Schumer Votes No On Alito Nomination

SCHUMER VOTES NO ON ALITO NOMINATION

U.S. Sen. Chuck Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, announced his opposition to Judge Samuel Alito's nomination to the Supreme Court today in the Judiciary Committee Markup session on Alito.

The following is Schumer's statement:

Mr. Chairman, in the confirmation process, the roles of the President and the Senate are equally important. The President nominates, and the Senate is charged with advice and consent. Once the President has nominated (hopefully with the advice of the Senate), Senators review the record, meet with the nominee if possible, pose questions, review responses, deliberate among themselves, and ultimately determine whether to give or to withhold their consent.

The hearing is the one time that the nominee takes center stage - to clarify past statements, to explain previous views, and to reassure Senators and citizens alike that he or she is in the broad judicial mainstream.

The purpose of such hearings is for the nominee, speaking frankly and forthrightly, to advance our understanding of his views, temperament, and judicial philosophy.

If that does not happen, if the public is no better informed about a nominee at the conclusion of the hearing than at the start, the blame for that must be laid squarely at the feet of the nominee.

This morning I want to discuss my reasoning as to why I will vote no on the nomination. First, Judge Alito was not forthcoming about his own Constitutional views on too many issues, despite in many instances having a prior written record on those views. Second, and most importantly, Judge Alito's record on the bench is very far out of the mainstream on these many issues. And finally, the only mitigating factor Judge Alito offers is not a rejection of those views, but rather a pledge to respect stare decisis. Given, however, what past nominees have said on the subject and given his own Third Circuit history of ignoring or circumventing precedent, these pledges do not mitigate those extreme positions and are hardly reassuring.

Failure to Answer Questions

First, because of the approach taken by this nominee and his handlers, we did not much advance our knowledge of Sam Alito during the just-concluded hearings.

Although Judge Alito responded to hundreds of questions, he meaningfully answered far too few of them.

On too many issues, we were treated to artful evasions and pleasant banalities.

Time after time, Judge Alito took careful cover in platitudes about the law, with which no nominee who has ever come before the Committee could have disagreed:

- Judge Alito declared, for example, no fewer than eight times, that he would keep an "open mind." But, has any nominee ever told us he would have a closed mind?

- He intoned, no fewer than six times, that "no one is above the law." But, has any nominee ever said that certain people are above the law?

- He continually invoked the phrases "judicial restraint" and "self restraint."

- And, of course, he repeatedly paid homage to precedent and the doctrine of stare decisis.

And maybe most of all, Judge Alito sought to give the impression that he, like any other judge, simply did "what the law requires."

But there is much that this facile formulation ignores.

If it were so simple to "do what the law requires," we would hardly need judges, juries, and legal advocates.

Sometimes - indeed, often - the law is silent. Sometimes, the law requires the judge to use his discretion. And of course, sometimes "what the law requires" will mean different things to different people of good faith.

So, these statements tell us absolutely nothing about his views and can hardly be reassuring to anyone.

The American people were entitled to honest answers, not practiced platitudes. The American people deserved to hear more.

Of course, as these hearings evolve, and as witnesses perfect the artful dodge, the only people being disserved are the American people.

Even a supporter of Judge Alito, Stuart Taylor of the National Journal, described the nominee's performance in these terms: "Again and again, Alito ducked and dodged. The questions seemed fair. The answers seemed lame, evasive, even infuriating, to those of us who want straight answers."

Some will say, as Senator Specter has, that a nominee will answer as few questions as he can get away with. Perhaps that makes him look better at the hearings, perhaps it even gets him confirmed, but it does a disservice to the American people and to our democracy.

That is so because it is in the instances when "what the law requires" is not at all clear or unanimously accepted, that Judge Alito invariably charts a rightward course.

When "what the law requires" is that Judge Alito exercise his discretion - whether to overrule a precedent protective of personal autonomy, whether to uphold the dismissal of a civil rights claim, or whether to defer to the judgment of the legislature -he too often sails out of the mainstream.

A Record Out of the Mainstream

So, in light of his refusal to explain his views on particular Constitutional questions at the hearings, we must take examine his written record even more closely. And that examination tells us that, in case after case and on issue after issue -- especially when left to his discretion and especially when there is any plausible legal wiggleroom -- Judge Alito is a judicial outlier who stands well out of the mainstream.

The supporting evidence is simply overwhelming.

During the time he has served on the Third Circuit Court of Appeals, not one other judge has dissented as many times as Judge Alito. Not one. Indeed, many have dissented only a fraction of the time.

More telling is how he ruled in those opinions. Based on a study of those dissents, Professor Cass Sunstein of the University of Chicago Law School concluded that Judge Alito took a more conservative position than the majority of the court 91 percent of the time.

Professor Sunstein further found that "when there is a conflict between institutions and individual rights, Alito's dissenting opinions argue against individual rights 84 percent of the time."

As I said at the start of the hearings, Judge Alito certainly gives the impression of being a meticulous legal navigator, but, in the end, he always seem to chart a rightward course.

During the week-long hearing, Judge Alito did nothing to dispel that assessment.

He has stood alone, at the edge of the judicial mainstream, in too many important cases and on too many important issues.

Taken together, these cases paint an unmistakable portrait:

1. In the area of sex discrimination law, the record shows that Judge Alito stands outside the judicial mainstream. He stood alone against 11 of his fellow judges, who criticized him for raising the bar too high for a victim of discrimination: "Surely, the judicial system has little to gain by the dissent's approach."

2. In another area of civil rights law, Judge Alito also stands outside the mainstream. The majority found his dissent in one case to be so extreme that they felt "Title VII would be eviscerated" if they were to follow Judge Alito's analysis.

