Statement
Of Senator Patrick Leahy,
Ranking Member, Committee On The Judiciary,
On The Nomination Of Samuel A. Alito, Jr.,
To Be An Associate Justice Of The Supreme Court Of The United
States
Thursday, January 26, 2006
I began my discussion of Judge
Alito’s nomination for a lifetime appointment to the Nation’s
highest court with the same issue I began my questions to Judge
Alito and, before that, to Chief Justice Roberts: the issue of
checks and balances on government power. We are at a pivotal
point in our Nation’s history, a time of unprecedented
governmental intrusion into the lives of ordinary Americans.
The President has attempted to justify secret, warrantless
wiretapping of Americans, the evasion of legal bans against
torture, and the detention of American citizens with no due
process of law. The Bush Administration is making extraordinary
claims of essentially unlimited power. There are troubling
signs that this nomination is part of that effort by this
President and Vice President to uphold presidential claims to
unchecked power and upset the careful balance of our system of
government as carefully crafted by the Framers in our national
charter, the Constitution. Because I do not believe that he
would serve as an effective check on presidential overreaching,
I cannot support Judge Alito’s nomination.
More broadly, Judge Alito’s record
and his missed opportunities during the hearing to answer
concerns about his record leave me wondering whether he
appreciates the role of the Supreme Court as a protector of
Americans’ fundamental rights and liberties. He has failed the
test. The Supreme Court must be a source of justice. It must
be an institution where the Bill of Rights and human dignity are
honored. It must be an institution dedicated to the mission
embodied in the words etched in Vermont marble
above its entrance: “Equal Justice Under Law.” And it must be
an institution which carries on the spirit that was enshrined in
our Constitution, refined following the Civil War and realized
further with the Court’s landmark decisions such as Brown v.
Board of Education and Baker v. Carr. Judge Alito’s record and
testimony demonstrate that he does not understand the vital role
of the courts in implementing the constitutional guarantees of
equal protection and equal dignity for all Americans.
Court Stripping
A stark example of Judge Alito
failing the test took place during his confirmation hearing when
I asked him a question that Senator Specter had asked
then-Justice Rehnquist during his hearing to become the Chief
Justice. The question was a basic one, whether the Supreme
Court can be stripped of jurisdiction to protect fundamental
constitutional rights. Specifically, I asked Judge Alito
whether the Supreme Court could be stripped of jurisdiction to
hear First Amendment cases involving freedom of speech or
religion or the press. I told him that Senator Specter had
previously insisted on an answer from Justice Rehnquist and that
Justice Rehnquist had answered that it would not be
constitutional to strip the court of its jurisdiction and vital
function to protect fundamental rights. Yet Judge Alito
responded as if it were merely an academic question. He said
that there were scholars on both sides and refused to state his
view. This was a basic and fundamental question for someone
aspiring to be a Supreme Court justice. Justice Rehnquist got
it right. For that matter, Judge Bork got it right. Judge
Alito got it wrong.
When Judge Alito failed to respond
to my question, Senator Specter revisited it but Judge Alito
still failed this straightforward test. I asked this same
question with respect to Fourth Amendment, Fifth Amendment and
Sixth Amendment rights, as well. These constitutional
amendments guarantee our privacy rights, our protection against
unreasonable searches and seizures, our right to due process,
our right against self incrimination, our protection against
government takings, and our right to public trial and to
counsel. These are basic American rights that help to define us
as a free people and to control the intrusiveness of government
power. Judge Alito showed in his answers that he does not
appreciate the constitutional role of the Supreme Court as the
protector of Americans’ fundamental rights. In fact, in our
system of checks and balances, the Supreme Court is the ultimate
defender of Americans’ constitutional rights. Judge Alito’s
refusal to acknowledge that in his answers to these questions is
stunning, and it is deeply troubling.
I even gave Judge Alito a concrete
example. I asked whether in the early 1950’s
Congress could have stripped the courts, including the Supreme
Court, of jurisdiction to hear cases involving racial
segregation in schools. This historical hypothetical raised the
question whether the Supreme Court could have been prevented
from deciding Brown v. Board
of Education, enforcing the Equal Protection Clause
of the Constitution and calling an end to unconstitutional
racial segregation. His answer was no better. He was frankly
stumped.
No Senator who truly cares about
civil rights, equal rights, freedom of religion and speech and
the press can have any confidence that Judge Alito understands
the critical role of the Supreme Court in protecting those
rights.
