Barbara Mikulski

Opposition to Alito Confirmation - Jan. 25, 2006

Barbara Mikulski
January 25, 2006— U.S. Senate, Washington, DC
Congressional floor speech
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I rise to address one of the most significant and far reaching decisions a Senator makes – the vote on a confirmation of a Supreme Court Justice. A Senator is called upon to make two decisions that are irrevocable and irretrievable, one is the decision to go to war and the other is the confirmation of members of the Supreme Court.

This vote will have an immense impact on future generations. Judge Alito is 55. If confirmed, he will sit on the Supreme Court for decades and rule on thousands of cases, which will themselves will be around for decades after he has left the court. His decisions will affect the lives of virtually all Americans for generations.

This vote will also have an immense impact because of who Judge Alito has been nominated to replace – Justice Sandra Day O’Connor, the first woman appointed to be a Supreme Court Justice.

Justice O’Connor is a unique historical figure. She broke through the glass ceiling of the highest court in our land to become the first woman Justice on the United States Supreme Court. Justice O’Connor has been a true pioneer, helping to pave the way for women in the legal profession.

Yet, Justice O’Connor’s impact on women in America reached beyond being a mentor and a role model. She brought new perspectives to the Court. She stood as an independent and moderating voice on issues impacting the fundamental rights of woman and all Americans. Justice O’Connor has also been squarely in the mainstream. Often she has been the critical swing vote, which determined which way a key case was decided. Whether fundamental rights were protected or not often depended on Justice O’Connor’s vote.

Every vote for a Supreme Court Justice is momentous with lasting effects for decades, but this vote to replace Justice O’Connor simply could not be more important.

As I have considered this nomination, I’ve had two main questions: what will it mean for the fundamental constitutional liberties that have meant so much to so many? What will an Associate Justice Alito mean for their future?

After a thorough and careful review of his record and his testimony, I will oppose the confirmation of Judge Alito.

I do so because Judge Alito refused to clarify his views and philosophy. He has written many, many decisions as a circuit court judge which are clearly out of the mainstream, but he failed to clarify his positions on the constitutional right to privacy, other fundamental rights and settled law. It is also unclear if he will be able to keep his very strong personal views from influencing his decisions on the highest court of the land. He has also written speeches and memos that raise very serious questions about his views, which he also failed to clarify.

In the end, Judge Alito failed to answer too many questions and he appears to be out of the mainstream.

When I decide how I will vote on any nominee for the federal bench I have three criteria.

First, is the nominee competent? There is no doubt that Judge Alito is competent.

Second, does he possess the highest personal and professional integrity? I have a number of concerns here. One concern is Judge Alito’s past membership in the very conservative Concerned Alumni for Princeton, which Senator Frist and other prominent Princeton alumni repudiated, but Judge Alito did not. In fact, Judge Alito boasted about his membership when he applied for a job in the Reagan administration, and now he claims he can’t even remember why he joined CAP.

Third, will the nominee protect core constitutional values and guarantees that are central to our system of government? Based on his own statements and his testimony at the hearings, I am left with very serious doubts about whether he will safeguard civil rights, the right to privacy and equal protection of the law for all Americans.

I have approached this nomination with an open mind. I looked to the hearings. I paid close attention to his testimony, his past writings, his decisions as a judge and the testimony of others. I tried to get insight into his legal reasoning and judicial philosophy, but at the end of the day I have very serious concerns about who Judge Samuel Alito really is.

He seems to be willing to take strong and clear positions in his court opinions, job applications and speeches, but unwilling to be clear about those very same positions when asked about them at his hearing. We are left to wonder if he will protect fundamental rights, like the right of privacy, the right to equal opportunities and the right to be free from unnecessary government intrusion.

In the hearings, he had many opportunities to let us know whether he would secure these precious rights, yet he did not clear up uncertainties. He did not clarify his record and he did not candidly and completely answer the key questions that would tell the American people where he stands on the critical issues.

With the hearings over, I am still asking, ‘who is the real Judge Alito?’

First, let’s take the issue of civil rights. One of the most important civil rights is the right to vote, yet Judge Alito left me with serious doubts on what his true views are. In a job application to be a lawyer in the Reagan administration, Alito stated he strongly disagreed with the Supreme Court’s decisions of the Warren Court on legislative reapportionment, which became the bedrock principle of the ‘one person, one vote.’ He later stated in Judiciary hearings that one person, one vote is settled law, but could not explain why he wrote this statement on his job application or why his opposition to the Warren Court’s decisions inspired him to go to law school. It seems as if he wants us to just ignore what he previously said.

Another fundamental principle underlying civil rights is the ability for an individual to go to court when his or her rights are violated. Judge Alito’s record is very troubling. In one case involving race discrimination, a woman sued her employer for racial discrimination yet Judge Alito argued the woman should not be allowed to present her case to a jury. The majority stated if they had applied Alito’s analysis, ‘Title VII [of the Civil Rights Act] would be eviscerated.’

