Executive Session

EXECUTIVE SESSION

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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.

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

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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 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.

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. §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. §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. §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.

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.

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