Executive Session

EXECUTIVE SESSION -- (Senate - January 25, 2006)

BREAK IN TRANSCRIPT

Mr. CORNYN. Madam President, before I make the remarks I have prepared about Judge Alito, I extend my gratitude to members of my staff who, as a member of the Judiciary Committee, have been so instrumental in my ability to prepare for this confirmation process.

In particular, I note the contribution of Brian Fitzpatrick, who has been a member of my staff and worked on both the Roberts and Alito Supreme Court nominations. He is leaving next week after Judge Alito is confirmed to the U.S. Supreme Court, as he will be, to go teach at NYU, New York University. NYU's gain is our loss. I certainly wish Brian well in his new career. I put him on notice that the next vacancy that President Bush gets to the U.S. Supreme Court, I am going to be calling him and asking him to come back for another gig.

Madam President, I rise today to explain why I intend to vote to confirm Judge Alito to the U.S. Supreme Court. Those who were just listening to the eloquent words of the distinguished Democratic whip might wonder how in the world anybody could ever vote for this nominee; how Judge Alito survived for the last 15 years serving as a member of the circuit court of appeals in Philadelphia without getting impeached; how in the world his former law clerks, the people who have worked most closely with the judge, and who happened to be Democrats and have a different political view, a different world view, a different agenda, could come in as they did before the Senate Judiciary Committee and extol the qualifications and temperament of this fine public servant and this fine human being; or how, possibly, in listening to the criticisms we have heard of this nominee and of the President for having the temerity to nominate him, you can reconcile that impression with the fact that we heard on the Senate Judiciary Committee virtually all of the current and former members of the Third Circuit Court of Appeals who have worked closely with Judge Alito day in and day out, who to a person came in and said this is exactly the kind of judge we would want and we think the American people would have a right to expect, and urged us to favorably vote on his confirmation.

It is clear to me, though, during the course of the confirmation process, that the reason I support Judge Alito his philosophy of judicial restraint is exactly the reason his detractors oppose his nomination. The sad fact is that there are some in this country who don't want judges who respect the legislative choices made by the American people. Rather, they want judges who will substitute their own personal ideological or political agenda for those choices made in the Halls of Congress by the elected representatives of the American people.

There are some in this country who have views that are so out of the mainstream that they don't have any chance to persuade the American people to accept them. For example, there are some who want to end traditional marriage between one man and one woman. There are some who want to continue the barbaric practice of partial-birth abortion. Some even want to abolish the Pledge of Allegiance. But they know if they brought some of those issues to the floor of the Senate and to the floor of the U.S. House of Representatives, these are not the views that would be expressed through the elected representatives of the American people because the American people themselves don't agree with these far left, out-of-the-mainstream views.

For these advocates of these out-of-the-mainstream views, the only way they will ever see their views enacted into law is to circumvent the American people and pack the courts with judges who will impose their agenda on the American people. They believe in judicial activism because judicial activism is all they have.

Of course, Judge Alito's detractors will never say they believe in judicial activism. They know the American people don't favor it. They know the American people believe fervently in democracy and self-determination, and they don't want unelected judges making the laws of this country. So Judge Alito's detractors are forced to oppose his nomination on the basis of certain pretexts. They are forced to grasp for any means they can to try to defeat his nomination. As one of Judge Alito's detractors put it, ``you name it, we will do it'' to defeat Judge Alito.

One of their favorite pretexts--and we have heard some of it this morning--is that Judge Alito embraces this view of an omnipotent executive branch; that he believes the President's powers are without limitation. This pretext is a complete canard. It is based on the claim that Judge Alito once endorsed an academic theory called the unitary executive. But a unitary executive is not the same as an all-powerful executive. It is, after all, a theory that says there are three coequal branches of Government--executive, legislative, and judicial. And each official within that each branch is accountable to the people for the power they exercise and is delegated to them by the Constitution and laws of the country.

But to show how misplaced this criticism is, according to Judge Alito's opponents, the father of the unitary executive theory is Justice Scalia on the U.S. Supreme Court. The problem they have is that the facts show that Justice Scalia does not favor an all-powerful President. No one does. We know this in particular from the decision he wrote in the Hamdi case 2 years ago. This was a case where the detention status of some of the terrorists who are kept at Guantanamo Bay was being reviewed by the Supreme Court. In that case, in the opinion written by Justice Sandra Day O'Connor, the Supreme Court held that the President had the power as Commander in Chief, during a time of war, to indefinitely detain even American citizens who were suspected of terrorism without filing criminal charges against them. Justice Scalia, perhaps one of the most conservative members of the Court, dissented from that, saying the President had no such power; that it was unconstitutional for him to do so. His views did not carry the day, but indeed of all of the Justices, Justice Scalia, the father of this unitary executive theory, was least deferential to the powers of the President. Judge Alito doesn't believe the President's powers are unlimited any more than Justice Scalia does.

Now, one of the witnesses we had during the course of the hearing--I mentioned several former and current members of the Third Circuit Court of Appeals. One of them who testified interestingly and relevant to the point was Judge John Gibbons who has since left the judiciary and has a law practice where he represents the detainees at Guantanamo Bay. He said:

The committee members should not think for a moment that I support Judge Alito's nomination because I am a dedicated defender of the Bush administration. On the contrary, I and my firm have been litigating with that administration over its treatment of detainees held at Guantanamo Bay.

He said:

I am confident that as an able legal scholar and a fair-minded justice, Judge Alito will give the arguments, legal and factual, that may be presented on behalf of our clients careful and thoughtful consideration, without any predisposition in favor of the position of the executive branch.