In another case involving sex discrimination, a woman brought a case arguing not only that she had been discriminated against, but that she had been retaliated against for filing a claim. All 11 judges on the 3rd Circuit (sitting en banc) reviewed the case,and 10 judges found the court was wrong to throw the jury verdict out. Judge Alito, the sole dissenter, argued there was not enough evidence to find sex discrimination.

These cases and many others show that Judge Alito is not a moderate or a mainstream judge, as he seemed to suggest he was at the hearings.

Let’s go to the issue of the power of the executive branch. The Supreme Court is a critical check on this power. Increasing presidential power has been a hallmark of this administration, not just the recent discovery that the administration has gone around the law and allowed spying on Americans without warrants, but also secret meetings with energy company CEOs to write our nation’s energy policy and preventing the disclosure of how executive decisions are made.

When asked about whether or not the President could ignore laws passed by Congress, Alito would only say ‘no one is above the law.’ That’s not an answer. That’s an empty slogan.

He would not discuss the scope of executive branch power. Unchecked presidential power is one of the greatest threats to our liberties and rights and Judge Alito has been very deferential to the executive branch. His answers suggest he will continue to be. We can’t afford to have the Supreme Court duck its responsibility to check the executive branch.

In the area of the constitutionally protected right to privacy, it is unclear what Judge Alito believes the Constitution protects. Again, I go back to the statements he made on his job application to work for the Reagan administration in 1985. He was 35 years old when he wrote this memo; he had argued before the Supreme Court over a dozen times. As a seasoned and experienced professional, he wrote that he was ‘proud’ to have argued that ‘the Constitution does not protect a right to an abortion.’ These are his words. Not only did he take a position to eliminate the rights in Roe v. Wade, he thought it was so important that he emphasized it in his job application.

The key question for Judge Alito on the constitutionally protected right to privacy was whether or not he considered Roe to be settled law. Judge Roberts, at his confirmation hearings for Chief Justice, said he believed Roe was settled law. Judge Alito was asked repeatedly at the hearings if he considered Roe to be settled law and if he agreed with Judge Roberts. Judge Alito refused to say that Roe was settled law. He refused repeatedly to say if he would protect the right to privacy.

He did say he believed that the Griswold case was ‘settled law,’ which upheld the right of married people to buy contraception. Connecticut had banned their sale. But Roe is based on the same constitutional right of privacy as Griswold. Alito also refused to clarify his previous dismissal of Roe vs. Wade. He refused to clarify his position on why a woman should have to notify her husband in order to get an abortion – a requirement Justice O’Connor ruled was clearly unconstitutional – nor would he elaborate on what the right of privacy includes.

What would that mean for the future of reproductive rights? What would that mean for the future of privacy rights in general? This is one of the most important and evolving protections of our Constitution. Just think how profoundly society has changed with the Internet and the information technology. Twenty years ago we would not have thought about privacy rights in this context.

But today we also need to consider how Judge Alito would apply the right of privacy in a world where all our most personal health and financial records can easily be stored and shared. How would he apply the right of privacy in a world when this administration is spying on Americans without warrants or cause? So we are left to ask: ‘what are Judge Alito’s views on the critical constitutional right to privacy?’ We don’t know, but his answers and non-answers clearly suggest that he will not protect this right.

One last area of concern I want to talk about is Judge Alito’s apparent predisposition to rule against ordinary Americans. I look at the seat Judge Alito has been nominated to replace. It is a seat of moderation. Justice O’Connor represented mainstream America. She understood as a Justice for the highest court in the land, her decisions impacted real people and their lives. Her decisions were not made in the abstract.

Judge Alito has stated he looks at the facts of each case, yet time and time again his decisions show support for big business, for the executive branch, but not so much for everyday Americans. A Justice of the Supreme Court must be able to see through the abstractions and understand the role of the law in the lives of all Americans, not just the powerful and influential. A Justice must make the marble motto over the Supreme Court ‘Equal Justice Under the Law’ a reality for all Americans. That is also an important role for every Supreme Court Justice. Judge Alito’s opinions, writings and answers suggest to me that he does not understand this role either.

In the end, I have too many doubts about what Judge Alito will mean for civil rights and constitutional liberties, caused by what he said – and even more by what he refused to say. I remain concerned that Judge Alito is out of the mainstream, that he is willing to say what he needs to get a job, that he is an ideologue, that his personal views will influence his decisions.

It is not acceptable that Judge Alito has explained that he either forgot why wrote something or that his early writings were for a job application as a lawyer.

What he believes is what he is, and it will shape the Supreme Court for the next 20 years. After a careful review of the record before us, I simply have too many doubts. Doubts about his commitment to providing access to the courts for Americans, ensuring appropriate checks and balances among the three branches of government and the fundamental right of privacy.

When my name is called in the U.S. Senate for his nomination, I will vote ‘no.’