Senator: Schumer
SPECTER: Senator Schumer?
SCHUMER: Thank you.
And as you know, the hearing, this hearing that we've had, is the one time a Supreme Court nominee takes center stage, to clarify past statements, to explain previous views, and to reassure senators and citizens alike that he or she is in the broad judicial mainstream.
SCHUMER: The purpose of such hearings is for the nominee, speaking frankly and forthrightly, to advance our understanding of his views, temperament and judicial philosophy.
If that does not happen, if the public is no better informed about a nominee at the conclusion of a hearing than at the start, the blame for that must be laid correctly at the feet of the nominee.
This morning I wanted to discuss my reasoning as to why I'll vote no on the nomination.
First, Judge Alito was not forthcoming about his own constitutional views on too many issues, despite in many instances having a prior written record on those views.
Second, and most importantly, Judge Alito's record on the bench is very far out of the mainstream on these issues.
And finally, the only mitigating factor Judge Alito offers is not a rejection of those views, but rather a pledge to respect stare decisis.
SCHUMER: Given, however, what past nominees have said on the subject and given his own 3rd Circuit history of ignoring or circumventing precedence, these pledges do not mitigate those extreme positions and are hardly reassuring.
First, because of the approach taken by this nominee and his handlers, we did not much advance our knowledge of Sam Alito during the just-concluded hearings.
Although Judge Alito responded to hundreds of questions, he meaningfully answered far too few of them. On many issues -- on too many issue -- we were treated to artful evasions and pleasant banalities.
Time and time again, Judge Alito took cover in cover in platitudes about the law with which no nominee has ever come before the committee could have disagreed.
Judge Alito declared, for example, no fewer than eight times that he'd keep an open mind. But has any nominee ever told us he'd have a closed mind?
He intoned no fewer than six times that no one's above the law. But has any nominee ever said certain people are above the law?
He continually invoked the phrases "judicial restraint" and "self-restraint." And, of course, he repeatedly paid homage to precedent and the doctrine of stare decisis. And maybe most of all, Judge Alito sought to give the impression that he, like any judge, simply did what the law requires. But there is much that this facile formulation ignores.
If it were so simple to do what the law requires we would hardly need judges, juries and legal advocates. Sometimes, indeed often, the law is silent. Sometimes the law requires judges to use his or her discretion. And, of course, very often, what the law requires means different things to different people of good faith.
So these statements tell us absolutely nothing about his views and can hardly be reassuring to anyone. The American people were entitled to honest answers, not practiced platitudes. The American people deserve to hear more.
Of course, as these hearings evolve and as witnesses perfect the artful dodge, the only people being disserviced are the American people.
SCHUMER: Even a supporter of Judge Alito, Stuart Taylor of the National Journal, described the nominee's performance in these terms, quote, "Again and again Alito ducked and dodged. The questions seemed fair. The answers seemed lame, evasive, even infuriating, to those of us who want straight answers."
Now some will say, as Senator Specter has, that a nominee will answer as few questions as he can get away with. Perhaps that makes him look better at the hearings, perhaps it even gets him confirmed, but it does a disservice to the American people and to our democracy.
That is so because it is in the instances when, quote, "what the law requires is not at all clear or unanimously accepted that Judge Alito invariably charts a rightward course."
When what the law requires is that Judge Alito exercise his discretion whether to overrule a precedent protective of personal autonomy, whether to uphold the dismissal of a civil rights claim or whether to defer to the judgment of the legislature, he too often sails out of the mainstream.
So in light of his refusal to explain his views on particular constitutional questions at the hearings, we must examine his written record even more closely. And that examination tells us that in case after case, on issue after issue, especially when left to his discretion and especially when there is any plausible legal wiggle room, Judge Alito is a judicial outlier who stands well out of the mainstream. The evidence is simply overwhelming.
SCHUMER: During the time he served on the 3rd Circuit, not one other judge has dissented as many times as Judge Alito -- not one. Indeed, many have dissented only a fraction of the time.
As I said at the start of the hearings, Judge Alito certainly gives the impression of being a meticulous legal navigator. But in the end, he always seems to chart a rightward course.
During the week-long hearing, Judge Alito did nothing -- nothing -- to dispel that assessment. He has stood alone at the edge of the judicial mainstream in too many important cases and on too many important issues.
Taken together, these cases paint an unmistakable portrait in the area of sex discrimination law, in the area of civil rights law, in the area of presidential power, in the area of congressional authority, in the area of criminal law enforcement. And, of course, when it comes to a woman's right to choose, Judge Alito has shown himself to be outside the mainstream.
