Testimony on Alito Nomination
By US Senator PATRICK LEAHY
Senate Floor Speech, January 27, 2006
Mr. LEAHY. Mr. President, I have spoken before, of course, on this nomination. I want to emphasize some of the points I have made.
The Constitution, as we know, gives the Senate a central role in the confirmation of a Supreme Court Justice. Nothing in our makeup, nothing in the history of this country assumes that the Senate would be a rubber stamp for the President’s nominees. After all, it was the Senate that turned down some nominees of George Washington – the most popular President and the greatest President in this country’s history – because it would not be a rubber stamp. It was an overwhelmingly Democratically controlled Senate at the time of Franklin Roosevelt, and it was that Senate that said to Franklin Roosevelt: You cannot pack the Supreme Court.
I have said, also, many times that the Senate should be the conscience of the Nation. After all, we are the only 100 people in this country of 295 million Americans who get a chance to vote on lifetime positions to the Supreme Court – people who will affect our personal rights for decades to come.
Now, I have voted on every one of the current nine members of the U.S. Supreme Court. I actually voted on some who are no longer there. I approach each one the same way. Is this going to be a Supreme Court Justice for all Americans? That is what I asked about Judge Alito.
He came before our Senate Judiciary Committee with a record he has created over the last 30 years. As a judge, and before that as a high-ranking Government official appointed to a succession of posts by Republican Presidents, Judge Alito seemed consistently to defer to Executive power and to show little empathy for the plight of ordinary Americans. His record also suggested a pattern of saying what he needed to say to get to the next job. Certainly, nothing in his record, nothing in his job application indicated he felt very strongly about checks and balances and the three branches of Government.
Now, in the course of this nomination and the hearings, he sought to retreat from his own words; but even trying to retreat, he did not. The hearing provided him with an opportunity to explain his record. It was an opportunity he chose to squander. The President’s supporters and many Republican Senators on the committee urged him not to be forthcoming. My gracious, the 18 members of that committee are the only ones who get to ask him questions on behalf of all 295 million Americans, and some urged him not to answer questions. He had the chance to answer some of the troubling questions that his past words and actions raised. He had the opportunity to demonstrate that his replacement of Harriet Miers was not what it appeared to be – the President selecting somebody whom he knew he could count on to support Government power and the expansive doctrine of the “unitary Executive,” and someone the extreme faction in the President’s party felt assured would march with Justices Scalia and Thomas in their culture war.
So it was an opportunity to answer questions – an opportunity he did not take. The hearings and the whole confirmation process left us with more questions and greater concerns than we had before. I have discussed his failure to assure us that he would be an effective check and balance on Executive power. He failed to show me or the American people that when he recited platitudes such as “nobody is above the law,” he was not telling us what he thought he needed to say to get one more promotion.
When I voted for John Roberts as Chief Justice, a conservative Republican nominated by a conservative Republican, I voted for him because I looked at him and I thought, “Would George Bush or Patrick Leahy, or George Smith or Patrick Jones, get fair treatment? And would we be heard on what the facts and the law would be?” I believed we would. But I don’t have that same confidence with Judge Alito.
One question for the Senate is whether Judge Alito takes seriously his promises to the Senate and his obligations to avoid the appearance of impropriety. He had an opportunity to talk about his numerous failures to recuse himself from cases during the nomination period, and he didn’t accept that opportunity.
In 1990, Mr. President, Judge Alito came before the Senate. I was here at that time. He was seeking confirmation to the Third Circuit Court of Appeals. He made a pledge – and they are made under oath – that he would recuse himself from five categories of cases: cases involving three different financial companies with whom he had dealings, cases in which his sister’s law firm represented a party, and cases he had overseen as the U.S. Attorney in New Jersey. Someone in that circumstance who would not make such a pledge might not have been confirmed. But I was disappointed to discover that, despite making this explicit promise to disqualify himself in these cases, he failed to disqualify himself in at least four of the five categories from which he had sworn he would disqualify himself. In fact, he apparently failed to put several of the companies on the so-called recusal list. These were companies from which he said he would recuse himself if matters involving them came up before the Third Circuit. He did not even give their names to the clerk to make sure that happened.
