Tuesday, January 24, 2006

Senate Judiciary Committee Debates the Alito Nomination

Courtesy CQ Transcriptions
Tuesday, January 24, 2006; 11:30 AM

U.S. SENATE JUDICIARY COMMITTEE MEETS TO VOTE ON THE NOMINATION OF JUDGE SAMUEL ALITO TO THE U.S. SUPREME COURT

SPEAKERS:

U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN

U.S. SENATOR ORRIN G. HATCH (R-UT)

U.S. SENATOR CHARLES E. GRASSLEY (R-IA)

U.S. SENATOR JON KYL (R-AZ)

U.S. SENATOR MIKE DEWINE (R-OH)

U.S. SENATOR JEFF SESSIONS (R-AL)

U.S. SENATOR LINDSEY O. GRAHAM (R-SC)

U.S. SENATOR JOHN CORNYN (R-TX)

U.S. SENATOR SAM BROWNBACK (R-KS)

U.S. SENATOR TOM COBURN (R-OK)

U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER

U.S. SENATOR EDWARD M. KENNEDY (D-MA)

U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)

U.S. SENATOR HERBERT KOHL (D-WI)

U.S. SENATOR DIANNE FEINSTEIN (D-CA)

U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)

U.S. SENATOR CHARLES E. SCHUMER (D-NY)

U.S. SENATOR RICHARD J. DURBIN (D-IL)

[*]

SPECTER: Ladies and gentlemen, the Judiciary Committee will now proceed with the executive committee considering the nomination of Samuel Alito for associate justice of the Supreme Court of the United States.

Before turning to the opening statements, just a couple of comments on Senate Judiciary Committee business.

The majority leader has announced that we will proceed to the floor tomorrow with debate on the nomination and that we will proceed in sequence to hear all senators, looking toward a vote by the end of the week.

The Judiciary Committee will be focusing on the Patriot Act, where there is an expiration date of February the 3rd. And I expect some action on that next week.

What we are faced with on the Patriot Act is the conference report, which has many additional protections beyond what the Patriot Act provides in its present form -- to pass that conference report or to have an extension of the current act, looking toward a four-year period.

Technically, the conference has been dissolved with the filing of the conference report. It's always possible, on agreement of all parties, to revisit any matter, as we know, on legislation. But I can tell you, after talking to Chairman Sensenbrenner, that the House feels that they've gone as far as they can go on compromises on the act. And I think the reality may be that we're looking at either the current act extended or the conference report, which has many additional protections on civil rights.

The conference report doesn't go as far as I'd like to have gone; it doesn't go as far as the Senate bill went, but we have a bicameral system.

SPECTER: But we'll be facing that imminently, right after Alito.

On February 6th, the committee will have a hearing on the electronic surveillance which will take up the issue of the compliance with the Foreign Intelligence Surveillance Act or executive powers under Article II.

We've set that hearing for the 6th because we couldn't find any other day to do it, and that's the day we will open arguments on the -- opening statements on asbestos.

It is anticipated that we'll have at least two, perhaps three, days of hearings on the electronic surveillance. On the 6th we'll be listening to Attorney General Gonzales. And the staffs have already been talking with the expectation of having the attorney general on all day.

And I anticipate it'll have 10-minute rounds and more than one round, because there are very complex issues here and we want to have ample time to explore them with the attorney general to give the president an opportunity to state his case.

When we move to asbestos, we've had very extensive markup in committee, as we all know, and it would be my hope that those who have amendments to offer on the floor -- and I know there will be amendments and people feel very deeply about many of the issues there, and I expect the amendments -- but I would hope that members who have amendments would notify the ranking member and me in advance, give us as much notice as you can. That was a 13-5 vote out of committee, with Senator Leahy and Senator Kohl and Senator Feinstein joining the 10 Republicans on the committee.

SPECTER: Let's see if we can get time agreements and move ahead in an orderly way to consider that bill, because it is complicated and it will take some time.

Before moving to the senators' statements on the Alito confirmation, let me yield now to the distinguished ranking member.

LEAHY: Thank you, Mr. Chairman.

(inaudible) an impressive and aggressive schedule, and I agree with it.

