Samuel Alito

SAMUEL ALITO -- (Senate - November 16, 2005)

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Mr. SCHUMER. Mr. President, 1 month ago, I expected to be on the Senate floor sometime about now engaged in a debate over the pros and cons of President Bush's nominee to the Supreme Court. Of course, I thought it would be Harriet Miers we would be debating. But that never occurred. As the Senate takes up the nomination of Harriet Miers' replacement, Judge Samuel Alito, we should all continually bear in mind how we got to this point because recent history goes a long way in explaining why the American people want us to examine every portion of Judge Alito's record with great care.

Harriet Miers' nomination was blocked by a cadre of conservative critics who lambasted her at every turn. Why? Because they were not satisfied that her judicial ideology matched their conservative extremism. They were not certain that her legal philosophy squared with their political agenda. In the end, Harriet Miers' nomination was blocked before she could explain her judicial philosophy, before she could have a full and fair hearing to answer the doubters, before she could have an up-or-down vote on the Senate floor. She was blocked by conservatives and Republicans, not Democrats. She was not given an up-or-down vote by many of the same people who are clamoring for an up-or-down vote on Samuel Alito.

The standards seem to change with the nominee. Many of the very people who denied Harriet Miers an up-or-down vote are now saying that there is an imperative to give Samuel Alito one. So before we even begin examining Judge Alito's record, a natural cause for concern is that he was picked to placate a group of vocal and hard-right activists who have been lobbying for him for many years. Many of those who now call for an up-or-down vote are the same ones who denied that vote to Harriet Miers.

Anyone who thinks that this nomination is a foregone conclusion is sadly mistaken. There are too many questions still to be answered, too many doubts still to be alleviated to say this nomination is a slam dunk. The most important thing we must look at is Judge Alito's judicial record. And at least on first perusal, there are reasons to be troubled. In case after case after case, Judge Alito gives the impression of applying meticulous legal reasoning, but each time he happens to reach the most conservative result. That is why he apparently dissented more than most judges in his circuit.

I met with Judge Alito. I found him to be bright and capable and down to earth. He has an impressive life story and history of accomplishment. And his family story is not unlike mine and that of millions of Americans whose families came to these shores in the last two generations and, due to this great system of ours, climbed the ladder of success. But this is about more than legal achievement. In case after case, Judge Alito seems to find a way to rule on the side of business over the consumer, on the side of employer over employee, and often against civil rights, against workers' rights, against women's rights.

Though any analysis is still preliminary--and, of course, we must all wait for the hearings because those will be the most important thing--a quick review of some cases reveals a troubling pattern and warrants tough questioning at Judge Alito's hearing.

Often he stands alone in his decisions, reaching conclusions that almost no other judge has reached or would reach. The machine gun case, Rybar, is very troubling. Judge Alito alone found that Congress could not regulate machine guns, even though the majority ruled that Congress could, even though every other circuit to consider the issue ruled the other way, and even though courts have held for the last 60 years that Congress has such power. Judge Alito was in that case and on that issue an outlier.

This is an issue about which there was and is broad consensus. He went out of his way to find a means to reject that law. When I met with Judge Alito, he cited three bases for his dissent. He said the most important was the lack of specific congressional findings that regulation of machine guns affects interstate commerce. I found this explanation, in all honesty, unpersuasive, to say the least. The effect on commerce is obvious. Congress has passed laws relating to machine guns since the 1930s. There has never been any doubt that their possession and sale affect commerce. Ninety percent of the crime guns in New York come from out of State. So of course it affects interstate commerce.

It seems as if, in certain cases, Judge Alito would want Congress to make a finding that the sky is blue before he will give Congress the ability to make laws. So this case raises questions. Will Judge Alito be unduly cramped in his reading of the Constitution? Will he engage in judicial activism to find ways to strike down laws that the American people want their elected representatives to pass and that the Constitution authorizes? It is too early to tell. But this merits serious and tough questioning at the hearing.

