Nomination of Judge Samuel Alito to the U. S. Supreme Court

NOMINATION OF JUDGE SAMUEL ALITO TO THE U.S. SUPREME COURT

BREAK IN TRANSCRIPT

Ms. CANTWELL. Mr. President I rise to discuss the nomination of Judge Samuel A. Alito, Jr., to the Supreme Court to the United States.

After closely and carefully studying his record and recent testimony before the Judiciary Committee, I have decided to vote against Judge Alito's confirmation to the Supreme Court of United States.

Of course, it is vital that any lifetime appointee to the highest court in the Nation possess the breadth of experience and character necessary to review the most significant, complex, and far-reaching legal questions of our time.

But that is not enough. I see disappointing and clear evidence in Judge Alito's long record, rulings, and statements of dangerously skewing the balance and relationship between our branches of Government. I do not expect any nominee to the Supreme Court to predict and promise with certainty how he or she will rule in any and all future cases.

But I do expect nominees to make clear that they would protect the most basic rights of individuals and the fundamental structure and foundations of our democracy. Yet I cannot be sure that Judge Alito would do either. Indeed, I question whether he would show due respect for the authority of Congress or apply a necessary check to the reach of the executive.

Serving as that check has long been one of the Court's most solemn obligations. Today, that role is more important than ever. We have seen evidence of a National Security Agency's eavesdropping program operating in question of a legal framework and without due oversight. We are seeing literally, in wartime, a President reach without probable cause or warrant at the expense of individual rights and the most basic protections of the Constitution. Yet it is a question whether Judge Alito would adequately control that reach.

Judge Alito has a record of concern when it comes to placing and consolidating the rights of the government over the rights of the individual. Consider, for example, how Judge Alito would give virtually unfettered authority to the police to trample on the clear privacy protections given to every American as demonstrated in his 2004 dissent in Doe v. Groody. In this case he would have upheld the strip search of a 10-year-old girl and her mother, despite the fact that they were not suspected of any crime nor named in any search warrant.

When asked at his hearing about this case, and his minority opinion, Judge Alito repeatedly sought to portray it as ``a rather technical issue,'' a question of whether the police affidavit should be incorporated into the warrant itself, and suggested that the police were operating under time pressure.

These claims are inconsistent with the facts, as made clear by Judge Alito's colleague, then-Judge Michael Chertoff, now Secretary of Homeland Security. According to Judge Chertoff, the approach advocated by Alito in Groody ``might indeed transform the judicial officer into little more than the cliche `rubber stamp.''' The American people deserve a Supreme Court Justice who understands how important privacy rights are to all Americans, even the most vulnerable. They deserve more than just a rubber stamp.

History shows that our courts have often stood up to Presidential overreaching during wartime: protecting the right of habeas corpus during the Civil War; forbidding the president from authorizing domestic warrantless wiretaps during the Cold War; and in the War on Terror by an 8-to-1 margin, the Supreme Court held that the President cannot indefinitely detain American citizens without allowing them to challenge their detentions before a neutral decisionmaker, another power this administration had claimed.

Worse still, in areas where precedent is sparse or dated--such as the war on terror and the executive's power to carry it out--Judge Alito's record and testimony suggests that he is far more likely to defer to the ideological ambitions of our President than the protection and rights of our citizens.

To be sure, there is nothing wrong with an aggressive executive, especially at times of great peril. An aggressive executive, however, also requires a strong and functional Congress, the responsive voice of the people. I have questions, however, if Judge Alito's rulings will narrowly define the law and therefore threaten the authority and ability of Congress to govern effectively and affirmatively.

Writing in Chittister v. Department of Community & Economic Development, Judge Alito wrote that parts of the Family and Medical Leave Act, FMLA, which allow employees to leave when they or family members are seriously ill, were not applicable against the States. When passing the legislation Congress had identified the importance of both men and women in caring for young children and family members with serious health conditions.

Congress also pointed to the burden that family caretaking imposes on women. But Judge Alito denied those findings. He saw no ``existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.''

This view essentially deflated Congress's ability to defend civil rights. He wrote: ``Even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional. Unlike the Equal Protection Clause, which the FMLA is said to enforce, the FMLA does much more than require nondiscriminatory sick leave practices; it creates a substantive entitlement to leave. This is `disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act.'''

The Supreme Court later rejected Alito's position on the FMLA.

Ultimately, the Commerce clause is about understanding Congress's power to protect our families and its ability to respond to threats that immediately affect those families. In February, for example, the Court is scheduled to hear arguments on the scope of the commerce clause in two critical cases that could restrict the geographic jurisdiction of the Clean Water Act to one percent of its current coverage.

In my State, we know how fragile our precious natural resources can be. The Pacific Northwest is blessed with incredible beauty. But habitat loss and other pressures threaten some of my State's most iconic species, salmon that spawn our great rivers and birds that depend on old growth forests.

We also know that how we treat those resources and that wildlife speaks to our priorities as a people and a nation. How do we value our communities and ensure their safety? How do we honor an individual's freedom and his or her rights?

While I do not expect any judicial nominee to prejudge future cases, I do expect all nominees to make their positions clear on protecting the most basic rights of individuals and the fundamental structure and foundations of our democracy. In the end, I cannot be sure that Judge Alito would do either.

As I mentioned earlier, I believe that Judge Alito has a record of concern when it comes to placing and consolidating the rights of the government over the rights of the individual, and he has not provided the answers to adequately reassure the people of our Nation. I must conclude that he would neither show due respect for the authority of Congress nor apply a necessary check to the reach of the executive. With great respect for the institution, I cannot vote to confirm Judge Alito to the Supreme Court of the United States.

http://thomas.loc.gov/