I don’t suggest that he in any way got any financial benefit from this. I doubt that he did. But, again, he was making promises to get promoted to the next job. Once he got promoted, the promises were forgotten.
One case we have heard a lot about involving the Vanguard funds, in which he had invested hundreds of thousands of dollars, and which he expressly included in his 1990 pledge to the Senate, is particularly troubling – not just because of his involvement but for the various reasons he gave, shifting reasons, for why he did not recuse himself. First, he said he didn’t realize it was a case involving Vanguard. The word “Vanguard” appears in the case name three times and in the case papers many more times. He said the clerk had moved to a computerized recusal system, so there was a computer glitch, and that may have been why he was assigned the case. Well, he would have seen Vanguard in the case name three times. He said: Well, I didn’t benefit from it. We were getting a little bit into “the dog ate my homework.” Why not just say, “I screwed up?”
After significant investigatory work and pressing for answers, we found that Vanguard was not on his computerized list to identify conflicts, so a computer glitch could not have occurred. He finally acknowledged – and I give him credit for this – having stated for weeks and weeks that there was a computer glitch, he finally acknowledged that there was not. Why not say, “I screwed up” and accept the responsibility? He acted like the Bush Administration most often does when it errs, by blaming others: his surrogates attacked those raising questions, while he proffered numerous conflicting excuses.
For example, one of his many explanations was contained in a letter he wrote to Chairman Specter. He contended that the 1990 promise he had made to the Judiciary Committee in order to become a Circuit judge only applied to his “initial service” and that he later, apparently secretly and unilaterally, decided that his promise to this Committee had been “unduly restrictive” and that he need not follow it anymore. He did not so inform the Judiciary Committee or the Senate of these determinations at any time before his 2005 nomination to the Supreme Court. Moreover, it is wholly inconsistent with his finally adding the Vanguard companies to his recusal list in December 2003. This letter seems more like self-serving, after-the-fact rationalizing than it does a truthful explanation for what had happened in 2003. As we discovered through due diligence,
Vanguard and Smith Barney were not on the judge’s automatic recusal list even in 1993. There is no reason to think they were on there before that. It certainly does not seem that Judge Alito tried to live up to his sworn commitment to the Senate even during what he would have to concede was his “initial service” period as a Circuit judge.
Moreover, the “initial service” excuse makes no more sense with respect to his Vanguard investments than it would with respect to his sister. She did not cease being his sister after some “initial service” period of his on the bench. In fact, his Vanguard investments significantly increased over the period of his service on the bench. The “initial service” concept in the Judiciary Committee’s approach to recusal applies to transition from a law practice to the bench. Thus, for example, once the cases on which he had been involved while the U.S. Attorney in New Jersey had run their course, he was not prohibited for all time from hearing cases from that office. Eventually, even he had to acknowledge at the hearing that this “initial service” argument was not the real reason he failed to recuse from the Vanguard case, even though that had been the argument he made in a written response to our Committee’s chairman.
To the end, Judge Alito has failed to take responsibility for his action. Instead, the best he can do is to admit at his hearing that he “just didn’t focus on the issue of recusal” and that “no light went off.” There was no remorse, no apology, and no embarrassment for the string of conflicting and inaccurate explanations he gave during the course of this nomination. Accordingly there is no reason to think that if he becomes a Supreme Court Justice he will focus any better on conflict of interest and appearance of conflict issues, in a system without accountability. I voted against the nomination of Justice Rehnquist to become Chief Justice in large measure because of his involvement in a case in which he should not have been. I take these matters very seriously. It is apparent that this nominee does not.
In his 1985 job application for a job in the Reagan administration – one that he said he was careful in doing – he very proudly included his membership in the Concerned Alumni of Princeton, or CAP, which he termed “a conservative alumni group.” Actually, he named only two groups he had been associated with, that one and the Federalist Society. He was also a member at the time of the Princeton Club in Washington. He didn’t include that. He didn’t include anything else. The reason I mention this is that he knew exactly what memberships to what clubs would appeal to those in the Meese Justice Department. Some would say that is being wise. But why emphasize membership in a group such as the Concerned Alumni of Princeton? Nobody would suggest that in his hiring practices or in the way he lives Judge Alito is biased against women or minorities, but the Concerned Alumni of Princeton received national attention for resisting the admission of women and minorities – African Americans and others – into Princeton. Why brag about being part of such an organization?
