may not 
give to a man the kind of dominion over his wife'' that Judge Alito 
would have accepted. Judge Alito's record in this area is long and 
clear, and I am disappointed that rather than openly answer the 
questions of Senators on the Judiciary Committee, he responded with 
obfuscating statements about the judicial process.
  The Supreme Court has been a leader in safeguarding all kinds of 
civil rights, through momentous cases like Brown v. Board of Education, 
and through its application of historic laws of Congress like the Civil 
Rights Act of 1964. Victims of racial, gender, age, or disability 
discrimination can find remedies in the Federal Courts. But from my 
reading of his record, Judge Alito has repeatedly used procedural and 
evidentiary requirements to make it more difficult for plaintiffs to 
vindicate their civil rights claims. One study of discrimination cases 
heard by Judge Alito in which the panel was divided concluded that he 
sided against civil rights protections 85 percent of the time, more 
than any other judge on the Third Circuit.
  For example, in the case of Bray v. Marriott Hotels, the Third 
Circuit said that an African-American woman denied a promotion in favor 
of a white woman, when the company had not followed its policy, should 
have a chance to present her case before a jury. Judge Alito disagreed, 
saying that this would ``allow disgruntled employees to impose the 
costs of trials on employers.'' As the majority in the case noted, 
under Judge Alito's view Title VII ``would be eviscerated.''
  I know Judge Alito spoke in the hearings about his own family's 
history as immigrants to the United States. America's courts have 
played a crucial role in reviewing the immigration, deportation, and 
asylum decisions of the Federal Government and the Board of Immigration 
Appeals (BIA). As the noted conservative Judge Posner recently wrote, 
his appellate court reversed the Board of Immigration Appeals 40 
percent of the time last year, mitigating the at-times harsh, unequal, 
and unfair application of our immigration laws. In the hearings, Judge 
Alito said he agreed that the way BIA cases are handled ``leaves an 
enormous amount to be desired.'' Yet immigrants who have appealed these 
decisions have found no place of refuge in Judge Alito's courtroom. 
According to one academic study, Judge Alito sided with the BIA in 7 
out of 9 opinions he has written on asylum, and in 7 out of 8 other 
immigration opinions he has authored. I believe that the spirit of our 
laws and the history of our country require that immigrants to our 
shores are assured fair and full hearings.
  In his application to the Reagan Justice Department in 1985, Samuel 
Alito wrote that his interest in constitutional law had been 
``motivated in large part by disagreement with Warren Court decisions'' 
about voting rights. These landmark decisions, in cases like Baker v. 
Carr and Reynolds v. Sims, have enshrined the bedrock principle of 
``one person, one vote'' into our Constitution. They have protected the 
right of all Americans to have an equal share in our democracy, 
regardless of the color of their skin or the location of their home.

  While Judge Alito backed away from these strong statements in his 
confirmation hearings, his opinion in a voting rights case he heard on 
the Third Circuit calls that statement into question. In the case of 
Jenkins v. Manning, Judge Alito joined an opinion rejecting the 
African-American plaintiffs' challenge to the voting system for the 
local school board. The dissenting judge in the case wrote that Judge 
Alito's side had ``overlooked the broad sweep of the Voting Rights Act 
of 1965 and its 1982 amendments'' which that judge noted ``is widely 
considered to be the most successful piece of civil rights legislation 
ever enacted by Congress.'' The Supreme Court continues to regularly 
hear cases about the ability of Americans to participate fairly and 
equally in our democracy, and I believe a nominee to the Supreme Court 
should clearly and emphatically treasure and respect the Court's role 
in safeguarding voting rights, rather than minimizing it.
  At the hearings before the Judiciary Committee, Judge Alito attempted 
to distance himself from his record and the constitutional views he has 
advocated throughout his career. An attorney must vigorously serve the 
interests of his client, but in the case of Judge Alito, he chose his 
clients--political offices in Republican Justice Departments--precisely 
because of the constitutional agenda it allowed him to advance. So, I 
do not accept Judge Alito's plea that we should not evaluate him based 
on the constitutional values he advanced through political positions.
  I also have not been convinced by Judge Alito's vague rhetoric during 
the hearings about following the judicial process, or his begrudging 
acknowledgment that important Supreme Court cases were indeed 
``precedents of the Court.'' While judges on the Federal circuit courts 
are circumscribed by Supreme Court precedent, there is no higher court 
to bind the Justices of the United States Supreme Court. Decisions of 
the Supreme Court are binding on all lower courts, so even if a circuit 
judge disagrees with well-established precedent about the rule of law, 
he or she must follow that law. But this is not true of the Supreme 
Court.

  As Justice Frankfurter once wrote:

       It is because the Supreme Court wields the power that it 
     wields that appointment to the Court is a matter of general 
     public concern and not merely a question for the profession. 
     In truth, the Supreme Court is the Constitution.

  It goes without saying that the constitutional views of the Justices 
determine the rulings of the Supreme Court. In response to questioning 
during the hearings, Judge Alito pledged to put aside his personal 
views. But in his writings and speeches, including his 1985 job 
application, Judge Alito didn't just record his personal political 
views; he wrote down his views about what the Constitution means--about 
what rights it contains, and what limits it places on Government. To be 
clear, this is exactly what it means to serve on the Supreme Court and 
interpret the Constitution.
  America's courtrooms are staffed with judges, not machines, because 
justice requires human judgments. This is particularly so on the 
Supreme Court. Of all the hundreds of thousands of cases filed in 
American Federal Courts each year, only about 80 reach the Supreme 
Court. These are the hardest of cases, cases that have divided the 
country's lower courts. These are cases where one constitutional clause 
may be in conflict with another; where one statute may influence the 
interpretation of another; and where one core national value may 
interfere with another. These cases often divide the Justices of the 
Court by close margins. Surely the Justices on both sides of a 5 to 4 
case can claim to be following the judicial process and respecting the 
precedents of the Court. What divides their opinions is the set of 
constitutional values that they bring to the case. Judge Alito's 
testimony before the Judiciary Committee suggests a failure either to 
understand or to acknowledge the impact of his own constitutional views 
on the outcome. of cases that he hears.
  Given his lengthy record and his extensive statements about what the 
Constitution means, the burden was on Judge Alito to convince the 
Senate that he would be a judicious and balanced member of the Supreme 
Court.

[[Page S89]]

The questions he was asked by members of the Judiciary Committee gave 
him numerous opportunities to do so. Judge Alito did not meet this 
burden. He failed to inform this body of his views on important 
constitutional issues, he evaded fair and important questions instead 
of offering honest and insightful answers, and he in no way 
demonstrated that he would uphold not just the letter of the law, but 
also its spirit.
  As a result, I cannot support his lifetime nomination to the highest 
court in America.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mrs. MURRAY. Mr. President, I rise this evening to discuss my vote on 
the confirmation of Judge Samuel Alito, Jr., to the U.S. Supreme Court. 
After meeting with Judge Alito and studying his record and comparing 
his answers to my criteria for judicial nominees, I have decided to 
vote against confirming Judge Samuel Alito, Jr., as an Associate 
Justice of the U.S. Supreme Court.
  The next Justice will have the power to change the Court, change the 
country, and change our rights for generations. Judge Alito has a very 
troubling record. In his hearing and in our private meeting he did not 
show that he will be an independent judge who will uphold the rights 
and liberties of all Americans. With our rights and freedoms on the 
line, I will not take a chance on Judge Alito because I have serious 
questions about his independence and his commitment to protecting our 
rights and our liberties.
  As with past nominees, I have evaluated this nominee based on my 
longstanding criteria, which ask: Is the nominee qualified, ethical, 
and honest? Will the nominee be fair, evenhanded, and independent? And 
will the nominee uphold the rights and liberties of all Americans?
  Personally, I got involved in politics because of another Supreme 
Court nomination, that of Clarence Thomas. At the time, I was 
frustrated that average Americans didn't have a voice in the process 
that affects them so much. I have worked to be the voice of working 
families in my State, and I have asked the questions they would ask. I 
am voting to protect their interests.
  I recognize the significance of a seat on the U.S. Supreme Court. The 
Constitution directs Senators to provide advice and consent on all 
judicial nominees, and the people of my home State of Washington have 
trusted me to be their advocate to safeguard their rights as I vote on 
judicial nominees.
  I take that responsibility very seriously. That is why I have 
reviewed Judge Alito's past writings, studied his answers to the Senate 
Judiciary Committee, and asked to meet with him in my office.
  A lifetime appointment to the Supreme Court is a tremendous grant of 
unchecked power. If the Supreme Court rules incorrectly, there is no 
option for appeal. There is no backstop. Any seat on the Supreme Court 
can affect our rights for generations. But there are three factors 
involved in this particular nomination that make it even more 
significant. Those factors are the times, the seat, and the process.
  First, I am well aware that we are living in historic times. Each 
day, it seems that the rights of the individuals and the power of 
government are being tested. We are at war overseas, we face threats 
from terrorism here at home, and the current administration is pushing 
the bounds of governmental power in remarkable ways.
  The Bush administration has arrested U.S. citizens and held them 
without access to the courts. It has run secret prisons around the 
world. It has expressed views on torture that put our own troops at 
risk. As we recently learned, the administration has been spying on 
American citizens without prior approval from a court. These are grave 
issues which will likely come before the Supreme Court. How that Court 
rules will affect the rights of our citizens, the balance of power 
between the branches of our Government, and the balance of power 
between our citizens and Government.
  So as I make my decision on this nominee, I am very mindful of the 
historic times we are living in and the serious questions this Supreme 
Court will address in the coming years.
  Secondly, I am very mindful of the seat that is open on the Supreme 
Court and its significance. Justice Sandra Day O'Connor was a pioneer 
in the field of law, and her decisions will shape the lives of the 
American people for generations to come.
  As I said when she announced her resignation, we live in a better 
America due to her 24 years of service on the Court. Justice O'Connor 
was often a swing vote on those critical decisions. Her successor could 
easily change the balance of power on the Court, which could 
dramatically shift the Court's ruling on so many issues. Because this 
is a swing seat that could tip the Court's balance of power, we need to 
make sure that the person we confirm is someone who will protect our 
rights and liberties.
  Some have suggested that I should just go along and support the 
President's nominee. That is not the way I make decisions. I have 
criteria that I use to evaluate all judicial nominees, and Judge Alito 
is no different.
  Third, I am also well aware of how Judge Alito came to be the 
President's nominee. The President, as we all remember, had nominated 
his counsel, Harriet Miers, to the High Court, but Ms. Miers was not 
acceptable to the rightwing of the President's party. I found it very 
interesting that before her nomination, Republicans were demanding an 
up-or-down vote on the Senate floor for anyone the President nominated. 
But when President Bush nominated Ms. Miers, suddenly we stopped 
hearing that urgent call for an up-or-down vote. In fact, Ms. Miers' 
nomination was killed by the President's own party, apparently because 
she did not meet the ideological test of the extreme right.
  I recount this history tonight not to diminish Judge Alito but to 
point out that his nomination comes before the Senate in the context of 
an ideological battle that has been created by the rightwing. When the 
President nominated Judge Alito, the rightwing cheered, confident that 
he would vote their way. That reaction gives me pause as to whether 
this nominee can keep an open mind on the issues that come before him. 
If the rightwing is so confident that he is going to vote their way, 
how can all of us be confident that he will put our country's needs 
first? That alone does not suggest that Judge Alito cannot be fair, but 
it did lead me to explore those questions diligently.
  Given the importance of the Supreme Court and the background of the 
times and the seat and the process, I began to evaluate how Judge Alito 
measured up to my standards for judicial nominees. Judge Alito's record 
contains some disturbing statements, rulings, and pronouncements that 
require detailed explanations. Does he still hold some of those views? 
In many cases, we don't know. I wish Judge Alito had been more 
forthcoming during his hearing. At the same time, many of the things he 
said and refused to say spoke volumes.
  As I noted earlier, my standards are simple: Is the nominee 
qualified, ethical, and honest? Will the nominee be fair and evenhanded 
and independent? And will the nominee uphold the rights and liberties 
of all Americans?
  I am very comfortable that Judge Alito is qualified, he is honest, 
and he is ethical. But whether he will be fair and evenhanded is 
another question. And, as was discussed at his hearing, he does have a 
troubling record for fighting for the government and corporations and 
against individuals. He seems to favor the entrenched power over the 
little guy. His record does not give me the confidence that everyone 
who comes before the Court will be treated fairly.
  I am also deeply concerned about Judge Alito's independence. We rely 
on our courts as a critical check and balance against government abuse. 
That independent check helps to protect our rights. This is especially 
important today because of the growing questions of the expansion of 
Executive power.
  The Supreme Court will need to evaluate whether recent Executive 
actions are constitutional. Here Judge Alito's unbalanced minority view 
of the scope of Executive power tells me he does not have the 
independence to be an adequate check on the Government's abuse of our 
rights.
  Finally, I have serious doubts that Judge Alito will uphold our 
rights and liberties. One example is his hostility

[[Page S90]]

to the right of privacy. In the hearings, he refused to say that Roe v. 
Wade is settled law, and he did not adequately explain his 1985 
statement that the Constitution does not protect a right to an 
abortion.
  Last year, when I voted to confirm, yes, Chief Justice John Roberts, 
I said I was choosing hope instead of fear and that Judge Roberts, 
through his answers, inspired such hope. Judge Alito, through his 
writings, his rulings, and his nonanswers, does not inspire confidence 
in me that he will protect all our rights. Because so much is on the 
line, because I do not believe he will be sufficiently independent or 
will uphold our rights and liberties, I will respectfully vote against 
his confirmation to the U.S. Supreme Court.
  Mr. President, I ask unanimous consent to print in the Record a 
letter from teachers around the country who have opposed this 
nomination.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                             Society of American Law Teachers,

                                                  January 9, 2006.
     Re The Society of American Law Teachers' Opposition to the 
         Nomination of Judge Samuel Alito to the United States 
         Supreme Court.

     Hon. Arlen Specter,
     Chair, Committee on the Judiciary, U.S. Senate, Washington, 
         DC.
     Hon. Patrick Leahy,
     Ranking Minority Member, Committee on the Judiciary, U.S. 
         Senate, Washington, DC.
       Dear Senators Specter and Leahy: The Society of American 
     Law Teachers (SALT) opposes--and urges all members of the 
     Senate Judiciary Committee to vote against--the nomination of 
     Judge Samuel Alito to the United States Supreme Court. SALT 
     is the largest organization of law professors in the United 
     States, representing more than 900 professors at more than 
     160 law schools. SALT has taken a position opposing only a 
     very few judicial nominations. It did not oppose the 
     nomination of Justice Roberts or Harriet Meirs. However, it 
     is deeply committed to civil rights, individual rights and 
     liberties, and an interpretation of federalism that retains a 
     robust role for Congress in protecting these rights. Judge 
     Alito's work in the United States Department of Justice and 
     fifteen year record on the United States Court of Appeals for 
     the Third Circuit evidence his disregard for all three. 
     Replacing Justice Sandra Day O'Connor with Judge Alito will 
     result in the Court shifting profoundly to the right.
       A Knight-Ridder comprehensive review of published opinions 
     written by Judge Alito concluded that Alito has worked 
     quietly but resolutely to weave a conservative legal agenda 
     into the fabric of the nation's laws . . . [His] record 
     reveals decisions so consistent that it appears results do 
     matter to him . . . [He] rarely supports individual rights 
     claims. . . [and] often goes out of his way to narrow the 
     scope of individual rights.
       While Judge Alito's opinions are devoid of explosive 
     language and appear to reflect a dispassionate application of 
     law to facts, he has used legal craftsmanship and existing 
     precedent in the service of predetermined results. As 
     Professor Lawrence Tribe has stated, ``I simply make a plea 
     to quit pretending that law, life and an individual's 
     assumptions about both can be entirely separated. . . .'' A 
     judge's values, beliefs and experiences do matter. Judge 
     Alito has undermined the protections of civil rights laws, 
     devalued individual rights, overturned or weakened federal 
     statutes, and narrowly reinterpreted precedent in the name of 
     dispassionate application of the law.

                  Undermining Civil Rights Protections


                       Employment Discrimination

       Judge Alito has engaged in an effort to eviscerate the laws 
     that seek to remedy violations of federal civil rights. This 
     effort can be seen in particular in an evaluation of his 
     opinions in the area of employment discrimination. Judge 
     Alito has written opinions in eighteen employment 
     discrimination cases and has sided with the plaintiff only 
     four times, which includes one case in which he sided with 
     white police officers challenging an affirmative action 
     policy. He has evinced deep skepticism about the 
     legitimacy of most discrimination claims and an 
     unwarranted belief that discrimination is rare in our 
     society.
       In three cases in which Judge Alito would have dismissed 
     claims of harassment, he displayed a lack of understanding of 
     the dynamics of harassment and hostile environment 
     discrimination and their impact on a victim's workplace 
     environment and psychological well-being. In one case, 
     writing for the court, he upheld the exclusion of a report 
     showing the harasser had previously harassed another woman 
     because ``the report in no way put the City on notice that 
     Dickerson was harassing Robinson.''
       In another case, Pirolli v. World Flavors, Inc., there was 
     an undisputed evidence that an employee with mental 
     disabilities had suffered sexually motivated, physically 
     abusive workplace harassment. The trial court dismissed 
     Pirolli's claim, calling the quite horrifying harassment mere 
     macho horseplay. In a 2-1 decision, the Third Circuit 
     reversed and sent the case back for trial. Judge Alito 
     dissented, not because Pirolli had failed to meet the legal 
     standard for sexual harassment, but because his brief never 
     explicitly asserted that he suffered from a work environment 
     that a reasonable person without mental retardation would 
     find hostile or abusive, even though all the necessary facts 
     had been alleged. In other words, Judge Alito would have 
     dismissed the case for sloppy brief writing. Additionally, he 
     would have held Pirolli to a higher standard of 
     reasonableness than the law requires. Judge Alito would have 
     compared Pirolli to a reasonable person without mental 
     retardation. The Supreme Court had previously emphasized in 
     Oncale v. Sundowner Offshore Services, Inc., Justice Scalia 
     writing for the majority, that the severity of the harassment 
     is to be judged from the perspective of a reasonable person 
     in the plaintiff's position--in this case, a reasonable 
     person with a mental disability.
       Lastly, in a dissenting opinion, Judge Alito would have 
     excluded evidence crucial to the victim's discrimination case 
     in Glass v. Philadelphia Electric Co. Mr. Glass had worked 
     for Philadelphia Electric for twenty-three years and received 
     only one job evaluation less than satisfactory. He applied 
     for and was denied many promotions. The employer explanation 
     was based part in on the one sub-par evaluation Glass had 
     received. Glass tried to present evidence that during that 
     time period he was assigned to a position where he was 
     subject to racial harassment and a hostile work environment. 
     Amazingly, Judge Alito's dissent argued that allowing Glass 
     to tell his side of the story might cause ``substantial 
     unfair prejudice'' and, failing to do so was, in any case, 
     harmless error.
       In several cases, Judge Alito would have granted summary 
     judgment depriving plaintiffs of their right to trial by 
     setting the evidentiary bar so high that it would be almost 
     impossible for a plaintiff to survive summary judgment. In 
     Sheridan v. E.I. de Nemours and Co., a hotel employee brought 
     suit for sex discrimination in the failure to promote her. 
     The District Court granted the employer summary judgment, and 
     the case was appealed to the Third Circuit. The issue was how 
     much evidence a victim of discrimination must present to get 
     her case to trial. In an en banc 10-1 decision in which Judge 
     Alito was the only dissenter, the majority overturned the 
     grant of summary judgment and sent the case back for trial. 
     The majority held that a plaintiff would survive summary 
     judgment if she made her prima facie case and presented 
     evidence of pretext to rebut the employer's evidence. 
     Judge Alito would have disregarded the evidence in 
     plaintiff's prima facie case if the employer presented 
     evidence of a non-discriminatory reason for its action and 
     would have required additional evidence of discrimination. 
     Judge Alito's approach misinterpreted a Supreme Court 
     case, St. Mary's Honor Society v. Hicks, regarding 
     litigants' shifting evidentiary burdens in Title VII 
     cases. The majority's interpretation of Hicks was 
     reaffirmed by the Supreme Court in Reeves v. Sanderson 
     Plumbing Products, Inc. Although the dispute in Sheridan 
     appears to be highly technical, it is central to whether 
     victims of discrimination will have their day in court.
       In another discrimination case in which Judge Alito 
     dissented from the reversal of a grant of summary judgment, 
     the majority said, ``Title VII would be eviscerated if our 
     analysis were to halt where the dissent suggests.'' An 
     African American woman was denied promotion and alleged race 
     discrimination. The issue was whether the employer's 
     evaluation that a white woman was the best candidate was the 
     result of discrimination. In spite of conflicting evidence, 
     Judge Alito would have simply accepted the employer's 
     judgment of who was the best candidate. The majority accused 
     Judge Alito of overstepping his judicial role and acting as a 
     fact finder in resolving the conflicting evidence in favor of 
     the employer. Judge Alito's hostility toward some employment 
     discrimination cases was reflected in his dissent:
       ``I have no doubt that in the future we are going to get 
     many more cases where an employer is choosing between 
     competing candidates of roughly equal qualifications and the 
     candidate who is not hired or promoted claims discrimination. 
     I also have little doubt that most plaintiffs will be able to 
     use the discovery process to find minor inconsistencies in 
     terms of the employer's having failed to follow its internal 
     procedures to the letter. We are allowing disgruntled 
     employees to impose the costs of trial on employers who, 
     although they have not acted with the intent to discriminate, 
     may have treated their employees unfairly.''
       Taken together, these cases reflect a palpable hostility 
     toward plaintiffs in employment discrimination cases.


