Senator Kennedy Delivered This Address at the Center for American Progress today:
“Thank you, Melody, for that generous introduction, and thank you for your vision and effective leadership on so many issues of such paramount concern to the nation. Our Judiciary Committee in the Senate today just isn’t the same without you!
I’m grateful to the Center for American Progress for hosting us here today, and I commend you for the difference you’ve already begun to make. Keep up the great work.
It’s an honor to be here to address all of you on the nomination of Judge Samuel Alito to the Supreme Court. As you know so well, the stakes for our nation could not be higher. This is the vote of a generation. If confirmed, this nominee will have an enormous impact on our basic rights and liberties for years and even decades to come.
The Alito hearings, as well as those for Chief Justice Roberts before them, show the need for change in the way we learn a nominee’s views on our laws and the Constitution. Instead of a free and honest exchange of ideas, our hearings have become stylized and choreographed appearances in which nominees are coached to say as little as possible. When it comes to lifetime appointments to the highest court in the land, surely the American people deserve better.
After all, the Supreme Court is the guardian of our most cherished rights and freedoms. They are protected by the most solemn promises of the Constitution, and symbolized in the four eloquent words inscribed above the entrance to the Supreme Court: “Equal Justice Under Law.” Those words are meant to guarantee that our courts will be an independent check against abuses of power by the other two branches of government. It is a commitment that our courts will always be a place where the poor, the powerless, and the underprivileged can stand on equal footing with the wealthy, the powerful, and the privileged, and the Senate has a constitutional duty to ensure that any person confirmed to the Court will uphold that clear ideal.
The nomination of Judge Alito is particularly significant because it comes at a time of new challenges for the nation and for the Court.
— Suddenly, in this new century, we face unprecedented claims by the White House for sweeping expansions of Presidential power that are grave threats to the rule of law.
— Despite progress in recent decades, we continue to face serious inequalities and injustices in our society, as demonstrated so clearly by the immense tragedy a few months ago in the wake of Hurricane Katrina.
— We face new controversies over governmental intrusion into people’s private lives – from the interference with personal medical decisions on how long a loved one should be kept on life support, to new attempts to limit or even deny a woman’s reproductive decisions.
–We face new attacks on the progress we’ve made in civil rights. The signs proclaiming “whites only” may be gone, but we know that discrimination and bigotry in countless other manifestations still blight our society and limit opportunity.
One of the most important of all the responsibilities of the Supreme Court is to enforce the constitutional limitations on Presidential power. A Justice must have the courage and the wisdom to speak truth to power – to tell even the President that he has gone too far.
Chief Justice John Marshall was that kind of Justice when he told President Jefferson that he had exceeded his war-making powers under the Constitution. Justice Robert Jackson was that kind of Justice when he told President Truman that he could not misuse the Korean War as an excuse to take over the nation’s steel mills. Chief Justice Warren Burger was that kind of Justice when he told President Nixon to turn over the White House tapes on Watergate. And Justice Sandra Day O’Connor was that kind of Justice when she told President Bush that “a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”
We need that kind of Justice on the Court as much as ever. For today, we have a President who believes that torture can be an acceptable practice, despite laws and treaties that explicitly prohibit it. We have a President who claims the power to arrest American citizens on American soil and jail them for years, without the benefit of counsel or access to the courts. We have a President who claims he has the authority to spy on American citizens on American soil without a court order.
The record of Judge Alito is clear and ominous. Examine his writings. Read the transcript of the hearings. Consider the cases he’s decided. The record demonstrates that we cannot count on Judge Alito to blow the whistle when the President is out of bounds.
Judge Alito is a longstanding advocate for expansion of executive power, even at the expense of individual liberty. His statements show that he favors a far greater role for the President than is currently recognized by the Supreme Court.
In his now notorious job application to the Justice Department, he cast doubt on the role of the Court as well. He said, “I believe very strongly…in the supremacy of the elected branches of government.” He never explained his reason for advocating such an extraordinary departure from the basic understanding of the Constitution, that the Courts are intended to be co-equal with the President and Congress. When asked about his extreme statement, he said only that it was “inapt.” That’s certainly true, but it does not begin to tell the American people why he would make a statement so at odds with the basic system of checks and balances that have guided our democracy for two centuries.
Judge Alito’s testimony gave us no clue, but one thing is clear. If the elected branches become supreme, the Supreme Court will not be able to fulfill its historic role of enforcing constitutional limits on Presidential power. His statement may have been music to the ears of the Reagan Justice Department, but it was a shock of a thousand volts to all of us who care about our democracy and the rule of law.
Judge Alito’s consistent advocacy of what he called “the gospel” of the “unitary executive” is just as troubling. Professor Steven Calabresi, one of the originators of the unitary executive theory and a co-founder of the Federalist Society, has acknowledged that, if the concept is implemented, it would produce a radical change in how the government operates. As he wrote in the Harvard Law Review in 1992, “The practical consequence of this theory is dramatic: it renders unconstitutional independent agencies and counsels to the extent that they exercise discretionary executive power.”
