Statement Of Senator Patrick Leahy,
Ranking Member, Judiciary Committee,
On The Nomination Of Samuel Alito
To Be Associate Justice Of The Supreme Court
Monday, October 31, 2005

Mr. President, on Friday the President formally withdrew from the Senate his nomination of Harriet Miers to be an Associate Justice of the U.S. Supreme Court.  Today, he announced his intention to nominate Judge Samuel Alito to that same position.  This will be the third nomination to fill the seat vacated by the future retirement of Justice Sandra Day O’Connor.

This is a needlessly provocative nomination.  Regrettably, when he could have united the country through his choice, the President chose to reward one faction of his party and risk dividing the country.  He should instead have rewarded the American people.  America would have been better served through consultation to select one of the many consensus conservative Republican candidates who could have been overwhelmingly approved by the Senate.

Just last week, the President succumbed to partisan pressure from the extreme right wing of the Republican Party to withdraw his nomination of Harriet Miers.  The President abdicated his own role in the Constitution’s process of selecting Supreme Court Justices, and allowed his own choice to be vetoed by extremists within his party, without hearings by the Judiciary Committee or a vote by the Senate

The Miers nomination has been an eye-opening experience for the country, exposing for all to see what a vocal and virulent wing of the Republican Party really wants.  They do not want an independent federal judiciary.  They want a right-wing litmus test, not the selection of judges and justices who will be fair and impartial in applying the law.  They, in fact, demand judges who will guarantee the results that they want.

With turmoil engulfing the White House, with no exit from the disastrous and deadly occupation of Iraq, with an excalating federal debt, and with obscenely high profits that continue to pile up for the Administration’s oil company friends, catering to an extreme wing of one political party jeopardizes the vital checks and balances that protect ordinary Americans.  It is a pity that the President felt his position was so weak that he had to bend to a narrow but strident faction of his political base.  The Supreme Court is the ultimate safeguard in our system to protect the fundamental rights of all Americans.  I hope the White House is not using this announcement today to try to distract the public from the scandals and failures mounting by the day for this Administration. 

With the announcement of Judge Samuel Alito to fill the position to be vacated by Justice O’Connor, the White House failed to follow through with initial discussions and engage in meaningful consultation.  I regret that the President has not chosen the clear path of a consensus candidate to unite the American people and the Senate.  The Nation and the Senate would have overwhelmingly welcomed his choice if he had.

I have not formed a final judgment as to the merits of this nomination, although an initial review of Judge Alito’s record suggests areas of significant concern.  Judge Alito’s opinions from the federal bench demonstrate that he would go to great lengths to restrict the authority of Congress to enact protective legislation to protect in the areas of civil rights, consumer protection, and the rights of workers, consumers and women.  Judge Alito has also set unreasonably high standards for ordinary Americans who are victims of discrimination to meet before being allowed to proceed with their cases.   

The Democratic Leader of the Senate and I wrote to the President last week, urging him to pick one of the many qualified mainstream women and minority candidates who could win widespread bipartisan support in the Senate and earn the confidence of the American people.  We noted the unique circumstances that now attend this nomination and that make it essential that Justice O’Connor be replaced by a mainstream nominee, not by an activist who would bring an ideological agenda to the Court.  

The Court that serves America should reflect America, but although President Bush declared, in reference to filling Justice O’Connor’s seat on the Court, that he is “mindful that diversity is one of the strengths of the country,” with his nomination of Judge Alito he is weakening that strength.  Should Judge Alito be confirmed, the Court will lose some of that diversity.  There was no dearth of highly qualified women, African Americans, Hispanics and other individuals who could well have served as unifying nominees while adding to the diversity on the Supreme Court.  I look forward to the time when the membership of the United States Supreme Court is more reflective of the country it serves.  

As the grandson of Italian and Irish immigrants, I know that Italian-Americans and President Bush’s guest, the Italian Prime Minister, will be feeling pride today.  But this nomination does not add to the diversity of the Supreme Court or make it more reflective of America.  I imagine that this announcement is a disappointment to many Hispanic Americans who had expected the President to seize this historic opportunity given to him for a third time, by nominating the first Hispanic to the Court.  I also imagine that all the women here in our Nation’s Capitol today to honor Rosa Parks -- the first woman to lie in state in the Capitol Rotunda, for her work in bringing racial justice to our Nation – are somewhat saddened that the seat of the first woman to serve in on our highest court is not going to be filled by another woman.

I do not expect Democrats to engage in the kinds of personal attacks on this nominee that the right wing used to force the President to withdraw the nomination of Ms. Miers, who he described as the best qualified person in the country to replace Justice O’Connor.  I do think we need to take the time necessary to examine the record of the nominee in the Reagan Justice Department and on the bench before proceeding with full and thorough hearings.

The stakes for the American people could not be higher with this new nomination.  Justice O’Connor brought an open mind to the cases she reviewed and served as a moderating influence on the Court.  The person who replaces her replaces a pivotal vote on our most powerful court, and has the potential to dramatically tilt the court’s balance.  Maintaining the stability of the court is crucial for the nation and will be an important factor for me as I consider this nomination. 

At this critical moment, and in light of the circumstances that led to the withdrawal of the Miers nomination, all Senators should perform our constitutional Advice and Consent responsibility with heightened vigilance.  The Supreme Court is the guarantor of the rights of all Americans.

I look forward to the hearing and will, as I did before, work with Senator Specter, the Chairman, to make sure they are open and fair as they were for Chief Justice Roberts.  But those were open and fair hearings because we had the time to prepare for them, and I would urge the President and even the leadership of this august body to allow the Judiciary Committee to take the time to do it right.  It’s far more important to do it right than to do it fast.  The appointment must be made in the nation’s interest, not to serve the special interests of any partisan faction, even though today some are claiming credit for destroying the chances of Harriet Miers.

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