Opening Remarks 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
Senate Floor
January 25, 2006

We open debate today the nomination of Judge Samuel A. Alito Jr. faced, foremost, at a pivotal constitutional moment in our history, with a single, fundamental question:  Will the Senate serve its constitutional role and preserve the Supreme Court as a constitutional check on the expansion of presidential power?   

A nominee’s views on Executive power and the checks and balances built by the Founders into our constitutional framework should always weigh heavily in hearings for those nominated to the Supreme Court.  Executive power issues were the first issues I raised with Chief Justice Roberts at his confirmation hearing, and they were the first issues I raised with Judge Alito. 

The reason presidential power issues have come to dominate this confirmation process is that we have clearly arrived now at a crucial juncture in our Nation, and on our highest court, over the question of whether a President of the United States is above the law.  The Framers knew that unchecked power leads to abuses and corruption, and the Supreme Court is the ultimate check and balance in our system.  Vibrant checks and balances are instruments in protecting both the security and the liberty of the American people.

This is a nomination that I fear threatens the fundamental rights and liberties of all Americans, now and for generations to come.  One need only look to the White House to see the practical effects of such an erosion of those rights and liberties. This President is prone to unilateralism and assertions of Executive power that extend all the way to illegal spying on Americans. 

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, and 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.  It is not overstating the case to say 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.  That is not the case.  Instead, the Administration is using this resolution as legal justification for a covert spying program on Americans that recently came to light. 

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 on Americans has become public, 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. 

Security and liberty are not mutually exclusive values in America.  We should have both, and we can have both, with adequate checks and balances and with the extra effort that it takes to chart the right course.  The terrorists win if they frighten us into sacrificing the freedom and the principles that define us as Americans.  I said this in the days following the 9/11 attacks, and I believe it just as strongly today.

Just after 9/11, I joined with Republicans and Democrats in round-the-clock efforts to update and adapt our law enforcement powers.  These negotiations resulted in the law that 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 that 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 Attorney General Ashcroft nor anyone else in the Bush Administration at the time, or thereafter, sought congressional authorization for the NSA spying program. 

Indeed, Attorney General Gonzales admitted at a recent press conference that the Bush Administration did not seek legal authorization for the program of NSA spying 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.  They can’t have it both ways.   

The Bush Administration’s after-the-fact claims about the breadth of that 2001 resolution 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 such overreaching in the Justice Department office’s twisted interpretation of the torture statute; in the detention of suspects without charges and denial of access to counsel; and in 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 hearings, I asked 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.   

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 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 is 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 cherry-picks 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 one hundred 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.  The Administration tried to create a loophole in the law to get out of following it.  When Congress said no, President Bush had a widely publicized meeting with Senator McCain at the White House to announce that they had worked it out and that the President 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 signaling that he thinks that he can choose to disregard the law, at his discretion, based on his own self-serving view of his powers. 

Judge Alito’s Record

We know that as a judge, Samuel Alito was willing to go further than even then-fellow Third Circuit Judge 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.

Judge Alito’s troubling record on the bench of allowing invasive searches with little or no concern for the crucial role of the magistrate in authorizing warrants deepens my concern that he will not be an effective check on government intrusion into the personal privacy and freedoms of Americans.  Judge Alito has written a variety of highly disturbing opinions.  

In both Doe v. Groody and Baker v. Monroe Township, Judge Alito dissented and would have allowed invasive searches beyond the scope of warrants issued by a magistrate, including the strip search of a 10-year-old girl and her mother.  In answering questions about these cases, not only did Judge Alito insist that the cases involved only “technical” issues.  He showed little appreciation or concern for the Government intrusions into personal privacy.  His analysis in Doe, the strip search case, showed such deference to the Government agents that he would have given them a pass for undertaking searches they did not even ask for in seeking the warrant. 

As a former prosecutor, I am keenly aware of the difficulties faced by police officers in the course of their duties.  I support vigorous law enforcement tools.  But I am also mindful of the careful balance that must be struck in order to preserve our individual liberties.  One of the most important Fourth Amendment protections we have for our privacy is the requirement that a judicial officer ensure that the Government’s intrusion on citizens’ privacy is based on probable cause and that it is reasonable.  It is the judge who determines whether to authorize the search and the extent of the search to be permitted.  The officer’s affidavit and the warrant are not mirror images of each other.   The magistrate is not a rubber stamp.  The role of the magistrate in issuing warrants, a role Judge Alito has too easily cast aside on the bench, is a crucial check in maintaining the right balance so that all Americans can have both security and liberty.

It is worth taking a few moments to recount the facts of these cases, because I am concerned that Judge Alito has too little regard for the consequences arising from allowing these kinds of invasive searches beyond those authorized by warrants. 

In the Doe case, the 10-year-old girl and her mother were subjected to what the Third Circuit termed an “intrusive” strip search, even though they were not suspected of nor charged with any wrongdoing.  The warrant that the Government agents had obtained from a judicial officer authorized a search for a man living at a certain address.  Yet when they arrived at the address they encountered only the 10-year-old and her mother and proceeded to strip search them.  There was no contention that they posed a risk to the agents.  

Similarly, in Baker v. Monroe Township, a mother and her three teen-aged children were detained and searched as they arrived at the home of the mother’s adult son.  The woman and her teenaged children did not live at the house, were not suspected of any wrongdoing, were not named in the warrant, and were not even inside the premises when the officers arrived on the scene.  They were nevertheless all ordered at gunpoint to lie on the ground.  They were subsequently handcuffed, taken into the house, further detained, and their property and persons were searched.

