Statement Of Senator Patrick
Leahy,
Ranking Member, Committee On The Judiciary
The Alito
Nomination, The Supreme Court, And Presidential Power
Remarks On
The Nomination Of Samuel A. Alito, Jr.,
To Be An Associate Justice Of The Supreme Court Of The United
States
Georgetown University Law Center
January 19, 2006
Good morning. It always feels
good to return to Georgetown. I thank you for the invitation to
join you today and look forward to the work of this important
symposium.
For the last few months, I have
been immersed in the nomination of Judge Samuel Alito to replace
Justice Sandra Day O’Connor, and today I want to touch on what I
believe are some of the most important issues that have arisen.
The Supreme
Court As The Ultimate Check On Presidential Overreaching
Central during the hearings on
this nomination was the issue of whether Judge Alito would serve
as an effective constitutional check on the presidency, or
whether he would instead adhere to unchecked expansions of
presidential powers, in accordance with the extreme – and, I
might add, immodest -- theory of a “Unitary Executive.”
Presidential power was the first subject I explored with Chief
Justice Roberts in his confirmation hearing, and it was the
first subject I explored with Judge Alito in his hearings. This
is a fundamental question for me as I consider this nomination.
It is also a fundamental question for the Senate and for this
country at a time when we have a President prone to
unilateralism and arrogant assertions of Executive power that
range all the way up to illegal spying on Americans.
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?
After reviewing thousands of pages
of rulings and writing, and days of testimony from Judge Alito,
I have concluded that this nominee has failed to address these
central concerns on the issue of government power. Preventing
government intrusion into the personal privacy and freedoms of
Americans is one of the hallmarks of the Supreme Court. Yet
there is no reason to believe that Judge Alito will serve as an
effective check and balance on government intrusion into the
lives of Americans. Indeed, his record suggests otherwise.
Failing The
Test: A Nominee Who Cannot Demonstrate Independence
At the hearings Judge Alito failed
this test — literally. He twice misstated the generally
recognized framework for the Court’s reviewing claims of
government power in answer to my first questions. I corrected
him when he could not distinguish between what Justice Jackson
called the “zone of twilight” -- the situation when Congress had
not acted in an area in which the President claimed authority --
and the circumstances where Congress has acted and the
President’s authority is seen at its “lowest ebb” and subject to
more demanding justification. An example of this latter
category is wiretapping of Americans in light of Congress’s
enactment of FISA to comprehensively control government spying
on Americans.
The Senate considers this
nomination at a pivotal point in our nation’s history.
Security and liberty are always in
tension in our society, and especially since the attacks of
September 11. But liberty and security need not be mutually
exclusive. And in this blessed land, with the constitutional
legacy that has been entrusted to us through the blood, sweat
and tears of earlier generations of Americans, we must not yield
to the temptation to trade liberty for security. In a week when
we commemorate Ben Franklin’s 300th birthday, it is
especially fitting to ponder the relevance in our own time of
his observation that, “They who would give up an
essential liberty for temporary security, deserve neither
liberty or security.”
With enough care and effort and
foresight, we can have both.
I chaired the Judiciary Committee
after the 9/11 attacks, and in working with the White House and
with congressional partners in crafting the USA PATRIOT Act, I
pushed hard to add a variety of checks and balances, such as
judicial review and sunsets, to many of its provisions. The
Bush Administration resisted those additions at the time, but
today they brag about them as if they were their own. They make
no mention of their earlier contentions that checks and balances
would somehow hinder our anti-terrorism efforts -- and, in
fact, these checks against abuses have not hindered our
efforts. We need not trade liberty for security.
Yet the unilateral assertions of
presidential power have continued throughout this presidency.
They have become the pattern, abetted by a Republican Congress
that more often than not is too timid or too beholden or too
uninterested to exercise its own authority, including its
oversight responsibilities.
The question of Judge Alito’s
confirmation comes to us at a time when we are learning that the
President has been conducting secret and warrantless
eavesdropping on Americans for more than four years. It was
during this backdrop that Judge Alito was vetted by the Bush
Administration, and was ultimately picked. 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, without judicial
review or due process. This is a time in our history when the
protections 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. And once it is taken away or
eroded, liberty is rarely restored.
