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 27, 2006
The Constitution gives the Senate an
essential role in the confirmation of Supreme Court justices. It is
a role that I take very seriously. The Senate is not a rubber
stamp. So it was important for me to get a sense of how Judge Alito
thinks, and whether he would be a Supreme Court justice for all
Americans, before deciding whether or not I could support his
nomination.
He came to his hearing with a record
he has created over the last 30 years. As a judge and before that
as a high-ranking government official appointed to a succession of
posts by Republican presidents, Judge Alito seemed consistently to
defer to Executive power and to show little empathy for the plight
of ordinary Americans. His record also suggested a pattern of
saying what he needed to say to get to the next job. In the course
of this nomination he sought to retreat from his own words without
really doing so. The hearing provided him an opportunity to explain
his record. It was an opportunity he chose to squander when the
President’s supporters and Republican Senators urged him not to be
forthcoming. He had the chance to answer some of the troubling
questions that his past words and actions raised. He had the
opportunity to demonstrate that his replacement of Harriet Miers was
not what it appeared to be — the President selecting someone he knew
he could count on to support Government power and the expansive
doctrine of the “Unitary Executive” and someone the extreme faction
in the President’s party felt assured would march with Justices
Thomas and Scalia in their culture war.
It was an opportunity that he did not
take. The hearings, and the whole confirmation process, left us
with more questions and greater concerns than before. I have
already discussed his failure to assure us that he would serve as an
effective check and balance on executive power. He failed to show
me, or the American people, that when he recited platitudes -- “no
one is above the law” -- that he was not just telling us what he
thought he needed to say to get this promotion.
Broken Commitments
On Recusals
One question for the Senate is whether
Judge Alito takes seriously his promises to the Senate and his
obligations to avoid the appearance of impropriety. He had an
opportunity to allay concerns about his repeated failures to recuse
himself from cases during the nominations process and at the
hearing, and it was another opportunity that he missed.
In 1990, when Judge Alito was before
the Senate seeking confirmation to his current job on the Third
Circuit Court of Appeals, he made a pledge. He promised the Senate
that he would recuse himself from five categories of cases: cases
involving three different financial companies with whom he had
dealings, cases in which his sister’s law firm represented a party,
and cases he had overseen as the United States Attorney in
New Jersey. I was disappointed to discover that, despite
making an explicit promise to disqualify himself from these cases, a
sworn commitment, he failed to disqualify himself in at least four
of the five categories of cases he had listed.
He apparently failed even to put
several of the financial companies on the Third Circuit’s automatic
recusal list despite promising the Senate to recuse from cases
involving these companies. I am not suggesting that he gained a
financial benefit in any of the decisions he made in cases in which
he should have recused. That is beside the point. The issue is his
sworn promise to the Senate and his varying explanations for
breaking that promise. I am concerned, and would expect that other
Senators would be concerned as well, by his apparently systematic
disregard for his promise to the Senate to steer clear of certain
categories of cases.
One case, involving the Vanguard
funds, in which he has invested hundreds of thousands of dollars and
which he expressly included in his 1990 pledge to the Senate, is
particularly troubling -- not just because of his involvement but
because of the shifting excuses he has given us during the course of
this confirmation process. He provided a series of explanations
that conflicted with each other and with the facts. He told me and
others before the hearing that he was assigned to the Vanguard case
due to a glitch in the computer screening program that was supposed
to identify conflicts. After significant investigatory work and
pressing for answers, we found that that answer was not accurate.
Vanguard was not on his computerized list to identify conflicts when
he led us to believe that a computer glitch occurred. Judge Alito
finally acknowledged at the hearings that there was no computer
glitch. At the end of the day there was no getting around the fact
that he was responsible for failing to live up to his sworn
commitment to the Senate from 1990. What was most disappointing is
that he did not own up to his responsibility or his error but sought
to evade and excuse his conduct for weeks and weeks. He acted like
the Bush Administration most often does when it errs, by blaming
others: his surrogates attacked those raising questions, while he
proffered numerous conflicting excuses.
