Senator: Kohl
SPECTER: Senator Kohl?
KOHL: (OFF-MIKE)
After thorough examination, Mr. Chairman, I regret that I cannot support the nomination of Judge Alito to the Supreme Court.
I fear that a Justice Alito will narrow our rights, limit our freedoms and overturn decades of progress.
To confirm Judge Alito to the Supreme Court would be to gamble with our liberties, a bet I fear the Constitution and the American people would lose.
Generations of Americans have looked to the Supreme Court as more than a simple legal tribunal asked to decide cases and controversies. Rather, we expect the Supreme Court to guard our liberties, protect our rights and, where appropriate, expand our freedoms.
This process of bringing light to the promises of the Constitution has never moved predictably or smoothly. As Martin Luther King Jr. once noted, quote, "Human progress is neither automatic nor inevitable. Every step toward the goal of justice requires the tireless exertions and passionate concern of dedicated individuals," unquote.
Throughout American history, those dedicated individuals have fought on many battlegrounds, from the steps of the White House and Congress to the dangerous back roads traveled by the Freedom Riders.
And somehow the fight always leads to the Supreme Court. It is there that these brave individuals have found refuge and, through their victories, changed America for the better.
Many of these victories are now identified with individuals through familiar cases: Brown v. Board of Education, Gideon v. Wainwright, Baker v. Carr and Miranda v. Arizona.
Judge Alito has stated his allegiance to principles of these cases, and we are grateful for that, but we would expect any nominee to any court in this land to agree that schools should not be segregated and votes should count equally. This is but a starting point, but we must dig deeper to discover whether Judge Alito should serve as an associate justice on the Supreme Court of the United States.
We must ask ourselves: How will Judge Alito view the next dedicated individuals who come before him seeking justice?
KOHL: What of the next Brown? The next Gideon?
We do not consider Judge Alito for a seat on the bench in 1954 and 1965, but rather in 2006, and even 2036.
Given his narrow judicial philosophy on display throughout his career, Judge Alito is unlikely to side with the next dedicated individual. This narrow judicial philosophy is clear, for example, in his views on civil rights. In his now-famous 1985 job application, he took issue with the Warren Court decisions that established one person, one vote, Miranda rights and protections for religious minorities.
These statements leave the clear impression that his antagonism towards decisions motivated Judge Alito's pursuit of the law. While Judge Alito claimed that he was merely describing his opinions as a young man, his judicial opinion suggests a more well formed philosophy of limited rights and restricted civil liberties.
He was in the extreme minority of judges around the country when he found that Congress has no ability to regulate machine guns. His efforts to strike down portions of the Family and Medical Leave Act were rejected by then-Chief Justice Rehnquist.
He raised the bar to unreachable heights repeatedly in employment discrimination cases, to the point where the majority of his court concluded that he was attempting to eviscerate the laws entirely.
His restrictive view of constitutional liberties was echoed in his thoughts about a woman's right to choose. In the 1985 job application, he expressed a legal view that there was no such right and worked hard to craft a legal strategy that would chip away at and ultimately eliminate that right from the Constitution.
When asked about this, Judge Alito has said, in essence, that was then, and this is now. Yet even years after his work for the Reagan administration, his narrow views on privacy echoed throughout his opinion, in Planned Parenthood v. Casey. He would have placed more restrictions on a woman's freedom than other conservative judges, including the woman he seeks to replace on the Supreme Court.
Even today, Judge Alito is unwilling to declare that Roe v. Wade is settled law, a pronouncement that Chief Justice Roberts made with ease.
Judge Alito felt free to confirm that one person, one vote, integrated schools, and some privacy rights were settled, but not a woman's right to choose.
In addition, Judge Alito's decisions call into question our right to be free of police intrusion and government power.
KOHL: For example, Judge Alito in disagreement with his colleagues in the Reagan Justice Department argued that the police acted reasonably in shooting and killing a fleeing, unarmed teenage suspect.
In many opinions as a judge, he defers reflexively to the police in cases involving interpretation of search warrants, including one permitting the strip-search of a 10-year-old girl.
At a time in our history when the balance between our security and our civil liberties requires the active involvement of the courts, Judge Alito deference to presidential power concerns us.
He promoted the radical idea of unitary executive, the concept that the president is greater than, not equal to, other branches of government.
Judges are meant to protect us from unlawful surveillance and detention, and not simply abide the president's wishes.
Although it is a most important stand, the judicial philosophy is not the only measure of a nominee.
We had hoped Judge Alito would have been able to satisfy the concerns we had with his record at his hearing. Instead, he chose to avoid answering many of our questions. His inability or unwillingness to answer those questions in even the most general manner did a disservice to the country and to his nomination.
For example, when questioned on support for Judge Bork, calling him, quote, "one of the most outstanding nominees of the century," Judge Alito answered that he was just supporting the administration's nominee.
On a question about his membership in the Concerned Alumni of Princeton, he said he could not remember the group, despite citing it with pride in a job application.
And when questioned about Bush v. Gore and whether it should have been heard by the Supreme Court, Judge Alito said that he had not thought about it as a judge and did not have opinion.
Mr. Chairman, in each of the six Supreme Court nominations that I have voted on, I have used the same test of judicial excellence. Justices Souter, Breyer, Ginsburg and Roberts passed that test. I fear that Judge Alito does not.
Judge Alito's record as a professional, both as Justice Department official and as a judge, reflects something more than neutral judicial philosophy. Instead, I believe it suggests a judge with strong views on a variety of issues, and uses the law to impose those views.
Judge Alito does have the right to see, read, and interpret the Constitution narrowly. But we have the obligation to decide whether or not his views have a place on the Supreme Court.
I have decided they do not, and so I will oppose his nomination.
Thank you.
SPECTER: Thank you, Senator Kohl.
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