On the question of the Patriot Act, as you know, most of us felt we didn't want to end it, we just wanted to mend it. And that can be done. The bill that was voted out of this committee unanimously -- all Republicans, all Democrats on the Patriot Act -- would have mended it.

As you and I discussed -- when we were at the White House for another matter with President Bush -- there are a number of things I think that could have been handled very quickly with some help from the other body.

Certainly, the concern raised by librarians -- I did raise that with the president; perhaps inspired by the fact that Mrs. Bush was standing right there.

But there's also the gag rules and the presumptions. Those are things that have concerned people across the political spectrum. You find it from gun clubs to civil liberty organizations. These are issues that affect all of us.

LEAHY: I would hope that we might end up fixing those few problems that can be done fairly easily.

There were certainly improvements made in the House bill. I think we would have reached conclusion had the Republicans not decided, as they often do on committee conferences, that all Democrats had to leave the committee conference.

One of the reasons why I was unwilling to sign that conference report is that, notwithstanding the tremendous help from you and the fact that you and I stayed in contact on this, the Republicans determined at the conference -- the chair of the Republican conference or the chair of the conference determined that final decisions on the Patriot Act would be made with only Republicans in the room and not Democrats.

We've seen even in today's press that sometimes there's $20 billion giveaways that result from those kind of conferences. But in this case, I'm more concerned that liberties were given away.

The hearings, I think, are extremely important and I applaud you for doing it.

I'm concerned that when we have these questions of illegal spying, where the law is not being followed, that, in the other body, they've been unwilling -- under pressure from the White House, but unwilling to hold hearings. And, in fact, most committees in the Senate have been unwilling to hold hearings because of the pressure from the White House.

You have taken the position that, whether you have Democrats or Republicans there, we ought to have hearings. This Senate was willing to have hearings during the Clinton administration. And I'm glad to see, finally, we're going to have them during the Bush administration.

I applaud you for doing that. I think there are real questions that should be asked.

On the question of the asbestos legislation, I think that we did put together a bipartisan piece of legislation.

LEAHY: I think it is not going to make everybody satisfied, by any means. But it brings us a lot closer to getting help for people who are suffering grievously from asbestosis. And I think that we would not be this far had you not been willing to stick with it, even during a time of great physical discomfort for you because of the treatment that you underwent for a cancer last year.

SPECTER: Thank you very much, Senator Leahy.

I'm going to set the clock at five minutes, which will be the extent of my comments on Judge Alito. My request to the members is to be brief. We will be on the floor tomorrow with opportunity to make very lengthy speeches.

I do not believe, notwithstanding all of the cameras here today, that there's a great deal of suspense as to what's going to happen in this committee hearing. Everybody, I think has announced, or if not, everybody knows where everybody stands. So that to the extent that we can be brief it would be appreciated.

We all know that that's only the chairman's request, but I'm going to set the example by staying within five minutes. And it would be my hope that we could move along, because there will be a full opportunity for extended speeches tomorrow.

I'll start the clock.

I intend to vote for Judge Alito for Supreme Court of the United States.

SPECTER: I do so because I think he is qualified.

His personal background is exemplary. His professional qualifications are outstanding. His educational achievements are of the highest order.

And I believe that, in presenting himself to this committee, he has answered questions as far as he could go. He did not decline to answer questions based on the fact that cases might come before him, but instead, on the issues, discussed the considerations that would guide him in coming to his decisions.

He did not say what his ultimate decision would be, as he should not, because no nominee ought to be asked to decide in advance how he is going to rule on any specific case.

On the issue of a woman's right to choose, it is my judgment that he went as far as he could go. He emphasized the factor of stare decisis and precedents, and the reliance factor, which was paramount in the Casey decision.

He agreed with Justice Harlan's dissent in Ullman v. Poe about the Constitution being a living document. Agreed with Cardozo in Palko about representing the values of our society. And agreed with Chief Justice Rehnquist, who changed his views on Miranda over three decades, when police practices had become embedded in the culture of a society.

And it is my view that a woman's right to choose has been embedded in the culture of our society. But our function is to vote on nominees; and justices must decide the ultimate question.

SPECTER: I think that his statements about Roe as settled law were very, very similar to what Chief Justice Roberts had to say. Chief Justice Roberts said Roe was settled in beyond, but he left room for stare decisis and precedents to be changed, and so did Judge Alito, as I think any nominee must in terms of not making an ultimate decision.