Independent agencies such as the Federal Election Commission, created to see that our voting laws are properly enforced and interpreted, would be subject to the President’s control. The same is true of the Securities and Exchange Commission, which is charged with preventing corporate abuses such as we recently saw in the case of Enron, with tragic consequences for American workers. It would compromise the historic independence of the Federal Reserve Board, giving the President unprecedented and dangerous power to manipulate the economy. It would compromise the mission of every agency created to protect hard-working Americans from the exploitation of those who care only about profits, not the health and welfare and the very safety of their employees.
Nor is the impact of this bizarre theory limited to the independence of administrative agencies. It has a major effect on other assertions of Presidential power as well. Discussing President Bush’s aggressive claims for unprecedented executive power in the field of national security, even Professor Calabresi stated recently that without accepting such a theory, “there would be no way the Bush Administration’s anti-terrorism policies could be constitutionally justified.”
During his confirmation hearing, Judge Alito attempted to downplay his extreme views of executive power. But he did not disavow them. He refused to candidly discuss his current view of the constitutional limits on Presidential power. Instead, he pointed to the Supreme Court’s rejection of the unitary executive theory. He cited the Court’s decision affirming that independent counsels who investigate executive branch abuses can be removed from presidential control.
But a speech he gave in 2000 to the Federalist society provides insight into his real view. He stated that he believed that “the theory of the unitary executive best captures the meaning of the Constitution’s text and structure.” He went on to strongly criticize those rulings rejecting the theory of the unitary executive. He then outlined a strategy for bypassing the Court’s precedents, including the same independent counsel case he claimed to support in his testimony before the Judiciary Committee last week.
When Judge Alito made that speech, he was not applying for a job in the Justice Department. He’d already been serving as an appellate judge for ten years. The timing of the speech to the Federalist Society may be significant. In November 2000, the Florida recount was on, and the right wing was salivating over the prospect that George Bush would prevail in that close election. Judge Alito may well have been submitting his application for a Supreme Court nomination.
Judge Alito also failed to satisfactorily explain his controversial advice, as a Justice Department official, that “the President’s understanding of a bill should be just as important as that of Congress.” He recommended that when the President signs a bill passed by Congress, he should issue a signing statement announcing his own interpretation of the law, in the hope of influencing the way courts would construe the law. That proposal was clearly the recommendation of an activist seeking to reduce the power of Congress and expand Presidential power beyond its traditional boundary. The fundamental role of Congress is to pass laws and define what those laws mean in the text of the statutes themselves or in their legislative history. That power is exclusively for Congress, not the President. As Justice Hugo Black wrote in the steel seizure case, “In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad.”
Some years ago, the Supreme Court rejected the line item veto as unconstitutional. It reaffirmed Justice Black’s view that Presidents may either veto or sign bills that Congress passes. They cannot pick and choose the provisions they will enact. But the kinds of signing statements that Judge Alito advocates amount to a back-door line item veto of congressional actions.
President Bush showed this with his recent signing statement on a bill that contained Senator McCain’s ban on torture. In that statement, the President reserved the right to ignore the McCain requirements, and even asserted that in certain circumstances his actions are beyond the reach of the courts.
These views exalting Presidential power are troubling enough on their own. But they are also reflected in Judge Alito’s decisions as a judge. His record on the bench only reinforces the deep concerns raised by his broad expressions of support for executive power. His deference to executive power is especially clear in cases where persons claimed the government violated the privacy and security of their homes. He refuses to enforce core constitutional standards protecting individuals against low-level government officials in routine situations, and there is no reason to believe he will say no to a President who violates individual rights under the cloak of national security.
Time and again in cases involving claims of privacy, security, and freedom from unjustified searches and seizures under the Bill of Rights, he has accepted the government’s defense. That was true in his dissent defending a strip search of a 10-year-old girl without a warrant. Even now, when asked about the decision, Judge Alito repeatedly refuses to admit that he was wrong. Michael Chertoff, the former head of the Criminal Division in the Department of Justice, who is now President Bush’s Secretary of Homeland Security, served with Judge Alito in that case, and he sharply criticized Judge Alito’s view as threatening to turn the requirement of a search warrant into “little more than the cliché, ‘rubber stamp.’”
In still another case, Judge Alito ruled that it was reasonable for marshals carrying out an unresisted civil eviction to pump a sawed-off shotgun at a farming family sitting in their living room. The family had committed no crime. A fellow judge on the case dissented and called the marshals’ conduct “Gestapo-like,” since “seven marshals had detained and terrorized a family and friends, and ransacked a home, while carrying out an unresisted civil eviction.” Yet Judge Alito’s decision meant that the family never got a trial before a jury of their peers.
