This nomination raises the fundamental question whether the Senate will serve its constitutional role as a check on the President by preserving the Supreme Court as a constitutional check on the expansion of presidential power.  Today I urge Senators and, in particular, Republican Senators, to approach this discussion with open ears and open minds. 

This is a nomination that I fear threatens the fundamental rights and liberties of all Americans now and for generations to come.  This President is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans.  This nomination is part of that plan.  I am concerned that if confirmed this nominee will further erode the checks and balances that have protected our constitutional rights for more than 200 years.  This is a critical nomination, one that can tip the balance on the Supreme Court radically away from constitutional checks and balances and the protection of Americans’ fundamental rights. 

This past week I introduced a resolution to clarify what we all know, that congressional authorization for the use of military force against Osama bin Laden did not authorize warrantless spying on Americans as the Bush Administration is now claiming.  I thought, we all thought, that when we joined in the bipartisan authorization of military action against Osama bin Laden more than four years ago, that action would have been more effective and have succeeded by now in ridding the world of that terrorist leader.  I still hope that the clarifying resolution I introduced last week will become a bipartisan statement upholding the rights of all Americans.  

As Justice O’Connor underscored recently, even war “is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  Now that the illegal spying of Americans has become public and the President has acknowledged the four-year-old program, the Bush Administration’s lawyers are contending that Congress authorized it.  The September 2001 Authorization to Use Military Force did no such thing.  Republican Senators know it, and a few have said so publicly.  We all know it.  The liberties and rights that define us as Americans and the system of checks and balances that serve to preserve them should not be sacrificed to threats of terrorism or to the expanding power of the Government. 

In the days immediately following those attacks, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.

I joined with others, Republican and Democrats, and we engaged in round-the-clock efforts over the next months in connection with what came to be the USA PATRIOT Act. During those days the Bush Administration never asked us to amend the Foreign Intelligence Surveillance Act to accommodate the spying on Americans they were already undertaking contrary to law.  That law does contain an express reservation for the 15 days following a declaration of war by the Congress.  But neither when Attorney General Ashcroft demanded that we pass his so-called Anti-Terrorism Act proposal that he presented us on September 19 or at any time in September 2001 or thereafter has the Bush Administration sought congressional authorization for the NSA spying program that affects Americans.  Indeed, Attorney General Gonzales admitted at a recent press conference that the Bush Administration did not seek the legal authorization of the NSA spying program on Americans because “it was not something we could likely get.”  Consider that damning admission.  It is utterly inconsistent with the Bush Administration’s current argument that Congress authorized warrantless spying on Americans.

The Bush Administration’s after-the-fact claims about the breadth of the Authorization to Use Military Force are the latest in a long line of manipulations and another affront to the rule of law, American values and traditions.  We have also seen this type of overreaching in that same Justice Department office’s twisted interpretation of the torture statute; with the detention of suspects without charges and denial of access to counsel; and with the misapplication of the material witness statute as a sort of general preventive detention law.  Such abuses serve to harm our national security as well as our civil liberties.  By way of illustration, sources at the FBI reportedly say that much of what was forwarded to them to investigate from the NSA spying program was worthless and led to dead ends.  That is a dangerous diversion of our investigative resources away from those who pose real threats, while precious time and effort is devoted to looking into the lives of law-abiding Americans.

Throughout the Alito hearing, from my opening statement on Monday afternoon, to my first questions on Tuesday morning, to my last written question, which received a response last Friday, I asked Judge Alito about these matters.  I am not reassured.

The Need for an Effective Check on Unfettered Presidential Power

A central question during the hearings on this nomination was whether Judge Alito would serve as an effective constitutional check on the presidency.  We have a President prone to unilateralism and assertions of Executive power that extend all the way to illegal spying on Americans. 

Preventing government intrusion into the personal privacy and freedoms of Americans is one of the hallmarks of the Supreme Court.  There is no assurance that Judge Alito will serve as an effective check and balance on government intrusion into the lives of Americans.  Indeed, his record suggests otherwise.

We know that Samuel Alito sought to justify absolute immunity for President Nixon’s Attorney General John Mitchell from lawsuits for wiretapping 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.  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 role in construing what a law passed by Congress means.  That is the practice that the Bush Administration has taken to new heights.  This President does not veto laws with which he disagrees as contemplated by the Constitution.  Instead, he signs them and then picks and chooses what he will faithfully enforce.  Often the Bush Administration makes a unilateral statement declaring what it will not follow or how it will choose to construe the measure.  In these signing statements, the President is reported to have relied upon the theory of the “Unitary Executive” more than 100 times.

This is not just theory, it has practical effects on Americans’ lives and liberties.  We saw it recently in the President’s signing statement on Congress’s declaration against torture and cruel, inhuman and degrading treatment of detainees.  After months of obstruction and delay by the Bush Administration, Congress passed a bill last month 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 for months by this Administration.  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 that President Bush now agreed to the prohibition against torture.

Shortly after that meeting with Senator McCain, after Congress had enacted the measure and the President had signed it into law, the President released a signing statement proclaiming that his Administration would 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 is apparently signally that he thinks that he can choose to disregard the law, at his discretion, based on his own self-serving view of his powers.  

A Deferential Nominee At a Pivotal Point in History

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 sacrifice our liberties and our way of life.  If we do, the terrorists win.  Benjamin Franklin warned against such a choice when he observed: “Those who would give up an essential liberty for temporary security, deserve neither liberty or security.” With enough effort and foresight, we can and we should demand 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. 

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. 

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.

A President’s Choice

We know Judge Alito took time from his busy schedule and docket to attend a Federalist Society convention in Washington just days after the presidential election in 2000 to discuss 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.”

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. 

I suspect that the answer to the question Judge Alito posed at the hearing regarding how he got the nomination can be answered in large measure with regard to his demonstrated 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.

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 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.

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.  

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.  I will vote against granting the Senate its consent to this nomination by this President.

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