Reapportionment
Judge Alito missed opportunities
during the hearings on a number of issues. I am left with a
deep and abiding concern about Judge Alito’s understanding of
the role of the courts and their responsibility to protect the
constitutional rights of individuals, especially the less
powerful and especially where the political system has failed to
do so.
Despite Judge Alito’s attempts to
retreat from several of the more outrageous statements in his
1985 job application for a political position in
Edwin Meese’s Justice Department, his testimony at the hearing
has done little to dispel my concerns. The consequences for all
Americans of Judge Alito putting the beliefs he expressed in
that job application into practice on the Supreme Court are too
great.
In his job application, Samuel
Alito wrote, as a 35-year-old, practicing lawyer,
that: “In college, I developed a deep interest in
constitutional law, motivated in large part by disagreement with
Warren Court decisions, particularly in the area[] of . . .
reapportionment.”
This was a startling statement to
make in 1985, just two decades ago. He was 35
years old and had been practicing law for almost a decade when
he wrote that statement about his disagreement with Warren Court
decisions on reapportionment. Even after being asked about this
statement several times at the hearing, Judge Alito failed to
adequately answer why he would seek to highlight a disagreement
with the landmark equal protection cases by which the Supreme
Court made elections fairer for all Americans and established
the principle of “one person, one vote.”
The Warren Court’s
reapportionment decisions were among the central achievements of
the civil rights era. They ensured that voting districts which
had been grossly mal-apportioned, often to the detriment of
minority voters, would be fairly revised so that everyone’s vote
was weighed equally. It is clear from looking at the
Republicans’ partisan redistricting in Texas that these cases
did not solve all the problems. However, reapportionment cases
like Baker v. Carr
(1962) and Reynolds v. Sims
(1964) are landmarks because they established that courts have a
responsibility to make certain that voting districts meet
constitutional standards.
It was Justice William Brennan of
New Jersey who wrote the Court’s opinion in
Baker. Two years
later, in Reynolds,
the Court established the “one person, one vote” standard
because, as stated by Chief Justice Warren in his opinion in
that case: “As long as ours is a representative form of
government, and our legislatures are those instruments of
government elected directly by and directly representative of
the people, the right to elect legislators in a free and
unimpaired fashion is a bedrock of our political system.”
At his hearing, Judge Alito was in
retreat and had to concede that the concept of one person, one
vote is well-settled and should not be re-examined. It was
equally well-settled in 1985 when he made the
statement in his job application. More importantly, Judge
Alito’s testimony calls into question whether he truly
understands that the courts have a responsibility in our
constitutional system to intervene to ensure that constitutional
guarantees of equal access to the political system are met.
This is important in situations where the political system is
corrupt or where the political branches lack the will to fight
against entrenched power or to reform themselves.
In response to a question from
Senator Kohl, Judge Alito sought to retreat from the unqualified
disagreement with the reapportionment cases expressed in his 1985
application. He told the Committee that his disagreement was
based only on certain details of later Warren Court decisions
like the 1969 case,
Kirkpatrick v. Preisler. Not only is this narrow
objection to certain Warren Court decisions not a credible
explanation for why he made his sweeping assertions of
disagreement in 1985, but Judge Alito also contradicted it
later in his testimony when he suggested that his disagreement
with the Warren Court’s reapportionment decisions was based on
Alexander Bickel’s ideas about judicial self-restraint.
Professor Bickel was not concerned merely with later
applications of one person, one vote. Rather, his theory was
critical of the courts having any role at all in helping
to guarantee that access to the political system is fair and
equal.
In fact, one of the justices whom
Judge Alito described as among his favorites, Justice Harlan,
applied Bickel’s theories in dissenting from every landmark
Warren Court reapportionment case establishing one
person, one vote, starting with
Baker v. Carr. In
Justice Harlan’s dissenting opinion in
Reynolds v. Sims, as
in all of Justice Harlan’s reapportionment dissents, he argued
that there is no constitutional basis for one person, one vote
and that courts should restrain themselves from “usurping” the
state legislatures’ self-serving apportionment decisions. In
his dissent in Reynolds,
Justice Harlan wrote: “It is difficult to imagine a more
intolerable and inappropriate interference by the judiciary with
the independent legislatures of the States,” and “[w]hat is
done today deepens my conviction that judicial entry into this
realm is profoundly ill-advised and constitutionally
impermissible.” This dissent, described as one of Judge Alito’s
favorites, hardly sounds like a disagreement only with certain
aspects of later reapportionment decisions.