These same people only a generation earlier surely would have resisted the admission of people from Italian immigrant families. I take that rather personally. My mother’s family were Italian immigrants. I still have relatives in Italy today, uncles, aunts, and cousins, who talk about how proud they are of their sons and daughters who have gone to America.
I also think of a different era when my Irish father, as a teenager, had to face signs: “No Irish need apply” or “No Catholics need apply.” As a result, we grew up in a family where we learned that all discrimination was wrong.
Why brag about even a loose affiliation with a group that advocated any kind of discrimination?
Because it had been in the press, I thought I would help the judge out. I asked him about this. I figured it would be a simple explanation; that he would make it very clear that he was opposed to them. Instead, he said: I don’t really remember that group. We alerted him ahead of time that he was going to be asked that question. He said: “I don’t remember that,” even though it was on his application.
Then he said: Well, I think it was because of the concern that ROTC was not being allowed on the Princeton campus. Good explanation, except, of course, by 1985 ROTC was back on the Princeton campus. Neither CAP’s own materials nor media accounts suggest that ROTC was a primary focus for CAP at the time. And of course, that was not an answer to my question. My question was why he touted his membership in 1985. He never answered my question.
Those little facts, inconvenient facts, that come in. They were not inconvenient at the time he was applying for a job with Edwin Meese. Then it was something of which to be proud. Now applying for a job on the U.S. Supreme Court it is: I don’t remember why I did it.
I will give him the benefit of the doubt. I will accept he was not very active in the group. But then that goes all the more to why he emphasized it in his job application especially to that administration, to the Meese Justice Department. That was the most ideological and partisan administration we had seen until the present time. So it is logical to think that he proudly proclaimed his membership in CAP and the Federalist Society, as well as his support of Republican candidates and conservative causes and his recent submission of articles to the American Spectator, to establish his right-wing credentials to help win that coveted We also have his multi-page memorandum on the Thornburgh case from his days in the Solicitor General’s office – one of the handful that slips through the veil of secrecy that the Bush Administration sought to construct – in which he asserts his legal view that Roe was wrongly decided and should be overruled, but that tactically the better approach would be to incrementally undermine its legal authority.
This one memo is enough to demonstrate why such material should have been produced rather than hidden by this Administration so that the Senate and the American people would have the nominee’s views and record. The Bush Administration refuses to produce Samuel Alito’s work at the Solicitor General’s office and at the Office of Legal Counsel. Who can tell what those other writings would reveal about the nominee’s legal views? The Washington Post recently reported that Charles Cooper has now indicated that Samuel Alito worked on defending the Reagan Administration in connection with the Iran-Contra crimes by working on legal theories so that they would not have to inform the Congress which was investigating in its oversight capacity. What else did Samuel Alito work on that is being hidden from the Senate and the American people?
On the issue of a woman’s right to choose, we also have Judge Alito’s opinion in Casey in which he follows the script he laid out in his memorandum to the Solicitor General and finds no state regulation an undue burden on a woman’s right to choose. Of course, the Supreme Court, including Justice O’Connor herself, were in place then to hold the line in Casey, reaffirm Roe and reject Judge Alito’s position.
He would not testify what his legal view is today. He made it very clear he continues to believe that Roe v. Wade was wrongly decided. In describing how to decide a case where there is a precedent, he left out a step. He left out the step where the Justice, knowing there is a controlling precedent, decides whether the precedent was correctly or incorrectly decided. If a Justice believes the preceding case was correctly decided, he has no reason to go on to make the other calculations about weight and reliance and all the other factors that a Justice is to consider when deciding whether to overrule past precedent. He did not mention that step, though. In other words, Judge Alito’s testimony presupposes that he continues to believe now what he believed in 1985, that Roe v. Wade was wrongly decided. Otherwise his answers make no sense. A justice does not waste time worrying about factors and weight and reliance when he considers the precedent correctly decided; that happens only when he is considering whether to overrule or limit that precedent.