                    Discrimination in Jury Selection

       Judge Alito has written troubling opinions in two death 
     penalty cases where the defendants challenged jury selection 
     as reflecting discrimination. The cases are troubling for 
     three reasons. First, they reflect a general hostility toward 
     civil rights. Second, they suggest that Judge Alito is among 
     the most conservative judges when it comes to the death 
     penalty (whereas Justice O'Connor was frequently the swing 
     vote in capital cases). Third, one of the cases reflects 
     Judge Alito's hostility to the use of statistics to prove 
     discrimination. This hostility is most troubling because 
     statistics have been an important element of proof in 
     creating an inference of discrimination or a discriminatory 
     impact.

[[Page S91]]

       While picking a grand jury in Ramseur v. Beyer, the judge 
     announced that he was not randomly selecting jurors because 
     he was trying to pick a cross section of the community, 
     instead asking some prospective jurors, including at least 
     two African Americans, to sit separately in the body of the 
     courtroom. An en banc divided Third Circuit ruled against 
     Ramseur's claim of an equal protection violation. Judge Alito 
     wrote a separate concurrence, making the astounding assertion 
     that defendants have no constitutional basis to challenge 
     a grand jury when certain racial groups were treated 
     differently in order to get a cross section jury. Equally 
     dismayingly, he suggested that defendants may not be able 
     to assert rights of jurors who are the victims of 
     discrimination with respect to grand jury jurors (although 
     the right is clearly established for challenges to regular 
     jurors). Judge Alito reached well beyond what was 
     necessary to decide the case in order to present radical 
     ideas in dicta.
       In Riley v. Taylor, the defendant was convicted of felony 
     murder and sentenced to death. Eventually he filed a motion 
     in federal court challenging his conviction on numerous 
     grounds, including that peremptory challenges were used 
     impermissibly to strike jurors based on race. The full Court 
     reversed his conviction, in part based on a violation of his 
     constitutional rights with respect to peremptory challenges. 
     Judge Alito filed a dissenting opinion. Ramsey presented 
     evidence that all three of the potential Black jurors were 
     struck in his trial and that prosecutors struck every 
     potential Black juror in all four murder trials held the same 
     year in Delaware County. Judge Alito completely discounted 
     the statistical evidence, writing that inferring 
     discrimination was no more reasonable than attempting to 
     explain why a disproportionate number of recent presidents 
     were left handed. As the majority noted, the analogy ignored 
     the underlying constitutional right and ``minimize[d] the 
     history of discrimination against prospective black jurors 
     and black defendants.'' Because of this history of 
     discrimination, courts have consistently held that, barring 
     another explanation by the defendant, statistics can aid in 
     proving discrimination. Judge Alito's approach would 
     completely discount reliance on statistics to help prove 
     discrimination and would fly in the face of years of judicial 
     decisions in discrimination cases.

                Endangering Core Legal Rights for Women

       In cases raising issues of gender discrimination, Judge 
     Alito has written troubling decisions in which he appears to 
     accept traditional notions of the subservient role of women 
     in society and to deny the separate rights of women to 
     control their own destiny.
       Judge Alito's record, both prior to and subsequent to 
     joining the bench, reflects clearly that he does not support 
     the constitutional right to choose and that his elevation to 
     the Supreme Court would endanger this fundamental right. In 
     1985, while in the Solicitor General's office, he wrote a 
     memo offering his own strategy for using the government's 
     brief in Thornburgh v. American College of Obstetricians and 
     Gynecologists to (1) advance the goal of bringing about an 
     eventual overruling of Roe v. Wade, and (2) in the meantime 
     to mitigate its effects by upholding even the most burdensome 
     barriers to abortion. In the same year, Judge Alito submitted 
     an application for a Justice Department promotion, wherein he 
     wrote that he was particularly proud of his contributions in 
     cases in which the government has argued to the Supreme Court 
     that the Constitution does not protect the right to an 
     abortion.
       Judge Alito's record in the Third Circuit demonstrates that 
     he has sought to implement his earlier views. In a concurring 
     opinion rejected by the majority and subsequently rejected by 
     the Supreme Court in Planned Parenthood v. Casey, Judge Alito 
     would have upheld a requirement that a woman notify her 
     husband before having an abortion. He discounted the 
     liberty and bodily integrity of the woman while showing 
     great concern for the husband's rights. Judge Alito's view 
     that the spousal notification provision in the law caused 
     no undue burden to women suggests that he believes a woman 
     loses her autonomy rights when she marries. Even in two 
     cases concerning abortion rights protections which had 
     previously been struck down by the Supreme Court and in 
     which Judge Alito was compelled to follow precedent, he 
     wrote narrow concurring opinions to insure that there was 
     no language that might support the upholding of Roe or 
     inhibit the ability to further narrow the right to choose.
       Just as Judge Alito has denied the liberty rights of women 
     to control their bodies, his decision striking down the 
     Family and Medical Leave Act demonstrates that he has no 
     understanding of the distinctive burdens women face in 
     juggling work and family. Likewise, his opinions have 
     demonstrated a lack of understanding of the dynamics of 
     sexual harassment and its detrimental impact on victims of 
     harassment. Even in cases involving fathers of unborn 
     children, Judge Alito's solicitude seems to apply only to 
     married couples. He has shown a lack of sympathy for 
     protection of people and couples who are unmarried. In an 
     immigration case, Judge Alito held that it was justifiable to 
     permit a husband, but not a fiance to contest a woman's 
     deportation to China where she fears coerced abortion of the 
     couple's unborn child. In another asylum case, Judge Alito 
     denied asylum to an Iranian woman who asserted she would be 
     persecuted for refusal to wear the traditional veil and for 
     her feminist beliefs if she returned to Iran. While 
     acknowledging that an asylum claim can be based on gender-
     based persecution, Judge Alito was not convinced that she 
     would be willing to actually defy the authorities and 
     therefore suffer the severe consequences alleged. In other 
     words, a woman must show her willingness to become a martyr 
     in order to prevail in the typical gender-based asylum case.

  An Expansive View of the Police Power at the Expense of Individual 
                                 Rights

       Judge Alito has advanced an expansive view of the police 
     power. His 1985 application to the Justice Department 
     expressed his disagreement with Warren Court decisions 
     concerning criminal procedure. Since ascending to the Third 
     Circuit, he has in criminal cases consistently deferred to 
     state courts, police, and prosecutors. In particular, he has 
     written a series of decisions narrowing the Fourth Amendment 
     protection against unreasonable search and seizure. Judge 
     Alito has sat on at least twelve panels in which judges 
     agreed regarding a citizen's Fourth Amendment rights. In each 
     case, Judge Alito adopted the view most supportive of the 
     government's position.
       One of the most troubling examples of Judge Alito's 
     expansive view of law enforcement authority is his dissent in 
     Doe v. Groody, where he voted to approve the strip search of 
     a mother and her ten-year-old daughter, even though the 
     search warrant obtained by the police did not name or refer 
     to either of them. As then Judge Michael Chertoff wrote, 
     Judge Alito's position threatened to turn the Constitution's 
     search warrant requirement into little more than a ``rubber 
     stamp.''
       Other dissenting decisions of Judge Alito suggest that he 
     views individual and other constitutional rights as stopping 
     at the prison door. He would have upheld a Pennsylvania law 
     prohibiting certain inmates from having newspapers, 
     magazines, and photos of their family and friends. In a death 
     penalty case, Judge Alito wrote an opinion for the court 
     rejecting a claim of denial of the right to effective 
     counsel. In the sentencing phase of the trial, the attorney 
     had failed to look at materials he knew would be relied on by 
     the prosecutor, materials that would have revealed a range of 
     mitigation leads. The Supreme Court overturned Alito in a 5-4 
     decision with Justice O'Connor in the majority.

 Extreme View of Federalism and Separation of Powers That Would Limit 
 the Role of Congress in Protecting the Health, Safety and Welfare of 
    Its Citizens and Give Unwarranted Power to the Executive Branch


                     Limiting the Role of Congress

       Judge Alito has written two opinions that reflect an 
     extreme view of the limits of congressional power to pass 
     legislation. He voted to invalidate the federal prohibition 
     on machine gun possession and part of the federal Family and 
     Medical Leave Act. His decisions are consistent with his 1985 
     application to be Deputy Assistant Attorney General, in which 
     he wrote that he ``believe[s] very strongly in . . . 
     federalism.
       In United States v. Rybar, Judge Alito argued in dissent 
     that the federal ban on machine gun possession, which had 
     been on the books in some form since 1934 is unconstitutional 
     Commerce Clause legislation. The Commerce Clause undergirds 
     many of the most important civil rights, consumer protection, 
     worker protection and environmental protection laws. Judge 
     Alito argued that the majority's theory would lead to the 
     conclusion that Congress may ban purely intrastate possession 
     of just about anything. He rationalized his decision in part 
     by claiming that there were no congressional findings or 
     statutory bases for the law, thus imposing a new stringent 
     fact-finding requirement for Congressional justification of 
     its laws. He ignored common sense--the facts involved a 
     licensed gun dealer selling machine guns at a gun show--
     transactions which involved interstate commerce. 
     Additionally, he ignored references in conference reports and 
     on the floor of Congress concerning the effect of the ban on 
     interstate commerce. Judge Alito's colleagues accused him of 
     institutional disrespect by requiring the ``coordinate 
     branches of government'' to ``play'' show and tell with the 
     federal courts at the peril of invalidating congressional 
     statutes. All of the other appellate courts which had 
     considered the law in the wake of United States v. Lopez 
     agreed with Judge Alito's colleagues, and all but one court 
     to have looked at the law since then has done the same. The 
     Supreme Court rejected Judge Alito's restrictive view of 
     Congress' lawmaking authority in Gonzales v. Raich.
       In another case concerning Congress' lawmaking authority, 
     Judge Alito again advocated an extremely narrow view of 
     congressional power. Chittister v. Department of Community 
     and Economic Development involved a state employee who sued 
     for damages under the Family Medical Leave Act (FMLA) when 
     his sick leave was revoked and he was terminated. Congress 
     claimed the authority to pass the FMLA under section 5 of the 
     Fourteenth Amendment on the grounds that the Act attempted to 
     remedy sex discrimination by allowing women to take leave 
     without sacrificing their jobs. Judge Alito held that 
     Congress does not have the authority to give state employees 
     the right to sue their employers for damages for violating 
     the FMLA. He rejected the justification that the FMLA 
     remedied sex discrimination and claimed that Congress had 
     failed

[[Page S92]]

     to make any findings that state statutes had discriminated 
     against women. The preamble to the statute explicitly states 
     that the purpose of the Act is to remedy sex discrimination. 
     There is of course, a long history of litigation striking 
     down state statutes disadvantaging women in the workplace. 
     Nevertheless, Judge Alito would require Congress to engage in 
     fact finding specifically directed at the FMLA. In a similar 
     challenge, Nevada Department of Human Resources v. Hibbs the 
     Supreme Court later held that state employees can enforce 
     their right to damages pursuant to a violation of another 
     provision of the FMLA.


            Advocating an Expansive Scope of Executive Power

       Since the Nixon Administration, the country has witnessed a 
     legal battle concerning the scope of presidential authority 
     under our Constitution. The present administration advances 
     an extreme, expansionist theory of the scope of presidential 
     power, both foreign and domestic. The theoretical 
     underpinnings for the concept of the ``imperial presidency'' 
     have been developed by writings of the Federalist Society. 
     Judge Alito's 1985 application to serve as Deputy Assistant 
     Attorney General in the Office of Legal Counsel (OLC) boasts 
     of his regular participation in the Federalist Society, an 
     involvement which continues to this day. OLC, during his 
     tenure, was the source of extreme thinking about expansive 
     presidential power. For example, OLC opined that the 
     executive branch could ignore congressionally authorized 
     procedures for federal procurement and determined that the 
     President had constitutionally unfettered authority to 
     determine when to tell Congress of his covert initiative with 
     regard to Iranian arms sales--even though the power to 
     regulate foreign trade is an express congressional authority.
       In other memoranda which Judge Alito wrote during his time 
     at the Justice Department, he argued in favor of expanded 
     government authority to intercept computer messages and 
     broader authority for government agents to set up shell 
     companies to help with undercover operations. He also told 
     the FBI that it was not bound by two district court decisions 
     restricting the Bureau's power to investigate employees whose 
     jobs were not critical to national security.
       During his years on the bench, Judge Alito has been 
     extremely deferential to assertions of executive authority, 
     particularly in the area of criminal law, and has gone out of 
     his way to place limitations on Congress's legislative 
     powers. It is this line of thinking that has spawned (1) 
     unprecedented claims of executive privilege, (2) claims of 
     authority to engage in torture, (3) claims to hold U.S. 
     citizens indefinitely as enemy combatants and foreign 
     nationals as enemy combatants in Guantanamo Bay without any 
     right of review of that designation, and now (4) an apparent 
     pattern of flagrant violations of the Foreign Intelligence 
     Surveillance Act by sanctioning domestic wiretapping without 
     obtaining a warrant.


                               Conclusion

       With the retirement of Justice O'Connor, the direction of 
     the Court stands in the balance. Judge Alito's record 
     demonstrates that he would shift the court radically 
     rightward. His vision of federalism and separation of powers 
     would dangerously expand the power of the executive and the 
     states; shrink the power of Congress to protect the health, 
     safety and welfare of this nation's citizens; and diminish 
     the role of the courts in guarding against discrimination and 
     undue government intrusion into individual rights. Justice 
     Alito's opinions show an alarming detachment from real life 
     and real people. His opinions are a historical and reflect a 
     lack of empathy for or appreciation of the human condition 
     and the role of courts in protection the rights of 
     minorities.
       We urge you to reject the nomination of Judge Alito to the 
     Supreme Court.
           Sincerely,
                                                   Eileen Kaufman,
                                                     Co-President.
                                                    Tayyab Mahmud,
                                                     Co-President.

  Mrs. MURRAY. Mr. President, I yield the floor.
  Mr. HATCH. Mr. President, today on this floor the distinguished 
Senator from Vermont, Mr. Leahy, accused me of misrepresenting him when 
I earlier characterized comments he has made about the nomination of 
Samuel Alito to the Supreme Court. He would not yield to me at that 
time, and I want to set the record straight.
  This is how I characterized the Senator from Vermont's previous 
comments: ``The Senator from Vermont, Senator Leahy, has repeatedly 
said that, all by himself, Judge Alito is a threat to the rights and 
liberties of all Americans literally for generations to come.''
  The Senator from Vermont reacted by saying that I was not even 
``within the ballpark of accuracy.''
  This reaction was particularly perplexing because the latest example 
of the Senator from Vermont making such a statement had occurred just 
hours before.
  This time, I will be careful to quote, rather than characterize, what 
he said. In his opening remarks today on the Alito nomination, the 
Senator from Vermont said: ``This is a nomination that I fear threatens 
the fundamental rights and liberties of all Americans, now and for 
generations to come.'' That language is simply cut and pasted from the 
statement as it appears on the Senator from Vermont's Web site.
  The Senator from Vermont made the exact statement yesterday, during 
the Judiciary Committee's business meeting at which we considered the 
Alito nomination. He said: ``This is a nomination that I fear threatens 
the fundamental rights and liberties of all Americans now and in 
generations to come.''
  I was not only in the ball park, I was standing on homeplate.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, my time to speak is not until 6:15. Since 
there is nobody else in the Chamber, I will proceed to speak on the 
nomination of Judge Samuel Alito to the U.S. Supreme Court.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ALLARD. Mr. President, I rise today in support of Judge Samuel 
Alito, President Bush's nominee as Associate Justice to the U.S. 
Supreme Court.
  Judge Alito has the experience, intellect, temperament, and integrity 
required of a Supreme Court Justice.
  He has more judicial experience than any Supreme Court nominee in 70 
years. In his 15 years on the U.S. Court of Appeals for the Third 
Circuit, Judge Alito participated in over 1,500 cases and authored more 
than 350 opinions.
  Prior to becoming a Federal appellate judge, Judge Alito established 
a record as a tough Federal prosecutor while serving as the U.S. 
attorney for the District of New Jersey.
  As the State's top Federal law enforcement official, Judge Alito 
oversaw the prosecutions of drug traffickers, terrorists, and organized 
crime figures. He also cracked down on perpetrators of environmental 
crimes, creating a new position of Environmental Crimes Coordinator.
  Prior to being unanimously confirmed twice by the U.S. Senate, Judge 
Alito proved himself to be an effective advocate on behalf of the 
United States while serving in the Office of the Solicitor General. 
There, Judge Alito participated in more than 250 cases, arguing 12 
before the Supreme Court.
  In sum, Judge Alito has served as a judge on one of the Nation's 
highest courts, as the top Federal prosecutor in one of the Nation's 
largest Federal districts, and as an advocate for the United States in 
the Office of the Solicitor General. His 30 years of public service 
spans the full breadth of the law.
  Judge Alito is unarguably a highly qualified nominee. However, I told 
the citizens of Colorado that I would also evaluate judicial nominees 
on their judicial philosophy and commitment to the rule of law.
  Specifically, I pledged to support judges who rule on the law and 
facts before them--not judges who attempt to legislate from the bench. 
Judge Alito's judicial philosophy corresponds with that promise.
  Judge Alito recognizes the limited role of the Federal judiciary, 
having observed that ``although the judiciary has a very important role 
to play, it's a limited role. . . . It should always be asking itself 
whether it is straying over the bounds, whether it's invading the 
authority of the legislature, for example, whether it is making policy 
judgments rather than interpreting the law.''
  Like his view of the limited role of the judicial branch, Judge Alito 
also recognizes the limits on the powers of the executive branch. 
Speaking on his understanding of the ``unitary Executive,'' Judge Alito 
explained, ``the idea of the unitary Executive is that the President 
should be able to control the executive branch. . . . [I]t goes just to 
the question of control. It doesn't go to the question of scope.''
  Further, Judge Alito recognizes that ``[n]o person in this country, 
no matter how high or powerful, is above the law, and no person in this 
country is beneath the law.'' This statement reflects his commitment to 
a principle so fundamental to justice in this country that it is carved 
in stone over the entrance to the Supreme Court: ``Equal justice under 
law.''
  Consistent with the principle of equal justice under law, Judge Alito 
does not

[[Page S93]]

allow his personal opinion to decide the outcome of a case. He says 
``[a] judge can't have any agenda. . . . The judge's only obligation--
and it's a solemn obligation--is to the rule of law, and what that 
means is that in every single case, the judge has to do what the law 
requires.''
  I believe that each of my colleagues would agree that judges should 
be held to this standard. Yet, at the same time, some criticize Judge 
Alito's record for living up to it.
  For example, in Doe v. Groody Judge Alito argued in dissent that a 
search warrant authorized law enforcement officials to search everyone 
inside a drug dealer's house, including the wife and daughter. Even 
though he personally ``share[d] the majority's visceral dislike of the 
intrusive search,'' Judge Alito's unwavering commitment to the rule of 
law led him to do what he believed the law required, despite his 
personal beliefs on the outcome.