For example, one of his many
explanations was contained in a letter he wrote to Chairman
Specter. He contended that the 1990 promise he had made to the
Judiciary Committee in order to become a Circuit judge only applied
to his “initial service” and that he later, apparently secretly and
unilaterally, decided that his promise to this Committee had been
“unduly restrictive” and that he need not follow it anymore. He did
not so inform the Judiciary Committee or the Senate of these
determinations at any time before his 2005 nomination
to the Supreme Court. Moreover, it is wholly inconsistent with his
finally adding the Vanguard companies to his recusal list in
December 2003. This letter seems more like self-serving,
after-the-fact rationalizing than it does a truthful explanation for
what had happened in 2003. As we discovered through due diligence,
Vanguard and Smith Barney were not on the judge’s automatic recusal
list even in 1993. There is no reason to think they were on there
before that. It certainly does not seem that Judge Alito tried to
live up to his sworn commitment to the Senate even during what he
would have to concede was his “initial service” period as a Circuit
judge.
Moreover, the “initial service” excuse
makes no more sense with respect to his Vanguard investments than it
would with respect to his sister. She did not cease being his
sister after some “initial service” period of his on the bench. In
fact, his Vanguard investments significantly increased over the
period of his service on the bench. The “initial service” concept
in the Judiciary Committee’s approach to recusal applies to
transition from a law practice to the bench. Thus, for example,
once the cases on which he had been involved while the U.S. Attorney
in New Jersey had run their course, he was not
prohibited for all time from hearing cases from that office.
Eventually, even he had to acknowledge at the hearing that this
“initial service” argument was not the real reason he failed to
recuse from the Vanguard case, even though that had been the
argument he made in a written response to our Committee’s chairman.
To the end, Judge Alito has failed to
take responsibility for his action. Instead, the best he can do is
to admit at his hearing that he “just didn’t focus on the issue of
recusal” and that “no light went off.” There was no remorse, no
apology, and no embarrassment for the string of conflicting and
inaccurate explanations he gave during the course of this
nomination. Accordingly there is no reason to think that if he
becomes a Supreme Court Justice he will focus any better on conflict
of interest and appearance of conflict issues, in a system without
accountability. I voted against the nomination of Justice Rehnquist
to become Chief Justice in large measure because of his involvement
in a case in which he should not have been. I take these matters
very seriously. It is apparent that this nominee does not.
Concerned Alumni of
Princeton
After evaluating the record and the
testimony at the hearing, I also suspect that this nominee was less
than candid about his 1985 job application and his
inclusion of his membership in the Concerned Alumni of Princeton
(“CAP”). In a 1985 application for a political position in the
Meese Justice Department, Judge Alito emphasized his membership in
the group, which he termed “a conservative alumni group.” It was
one of only two group memberships that he included in his carefully
constructed personal statement; the other was the Federalist
Society. By contrast, he chose not to include his membership at the
time in the Princeton Club of Washington. He referenced CAP, a
group that had received local and national media attention for its
resistance to the admission of women and minorities to the
university and for its prolonged hostility to students who did not
fit Princeton’s traditional mold. My question was, why? Why would
he emphasize membership in a group like that?
Concerned Alumni of Princeton
represented a view of Princeton and its clubs, a view
which excluded women, African Americans and other minorities.
Surely he would have known that the same people who in the 1970s and
1980s resisted coeducation and affirmative action would have, only a
generation earlier, resisted the admission of people from Italian
immigrant families, like his and mine, and members of religious
minority groups, like Catholics and Jews. My parents often spoke
about seeing signs in Vermont saying, “No Irish,” and “Catholics
Need Not Apply.” My parents tried to instill in me the idea that
such discrimination, and all discrimination, is wrong. Knowing my
family’s roots and heeding my parents’ teachings, I have tried my
best to promote tolerance and inclusion. It disturbed me that Judge
Alito proudly proclaimed affiliation with a group that did just the
opposite.
So I asked him about it and gave him a
chance to explain. He did not. Instead, he ducked the question.
