Senator: Brownback
SPECTER: Senator Brownback.
BROWNBACK: Thank you, Mr. Chairman.
And I want to thank you for the process. It's an excellent -- I think you've really conducted this very well and in a fine fashion.
In a bygone era that's not so bygone, Sam Alito would be approved overwhelmingly.
BROWNBACK: He's qualified, he has a judicial temperament, and he's fair.
He's displayed all those qualifications. He has an encyclopedic knowledge of constitutional law. I was impressed throughout the hearings that you would ask him any question on any constitutional issue, and there's not a not in front of him and he responds, "Well, this was the case, that was the facts, and here is the test" -- a brilliant legal mind.
Judicial temperament, taking such difficult -- and I thought, at many times, poor -- questions on character-type issues. I mean, there were legitimate ones to ask and then just keeping drilling on it, and he just kept peacefully answering the questions very, very modestly and, I think, very carefully, and has a great judicial temperament.
And he's fair. He's been 15 years on the bench and he's fairly decided cases. In a bygone era that would have been enough for us to have approved him. And I say a "bygone era"; bygone era of a time period of when John Roberts came through the hearing and was approved by this committee 13-5, and on the floor, 78-22.
My colleagues have attempted to differentiate, I guess, in some ways between John Roberts and Samuel Alito, but I've gone back through and looked at the record on some of these key issues that each have testified about.
Executive powers: That's been a key one raised. Samuel Alito says no person in this country is above the law, and that includes the president, includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States and it means the laws that are enacted under the Constitution of the United States. That's Samuel Alito, January 10, 2006.
What does John Roberts say about it? "I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution and the statutes."
BROWNBACK: Executive powers: They answered the same way and, I believe, will act the same way in limiting and appropriately deciding cases.
I don't think they can prejudge cases. And a number of them were asked specific cases, and they said, you know, basically this is a live issue; that the Congress is asserting this; the president's asserting that; the court's going to have to wait.
You can't prejudge a case like that. That's not appropriate to do.
On judicial restraint, which is something that a number of us care about, that we are three coequal branches of government, and there needs to be some judicial restraint at some point in time.
And here a number of my colleagues seem to say that: Well, the court is all supreme on all matters. Just read the Constitution. In all cases affecting ambassadors, other public ministers and councils and those which a state shall be a party, the Supreme Court shall have original jurisdiction.
In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and effect, with such exceptions and under such regulations as the Congress shall make.
I asked both John Roberts and Samuel Alito about judicial restraint. Both said, yes, the court needs to show restraint and needs to show more restrain.
As a matter of fact, you may remember John Roberts starting out with an analogy about an umpire. And that's what a judge is to be, an umpire. Call balls and strikes. And it's a bad thing, he told me in the private meeting, when the umpire becomes the most watched player on the field.
BROWNBACK: That's not the way the system is supposed to be. And you need to show that judicial restraint. That's John Roberts. That's Samuel Alito.
Roe v. Wade: that's come up a great deal on abortion, whether this is in the Constitution or not. Samuel Alito is saying it's an active area of the law. He did cite to a right to privacy in Griswold, but said, "I'm not going tell you how I'd rule on Roe v. Wade because it's an active area of the law."
What did John Roberts say? John Roberts, responding to the chairman, question on Roe by Senator Specter, says, quote, "It's settled as a precedent of the court, entitled to respect under the principles of stare decisis."
Now, that sounds like to me Samuel Alito's answer on Roe v. Wade.
I don't know how either of them will rule on Roe v. Wade. I think there's a real question that neither of them know how they are going to rule on an abortion type of case.
I wish I did know. This is a matter, I think, of incredible importance to this country, on what we do on issues of life -- the very basic issues of life, and particularly when you're talking about classes of people being aborted for just who they are, like I brought up in front of this committee numerous times, about the number of Down syndrome children that are being aborted just because they're Down syndrome, 90 percent. We're aborting a whole class. And seems like to me we ought to be concerned about when you abort a whole class of people.
Religious liberties issues came up under both gentleman, talking about separation of church and state, which is good, but not an elimination.
BROWNBACK: Samuel Alito's written on this several times. I think he's done a very good job on that. And John Roberts is going to see these cases.
It's an area of law that needs some cleaning up, I think, where you've got several different tests that are being used, and now you come out with cases that in Texas you can display the 10 Commandments, but in Kentucky you can't.
Well, how is that a test that is of any clarity, that we're going to know or people can resolve what can be done?
Both of them testified pretty similarly in cases there.
And then what about, just fundamentally, dealing with inequities of what the court has done? And we treat the court with reverence, and I think we should treat it with reverence. I think we should also recognize that the court makes mistakes and has and it has overturned itself, I believe the number is nearly 200 times in the history of the court. And it's gotten it wrong in the past, and at times it needs to cleans things up.
And fortunately, fortunately, we've had a court that's been willing do that. And I hope they never forget that principle.
As I've cited of cases like Buck v. Bell and in which the Supreme Court upheld a sterilization program directed at the so-called feeble- minded, and that law is still on the books.
And how can a Constitution meant to secure liberty's blessings, not just for us, but for our posterity restrict enjoyment of those blessings to just the strongest amongst us? Is that right? The law is still on the books.
Or I cited the state of Korematsu, the Japanese interment program, where a whole class of people were neglected their dignity based on being a racial minority. Is that right? Clearly, it's not. It doesn't provide the dignity to that group of people.
BROWNBACK: And I believe the same exists in Roe v. Wade -- violates the dignity of the unborn, particularly certain classes of the unborn, who are legally powerless under the Constitution to defend themselves.
And I would note to my colleagues as we debate this issue, if Roe was overturned, the issue goes back to the states for each of them to decide, the way it was prior to 1973.
It seems clear to me that Judge Alito has the acumen and the temperament to serve this nation well on the Supreme Court, and that he is being treated by a different standard than John Roberts was treated by.
I say in a bygone era; that's not so far in the past. That wasn't that far in the past. And you've got individuals that would have ruled very similarly -- excuse me, you have individuals that have answered questions very similarly on similar matters. One is approved by the Senate 78 votes and one's approved in this committee 13-5, and the other is not.
As far as being outside of the mainstream and that Harriet Miers -- if I could briefly respond to my colleague that just put this up that she was run out by one group and there wasn't any concern by the Democrats on Harriet Miers -- I quote Senator Dayton, Democrat out of Minnesota: He said, "I believe Ms. Miers' withdrawal is in her own best interest and the best interest to the country."
Senator Boxer said of Harriet Miers, "Miers has taken the most extreme position of anyone I have ever known on abortion," assuming she believes there ought to be a constitutional ban on abortion, which would make it a crime except if a woman's life is at stake."
Senator Durbin himself expressed, "I'm really concerned about Harriet Miers."
Senator Feingold: "I remain concerned about whether she's qualified for the Supreme Court."
BROWNBACK: I think to lay that at one side or the other is not a fair reading of the situation from Ms. Miers, who's an outstanding individual, but a number of concerns were being raised about her.
Mr. Chairman, I believe that this nominee, Judge Alito, will do an outstanding job. I believe he has already for the country. I believe he deserves to be treated with the same standards as John Roberts was treated by. And by those standards, I think he should get a broad bipartisan vote. And he will serve well.
I don't know if other standards are being applied. It seems like they are in this nominee.
I will support him and I look forward, hopefully, to his confirmation and service to this country.
SPECTER: Thank you, Senator Brownback.
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