  In sum, Judge Alito will serve as an effective steward of the law and 
Constitution. His record evidences a deep respect for the separation of 
powers and other fundamental principles envisioned by our Founding 
Fathers. I have no reason to believe Judge Alito will be deferential to 
anyone or anything other than the law and the facts before him.
  As a representative of Colorado, I also appreciate the uniqueness of 
the issues important to our State and the West. The departure of 
Justice O'Connor and Chief Justice Rehnquist marks the loss of a 
Western presence on the Supreme Court.
  Earlier this year, I asked President Bush to nominate a judge who 
could capably decide issues important to Colorado and the West, such as 
water and resource law.
  When I asked Judge Alito about his understanding of Western resource 
and water law, I was pleased to learn that he grew to appreciate the 
importance and complexity of these issues while working in the U.S. 
Solicitor General's Office. He assured me that he understands the 
uniqueness to the West of such issues as water rights, the environment, 
and public lands.
  In conversing with Judge Alito, I couldn't help but be reminded of my 
meeting with now Chief Justice Roberts. Judge Alito is a man of great 
restraint, delivering thoughtful, careful, and thorough responses to my 
many questions--a further reflection of his view of the limited role of 
a judge.
  Although America was already aware of Judge Alito's distinguished 
record, the Judiciary Committee hearings were helpful in shedding 
additional light on his character, temperament, and integrity, 
particularly in trying circumstances.
  During the nearly 18 hours of questioning, Judge Alito was both open 
and candid. He answered 97 percent of the nearly 700 questions that 
were asked of him, declining to answer only 3 percent. By comparison, 
Justice Ginsburg declined to answer 20 percent of questions. Justice 
Ginsburg received 96 votes in favor of her confirmation.
  Throughout the course of the demanding process, Judge Alito 
demonstrated great patience, humility, and respect--all attributes of a 
temperament desirable for a Supreme Court justice.
  The hearings were also an opportunity for Judge Alito to set the 
record straight on scurrilous attempts to impugn his integrity. Laid to 
rest is the claim that he acted improperly by participating in a case 
involving Vanguard, his mutual fund company. Shares in Vanguard mutual 
funds are not an ownership interest in the Vanguard company, and Judge 
Alito had no legal or ethical obligation to recuse himself. His 
ultimate decision to do so--beyond what the law requires--should be 
praised, not attacked.
  These and other attacks are nothing but thinly veiled attempts to 
distract from the impeccable record of a highly qualified nominee.
  Judge Alito's jurisprudence and integrity have been praised by major 
newspapers, legal scholars, former law clerks, and colleagues from both 
sides of the aisle.
  The American Bar Association unanimously awarded Judge Alito its 
highest rating of ``well qualified.'' The ABA's stated criteria for 
evaluating nominees are ``integrity, professional competence and 
judicial temperament.''
  The judges with whom he has served on the Third Circuit offer their 
praise. Judge Tim Lewis, a former Clinton appointee, commended Judge 
Alito for his role in discrimination cases. Judge Lewis, testifying in 
support of Judge Alito, said that ``if I believed that Sam Alito might 
be hostile to civil rights as a member of the United States Supreme 
Court, I guarantee you that I would not be sitting here today.''
  Major newspapers across the State of Colorado, including both the 
Rocky Mountain News and the Denver Post, offer their praise for Judge 
Alito.'''
  The Rocky Mountain News says that Judge Alito ``personifies judicial 
restraint'' and ``deserves confirmation. . . . He has refused to 
elevate his ideology above the rule of law while showing deference to 
the crucial but limited role the Founders envisioned for federal 
judges.''
  Commenting on the temptation for Democratic Senators to cave to the 
demands of ``left-wing interest groups [who] portray Alito as someone 
who should be under house arrest, rather than an accomplished nominee 
with a distinguished resume,'' the Rocky Mountain News points out that 
``Senate Democrats have an opportunity to rise above the muck'' 
concluding that ``Samuel Alito should be confirmed.''
  I ask unanimous consent to have the January 9, 2006 Rocky Mountain 
News editorial printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Rocky Mountain News, Jan. 9, 2006]

                  Alito Personifies Judicial Restraint

       No one seriously questions the qualifications of federal 
     appeals court Judge Samuel Alito to sit on the Supreme Court: 
     U.S. attorney, assistant to the solicitor general and the 
     attorney general, and a 15-year tenure on the 3rd U.S. 
     Circuit Court of Appeals.
       Former colleagues, including Democrats, who worked with 
     Alito the prosecutor laud his insistence on defending the law 
     rather than pursuing a political agenda. Keep that in mind as 
     confirmation hearings open in Washington today. Liberal 
     interest groups and some partisan Democrats are up in arms 
     because Alito has served as a model of restraint.
       And that's why the Senate should confirm Judge Alito to 
     succeed Sandra Day O'Connor. He has refused to elevate his 
     ideology above the rule of law while showing deference to the 
     crucial but limited rule the Founders envisioned for federal 
     judges.
       On principle, the Senate should give the president 
     substantial leeway to appoint federal officials who share his 
     views. And while candidates for life-tenured positions on the 
     Supreme Court deserve thorough scrutiny, we are confident 
     that the hearings will let Alito earn the nation's trust.
       On the bench, Alito has championed a government with 
     limited, defined powers. He has defended the First 
     Amendment's guarantee of religious liberty, ruling against 
     governments that denied Muslims and Indians their ability to 
     freely express their faiths.
       In United States v. Rybar, he seconded the view articulated 
     by the Supreme Court in United States v. Lopez that the 
     Constitution's Commerce Clause does not give Congress 
     unlimited power to regulate private actions. And though in 
     Planned Parenthood v. Casey Alito wrote in favor of a 
     spousal-notification requirement for abortions that the 
     Supreme Court later rejected, his law clerk at the time, 
     self-described Democrat Jim Goneia, told the Las Vegas Sun 
     that he ``never had any clue what (Alito's) personal opinion 
     might be.''
       His measured approach has not slowed the partisan 
     spinmeisters from lobbing scurrilous allegations--charging 
     everything from misogyny to racism. The left-wing interest 
     groups portray Alito as someone who should be under house 
     arrest, rather than an accomplished nominee with a 
     distinguished reums.
       But Senate Democrats have an opportunity to rise above the 
     muck. We applaud their plan to focus on Alito's views of the 
     proper balance of power between the president and Congress. 
     Concerns about executive authority deserve special attention, 
     particularly as the Bush administration prosecutes the war on 
     terror.
       Barring any stunning surprises, Samuel Alito should be 
     confirmed. While we will surely disagree with some of his 
     decisions, we're confident that they will be soundly reasoned 
     and reflect respect for both the Constitution and the law.

  Mr. ALLARD. Mr. President, Colorado's other major newspaper, the 
Denver Post, proclaims that there is ``no reason to block [the] 
Senate's Alito vote . . .'' On the threat of a Democrat filibuster, the 
Denver Post says ``we don't believe the arguments against Alito merit a 
filibuster. . . . Alito has served capably on the 3rd U.S. Circuit 
Court of Appeals for 15 years, and his confirmation should rise or fall 
on a majority vote.''
  I ask unanimous consent that the January 17, 2006, Denver Post 
editorial be printed in the Record.

[[Page S94]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the Denver Post, Jan. 17, 2006]

                 No Reason to Block Senate's Alito Vote

       Judge Samuel Alito managed to navigate his way through last 
     week's Senate Judiciary Committee hearings without upsetting 
     supporters' high hopes or relieving opponents' high anxiety.
       Though his testimony to the committee was never too 
     revealing, Alito demonstrated his qualifications for the high 
     court, and he's likely to be confirmed. We wish we could be 
     enthusiastic, but Alito's record is troubling in such areas 
     as reproductive rights, privacy and executive power. If he 
     rises to the Supreme Court, we hope Alito will follow the 
     letter of the law and not the call of ideology or the urging 
     of special interests. Associates who have worked with Alito 
     over the years offer welcome assurances that he can be an 
     impartial figure and not a clone of Clarence Thomas on the 
     far right side of the bench.
       We tend to agree with Sen. Dianne Feinstein, D-Calif., who 
     said on Sunday, ``This is a man I might disagree with. That 
     doesn't mean he shouldn't be on the court.'' Like Feinstein, 
     we don't believe the arguments against Alito merit a 
     filibuster.
       Alito needs a simple majority to win confirmation unless 
     opponents try to extend debate indefinitely; then 60 senators 
     must agree to a vote. Republicans have 55 senators, and many 
     are willing to ban judiciary filibusters if that's what it 
     takes.
       In the end, Republicans will probably support Alito en 
     masse and most Democratic senators will vote no, reflecting 
     both parties' expectation of his future role. Much attention 
     is being paid to the ``Gang of 14,'' the coalition (including 
     Colorado Sen. Ken Salazar) that vowed to avoid filibusters 
     except under extraordinary circumstances. This isn't one of 
     them; Alito has served capably on the 3rd U.S. Circuit Court 
     of Appeals for 15 years, and his confirmation should rise or 
     fall on a majority vote.
       We hope Alito will moderate his views if voted to the court 
     of last resort. His statements about Roe vs. Wade suggest he 
     opposes abortion-rights, which we favor, while his support 
     for the ``unitary executive'' theory, which exaggerates the 
     powers of the president, is chilling given the current debate 
     on domestic surveillance and the balance of powers among the 
     branches of government. Some of Alito's dissents on the 3rd 
     Circuit inspire disbelief, such as his defense of a police 
     officer who strip-searched a 10-year-old girl whose father 
     was wanted on drug charges.
       We urged President Bush to choose a centrist to succeed 
     retiring Justice Sandra Day O'Connor, but once his first 
     choice, Harriet Miers, was blocked, it was inevitable that he 
     would seek out a nominee with proven conservative 
     credentials. That's Alito, to be sure. Wherever he serves, we 
     hope Alito exercises his approach to the law in a way that 
     affords Americans all the protections due under law and the 
     Constitution.

  Mr. ALLARD. Mr. President, I am pleased to see that these Colorado 
publications join me in recognizing that Judge Alito is the type of 
judge that Coloradans--and all Americans--deserve.
  In conclusion, Judge Alito is one of the most qualified judicial 
nominees ever. He is deeply committed to the rule of law, he recognizes 
the limited role of the judiciary, and he has the judicial temperament 
fitting of a Supreme Court justice.
  The Senate debate should reflect that the job of a judge is to review 
cases impartially, not to advocate issues. Judges should be evaluated 
on their qualifications, judicial philosophy, and respect for the rule 
of law.
  It would be unfortunate and irresponsible for any of my Senate 
colleagues to continue to politicize the judicial confirmation process. 
Judge Alito is eminently qualified, and he deserves a swift up-or-down 
vote.
  I intend to vote in favor of Judge Samuel Alito's confirmation as the 
110th Justice to the United States Supreme Court and I strongly urge my 
colleagues to do the same.
  I believe that Judge Alito will not be an activist judge and supports 
limits on the judiciary.
  I ask unanimous consent to have printed in the Record a letter from 
attorney William Banta in which he discusses judicial independence, 
judicial activism, and judicial usurpation, now referred to by many of 
us as just judicial activism.
  There being no objection, the material was ordered to be printed in 
the Record as follows:

                                 Englewood, CO, September 6, 2005.
     Re: A Lawyer's Duty--Judicial Independence, Judicial 
         Activism, and Judicial Usurpation.

     Hon. Wayne Allard,
     U.S. Senate, Dirksen Senate Building, Washington, DC.
       Dear Senator Allard: Recently there has been an outcry from 
     the established bar in defense of judicial independence. 
     However, very little has been said against judicial activism, 
     which used to be referred to as ``judicial usurpation''. 
     Because of the present tension between them, it behooves us 
     as lawyers to understand the relationship between judicial 
     activism and judicial independence. Marbury v. Madison is a 
     good place to begin.
       While Marbury is typically used to justify a court's 
     prerogative to say what the law is, there is a discipline to 
     the case that is either overlooked or not discussed in polite 
     legal company. Chief Justice Marshall bases the Marbury 
     decision upon the American people's original right to 
     establish a constitution, the principles of which are 
     ``fundamental'' and which are to be ``permanent''. The case 
     itself involved three issues: (1) whether Mr. Marbury had a 
     right to his commission as justice of the peace; (2) if so, 
     whether there was a remedy available to him to secure his 
     commission; and (3) whether the remedy was a writ of mandamus 
     from the Supreme Court of the United States. Marshall said 
     ``yes'' to the first two issues and ``no'' to the third 
     issue.
       The Chief Justice held that the Supreme Court lacked the 
     power to issue a writ of mandamus for Mr. Marbury's 
     commission because the Constitution did not provide for the 
     exercise of such original jurisdiction even though an Act of 
     Congress (the Judiciary Act of 1789) did. In ruling against 
     the Supreme Court's having jurisdiction, John Marshall 
     declared the obedience of courts to the Constitution, the 
     Constitution being ``a rule for the government of courts, as 
     well as of the legislature.''
       To paraphrase Chief Justice Marshall, judges are subject to 
     the Constitution; the Constitution is not subject to judges. 
     The force behind the Marbury decision is the restraint and 
     responsibility required of the judicial branch.
       Now I have a couple of questions regarding what some see as 
     attacks upon judicial independence. Does anyone think that 
     the public is criticizing courts because the judges on those 
     courts are thought to be following the Constitution? Or, are 
     courts being criticized because some judges are seen as 
     expounding politics instead of a constitution? It would 
     certainly be independent of any court to contradict the 
     Constitution, but it would also be unscrupulous and, to use 
     John Marshall's word, ``immoral'' of them.
       Roger J. Miner wrote an admonition to us lawyers that I ran 
     across about seventeen (17) years ago: ``Should Lawyers Be 
     More Critical of Courts?'' Judge Miner's reproof was more 
     recently reprinted in The Colorado Lawyer: ``Judges'' 
     Corner--Criticizing the Courts: a Lawyer's Duty.'' To his 
     dismay, what Judge Miner had noticed was lawyers' 
     ``reluctance to criticize judge-made law, specific judicial 
     decisions, or the qualifications of individual judges''. He 
     quoted Justice Robert H. Jackson to the effect that the 
     public rightfully looks to lawyers (as the only group that 
     knows how well judicial work is being done) ``to be the first 
     to condemn practices or tendencies that they see departing 
     from the best judicial traditions''. Does anyone think, as 
     Judge Miner would, that the public has reason to be 
     disappointed in us lawyers for not being properly critical of 
     judges who deviate from their oaths to support the 
     Constitution that governs them?
       As lawyers, we need to understand what is going on here. To 
     its credit, the established bar does not directly dispute the 
     right of Americans to criticize their judiciary. However, 
     only a very few lawyers have spoken out in defense of Chief 
     Justice Marshall's insistence on judicial scruples--the 
     established bar is more apt to rationalize, excuse, or even 
     defend in the name of ``judicial independence'' the conduct 
     of judges who act contrary to the language of the 
     Constitution. It is almost as if Supreme Court decisions were 
     infallible so that it would be irreverent of lawyers to 
     challenge them very much.
       Not only Chief Justice Marshall but Chief Justice Harlan F. 
     Stone would not have it. Chief Justice Stone said, ``I have 
     no patience with the complaint that criticism of judicial 
     action involves any lack of respect for the courts. When the 
     courts deal, as ours do, with the great public questions, the 
     only protection against unwise decisions, and even judicial 
     usurpation, is careful scrutiny of their action and fearless 
     comment upon it.
       The point is this: when a court takes it upon itself to 
     engage in politics, social experimentation, or baseless 
     lawmaking contrary to the Constitution, the American people, 
     if not the established bar, tend to hold that court 
     accountable. In holding judicial feet to constitutional fire, 
     critics are not threatening judicial independence; they are 
     reprehending those judges, those public servants, who 
     overstep their roles and thereby become ``activist''.
       The purpose of the Constitution's Article III lifetime 
     tenure and undiminished compensation for Federal judges and 
     the purpose of Colorado's constitutional and statutory 
     provisions for judicial nominations, appointments, and 
     retentions are to insulate judges from political pressures as 
     much as practical . . . providing them with a measure of 
     independence to decide cases with restraint and impartiality. 
     Yet, if a judge commandeers the law, usurps the jurisdiction 
     of the other governmental branches, or overpowers the rights 
     of the people, is he not frustrating the purpose of judicial 
     independence?
       That brings me to my last question: isn't the real threat 
     to judicial independence judicial activism itself? We needn't 
     have come to this pass had we, as lawyers and judges, 
     insisted on judges remaining faithful to ``the

[[Page S95]]

     best judicial traditions''. Too often we justified baseless 
     decisions on the unsteady promise of political results or 
     indulged the sentiment that the Constitution is whatever a 
     court says it is. Incidentally, to that utterance of Charles 
     Evans Hughes, Theodore Roosevelt rejoined that the 
     Constitution belonged to the American people and not to the 
     judges.
       By not remarking the wrong of judicial activism all along, 
     the established bar must now be careful not to excuse 
     judicial activism in an ambiguous effort to preserve judicial 
     independence. The risk of confusing judicial activism with 
     judicial independence could compound our problem so that the 
     public comes to see the whole thing as a mess of our own 
     making. If that happened, the American people could demand 
     direct political control over those who had Wayne Allard lost 
     the self-control upon which Chief Justice Marshall insisted, 
     those who became unaccountable to the law they had taken an 
     oath to support.
       To avoid such a misfortune, it might be a good idea to 
     revisit the instruction manual. Perhaps we could think about 
     whether the Constitution is our bedrock foundation or more 
     like a nomad's tent pitched on shifting sands. We might ask 
     ourselves whether we ought to dismiss the Constitution as an 
     outdated 18th century document or recognize that it was 
     designed in light of human experience and human nature to 
     endure for all time. And we can mull over whether our 
     Constitution should really be an adventure in judicial dead 
     reckoning or whether, instead, the written Constitution 
     provides a reliable compass, trusty sextant, and inspired 
     chart for the American people.
       My impression is that commentators and many in the public 
     are way ahead of us lawyers and judges on these concerns. 
     Nonetheless, I hope that we are able to help out here so 
     that, as Judge Miner would prefer, ``the judiciary is 
     strengthened, the rule of law is reinforced, and the public 
     duty of the bar is performed.''
           Very truly yours,
                                                 William M. Banta,
                                                  Attorney at Law.

  Mr. ALLARD. Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona is recognized.
  Mr. KYL. Mr. President, I ask unanimous consent to have an item 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

Senate Republican Policy Committee: Fellow Judges Testify in Support of 
                            Alito Nomination

