Senator: Durbin
SPECTER: Senator Durbin?
DURBIN: Thank you very much, Mr. Chairman. Mr. Chairman, how can we ignore the circumstances that bring to us this moment?
This was not supposed to be about the nomination of Sam Alito to the Supreme Court. We were supposed to be meeting on the nomination of Harriet Miers to the Supreme Court, a woman trusted by the president -- still serving as general counsel in the White House.
And what happened to her nomination? We know what happened. She didn't pass the litmus test of the extreme right of the Republican Party. She was rejected by the Republican Party to the point where the president had to withdraw her nomination.
The same groups that gave Harriet Miers the back of their hand embraced Samuel Alito, raising important questions.
Secondly, we know this is not just another nomination to the Supreme Court. It is truly going to tip the balance of the scales of justice.
You've heard the numbers. In 193 cases decided in the last 10 years in 5-4 decisions, Sandra Day O'Connor was the decisive vote in 148 cases.
This truly is an historic nomination.
And then comes Judge Alito before us with 15 years of a record on the 3rd Circuit, but also with an extensive array of writings and speeches that he's made.
And one of them stood out: a memo he had written in 1985 in application for a job with the Department of Justice. Was Samuel Alito at that moment in time some callow youth, some brand new graduate of Princeton Law? No.
It turns out that, at that moment in time, he had served in the military, one year as a clerk on the federal bench, four years as an assistant United States attorney, and four years as an assistant in the Office of Solicitor General.
DURBIN: So what we saw in that memo were not the musings of a child, but the reasoned judgment of a person who had been exposed to the law at the highest levels for 10 years.
As we read that memo, it confirmed suspicions and fears on our side of why the same groups that condemned and excoriated Harriet Miers had embraced Sam Alito.
The views which he expressed in that memo were not views that evidenced an open mind. They evidenced a closed mind.
To refer to the Concerned Alumni of Princeton, which Judge Alito did not recollect when he came before us, was clearly to feed raw meat to the Reagan administration who loved the agenda of this fringe organization dedicated to keeping women and minorities out of Princeton University.
When you walk through the statements made by Judge Alito in that memorandum, they were troubling and unsettling. To think that he would take these same views to the Supreme Court and follow them mean that many of the things we assume in America would change.
So a lot of you have said, well, all of you just went too far in the questions you asked. That's the context.
After we saw Harriet Miers, the president's counsel in the White House go through the process of being removed because she couldn't meet the litmus test, after we understood the gravity and seriousness of this nomination, and after we saw the writings of Judge Alito, is it any wonder that we had questions that we wanted answered? Questions that not just we wanted answered, but the American people wanted answered. Very fundamental and basic questions that are even more propitious because of the times we find ourselves in.
To talk about the power of the president today is a lot different than talking about it 10 years ago. We're likely to be involved in this war on terrorism for as long as we can imagine.
DURBIN: Sadly, we're going to face these decisions time and again, where presidents ask, "How far can we go?," if, in fact, they ask.
I salute Chairman Specter. He has stood up, not a lone voice on your side of the aisle but one of the few voices on your side of the aisle, to raise important questions and to suggest a hearing on the power of the president over our rights of privacy.
Some of your expressed concerns as well and I welcome that because I think that's an important bipartisan discussion.
But when it comes to that part of the presidency and that right of privacy, when we ask those questions of Judge Alito, it's because many of us believe, fundamentally, that's why we are here.
If we are here to uphold and defend that Constitution, does it not include, most fundamentally, our right as Americans to be left alone when it comes to our communications, to our medical records, to our business records, to the most personal decisions a person and a family can make?
That's why we asked these questions. And many of the responses from Judge Alito didn't give us much refuge or solace.
When it came to a woman's right to choose, I asked him, Senator Feinstein asked him, "Do you agree with Chief Justice Roberts that, in Roe v. Wade, as the chairman has said, we have a value embedded in America's culture, a settled law and precedent that must be followed?"
And, time and again, he refused to say the same thing that John Roberts would say. Now, what conclusion can we draw from that other than the fact he would take a more critical eye toward that decision if he faced it again on the Supreme Court?
I don't think that's an unreasonable conclusion or leap of faith. I think that is the reality.
And when we asked him fundamental questions about his values -- who was he? -- we wanted to find out if his brand of conservatism had any compassion in it.
And what did we find, as we went through the decisions? I remember several in particular.
There's one that stands out in my mind, related to a case involving a man who had been accused of murder and came before Judge Alito's court. The argument before the court was that he didn't get a fair trial.
Why? Because this African American argued that he faced an all- white jury from a prosecutor who had, in three previous murder cases, used every challenge they had to make certain that only white jurors would stand in judgment of black defendants.
The majority on that court found that that was unfair to this criminal defendant, but not Judge Alito. He argued that it was as irrelevant as the fact that five of the six last presidents of the United States were left-handed.
He was more committed to the principles of statistics than to the principles of racial justice we found in the majority decision.
When I asked him about a man who came before him on appeal, who had been an alleged victim of sexual harassment, a mentally retarded individual who had been brutally attacked on his job site -- I didn't read into the record then and I won't now the details of that attack, what happened to that poor man, the grisly specifics of what happened to him -- and I asked Judge Alito again: You were the dissenting judge; why did you toss out this man's case? Why wouldn't you let him at least make an argument before the jury?
DURBIN: The argument he made in his decision is the same he made before us: The man's lawyer didn't do a good job writing the brief.
That's justice? Does that reflect the caring heart that we're looking for in a person who is supposed to bring wisdom to the Supreme Court? Is it any wonder that many of us wonder what will happen over 20 or 30 years if Sam Alito is the deciding vote on the United States Supreme Court?
When it comes to fundamental questions as to whether this government will go too far to pry into our personal lives and infringe on our freedoms, whether this country is going to move forward or backward on issues of civil rights and women's rights, whether he will side with special interest or the poor, the dispossessed and those who have to fight their way into our court system for an opportunity for justice?
These are legitimate concerns and questions I have in my mind. They have drawn me to the conclusion that he is not the right person for the Supreme Court at this time.
And I will oppose his nomination.
SPECTER: Thank you, Senator Durbin.
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