Executive Session
EXECUTIVE SESSION -- (Senate - January 25, 2006)
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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.
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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 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 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.
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.
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.
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