| “Mr. President, let me begin by congratulating
the Senator from Minnesota for an absolutely superb
presentation of the arguments that are at stake in
this choice the Senate faces. I think he has done a
terrific job of summarizing a great many of those
issues in the broad scope of those issues, and I
particularly appreciate the last comments he made
about the absence of unanimity and the divisions in
the Senate over their vote.
“None of us should forget the debate Harriet
Miers met with a storm of criticism -- not from this
side but from the other, from the right-wing. In
fact, she became more unacceptable to the
Republicans because she did not make clear which
ideological direction she would take the Court,
rather than for the very broad-based appeal she
would pose to the country.
“So the reason we are here with this decision is
not because of a choice we have made. It is because
of a choice the President has made. It is because
that’s the direction the President wants to move in.
We have had countless opportunities in the Senate
where we have had votes on nominees which have
garnered 100 votes, 98 votes, 95, 90. Anyone who is
watching this understands that the Senate is divided
on this nominee. At this pivotal moment in our
country's history with the issues we face, that is
not the way to tip the balance of the Court or to
move the Court in an ideological direction.
“The critical question here is, Why are we so
compelled to accept in such a rush a nominee who has
so clearly been chosen for political and ideological
reasons? That is the real question. Our job is to
advise and consent. No one understands better than I
do the consequences of an election and what happens
when a President wins. I have heard colleagues say:
Well, the President won. He has a right to make his
choice. Yes, he does. And the choice he has made is
an ideological choice to take the Court in a certain
direction. That is his choice.
“Our choice depends on our rights as Senators and
depends on what the Constitution tells us we should
do in terms of giving advice and consent. My
question to the Senate is, What is our advice with
respect to the rights of a young person to be
strip-searched or with respect to people in their
homes or with respect to a whole series of other
critical things that define this country? What is
the advice of the Senate in this year?
“These are not small issues to be expedited away
by some kind of a symbolic timetable, a State of the
Union Message. Our advice and consent ought to be
weighed just as carefully and as importantly as the
impact this choice is going to have on the Court for
years to come. This is not the vote of Monday
afternoon. This is a vote of history.
“Deciding on whether to confirm Judge Sam Alito
to be an Associate Justice is one of the most
important votes I will cast in the time I have been
in the Senate because of what it means to the Court
and to these critical choices.
“Confirming Judge Alito to a lifetime appointment
on the Supreme Court would have irreversible
consequences that are already defined if Senators
will take the time to measure them.
“In my judgment, it will take the country
backwards on critical issues. I will not talk about
them all now; we do not have time. I know there is a
pre-agreement. I understand that, and I respect
that.
“I am proud to join my friend, the senior Senator
from Massachusetts, in taking a stand against this
nomination. I know it is an uphill battle. I have
heard many of my colleagues. I hear the arguments:
Reserve your gunpowder for the future. What is the
future if it changes so dramatically at this moment
in time? What happens to those people who count on
us to stand up and protect them now, not later, not
at some future time?
“This is the choice for the Court now. I reject
those notions that there ought to somehow be some
political calculus about the future. This impact is
going to be now. This choice is now. This
ideological direction is defined now.
“This fight is not a fight for the short term.
This is a fight over two very fundamentally
different views about what defines us, what is
appropriate in the relationship between government
and citizen, and the right of our citizens to be
free from unlawful government action. These are not
just words. This is not something we just casually
throw out there. ‘Unlawful government action’ is
part of what motivated people to come here in the
first place and to fight for what we love and
cherish.
“I used to be a prosecutor, and I worked closely
with police. I loved my work with the police. I
respect the police. They do unbelievably dangerous
work on behalf of our country every single day. They
may walk into a home, into a dark corner, not
knowing who is there or what evil awaits them. I
understand that. I also understand when you assume
that responsibility, you assume a responsibility to
uphold the law, to uphold the Constitution, and to
help protect people. That is part of the risk, part
of what you take on.
“What about the right to equal justice under the
law? I heard one Senator the other day come to the
Senate and say it isn't the job of a Supreme Court
Justice to protect the downtrodden or the
disenfranchised, it is their job to interpret the
law. On countless occasions we all know the weight
that comes to bear in that decision-making process
between powerful interests and those who do not have
a voice. That is also part of what defines us. What
makes America different from every country on the
face of the Earth is that the average citizen can go
into a courthouse in America and hold the most
powerful corporation to account for their safety,
for their livelihood, for their welfare. These are
rights that Americans care about deeply.
“The importance of this choice is highlighted by
focusing on the seat that this nominee has been
chosen to replace.