The Supreme Court is the ultimate
check and balance in our system. The independence of the Court
and its members is crucial to our democracy and way of life.
The Senate should never be allowed to become a rubber stamp, and
neither should the Supreme Court. I asked Judge Alito to
demonstrate his independence from the interests of the
President, and he failed that test.
This
President’s Choice
This nomination is to a lifetime
seat on the nation’s highest court, and to a seat that in our
era has often represented the decisive vote on constitutional
issues. The Senate must carefully consider the suitability of
the nominee to serve as a final arbiter of the meaning of
Constitution and the law. Will he allow the government to
intrude on Americans’ personal privacy and freedoms? In a time
when this Administration seems intent on accumulating unchecked
power, Judge Alito’s views on Executive power are especially
vital and pertinent -- and, as we learned last week, especially
troubling. It appears that he was chosen to serve as a
surrogate for the President when the Supreme Court is called
upon to review this President’s expansive claims of governmental
power to intrude into Americans’ lives. The President wanted a
reliable justice who would uphold the President’s assertions of
power. He thought he had nominated one in his White House
Counsel Harriet Miers. Having been forced by an extreme faction
within his own party to withdraw her nomination, the President
turned swiftly to Judge Alito to serve that function.
Judge Alito’s opening statement at
the hearing skipped over the reasons he was chosen for this
nomination. Most importantly, in his testimony he attempted to
revise and redefine the theory of the “Unitary Executive” to
which he subscribes. It is that troubling theory that this
President and his supporters are using as a legal underpinning
to attempt to justify this President’s assertions of virtually
unlimited power.
No President should be allowed to
pack the courts, and especially the Supreme Court, with nominees
selected to enshrine presidential claims of government power.
Our system was designed to ensure a balance and to protect
against overreaching by any branch. The checks and balances
that should be provided by the courts, Congress and the
Constitution are too important to be sacrificed to such an
agenda. The Senate stood up to President Roosevelt when he
proposed a court-packing scheme. And today, 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. 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.
We know that Samuel Alito thought
that the Constitution and the law justified absolute immunity
for President Nixon’s Attorney General John Mitchell from
lawsuits for having authorized wiretapping of Americans, among
other violations of their privacy. That is immunity even if the
Attorney General acted willfully to violate their rights.
We know that as a judge, Samuel
Alito was willing to go further than even Michael Chertoff, the
former head of the Ashcroft Justice Department’s Criminal
Division, a former U.S. Attorney, and the current Secretary of
the Department of Homeland Security, in excusing government
agents for searches not authorized by judicial warrants. He
showed this kind of extreme deference in his dissents in
Doe v. Groody and
Baker v. Monroe
Township. We know
Judge Alito would have excused the strip search of a
10-year-old girl that was not
expressly authorized by the search warrant.
We know he was part of the effort
within the Meese Justice Department to expand the use of
presidential signing statements to increase the President’s say
regarding what a law passed by Congress means. That is the
practice that the Bush Administration has elevated to an art
form, but a dark art in which the President signs a law, but
then by way of a unilateral statement, declares that he will not
follow it, or will construe it as he chooses. In these signing
statements, the President is reported to have relied upon the
theory of the “Unitary Executive” more than 100 times.
A Stealth
Strategy For A Presidential Power Grab
The most well-known example of
this power grab is this President’s signing statement in
connection with the recent enactment of our declaration against
torture and cruel, inhuman and degrading treatment. Last month,
Congress passed a bill containing a provision against torture
known as the McCain Amendment, which Senator Durbin and I
cosponsored. The McCain Amendment was passed overwhelmingly by
large bipartisan majorities in the Senate and the House after
being stalled by this Administration for months. It
incorporates the language of the Convention Against Torture and
ratified treaties like the Geneva Convention, and it expressly
prohibits cruel, inhuman, and degrading treatment of detainees
by U.S. government personnel. The Bush Administration opposed
this provision. Vice President Cheney lobbied against it. The
Administration tried to create a loophole in the law to get out
of following it. When Congress said no, the President had a
widely publicized meeting with Senator McCain at the White House
to announce that they had worked it out and the President now
agreed to the prohibition against torture.