In both cases, the Third Circuit held that the Government agents had acted inappropriately and had violated the Fourth Amendment when they conducted these invasive searches of innocent persons who were not named in the search warrants. When I asked him why he, in contrast, looked beyond the “four corners” of the warrant that was actually signed by the magistrate in Doe, Judge Alito replied that the issue was a “technical” one.  Repeatedly when pressed about this case, Judge Alito insisted that the issue was merely “technical.” 

The illegal strip search was not “technical” for the 10-year-old girl.  Then-Judge Chertoff understood that this issue is far from technical, but, rather, embedded in the core protections of our individual privacy and dignity from governmental intrusion.  In the court’s opinion, rejecting the rationale of Judge Alito’s dissent, Judge Chertoff wrote: “This is not an arcane or legalistic distinction, but a difference that goes to the heart of the constitutional requirement that judges, and not police, authorize warrants.” 

Judge Alito tried to find “technical” ways to excuse the illegality.  Judge Alito’s dissent relied on the affidavit accompanying the warrant.  To the extent the affidavit had requested a search of “all occupants” of the home, it did so based on a concern about concealment of drugs by “frequent visitors that purchase [drugs]” or by “persons who do not actually reside or own/rent the premises” – not by a 10-year-old girl living in the home.  Judge Alito ignored this language in the affidavit, in order to misconstrue the affidavit more broadly and to then substitute it for the magistrate’s warrant.  

Judge Alito’s rationale was that because the officers’ initial request was broad, it could be assumed that the magistrate intended to grant broader search authority than that set forth in the warrant.  The Supreme Court had specifically rejected this type of reasoning in the case of Ramirez v. Groh, which was decided a month before Judge Alito dissented in Doe.   In Groh, the Supreme Court held a search warrant invalid, citing the sharp distinction the law draws between what is authorized in a warrant, and what was requested.  Judge Alito went to great lengths in a futile and hyper-technical attempt to distinguish the Supreme Court’s decision in Groh.

Similarly, in Baker v. Monroe Township, Judge Alito saw the facts in the light most favorable to the Government, rather than to the mother and her children.  That is directly contrary to the standard that should be used when reviewing an order granting summary judgment against a party.   In his dissent, Judge Alito found that although the warrant in question did not describe any persons to be searched, it nevertheless was appropriate for officers to search and handcuff a mother and her three teen-aged children as they approached a relative’s home.  Judge Alito stated in his dissent that even though the mother and her three children were not named in the warrant and there was no reason to suspect them of any wrongdoing, “to [his] mind” the warrant had been intended to authorize a search of “any persons found on the premises.”  Judge Alito went so far as to excuse the officers’ failure to request or obtain a warrant permitting the search of persons on the premises as sloppiness. 

The Third Circuit disagreed with Judge Alito, holding that because the search warrant did not authorize the search, it was unlawful and in violation of the Fourth Amendment.  The other judges hearing the case found fault with Judge Alito’s willingness to look beyond the warrant to excuse the unauthorized and unlawful searches.  In Baker, Judge Alito inserted himself into the case in an active attempt to excuse misconduct when the warrant did not authorize the Government intrusion.

Unfortunately, Doe and Baker are not outliers in Judge Alito’s record.  As troubling as his dissents are in those two cases, they are only part of a broader pattern of deference to the Government that shows far too little concern for individual liberties and rights, which find their ultimate protection in the Supreme Court. 

Judge Alito’s record on the use of excessive force is also troubling.  It goes back at least as far as his time in the Meese Justice Department.  I find particularly troubling a 1984 memorandum he wrote to the Solicitor General regarding a case called Tennessee & Memphis Police Department v. Garner.  In a long memo in which he repeatedly wrote in the first person proclaiming his own beliefs, Samuel Alito argued that there were no constitutional problems with a police officer shooting and killing an unarmed teenager who was fleeing after apparently stealing $10 from a home.   A year later, the Supreme Court ruled 6-3 against Judge Alito's position in that case and reiterated the law against use of "deadly force" if a suspect presents no danger.   In contrast to Justice O’Connor’s dissent on federalism grounds, Samuel Alito’s memo makes no mention of the human tragedy of the events nor did he think the Constitution even applied since he argued that the unjustified shooting was not technically a “seizure.”  Most troubling is Judge Alito’s statement in his legal memo endorsing “the general principle that the state is justified in using whatever force is necessary to enforce its laws.”  I fear that this deference to the Government, which he has continued on the bench, makes him ill-suited to be an effective check on the Government or protector of individual liberties and rights.

A Deferential Nominee At a Pivotal Point in History

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. 

And so we owe it to the American people of today, and the Americans of generations to come, to ask and answer several essential questions:  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?  Can this President, or any President, choose which laws he will follow and which he will not, by quietly writing a side statement when he signs a bill into law?  These are some of the most vital questions of our era, and these are among the most vital questions that confront the Senate in considering this nomination to our highest court.  Judge Alito’s record, and his responses -- and his failure to adequately answer questions about these issues -- are deeply troubling.

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. 

A Democratic Senate stood up to one of the most popular and powerful Democratic Presidents of all time when it rejected President Franklin Roosevelt’s court packing scheme.  The Senate should not be a rubber stamp to this President’s effort to pack the court with those who would 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 crucial check and balance.

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