Date: January 13, 2006
Senator: Witness - Chemerinsky
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SPECTER: Thank you very much, professor.
We now turn to Professor Erwin Chemerinsky, the Austin and Burg Professor of Law and Political Science at Duke.
Prior to coming to Duke in 2004, he had been for 21 years at the University of Southern California Law School, where he was the Irmas Professor of Public Interest Law. He is a graduate of Northwestern University with a bachelor's degree and a law degree from Harvard. And last year, he was named by "Legal Affairs" as one of the top 20 legal thinkers in America.
Thank you for coming in today, professor. The floor is yours.
CHEMERINSKY: Thank you, Mr. Chairman, Senator Leahy, distinguished senators.
It's truly an honor and a privilege to testify at these historic hearings. It's impossible to overstate the importance of this nomination for the future of constitutional law.
In recent years, the Supreme Court is often referred to as the O'Connor court, because Sandra Day O'Connor so often has been in the majority in 5-4 decisions in crucial areas: protecting reproductive freedom, enforcing the separation of church and state, limiting presidential power and advancing racial justice. Replacing her has the possibility of dramatic changes in so many areas of constitutional law.
A crucial question for this committee is, what will be the effect of Samuel Alito on the Supreme Court?
I want to focus on one area: executive power. I choose this area, because no area of constitutional law is likely more important in the years ahead than this.
As you know, in recent years, the Bush administration has made unprecedented claims, expansive presidential power, such as the claim of authority to detain American citizens as enemy combatants without even the Constitution's requirements for warrant, grand jury indictment or trial by jury; the claim of authority to torture human beings in violation of international law; the claim of authority to eavesdrop on conversations of Americans without complying with the Fourth Amendment or the Foreign Intelligence Surveillance Act; the claim of authority to hold American citizens indefinitely, and citizens of other countries indefinitely, as enemy combatants.
My goal here isn't to discuss the merits of any of these issues; instead, to point to the fact that separation of powers is likely to be an enormously important issue in the years ahead. And, of course, there's no need to remind this body of the crucial role the checks and balance separation of powers play in our Constitution's structure.
Some of the most important Supreme Court cases in history have been those where the court has said no to assertions of presidential power, such as Youngstown Sheet and Tube v. Sawyer, in striking down President Truman's seizure of the steel mills, and the United States v. Nixon, in stating that President Nixon had revealed the Watergate tapes.
A key question for this committee is whether Samuel Alito will continue this tradition of enforcing checks and balances, or whether he'll be a rubber stamp for presidential power.
I have carefully read the writings, the speeches and the decisions of Samuel Alito in this area, and they all point in one direction: a very troubling pattern of great deference to executive authority. I have closely followed the hearings this week, and I know you're familiar with the examples.
To mention just a few, in 1984, while in the Solicitor General's Office, Samuel Alito wrote a memo saying that he believed that the Attorney General should have absolute immunity to civil suits or money damages of engaging in illegal wiretapping, a position the Supreme Court rejected, in language that seems so appropriate now, in saying there was too great a danger of violation of rights from (ph) executive officials, when the zeal to protect national security would go too far.
The next year, he said there should be increased use of presidential signing statements. He said, quote, the president should have the last word as to the meaning of statutes, which would be an increase in executive power.
As you know, in a number of writings and speeches, he said he believed in the unitary executive theory. There's a good deal of discussion this week as to what that means.
But if you look at the literature of constitutional law, those who believe in a unitary executive truly want a radical change in American government. They believe that independent regulatory agencies, like the Securities and Exchange Commission or the Federal Communications Commission, are unconstitutional. They believe the Special Prosecutor is unconstitutional. They reject the ability of Congress to limit the executive.
As a judge on the Third Circuit, Judge Alito has not had the opportunity to review resurgence of presidential power. But there have been many cases which considered assertions of law enforcement authority. Over and again he comes down on the side of law enforcement. I think his dissenting opinions are particularly revealing, because as Judge Becker said, he rarely dissents.
One case, I think, shows Judge Alito's overall philosophy. There's one discussed yesterday at the end of the day, Doe v. Groody. This, of course, was the case where the police strip searched a mother and her 10-year-old daughter, who were suspected of no crime. As Carter Phillips said yesterday, this was an issue of qualified immunity. That means, did the officers violate clearly established law that a reasonable law (ph) should know? Should the officer have known that it violates the Constitution?
Senators, any police officer, any judge should know that strip searching a 10-year-old girl, who was suspected of nothing, violated the Constitution. Senators, this is one of so many cases where Judge Alito deferred to law enforcement.
CHEMERINSKY: I am here for a simple reason. I believe that at this point in time, it's too dangerous to have a person like Samuel Alito, with his writings and records on executive power, on the United States Supreme Court.
Thank you.
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