There are other cases similarly disturbing. On sex discrimination, Judge Alito was again alone in ruling against the plaintiff in a sex-discrimination suit. Not only was he alone on the original three-judge panel, he was alone when the case was reheard by the entire Third Circuit. He was alone against 11 of his fellow judges who criticized him for raising the bar much too high for a victim of discrimination. The Supreme Court declined to hear the case, so there are more questions. Will Judge Alito be too quick to dismiss victims of discrimination and not give them their day in court?

On title VII, Judge Alito again was alone on a panel in ruling that a civil rights plaintiff had to meet a higher burden to get a trial than the law already provided.

Here is what the majority found extremely troubling. They wrote that ``title VII would be eviscerated'' if they were to follow Judge Alito's analysis--eviscerated, which means victims of discrimination would have no recourse.

In other cases we find the same thing. In Chittester, about the Family and Medical Leave Act; in Doe v. Groody, about strip searches, he was on the other side of the conservative Michael Chertoff. In Riley v. Taylor, he was again alone and the majority criticized him for analysis that served to ``minimize the history of discrimination against black jurors and defendants.'' And, of course, Judge Alito was alone again in Planned Parenthood v. Casey.

These are just a few of Judge Alito's decisions that raise serious concerns and cry out for tough questioning.

While there is much more reading and reviewing to be done, it is not too early to wonder whether there is a troubling pattern in his record. Is there an overall consistency in his approach to law or just in the result? Does he practice judicial restraint always or only when it allows the right outcome? Does he use the guise of legal reasoning to turn the clock back, as he appeared to do in the machine gun case? How do we resolve some apparent contradictions?

For instance, sometimes Judge Alito goes out of his way to defer to the legislature, as when he wanted to uphold Pennsylvania's spousal notification law. But at other times he goes out of his way to strike down an act of the legislature, as when he wrote Congress could not ban machine guns.

Sometimes he reads the text narrowly, as when he struck down a school's anti-harrassment policy, but at other times he reads the text broadly, as when he condoned the strip search of a woman and her 10-year-old daughter, though there was no such language in the warrant.

The disclosures this week of his 1985 Justice Department job application only raise further concern and increase his burden to answer questions fully and forthrightly in the hearing.

In that application he wrote, among other things, that he was ``particularly proud'' of his work to advance the position that ``the Constitution does not protect the right to an abortion.''

That statement cannot be dismissed as a ``personal view'' that will not affect how Judge Alito will approach the legal issue. It is a flat statement of what Judge Alito, at least at one time, believed the Constitution, not his personal belief, said. That is not a personal view such as stating you are pro-choice or pro-life. It is decidedly a legal view which involved judicial philosophy and judicial reasoning. If confirmed, his belief about what the Constitution does and does not protect will have the power through his decisions to become the law of the land.

Because Judge Alito so firmly and specifically stated his personal and legal opinion about this controversial issue while in pursuit of a lesser position, he has an obligation to answer questions at his confirmation hearing for the highest judicial job in the land. He cannot, as previous nominees have done, say, I refuse to answer. Have his views changed? Is his mind made up? Was he exaggerating for a potential employer? And if he was, how should we view what he says to us in the committee as he seeks an even higher position? Is he bent on advancing a particular ideological position?

Past nominees have said they could not discuss these issues for fear of creating a perception of bias. Here, unfortunately, the application itself creates the perception of bias and it will be essential for Judge Alito to address the issue head-on.

In conclusion, every Supreme Court nominee has a high burden. For Judge Alito that burden is triply high: first, because he seems to have been picked to placate the extreme rightwing; second, because of his past statements suggesting a closed mind on certain controversial issues; and, finally, because he is replacing Justice O'Connor, for 25 years the pivotal swing seat on a divided Supreme Court.

I hope Judge Alito will be able to meet that burden.

I yield the floor.

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