So the only thing that could serve to temper Judge Alito's views on the bench -- he and others tell us -- is faithfulness to the principles of stare decisis, respect for precedent.
But we have been down that road before. After all, we have seen other nominees come before us and solemnly swear fealty to the same broad precepts.
Before this committee, then-Judge Bork claimed loyalty to the notion of stability and to stare decisis; but outside the hearing room, it turns out, Robert Bork, whom Judge Alito inexplicably called one of the most outstanding nominees of the 20th century, had said, "I don't think in the field of constitutional law, precedent is all that important."
Then-Judge Thomas similarly pledged allegiance to the doctrine of stare decisis. But as we showed at the hearing, since taking his seat on the Supreme Court, he has voted to overrule or unravel more than 30 precedents of the court.
So given what other nominees like Judge Thomas who have pledged fealty to stare decisis and then gone on to ignore precedent, and given President Bush's own pledge to nominate judges in the mold of Clarence Thomas, Judge Alito's invocation of the doctrine is of small consolation.
Even more troubling is Judge Alito's own record on the 3rd Circuit. His fellow judges have repeatedly criticized him for ignoring and side-stepping the precedents of his own court.
On the Supreme Court, Judge Alito would have even greater freedom to ignore or overrule precedent.
Given his record on the 3rd Circuit, what can Americans expect him to do on the Supreme Court?
In one case in the 3rd Circuit, the majority of the court said that his opinion guts the statutory standard and ignores our precedent. In another, the en banc majority argued that Judge Alito's views ignored case after case relied upon by the majority and, quote, "accords little weight to those authorities."
SCHUMER: In yet another, the majority said Judge Alito's dissent, quote, "does not comport with our reading of the relevant case law."
In another, Judge Alito said he wanted to, quote, "overrule Bellow and the cases that followed it."
And in one case, Judge Garth wrote that Judge Alito's opinion was, quote, "unprecedented in its disregard of established principles of stare decisis."
These examples, Mr. Chairman, are just some of the cases in which Judge Alito found himself alone in disagreement with his colleagues on 3rd Circuit precedents.
I recite these examples because of the critically important question they raise.
If Judge Alito has been so willing to disregard the precedents of his own court in unprecedented ways, what solace can we take in his professed allegiance to stare decisis should he be confirmed to the Supreme Court where he would have even more freedom to overturn important and settled precedents relied upon by millions of Americans?
What of Gonzales v. Raich, which upheld the federal government is to protect public safety by regulating illegal drugs within the states? There is certainly cause for alarm because he voted in the 3rd Circuit to strike down federal firearms regulation in strikingly similar legal circumstances.
What of Morrison v. Olson which held that the president does not have the total and unfettered power to fire independent officials? Here, too, there is cause for alarm because Judge Alito has stridently endorsed the view of the lone dissenter, Judge Scalia, and refused meaningfully to distance himself from that view in the hearings.
What of Mitchell v. Forsythe, which held that executive branch officials cannot completely escape accountability for warrantless wiretapping?
And, again, there is cause for alarm because Judge Alito argued the losing side in that case in a memo explaining his personal legal perspective that officials should have absolute immunity from warrantless wiretapping.
And of course, what of Roe v. Wade, which this week marks the 33rd anniversary of protecting a woman's reproductive rights?
Here the alarm is greatest because Judge Alito repeatedly and inexplicably refused to say whether he still held the views that he once stated so proudly, that, quote, "the Constitution does not protect," unquote, a woman's right to choose.
He was also asked whether he believed that Roe v. Wade was settled law. Again he refused to answer.
SCHUMER: This was particularly troubling, because on some questions, of course, Judge Alito was forthcoming. He was prepared to distance himself, for example, from earlier statements that he did not believe in the principle of one person, one vote. And he was prepared to distance himself from earlier statements that the elected branches were supreme.
On this vital constitutional question, however, Judge Alito remained utterly opaque, leading to the only plausible, possible reasonable explanation: that he still believes that the Constitution does not protect a woman's reproductive rights but does not want to tell the American people because he knows how unpopular that view is.
In light of all the evidence, to suggest, as some have, that Judge Alito will not vote to overrule Roe v. Wade is to ask us not just to take a leap of faith but to suspend disbelief. Indeed, it asks too much.
In the end, Mr. Chairman, given Judge Alito's refusal to answer many important questions, given that he's out of the mainstream on too many issues and would move the country backward, and given that pledges to follow precedent provide little consolation both in the records of others who have come before this committee and Judge Alito's record in the 3rd Circuit, I have no choice but to vote nay and urge my colleagues to do the same.
SPECTER: Thank you, Senator Schumer.
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