That is another example of how those who know this man best simply believe that he will be a fair-minded judge and he will not be unduly deferential to the President, the executive branch, or anyone else for that matter, and that he will faithfully discharge his responsibilities under the Constitution and laws.

Another favorite pretext of the opponents of this nomination is that as a replacement for Justice O'Connor, this nominee, Judge Alito, will shift the Supreme Court radically to the right. But in order to believe this or support this supposed theory, they have to radically rewrite history. It requires them to paint Justice O'Connor as some sort of liberal.

But the truth is far different. For example, according to the Harvard Law Review, over the last decade, the Justice on the Court with whom Justice O'Connor agreed most frequently--over 80 percent of the time--was former Chief Justice William Rehnquist.

I think we will all acknowledge that Chief Justice Rehnquist was no liberal. Yet Sandra Day O'Connor and Chief Justice William Rehnquist agreed with each other more than 80 percent of the time.

Indeed, in subject matter after subject matter, Justice O'Connor sees eye to eye with what Judge Alito has demonstrated on the bench and said how he will approach his job on the Supreme Court. Both believe in federalism, that Congress is not above the law and its powers are not unlimited but, rather, they are, under the Constitution, limited and enumerated, and that some powers are still reserved to the States and the people.

That is not an out-of-the-mainstream view. Justice O'Connor shares that view. The Founders of this country shared that view, and I believe the American people believe that the people have retained some rights and the States have retained some rights against an all-powerful Federal Government. Judge Alito happens to believe that as well.

Justice O'Connor and Judge Alito both struck down some affirmative action programs that resulted in reverse discrimination based on strict numerical quotas. And yes, both have even criticized Roe v. Wade. The truth is that if Justice O'Connor were the nominee today, she would meet with just as much opposition as Judge Alito has. The confirmation process has simply become a no-win situation.

Another favorite pretext of the opponents of this nominee is that he is somehow biased against the mythical little guy. That he always rules against the little guy in favor of the big guy. The basis for this pretext is a litany of cases his opponents cite where Judge Alito has sided against a sympathetic plaintiff. This pretext suffers from a number of flaws.

The first flaw is a selective reading of Judge Alito's record. Judge Alito has been a judge for 15 years. He has decided plenty of cases in favor of consumers, medical malpractice victims, employment discrimination victims, and other plaintiffs. In other words, he has decided plenty of cases for the little guy. But his opponents ignore all of these cases and focus only on the cases where he has decided against a sympathetic plaintiff. Anyone who has looked at his entire record has found the claim of bias to be completely without merit, indeed, including the Washington Post. The Washington Post did an analysis of Judge Alito's entire record and found he is no more likely than the average appeals court judge to rule for businesses, for example, over individuals. And, yes, I said the Washington Post and not the Wall Street Journal.

Moreover, any notion that Judge Alito has a special bias against victims of racial discrimination is as false as it is demeaning. The people who know Judge Alito best testified at length that he applies the law in a fair and evenhanded manner without fear or favor. Indeed, perhaps most instructive is the evidence from the late Judge Leon Higginbotham. He has passed on, but his comments are part of the record.

Judge Higginbotham was something of a civil rights hero, as many people know. He was president of the Philadelphia chapter of the NAACP, was awarded the Presidential Medal of Freedom, and was appointed to the U.S. Civil Rights Commission by President Clinton. This is what he had to say about Judge Alito:

Sam Alito is my favorite judge to sit with on this court. He is a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn't have an agenda. He is not an ideologue.

Judge Higginbotham, a hero to the civil rights movement in this country, would never have made such glowing remarks if he believed for an instant that Sam Alito was guilty of some of the false charges being made against him.

More fundamentally, however, the claims that Judge Alito is biased against the little guy are based on a misconception of how judges are supposed to behave. Judges are not supposed to decide cases on sympathy. Just as we ask jurors when they come into our courtrooms all across this great country to put aside their sympathies, biases, and prejudices and decide the cases based on the evidence they hear in court and the law as given to them by the judges--and they do it, day in and day out, faithfully and to really an exceptional degree--of course, we expect judges not to decide cases on sympathy. The kind of arguments we are hearing suggest that judges ought to pick out the party they like best, the most sympathetic, and rule in their favor without regard to the facts and without regard to the law.

One would not know by listening to some of Judge Alito's opponents that he is a fairminded judge. In the America of his opponents, no plaintiff ever loses a case; no entrepreneur ever wins no matter how frivolous the claim of employment discrimination; police departments never win a case no matter how desperate the claim of a criminal defendant; Government agencies, including the Environmental Protection Agency and the Social Security Administration, could never win a case no matter how outlandish the request for Government benefits. In their utopia, the economy is wrecked by frivolous litigation, criminals run free on technicalities, and the public Treasury is plundered.

This admittedly, and thankfully, is not Judge Alito's America. He believes that no one is above the law--not the President, not the Congress, not even the little guy. That is why Lady Justice has always been blindfolded.

America is a nation of laws, not of men and women, not of little guys, not of big guys, but a nation of laws. It should not matter who you are, how you pronounce your last name, what your country of origin is, your race, or any other extraneous consideration when you enter the halls of justice. We are all guaranteed, under the words that are etched over the marble leading into the Supreme Court, ``equal justice under the law.''

Everything in his record shows that these extraneous considerations don't matter to Judge Alito. This is why people of good faith from all across the political spectrum have testified and given testimonials in support of his work as a judge and on behalf of his nomination to the Supreme Court. This is also why I believe he will be confirmed by the Senate.

Madam President, I could not be happier to throw my support behind this good man, this good judge, and this public servant.

I yield the floor.

http://thomas.loc.gov/