He started by telling the Judiciary Committee that he could not
remember anything about his membership in the group. After the
White House first publicly suggested that the explanation for his
joining was his concern about ROTC, he adopted that self-serving
rationale for why he had joined the group, in a contorted
explanation — he said he did not remember, but if he did it would
probably have been because of ROTC. The truth is that ROTC had
returned to campus long before 1985, and neither CAP’s
own materials nor media accounts suggest that ROTC was a primary
focus for CAP at the time. And of course, that was not an answer to
my question. My question was why he touted his membership in 1985.
He never answered my question.
I will give him the benefit of the
doubt and accept that he was not very active in the group. That
makes all the more important the question of why he went out of his
way to emphasize it, a group in which he says he was not active, in
connection with his seeking political promotion in 1985.
Although we do not know for certain,
it appears from the hearing that Samuel Alito did not join CAP at
its founding but waited until around the time of his efforts in 1985
to get that political promotion. That leads me to wonder whether it
was part of his campaign to get the promotion. I know how partisan
and ideologically driven the Meese Justice Department was. Until
the Bush Administration it was probably the most partisan in modern
history. So it is logical to think that he proudly proclaimed his
membership in CAP and the Federalist Society, as well as his support
of Republican candidates and conservative causes and his recent
submission of articles to the
American Spectator, to establish his right-wing
credentials to help win that coveted promotion. It seems apparent
that he said all this in 1985 to show those making promotion
decisions that he was not just a traditional conservative, but a
“movement conservative,” and that the activists in control of
political promotions at the Meese Justice Department and the White
House could rely on him.
I am concerned that he was trying too
hard in 1985 and before to fit in with those in
power. In this time of Executive overreaching, illegal spying, and
expanding Government power, what the American people need is a
Supreme Court that is willing to stand up for the liberties and
rights of all Americans, not someone who curries favor with the
powerful.
I am concerned, as well, about his failure to be forthcoming in
answer to my questions. I would have been more willing to give
Judge Alito the benefit of the doubt if he had taken the opportunity
the hearings provided to come clean about all this. He gave me no
adequate answers. When Senator Schumer raised the
matter of his inclusion of CAP on his job application again, on
another day, later in the hearing he hinted at what he had done in
1985 but still would not own up. He said:
“[Y]ou have to look at the question that I was responding to and the
form that I was filling out. I was applying for a position in the
Reagan Administration, and my answers were truthful statements, but
what I was trying to outline were the things that were relevant to
obtaining a political position.” But he stopped far short of
answering because he had gotten himself into another box by his
previously saying to us that he had no recollection of CAP. He
concluded with the following: “Well, Senator, since I don't
remember this organization, I can't answer your question
specifically, but I think that the answer to the question lies in
the nature of the form that I was filling out and the things that I
put.”
Regrettably, when he had been asked by
ABA representatives about his putting CAP in his 1985
job application and whether he was “pandering,” he failed to take
that opportunity to reflect on what he had done and own up to the
matter, as well. Instead, according to Marna Tucker’s testimony, he
answered that he put CAP on that application because “it would be
improper to not tell the truth on an application” and “that he was a
member of that organization.” That answer says a lot.
He is right that it is “improper to
not tell the truth on an application,” but that does not explain why
he chose to list CAP. The form does not call for him to list all
clubs and affiliations. The form used to seek political advancement
during the Reagan Administration asked for something else, a
demonstration of partisan, political commitment. It said: “Please
provide any information that you regard as pertinent to your
philosophical commitment to the policies of this administration,”
and asked applicants whether “you ever served on a political
committee or been identified in a public way with a particular
political organization, candidate or issue.” That is why he
included CAP, an organization that in the mid-1980s was a place that
activists like Dinesh D’Souza and other rising stars in the
conservative movement favored.