The effects of the Court’s
decisions to intervene were dramatic. Were the Supreme Court to
have followed the dissents of Justice Harlan or the theories of
Alexander Bickel that Judge Alito embraced in 1985,
the massive disparities in the size of voting districts would
not have been corrected in the 1960s. Nor would the
under-representation of voters from urban areas, minority
voters, have been corrected. Had the Court not acted we might
still have poll taxes and other barriers to the ability of
minorities to vote.
At the hearing we heard testimony
from pioneering civil rights attorney Fred Gray, who spent a
lifetime fighting for those who were denied the rights to equal
protection and equal dignity under the law guaranteed by our
Constitution. After he graduated from law school, Mr. Gray
immediately went to work defending Rosa Parks and Dr. Martin
Luther King, Jr., in the Montgomery bus boycott.
He has a real-life appreciation for the role of courts as
providing a check to protect individual rights and liberties.
In the late 1950s, after the Alabama legislature changed the
city limits of Tuskegee, excluding all but three or four African
Americans who were registered to vote in the city, Mr. Gray
brought before the Supreme Court the case of
Gomillion v. Lightfoot.
This unanimous decision securing the right to vote for
African Americans laid the foundation for
Baker v. Carr and
the cases establishing one person, one vote.
I asked Mr. Gray what the
consequences would have been had the courts followed the lead of
Justice Harlan and Alexander Bickel, views with which Samuel
Alito apparently agreed, and not involved itself in
reapportionment. He testified:
“The difference is then, prior to
these decisions, and even prior to
Brown v. Board of Education,
and prior to Gomillion v.
Lightfoot and
Browder v. Gayle, the case that desegregated the
buses, we had very few African Americans and other minorities
registered. We had little or no African Americans in public
office. For example, in my state, in 1957 we had
none. Now my State has approximately the same number of persons
in our State legislature. It mirrors the population. We now
have thousands of African Americans and other minorities who are
holding public office, and an additional thousand that those
public office holders have appointed to elected office.”
Judge Alito did not adequately
explain his disagreement with the Warren Court
reapportionment decisions. He refused to say that he changed
his views. He did not repeat what he had suggested in some
private meetings -- that he was merely saying what he thought
people in the Reagan White House wanted to hear and that it was
just a job application. Candidly, his testimony on this
critical point makes no sense. This is too fundamental a matter
to be left without a solid, credible explanation. The equal
protection rights and voting rights of all Americans are the
fulcrum for realizing the promises of our democratic republic.
“Supremacy” Of
Elected Branches
Judge Alito’s sweeping
disagreement with the Warren Court’s
reapportionment decisions is not the only part of his 1985 job
application which has caused me to doubt his understanding of
the responsibility for the courts to intervene where the
political process is broken down, corrupt or entrenched. Judge
Alito also stated in that application that he believes in “the
supremacy of the elected branches of government.” In the
hearing, Judge Alito tried to retreat from this statement,
describing it as “inapt” and “very misleading and incorrect.”
However, he refused to disavow it, telling Senator Kennedy: “I
haven't changed my mind.”
The Supreme Court’s decisions to
intervene in the reapportionment cases in the 1960s had a
tremendous effect on the ability of millions of Americans to
participate in the political process. Yet I am concerned that
his 1985 written statement reveals that he will be
too deferential to the President as “supreme” even when needed
to be a check on the Government.
The elected branches have no claim
to being legitimate, let alone “supreme,” if they are controlled
by entrenched political corruption. After listening to several
days of his testimony, I am left with serious questions and
concerns about Judge Alito’s appreciation for this critical role
of the courts. These concerns are heightened by his apparent
adherence to the so-called doctrine of the “Unitary Executive.”
Discrimination
Cases
Judge Alito has failed to grasp
the importance of the courts in providing a venue for all
Americans to assert their rights. One of the clearest examples
of this is Judge Alito’s distressing record in cases in which
individuals allege discrimination based on race, gender, or
disability. Judge Alito has consistently found ways to keep the
“little guy” from having a day in court. For example, he has
held individuals trying to prove discrimination to an
excessively high standard of proof, rendering their cases almost
un-winnable. From the bench, he has favored the government and
big companies accused of discrimination. He seems to view these
cases not as examples of regular Americans struggling for equal
treatment but, instead, as technical legal exercises.