We have seen the rule that there is no rule as to how nominees will act once they're on the court. When Justice Souter was up, the National Organization of Women flooded Capitol Hill with a rally: "Stop Souter or women will die." And there was a similar pamphlet distributed as to Judge Alito.

Justice Kennedy and Justice O'Connor spoke in very, very strong terms against abortion rights before they came to the court, and we know that Souter and Kennedy and O'Connor wrote the joint opinion in Casey v. Planned Parenthood, and have been staunchly in favor of a woman's right to choose.

I thought that Judge Alito went about as far as he could go on discussing executive power and congressional power. I was pleased to see that he did not adhere to the Supreme Court opinion that justices have a superior method of reasoning to senators.

And I thought that the judges who testified on his behalf got to the core of the concerns of many members that he is not an ideologue and that he does have an open mind. And those are men and women who go with him into conferences where they talk about the cases and know the most about the judges.

SPECTER: Former Circuit Judge Tim Lewis, African-American, was very explicit in talking about his being pro-choice and in favor of civil liberties, and supported Judge Alito wholeheartedly.

I am personally sorry to see a party-line vote out of this committee, and perhaps very close to a party-line vote out of the full Senate. But we all have our points of view.

I would hope that Judge Alito would consider him confirmed for all the people, if he is, in fact, confirmed, and that he has pro- choice supporters. And there are six Republicans or more who are pro- choice.

I conclude on zero.

Senator Leahy?

LEAHY: Mr. Chairman, I may take more than five minutes.

But first off, on the question of party-line votes, considering the fact that the U.S. Supreme Court is there for nearly 300 million Americans, I wish we could have somebody who would have the support of all Americans.

As you know in discussions that you and I had with the president on this, the president spoke of his campaign promises. I reminded him several times of his biggest campaign promise, to be a uniter and not a divider, and urged him to be a uniter and not a divider when it came to a Supreme Court nomination.

LEAHY: There are many, many, many people in this country who would have had from 90 to 100 votes in the Senate. Democrats and Republicans would have joined eagerly to support them.

We have nine members on the Supreme Court today. Seven of those nine members were nominated by Republican presidents; two by a Democrat.

I voted for eight of those nine members. I try very hard not to have partisan votes on Supreme Court nominees.

Think how much better it would have been if, in this case, President Bush had sought any one of dozens upon dozens of highly qualified people -- highly qualified people, men and women, various ethnic backgrounds, all of whom would have gotten an overwhelmingly -- overwhelmingly, if not unanimous, vote from the Senate. And think of the signal that would have sent to the country and think how that would have allowed the president to fulfill his campaign promise of being a uniter and not a divider.

But this nomination raises the fundamental question of whether the Senate will serve its constitutional role as a check on the president by preserving the Supreme Court as a constitutional check on the expansion of presidential power.

I'd urge senators, and particularly Republican senators, to approach this discussion with open ears and open minds.

This is a nomination that I fear threatens the fundamental rights and liberties of all Americans now and in generations to come.

LEAHY: The president is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans.

And I believe this nomination is part of that plan. I am concerned that if we confirm this nominee we will further erode the checks and balances that have protected our constitutional rights for more than 200 years.

It's a critical nomination. It's one that can tip the balance in the Supreme Court radically away from the constitutional checks and balances and the protection of Americans' fundamental rights.

This past week, I introduced a resolution to clarify what we all know: that congressional authorization for the use of military force against Osama bin Laden did not authorize warrantless spying on Americans, as the Bush administration is now claiming.

As Justice O'Connor underscored recently, even war, quote, "is not a blank check for the president when it comes to the rights of the nation's citizens," close quote. Who could disagree with that?

But now that the illegal spying on Americans has become public and the president has acknowledged the four-year-old program, the Bush administration's lawyers are now contending the Congress authorized it.

The September 2001 authorization to use military force did no such thing. Democratic and Republican senators know it. A few Republicans have said so publicly. We all know it.

The liberties and rights that define us as Americans, and the system of checks and balances that serve to preserve them, should not be sacrificed to threats of terrorism or the expanding power of the government.

Our authorization was to go after Osama bin Laden. How much I wished the administration had continued to go after Osama bin Laden instead of pulling our best forces out of Afghanistan when we had a chance to catch him.

