Date: January, 9 2006
Senator: Schumer
Topic:
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SCHUMER: Thank you, Mr. Chairman.
And, Judge Alito, welcome to you, Mrs. Alito, your two children, the rest of your family. I join my colleagues in congratulating you on your nomination.
If confirmed, you'll be one of nine people who collectively hold power over everyone who lives in this country. You'll define our freedom, you'll affect our security and you'll shape our law. You will determine on some days where we pray and how we vote. You'll define on other days when life begins and what our schools may teach. And you will decide from time to time who shall live and who shall die.
These decisions are final and appeals impossible.
SCHUMER: That's the awesome responsibility and power of a Supreme Court justice. And it's, therefore, only appropriate that everyone who aspires to that office bear a heavy burden when they come before the Senate and the American people to prove that they're worthy.
But while every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high.
First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.
So, first, as this committee takes up your nomination, we can't forget recent history, because that history increases your burden and explains why the American people want us to examine every portion of your record with great care.
Harriet Miers' nomination was blocked by a cadre of conservative critics who undermined her at every turn. She didn't get to explain her judicial philosophy, she didn't get to testify at the hearing, and she did not get the up-or-down vote on the Senate floor that her critics are now demanding that you receive.
Why? For the simple reason that those critics couldn't be sure that her judicial philosophy squared with their extreme political agenda.
They seem to be very sure of you.
The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you, Judge Alito.
SCHUMER: We'd be remiss if we didn't explore why.
And there's an additional significance to the Miers precedent, which is this: Everyone now seems to agree that nominees should explain their judicial philosophy and ideology.
After so many of my friends across the aisle spoke so loudly about the obligation of nominees to testify candidly about their legal views and their judicial philosophy when the nominee was Harriet Miers, I hope we will not see a flip-flop now that the nominee is Sam Alito.
The second reason your burden is higher, of course, is that you're filling the shoes of Sandra Day O'Connor. Those are big shoes, to be sure, but hers are also special shoes. She was the first woman in the history of the Supreme Court, is the only sitting justice with experience as a legislator, and has been the most frequent swing vote in a quarter century of service.
While Sandra Day O'Connor has been at the fulcrum of the Court, you appear poised to add weight to one side. That alone is not necessarily cause for alarm or surprise, but it's certainly a reason for pause.
Are you in Justice O'Connor's mold or, as the president has vowed, are you in the mold of Justices Scalia and Thomas?
Most importantly, though, you burden is high because of your record. Although I haven't made up my mind, I have serious concerns about that record. There are reasons to be troubled. You're the most prolific dissenter in the 3rd Circuit.
SCHUMER: This morning, President Bush said, Judge Alito has the intellect and judicial temperament to be on the court. But the president left out the most important qualification, a nominee's judicial philosophy.
Judge Alito, in case after case, you give the impression of applying careful legal reasoning, but, too many times, you happen to reach the most conservative result.
Judge Alito, you give the impression of being a meticulous legal navigator but, in the end, you always seem to chart a rightward course.
Some wrongly suggest that we're being results-oriented when we question the results you have reached. But the opposite is true. We're trying to make sure you're capable of being fair, no matter the identity of the party before you.
Sometimes you give the government a free pass but refuse to give plaintiffs a fair shake. We need to know that presidents and paupers will receive equal justice in your courtroom.
If the records showed that an umpire repeatedly called 95 percent of pitches strikes when one team's players were up and repeatedly called 95 percent of pitches balls when the other team's players were up, one would naturally ask whether the umpire was being impartial and fair.
In many areas, we'll expect clear and straightforward answers because you have a record on these issues -- for example, executive power, congressional power and personal autonomy, just to name a few.
The president is not a king, free to take any action he chooses without limitation by law. The court is not a legislature, free to substitute its own judgment for that of elected bodies. And the people are not subjects, powerless to control their own most intimate decisions.
SCHUMER: Will your judicial philosophy preserve these principles? Or will it erode them?
In each of these areas, there is cause for concern. In the area of executive power, Judge Alito, you have embraced and endorsed the theory of the "unitary executive."
Your deferential and absolutist view of separation of powers raises questions. Under this view in times of war, the president would, for instance, seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.
We need to know: When a President goes too far, will you be a check on his power, or will you issue him a blank check to exercise whatever power alone he thinks appropriate? Right now, that is an open question, given your stated views.
Similarly, on the issue of federalism, you seem to have taken an extreme view, substituting your own judgment for that of the legislature. Certainly, in one important case, you wrote in Rybar v. U.S. that Congress exceeded its power by prohibiting the possession of fully automatic machine guns.
Do you still hold these cramped views of congressional power? Will you engage in judicial activism to find ways to strike down laws that the American people want their elected representatives to pass and that the Constitution authorizes?
And, of course, you have made statements expressing your view that the, quote, "Constitution does not protect a right to an abortion," unquote. In fact, you said in 1985, that you "personally believe very strongly" this is true.
SCHUMER: You also spoke, while in the Justice Department, of, quote, "the opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade."
It should not be surprising that these statements will bring a searching inquiry, as many of my colleagues have already suggested.
So we'll ask you: Do you still personally believe very strongly that the Constitution does not protect a right to an abortion?
We will ask: Do you view elevation to the Supreme Court, where you'll no longer be bound by high court precedent, as the long-sought opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade, as you stated in 1985?
Judge Alito, I sincerely hope you'll answer our questions. Most of the familiar arguments for ducking direct questions no longer apply and certainly don't apply in your case.
For example, the logic of the mantra repeated by John Roberts at his hearing, that one could not speak on a subject because the issue was likely to come before him, quickly vanishes when the nominee has a written record, as you do, on so many subjects.
Even under the so-called Ginsburg precedent, which was endorsed by Judge Roberts, Republican senators, the White House, you have an obligation to answer questions on topics that you have written about.
On the issue of choice, for example, because you've already made blanket statements about your view of the Constitution, and your support for overruling Roe, you've already given the suggestion of prejudgment on a question that will likely come before the court.
So I respectfully submit you cannot use that as a basis for not answering.
SCHUMER: So I hope, Judge Alito, that when we ask you about prior statements you've made about the law, some strong, some even strident, you will simply not answer, in effect, "No comment." That will not dismiss prior expressions of decidedly legal opinions as merely personal beliefs and that will enhance neither your credibility nor your reputation for careful legal reasoning.
I look forward, Judge, to a full and fair hearing.
SPECTER: Thank you, Senator Schumer.
SPECTER: Senator Cornyn?
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