Regrettably, at his hearing, and under
oath, Judge Alito evaded. He could not remember, tried to say the
right things about discrimination, stood by while his supporters
attacked the question and then watched as his supporters pushed so
hard that they made his wife break down in tears. I do not think
that the Republican Senator who pressed that awkward line of defense
intentionally meant to upset Mrs. Alito, but Republican partisans
have turned that moment that they created into a partisan weapon.
Like the matters of recusal, the CAP
issue is another that Judge Alito could have put to rest by being
more forthcoming at the outset. He has never answered the question
of why he touted his membership in CAP in 1985. To me
the true answer seems obvious. Indeed, in a news account that
appeared on the last day of the hearings, his mentor at the
Department of Justice in those days admitted what was really going
on in that 1985 application. Charles Cooper, who was the Assistant
Attorney General for the Office of Legal Counsel and Samuel Alito’s
supervisor, said: “The only purpose of that essay was to satisfy
the Office of Presidential Personnel that he was simpatico with the
Reagan Administration’s legal policy agenda.” He went on to call
Samuel Alito’s 1985 statement “his essay of his political bona
fides.”
1985
Job Application
Judge Alito’s 1985 job
application is an ideological manifesto that goes a long way to
explain why the same people on the far right who shot down the
President’s nomination of Harriett Miers, because they were not
assured how she would rule, rushed to support Judge Alito when his
nomination was announced.
Judge Alito wrote in that 1985
application that “[I]t has been an honor and source of personal
satisfaction for me . . . to help to advance legal positions in
which I personally believe very strongly. I am particularly proud
of my contributions in recent cases in which the government has
argued in the Supreme Court that racial and ethnic quotas should not
be allowed and that the Constitution does not protect a right to an
abortion.” At the age of 35, Samuel Alito was not satisfied
representing the United States through work in the office of the
Solicitor General and applied to the White House to be appointed to
be Deputy Assistant Attorney General of the Office of Legal Counsel
in the Meese Justice Department when Charles Cooper was the
Assistant Attorney General. He was eager to highlight his work in
the Solicitor General’s office, which should be a place where
lawyers honor the law in a nonpartisan, professional manner, rather
than seek to twist it to partisan political ends. He bragged of his
personal commitment against programs that helped to create equal
opportunities for all Americans and against the constitutional right
to privacy, including a woman’s right to choose. Regrettably the
Bush Administration’s regime of secrecy has prevented the Judiciary
Committee, the Senate and the American people from reviewing Samuel
Alito’s work product while in the Office of the Solicitor General
and Office of Legal Counsel. This was work done during a Republican
administration that litigated and lost the famous
Bob Jones University
case about tax breaks for institutions that discriminate; that lied
to Congress about the EPA and Iran-Contra; that sought to overrule
Roe v. Wade; and that
sought to roll the clock back on fundamental rights to equal
protection.
The hearing gave Judge Alito an
opportunity to do either of two things. He could have embraced his
statement from 1985 and his record as a judge and set
out to explain why his deferential view of presidential power and
his restrictive view of individual rights are appropriate for a
justice who is supposed to be there for all 290 million Americans.
We could have had the great ideological debate that so many on the
far right seemed to want to have when the President’s nominee was
Harriett Miers. Or he could have disavowed the 1985 job application
and much of his record as a judge and told us that he would in fact
be a check on the President and protect the fundamental
constitutional rights of all Americans. He did neither. Instead he
refused to share his views and tried to finesse his statements in
the 1985 application and limit them “technically.” He was so
unresponsive that commentators from across the political spectrum
have called for an end to Supreme Court confirmation hearings since
they reveal so little about the nominee’s thinking.
For example, he said that his
statements about privacy represented his views at the time, but that
he would view the issue with an “open mind” as a justice with the
authority to cut back, or overrule the rights expressly recognized
in Roe v. Wade.
Judge Alito never disavowed his 1985 statement that in
his legal view the Constitution does not protect a woman’s right to
choose. In fact, he responded to Chairman Specter that his
statement in 1985 was a “true reflection of [his] views at the time”
and “the position that [he] held at the time.”