       On January 12, 2006, five sitting and two former judges 
     from the U.S. Court of Appeals for the 3rd Circuit testified 
     on behalf of Judge Samuel Alito's nomination to the Supreme 
     Court. The judges included nominees of Presidents Lyndon 
     Johnson, Richard Nixon, Ronald Reagan, George H.W. Bush, and 
     Bill Clinton. Collectively they have served with Judge Alito 
     for more than 75 years, watching him work and evaluating his 
     intellect, character, independence, and judgment. Their 
     collective endorsement should be taken seriously by Senators 
     considering this nomination.
       The judges included the following individuals. Judge Edward 
     Becker, appointed by President Ronald Reagan in 1981, is a 
     Senior Judge on the 3rd Circuit and formerly its Chief Judge. 
     (Note: a Senior Judge continues to serve on the court and 
     hear cases on a limited basis; he is not retired.) Judge 
     Anthony Scirica, appointed by President Ronald Reagan in 
     1984, is the Chief Judge of the 3rd Circuit. Judge Maryanne 
     Trump Barry has served on the 3rd Circuit since President 
     Bill Clinton appointed her in 1999. Judge Barry also worked 
     in the U.S. Attorney's office with Judge Alito in the late 
     1970s. Judge Ruggero Aldisert, appointed by President Lyndon 
     Johnson in 1967, is a Senior Judge on the 3rd Circuit and 
     formerly its Chief Judge. Former Judge John Gibbons, 
     appointed by President Richard Nixon in 1970, served on the 
     3rd Circuit until 1990 when he retired to become a professor 
     of law at Seton Hall. As a federal prosecutor, Judge Alito 
     had argued cases before Judge Gibbons, and Judge Gibbons has 
     stated that he has followed Judge Alito's work since 1990. 
     Judge Leonard Garth, appointed by President Richard Nixon in 
     1973, is a Senior Judge on the 3rd Circuit. Judge Alito 
     served as his law clerk in 1976-1977. Former Judge Tim Lewis, 
     appointed by President George H.W. Bush in 1992, served on 
     the 3rd Circuit for seven years before retiring to enter 
     private practice, where he does significant work in civil 
     rights and human rights law. Excerpts from their testimony 
     follow.
       Judge Becker on working with Judge Alito up close . . . 
     ``There is an aspect of appellate judging that no one gets to 
     see--no one but the judges themselves: how they behave in 
     conference after oral argument, at which point the case is 
     decided, and which, I submit, is the most critically 
     important phase of the appellate judicial process. In 
     hundreds of conferences, I had never once heard Sam raise his 
     voice, express anger or sarcasm, or even try to proselytize. 
     Rather, he expresses his views in measured and temperate 
     tones.''
       Judge Becker on Judge Alito's intellect and open-mindedness 
     . . . ``Judge Alito's intellect is of a very high order. He's 
     brilliant, he's highly analytical and meticulous and careful 
     in his comments and his written work. He's a wonderful 
     partner in dialogue. He will think of things that his 
     colleagues have missed. He's not doctrinaire, but rather is 
     open to differing views and will often change his mind in 
     light of the views of a colleague.''
       Judge Becker on whether Judge Alito is an ideologue . . . 
     ``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. . . . His credo has 
     always been fairness.''
       Chief Judge Scirica on Judge Alito's personal character . . 
     . ``Despite his extraordinary talents and accomplishments, 
     Judge Alito is modest and unassuming. His thoughtful and 
     inquiring mind, so evident in his opinions, is equally 
     evident in his personal relationships. He is concerned and 
     interested in the lives of those around him. He has an 
     impeccable work ethic, but he takes the time to be a 
     thoughtful friend to his colleagues. He treats everyone on 
     our court, and everyone on our court staff, with respect, 
     with dignity, and with compassion. He is committed to his 
     country and to his profession. But he is equally committed to 
     his family, his friends, and his community. He is an 
     admirable judge and an admirable person.''
       Chief Judge Scirica on Judge Alito's openmindedness . . . 
     ``Like a good judge, he considers and deliberates before 
     drawing a conclusion. I have never seen signs of a 
     predetermined outcome or view, nor have I seen him express 
     impatience with litigants or with colleagues with whom he may 
     ultimately disagree. He is attentive and respectful of all 
     views and is keenly aware that judicial decisions are not 
     academic exercises but have far-reaching consequences on 
     people's lives.''
       Judge Barry on Judge Alito's service as U.S. Attorney . . . 
     ``The tone of a United States Attorney's Office comes from 
     the top. The standard of excellence is set at the top. Samuel 
     Alito set a standard of excellence that was contagious--his 
     commitment to doing the right thing, never playing fast and 
     loose with the record, never taking a shortcut, his emphasis 
     on first-rate work, his fundamental decency.''
       Judge Aldisert on Judge Alito's judicial independence . . . 
     ``Judicial independence is simply incompatible with political 
     loyalties, and Judge Alito's judicial record on our court 
     bears witness to this fundamental truth.''
       Judge Aldisert on working with Judge Alito for 15 years . . 
     . ``We who have heard his probing questions during oral 
     argument, we who have been privy to his wise and insightful 
     comments in our private decisional conferences, we who have 
     observed at first hand his impartial approach to decision-
     making and his thoughtful judicial temperament and know his 
     carefully crafted opinions, we who are his colleagues are 
     convinced that he will also be a great justice.''
       Judge Garth on Judge Alito's lack of an agenda . . . ``I 
     can tell you with confidence that at no time during the 15 
     years that Judge Alito has served with me and with our 
     colleagues on the court and the countless number of times 
     that we have sat together in private conference after hearing 
     oral argument, has he ever expressed anything that could be 
     described as an agenda. Nor has he ever expressed any 
     personal predilections about a case or an issue or a 
     principle that would affect his decisions.''
       Judge Garth on Judge Alito's personality . . . ``Sam is and 
     always has been reserved, soft spoken and thoughtful. He is 
     also modest, and I would even say self-effacing. And these 
     are the characteristics I think of when I think of Sam's 
     personality. It is rare to find humility such as his in 
     someone of such extraordinary ability.''
       Judge Gibbons on Judge Alito's independence from the 
     executive . . . ``The committee members should not think for 
     a moment that I support Judge Alito's nomination because I'm 
     a dedicated defender of [the Bush] administration. On the 
     contrary, I and my firm have been litigating with that 
     administration for a number of years over its treatment of 
     detainees held at Guantanamo Bay, Cuba, and elsewhere. And we 
     are certainly chagrined at the position that is being taken 
     by the administration with respect to those detainees.
       ``It seems not unlikely that one or more of the detainee 
     cases that we are handling will be before the Supreme Court 
     again. I do not know the views of Judge Alito respecting the 
     issues that may be presented in those cases. I would not ask 
     him. And if I did, he would not tell me. I'm confident, 
     however, that, as an able legal scholar and a fair-minded 
     justice, he will give the arguments--legal and factual--that 
     may be presented on behalf of our clients careful and 
     thoughtful consideration, without any predisposition in favor 
     of the position of the executive branch.''
       Judge Lewis on his own liberal politics . . . ``I am openly 
     and unapologetically pro-choice and always have been. I am 
     openly--and it's very well known--a committed human rights 
     and civil rights activist and am actively engaged in that 
     process as my time permits. . . .
       ``I am very, very much involved in a number of endeavors 
     that one who is familiar with Judge Alito's background and 
     experience may wonder--`Well, why are you here today saying 
     positive things about his prospects as a justice on the 
     Supreme Court?'

[[Page S96]]

       ``And the reason is that having worked with him, I came to 
     respect what I think are the most important qualities for 
     anyone who puts on a robe, no matter what court they will 
     serve on, but in particular, the United States Supreme 
     Court.''
       Judge Lewis on Judge Alito's honesty and integrity . . . 
     ``As Judge Becker and others have alluded to, it is in 
     conference, after we have heard oral argument and are not 
     propped up by law clerks--we are alone as judges, discussing 
     the cases--that one really gets to know, gets a sense of the 
     thinking of our colleagues. And I cannot recall one instance 
     during conference or during any other experience that I had 
     with Judge Alito, but in particular during conference, when 
     he exhibited anything remotely resembling an ideological 
     bent.''
       Judge Lewis on Judge Alito and civil rights . . . ``If I 
     believed that Sam Alito might be hostile to civil rights as a 
     member of the United States Supreme Court, I guarantee you 
     that I would not be sitting here today. . . . My sense of 
     civil rights matters and how courts should approach them 
     jurisprudentially might be a little different. I believe in 
     being a little more aggressive in these areas. But I cannot 
     argue with a more restrained approach. As long as my argument 
     is going to be heard and respected, I know that I have a 
     chance. And I believe that Sam Alito will be the type of 
     justice who will listen with an open mind and will not have 
     any agenda-driven or result-oriented approach.''
       Judge Lewis on why he endorses Judge Alito . . . ``I am 
     here as a matter of principle and as a matter of my own 
     commitment to justice, to fairness, and my sense that Sam 
     Alito is uniformly qualified in all important respects to 
     serve as a justice on the United States Supreme Court.''

  Mr. KYL. Mr. President, I ask unanimous consent that the attached 
editorial by the Arizona Republic, dated January 24, be printed in the 
Record of this debate on the confirmation of Judge Samuel Alito to the 
U.S. Supreme Court. The editors' support for Judge Alito is welcome, 
and their statement that ``Judge Alito is a superior candidate for the 
high court regardless of his political leanings'' is absolutely true.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Arizona Republic, Jan. 24, 2006]

                  Alito: Wise in the Ways of ``Whys''

       If America is not on pins and needles over today's Senate 
     Judiciary Committee vote on Samuel Alito for the U.S. Supreme 
     Court, perhaps this Web site headline on Monday helps provide 
     an explanation:
       ``Feingold unsure of Alito''--WSAW-TV, Wausau, Wis.
       If one of the Senate's most solidly liberal members, Sen. 
     Russ Feingold, D-Wis., remains uncertain about President 
     Bush's nominee one day prior to his scheduled Judiciary vote, 
     prospects for derailing the nomination in the full Senate 
     would seem dim.
       We'll see how the votes pan out. Still, it is worth 
     wondering: Where did the drama go?
       The most obvious answer among many is that Alito is a 
     superior candidate for the high court regardless of his 
     political leanings. After 15 years on the bench, Alito has 
     established a lengthy track record as a fair jurist who has 
     struck a proper balance between his own constitutional 
     interpretations and those of other courts.
       Even his obvious discomfort at the beginning of his 
     Judiciary hearings worked to Alito's favor. The candidate is 
     bookish and uncomfortable in the limelight? All the better 
     for a position on the nation's most deliberative, most 
     cerebral panel.
       Many commentators have noted that the even-keeled Alito 
     presents himself far differently from Robert Bork, the 
     famously rejected conservative nominee of 1987.
       Well, yes. Alito was not combative in the face of 
     relentless grilling, as Bork was. And he wears no wicked-
     looking beard.
       But it would seem that Alito's imminent success is less a 
     matter of televised theatrics, facial adornment or even 
     judicial philosophy than it is a reflection of the public's 
     expectations of a jurist.
       Unquestionably, the public wants jurists to be fair, and it 
     seems to believe that Alito will live up to that standard. 
     The public wants a jurist who respects the judgment of other 
     courts, but it also wants one who understands that Job 1 is 
     to interpret the Constitution.
       Sometimes, Supreme Court judges have found those two 
     directives in conflict. The public, and most of the senators 
     who represent it, seems to believe Alito will find his way 
     through those conflicts fairly and intelligently.
       But most of all, Alito appears to have won over converts 
     because he has demonstrated the trait that increasingly seems 
     to distinguish great jurists from mediocre-to-good ones: He 
     can explain why.
       We all wish to know why. With all due respect to President 
     Bush's previous nominee, Harriet Miers, it was not enough 
     that--wink, wink--her vote on the ``right'' issues was 
     ensured. Indeed, that constituted the most damning argument 
     against her.
       Alito, by contrast, has won support because senators 
     believe that his decisions will be grounded and argued in the 
     facts of the law, not in some predisposed political prejudice 
     that is unsupported by the case before him.
       And that is a powerful argument for Alito all by itself.

  Mr. KYL. Mr. President, I rise in support of Judge Alito's nomination 
to the Supreme Court and urge my colleagues to quickly confirm him.
  I begin by observing that the party-line vote in the Judiciary 
Committee yesterday raises a troubling question for the full Senate, 
and it is basic to our deliberations. What is the proper test for 
determining whether to confirm a nominee to the Supreme Court? Until 
very recently, the Senate has evaluated whether the nominee was 
qualified--that is, whether he or she possessed the requisite 
experience, integrity, and temperament to serve. But a new test has 
been proposed by Judiciary Committee Democrats: will the nominee 
provide assurances that he or she will rule a particular way on cases 
sure to come before the Court?
  Before I discuss the ramifications of that troubling question, 
though, I would like to apply the traditional test--the proper test--to 
the nominee before us.
  A Supreme Court Justice should be an experienced judge. Samuel Alito 
has more Federal judicial experience than all but one nominee in U.S. 
history, Horace Lurton, who was nominated by President Taft. In 15 
years of service, Judge Alito has authored more than 360 opinions and 
participated in more than 4,800 decisions. It is an extensive record.
  A Supreme Court Justice should be deeply familiar with American 
constitutional law. Judge Alito has spent his entire professional life 
grappling with constitutional jurisprudence--serving as a Federal 
prosecutor at both the trial and appellate level, as the government's 
lawyer before the Supreme Court, and as a constitutional lawyer in the 
Justice Department before becoming a judge. Nobody who watched Judge 
Alito's testimony would deny that he is a brilliant legal thinker with 
a deep and textured understanding of our Nation's jurisprudence.
  A Supreme Court Justice should have unassailable integrity. Here, I 
look to those who know him best.
  First, the American Bar Association, in finding him unanimously 
``well-qualified'' to serve, conducted more than 300 interviews with 
people who know Judge Alito on a professional and personal basis. They 
have reported that the high praise for Judge Alito's integrity was 
``consistent and virtually unanimous.'' I repeat, it was ``unanimous.''
  Second, let's look at what the judges of the U.S. Court of Appeals 
for the Third Circuit had to say. Seven current and former judges 
testified on Judge Alito's behalf--judges who were nominated by 
Presidents Johnson, Nixon, Reagan, the first President Bush, and 
Clinton. Collectively, they have served with Judge Alito for more than 
75 years. They praised his fairness, his integrity, his open-
mindedness, his temperament, his intellect, and his devotion to the 
rule of law.
  Finally, a Supreme Court Justice must know the difference between the 
judicial role and the legislative or executive function. This 
qualification is sometimes difficult to decipher, but there are several 
clues that can guide us.
  First, a long judicial record helps, and Judge Alito gives us that. 
There is not a trace of judicial activism in his record.
  Second, a judge cannot have a policy agenda. He or she must defer to 
the political branches on policy questions. Judge Alito agreed, 
testifying, ``We [judges] are not policymakers and we shouldn't be 
implementing any sort of policy agenda or policy preferences that we 
have.'' Judge Alito's colleagues on the Third Circuit appeals court 
confirmed this. For example, Judge Aldisert testified that ``at no time 
during the 15 years that Judge Alito has served with me and with our 
colleagues on the court, and the countless number of times that we have 
sat together in private conference after hearing oral argument, has he 
ever expressed anything that could be described as an agenda.''
  Third, a judge must not twist statutes or constitutional provisions 
to reach a result he favors. As Judge Alito testified, ``Judges don't 
have the authority to change the Constitution. The whole theory of 
judicial review . . . is contrary to that notion.'' In

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other words, a judge must accept that the Constitution will sometimes 
require him to make rulings that he might disagree with. Politicians 
are free to vote their convictions; judges must put their personal 
views aside. I will have more to say about this issue in a few moments.
  Fourth, the judge must have the right understanding of the ``living 
Constitution.'' Our Constitution must always remain alive to new 
situations that the Founders did not contemplate. But the judge must 
apply the constitutional provisions in the way that most closely 
approximates the meaning of the text and the underlying principles as 
understood when drafted. The Constitution is not infinitely malleable. 
It is not a blank slate for the judicial branch to draw upon. It has no 
``trajectory'' or ``evolutionary theme.'' It is a text--words with 
meanings. If the Constitution can be twisted to mean anything, then it 
ultimately means nothing, and then we live under the rule of judges, 
not the rule of law.
  Judge Alito respects the proper divisions within American 
constitutional government. As he explained in his testimony, the 
judiciary ``should always be asking itself whether it is straying over 
the bounds, whether it's invading the authority of the legislature [or] 
making policy judgments other than interpreting the law.'' He 
emphasized that judges have a duty to police themselves through what he 
called the ``constant process of re-examination on the part of the 
judges.'' If all judges engaged in this process of re-examination, the 
quality of justice in this Nation would improve dramatically.
  Judge Samuel Alito is not going to legislate from the bench or bend 
the Constitution to suit any political preferences that he might have. 
He is not going to rely on foreign law, but will look to our American 
traditions. He is not going to apply the Constitution as he wishes it 
might be, but as it is written. In exercising this judicial restraint, 
Judge Alito will protect the people's ability to govern themselves--and 
that is ultimately what is at stake.
  That is why I support Judge Alito. Here is a man who is the son of an 
immigrant, comes from a modest background, and has a keen sense of 
patriotic duty. He is highly intelligent, undeniably experienced, and 
imbued with character and personal integrity. He has a low-key, 
patient, and respectful personality--the model of what we have come to 
call the ``judicial temperament.'' He believes in judicial restraint 
and has proven it for the past 15 years. He deserves my vote and I will 
proudly give it to him.
  This is the analysis we have applied in the past, and its application 
has resulted in confirmation for most nominees. It was certainly the 
analysis used to evaluate President Clinton's nominees to the Supreme 
Court. So it is in this context that I want to discuss what is evolving 
as a new test--a ``results-oriented'' test.
  The minority members of the Judiciary Committee did not question 
Judge Alito's qualifications. Rather, they tried to get him to commit 
to certain results in cases that are sure to come before the courts. 
They want to see certain policy goals enacted into law. Now, we all 
want our policy goals to become law, but our aim should be enacting 
constitutional legislation, not relying on the courts to enact our 
policy preferences.
  In my September statement supporting Judge Roberts, I explained that 
this same dynamic had played itself out during his hearings. It is 
apparent that there is now a fundamental difference between the 
majority and the minority parties on this matter. We believe the courts 
should not try to impose policy results in their decisions; they should 
just decide the questions of statutory interpretation and 
constitutional meaning.
  For the Supreme Court, the results are--or should be--simply a 
function of the proper application of the Constitution and law to the 
facts of each case.
  To the minority, however, that's not enough. As many minority 
Senators have expressed, they are not going to vote for a nominee who 
will not assure them that he will vote the way they want in future 
cases. I submit that that is wrong. As Judge Alito testified, 
``Results-oriented jurisprudence is never justified because it is not 
our job to produce particular results.''
  Yesterday's meeting of the Judiciary Committee illustrates that many 
Senators have adopted this results-oriented approach to the 
confirmation process. The wrong questions are being asked, and the 
wrong answers are being demanded. The right question is how the nominee 
will do his job, not what the nominee will decide. This fundamental 
point is getting more and more lost with each passing confirmation 
battle.
  Let me give a few examples. Yesterday a Senator said that it was 
necessary to vote against Judge Alito because that Senator believes in 
a right to abortion and there is no guarantee that Judge Alito will 
agree with that position in a future case dealing with abortion 
regulations.
  That Senator took the same approach when discussing the just-decided 
case of Gonzales v. Oregon, which dealt with the Attorney General's 
promulgation of regulations in response to a state physician-assisted 
suicide statute. The Attorney General had said that, despite the Oregon 
statute, physicians could not use Federally regulated drugs to kill 
patients.
  The case, therefore, did not turn on the Court's views on physician-
assisted suicide, but, rather, on the interpretation of the underlying 
statute. The majority made this clear in the first paragraph. Justice 
Kennedy explained:

       The dispute before us is in part a product of this 
     political and moral debate, but its resolution requires an 
     inquiry familiar to the courts: interpreting a federal 
     statute to determine whether Executive action is authorized 
     by, or otherwise consistent with, the enactment.

  The Supreme Court had not ruled on the wisdom or appropriateness or 
constitutionality of physician-assisted suicide, but the Senator was 
critical of Chief Justice Roberts because he had not voted to uphold 
assisted suicide, and the Senator didn't think Sam Alito would either. 
One could fervently agree with the Senator on the policy issue, yet 
interpret the statute in a way that requires a different result. But, 
it appears, results are all that matter.
  As another example from yesterday's committee meeting, a Senator said 
that protecting wetlands was very important, and wanted to make sure 
that Judge Alito would allow the Federal Government to protect them 
under the Clean Water Act. The Senator acknowledged that the underlying 
constitutional question was the extent of Congress's power to regulate 
non-navigable waterways which, arguably, are not in interstate 
commerce. That is a thorny constitutional question. But, rather than 
acknowledging that Congress might have gone too far in exercising its 
power to regulate interstate commerce, the Senator was troubled that 
Judge Alito's future votes on protecting wetlands could not be 
predicted.

  Now, I don't mean to single out any one Senator, because the same 
thing happened throughout the committee meeting. Senator after Senator 
would bring up the results of decisions by Judge Alito without any 
regard as to why he reached a certain result, such as their procedural 
disposition, the proper standard of review, the governing case law of 
the Supreme Court or the Third Circuit, or the legal reasoning that 
Judge Alito used. It was all about results.
  As a final example, another Senator wanted Judge Alito to tell him 
that it was unconstitutional for the President to take major military 
action against Iran or Syria absent prior congressional authorization. 
He was exasperated that Judge Alito wouldn't just prejudge the 
question, which the Senator called ``basic,'' and say that the 
President could not do so. But Judge Alito gave the judge's answer. It 
was anything but ``basic.'' Judge Alito explained that he needed to 
consider the political question doctrine first, then to analyze the 
scope of the President's Article II War Powers, the history of the use 
of force absent congressional authorization--it's a very complicated 
history--and then apply it to the facts before him. The Senator wanted 
a politician's answer, a policymaker's answer. In other words, he 
wanted to know how that case would turn out, before it was briefed and 
argued. But all we should be asking, is how he would approach the 
question. What principles would Sam Alito apply, not what kind of 
results Sam Alito will deliver.
  Abortion, executive power in a time of war, congressional power, 
State sovereign immunity, the 4th amendment,

[[Page S98]]

wetlands regulation, the death penalty--many Senators have constructed 
a confirmation standard that revolves completely around predictions 
about how cases related to issues such as these will come out. We 
cannot allow our public policy aspirations to cloud our view of the 
judicial function.
  If our process evolves into results-oriented voting, votes will 
inevitably become partisan. Indeed, it appears that it has already 
become partisan. The confirmations of Ruth Bader Ginsburg and Stephen 
Breyer speak volumes about how this results-oriented approach is, in 
fact, a problem centered within the democratic caucus. Both of these 
nominees had a long history of liberalism. Both were Democrats with 
ties to the political left. Ginsburg was the former general counsel to 
the ACLU who had advocated taxpayer funding of abortion, and Breyer had 
been Senator Kennedy's chief counsel and an academic promoter of an 
expansive regulatory state. Yet both received unanimous support from 
the Judiciary Committee. Justice Ginsburg received 96 votes on the 
floor, and Justice Breyer received 87 votes. They have served for more 
than a decade on the left side of the Supreme Court, exactly as 
Republicans suspected that they would when they voted to confirm them. 
But Republicans evaluated their judicial qualifications favorably, 
trusted their commitments to approach cases with an open mind, and gave 
deference to the President's choice. After all, he had won the 
election.
  We haven fallen a long way since Justice Breyer was confirmed in 
1994. The Republicans who put aside their policy goals and supported 
liberal Democratic nominees have been rewarded with unprecedented 
filibusters of qualified nominees to the lower courts and the adoption 
of a results-oriented confirmation standard for the Supreme Court.
  I say to my Democrat colleagues--is this really the path you want to 
put us on? You have already dramatically increased the chance of future 
filibusters. Do we really want Senators to vote against any nominee who 
will not prejudge cases and guarantee results? I know that the most 
ideological activists on both sides of the spectrum would prefer that 
path, but do you? Does the Senate? Does the Nation?

