Date: January, 9 2006
BROWNBACK: Thank you, Mr. Chairman.
Welcome, Judge Alito, your wife, family.
BROWNBACK: Delighted to have you here. You only have two more pitcher and then you get a bat. So I'm sure people will be happy to hear from you.
Mr. Chairman, before I go forward with my statement, would like to entire into the record a summary of four cases that Judge Alito has ruled on where he backed employees claiming racial discrimination. It's been entered a couple of times here that he hasn't ruled in favor of people claiming racial discrimination. I have a summary of four cases where he has, and I want to enter that into the record.
SPECTER: Without objection, they will be made a part of the record.
BROWNBACK: Judge Alito, welcome you to the hearing. This is an extraordinary process. It's a fabulous process and a chance for a discussion with you, with the American public about the role of the judiciary in our society today.
It's become an ever-expanding and important discussion because of the expanding role of the courts in recent years in the American society.
When the courts improperly, I believe, assume the power to decide more political than legal issues in nature, the people naturally focus less on the law and more on the lawyers that are chosen really to administer the law. Most Americans want judges who will stick to interpreting the law rather than making it.
It's beyond dispute that the Constitution and its framers intended this to be the role of judges. For instance, although he was perhaps the leading advocate for expansive political power, you can look at founding father Alexander Hamilton nevertheless assuring -- assuring -- the countrymen in Federalist 78 that the role of the federal courts under the proposed Constitution would be limited.
He says the courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body.
BROWNBACK: Seems like we're back at an old debate: the role the courts.
And I believe you and others would look and say that the role of the courts is limited and it's not to decide political matters.
Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted federal courts neither to write nor execute the laws but rather to say what the law is. That narrow scope of judicial power was the reason that people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.
The people believed that while the courts would be independent, they would defer to the political branches on policy issues.
This is the most foundational and fundamental of issues. And yet we are back and discussing it because of the role of the judiciary expanding in this society today.
It may seem ironic that the judicial branch preserves its legitimacy through refraining from action on political questions. That concept was put forward best by Justice Frankfurter, appointed by President Roosevelt.
He said courts are not representative bodies. They're not designed to be a good reflex of a democratic society. Their judgment is best informed and, therefore, most dependable within narrow limits.
I want to take on this point of the reservation of certain seats on the bench for certain philosophies, which it seems as if we've heard a great deal about today, that you need to be like Sandra Day O'Connor in judicial philosophy to be able to go on her seat on the bench.
Some interest groups have put forward that philosophy and argued that you deserve closer scrutiny because you do not appear to have the same philosophy or are even in opposition if it is not determined that you do not have that same judicial philosophy.
If this testimony suggests that that would change the ideological balance, if you would change the ideological balance, therefore you should not be approved, I would say that that notion is not anywhere in the understanding of the role of the judges.
BROWNBACK: It creates a double standard for your approval and looks conveniently -- it looks suspiciously convenient for the opposition to put forward.
Seats on the bench are not reserved for causes or interests. They're given to those who will uphold the rule of law so long as the nominee is well-qualified to interpret and apply the law.
This has long been the case of the Supreme Court. And I want to note here that, historically, the make-up of the court has changed just as elected branches have change.
In fact, nearly half of the justices, 46 of 109, who have served on the Supreme Court replaced justices appointed by a different political party.
In recent years, even as the court has become an increasingly political body, the Senate is not focused on preserving any perceived ideological balance when Democrat presidents have appointed people to the court.
The best example of that is the Senate rejecting that notion when Ruth Bader Ginsburg came in front of the Senate and was approved 96-3 to be on the Supreme Court to replace conservative justice Byron White. This is in 1993.
Now, Justice Ginsburg, it was noted earlier, was a general counsel for the ACLU, certainly a liberal group. It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the court to the left.
But because President Clinton won the election and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the court, she was confirmed.
BROWNBACK: During her hearing, hardly any mention was made about balance with Justice White. The only discussion occurred about Justice White was when Senator Kohl, our colleague, asked her what she thought of Justice White's career, and she started off by saying that she was not an athlete.
History has shown that she did, in fact, dramatically change the balance of the court in many critical areas, such as abortion, the privacy debate expansion and child pornography. And I have behind me three of the key cases where Justice White ruled one way, even wrote the majority opinion, and Justice Ginsburg ruled the other way, with the majority.
You talk about a swing of balance, and yet the issue wasn't even raised at Justice Ginsburg's confirmation hearing. And yet now it seems as if that's the paramount issue -- not only the paramount issue, it actually makes you have to go to a higher standard to be approved.
And that's just simply not the way we've operated in the past, nor is it the way we should operate now.
As I stated at Justice Roberts' hearing, the court's injected itself into many of the political debates of our day. And as my colleague Senator Cornyn has mentioned, the court's injected itself in the definition of marriage, deciding whether or not human life is worth protecting, permitting government to transfer private property from one person to another, even interpreting the Constitution on the basis of foreign and international laws.
The Supreme Court has also issued and never reversed a number of decisions that are repugnant to the Constitution's vision of human dignity and equality.
Although cases like Brown v. Board of Education in my state are famous for correcting constitutional and court errors, there remain several other instances in which the court strayed and stayed beyond the Constitution and the laws of the United States.
BROWNBACK: Among the most famous of these Supreme Court cases of exercise of political power I believe are the cases of Roe V. Wade and Doe v. Bolton, two 1973 cases based on false statements which created a constitutional right to abortion.
And you can claim whatever you want to of being pro-life or pro- choice, but the right to a abortion is not in the Constitution. The court created it. It created a constitutional right. And these decisions removed a fully appropriate political judgment from the people of the several states and has led to many adverse consequences.
For instance, it's led to the almost complete killing of a whole class of people in America. As I noted to my colleagues in the Roberts' hearings, this year -- this year -- between 80 percent to 90 percent of the children in America diagnosed with Down's Syndrome will be killed in the womb simply because they have a positive genetic test which can be wrong, and is often wrong, but they would have a positive genetic test for Down's Syndrome and they will be killed.
America is poorer because of such a policy. We are at our best when we help the weakest. The weak make us strong. To kill them makes us all the poorer, insensitive, calloused and jaded.
Roe has made it not only possible, but has found it constitutional to kill a whole class of people, simply because of their genetic make-up.
BROWNBACK: This is the effect of Roe.
I think this is a proper issue for us to consider and the judge you're replacing noted one time, quote, "that the court's unworkable scheme for constitutionalizing abortion has had the institutional, debilitating effect should not be surprising -- has had this institutionally debilitating effect and should be surprising since the court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe."
You will have many issues in front of you, many that we won't discuss here in front of this committee.
I think it unfortunate that we only narrow in on so few of the cases that you're likely to hear in front of you, and yet that's the nature of the day because they're the hot, political, heat-seeking cases.
You're undoubtedly qualified. You were cited by the ABA to be unanimously well-qualified.
I look forward to a thorough discussion and a hopeful approval of you to be able to join the Supreme Court of the United States.
SPECTER: Thank you very much, Senator Brownback.