But the President apparently had
other intentions when he made that deal and signed the bill into
law. On December 30, he released a signing statement
proclaiming that his Administration “shall construe” the law “in
a manner consistent with the constitutional authority of the
President to supervise the unitary Executive branch.” Many of
us, Republicans and Democrats, are concerned that the President
is still trying to have it both ways. He signed the law rather
than vetoing it and seeking changes. Then he proceeded to say
that he can choose to disregard the law, at his discretion,
based on his own self-serving view of his powers.
A
Nominee’s Troubling Record On Expansive Presidential Power
We know that in his
1985 job application Judge Alito wrote that he strongly believed
in “the supremacy” of the elected branches over the judiciary.
At his hearing he told Senator Kennedy that the phrase was
“inapt” and that it was “misleading and inaccurate.” Every high
school student in America knows that we have three separate
co-equal branches and that the judiciary was intended by the
Founders to serve as a check on the elected branches, including
the President. But Judge Alito was far from clear on this
point. Judge Alito testified that he had not changed his mind
on these matters since 1985 but did not clarify further.
Based on his testimony and his record I have no reason to
believe that he will fulfill the proper role of the courts when
the political process is corrupt or breaks down and an elected
branch cannot or will not fix the problem. The Supreme Court
has a longstanding rationale for stepping in where the political
process fails. Judge Alito demonstrated no sense of
faithfulness to that critical role of the courts.
Although Judge Alito
produced material for only 21 of the more than 50 speeches he
has given, we do have the transcript of his November 2000
appearance before the Federalist Society. The Judge took time
from his busy schedule and docket to attend that Federalist
Society convention in Washington just days after the
presidential election in 2000. He discussed his adherence to
the theory of the “Unitary Executive” and criticized the Supreme
Court for upholding the constitutionality of the independent
counsel statute. He went so far as to call the “Unitary
Executive” “gospel” and to say that in his view it “best
captures the meaning of the Constitution’s text and structure.”
And although Judge Alito has sought to distance himself during
the hearings from his membership in the Concerned Alumni of
Princeton, he has not denied his involvement in the Federalist
Society which touts this theory.
That audition before
the Federalist Society appeared to work, reminding those
advising the new President that they had a known quantity in
Samuel Alito. It led to a White House interview in connection
with a possible future Supreme Court vacancy shortly thereafter
in 2001. Judge Alito had other meetings and interviews but the
key one took place in May 2005 with Vice President Cheney,
Scooter Libby, Karl Rove and others at the White House. It was
months before Justice O’Connor made her announcement to retire –
that came in July. But in May, Judge Alito was called to a
meeting with this Administration’s key political strategists.
It was this meeting that I thought of when Judge Alito sat
before the Committee and asked, “How did I get here?”
He must have gotten
this critical nomination because of his 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 will be a reliable vote against challenges to
presidential power.
Responding To
Questions, But Answering Few
In last week’s hearings, Judge
Alito responded to hundreds of questions, but he adequately
answered far too few of them. His answers often amounted to a
scholastic or technical discussion. That may be adequate in a
classroom, but his answers were not sufficient about his own
approach to the law and the Constitution. This was his one
moment of accountability before potentially taking a lifetime
seat on the highest court in the land. There was too little
substance and too little accountability to the American people
and to the Senate.
Judge Alito spent his entire legal
career working for the government. Indeed since he graduated
from law school his sole employer and, in essence, his one
“client” has been the government. He was given political
appointments by President Reagan, the former President Bush and
is now nominated by the current President Bush to the most
important position to which anyone could be named. In an
extraordinary era of governmental intrusions into the lives of
ordinary Americans, when it has been left to the Supreme Court
to restore balance, it is difficult to have any confidence that
this nominee will serve as an effective check on his patron or
on the government which he has spent his entire legal practice
representing.
I voted for President Reagan’s
nomination of Justice 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. I cannot vote for
this nomination.
I want a Supreme Court that acts
in its finest tradition of preventing government intrusion into
the personal privacy and freedoms of all Americans. I want all
Americans to know that the Supreme Court will protect their
rights and will respect the authority of Congress to act in
their interest. The Supreme Court must be an institution where
the Bill of Rights and human dignity are honored.
At a time when the President is
seizing unprecedented power, the Supreme Court needs to act as a
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. In good conscience, based on the record, I
cannot support this nomination.
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