  As I said, for now this is a Democrat problem. But it is naive to 
think that, someday, Republicans won't decide that what is good for the 
goose is good for the gander. And while your ``no'' votes on Judge 
Alito will not keep him from the Supreme Court, I say to my Democratic 
friends--what if President Bush had lost the 2004 election but there 
were 55 Republicans in the Senate? If Republicans today were applying 
your results-oriented, litmus-test-based standard to a Democrat 
President's nominees, would it be possible to confirm anybody even 
vaguely as liberal as Ginsburg or Breyer. If we followed your path, the 
answer would clearly be ``no.'' This is a terribly dangerous road to 
travel.
  We all know that the Supreme Court confirmation process has taken on 
political campaign-like elements, with television advertisements and 
grass roots activism. That development, plus this results-oriented 
approach to confirmation, represents the subtle rejection of the very 
idea of a non-political, independent judiciary. What else can we 
conclude when Senators won't vote for a nominee who even they say is 
qualified and has high integrity, just because they want to guarantee 
certain results out of the Court? That's not law. That's politics. It 
is the antithesis of the rule of law and constitutional government. Do 
we really just want policy makers in robes? I remember when President 
Clinton's former White House Counsel, Lloyd Cutler, testified before 
the Judiciary Committee. His answer was a resounding ``No.''
  In conclusion, I remind the Senate of something Justice O'Connor said 
last September: the rule of law is ``hard to create and easier than 
most people imagine to destroy.'' That warning speaks directly to what 
we face today. If a partisan block of Senators continue down this path 
of politicization, it cannot be expected to apply to only one party. 
The ultimate loser will not be Republicans or Democrats, but the rule 
of law itself.
  ``Hard to create, and easier than most people imagine to destroy.'' 
My friends, please--take a step back. The man is qualified. He has high 
integrity. He is fair. He deserves your vote.
  The PRESIDING OFFICER. The Senator from Nevada is recognized.
  Mr. ENSIGN. Mr. President, I rise today in support of the nomination 
of Judge Samuel Alito, Jr., to the U.S. Supreme Court.
  One of the greatest honors and responsibilities of a Senator is a 
vote we cast to confirm judges. Our role is not one that I take 
lightly. It is with deep respect for the laws of this Nation and for 
the highest Court in our land that I stand before the Senate today.
  As Senators, we are tasked with the specific duty in the checks and 
balances system of our Government. It is with our advice and consent 
that a President's nominee is confirmed or rejected. This is how it has 
worked since the Constitution was adopted. Our forefathers, with great 
brilliance and foresight, wanted to ensure that no one person wielded 
excessive power. However, at the same time, it is the President who 
selects a nominee. He earns that power as the elected leader of the 
United States. President Bush nominated Judge Alito. We are here to 
consider that nomination.
  I had the opportunity to meet Judge Alito and I find he is extremely 
qualified to join the highest Court in this land. His experience, his 
temperament, his understanding of the role of the Court and his respect 
for the law make him an admirable candidate who I believe will serve 
this Nation well.
  The single most important factor that went into my decision of 
whether to support Judge Alito has to do with the Justices' role on the 
Court. The job of the judiciary is to apply and interpret the 
Constitution and the laws of the land. Unfortunately, not everyone sees 
it that way. That is why judicial activism has become so rampant in 
this country. In no way is it the judiciary's purview to make laws. 
That is clearly the job of legislators. Legislators are to make the 
laws and judges apply them. Judge Alito understands this principle and 
has demonstrated so throughout his esteemed career.
  In his testimony before the Senate Judiciary Committee he spoke about 
the limited role of the judiciary. Judge Alito stated it should always 
be asking itself whether it has strayed over the bounds, whether it is 
invading the authority of the legislature, for example, whether it is 
making policy judgments rather than interpreting the law. That has to 
be a constant process of reexamination of the judges.
  During Judge Alito's confirmation hearing, Democrats tried to make 
the case that judicial precedent is more important than the 
Constitution itself. Most Americans believe the words of the 
Constitution should have real meaning. A strict constructionist 
approach to interpreting the Constitution is necessary for the 
consistent application of our laws. How can we as the legislative 
branch do our jobs effectively when the judicial branch is free to 
provide an expansive reading of the Constitution at any moment? I don't 
believe we can.
  For this reason, we need judges who value the Constitution first. 
Precedent is a necessary tool to ensure consistent application of the 
laws, but precedent should not be held so high that we prohibit judges 
from revisiting bad precedent. The history of the Supreme Court 
supports this idea. If bad precedent could not be overturned, Plessy v. 
Ferguson would still stand and racial segregation would still be legal 
in this country. That thought is truly reprehensible. The Supreme 
Court, in fact, has overturned its own precedent at least 225 times. 
That is nearly once per year.
  I support Judge Alito's nomination because his testimony demonstrates 
his understanding of the principle that the Constitution, and not 
precedent, is preeminent.
  In addition to his clear and committed approach to interpreting laws 
and not being a judicial activist, I think the testimony and support of 
his colleagues speaks volumes about what we can expect from Justice 
Alito.
  Judge Maryanne Trump Barry has served on the Third Circuit with Judge 
Alito since President Bill Clinton appointed her in 1999. She also 
worked in the U.S. Attorney's Office with Judge Alito in the late 
1970s. About his service as U.S. attorney, she stated:

       Samuel Alito set a standard of excellence that was 
     contagious--his commitment to

[[Page S99]]

     doing the right thing, never playing fast and loose with the 
     record, never taking a shortcut, his emphasis on first-rate 
     work, his fundamental decency.

  Judge Aldisert of the Third Circuit, appointed by President Johnson, 
has worked with Judge Alito for 15 years. He testified about the 
experience of those who have served with Judge Alito. Because of Judge 
Alito's work on the bench, he stated:

       . . . we who are his colleagues are convinced that he will 
     also be a great justice.

  The character, the qualifications, and the commitment of Judge Alito 
are not in question by anybody in this room. His long history of public 
service has proven that. He has served our judicial system and our 
Nation with the utmost honor, and we can expect him to continue that 
legacy from our Supreme Court.
  I urge all of my colleagues in the Senate to consider their vote and 
to avoid partisanship. Consider Judge Alito's qualifications. Consider 
his respect for the Constitution. Senator Kyl from Arizona preceded me 
on the floor. He talked about the dangerous precedent that would be set 
if this body were to depart from the standard of judging nominees based 
on their experience in favor of a partisan approach. Republicans, back 
in the 1990s, voted for two people they knew would be liberal. The 
basis on which Judge Alito's confirmation is based will likely 
determine the basis by which all future nominees will be judged.
  What I think is important to consider is not how someone will rule 
but rather on their judicial approach with respect to the words of the 
Constitution, at the writing of the Founders, at the principles on 
which America was founded. That is the judicial approach I want 
somebody to have on the Highest Court in the land. And that is the 
judicial approach I believe--no one knows for sure, but I believe--
Samuel Alito has and how he will make judgments as an Associate Justice 
of the U.S. Supreme Court.
  So I urge all my colleagues to support his nomination. Mr. President, 
I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COLEMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I have come to the Senate floor to 
discuss the nomination of Judge Samuel Alito. My purpose is to share 
with my colleagues and the people of Minnesota my decision to vote to 
confirm Judge Alito and the reasons for it.
  This is one of the most solemn and important events in the life of 
the Senate. From Minnesota, I watched and listened to the hearings 
closely. Judge Alito's intellect and character are nothing short of 
remarkable.
  On day four of the hearings, January 12, 2006, four sitting and two 
former judges of the U.S. Court of Appeals for the Third Circuit 
testified on behalf of Judge Sam Alito's nomination to the Supreme 
Court. They spoke about his independence, judgment, intellect, and 
character.
  I remember listening to Judge Timothy Lewis tell us that Judge Alito 
will be the type of Justice who will listen with an open mind and will 
not have any agenda-driven or result-oriented approach. I think that is 
what we want in a judge.
  What is interesting is that Judge Lewis is a Clinton appointee. He 
stated:

       I am openly and unapologetically pro-choice and always have 
     been.

  Judge Lewis went on to state:

       I am openly--and it's very well known--a committed human 
     rights and civil rights activist and am actively engaged in 
     that process as my time permits. . . .
       I am very, very much involved in a number of endeavors that 
     one who is familiar with Judge Alito's background and 
     experience may wonder--``Well, why are you here today saying 
     positive things about his prospects as a justice on the 
     Supreme Court?''
       And the reason is that having worked with him, I came to 
     respect what I think are the most important qualities for 
     anyone who puts on a robe, no matter what court they will 
     serve on, but in particular, the United States Supreme Court.

  It has been said that the most important decision in Government is 
``who decides?'' With magnificent simplicity, article II, section 2 of 
the Constitution lays out the process for placing members on our 
Highest Court. It says:

       . . . he [the President] shall nominate, and by and with 
     the Advice and Consent of the Senate, shall appoint 
     [justices] of the Supreme Court. . . .

  For us, elected officials, the process of determining who will lead 
is long, drawn out, expensive, and sometimes very noisy. But for the 
selection of Justices, the Founders wanted the process to reflect the 
dignity of the office.
  Unfortunately, we have witnessed a deterioration of the dignity and 
solemnity of that process in the last few years. Despite Chairman 
Specter's best efforts, the hearing before the Judiciary Committee 
seemed, at times, to me, at least in some ways, an exercise in 
futility.
  I would like to know the breakdown between the amount of time 
Senators on the committee spent making speeches for the witness to hear 
and how much time they spent listening to him. The ``advice and 
consent'' process became ``lobby and confront.''
  The Senate should examine the nominee, not dissect him or her.
  I have read he was asked more than 700 questions. The Presiding 
Officer should know; he was there. He sat through part of that 
process. I believe he brought, and others try to bring, a sense of 
asking the nominee about the process that he would employ in making 
decisions. It was clear that what Judge Alito brought to the table was 
not one that says here is what I believe and as a result this is what I 
will do but, rather, what you would want a judge to do: What do the 
facts say, what does the law say, what does the Constitution say.

  In being asked 700 questions, I think that is something like 500 more 
than Justice Ginsburg was asked. Senators on the committee who had 
previously counseled nominees not to answer specific questions on 
issues that will come before them on the Court on this occasion abused 
the nominee for not doing so. The American people know what this 
process is supposed to be about. The President nominates and the Senate 
confirms. The President, who was elected by all the people, did his 
job. Now it is time for us to do ours.
  When we approach issues of greatest magnitude, the Senate should be 
at its very best. I like Stephen Covey's advice to leaders when he 
wrote:

       The Main Thing is to keep the Main Thing the Main Thing.

  Despite all the distractions and attempted detours, there is a main 
thing to be focused on. This main thing is not a particular issue or 
political agenda. This main thing should not vary based on whether your 
party is in the White House. I hope that in my time in the Senate, if 
there is a President of a different party, I will bring the same 
approach that I have tried to bring to the judges that President Bush 
has nominated. My consistent standard throughout my time in the Senate 
will be this: Is the nominee qualified by relevant experience, proper 
judicial temperament, and ethical standards which are beyond reproach? 
Does he bring a perspective that says a judge is to be a judge or 
referee, not to bring his or her personal opinions to the table to 
create law as he or she sees it but, rather, does what Judge Alito 
does, looks at the facts, looks at the law, the Constitution.
  I would submit that a quick search for the votes and record of 
judicial nominations over the last 200 years would indicate this is the 
historical standard almost all Senators have taken. The current 
circumstance of microscopic examination, politicizing, and threats of 
filibusters is a major historical aberration. For the sake of the 
judiciary and the whole constitutional system, I hope we find our way 
back to the way things have been for over the last 200 years plus, 
rather than the last 5 years.
  In my view, Judge Samuel Alito is extremely well qualified to serve 
on the Supreme Court. He has an extraordinary legal mind. There is no 
doubt about it. He has demonstrated in his years on the bench and in 
hundreds of cases that he views the judicial role as following the 
Constitution and interpreting the law, not making the law.
  Judge Alito told us in his own words that ``no person in this 
country, no matter how high or powerful, is above the law, and no 
person in this country

[[Page S100]]

is beneath the law.'' He also told us that ``our Constitution applies 
in times of peace and in times of war, and it protects the rights of 
Americans under all circumstances.''
  On results-oriented jurisprudence, Judge Alito stated:

       Results-oriented jurisprudence is never justified because 
     it is not our job to try to produce particular results. We 
     are not policymakers. We shouldn't be implementing any sort 
     of policy agenda or policy preferences we have.

  In effect, this was the same standard that Judge Roberts applied. I 
recall he was asked a question whether he was ruling on behalf of the 
little guy. And the comment was, if the Constitution says the little 
guy deserves to win, he will. And if it says that he doesn't deserve to 
win, then he won't. That is what judges should do. That is the way they 
should operate.
  Advice and consent was never intended as a rehash of the previous 
Presidential election. It was never intended as a means for the Senate 
to impose its policy agenda on a future court. I worry that we are 
walking down a dangerous path when Senators start looking at judges and 
in effect requiring them to say, yes, I will rule a certain way or 
otherwise you will not get my vote.
  Advice and consent was never intended as a means to grandstand or 
placate interest groups. I will proudly vote to support Judge Alito's 
nomination. His career, his writings, and his class during this less-
than-ideal confirmation process are proof that he will be an 
outstanding member of the highest Court. The President has done his job 
admirably. He has nominated an outstanding judge. The Senate has 
examined his qualifications. Now it is time for us to do our job and 
confirm Samuel Alito as an Associate Justice of the U.S. Supreme Court.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, pending before the U.S. Senate is the 
nomination of Judge Sam Alito from the Third Circuit to the U.S. 
Supreme Court. As I mentioned earlier in the day, it is a historic 
moment seldom seen on the floor of the Senate when we discuss the 
possible elevation of an individual to a lifetime appointment to the 
highest Court in the land.
  The Supreme Court is the last refuge for America's rights and 
freedoms. It is an important institution for our values and our future. 
That is why during the course of the day many Members of the Senate 
have come to the floor to express their feelings about Judge Alito. It 
is largely broken down on partisan lines. Those on the other side of 
the aisle--the Republican side--are virtually all in support of Judge 
Alito. Most on the Democratic side oppose him.
  I have listened to what many of the Republican Senators who have come 
to the floor have said. Almost every Republican Senator who has come to 
the floor today has made the argument that we should all vote for Judge 
Alito because in 1993, some 13 years ago, Justice Ruth Bader Ginsburg, 
a Supreme Court nominee of President Clinton, was confirmed 
overwhelmingly by the Senate. That appears to be talking point No. 1 
that the White House generated not only in conversation today on the 
floor, but also at the hearing concluded recently in the Senate 
Judiciary Committee. There are some fundamental flaws in their 
reasoning and I will point out three:
  First, as I mentioned this morning, Justice Sandra Day O'Connor, 
whose vacancy is being filled, has been the fifth and decisive vote on 
many issues central to our democracy. The Justice who takes her place 
is truly in the position to tip the scales of justice in America. In 
the last 10 years, 193 cases have been decided in the Supreme Court by 
the closest of votes, 5 to 4; and of the 193 cases, Justice Sandra Day 
O'Connor has been the deciding vote in 148; 77 percent of these closely 
divided decisions were decided by Justice Sandra Day O'Connor. Now, the 
Justice whom Ruth Bader Ginsburg replaced in 1993, Byron White, didn't 
play the same pivotal role Justice O'Connor has played as the decisive 
vote on so many important issues.
  Second, President Clinton selected Justice Ginsburg after a real, 
authentic consultation with Republicans in the Senate. This morning, I 
saw Senator Hatch early in the day and I said his book sales must be up 
because everybody is quoting him. It is a book he wrote entitled 
``Square Peg: Confessions of a Citizen Senator.'' In that book, Senator 
Orrin Hatch of Utah described how in 1993, as the top Republican on the 
Judiciary Committee, he received a telephone call from President 
Clinton to discuss possible Supreme Court nominees. Senator Hatch 
recounted in his book--and still stands by it--that he warned President 
Clinton away from a nominee whose confirmation Senator Hatch believed 
``would not be easy,'' in his words. He wrote in his book that he 
suggested the names of Ruth Bader Ginsburg, whom President Clinton had 
never heard of, according to Senator Hatch, and Stephen Breyer. Senator 
Hatch wrote that he assured President Clinton that Ginsburg and Breyer 
``would be confirmed easily.''
  What a contrast to the situation we face today. President Bush sends 
the names of nominees to the Senate without previous consultation. In 
fact, I may be mistaken on this particular nominee, Judge Alito, but I 
do recall Senator Specter saying he learned of Harriet Miers' 
nomination when the news media announced it--or only shortly before. I 
think he said he was called within an hour or so before the news 
announcement. That is much different than the consultation that took 
place with Senator Hatch and President Clinton, where President Clinton 
went to the ranking Republican--not even the Chair at that moment--and 
asked him for advice and consultation on the next Supreme Court 
nomination.
  Judge Alito was nominated not as a product of bipartisan consultation 
with the Senate but, rather, as a payoff--or at least a satisfaction to 
the radical right who had turned their back on Harriet Miers' 
nomination.
  There is another crucial difference between Judge Alito and Judge 
Ginsburg. Despite some Republican Senators' efforts to rewrite history, 
Judge Ginsburg was viewed at the time of her nomination as a moderate 
and centrist judge based on her dozen years of service on the Federal 
bench. In a National Public Radio news story dated June 18, 1993, a 
reporter named Nina Totenberg said as follows:

       Why did the Republicans feel so comfortable with Judge 
     Ginsburg? The answer is that her judicial record shows her to 
     be the most conservative Carter-appointed judge on the U.S. 
     Court of Appeals here in the District of Columbia.

  She's considered a centrist, a swing vote. And in fact, a statistical 
analysis done in 1987 of that Court's voting pattern shows Judge 
Ginsburg voting substantially more often with the court's conservative 
Republican bloc of judges, led by then-Judge Robert Bork, than with the 
liberal Democrat judges.
  Judge Alito, by contrast, has never been called a centrist judge. At 
least those who looked at his record have not called him that. He is 
not a judge who votes more often with his Democratic colleagues than 
his Republican colleagues. Far from it. Judge Alito is a staunch 
conservative and the most frequent dissenter on his court. When he 
dissents, it is almost always in a rightward and more conservative 
direction.
  I spoke earlier about Judge Alito's track record on civil rights. I 
talked about some of the cases in which he showed a particular 
insensitivity to those who came before his court without the trappings 
of power. In fact, Judge Alito, in many of those cases, was the sole 
dissenting judge. Because Justice O'Connor was the fifth and deciding 
vote on so many cases involving civil rights and racial justice, Judge 
Alito will tip the scales of justice on those issues if he is 
confirmed.
  At this point, I ask unanimous consent to have printed in the Record 
a letter of January 6, 2006, from the Leadership Conference on Civil 
Rights that has been submitted in opposition to the nomination of Judge 
Alito, signed by Dr. Dorothy Height, chairperson, and Wade Henderson, 
executive director.