I mention this as just one more case. Much has been said about Roe. But for this Senator, it goes way beyond the question of Roe. It goes to the question of, to what extent would you allow a President to step aside from checks and balances? All his writings indicate a President should be able to do that. He is one of the strongest proponents I have heard in my life speaking about the so-called “unitary Executive.”
What does that mean in real life? It means this President, more than all Presidents in history – all Presidents in history – has used the Alito theory to say: Even though I signed a law, even though I signed something into law, I don’t have to follow it because I am the President.
There are only two Presidents I have heard say that something is not illegal if the President does it: One is Richard Nixon, and the other is George W. Bush, and President Bush has used the Alito theory to make this argument 103 times.
That means he can sign a law saying the United States must obey our own laws, our treaties on torture, and then quietly write a separate page saying: However, as President, I will decide when we will follow that law.
Judge Alito’s contradictory testimony at the hearing about his view were revealing. He went to great lengths to distance himself from his public endorsement of Judge Bork’s unsuccessful nomination to the Supreme Court. He had called Judge Bork one of the most qualified nominee of the last century and was effusive in his praise – until asked about it at the hearing. There he sought to backtrack. He sought to excuse his comments as those of a political appointee supporting his employer’s nominee, but had to concede that was not an accurate explanation for his comments. Only when pressed did he concede that he indeed thinks highly of Robert Bork’s candidacy.
And when Senator Kohl asked him for his views of whether the Supreme Court should have taken the case of Bush v. Gore, his evasiveness reminded me of when I asked Clarence Thomas whether he had ever discussed Roe v. Wade with anyone. Senator Kohl was not even asking his views on the holding of that case.
We are in a pivotal constitutional moment in our history with a single fundamental question: Will the Senate serve its constitutional role and preserve the Supreme Court as a constitutional check on the expansion of Presidential power?
The reason Presidential power issues have come to dominate this confirmation is because we clearly have arrived at this crucial juncture in our Nation and at our highest Court over one simple question: Is the President of the United States above the law? I feel very strongly none of us are. You, Mr. President, are not, I am not, the President of the United States is not, the other 98 Senators are not, judges are not.
The Framers knew that unchecked power leads to abuses and corruption, and the Supreme Court has to be the ultimate check and balance in our system. Vibrant checks and balances are instruments in protecting both the security and the liberty of the American people.
This great, wonderful country of ours has existed for well over 200 years because we have those checks and balances and because we protect the liberties of individual Americans – all Americans, not just those who fit into one narrow political ideology, but all Americans, all Americans, all Americans, from any part of this country: Americans who express popular ideas or unpopular ideas, a free press, free observation of religion, a free people. We have to have the Supreme Court as the ultimate check and balance, and the independence of the Court is crucial to our democracy and way of life.
The Senate, as I said before, should never be allowed to become a rubber stamp and neither should the Supreme Court. We owe it to the American people today and Americans in generations to come to ask several essential questions:
Can this President, or any President, order illegal spying on Americans?
Can this President, or any President, authorize torture in defiance of our criminal statutes and our international agreements?
Can this President, or any President, defy our laws and Constitution to hold American citizens in custody indefinitely without any court review?
Can this President, or any President, choose which laws he will follow and which he will not, by quietly writing a side statement when he signs a bill into law?
These are some of the most vital questions of our time, and they are among the most vital questions that confront the Senate in considering this nomination to our highest Court. Judge Alito’s record, and his responses – and his failure to adequately answer questions about these issues – are deeply troubling.
Regrettably, Judge Alito approached the question of a lifetime appointment to succeed Sandra Day O’Connor on the U.S. Supreme Court as a job application process that resembled a political campaign with two distinct parts. First, he had to get the nomination, which he sought as a committed arch-conservative and as a reliable vote in favor of Government power. That mission was accomplished when he was named to replace the nomination of Harriet Miers with the support of the President’s most extreme supporters. That was his primary campaign. The Senate confirmation process is more the equivalent of a general election in which he strives to appear as middle-of-the-road as possible. Unfortunately, what he did not do successfully was to reconcile the two roles.
I will vote against this nominee. I believe the President picked him for his demonstrated legal views which are a stark contrast to the image the White House and the handlers and supporters have attempted to create.
Mr. President, I see the distinguished senior Senator from Alaska. I appreciate his courtesy and yield the floor.
January 27, 2006