Closing 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
January 31, 2006

Coretta Scott King

On this rainy morning in our Nation’s Capital, as we have learned the sad news of the passing of Coretta Scott King, we are reminded again of the crucial role our courts have played in making real the promises of our national charter, the Constitution.  The nation mourns the loss of another civil rights leader, and is reminded again the vital role our courts play as the place where ordinary Americans can turn for justice, when justice has been denied them.  Coretta Scott King and her late husband, Dr. Martin Luther King Jr., put their lives on the line to help bring those promises to life for untold millions of Americans.  Let us never squander or take for granted all that has been achieved.  Let us keep their dream alive.

A Radical Realignment Of Powers

Since this debate began last Wednesday, I have posed the fundamental question that this nomination raises:  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.   

This nomination, now before us, is an unacceptable threat to 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.  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 crucial nomination, one that can tip the balance on the Supreme Court radically away from constitutional checks and balances and from the protection of Americans’ fundamental rights. 

The vote that the Senate is about to take has real consequences in the lives of the 295 million Americans of today, and of generations to come.  The vote will determine whether Samuel A. Alito, Jr., replaces Justice Sandra Day O’Connor on the Supreme Court of the United States.  A vote for this nomination is a vote against constitutional checks and balances.  A vote for this nomination is a vote against maintaining the fundamental rights and liberties of ordinary Americans.

Republican Senators have pretended that judicial philosophy and personal views do not matter because judges simply apply the rule of law, as if it were some mechanical calculation.  Personal views and judicial philosophy often come into play on close and controversial cases.  We all know this to be true.  Why else did Republican supporters force President Bush to withdraw his previous nominee for this vacancy, Harriet Miers, before she even had a hearing?  It mattered to them when the nominee was Harriet Miers.  And it matters now.  The only difference is that those who hounded Harriet Miers to withdraw are confident that Judge Alito will pass their litmus tests.  Harriet Miers failed their litmus tests because, despite all the backroom whispers and public winks and nods, her conservative opponents were not confident that she would rule the way they wanted.  Those from among the President’s supporters who castigated Ms. Miers wanted certain results.  The President allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote.  As Chairman Specter has said, they ran her out of town on a rail.  Like the more than 60 moderate and qualified judicial nominees of President Clinton on whom Republicans would neither hold hearings or votes, the Miers nomination was killed by Republicans without a vote — by what was in essence a pocket filibuster.  They do not want an independent federal judiciary.  They want certain results.

Dividing Instead Of Uniting The Nation

Instead of uniting the country through his third choice to succeed Justice O’Connor, this President has chosen to reward a faction of his party, at the risk of dividing the country.  Those so critical of his choice of Harriet Miers were the very people who rushed to endorse the nomination of Judge Alito.  Instead of rewarding his most virulent supporters, the President should have rewarded the American people with a unifying choice that would have broad support.  America could have done better through consultation to select one of the many consensus conservative Republican candidates who could have been overwhelmingly approved by the Senate.  Instead, without consultation, the President withdrew the Miers nomination and the next day announced that his third choice to succeed Justice O’Connor was Judge Alito.

The Court As A Check On Expansive Claims Of Additional Powers

At his hearing, Judge Alito began by asking how he got this critical nomination.  I think we understand the real answer to that question.  It has little to do with Judge Alito’s family story and a great deal to do with the pressures that forced the President to withdraw the nomination of Harriet Miers and this President’s efforts to avoid any check on his expansive claims of additional power.

This is a President who has been conducting secret and warrantless eavesdropping on Americans for more than four years.  This President has made the most expansive claims of power since American patriots fought the war of independence to rid themselves of the overbearing power of King George III.  He has done so to justify illegal spying on Americans without the essential check of judicial oversight, to justify actions that violate our values and laws against torture and protecting human rights, and in order 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 checks and balances that have served to constrain abuses of power for more than 200 years. 

It is our duty to ask:  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?

The President wanted a reliable justice who would uphold his assertions of power, his most extreme supporters want someone who will revisit the constitutional protection of privacy rights, and his business supporters wanted someone favorable to powerful special interests.

Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure the most extreme Republican factions while leaving the American people in the dark.  No President should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of Government power.  The checks and balances that should be provided by the courts, Congress and the Constitution are too important to be sacrificed to a narrow, partisan agenda.  The Senate stood up to President Roosevelt when he proposed a court packing scheme and should not be a rubber stamp to this President.  I will not lend my support to an effort by this President to undermine our constitutional checks and balances or to move the Supreme Court and the law radically to the right. 

The Supreme Court belongs to all Americans, not just the person occupying the White House, and not just to a narrow faction of a political party.  This President continues to choose confrontation over consensus and to be a divider rather than being the uniter he promised to be.  Rather than sending us a nominee for all Americans, the President chose a divisive nominee who raises grave concerns about whether he will be a check on presidential power and whether he understands the role of the courts in protecting fundamental rights.

The Supreme Court is the ultimate check and balance in our system.  Independence of the courts 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.     

Justice O’Connor’s Legacy

As the Senate prepares to vote on President Bush’s current nomination of a successor to Justice O’Connor, we should be mindful of her critical role on the Supreme Court.  Her legacy is one of fairness that I want to see preserved.  Justice O’Connor has been a guardian of the protections the Constitution provides the American people.  Of fundamental importance, she has come to provide balance and a check on Government intrusion into our personal privacy and freedoms.  In the Hamdi decision, she rejected the President’s claim that he could indefinitely detain a United States citizen.  She upheld the fundamental principle of judicial review over the exercise of Government power and wrote that even war “is not a blank check for the President when it comes to the rights of the Nation’s citizens.”  She held that even this President is not above the law.

The American people deserve a Supreme Court Justice who inspires confidence that he, or she, will not be beholden to the President but will be immune to pressures from the Government or from partisan interests.  The stakes for the American people could not be higher. The appointment of the next Supreme Court Justice must be made in the people’s interest and in the Nation’s interest, not partisan interest or the President’s interest.  

It is as the elected representatives of the American people, all the people, that we are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee.  The Constitution is their document.  It guarantees their rights from the heavy hand of Government intrusion and their individual liberties to freedom of speech and religion, to equal treatment, to due process and to privacy.   I want all Americans to know that the Supreme Court will protect their rights.  I want a Supreme Court that acts in its finest tradition as a source of justice.  The Supreme Court must be an institution where the Bill or Rights and human dignity are always honored. 

Single Moment Of Accountability

This is an accountability moment for each Senator in the decision we reach on this crucial nomination.  I urge all Senators to consult their consciences and their best judgment before casting their votes on this critically important nomination.  In good conscience, based on the record, I cannot and will not vote for this nomination.

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