Date: January, 9 2006
Senator: Specter
Topic:
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SPECTER: Thank you very much, Senator Leahy.
And now we begin the opening statements.
No senator's vote, except for the declaration of war or the authorization for the use of force, is more important than the confirmation of a nominee for the Supreme Court for a lifetime appointment.
Judge Alito comes to this proceeding with extensive experience as a government lawyer, as a prosecutor and as a judge. He has written some 361 opinions. He has voted in more than 4,800 cases. And it is possible to select a few of his cases to place him at any and every position on the judicial spectrum. By selecting the right cases, he can look like a flaming liberal or he can look like an arch- conservative.
This hearing will give Judge Alito the full opportunity to address the concerns of 280 million Americans on probing questions which will be put to him by 18 senators representing their diverse constituencies.
SPECTER: I have reserved my own nomination on this -- my own vote on this nomination until the hearing is concluded. I'm committed, as chairman, to a full, fair and dignified hearing. Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should be in substance and in perception for all Americans.
There is no firmly established rule as to how much an a nominee must say to be confirmed. While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the court, senators may ask whatever they choose and the nominee is similarly free to respond as he chooses.
It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed.
Last year, when President Bush had two vacancies to fill, there was concern expressed that there might be an ideological change in the court. The preliminary indications are from Chief Justice Roberts' performance on the court and his Judiciary Committee testimony on modesty, stability and not jolting the system, all suggest that he will not move the court in a different direction.
If that holds true, Judge Alito, if confirmed, may not be the swing vote regardless of what position Judge Alito takes on the political spectrum.
Perhaps the dominant issue in these hearings is the widespread concern about Judge Alito's position on a woman's right to choose. This has risen, in part, because of a 1985 statement made by Judge Alito that the Constitution does not provide for the right to an abortion. It has risen, in part, because of his advocacy in the Solicitor General's Office seeking to limit or overrule Roe and from the dissenting portion of his opinion in Casey v. Planned Parenthood in the 3rd Circuit.
This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead, he will weigh factors such as stare decisis -- that is, what are the precedents -- that he will weigh women's and men's, too, reliance on Roe, and he will consider, too, whether Roe is, quote, "embedded," in the culture of our nation.
SPECTER: The history of the court is full of surprises on the issue. The major case upholding Roe was Casey v. Planned Parenthood, where the landmark opinion was written jointly by three justices: Justice O'Connor, Justice Kennedy and Justice Souter.
Before coming to the court, Justice Souter, Justice Kennedy and Justice O'Connor had all expressed views against a woman's right to choose. David Souter, as attorney general of New Hampshire, even opposed changing New Hampshire's law prohibiting abortion, even after the Supreme Court of the United States had declared it unconstitutional.
At the time of Justice Souter's confirmation hearing, there was a Stop Souter rally of the National Organization for Women a few blocks from where we currently are holding this hearing, displaying in red a banner: "Stop Souter or women will die." Stop Souter Rally, a mass lobbying day -- somewhat similar to this morning's press where banners are paraded in front of the Supreme Court, "Save Roe," and brochure circulated again by NOW, "Save women's lives; vote no on Alito."
SPECTER: So the history of this issue has been one full of surprises.
This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act.
This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases, where Justice Jackson wrote, quote, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum for it includes all that he possesses in his own right and all that Congress can delegate. When the president acts in absence of a congressional grant of authority, he can rely only upon his own independent powers. When the president takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb."
And as Justice Jackson noted, quote, "What is at stake is the equilibrium established in our constitutional system."
Another major area of concern is congressional power. And, in recent decisions, the Supreme Court of the United States has declared acts of Congress unconstitutional, really denigrating the role of Congress.
In declaring unconstitutional legislation designed to protect women against violence, the Supreme Court did so notwithstanding a voluminous record in support of that legislation, but because of Congress', quote, "method of reasoning"; rather insulting to suggest that there is some superior method of reasoning in the court.
SPECTER: When the Supreme Court handled two cases recently on the Americans for Disability Act, they upheld the act as it applied to discrimination as to access and declared it unconstitutional as it applied to discrimination in employment.
They did so by applying a test of what is called "congruent and proportionate," which, candidly stated, no one can figure out.
In dissent, Justice Scalia called it a, "flabby test, where the court set itself up as the taskmaster to see if Congress had done its homework." And Justice Scalia said that it was, "an invitation to judicial arbitrariness by policy-driven decision-making."
And this hearing, I know will involve consideration as to Judge Alito's views on congressional power.
There is reason to believe that our Senate confirmation hearings may be having an effect on Supreme Court nominees on their later judicial duties. Years after their hearings, Supreme Court justices talked to me about our dialogues at these hearings.
This process has now evolved to a point where nominees meet most of the senators. In this process, nominees get an earful. While no promises are extracted, statements are made by nominees which may well influence their future decisions.
SPECTER: Chief Justice Roberts, for example, will have a tough time giving a jolt to the system after preaching modesty and stability.
There is, I think, a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our constitutional process, as the president nominates, the Senate confirms or rejects and the successful nominee ascends to the bench.
While it may be a bit presumptuous, I believe the framers, if they were here, would be proud and pleased to see how well their constitution is being applied.
My red light just went on and I now yield to my distinguished colleague, Senator Leahy.
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