LEAHY: How much safer we would be if they had continued what we asked them to do.

In the days immediately following those attacks of September 11th, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.

The Bush administration's after-the-fact claims about the breath of the authorization to use military force are the latest in a long line of manipulations, is another affront to the rule of law, of American values and traditions.

We've also seen the same type of overreaching and that same Justice Department's twisted interpretation of the torture statute, with the detention of suspects without charges and denial of access to counsel, and with the misapplication of the material witness statute as a, sort of, general preventative detention law.

Throughout the Alito hearing, from my opening statement on Monday afternoon to my first questions on Tuesday morning to my last written question, which received a response last Friday, I asked Judge Alito about these matters, and I am not reassured by his answers.

A central question during the hearings on this nomination was whether Judge Alito would serve as an effective constitutional check on the presidency.

We have a president who is prone to unilateralism and assertions of executive power that extend all the way to illegal spying on Americans. Preventing government intrusion into the privacy and freedoms of Americans is one of the hallmarks of the Supreme Court.

There is no assurance that Judge Alito will serve as an effective check and balance on government intrusion into the lives of Americans. Indeed, his record suggests otherwise.

We know that Samuel Alito sought to justify absolute immunity for President Nixon's attorney general, John Mitchell, from lawsuits for wiretapping Americans, among other violations of our privacy.

LEAHY: We know that as a judge Samuel Alito was willing to go further than even Michael Chertoff, the current secretary of the Department of Homeland Security, in excusing government agents for searches not authorized by judicial warrants.

We know Judge Alito would have excused the strip search of a 10- year-old girl that was not authorized -- in fact, expressly not authorized by a search warrant.

We know he was part of an effort within the Meese Justice Department to expand the use of presidential signing statements to increase the president's role in construing what a law passed by Congress means. That is a practice that the Bush administration is taking to new heights.

This president has made some of the most expansive claims of power since American patriots fought the War of Independence to rid themselves of the oppressive rule of King George III.

This president is claiming power to illegally spy on Americans, to allow actions that violate our values and laws protecting human rights, and to detain U.S. citizens and others on his say so -- on his say so, without judicial review, without any due process.

This is something I have not seen in my lifetime.

This is a time in our history when the protection of Americans' liberties are at risk, as are the very checks and balances that have served to constrain abuses of power for more than two centuries.

I've said before and I'll say again the Supreme Court is the ultimate check and balance in our system.

LEAHY: The independence of the court and its members is crucial to our democracy and our way of life.

The United States Senate should never be allowed to become a rubber stamp. We should be the conscience of the nation. But neither should the Supreme Court be allowed to be a rubber stamp for any president, Democratic of Republican.

I asked Judge Alito to demonstrate his independence from the interests of the president. He failed that test.

And I suspect that the answer to the question Judge Alito posed at the hearing regarding how he got the nomination can be answered in large measure with regard to his demonstrated deference to government power, his adherence to the unitary executive, his rulings in favor of government intrusions, and whatever he said in his job interviews at the White House that convinced those advising this president that he'll be a reliable vote against challenges to presidential power.

No president should be allowed to pack the courts, especially the Supreme Court. An overwhelmingly Democratic-controlled Senate stood up to the most popular Democrat ever elected president, Franklin Roosevelt, and we Democrats protected the independence of the Supreme Court by saying that even someone as popular as Franklin Roosevelt could not pack the Supreme Court.

Well, even today, with a Republican Senate, I would say that no president should be allow to pack the courts, and especially the Supreme Court when nominees are selected to enshrine presidential claims of government powers.

Our system was designed to ensure balance and to protect against overreaching by any branch. The Senate should not be a rubber stamp to this president's effort to move the law dramatically to the right and to give him unfettered leeway.

LEAHY: So I will not lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy.

As I said, I voted for eight of the nine members of the Supreme Court. I voted for President Reagan's nomination of Sandra Day O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, for President Bush's nomination of Justice Souter and for this president's recent nomination of Chief Justice Roberts.

But this is a bridge too far. I cannot vote for this nomination.

At a time when the president is seizing unprecedented power, the Supreme Court needs to act as check and to provide balance. Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Leahy.

Continuing "debate" by senators

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