Judge Alito’s supporters – and
many on the other side of the aisle were lined up to support him
well before the hearings – have cherry picked individual cases
to try to show that Judge Alito was fair to average Americans.
Judge Alito told us to look at his whole record and we did. In
fact, a study of Judge Alito’s decisions by Knight Ridder
newspapers found that Judge Alito was consistently skeptical of
discrimination plaintiffs, generally setting high standards of
proof and finding that the plaintiffs before him did not meet
those standards. The study found that he was similarly
dismissive of criminal defendants alleging discrimination by the
government and of immigrants fighting deportation. Noted law
professors Cass Sunstein and Goodwin Liu studied the cases where
Judge Alito dissented from his colleagues and reached the same
conclusion.
In several cases, the Third
Circuit criticized Judge Alito for taking positions which would
make it almost impossible for people to prove discrimination.
In Bray v. Marriott Hotels,
Judge Alito would have denied an African-American worker the
chance to show that her employers denied her a promotion based
on race. The majority criticized Judge Alito’s dissent saying
that a key discrimination statute “would be eviscerated if our
analysis were to halt where the dissent suggests.”
The case of
Pirolli v World Flavors, Inc.,
is a particularly poignant example of the kind of case that
gives me great concern about whether Judge Alito would uphold
the rights of ordinary Americans seeking equal treatment. In
that case, Kenneth Pirolli, a mentally retarded employee,
brought a claim for hostile work environment based on sex and
disability, alleging a pattern of sexual abuse and harassment
that can only be described as disgusting. Judge Alito dissented
from the Third Circuit’s decision that Mr. Pirolli’s case should
go to a jury, not based on the merits of the claim, but
essentially because he thought Mr. Pirolli’s lawyer’s legal
brief was poorly drafted. Senator Durbin asked Judge Alito
about this matter and gave him every opportunity to explain. It
remains another example of Judge Alito focusing on technical
details rather than on the rights of real people.
As a former prosecutor, I am
sensitive to the need for a fair process and a fair jury in all
criminal cases, particularly the most serious ones. I am
troubled that in Riley v.
Taylor, Judge Alito dissented from an
en banc decision in
a capital case in which the Third Circuit granted a new trial
because the prosecutor had improperly dismissed black jurors.
Judge Alito denigrated the defendant’s use of statistical
evidence to show improper exclusion of black jurors, comparing
it to a statistical analysis of the disproportionate number of
recent left-handed U.S. Presidents. The majority
criticized Judge Alito’s inappropriate analogy, writing, “To
suggest any comparability to the striking of jurors based on
their race is to minimize the history of discrimination against
prospective black jurors and black defendants…”.
The “Little
Guy”
In response to the many cases in
Judge Alito’s record in which he has ruled against victims of
discrimination, victims of government intrusion, and immigrants,
Judge Alito’s Republican supporters searched hard to find a
small set of cases to show Judge Alito has not always ruled
against the “little guy.” What is notable about these efforts
is that even in the cases they have trumpeted, Judge Alito often
denied any meaningful relief to the average American.
Several Republicans have raised
the case of United States v.
Kithcart. They incorrectly suggest that in
Kithcart, Judge
Alito ruled in favor of an African American in a racial
profiling case. Mr. Kithcart was pulled over by the police
because he was African American and searched and arrested. When
the case came before Judge Alito, he sent it back to the trial
court to give the government a second chance to prove that the
stop and search of an African American were constitutional and
were not motivated by race. Judge McKee dissented from the
remand saying, “just as this record fails to establish that
Officer Nelson had probable cause to arrest any Black male who
happened to drive by in a black sports car, it fails to
establish reasonable suspicion to justify stopping any and all
such cars that happened to contain a Black male.” When the
case came back to Judge Alito on appeal, Judge Alito upheld the
search and affirmed the conviction. So while he remanded the
case back to the trial court, he then upheld the search and
conviction in his final decision and afforded Mr. Kithcart no
relief.
Judge Alito’s supporters have
pointed to Fatin v. INS
as an example of a case in which Judge Alito sided with
powerless immigrants and did not defer to the Government. This
is another bad example because he ultimately ruled against the
immigrant, Parastoo Fatin, and she was deported.