“Look at Justice Sandra Day O'Connor, a deciding
vote, a vote that will likely be lost if Judge Alito
takes her place. Look at the case of Grutter v.
Bollinger, which held that State colleges and
universities have the right to use affirmative
action in their admission policies to increase
educational opportunities for minorities and promote
racial diversity on campuses.
“What about Tennessee v. Lane, which upheld the
constitutionality of Title II of the Americans with
Disabilities Act that required that courtrooms be
physically accessible to the disabled. Or Rush
Prudential HMO v. Moran, which upheld state laws
giving people the right to a second doctor's opinion
if their HMO tries to deny them treatment. That is a
classic example of power against the powerless. It
happens every day in America. An HMO decides, no; an
individual citizen wants the coverage they think
they got. Will they have the right to have the
access on that?
“Hunt v. Cromarie, affirming the right of state
legislatures to take race into account to secure
minority voting rights and redistricting -- we all
know what has happened in this country, the
challenge to the rights of minorities to vote. We
still see it. As recently as in the last election we
saw minorities denied opportunities to register,
opportunities to have equal numbers of voting
machines in their district. These are the things
that define us.
“Brown v. Legal Foundation of Washington, which
maintained the key source of funding for legal
assistance for the poor; Alaska Department of
Environmental Conservation v. EPA, which allowed the
EPA to step in and take action to reduce air
pollution under the Clean Air Act when a State
conservation agency fails to act -- there is not an
American that doesn't understand we are going
backwards with respect to air quality. What are the
rights of the EPA going to be where Justice Sandra
Day O'Connor was the swing vote, 5-4, the only one
who held the line on the right of the EPA to do
that?
“Steinberg v. Carhart, which overturned a State
law that would have banned abortion as early as the
12th week of pregnancy without providing an
exception to a woman's health -- the list goes on.
These are the issues which are at stake.
“Throughout his legal career -- these are not
things that are made up. These are defined by the
writings, by the decisions, by the memoranda, by the
speeches that Judge Alito has made. In each of
those, in all of those, there is a startling lack of
skepticism that is healthy in judges towards
government power that infringes on individual rights
and liberties. Professor Goodwin Liu of the
University of Berkeley Law School concluded after
analyzing those:
“Judge Alito ‘is less concerned about the
government overreaching than Federal appeals judges
nationwide, less concerned than Republican-appointed
appeals judges nationwide, and less concerned than
his Republican-appointed colleagues on the Third
Circuit.’
“Aren’t we going to be concerned that he is less
concerned than those of the same stripe? Not only is
his record outside the mainstream of the judicial
spectrum, but ‘it is at odds with the Supreme
Court's vital role in protecting privacy, freedom,
and due process of law.’ That is Professor Liu.
“In 1984, for example, Judge Alito wrote a
Justice Department memorandum concluding that the
use of deadly force against a fleeing unarmed
suspect did not violate the fourth amendment. The
victim was a 15-year-old African American. He was 5
foot 4. He weighed 100 to 110 pounds. This unarmed
eighth grader was attempting to jump a fence with a
stolen purse containing $10 when he was shot in the
back of the head in order to prevent escape. The
Sixth Circuit Court of Appeals found the shooting
unconstitutional because deadly force can only be
used when there is ‘probable cause that the suspect
poses a threat to the safety of the officers or a
danger to the community if left at large.’ That is
what we teach law enforcement officials.
“But Judge Alito disagreed. Judge Alito said: No,
he believed the shooting was reasonable because ‘the
State is justified in using whatever force is
necessary to enforce its laws’--even deadly force.
That is his conclusion. That is the standard that is
going to go to the Supreme Court if ratified. It is
OK to shoot a 15-year-old, 110 pounds, a
5-foot-4-inch kid who is trying to get over a fence
with a purse, shoot him in the back of the head.
“Otherwise, Judge Alito believed that any suspect
could evade arrest by making the State choose
between killing them or letting them escape. That is
the conclusion. Think about that. Judge Alito
believed that the State could use whatever force was
necessary to enforce its laws regardless of whether
the suspect was armed or dangerous. Does the Chair
believe that? Do the other Senators believe that? I
don't think so. Do mainstream Americans believe
that?
“Lucky for us, we did not have to answer that
question. Why? Because in 1985, Justice White
rejected Judge Alito's position, and the court held
that deadly force is not justified ‘where the
suspect poses no immediate threat to the officer and
no threat to others.’ The court stated
unequivocally, ‘a police officer may not seize an
unarmed, nondangerous suspect by shooting him dead.’