3. In the area of Presidential power especially, Judge Alito has carved out an extreme niche for himself, having embraced and endorsed the theory of the "unitary executive," endorsing a truly vast power for the President.

4. In the area of Congressional authority, Judge Alito has also shown himself to be out of the mainstream of jurisprudence, standing alone on his Court in voting against Congress's power to regulate the possession and transfer of machine guns.

5. In the area of criminal law enforcement, Judge Alito also has at least one foot out of the mainstream. In one case, his fellow judges charged that his analysis served to "minimize the history of discrimination against prospective black jurors and black defendants."

6. And, of course, when it comes to a woman's right to choose, Judge Alito has also shown himself to be outside the mainstream, having asserted that the Constitution does not protect a right to choose and having drafted the plan to erode the protections afforded by Roe v. Wade.

Disrespect for Precedent

The only thing that could serve to temper Judge Alito's extremism on the bench, he and others tell us, is faithfulness to the principles of stare decisis, respect for precedent. But we have been down that road before.

After all, we have seen other nominees come before us and solemnly swear fealty to the same broad precepts:

- Before this very Committee, then-Judge Bork claimed loyalty to the notion of stability and stare decisis. But outside of the hearing room, it turns out, Robert Bork - whom Judge Alito inexplicably called "one of the most outstanding nominees" of the 20th Century - had said, "I don't think that in the field of constitutional law, precedent is all that important."

And, of course, Robert Bork has continued to advocate for the overruling of Roe v. Wade, among other cases, even as recently as a few weeks ago.

- Then-Judge Thomas similarly pledged allegiance to the doctrine of stare decisis, but as we showed at the hearing, since taking his seat on the Supreme Court, he has voted to overrule or unravel more than 30 precedents of the Court.

So, given that other nominees, like Justice Thomas, have pledged fealty to stare decisis and then gone on to ignore precedent and given President Bush's own pledge to nominate judges in the mold of Clarence Thomas, his invocation of that doctrine is of small consolation.

Even more troubling is Judge Alito's own record on the Third Circuit. His fellow judges have repeatedly criticized him for ignoring and sidestepping the precedents of his own court.

On the Supreme Court, Judge Alito would have even greater freedom to ignore or overrule precedent. Given his record on the Third Circuit, what can Americans expect him to do on the Supreme Court?

1. In one case, the majority of the court said that his opinion "guts the statutory standard" and "ignores our precedent."

2. In another, the en banc majority argued that Judge Alito's view ignored "case after case" relied upon by the majority and "accords little weight to these authorities"

3. In yet another the majority said Judge Alito's dissent "does not comport with our reading of the [relevant] caselaw."

4. In another, Judge Alito said he wanted to "overrule Bello and the cases that followed it."

5. And, in one case, Judge Garth wrote that Judge Alito's opinion was "unprecedented" in its "disregard of established principles of stare decisis."

These examples are just some of the cases in which Judge Alito found himself alone in disagreement with his colleagues on Third Circuit precedents.

I recite these examples because of the critically important question they raise:

If Judge Alito has been so willing to disregard the precedents of his own court in "unprecedented" ways, what solace can we take in his professed allegiance to stare decisis should he be confirmed to the Supreme Court, where he would have even more freedom to overturn important and settled precedents, relied upon by millions of Americans?

- What of Gonzales v. Raich, which upheld the federal government's ability to protect public safety by regulating illegal drugs within the states?

- There is certainly cause for alarm because he voted, in the Third Circuit, to strike down federal firearms regulation in strikingly similar legal circumstances.

- What of Morrison v. Olson, which held that the President does not have total and unfettered power to fire independent officials?

- Here, too, there is also cause for alarm because Judge Alito has stridently endorsed the view of the lone dissenter, Justice Scalia, and refused meaningfully to distance himself from that view at his hearings.

- What of Mitchell v. Forsyth, which held that executive branch officials cannot completely escape accountability for warrantless wiretapping?

- Again, there is cause for alarm because Judge Alito once argued the losing side in that case in a memo explaining his personal legal perspective that officials should have absolute immunity for warrantless wiretapping.

- What of Nevada v. Hibbs, which protected the rights of state employees to challenge violations of the Family Medical Leave Act?

- Once again, there is cause for alarm because Judge Alito voted, in the Third Circuit, to prohibit state employees from doing just that in Chittister.

- And, of course, what of Roe v. Wade, which this very week marks the 33rd anniversary of protecting a woman's Constitutional right to choose?

Here, the alarm is probably greatest because Judge Alito repeatedly and inexplicably refused to say whether he still held the views that he had once so proudly stated: that the "Constitution does not protect" a woman's right to choose. He was also asked whether he believed that Roe v. Wade was "settled law." Again, he refused to answer.

This was particularly troubling because, on some questions of course, Judge Alito was forthcoming: He was prepared to distance himself, for example, from earlier statements suggesting that he did not believe in the principle of one-person, one-vote. And he was prepared to distance himself from earlier statements that the elected branches were "supreme."

On this vital Constitutional question, however, Judge Alito remained utterly opaque, leading to the only possible reasonable conclusion - that he still believes that the Constitution does not protect a right to an abortion, but does not want to tell the American people because he knows how unpopular that view is.

In light of ALL of the evidence, to suggest - as some here have - that Judge Alito will not vote to overrule Roe v. Wade is to ask us not just to take a leap of faith, but to suspend disbelief.

Indeed, it asks too much.

In the end, Mr. Chairman, given Judge Alito's refusal to answer many important questions, given that he is out of the mainstream on so many issues and would move the country backwards, and given that pledges to follow precedent provide little consolation, I have no choice but to vote nay, and I urge my colleagues to do the same.

http://schumer.senate.gov/SchumerWebsite/pressroom/press_releases/2006/PR20.Alito%20Committee%20Vote.012406.html