[[Page S101]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                             Leadership Conference


                                              on Civil Rights,

                                  Washington, DC, January 6, 2006.
     Hon. Arlen Specter, Chairman,
     Hon. Patrick J. Leahy, Ranking Member,
     Committee on the Judiciary, U.S. Senate, Washington, DC.
       Dear Chairman Specter and Ranking Member Leahy: On behalf 
     of the Leadership Conference on Civil Rights (LCCR), the 
     nation's oldest, largest, and most diverse civil and human 
     rights coalition, we write to express our opposition to the 
     confirmation of Judge Samuel A. Alito, Jr. as Associate 
     Justice of the Supreme Court of the United States. The 
     Supreme Court's jurisprudence over the past 50 years has 
     often served to protect the fundamental constitutional rights 
     of all Americans. Judge Alito's decisions, however, often 
     stand in direct contrast to that jurisprudence and embrace a 
     much more limited and narrow view of constitutional rights 
     and civil rights guarantees. A careful examination of Judge 
     Alito's record reveals a history of troubling decisions in 
     the areas of civil rights, civil liberties, and fundamental 
     freedoms, decisions that undermine the power of the 
     Constitution and of Congress to, protect the civil and human 
     rights of all Americans. LCCR believes that Judge Alito's 
     record does not demonstrate an adequate commitment to 
     protecting fundamental rights and, therefore, urges the 
     Senate to reject his nomination.
       The Supreme Court is the final arbiter of our laws, and its 
     rulings can drastically impact the lives, liberties, and 
     rights of all Americans. As such, LCCR believes that no 
     individual should be confirmed to the Supreme Court unless he 
     or she has clearly shown a strong commitment to the 
     protection of civil rights and liberties, human rights, 
     privacy, and religious freedom. The evidence reviewed to date 
     shows that Judge Alito's record in these areas is highly 
     troubling. His overall record reveals a jurist whose views 
     are clearly to the right of where most Americans stand on a 
     number of issues, including the reach of civil rights laws, 
     the constitutional safeguards afforded those within our 
     criminal justice system, and the power of Congress to protect 
     Americans in the workplace and elsewhere.
       In addition, LCCR is very troubled by the statements Judge 
     Alito made in his 1985 application to be the Reagan 
     administration's Deputy Assistant Attorney General in the 
     Office of Legal Counsel. In particular, Judge Alito cited his 
     disagreement with key rulings by the Supreme Court on 
     legislative reapportionment, criminal justice and religious 
     liberties, and added that he was ``particularly proud'' of 
     his work to restrict affirmative action and limit remedies in 
     racial discrimination cases. Although he now claims that 
     these were just mere words on an application, his record as a 
     jurist reveals something different. The ideological views 
     taken in the application and during his time in the Reagan 
     administration are exemplified throughout his judicial 
     decision making, where he routinely favors a reading of 
     statutory and constitutional law that limits the rights of 
     individuals and the power of Congress to protect those 
     individuals. The following is a summary of the reasons for 
     LCCR's opposition:


     Judge Alito's ``Disagreement'' with Supreme Court Rulings on 
                            Reapportionment

       In an essay attached to a 1985 application for a position 
     within the Department of Justice, Judge Alito wrote that he 
     had been motivated by his opposition to, among other things, 
     the Warren Court's rulings on legislative reapportionment. 
     Because those rulings first articulated the fundamental civil 
     rights principle of ``one person, one vote,'' and paved the 
     way for major strides in the effort to secure equal voting 
     rights for all Americans, his stated opposition to them is 
     extremely troubling. It is vital to understand the context in 
     which these cases were decided.
       Prior to the 1960s, as urban areas throughout the country 
     experienced rapid population growth, many state and federal 
     legislative districts were not redrawn, often leaving rural 
     voters with far more representation per capita--and thus far 
     more political power--than urban residents. In Florida, for 
     example, just 12 percent of the population could elect a 
     majority of the state senate. While unequal districts 
     affected all voters, their impact was especially harsh in the 
     South, where, along with discriminatory requirements like 
     poll taxes and literacy tests, malapportionment virtually 
     guaranteed the exclusion of racial minorities from the 
     democratic process. Until 1962, the federal courts generally 
     refused to intervene, dismissing such matters as ``political 
     questions.''
       The Supreme Court's ruling in Baker v. Carr broke new 
     ground when the Court declared, for the first time, that the 
     federal courts had a role to play in making sure that all 
     Americans have a constitutional right to equal 
     representation. In Wesberry v. Sanders, the Court examined 
     Congressional districts in the State of Georgia, which had 
     drawn its legislative map so that 823,680 people in the 
     Atlanta are were all represented by one Congressman, while a 
     rural Congressman represented only 272,154 people. The Court 
     held that these disparities violated the Equal Protection 
     Clause of the 14th Amendment, and ordered that the districts 
     be redrawn more evenly. In Reynolds v. Sims, the Court 
     applied the principle of ``one person, one vote'' to state 
     legislatures, which, in many cases, had even more drastic 
     malapportionment than Congressional districts. For example, 
     the Reynolds case itself challenged Alabama's legislative 
     districts, in which one county with more than 600,000 people 
     had only one senator, while another county with only 15,417 
     people also had its own senator.
       In articulating the concept of ``one person, one vote,'' 
     the so-called ``Reapportionment Revolution'' cases equalized 
     political power between urban and rural voters, and ensured 
     that every citizen would have an equal voice in the 
     legislative process. Along with the passage of the Voting 
     Rights Act of 1965 and its subsequent amendments, the 
     decisions also paved the way to far greater representation of 
     racial and ethnic minorities, at both the state and federal 
     levels of government. They also helped open the door for 
     legal challenges to the ``at-large'' and ``multi- 
     member'' districts that many Southern states established 
     in an effort to circumvent the Baker rulings and continue 
     excluding African-American voters from the political 
     process.
       The Warren Court decisions that established the 
     constitutional principle of ``one person, one vote'' were a 
     catalyst for tremendous progress in our nation's efforts to 
     secure equal voting rights for all Americans, and quickly 
     became so accepted as a matter of constitutional law that 
     they could fairly be described as ``superprecedent.'' Yet two 
     decades later, long after most of the nation had come to 
     embrace this progress, Judge Alito still boasted of his 
     opposition to it. The fact that he would use his opposition 
     as a ``selling tactic'' for a job in 1985 is disconcerting, 
     and raises suspicions about his overall legal philosophy that 
     deserve extensive scrutiny.


 Judge Alito's Narrow Reading of Anti-Discrimination and Other Worker 
                            Protection Laws

       Judge Alito's record also raises concerns about whether he 
     would be a strong enforcer of our nation's civil rights and 
     labor laws. His decisions thus far in such cases show a 
     pattern of narrow interpretations of the laws, placing 
     greater burdens on civil rights plaintiffs to prove 
     discrimination and making it harder for the government to 
     protect workers.
       In a number of cases involving race, gender, disability, 
     and age discrimination, Judge Alito was clearly to the right 
     of his colleagues on the Third Circuit. In Bray v. Mariott 
     Hotels, for example, the Third Circuit ruled that an African-
     American plaintiff who had been denied a promotion had shown 
     that racial discrimination might have been a factor, and that 
     she was therefore entitled to take her case to trial. But 
     Judge Alito dissented, writing an opinion that prompted the 
     majority to charge that ``Title VII would be eviscerated if 
     our analysis were to halt where the dissent suggests.'' In 
     Sheridan v. E.I DuPont de Nemours and Co., a gender 
     discrimination plaintiff sued after being denied a promotion. 
     A jury ruled in her favor, but the trial judge threw out the 
     verdict. The Third Circuit found that she had presented 
     enough evidence to persuade the jury that discrimination was 
     a factor, but Judge Alito was the lone dissenter in the en 
     banc decision. Judge Alito acknowledged that additional 
     evidence of discrimination, beyond proof that an employer's 
     explanation for an adverse decision was pretextual, should 
     not usually be required for a plaintiff to get to a jury, but 
     he maintained that summary judgment might still be 
     appropriate in some cases. The result Judge Alito would have 
     reached in the Sheridan case, however--reversing a jury 
     finding of sex discrimination that every other judge on the 
     Third Circuit would have upheld--undermines the neutral 
     standard he articulated. To reach this result, Judge Alito 
     not only gave the employer the benefit of the doubt but 
     failed to consider some of the most important evidence 
     brought by Sheridan. Finally, in Nathanson v. Medical College 
     of Pennsylvania, a prospective medical student filed suit 
     under the Rehabilitation Act of 1973, claiming that the 
     school failed to provide accommodations for a back injury. 
     The trial court granted summary judgment in favor of the 
     school, but a Third Circuit panel reversed on the 
     Rehabilitation Act claim because there were different factual 
     assertions that necessitated a jury trial. Judge Alito 
     dissented, prompting his colleagues to write that under his 
     standards, ``few if any Rehabilitation Act cases would 
     survive summary judgment.
       Judge Alito's record on anti-discrimination cases becomes 
     more troubling when considered in light of his record prior 
     to serving on the Third Circuit. As Assistant to the 
     Solicitor General during the Reagan administration, Judge 
     Alito co-authored several amicus curiae briefs that sought to 
     eliminate affirmative action policies that were put in place 
     to remedy past discrimination, discrimination which, in one 
     case, persisted in contravention of at least three court 
     orders over an eight-year period. In his 1985 application for 
     a promotion within the Justice Department, Judge Alito later 
     mischaracterized these cases as involving nothing more than 
     challenges to ``racial and ethnic quotas.'' Judge Alito's 
     involvement in the Reagan Justice Department's zealous 
     campaign to undermine affirmative action remedies suggests 
     that he adheres to an ideology that goes beyond mere 
     conservatism on civil rights matters.
       In cases involving other worker protections that deal with 
     such matters as salary,

[[Page S102]]

     pensions and job safety, Judge Alito has also demonstrated a 
     clear and unmistakable tendency to rule narrowly and against 
     working people. Given a choice between reading a statute 
     broadly, consistent with Congress' intent to provide workers 
     with basic protections, or reading a statute in the narrowest 
     way possible, he again shows a disturbing tendency to come 
     down against workers. In Reich v. Gateway Press, for example, 
     Judge Alito dissented from a ruling in which the Third 
     Circuit found that employees of a group of related community 
     newspapers were protected by the overtime rules of the Fair 
     Labor Standards Act. The majority reasoned that while the law 
     may not have covered each individual newspaper, which were 
     small in size and circulation, the papers and all employment 
     decisions were managed by one company and thus amounted to an 
     ``enterprise'' that was subject to the overtime law. Judge 
     Alito dissented, however, and would have denied this 
     coverage, claiming that neither the statute nor the 
     legislative history could support the majority's conclusion. 
     In Belcufine v. Aloe, on the other hand, Judge Alito took a 
     more expansive reading of the law, but in this case it was in 
     order to benefit corporate officers at the expense of 
     workers. Belcufine involved a state law that held corporate 
     officers personally liable for unpaid wages and benefits. 
     Judge Alito ruled, in a split decision, that the law could no 
     longer be applicable, as a matter of policy, once a 
     corporation has filed a bankruptcy petition. The dissenting 
     opinion pointed out that nothing in the statute in question 
     ``even remotely can be read to excuse the agents and 
     officers'' from liability once a company files for 
     bankruptcy.


   Judge Alito's Willingness to Undercut Fundamental Privacy and Due 
                             Process Rights

       In cases involving criminal justice matters such as the 
     Fourth Amendment, habeas corpus, and the right to effective 
     assistance of counsel, Judge Alito has shown an excessive 
     tendency to defer to police and prosecutors. This deference 
     frequently comes at the expense of the constitutional rights 
     and civil liberties of individual Americans, and it raises 
     concerns about whether Judge Alito would help enable 
     governmental abuses of power.
       In Doe v. Groody, Judge Alito argued in dissent that police 
     officers who conducted strip searches without a warrant could 
     still be entitled to qualified immunity. The majority 
     concluded, in a decision authored by Judge Chertoff, that 
     strip searches of the suspect's wife and ten-year-old 
     daughter went well beyond the police's warrant to search the 
     home of a suspected drug dealer, and that the officers were 
     therefore not entitled to claim qualified immunity as a 
     defense to a subsequent lawsuit. As Judge Chertoff noted, 
     holding otherwise would ``transform the judicial officer into 
     little more than the cliche `rubber stamp.' '' Judge Alito, 
     in criticizing the majority for what he called a ``technical 
     and legalistic'' ruling in favor of the plaintiffs, would 
     have granted authority to the police to decide who could be 
     searched and therefore, would have given the officers 
     immunity for invading the privacy rights of the wife and 
     daughter. In United States v. Lee, Judge Alito upheld the 
     warrantless video surveillance by the FBI of a suspect's 
     hotel suite. He justified his ruling on the ground that the 
     FBI only turned on the surveillance equipment when an 
     informant was present in the suite and could ``consent'' to 
     the surveillance, but this ruling disregarded the fact that 
     the equipment was capable of being used at any time and thus 
     enabled the FBI to invade the suspect's privacy at any time. 
     And in Baker v. Monroe Township, a woman and her children 
     were searched as they were entering premises that were the 
     subject of a search wacrant. The search warrant specified a 
     location but there were no names included on the warrant, 
     which led the majority to conclude that the warrant was 
     deficient under the requirements of the Fourth Amendment. 
     Judge Alito dissented, however, arguing that the lack of 
     particularity in the warrant allowed the officers more leeway 
     to search anyone on the premises.
       Judge Alito's overly deferential attitude toward law 
     enforcement at the expense of privacy rights was also evident 
     before his appointment to the Third Circuit. In a 1984 
     memorandum, Judge Alito--then an attorney with the Justice 
     Department--opined that the Attorney General and other 
     government officials should have absolute immunity from civil 
     liability for wiretapping the phones of Americans without a 
     warrant. He urged the administration not to pursue such an 
     argument in a pending Supreme Court case, but only on purely 
     strategic grounds. The Supreme Court, in Mitchell v. Forsyth, 
     went on to rule that absolute immunity did not apply in such 
     situations, rejecting the broad, troubling view expressed in 
     Judge Alito's memorandum.
       Judge Alito's record is equally troubling in other areas of 
     criminal justice, and shows the same excessive deference to 
     law enforcement that can open the door to abuses. In another 
     1984 memorandum, Judge Alito argued in defense of a state law 
     that had authorized Tennessee police to use deadly force 
     against any fleeing felon suspect whom police have probable 
     cause to believe had committed a violent crime or was armed 
     or dangerous. In the case of Tennessee v. Garner, that law 
     was invoked after police shot and killed an unarmed, 15-year-
     old, 5'4'' burglary suspect while he was climbing a fence. 
     While Judge Alito did not recommend filing an amicus curiae 
     brief in support of the police in the case, he still found 
     the shooting to be constitutionally defensible. When given a 
     choice between killing a possibly nonviolent suspect and 
     allowing a possibly violent suspect to escape, Judge Alito 
     argued that ``[r]easonable people might choose differently 
     in this situation.'' The Supreme Court disagreed wiih 
     Alito's farfetched analysis, finding ihe statute 
     unconstitutional by a 6-3 margin.
       Judge Alito's record also reveals a distressing tendency to 
     deny habeas corpus claims of those in the criminal justice 
     system. In Rompilla v. Horn, Judge Alito held that in ihe 
     sentencing phase of a capital murder case, the failure of a 
     defense attorney to investigate and present mitigating 
     evidence, including ihe defendant's traumatic childhood, 
     alcoholism, mental retardation, cognitive impairment and 
     organic brain damage, did not amount to ineffective 
     assistance of counsel in violation of the Sixth Amendment. 
     His ruling was decried as ``inexplicable'' by the dissent and 
     was overturned by the Supreme Court, which noted that some of 
     the mitigating evidence was publicly available in the very 
     courthouse in which the defendant was tried. Justice O'Connor 
     concurred in reversing Judge Alito's ruling, describing the 
     defense attorney's performance as ``unreasonable.'' In 
     another case, Smith v. Horn, Judge Alito's dissent would have 
     denied ihe habeas claims of a death row inmate. Judge Alito 
     concluded that a jury instruction regarding the defendant's 
     guilt, which the majority found the jury could have 
     reasonable misunderstood, did not amount to a constitutional 
     violation.
       Finally, the case of Riley v. Taylor shows Judge Alito's 
     reluctance to question prosecutors even where racism is 
     alleged in the jury selection process. In that case, Judge 
     Alito did not find a constitutional violation in the 
     prosecution's apparent use of peremptory challenges to 
     exclude black jurors from a death penalty case involving an 
     African-American defendant. His dissent in the case 
     illustrated a disregard for ihe impact of racially motivated 
     peremptory jury strikes on African-American defendants. The 
     majority had relied, in part, on statistical data to conclude 
     that black jurors had been excluded, but Judge Alito took 
     issue with the use of statistics, questioning the exclusion 
     of black jurors as a statistical oddity and comparing it to 
     the fact that five of the last six U.S. Presidents had been 
     left-handed. His comments drew a sharp rebuke from the 
     majority, who said that ``[t]o suggest any comparability to 
     the striking of jurors based on their race is to minimize the 
     history of discrimination against prospective black jurors 
     and black defendants.


           Judge Alito's Troubling Record on Immigration Law

       Judge Alito's record in appeals of asylum and deportation 
     orders reveals an abnormally strong tendency to let adverse 
     Board of Immigration Appeals (BIA) and lower court rulings 
     stand. For example, an analysis by The Washington Post found 
     that Judge Alito has sided with immigrants in only one out of 
     every eight cases he has handled, which, according to the 
     Post, sets him apart even from most Republican-appointed 
     judges. Judge Alito's record is more problematic in light of 
     the recently growing criticism, by many other federal 
     judges from both parties, of asylum rulings by the BIA and 
     administrative immigration judges.
       In asylum cases, Judge Alito has a strong tendency to rule 
     against individuals who are seeking protection in the United 
     States, even where evidence shows that they have been or 
     would have been persecuted in their own countries. In Chang 
     v. INS, Judge Alito dissented from the court's grant of 
     asylum for a Chinese engineer who claimed he would face 
     persecution if returned to his own country. Judge Alito found 
     no reason to reverse the INS denial of asylum despite the 
     fact that Chang had presented evidence that his wife and son 
     already faced persecution and he was threatened with jail if 
     he returned to China. Similarly, in Dia v. Ashcroft, Judge 
     Alito dissented from a majority opinion granting asylum to an 
     immigrant from the Republic of Guinea whose house had been 
     burnt down and whose wife had been raped in retaliation for 
     his opposition to the government. The majority noted that the 
     immigration judge seemed to be searching for ways to deny 
     asylum and find fault with the credibility of Dia. Judge 
     Alito's dissent pushed for a higher standard. The majority 
     criticized Judge Alito's dissent, noting that his proposed 
     standard would ``gut the statutory standard'' and ``ignore 
     our precedent.''
       Judge Alito's excessive tendency to defer to the BIA is 
     also evident from his record in deportation cases. In Lee v. 
     Ashcroft, Judge Alita dissented when the court ruled that a 
     false tax return is not an ``aggravated felony,'' an 
     immigration law term that triggers mandatory deportation and 
     bars most forms of humanitarian waivers. The court reasoned 
     that Congress only intended for tax evasion to trigger 
     mandatory deportation, but Judge Alito disagreed and pushed 
     for a more expansive reading of the law. The majority noted 
     that ambiguity in the law should be resolved in favor of the 
     immigrant and that Judge Alita's interpretation was grounded 
     in ``speculation.'' In Sandoval v. Reno, Judge Alito's 
     dissent would have construed the Antiterrorism and Effective 
     Death Penalty Act of 1996 to strip the federal courts of 
     their ability to hear habeas corpus claims from aliens in 
     custody challenging deportation orders. The Supreme Court 
     ultimately rejected

[[Page S103]]

     Judge Alita's reading of the law, in INS v. St. Cyr, because 
     such an interpretation would raise serious constitutional 
     questions.
       Also troubling is a 1986 letter Judge Alito wrote, in his 
     capacity as Deputy Assistant Attorney General, to former FBI 
     Director William Webster in which he suggested, inter alia, 
     that ``illegal aliens have no claim to nondiscrimination with 
     respect to nonfundamental rights,'' and that the Constitution 
     ``grants only fundamental rights to illegal aliens within the 
     United States.'' Judge Alito uses a strained reading of the 
     1976 Supreme Court ruling in Mathews v. Diaz to support this 
     assertion, but oddly, he makes no mention of the 1982 ruling 
     in Plyler v. Doe, which squarely ruled that a state could not 
     discriminate against undocumented children in public 
     education, even though education is not considered a 
     fundamental constitutional right. As such, Judge Alito's 
     letter raises questions about whether he would be willing to 
     adequately protect undocumented immigrants from 
     unconstitutional forms of discrimination.


       Judge Alito's Restrictive View of the Establishment Clause

       Judge Alito's record shows that he takes an overly narrow 
     view of the First Amendment's Establishment Clause, a view 
     that sets him apart from Justice O'Connor and the majority of 
     her colleagues to serve on the Supreme Court. His record--
     along with his acknowledged disagreement with the Supreme 
     Court's most noteworthy rulings in this area--raises concerns 
     that he would not do enough to protect the religious 
     liberties of an increasingly diverse America.
       For example, in ACLU of New Jersey v. Black Horse Pike 
     Regional Board of Education, Judge Alito voted--against an en 
     banc majority of his colleagues on the Third Circuit--to 
     uphold a public school policy that allowed high school 
     seniors to vote on whether to include prayer during a 
     graduation ceremony. By allowing a popular majority of public 
     school students to waive the rights of a minority, Judge 
     Alito's view--had it not also been subsequently rejected by 
     the Supreme Court in a later case--would have essentially 
     defeated the purpose of the Establishment Clause.
       Judge Alito's ruling in ACLU of New Jersey v. Schundler 
     (Schundler II) is equally troubling. In Schundler, the 
     municipality of Jersey City, New Jersey had placed a creche 
     and menorah outside of City Hall. After a district court 
     ruled that the display violated the Establishment Clause, the 
     city added additional figures to the following year's 
     display, including those of Santa Claus, Frosty the Snowman, 
     a red sled, and Kwanzaa symbols. The district court 
     eventually found that this modified display was also 
     unconstitutional. Judge Alito reversed this decision, 
     however, and upheld the modified display. In doing so, he 
     minimized the fact that the display had only been modified in 
     response to litigation and that the city had been attempting 
     to promote religion through its holiday displays for 
     decades--even though the Supreme Court considers such history 
     to be highly relevant when determining whether a practice or 
     policy violates the Establishment Clause.