In another area of controversy, his views on issues of particular concern to women should give every woman pause – from his role in striking down key provisions of the Family and Medical Leave Act, to his opposition to the privacy of women’s reproductive decisions. He was unwilling to accept the constitutional right of privacy recognized by the current Supreme Court. Judge Alito’s testimony failed to resolve the very serious concerns that he’s itching to overturn Roe v. Wade. He said that he will keep an “open mind” on the issue – but that is no comfort to those who know his record.
That record includes his 1985 memo to the Reagan Administration’s Solicitor General. In that memo, he advised that the best way to undermine Roe was by gradually chipping away at its protections, and we have every reason to believe that he will do exactly that if confirmed to the Supreme Court. On the Court of Appeals, he was required to follow Supreme Court decisions, but as a member of the Supreme Court, he will be free to overrule those precedents with which he disagrees, no matter how well-established and long-standing.
A third area of major concern is Judge Alito’s record on civil rights. He has a 15-year record on the Court of Appeals, and the facts are inescapable. The weight of his record in job discrimination cases is against the victims of discrimination. Time and again, he voted to make it more difficult than the law intended for victims to prevail in court or uphold a verdict in their favor.
His written opinions on racial discrimination in employment have consistently ruled against African Americans on the merits of claims alleging such discrimination. During the hearings, his supporters pointed out that he joined opinions by other judges supporting such claims in two cases, and issued procedural opinions in supporting such claims in several other cases. But on opinions he has authored, he has issued no less than 30 decisions dismissing job discrimination claims. In many of the cases where he voted against the victims, his fellow judges ruled that they had a valid claim of discrimination.
In one case, a hotel worker claimed she was denied a promotion because she was an African American. The Third Circuit held she was entitled to a trial, because the employer had falsely stated that she was unqualified and had evaluated her qualifications differently compared to white applicants. But Judge Alito would have denied her the chance to prove her case. His colleagues on the court wrote that his dissent would have “eviscerated” the employee’s statutory right to be free from job discrimination under the Civil Rights Act of 1964.
In another case in which a disabled person sought physical access to medical school under the Rehabilitation Act of 1973, the court’s majority wrote that “few if any Rehabilitation Act cases would survive” if Judge Alito’s view prevailed.
In another case, a jury ruled that a woman had provided enough evidence to show she had wrongly lost her job because of sex discrimination. Ten members of the Third Circuit who heard the case on appeal agreed, and only Judge Alito argued that she hadn’t provided adequate proof of discrimination.
In still another dissent, Judge Alito voted to deny a mentally retarded young man the chance to challenge severe abuse. In his very first job out of high school, he had suffered vicious sexual harassment. He was held down in front of a group of workers, subjected to sexual touching, and he feared he would be raped. The employer did not dispute the facts. Yet Judge Alito would have denied him a trial.
Judge Alito even dissented from a ruling prohibiting the removal of African American jurors because of their race. It’s unbelievable in today’s America, in a case involving a minority defendant, that he was willing to ignore overwhelming evidence that the government insisted on an all-white jury.
These cases are not isolated instances. It’s all in the record. Law professors at Judge Alito’s alma mater, Yale Law School, analyzed more than 400 of his published opinions and concluded:
“In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age and disability claimants…”
“In the context of these civil rights cases, Judge Alito seems relatively willing to defer to the claims of employers and the government, over those individuals advancing civil rights claims.”
Other objective observers who have examined Judge Alito’s record have reached a similar conclusion. According to an analysis by the respected University of Chicago law professor, Cass Sunstein, “when there is a conflict between institutions and individual rights, Judge Alito’s dissenting opinions argued against individual rights 84% of the time. In almost all of the cases in which Judge Alito dissented in order to reject an individual rights claim, he was sitting on a court with a majority of Republican appointees.”
A comprehensive review of Judge Alito’s published opinions by Knight-Ridder similarly found that Judge Alito has “seldom sided” with “an employee alleging discrimination” and “almost never found a government search unconstitutional . . . .”
An analysis published by the Washington Post found that “routinely, he defers to government officials and others in positions of authority” and has “very little sympathy for those asserting rights against the government.”
In sum, in case after case, Judge Alito’s decisions demonstrate a systematic tilt toward powerful institutions, and against individuals attempting to vindicate their rights. He cites a few instances in which he has decided for the little guy, but they are few and far between.
Justice Lewis Powell captured the spirit of America best when he said: “Equal justice under law is not merely a caption on the façade of the Supreme Court building. It is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists.”
In evaluating Supreme Court nominees, there is no more important question than whether they are dedicated to equal justice under law. Judge Alito is a highly intelligent man, but his record does not show a judge who is willing to enforce the constitutional limitations on executive power when government officials intrude on individual rights.
His record does not show a judge who is open to the claims of vulnerable individuals asking only justice against powerful institutions.
His record does not show a judge who upholds the liberty and privacy of citizens seeking to protect their fundamental rights.
His record just does not show a judge who is committed to equal justice under law.
That is why I oppose his confirmation to the Supreme Court, and I fervently hope that the Senate will do so as well.”
For more on Senator Kennedy, visit www.tedkennedy.com