“So Judge Alito is out of touch with mainstream
jurisprudence with respect to the use of force in
America. Becoming a Federal judge did not make Judge
Alito any more protective of an American's personal
privacy and freedoms when it comes to government
intrusion. That ought to concern every conservative
in this Nation. Every conservative in America ought
to care about the government's power to just walk
into your home, to intrude on the rights of
individual Americans.
“In Baker v. Monroe Township, over a dozen local
and Federal narcotics agents raided the apartment of
Clement Griffin, just as his mother and her three
children were arriving for a family dinner. Officers
forced the family down to the ground, pointed guns
at them, handcuffed and searched them. Two Reagan
appointees to the court held that a jury should
decide whether excessive force was used, but Judge
Alito disagreed. He agreed that the search was
‘terrifying’ and ‘most unfortunate.’ But he did not
believe that the family had a right to make their
case to a jury in court. He would have denied those
American citizens, terrified as they were, their day
in court.
“Judge Alito, I regret to say, often goes out of
his way to justify excessive government actions.
Many have talked in the Senate about Doe v. Groody,
where Judge Alito, dissenting in an opinion by our
current head of the Department of Homeland Security,
then-Judge Michael Chertoff, concluded that the
strip-search of a 10-year-old girl was unreasonable.
That was the conclusion of Judge Chertoff. Judge
Alito concluded that the strip-search of a
10-year-old girl was reasonable.
“He reached this astonishing conclusion on a
technicality. Rather than relying on the search
warrant to determine whether the strip search of a
child was authorized, Judge Alito argued that the
court ought to look to the police officer's
supporting affidavits.
“As a rule, however -- now, I can say this as a
former prosecutor because we used to labor over
those warrants very carefully, knowing they were
going to be scrutinized -- affidavits are not part
of the search warrants unless the trial judge
decides they are. That ‘goes to the heart of the
constitutional requirement that judges, not the
police, authorize the warrants.’ But Judge Alito
said: No, no, no, no, it is OK to go look behind
what they were intending, and decided they must have
intended to include the search of the entire family,
including a 10-year-old child. Is that the standard
we want on the Court?
“Judge Alito's minimalist view of the fourth
amendment's right to privacy is not limited to
claims of excessive force. In United States v. Lee,
he upheld the FBI's installation of a video and
audio surveillance device in a hotel room in order
to record conversations between the target of a
bribery sting and a police informant. The FBI
conducted the surveillance without a warrant,
arguing, first, that the target had no expectation
of privacy in a hotel room, and, second, that the
device was turned on only when the informant was in
the room. Judge Alito accepted the FBI's argument,
and found no constitutional violation.
“His eagerness to buy the FBI's arguments,
particularly in light of the Supreme Court decisions
to the contrary, raises serious questions about how
he would approach serious constitutional violations
to the National Security Agency's program of
domestic eavesdropping. Americans across the board
are concerned about the violation of the law with
respect to what we passed in the Congress
overwhelmingly. After all, with the eavesdropping in
Lee and the eavesdropping being conducted now, we
see some startling similarity. Both are defended on
the basis of Executive discretion and
self-restraint.
“The fourth amendment is not defined that way. It
is defined by judicial restraint itself, not the
Executive restraint, and by judicial review.
“We also should never forget, as we think about
this issue, the words of an eminent Justice, Justice
Brandeis, who said:
Experience should teach us to be most on our
guard to protect liberty when the Government's
purposes are beneficent....The greatest dangers to
liberty lurk in insidious encroachment by men of
zeal, well-meaning but without understanding.
“I believe that is what we need to protect
ourselves against. That is what the Framers created
the judiciary to do. And that is what I fear the
record shows Judge Alito has not been willing to do.
“Now, if his judicial opinions and legal
memoranda do not convince you of these things, you
can take a look at the speech he gave to the
Federalist Society in which, as a sitting judge, he
‘preached the gospel’ of the Reagan Justice
Department nearly 15 years after he left it; a
speech in which he announced his support of the
‘unitary executive theory’ on the grounds that it
‘best captures the meaning of the Constitution's
text and structure.’
“As Beth Nolan, former White House counsel to
President Clinton, describes it:
‘Unitary Executive’ is a small phrase with almost
limitless import: At the very least, it embodies the
concept of Presidential control over all Executive
functions, including those that have traditionally
been exercised by ‘independent’ agencies and other
actors not subject to the President's direct
control. Under this meaning, Congress may not, by
statute, insulate the Federal Reserve or the Federal
Election Commission...from Presidential control.
