Senator: Kennedy
SPECTER: Senator Kennedy?
KENNEDY: Thank you very much, Mr. Chairman.
And many of us who will express our reservations about supporting Judge Alito have voted overwhelmingly in favor of this president's nominations to the district court and the circuit court. I believe I voted for about 96 percent of those nominees, and over the history I have been in the Senate, voted for more Republican nominees for the Supreme Court than I have for the Democrats.
I listened to my friend talk about Ruth Bader Ginsburg and also Judge Breyer.
KENNEDY: Of course, the process and the procedures that worked toward their elevation to the Supreme Court was something that, I think, all of us admired. And that is where we had real consultation between the president and the leadership, both in the committee and in the Senate. And that resulted in the elevation of these two outstanding judges.
I'm also mindful of something that I mentioned during the course of the hearing, and that is, it isn't so much the majority opinions that are held by judges. The real insight into nominees is their dissents, and who they dissent with, and how they dissent, and what they write in the dissent.
I was struck by the fact Ruth Bader Ginsburg and Judge Bork voted together when they were on the district court 91 percent of the times, and yet these were two entirely different judicial philosophies. And it was only in examining the dissents and what they wrote during those that we really gained an insight.
And as Judge Alito had mentioned at the outset of these hearings, "Look at my record and then make a judgment," and that's what many of us have done. And that was the basis upon which I draw my conclusions.
Mr. Chairman, the Supreme Court is the guardian of our most cherished rights and freedoms. They are symbolized in the four eloquent words that are inscribed on the Supreme Court of the United States, "Equal justice under law."
And those words are meant to guarantee that all our courts will be an independent check on abuses of power by the other two branches of government. They are a commitment that our courts will always be a place where the poor and the powerless can stand on equal footing with the wealthy and the privileged. And each of us on this committee has a constitutional duty to ensure that anyone confirmed to the court will uphold that clear ideal.
The nomination of Judge Alito is particularly significant because it comes at a time of new challenges for the nation and for the court. Suddenly in this new century, we face unprecedented claims by the White House for sweeping expansions of presidential power that are grave threats to the rule of law.
KENNEDY: And despite progress in recent decades, we continue to face serious inequalities and injustices in our society, as demonstrated so clearly by the immense tragedy a few months ago in Hurricane Katrina.
And we face new controversies over government's intrusion into people's private lives, from the interference with private medical decisions into new attempts to limit or even deny a woman's reproductive decisions.
And we face new attacks on the progress we've made in civil rights. The signs proclaiming "whites only" may be gone, but we know that discrimination and bigotry in countless other forms still blight our society and limit opportunity.
And one of the most important of all responsibilities of the Supreme Court is to enforce the constitutional limitations on presidential power. A justice must have the courage and the wisdom to speak truth to power, to tell even the president that he's gone too far.
Chief Justice Marshall was that kind of justice when he told President Jefferson that he had exceeded his war-making powers under the Constitution.
Justice Robert Jackson was that kind of justice when he told President Harry Truman that he could not misuse the Korean War as an excuse to take over the nation's steel mills.
And Chief Justice Warren Burger was that kind of justice when he told President Nixon to turn over the White House tapes on Watergate.
And Justice Sandra Day O'Connor was that kind of justice when she told President Bush that a state of war is not a blank check for the president when it comes to rights of the American citizens.
We need that kind of justice on the court as much as ever. And it's our duty to ensure that only that kind of justice is confirmed.
Today, we have a president who believes that torture can be an acceptable practice, despite laws and treaties that explicitly prohibit it. We have a president who claims the powers to arrest American citizens on American soil and jail them for years without access to counsels or the courts.
KENNEDY: And we have a president who claims that he has the authority to spy on persons on American soil without a court order required by law.
The record demonstrates that we cannot count on Judge Alito to blow the whistle when the president is out of bounds. He is a long- standing advocate for expanding executive power, even at the expense of core individual liberties.
It his now-notorious job application to the Justice Department, he cast out on the role of the court as well. He said, "I believe very strongly in the supremacy of the elected branches of government."