Ms. Fatin was an Iranian woman
whose family had opposed the Ayatollah Khomeini and who had come
to the United States as a student. She was
fighting deportation and requested asylum, arguing that she
would be subjected to harsh treatment as a former opponent of
Iranian regime, as someone who did not practice a strict form of
Islam, and as a woman – who would have to wear a veil and live
under great restrictions in Iran. As his supporters have noted,
Judge Alito ruled in the case that gender-based persecution
could be a basis for asylum. But Judge Alito went on to rule
against Ms. Fatin anyway. So he denied her petition for review
and sent her on to be deported.
Judge Alito and Republican
Senators seeking to bolster Judge Alito’s record cited
Leveto v. Lapina as
an example of a case in which he protected the rights of
individuals against government intrusion. It is telling about
Judge Alito’s record in the area of individual rights protection
that in a case he trumpeted for his protection of the rights of
individuals, he threw the Levetos out of court and denied them
any remedy.
The facts of this case are
egregious. In the course of an IRS tax fraud investigation of
the Levetos, armed agents “rushed” Dr. Leveto at the veterinary
hospital where he worked when he arrived at 6:30 a.m., patted
him down, and then held him in a small room for over an hour,
not allowing him to speak to anyone or make any calls. They
then accompanied Dr. Leveto to his home where they patted down
Mrs. Leveto, who was still in her nightgown, and then detained
and interrogated her for six hours.
Meanwhile, other agents took Dr.
Leveto back to the hospital where they held him in a closed room
for six more hours. During this six hours, he was not permitted
external communications, was accompanied on bathroom breaks, and
was interrogated without
Miranda warnings, while other agents searched the
hospital. During the course of the search IRS agents sent
hospital employees home and turned away clients in the parking
lot, informing them that the hospital was closed until further
notice.
Despite acknowledging numerous
violations, Judge Alito dismissed the Levetos’ appeal and their
case based on “uncertainty” in the case law, and threw them out
of court.
Supporters of Judge Alito have
cited the case of Brinson v.
Vaughn as an example of a case in which Judge Alito
sided with a victim of discrimination, reversing a conviction
because black jurors had been improperly excluded from the jury
pool. This was an easy case given the extraordinary facts
involved. In Brinson,
the prosecutor dismissed 13 of 14 prospective black jurors and
had previously made a training video in which he urged
prosecutors to dismiss black prospective jurors from the jury
pool. This does not reassure me about my concern that Judge
Alito will only give credence to claims of discrimination in
extreme cases. Indeed, in
Riley v. Taylor, when an
en banc majority of
the Third Circuit found that black jurors had been improperly
dismissed from the jury pool, Judge Alito disagreed and
denigrated the defendant’s use of statistical evidence to show
improper exclusion of black jurors, comparing it, as has been
previously noted, to a statistical analysis of the
disproportionate number of recent left-handed U.S. Presidents.
The role of courts should be to
protect make sure there is a fair forum for the powerless and
even the unpopular. This is the reason the courts are the one
undemocratic branch. I am concerned that rather than
demonstrating an understanding of the effect of the law on the
lives of real Americans as Justice O’Connor has shown, Judge
Alito would close the courthouse doors to those Americans most
in need of the courts to protect their rights.
Conclusion
In the next few years, the Supreme
Court will hear many challenges to political entrenchment.
Critical provisions of the Voting Rights Act (VRA), Congress’
part in guaranteeing equal access to voting, the fundamental
machinery of democracy, were upheld by the Warren
Court in South Carolina v.
Katzenbach (1966) by an 8-1 vote. The VRA will need
to be reauthorized before it expires in 2007. Subsequent court
challenges will be critical to fairness to minority voters.
The Supreme Court will soon hear a
challenge to Texas Republicans’ partisan mid-Census redrawing of
congressional districts. There are questions before the Supreme
Court this term about campaign finance laws. We are seeing
exposed in the news every day a culture of corruption through
money and access that has taken root in
Washington, by which one political party has sought to entrench
itself as a permanent majority.
The cost to Americans is high if
we in the Senate get it wrong. I go back to the central
question I asked at the outset of Judge Alito’s hearing: Will
this nominee serve to protect the fundamental rights and
liberties of all Americans? Based on Judge Alito’s record, I
have no confidence that he will provide a check against either
an overreaching President or entrenched political power, nor
that he will serve to protect Americans’ fundamental rights and
liberties.
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