“Judge Alito believes you can. The phrase is also
used to embrace expansive interpretations of the
President's substantive powers, and strong limits on
the Legislative and Judicial branches. This is the
apparent meaning of the phrase in many of this
Administration's signing statements.
“Now, most recently, one of those signing
statements was used to preserve the President's
right to just outright ignore the ban on torture
that was passed overwhelmingly by the Congress. We
had a long fight on this floor. I believe the vote
was somewhere in the 90s, if I recall correctly.
Ninety-something said this is the intent of
Congress: to ban torture. But the President
immediately turned around and did a signing in which
he suggested an alternative interpretation. And
Judge Alito has indicated his support for that
Executive power.
“During the hearings, Judge Alito attempted to
convince the committee that the unitary executive
theory is not about the scope of Presidential power.
But that is just flat wrong. Not only does the
theory read Executive power very broadly, but, by
necessity, it reads congressional power very
narrowly. In other words, as the President gains
exclusive power over a matter, the Constitution
withholds Congress's authority to regulate in that
field. That is not, by any originalist
interpretation, what the Founding Fathers intended.
“Let me give you a real-life example, as
described again by Beth Nolan:
[W]hen the Reagan Administration undertook the
covert arms-for-hostages operation that eventually
grew into the Iran-Contra scandal, it triggered the
requirement of the National Security Act that the
Administration provide Congress ‘timely
notification’ of the covert operation. Reading the
phrase ‘timely notification’ against the background
of the unitary executive theory, the Justice
Department stated, ‘The President's authority to act
in the field of international relations is plenary,
exclusive, and subject to no legal limitations save
those derived from the applicable provisions of the
Constitution itself.’
“According to Justice, under that interpretation,
Congress's role in this matter was limited because
its only constitutional powers in the area of
foreign affairs were those that directly involved
the exercise of legal authority over American
citizens. Justice even qualified this statement,
saying that by ‘American citizens’ it meant ‘the
private citizenry’ and not the President or other
executive officials. According to Ms. Nolan:
[I]f such claims are taken seriously, then the
President is largely impervious to statutory law in
the areas of foreign affairs, national security, and
war, and Congress is effectively powerless to act as
a constraint against presidential aggrandizement in
these areas.
“Does that sound familiar? It ought to sound
familiar. The Bush Administration’s legal opinion on
torture, the administration’s response to the McCain
anti-torture amendment, and the justifications given
for the NSA's domestic spying program have all been
based, in large part, on this exact same theory of
the unitary executive.
“Given Judge Alito's history in the Reagan
Justice Department, given his writings on the Third
Circuit, given the year 2000 speech to the
Federalist Society, a central question is whether
you can trust that he, in fact, is going to protect
the rights of the Congress and the legislative
branch as well as those personal freedoms of
individual Americans from those governmental
intrusions?
“I believe the record says ‘no.’
“Now, as I mentioned earlier, I know this is
flying against some of the sort of political
punditry of Washington. I understand that. But this
is a fight worth making because it is a fight for a
lifetime appointment on the Supreme Court of the
United States, with a series of decisions that
suggest a view -- however brilliant a legal mind --
he has a brilliant legal mind. I met with him. He is
a nice fellow -- we all understand that -- well
regarded by some people in the judicial system. He
was looked at by the ABA. And they make a judgment
based on sort of just legal decisions, not
necessarily the ideological impact, the larger
implication, all the other conditions that we need
to consider as we give advice and consent.
“Perhaps Professor Liu of the Berkeley Law School
put it best when he wrote this. He said:
Judge Alito's record envisions an America where
police may shoot and kill an unarmed boy to stop him
from running away with a stolen purse; where federal
agents may point guns at ordinary citizens during a
raid, even after no sign of resistance; where the
FBI may install a camera where you sleep on the
promise that they won't turn it on unless an
informant is in the room; where a black man may be
sentenced to death by an all-white jury for killing
a white man, absent a multiple regression analysis
showing discrimination; and where police may search
what a warrant permits, and then some. This is not
the America we know. Nor is it the America we aspire
to be.
“So these are the reasons we need to take a hard
look at what we are doing, even if it means swimming
upstream. There are consequences to this nomination
that I do not believe all the American people got
out of the hearings because the hearings did not
answer questions. And when you pose some of these
choices to Americans, they come down on the side
that I have described: being protected, not making
those kinds of choices about a young kid, making
sure that our privacy is protected.
“So for those reasons, and others I will discuss
starting on Monday, I oppose Judge Alito's
nomination. And I hope that colleagues, others, will
join in that effort in the end.
“I yield the floor.”
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http://www.kerry.senate.gov/v3/cfm/record.cfm?id=250868
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