  Judge Alito's Efforts to Limit Congressional Authority in Favor of 
                           ``States' Rights''

       Judge Alito's record demonstrates a troubling tendency to 
     favor ``states' rights'' over the rights of ordinary 
     Americans. During his tenure on the Third Circuit, he has 
     engaged in an excessively narrow reading of the Commerce 
     Clause and an excessively broad reading of state sovereign 
     immunity under the 11th Amendment. In fact, his decisions 
     show that he would go even further than the current Supreme 
     Court in undercutting Congress' ability to protect Americans.
       In United States v. Rybar, the Third Circuit upheld the 
     conviction of a firearms dealer for the sale of outlawed 
     machine guns, joining six other circuits in finding the 
     federal law banning the transfer or possession of machine 
     guns to be a valid exercise of Congressional authority under 
     its power to regulate interstate commerce. But Judge Alito 
     dissented, arguing that the Supreme Court's recent decision 
     in United States v. Lopez, which invalidated Congress' gun-
     free school zone ban, made clear that Congress did not have 
     such power. The majority distinguished Lopez because it dealt 
     with a small geographic area--school zones--whereas the law 
     at issue in Rybar applied nationwide. Judge Alito would have 
     taken Lopez a step beyond to place further restrictions on 
     Congress' power to use its Commerce Clause authority to 
     protect Americans from machine gun violence. Judge Alito's 
     extraordinarily narrow perspective of Congressional power 
     expressed in his Rybar dissent raises serious concerns about 
     whether he will uphold major and historically effective 
     pieces of civil rights infrastructure such as the ban on 
     discrimination in places of employment or public 
     accommodation in the Civil Rights Act of 1964, and whether he 
     will hold a restrictive view of Congress' power to move the 
     country forward with additional civil rights laws such as 
     hate crimes and non-discrimination legislation.
       In Chittister v. Department of Community and Economic 
     Development, Judge Alito's majority opinion would have denied 
     a state employee the benefits of the Family and Medical Leave 
     Act of 1993 (``FMLA''). In this case, a state employee had 
     sued after being fired for taking medical leave that had been 
     approved pursuant to FMLA. A jury ruled in Chittister's 
     favor, but the trial court reversed the verdict on the ground 
     that the state was immune from suit under the 11th Amendment. 
     On appeal, Judge Alito affirmed the ruling, claiming that 
     Congress had not abrogated state sovereign immunity. The 
     Supreme Court later reached an opposite conclusion from Judge 
     Alito's holding in its 2003 decision in Nevada Department of 
     Human Resources v. Hibbs. The Court held that state employees 
     could in fact sue their employers under the FMLA, a decision 
     that has subsequently been read by some courts to validate 
     the constitutionality of the entire law.


     judge alito's membership in ``concerned alumni of princeton''

       In the same job application essay described above, Judge 
     Alito also stated that he was ``a member of the Concerned 
     Alumni of Princeton University. a conservative alumni group'' 
     (``CAP''). Throughout its existence, CAP was notorious for 
     its outspoken, inflammatory rhetoric opposing Princeton's 
     decision to enroll female students. Indeed, CAP reportedly 
     advocated limiting the percentage of women admitted to the 
     school. CAP also derided Princeton's efforts to increase the 
     number of minority students; the group argued that children 
     of alumni were more deserving of admission. In the group's 
     magazine, Prospect, one of the organization's founders fondly 
     recalled that Princeton had once been ``a body of men, 
     relatively homogenous in interests and backgrounds,'' but 
     that he now worried about the future of the University ``with 
     an undergraduate student body of approximately 40% women and 
     minorities, such as the Administration has proposed.'' In 
     1975. an alumni panel reviewed admission issues and condemned 
     CAP's characterization of Princeton's policies. The panel, 
     which included current Senate Majority leader Bill Frist, 
     determined that CAP ``presented a distorted, narrow and 
     hostile view of the university that cannot help but have 
     misinformed and even alarmed many alumni.'' It is unclear 
     when Judge Alito joined the group or what role he played in 
     its activities. But his membership in the organization is 
     troubling, given the group's outspoken hostility towards the 
     inclusion of women and minorities at Princeton University, 
     and it raises serious questions about the level of his 
     commitment to gender and racial equality.
       Also troubling is Judge Alito's current effort, following 
     his nomination to the Supreme Court, to now deny he ever had 
     any affiliation with the group. In a questionnaire he 
     recently submitted to the Senate Committee on the Judiciary, 
     Judge Alito stated that ``[a] document I recently reviewed 
     reflects that I was a member of the group [Concerned Alumni 
     of Princeton] in the 1980s. Apart from that document, I have 
     no recollection of being a member, of attending meetings, or 
     otherwise participating in the activities of the group.'' 
     This supposed lack of any recollection of being a member of 
     CAP seems difficult, at best, to reconcile with the statement 
     he made in his 1985 job application essay--a statement in 
     which he not only cited his membership in CAP, but 
     deliberately used this claim of membership in an effort to 
     bolster his conservative credentials.


                               Conclusion

       The stakes could not be higher. The Supreme Court is 
     closely divided on cases involving many of our most basic 
     rights and freedoms. Judge Alito has been nominated to fill 
     the seat of retiring Justice Sandra Day O'Connor, who was the 
     crucial deciding vote in so many of those cases. The American 
     people want and deserve to know that any new Supreme Court 
     justice will be committed to protecting individual rights, 
     and will put our freedoms ahead of any political agenda. 
     Unfortunately, Judge Alito's record not only fails to show 
     such a commitment, but also raises serious doubts.
       In addition, we also have doubts about whether Judge Alito 
     will, at his confirmation hearings, address the above 
     concerns in a fully open and candid manner. For instance, 
     Judge Alito has given numerous shifting and conflicting 
     reasons for why he did not, as he promised to Senators before 
     being confirmed to the Third Circuit, recuse himself from 
     cases involving the Vanguard companies, in which he had 
     financial holdings. Furthermore, Judge Alito has also 
     recently tried to dismiss a number of troubling statements in 
     his 1985 job application, such as his disagreement with the 
     Warren Court's reapportionment cases, by suggesting that his 
     statements should not be taken seriously because he was 
     simply applying for a job. Finally, as discussed above, Judge 
     Alito has also attempted to deny any affiliation with the 
     radical group Concerned Alumni of Princeton, even though he 
     himself proudly claimed to be a member in 1985. These 
     incidents raise doubts about whether Judge Alito's responses 
     to tough questions about his record and his legal philosophy 
     can be completely believed when his confirmation hearings 
     begin next week.
       For the above reasons, we must oppose his confirmation as 
     Associate Justice. We appreciate your consideration of our 
     views. If you have any questions, please feel free to contact 
     LCCR Deputy Director Nancy Zirkin at (202) 263-2880 or LCCR 
     Counsel Rob Randhava at (202) 466-6058. We look forward to 
     working wi1h you.
       Sincerely,
     Dr. Dorothy I. Height,
                                                      Chairperson.
     Wade Henderson,
                                               Executive Director.


[[Page S104]]


  Mr. DURBIN. Mr. President, there is another aspect of Judge Alito's 
record that is equally troubling, and that is his failure to show that 
he will protect the average American from the overreaching hand of 
government.
  I question whether he is dedicated to protecting the privacy rights 
of individuals from government officials in many critical areas of our 
lives. For example, I share the concern of many of my colleagues about 
Judge Alito's decision to allow a police officer to conduct a strip 
search of an innocent 10-year-old girl. The police officer, who did not 
have a valid search warrant in the opinion of a majority of the judges 
on Judge Alito's court, took the 10-year-old girl and her mother into a 
bathroom, ordered them to empty their pockets, and then ordered the 
young girl and the mother to lift their shirts and drop their pants--a 
10-year-old girl. A majority of the judges on Judge Alito's court said 
that went too far; the search warrant did not authorize it. Judge Alito 
saw it differently. He was the only judge on the court to say that the 
Constitution permitted this search.
  The majority opinion in this case, incidentally, was written by 
Michael Chertoff. If the name is familiar, it is because then-Judge 
Chertoff, a conservative Republican, today is in the President's 
Cabinet as the head of our Department of Homeland Security. Judge 
Chertoff, writing the majority opinion, said that what was done was 
wrong, and Judge Alito's decision was wrong.
  In the context of reproductive freedom, I am troubled about whether 
Judge Alito accepts some of the basic rights of personal privacy. One 
of the cases which we should not forget was decided some 41 years ago 
by the Supreme Court. The case was Griswold v. Connecticut.
  As hard as it may be to believe, there was a law in the State of 
Connecticut and in many other States, including my home State of 
Illinois, at that time which made it a crime for a married couple to 
buy birth control devices or for a doctor to prescribe them or for a 
pharmacist to fill the prescription. It was a crime for married couples 
to engage in family planning by buying any type of birth control 
device. It is hard to believe. That was America in the 1960s.
  The Supreme Court took a look at this case and said that is wrong. 
There is built into our rights as a citizen the right of privacy, and 
that privacy goes to those intimate, personal decisions made by 
individuals--in this case, husbands and wives--in the State of 
Connecticut. They struck down the Connecticut statute.
  I asked Judge Alito what he thought about this Griswold decision and 
this right of privacy. He was willing to say that Griswold is settled 
law. But, of course, Griswold v. Connecticut and the right of privacy 
was the basis of a decision made a few years later in Roe v. Wade. In 
that particular case, the Supreme Court built on this concept of a 
right of privacy and said that for a woman making the most important 
and personal decision of her life, in terms of the continuing of a 
pregnancy, she had a protected status in certain stages of the 
pregnancy. That was a decision which was handed down over 30 years 
ago--33, as a matter of fact.
  So we asked Judge Alito if he accepted that Griswold v. Connecticut, 
which established the right to privacy, was settled law in America, and 
did he also accept that Roe v. Wade, which followed, was settled law? 
He repeatedly refused to provide us with that assurance about this 
landmark decision.
  What a contrast to John Roberts, who, just a few months before when 
he was nominated for the Chief Justice position on the Supreme Court 
and was asked the same question, said that he believed Roe v. Wade was 
settled precedent in America. That is a defining difference between 
these two nominees and an important one.
  If Judge Alito is confirmed, there are very serious questions about 
what will happen with the right of privacy in America, not just for the 
women who could be affected by these decisions but for everyone.
  It wasn't that long ago, a little over a year ago, that the Congress 
was embroiled in a controversy over something that many families face 
every day in America. You will remember the Terri Schiavo case, a sad 
situation where some chemical imbalance led to Terri Schiavo going into 
a coma. Her life was sustained by extraordinary means for 15 years 
while her husband argued that she never wanted it that way. She had 
made it clear not to take extraordinary measures to keep her alive.
  There was a battle within the family. Her parents saw it differently, 
and they went to court regularly to fight this out. Time and again, the 
Florida courts reached the decision that what Terri Schiavo's husband 
said would be controlling and that her wishes would be honored and that 
extraordinary measures to keep her alive would be discontinued, and 
then the case would be appealed.
  Finally, the day came when all appeals had been resolved, and it was 
apparent a decision would finally be made to remove the life support 
she was receiving. It was at that moment when a group--a political 
group--inspired some Members of Congress to get involved. They started 
arguing it was the time, at that moment, for the Federal courts to step 
into the hospital room and for the Federal judges to make decisions 
overriding the State courts, overriding the stated wishes of Terri 
Schiavo, overriding the wishes of her husband.
  There is hardly a person in the Senate who hasn't faced a similar 
family decision when someone you love is near the end of their life and 
the doctor comes in and says there are several things we can do. I know 
in my family, my mother made it very clear to me she didn't want any of 
that life support, extraordinary effort made. I was determined to honor 
her wishes. She passed away very quickly with a heart attack, and we 
never had to face that decision, but we knew what she wanted. Her sons 
said they would stand by her wishes. Most people feel the same way. Do 
you know why, Mr. President? Because it is an extremely private, 
personal, and family issue. But in the case of Terri Schiavo, there 
were those in the U.S. Congress, particularly in the House of 
Representatives, who wanted the Federal Government to step in at that 
moment.
  So when we talk about diminishing the right of privacy in America, it 
goes far beyond the contentious issue of abortion. It goes to issues 
involving the last wishes of a person who is dying. It goes to issues 
involving protecting our privacy and our records, our computers, our 
medical records, our financial records, and our credit history. The 
right of privacy has become a large part of American life, and I am 
concerned when Judge Alito has drawn distinctions in saying there are 
some elements of this right of privacy that he still is not certain are 
settled law in America.
  Another fear I have about Judge Alito is that he will not be 
respectful of the time-honored system of checks and balances in this 
country when it comes to Presidential power. If confirmed, Judge Alito 
will have to decide what limits, if any, the Constitution places on the 
President's authority over all of us.
  Based on his record, I am concerned that Judge Alito will not be 
willing to stand up to a President who is determined to seize too much 
power over our personal lives. In speeches to the ultraconservative 
Federalist Society which Judge Alito bragged about belonging to in the 
1980s, Judge Alito has said he is a ``strong proponent'' of the so-
called ``unitary Executive theory,'' another phrase you won't find in 
the Constitution. He even criticized the Supreme Court, specifically 
Chief Justice Rehnquist, for failing to defer to this theory. During 
his hearings, Judge Alito said he still supports key elements of the 
theory today and indicated he will follow it, to some degree, in making 
his decisions.

  The same unitary executive theory has been the basis for many claims 
by the Bush administration that they had the Executive power to make 
some of the most controversial decisions of their Presidency, including 
the war on terrorism, the use of torture, and the power to eavesdrop on 
our phone conversations without court approval, as required by law.
  Based on the unitary executive theory, the Bush administration has 
claimed the right to seize American citizens and imprison them 
indefinitely without charge. In the Hamdi case, the Supreme Court, in 
an opinion written by Justice Sandra Day O'Connor, rejected this 
policy. Only one Justice

[[Page S105]]

voted to uphold the administration's decision. That Justice, Clarence 
Thomas, based his dissent on the unitary executive theory, the same 
general theory to which Judge Alito says he subscribes.
  It appears that if Judge Alito is approved for the Court, he will 
join Justice Thomas and Justice Scalia as only the third Supreme Court 
Justice who has announced public support for this fringe theory called 
the unitary executive theory which gives more and more power to the 
President and less restraint of law on his activities.
  The Supreme Court is supposed to be a check on the power of the 
President. The Court's role is to interpret the Constitution, not to 
advance some marginal theory of the Federalist Society or any other 
special interest group. During his hearings, Judge Alito did attempt to 
distinguish his position on the unitary executive theory from the Bush 
administration's, but he refused to say whether he disagreed with 
Justice Thomas' dissent in Hamdi, and he repeatedly refused to say 
whether this President or any President has the right to disregard a 
law passed by Congress.
  Several Senators asked Judge Alito about this directly, and several 
times he gave the same carefully worded response--and I quote it:

       The President must take care that the statutes of the 
     United States that are consistent with the Constitution are 
     complied with.

  Here is what we don't know about that statement: If the President 
claims that a law is not consistent with the Constitution, can he 
ignore the law with impunity? And if Judge Alito is on the Supreme 
Court, is that how he would rule? That certainly is the way he answered 
the question.
  Presidents often issue formal statements when they sign a law. When 
Judge Alito was an attorney in President Reagan's Justice Department, 
he advocated the use of Presidential signing statements to, in his own 
words, ``increase the power of the Executive to shape the law.'' In 
this way, Sam Alito argued ``the President will get in the last word on 
questions of interpretation.''
  The Framers of our Constitution didn't see it the same as Judge 
Alito. They said Congress was to have the last word.
  The Bush administration has adopted Judge Alito's proposal. In more 
than 100 Presidential signing statements, the Bush administration has 
cited unitary executive theory and pledged to uphold the law if it 
doesn't conflict with this theory.
  Just 3 weeks ago, we saw a good illustration. The White House issued 
a Presidential signing statement claiming that the President could set 
aside the McCain torture amendment which Congress passed overwhelmingly 
in December. Under what rationale could a President ignore a law that 
passed in this Chamber 90 to 9? The White House claimed the President 
has the power under the ``unitary Executive theory.'' So hold on to 
your seats, America. If Judge Alito goes onto the Court pushing this 
theory that was inspired by the Federalist Society saying this 
President has extraordinary powers no President has ever had, it will 
consolidate more power in the executive branch than our Founding 
Fathers ever imagined.
  Does any President have the power to ignore the McCain torture 
amendment or FISA, the law that requires court approval to wiretap 
American citizens? Based on his record, I am fearful that Judge Alito, 
facing these questions, is more likely to defer to the President's 
power than defend our fundamental constitutional rights.
  I will speak more to this issue about wiretaps in a moment.
  I also fear that Judge Alito, if confirmed, would blur the 
traditional line between church and state. In his 1985 job application 
essay, he indicated his disapproval of the Warren Court decisions on 
the establishment clause of the Constitution.
  What is the establishment clause? In the first amendment, the 
Constitution makes clear that we have the freedom of religious belief. 
Of course, that means each of us has the right under the law, under our 
Constitution, to believe any religious belief or to hold to no 
religious belief. That is our basic freedom. It says:

       Congress shall make no law respecting an establishment of 
     religion. . . .

  This was an understandable part of our Constitution because many of 
our Founding Fathers hailed from England, which had an official 
national church. They wanted to make it clear that there would be a 
separation, a clear wall of separation between church and state, as 
Thomas Jefferson said in the early 1800s.
  The Warren Court, led by Earl Warren, as Chief Justice, struck down 
government-sponsored prayer and government-sponsored devotional Bible 
reading in public schools, arguing that it violated the establishment 
clause. The decisions by the Warren Court were nearly unanimous. They 
stood for the proposition, as the Constitution said, that our 
government must be neutral toward religion in order to maintain this 
healthy separation of church and state. This concept of government 
neutrality is the bedrock of today's mainstream establishment clause 
thinking, and it is led by none other than Justice Sandra Day O'Connor. 
Yet from a review of Judge Alito's 15 years on the Federal bench, it is 
clear that Judge Alito has serious reservations about whether 
government should be neutral toward religion, as our Constitution 
requires.

  I think we ought to reflect on this long and hard. We live in a 
country of diverse religious belief. We try to show respect for each 
person's religious belief, and we make it clear that our government 
won't pick favorites among religions. We can only look overseas to 
other countries that are torn with strife over religious divisions to 
understand the wisdom of our Founding Fathers, a wisdom that should be 
honored by our Supreme Court.
  The rulings of Judge Sam Alito on the Third Circuit raise questions 
as to whether he will continue to protect the separation of church and 
state that has served America so well.
  Let me speak for a moment about a timely issue which is not only in 
the headlines but really relates directly to this confirmation 
consideration of Judge Alito. Like many Americans, I am deeply 
concerned about recent revelations that sometime in 2001, President 
Bush authorized the National Security Agency to begin spying on 
Americans in the United States without court approval. This is an 
apparent violation of law.
  Let me say at the outset, this is not about whether we should wiretap 
terrorists. Of course, we should. We should use every legal tool 
available to put an end to Osama bin Laden's deadly franchise.
  Under a law called the Foreign Intelligence Surveillance Act, or 
FISA, the President has broad authority to wiretap suspected 
terrorists. The FISA Court has been virtually a rubberstamp for 
Presidents asking for wiretap orders. In fact, over 19,000 requests 
have been made of this court to wiretap suspected terrorists, and the 
administration has been denied only 4 times. 19,000 requests, 4 
denials.
  Within the FISA law there is an emergency exception so if there is a 
suspicion that a conversation about to take place needs to be 
wiretapped to protect America, the Government can move quickly, without 
court approval, so long as they go through the regular process within 
72 hours. So the Government can act if they suspect that a conversation 
would lead to terrorism and endanger Americans.
  So the President has authority, under this Foreign Intelligence 
Surveillance Act, to engage in the activities he has described to the 
American people: time-sensitive electronic surveillance on suspected 
terrorists.
  What this debate really is about is the President's constitutional 
obligation to follow the laws of the land. Legal scholars, former 
Government officials from both political parties, and the nonpartisan 
Congressional Research Service have all concluded that the NSA program 
appears to violate the law.
  Even President Bush has recognized it is improper to wiretap 
Americans in the United States without court approval. Listen to what 
President Bush said in a speech to the American people on April 20, 
2004. I quote it verbatim:

       Now, by the way, any time you hear the U.S. Government 
     talking about wiretapping, it requires--a wiretap requires a 
     court order. Nothing has changed, by the way. When we are 
     talking about chasing down terrorists we are talking about 
     getting a court order before we do so.