He never satisfactorily explained his reason for advocating such an extraordinary departure from the basic understanding of the Constitution, that the courts are intended to be coequal with the president and Congress.
When I asked him about his extreme statement, he said it was inapt. That's certainly true, but it does not begin to tell the American people why he would make a statement so at odds with the checks and balances that have guided our democracy for two centuries.
One thing is clear: If the elected branches become supreme, the Supreme Court will not be able to fulfill its historic role of enforcing constitutional limits on presidential power.
His statement might have been music to the ears of the Reagan Justice Department, but it was a shock of 1,000 volts to all of us who care about democracy and the rule of law.
Judge Alito's consistent advocacy of what he called the gospel of the unitary executive is just as troubling. Professor Steven Calabresi, one of the originators of the unitary executive theory and co-founder of The Federalist Society, has acknowledged that this concept could produce a radical change in how government operates.
And, as he wrote in the Harvard Law Review: "The practical consequences of this theory is dramatic. It renders unconstitutional independent agencies and counsels to the extent that they exercise discretionary executive power.
"Independent agencies, such as the Federal Election Commission, created to see how our voting laws are properly enforced and interpreted, would be subject to the president's control.
"The same would be true of the Securities and Exchange Commission. It would compromise the historic independence of the Federal Reserve Board, giving the president unprecedented and dangerous power to manipulate the economy."
Nor is the impact of this bizarre theory limited to the independence of administrative agencies. Discussing the president's aggressive claims for unprecedented executive power in the field of national security, Professor Calabresi stated recently that "without accepting such a theory, there'd be no way that the Bush administration's anti-terrorism policy could be constitutionally justified."
KENNEDY: Judge Alito's troubling views exalting executive power are also reflected in his decisions as a judge.
He refuses to enforce core constitutional standards protecting individuals against low-level government officials in routine situations. There's no reason to believe he'll say no to a president who violates individual rights under the cloak of national security.
This was true certainly, as Senator Leahy pointed out, in the Doe v. Groody case defending a strip-search of a 10-year-old warrant (sic), in the Mellot v. Hemer (ph) case, it was true when the marshals carrying out an unresisted civil eviction pumped a sawed-off shotgun at a farm family sitting in their living room, and the family committed no crime. A fellow judge in the case dissented, calling the marshals' conduct "Gestapo-like."
KENNEDY: His record includes his Reagan administration solicitor general's request which revealed his agenda to change a key area of constitutional law in that memo. He advised that the best way to undermine Roe was gradually chipping away at its protections. We have every reason to believe he'll do exactly that if confirmed to the Supreme Court.
On the court of appeals, he was required to follow the Supreme Court decisions, but as a member of the Supreme Court he'll be free to overrule those precedents with which he agrees no matter how well established or long standing.
Third area of major concern is Judge Alito's record on civil rights. The weight of his record in job discrimination cases against the victims of discrimination is time and time again.
Time and time again, he voted to make it more difficult than the law intended for victims to prevail in court and uphold a verdict in their favor.
In another case, Mr. Chairman, in the Riley v. Taylor, Judge Alito dissented from a ruling prohibiting the removal of African- American jurors because of their race. It's unbelievable in today's America, in a case involving a minority defendant, that he was willing to ignore overwhelming evidence that the government insisted on an all-white jury.
Justice Lewis Powell captured the spirit of America best when he said, "Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is one of the ends for which our entire legal system exists."
In evaluating the Supreme Court nominees, there's no more important question than whether they are dedicated to the equal justice under law.
Judge Alito is highly intelligent, but his record does not show a judge who is willing to enforce the Constitution limitations on executive power when government officials intrude on individual rights.
KENNEDY: His record does not show does not show a judge who is open to the claims of vulnerable individuals asking only justice against powerful institutions.
His record does not show a judge who upholds the liberty and privacy of citizens seeking to protect their fundamental rights.
The record does not show a judge who'll uphold equal justice under the law.
That's why I oppose his confirmation to the Supreme Court and I hope my colleagues on the committee share these concerns and will join me.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Kennedy.
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