We also have his multi-page memorandum
on the Thornburgh
case from his days in the Solicitor General’s office — on of the
handful that slips through the veil of secrecy that the Bush
Administration sought to construct -- in which he asserts his legal
view that Roe was
wrongly decided and should be overruled, but that tactically the
better approach would be to incrementally undermine its legal
authority.
This one memo is enough to demonstrate
why such material should have been produced rather than hidden by
this Administration so that the Senate and the American people would
have the nominee’s views and record. The Bush Administration
refuses to produce Samuel Alito’s work at the Solicitor General’s
office and at the Office of Legal Counsel. Who can tell what those
other writings would reveal about the nominee’s legal views?
The Washington Post
recently reported that Charles Cooper has now indicated that Samuel
Alito worked on defending the Reagan Administration in connection
with the Iran-Contra crimes by working on legal theories so that
they would not have to inform the Congress which was investigating
in its oversight capacity. What else did Samuel Alito work on that
is being hidden from the Senate and the American people?
On the issue of a woman’s right to
choose, we also have Judge Alito’s opinion in
Casey in which he
follows the script he laid out in his memorandum to the Solicitor
General and finds no state regulation an undue burden on a woman’s
right to choose. Of course, the Supreme Court, including Justice
O’Connor herself, were in place then to hold the line in
Casey, reaffirm
Roe and reject Judge
Alito’s position.
Although he would not testify what his
legal view is today, Judge Alito’s answers to questions about the
precedential value of Roe
and Casey can
leave no doubt that he continues to believe that
Roe v. Wade was wrongly
decided. Even in his dry recitation of what should be routine
methodology for how a justice decides a case in which there is
precedent, he got it wrong. He left out a step. He left out the
step where the justice, knowing that there is a controlling
precedent, decides whether the precedent was correctly or
incorrectly decided. Obviously if a justice believes the preceding
case correctly decided, he has no reason to go on to make the other
calculations about weight and reliance and all the other factors
that a justice is to consider when deciding whether to overrule
past precedent. In other words, Judge Alito’s testimony
presupposes that he continues to believe now what he believed in 1985,
that Roe v. Wade was
wrongly decided. Otherwise his answers make no sense. A justice
does not waste time worrying about factors and weight and reliance
when he considers the precedent correctly decided; that happens only
when he is considering whether to overrule or limit that precedent.
Political Issues
Similarly his contradictory testimony
at the hearing about his view were revealing about this nominee. He
went to great lengths to distance himself from his public
endorsement of Judge Bork’s unsuccessful nomination to the Supreme
Court. He had called Judge Bork one of the most qualified nominee
of the last century and was effusive in his praise — until asked
about it at the hearing. There he sought to backtrack. He sought
to excuse his comments as those of a political appointee supporting
his employer’s nominee, but had to concede that was not an accurate
explanation for his comments. Only when pressed did he concede that
he indeed thinks highly of Robert Bork’s candidacy.
And when Senator Kohl
asked him for his views of whether the Supreme Court should have
taken the case of Bush v. Gore,
his evasiveness reminded me of when I asked Clarence
Thomas whether he had ever discussed
Roe v. Wade with
anyone. Senator Kohl was not even asking his views on the holding
of that case.
Conclusion
This is 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?
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.
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 time, 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.
Regrettably, it seemed as if Judge
Alito approached the question of a lifetime appointment to succeed
Justice Sandra Day O’Connor on the United States Supreme Court as a
“job application” process that resembled a political campaign with
two distinct parts. First, he had to get the nomination, which he
sought as a committed, arch-conservative, and as a reliable vote in
favor of Government power. That mission was accomplished when he
was named to replace the nomination of Harriet Miers with the
support of the President’s most extreme supporters. That was his
“primary” campaign. The Senate confirmation process is more the
equivalent of a general election, in which he strives to appear as
middle-of-the-road as possible. What he did not do successfully in
my view is reconcile the two roles. I will vote against this
nominee, who I believe the President picked for his demonstrated
legal views, which are in stark contrast to the image the White
House handlers and supporters have attempted to create.
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