Jan 09 2006

Opening Statement at the Judiciary Committee Hearing on Judge Samuel Alito

Thank you, Mr. Chairman. And welcome back, Judge. I'd hate for you to miss my opening statement. (LAUGHTER) It would be a loss for the ages. Welcome to the committee. Welcome to one of the most important events in your life. You've got the people that mean the most here with you today, your family. I know they're proud of you. I'm certainly proud of what you have been able to accomplish. And to say the least, you come to the Senate in interesting political times. There is going to be a lot of talk by the senators of this committee about concepts that are important to Americans. But what I worry the most about -- your time, believe it or not, will come and go. You will not be here forever, it may just seem that way. But I think you're going to be just fine. I don't know what kind of vote you're going to get, but you'll make it through. It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines. I feel very comfortable with you being on the Supreme Court based on what I know. And the hearings will be helpful to all of us to find out some issues that are important to us. We had a talk recently about executive power. That's very important to me. In a time of war, I want the executive branch to have the tools to protect me, my family and my country. But also I believe even during a time of war, the rule of law applies. And I've got some problems with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly. We've talked about those things and we'll talk more about it. But I'm going to talk a little bit about some of the points my colleagues have been making. Everybody knows you're a conservative. The question is: Are you a mainstream conservative? Well, the question I have for my colleagues is: Who would you ask to find out? Would you ask Senator Kennedy? Probably not. If you asked me who a mainstream liberal is, I would be the worst person to pick, because I do not hang out over there. (LAUGHTER) I expect that most all of us, if not all of us, will vote for you. I would argue that we represent from the center line to the right ditch in our party and, if all of us vote for you, you've got to be pretty mainstream. So the answer to the question, Are you a mainstream conservative? We’ll soon know. If every Republican member of the Judiciary Committee votes for you, and you're not mainstream, that means we are not mainstream. It is a word that means what you want it to mean. Advise and consent means what? Whatever you want it to be. Advise and consent means the process has got to work to the advantage of people I like and with people I don't want on the court, it is a different process. That is politics. Every senator will have to live within themselves as to what they would like to see happen for the judiciary. My main concern here is not about you, it's about us. What are we going to be doing as a body to the judiciary when it is all said and done? Roe v. Wade and abortion: If I wanted to work for Ronald Reagan, one of the things I would tell the Reagan Administration is I think Roe v. Wade was wrongly decided. They are likely to hire me because they were trying to prove to the court that the court took away from elected officials a very important right, protecting the unborn. I was on the news program with Senator Feinstein this weekend, who is a terrific person. She made a very emotional, compelling argument that she can remember back alley abortions and women committing suicide when abortion was illegal. I understand that is seared in her memory banks and that is important to her. Let me tell you, there's another side to that story. There are millions of Americans -- a bunch of them in South Carolina -- who are heartsick that millions of unborn children have been sent to a certain death because of what judges have done. It's a two-sided argument and an emotional event in our society. They're talking about maybe filibustering if you don't give the right answer. Well, what could possibly be the right answer about Roe v. Wade? If you acknowledge it's a precedent of the court, well, then you would be right. If you refused to listen to someone who's trying to change the way it's applied or to overturn it and you will say, Here, I will never listen to them, you might talk me out of voting for you. I don't think any American should lose the right to challenge any precedent the Supreme Court has issued because the judge wanted to get on the court. You may be a great fan of Roe v. Wade and you think it should be there forever. There may be a case where someone disagrees with that line of reasoning. What I want from the judge is an understanding that precedent matters but the facts, the brief and the law is what you're going to base your decision on as to whether or not that precedent stands. Not some bargain to get on the court. Because I can tell you, if that ever becomes a reason to filibuster, there are plenty of people that I personally know, if it became fashionable to stand on the floor of the Senate to stop a nominee on the issue of abortion, feel so deeply, so honestly held belief that an abortion is certain death for an unborn child that they would stand on their feet forever. Is that what we want? Is that where we're going as a nation? Are we going to take one case and one issue, and if we don't get the answer we like that represents our political view on that issue, are we going to bring the judiciary to their knees? Are we going to say as a body, It doesn't matter how smart you are, how many cases you decided, how many things you've done in your life as a lawyer, forget about it; it all comes down to this one issue ? If we do, if we go down that road, there will be no going back. Good men and women will be deterred from coming before this body to serve their nation as a judge at the highest levels. What we're saying and what we're doing here is far more important than just whether or not Judge Alito gets through the process. What is the proper role of a senator when it come to advise and consent? I would argue that, if we start taking the one or two cases we cherish the most and make that a litmus test, we've let our country down and we've changed a historical standard. Elections matter. Values debates occur all over this country. They occur in presidential elections. It is no mystery as to what President Bush would do if he won. He would pick people like John Roberts and Sam Alito. That's what he said he would do. That's exactly what he's done. He's picked solid, strict constructionist conservatives who have long, distinguished legal careers. What did President Clinton do? He picked people left of the center who worked for Democrats. It cannot surprise anybody on the other side that two people we picked worked for Ronald Reagan. We like Ronald Reagan. President Clinton picked Ginsburg and Breyer. Justice Ginsburg was the general counsel for the ACLU. If I'm going to base my decision based on who you represented as a lawyer, how in the world could I ever vote for somebody that represented the ACLU? If I'm going to make my decision based on whether or not I agree with the Princeton faculty and administration policies on ROTC students and quotas and I am bound by that, I'll get killed at home. What the president does with their admission policies and whether or not an ROTC unit should be on a campus is an OK thing to debate. At least I hope it is OK. I think most American are going to be with the group that you're associated with, not the policies of Princeton. The bottom line is you come here as an individual with a life well-lived. Everybody who seems to work with you as a private lawyer, public lawyer, as a judge, admires you, even though they may disagree with you. My biggest concern, members of this committee, is if we don't watch the way we treat people like Judge Alito, we're going to drive good men and women away from wanting to serve. There'll be a Democratic president one day. I do not know when, but that's likely to happen. There'll be another Justice Ginsburg come over. If she came over in this atmosphere, she wouldn't get 96 votes. Justice Scalia wouldn't get 98 votes. And that's sad to me. I hope we'll use this opportunity to not only treat you fairly but not use a double standard. I hope we'll understand this is bigger than you, this is bigger than us. The way we conduct ourselves and what we expect of you, we better be expecting when we're not in power. Thank you.