[[Page S106]]


  That is the end of the quote, April 20, 2004, after the President had 
initiated this NSA wiretapping that is not approved by law and does not 
use a court order.
  When President Bush concluded over 4 years ago that he wanted to 
eavesdrop on Americans without the court approval required by law, he 
had an obligation to come to Congress and ask us to change the law.
  Congress has always been a willing partner when the President has 
requested additional authority to fight terrorism. I can recall the 
President, within days of 9/11, asking for an authorization for the use 
of force by this Congress to go after Osama bin Laden and al-Qaida, 
which I readily voted for. There was unanimous support for a bipartisan 
resolution which passed the Senate.
  Shortly thereafter, the President came to Congress and asked us to 
pass the PATRIOT Act. It was an act that gave the Government more 
authority, more tools, more legal ways to go after terrorism in the 
United States. It was overwhelmingly approved with only one dissenting 
vote in the Senate. Within the PATRIOT Act, the President asked for 
some changes in this FISA law to make it easier to wiretap terrorists.
  So the administration at this point seems to concede the point that 
they were bound by this law and were looking for changes so they could 
use it, in their words, more effectively. We tried to accommodate them 
as much as we possibly could. When the White House asked Congress to 
pass this bill, we cooperated with them. Members of Congress from both 
sides of the aisle were happy to work with the President to keep 
America safe.
  That is not what the President has done here. Instead, we have 
learned that the President has not followed even the law that he asked 
us to change. He claims the power to eavesdrop on the phone 
conversations of Americans and e-mails without any court approval, 
without any legal authority.
  That raises fundamental questions. Is this President or any President 
above the law? Does the President have the authority to disregard laws 
passed by Congress, whether it is the question of torture or 
eavesdropping? Can Congress place any limits on the President's power 
over our lives?
  Today I joined the distinguished minority leader, Senator Harry Reid, 
and my colleagues, Senators Kennedy and Feingold, and sent a letter to 
President Bush. We have urgently requested that the President notify us 
immediately of the changes in the law that he believes are necessary to 
permit effective surveillance of suspected terrorists and why the 
changes are needed.
  I ask unanimous consent that this letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate.

                                 Washington, DC, January 25, 2006.
     President George W. Bush,
     The White House,
     Washington, DC.
       Dear President Bush: We strongly support efforts to do 
     everything possible, within the limits of the law, to combat 
     terrorism. We are therefore gravely concerned that sometime 
     in 2001, in apparent violation of federal law, you authorized 
     the National Security Agency (NSA) to eavesdrop on Americans 
     in the United States without court approval.
       When you concluded over four years ago that existing law 
     did not provide you sufficient authority to conduct this 
     program, you had an obligation to propose changes in the law 
     to Congress. Rather than doing so, you have apparently chosen 
     to ignore the law. We urgently request that you notify us 
     immediately what changes in the law you believe are necessary 
     to permit effective surveillance of suspected terrorists, and 
     why these changes are needed.
       The Foreign Intelligence Surveillance Act (FISA) gives the 
     government broad authority to wiretap suspected terrorists. 
     Federal law provides that FISA and the criminal wiretap 
     statute ``shall be the exclusive means by which electronic 
     surveillance . . . and the interception of domestic wire, 
     oral, and electronic communications may be conducted.'' 18 
     U.S.C. Sec. 2511(2)(f). FISA makes it a crime, punishable by 
     up to five years in prison, to conduct electronic 
     surveillance except as permitted by statute. 50 U.S.C. 
     Sec. 1809.
       In fact, you have recognized that it is improper to subject 
     Americans in the United States to warrantless wiretapping. In 
     a speech on April 20, 2004, you said: ``Now, by the way, any 
     time you hear the United States government talking about 
     wiretap, it requires--a wiretap requires a court order. 
     Nothing has changed, by the way. When we're talking about 
     chasing down terrorists, we're talking about getting a court 
     order before we do so.''
       You and officials in your administration have repeatedly 
     asserted that FISA does not provide adequate authority to 
     monitor suspected terrorists. However, FISA authorizes 
     monitoring suspected terrorists, who are the purported 
     targets of NSA's warrantless wiretaps. Moreover, FISA 
     includes an emergency exception for situations where there is 
     insufficient time to obtain judicial approval before 
     beginning a wiretap. This exception allows the government 
     to commence electronic surveillance immediately, as long 
     as it seeks a court order within 72 hours. 50 U.S.C. 
     Sec. 1805(f). During the course of its existence, the FISA 
     court has approved over 19,000 wiretap applications from 
     the government while disapproving only four.
       It therefore appears that your administration has 
     sufficient authority under FISA to engage in the activities 
     you have described--time-sensitive electronic surveillance of 
     suspected terrorists.
       Officials in your administration have asserted that the 
     government's internal process for preparing and authorizing a 
     FISA application is too burdensome and slow to monitor 
     suspected terrorists effectively. To be clear, your 
     administration's bureaucratic and paperwork delays are not an 
     excuse for violating the law. As the nonpartisan 
     Congressional Research Service (CRS) concluded: ``To the 
     extent that a lack of speed and agility is a function of 
     internal Department of Justice procedures and practices under 
     FISA, it may be argued that the President and the Attorney 
     General could review these procedures and practices in order 
     to introduce more streamlined procedures to address such 
     needs.'' CRS Memorandum, Presidential Authority to Conduct 
     Warrantless Electronic Surveillance to Gather Foreign 
     Intelligence Information, by Elizabeth A. Bazan & Jennifer K. 
     Elsea.
       If you or officials in your administration believe that 
     FISA, or any law, does not give you enough authority to 
     combat terrorism, you should propose changes in the law to 
     Congress. You may not simply disregard the law.
       In your December 19, 2005 press conference, you called FISA 
     ``a very important tool.'' FISA is more than a tool; it is a 
     law, and we are a nation of laws. Under Article 1 of the 
     Constitution, Congress has the power to make laws. Under 
     Article 2 of the Constitution, you must take care that the 
     laws are faithfully executed.
       In order to win the war on terrorism, we must maintain the 
     high ground by respecting the rule of law as embodied in our 
     Constitution. To do otherwise makes us weaker as a nation and 
     harms our national security. The Supreme Court long ago 
     rejected the notion that there is a wartime exception to the 
     Constitution's separation of powers. As the Court concluded 
     in the historic Youngstown Steel case: ``The Constitution is 
     neither silent nor equivocal about who shall make laws which 
     the President is to execute. . . . The Founders of this 
     Nation entrusted the lawmaking power to the Congress alone in 
     both good and bad times.'' 343 U.S. 579, 587-89 (1952).
       In light of the very serious nature of this matter, we 
     request that you respond to this letter as soon as possible, 
     and, in any case, no later than February 1, 2006.
           Sincerely,
     Harry Reid,
       U.S. Senator.
     Edward M. Kennedy,
       U.S. Senator.
     Richard J. Durbin,
       U.S. Senator.
     Russell D. Feingold,
       U.S. Senator.

  Mr. DURBIN. The President cannot continue to simply disregard the 
law.
  At a press conference on December 19, 2005, President Bush called 
FISA ``a very important tool.'' I would say to the President, FISA is 
more than a tool. It is a law, and we are a nation of laws.
  Our Constitution separates powers between different branches of 
Government. Under article I of the Constitution, Congress has the power 
to make laws. Under article 2 of the Constitution, the President must 
take care that the laws are faithfully executed.
  The Supreme Court has faced questions like this in the past, 
questions regarding the powers of the President in the midst of a war. 
During the Korean war, President Harry Truman violated the law by 
seizing America's steel mills to aid the war effort. In the historic 
Youngstown Steel case, the Court rejected President Truman's actions 
and concluded:

       The Constitution is neither silent nor equivocal about who 
     shall make laws which the President is to execute. . . . The 
     Founders of this Nation entrusted the lawmaking power to the 
     Congress alone in both good and bad times.

  In order to win the war on terrorism, we must maintain the high 
ground by respecting our Constitution and respecting the laws of the 
land. To do otherwise makes us weaker as a nation and harms our 
national security.

[[Page S107]]

  And that is what is at stake with this Supreme Court nomination. 
Judge Sam Alito, from his early days in the Reagan administration, 
through the rulings in his court and his testimony before the Judiciary 
Committee, time and again seems to defer to the Executive's assertions 
of power. At this moment in history, like none other in recent times, 
that is a critical and timely issue. We have to ask the question, would 
this judge on the Court protect our basic privacy and personal freedom 
or would he give to this President power to ignore the law?
  Last week Attorney General Gonzales issued a long memo supporting the 
administration's position on the NSA spying program. That memo went so 
far as to suggest that this administration is not even bound by the 
PATRIOT Act. It suggests that the President can use the powers 
authorized by the PATRIOT Act without even the limited checks and 
balances contained in the PATRIOT Act, regardless of what Congress 
says.
  So what has happened is the administration has gone from the question 
of torture to this whole question of eavesdropping, and now has 
suggested that this President has the authority to do whatever he cares 
to do in the name of his power as Commander in Chief.
  The Supreme Court in the past has not agreed with Presidents who have 
tried to seize that much power. President Truman learned that the hard 
way. I am hopeful this Supreme Court will respect the Constitution and 
respect the laws of the land and restrain this President or any 
President who tries to move that far and that fast.
  So it comes down to this with the Alito nomination. I am afraid as we 
look carefully at his record it is clear that he would allow the 
Government to go too far, to intrude on our personal privacy and our 
freedoms. I am afraid that he would take the country in the wrong 
direction when it comes to women's rights and civil rights. I am afraid 
that his record, as I mentioned earlier on the floor today, is evidence 
that when he is given a choice between ruling in court for an 
established institution--whether it is a business or a government--or 
standing with a consumer or an individual, he consistently rules for 
the established institution. I am afraid that the 1985 memo, which 
became a large part of his recent hearing, still guides Judge Alito in 
many respects in his heart of hearts.
  I think the fact that Harriet Miers was rejected by so many 
conservative groups and the President had to withdraw her nomination 
has to be taken into consideration here. Judge Sam Alito came as her 
successor, as the nominee. The same groups that had rejected her 
accepted Sam Alito. They know or believe they know what I have spoken 
of this evening, that his is a philosophy that is outside the 
mainstream, that is not consistent with the values of this country and 
not consistent with the fine record written by Justice Sandra Day 
O'Connor.
  Mrs. BOXER. Mr. President, yesterday in Burbank, CA, I gave a major 
address before my constituents announcing my opposition to the 
nomination of Samuel Alito to the Supreme Court of the United States.
  Today I am announcing my opposition to the nomination of Samuel Alito 
to the Supreme Court of the United States.
  According to article II of the Constitution, Justices of the Supreme 
Court may not be appointed by the President without the advice and 
consent of the Senate. So it is our solemn duty to consider each 
nomination carefully, keeping in mind the interests of the American 
people.
  This nomination is particularly crucial because the stakes have 
rarely been so high.
  First, consider the context in which this nomination comes before us. 
The seat that Judge Alito has been nominated for is now held by Justice 
Sandra Day O'Connor, who came to the Court in 1981.
  For years, Justice O'Connor has provided the tie-breaking vote and a 
commonsense voice of reason in some of the most important cases to come 
before the Court, including a woman's right to choose, civil rights, 
and freedom of religion.
  Second, consider the tumultuous political climate in our Nation. 
President Bush understood that in 2000 when he promised to govern from 
the center, and be ``a uniter, not a divider.'' Sadly, this nomination 
shows that he has forgotten that promise because it is not from the 
center and it is not uniting the Nation.
  The right thing to do would have been to give us a justice in the 
mold of Justice O'Connor, and that is what the President should have 
done.
  Let me be clear: I do not deny Judge Alito's judicial qualifications. 
He has been a government lawyer and judge for more than 20 years and 
the American Bar Association rated him well qualified. He is an 
intelligent and capable person. His family should be proud of him and 
all Americans should be proud that the American dream was there for the 
Alito family.
  But after reviewing the hearing record and the record of his 
statements, writings and rulings over the past 24 years, I am convinced 
that Judge Alito is the wrong person for this job.
  I am deeply concerned about how Justice Alito will impact the ability 
of other families to live the American dream to be assured of privacy 
in their homes and their personal lives, to be secure in their 
neighborhoods, to have fair treatment in the workplace, and to have 
confidence that the power of the executive branch will be checked.
  As I reviewed Judge Alito's record, I asked whether he will vote to 
preserve fundamental American liberties and values.
  Will Justice Alito vote to uphold Congress's constitutional power to 
pass laws to protect Americans' health, safety, and welfare? Judge 
Alito's record says no.
  In the 1996 Rybar case, Judge Alito voted to strike down the Federal 
ban on the transfer or possession of machine guns because he believed 
it exceeded Congress's power under the Commerce Clause. His Third 
Circuit colleagues sharply criticized his dissent and said that it ran 
counter to ``a basic tenet of the constitutional separation of 
powers.'' And Judge Alito's extremist view has been rejected by six 
other circuit courts and the Supreme Court. Judge Alito stood alone and 
failed to protect our families.
  In a case concerning worker protection, Judge Alito was again in the 
minority when he said that Federal mine health and safety standards did 
not apply to a coal processing site. He tried to explain it as just a 
``technical issue of interpretation.'' I fear for the safety of our 
workers if Judge Alito's narrow, technical reading of the law should 
ever prevail.
  Will Justice Alito vote to protect the right to privacy, especially a 
woman's reproductive freedom? Judge Alito's record says no.
  We have all heard about Judge Alito's 1985 job application, in which 
he wrote that the Constitution does not protect the right of a woman to 
choose. He was given the chance to disavow that position during the 
hearings and he refused to do so. He had the chance to say, as Judge 
Roberts did, that Roe v. Wade is settled law, and he refused.
  He had the chance to explain his dissent in the Casey decision, in 
which he argued that the Pennsylvania spousal notification requirement 
was not an undue burden on a woman seeking an abortion because it would 
affect only a small number of women, but he refused to back away from 
his position. The Supreme Court, by a 5 to 4 vote, found the provision 
to be unconstitutional, and Justice O'Connor, co-writing for the Court, 
criticized the faulty analysis supported by Judge Alito, saying that 
``the analysis does not end with the one percent of women'' affected . 
. . ``it begins there.''
  To my mind, Judge Alito's ominous statements and narrow-minded 
reasoning clearly signal a hostility to women's rights, and portend a 
move back toward the dark days when abortion was illegal in many 
states, and many women died as a result. In the 21st century, it is 
astounding that a Supreme Court nominee would not view Roe v. Wade as 
settled law when its fundamental principle a woman's right to choose--
has been reaffirmed many times since it was decided.
  Will Justice Alito vote to protect Americans from unconstitutional 
searches? Judge Alito's record says no.
  In Doe v. Groody in 2004, he said a police strip search of a 10-year-
old girl was lawful, even though their search warrant didn't name her. 
Judge Alito said that even if the warrant did not actually authorize 
the search of the

[[Page S108]]

girl, ``a reasonable police officer could certainly have read the 
warrant as doing so . . .'' This casual attitude toward one of our most 
basic constitutional guarantees--the fourth amendment right against 
unreasonable searches--is almost shocking. As Judge Alito's own Third 
Circuit Court said regarding warrants, ``a particular description is 
the touchstone of the Fourth Amendment.'' We certainly do not need 
Supreme Court Justices who do not understand this fundamental 
constitutional protection.
  Will Justice Alito vote to let citizens stop companies from polluting 
their communities? Judge Alito's record says no.
  In the Magnesium Elektron case, Judge Alito voted to make it harder 
for citizens to sue for toxic emissions that violate the Clean Water 
Act. Fortunately, in another case several years later, the Supreme 
Court rejected the Third Circuit and Alito's narrow reading of the law. 
Judge Alito doesn't seem to care about a landmark environmental law.
  Will Justice Alito vote to let working women and men have their day 
in court against employers who discriminate against them? Judge Alito's 
record says no.
  In 1997, in the Bray case, Judge Alito was the only judge on the 
Third Circuit to say that a hotel employee claiming racial 
discrimination could not take her case to a jury.
  In the Sheridan case, a female employee sued for discrimination, 
alleging that after she complained about incidents of sexual 
harassment, she was demoted and marginalized to the point that she was 
forced to quit. By a vote of 10 to 1, the Third Circuit found for the 
plaintiff.
  Guess who was the one? Only Judge Alito thought the employee should 
have to show that discrimination was the ``determinative cause'' of the 
employer's action. Using his standard would make it almost impossible 
for a woman claiming discrimination in the workplace to get to trial.
  Finally, will Justice Alito be independent from the executive branch 
that appointed him, and be a vote against power grabs by the president? 
Judge Alito's record says no.
  As a lawyer in the Reagan Justice Department, he authored a memo 
suggesting a new way for the President to encroach on Congress's 
lawmaking powers. He said that when the President signs a law, he 
should make a statement about the law, giving it his own 
interpretation, whether it was consistent with what Congress had 
written or not. He wrote that this would ``get in the last word on 
questions of interpretation'' of the law. In the hearings, Judge Alito 
refused to back away from this memo.
  When asked whether he believed the President could invade another 
country, in the absence of an imminent threat, without first getting 
the approval of the American people, of Congress, Judge Alito refused 
to rule it out.
  When asked if the President had the power to authorize someone to 
engage in torture, Alito refused to answer.
  The administration is now asserting vast powers, including spying on 
American citizens without seeking warrants--in clear violation of the 
Foreign Intelligence Surveillance Act--violating international 
treaties, and ignoring laws that ban torture. We need Justices who will 
put a check on such overreaching by the executive, not rubberstamp it. 
Judge Alito's record and his answers at the hearings raise very serious 
doubts about his commitment to being a strong check on an `imperial 
President.'
  In addition to these substantive matters, I remain concerned about 
Judge Alito's answers regarding his membership in the Concerned Alumni 
of Princeton and his failure to recuse himself from the Vanguard case, 
which he had promised to do.
  During the hearings, we all felt great compassion for Mrs. Alito when 
she became emotional in reaction to the tough questions her husband 
faced in the Judiciary Committee. Everyone in politics knows how hard 
it is for families when a loved one is asked tough questions. It is 
part of a difficult process, and whoever said politics is not for the 
faint of heart was right.
  Emotions have run high during this process. That is understandable. 
But I wish the press had focused more on the tears of those who will be 
affected if Judge Alito becomes Justice Alito and his out-of-the-
mainstream views prevail.
  I worry about the tears of a worker who, having failed to get a 
promotion because of discrimination, is denied the opportunity to 
pursue her claim in court.
  I worry about the tears of a mentally ill woman who is forced by law 
to tell her husband that she wants to terminate her pregnancy and is 
afraid that he will leave her or stop supporting her.
  I worry about the tears of a young girl who is strip searched in her 
own home by police who have no valid warrant.
  I worry about the tears of a mentally retarded man, who has been 
brutally assaulted in his workplace, when his claim of workplace 
harassment is dismissed by the court simply because his lawyer failed 
to file a well-written brief on his behalf.
  These are real cases in which Judge Alito has spoken. Fortunately, he 
did not prevail in these cases. But if he goes to the Supreme Court, he 
will have a much more powerful voice--a radical voice that will replace 
a voice of moderation and balance.
  Perhaps the most important statement Judge Alito made during the 
entire hearing process was when he told the Judiciary Committee that he 
expects to be the same kind of Justice on the Supreme Court as he has 
been a judge on the Circuit Court.
  That is precisely the problem. As a judge, Samuel Alito seemed to 
approach his cases with an analytical coldness that reflected no 
concern for the human consequences of his reasoning.
  Listen to what he said about a case involving an African-American man 
convicted of murder by an all-White jury in a courtroom where the 
prosecutors had eliminated all African-American jurors in many previous 
murder trials as well.
  Judge Alito dismissed this evidence of racial bias and said that the 
jury makeup was no more relevant than the fact that left-handers have 
won five of the last six Presidential elections. When asked about this 
analogy during the hearings, he said it ``went to the issue of 
statistics . . . (which) is a branch of mathematics, and there are ways 
to analyze statistics so that you draw sound conclusions from them. . . 
.''
  That response would have been appropriate for a college math 
professor, but it is deeply troubling from a potential Supreme Court 
Justice.
  As the great jurist and Supreme Court Justice Oliver Wendell Holmes, 
Jr. wrote in 1881, ``The life of the law has not been logic; it has 
been experience . . . The law embodies the story of a nation's 
development through many centuries, and it cannot be dealt with as if 
it contained only the axioms and corollaries of a book of 
mathematics.''
  What Holmes meant is that the law is a living thing, that those who 
interpret it must do so with wisdom and humanity, and with an 
understanding of the consequences of their judgments for the lives of 
the people they affect.
  It is with deep regret that I conclude that Judge Alito's judicial 
philosophy lacks this wisdom, humanity and moderation. He is simply too 
far out of the mainstream in his thinking. His opinions demonstrate 
neither the independence of mind nor the depth of heart that I believe 
we need in our Supreme Court Justices, particularly at this crucial 
time in our Nation's history.
  That is why I will oppose this nomination.

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