Executive Session

EXECUTIVE SESSION -- (Senate - January 30, 2006)

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Ms. COLLINS. Mr. President, I rise today to speak in favor of the nomination of Samuel Alito to serve as Associate Justice of the Supreme Court.

The Supreme Court is entrusted with an enormous power--the power to interpret the Constitution, to say what the law is, to guard one branch against the encroachments of another, and to defend our most sacred rights and liberties.

The decision of whether to confirm a nominee to the Supreme Court is a solemn responsibility of the Senate and one that I approach with the utmost care. It is a duty that we must perform despite the fact that nominees are constrained in the information they can provide us.

Some interest groups, and even some of my colleagues, have called on nominees to promise to vote a certain way; they demand allegiance to a particular view of the law or a guarantee in the outcome of cases involving high-profile issues. These efforts are misguided.

To avoid prejudging and to ensure impartiality, a nominee should not discuss issues in areas of the law that are ``live''--where cases are likely to come before the Court. Parties before the Court have a right to expect that the Justices will approach their case with a willingness to fully and fairly consider both sides.

The cases that come before the Supreme Court each year present legal issues of tremendous complexity and import, and Justices should not be asked to speculate as to how they would vote, or make promises in order to win confirmation. Justice Ginsberg stated during her hearing that a nominee may provide ``no hints, no forecasts, no previews'' on issues likely to come before the Court. As Justice Ginsberg's statement underscores, the Justices should reach a conclusion only after extensive briefing, argument, research, and discussion with their colleagues on the Court.

We must also recognize that there are limits to our ability to anticipate the issues that will face the Court in the future. Twenty years ago, few would have expected that the Court would hear cases related to a Presidential election challenge, would try to make sense of copyright laws in an electronic age, or would face constitutional issues related to the war on terrorism.

While we cannot know with certainty how a nominee will rule on the future cases that will come before him or her, we are not without information on which to base our judgement. We must engage in a rigorous assessment of the nominee's legal qualifications, integrity, and judicial temperament, as well as the principles that will guide the nominee's decisionmaking. In fact, in Judge Alito's case, I note that we have significantly more information on which to base our judgement than with other nominees, given his long tenure as a judge on the Third Circuit Court of Appeals.

The excellence of Judge Alito's legal qualifications is beyond question. Even his fiercest critics acknowledge that he is an extraordinary jurist with an impressive knowledge of the law, a conclusion also reached by the American Bar Association, ABA.

The ABA Standing Committee on the Judiciary conducted an exhaustive review of his qualifications. During this process, the Committee contacted 2,000 individuals throughout the Nation, conducted more than 300 interviews with Federal judges, State judges, colleagues, cocounsel, and opposing counsel, and formed reading groups to review his published opinions, unpublished opinions, and other materials. Based on its review, the committee found Judge Alito's integrity, his professional competence, and his judicial temperament to be of the highest standard, and decided unanimously to rate him ``well qualified''--the highest possible rating.

When asked at his hearing what type of Justice he would be, Judge Alito directed Senators to his record as a judge on the Third Circuit. I agree this is the appropriate focus.

During his 15 years of service on the Third Circuit, Judge Alito has voted in more than 4,800 cases and has written more than 350 opinions. His record on the bench is one of steady, cautious, and disciplined decisionmaking. He is careful to limit the reach of his decisions to the particular issues and facts before him, and he avoids inflammatory or politically charged rhetoric. And despite this extensive record, there is no evidence that his decisions are results-oriented. For example, in the area of reproductive rights, I note that he has reached decisions favoring competing sides of the political debate.

After reviewing Judge Alito's dissenting opinions, Cass Sunstein, a well-known liberal law professor from the University of Chicago, reached the following conclusion: ``None of Alito's opinions is reckless or irresponsible or even especially far-reaching. His disagreement is unfailingly respectful. His dissents are lawyerly rather than bombastic. . . . Alito does not place political ideology in the forefront.''

During his hearing, the committee heard the testimony of seven judges from the U.S. Court of Appeals for the Third Circuit, the court on which Judge Alito currently serves. The panel was comprised of current and retired judges, appointed by both Democratic and Republican Presidents, and holding views ranging across the political spectrum.

Who better to know how Judge Alito thinks, reasons, and approaches the law, than those with whom he worked so closely over the past 15 years? And it is significant that these colleagues were unanimous in their praise of Judge Alito--in his legal skills, his integrity, his evenhandedness, and his dedication to precedent and the rule of law.

As Judge Becker commented, ``The Sam Alito that I have sat with for 15 years is not an ideologue. He's not a movement person. He's a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants.''

Judge Aldisert, who was appointed by President Johnson, had this to say: ``The great Cardozo taught us long ago the judge, even when he is free, is not wholly free. He is not free to innovate at

pleasure. This means that the crucial values of predictability, reliance and fundamental fairness must be honored. ..... And as his judicial record makes plain, Judge Alito has taken this teaching to heart.''

Judge Lewis, a committed human rights and civil rights activist who described himself as ``openly and unapologetic pro-choice,'' said: ``I cannot recall one instance during conference or during any other experience that I had with Judge Alito ..... when he exhibited anything remotely resembling an ideological bent. ..... If I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today.''

Judge Alito's colleagues provided compelling testimony of his deep and abiding commitment to the rule of law, the limited role of a judge, and the obligation to decide the case based on the facts and the record before him. They also testified that Judge Alito's decisions have been constrained by established legal rules and specifically by a respect for the rules of precedent. The weight of their testimony is substantial--they know far more about Judge Alito's judicial philosophy than we could hope to learn in a few days of public hearings.

A nominee's judicial philosophy matters to me. When I met with Judge Alito, I specifically asked him about his views on the importance of precedent and stare decisis--the principle that courts should adhere to the law set forth in previously decided cases.

During both our meeting and his hearing, Judge Alito evidenced a strong commitment to the principle of stare decisis. Judge Alito acknowledged the importance of this principle to reliance, stability, and settled expectations in the law.

At his hearing, Judge Alito, referring to the landmark Roe v. Wade decision, testified as follows: ``[I]t is a precedent that is protected, entitled to respect under the doctrine of stare decisis. .....''

Similarly, Chief Justice Roberts, who was confirmed with a strong bipartisan support, made a nearly identical statement at his hearing. He said that Roe is ``a precedent of the court, entitled to respect under the principles of stare decisis.''

After a careful comparison of these statements and others, I find that on substance, there is little that distinguishes the two nominees' statements on this issue. Both nominees clearly acknowledged the importance of precedent, the value of stare decisis, and the factors involved in analyzing whether a prior holding should be revisited. Both agreed that the Constitution protects the right to privacy, and that the analysis of future cases involving reproductive rights begins not with Roe but with the Casey decision, which reaffirmed Roe's central holding. And both testified that when a case has been reaffirmed multiple times, as Roe has, this increases its precedential value.

Despite the strong testimony of both Chief Justice Roberts and Judge Alito, the reality is that no one can know for certain how a Justice will rule in the future. History has shown us that many predictions about how other Justices would decide cases have proven wrong.

At her hearing in 1981, Justice O'Connor vigorously defended her belief that abortion was wrong and stated that she found it ``offensive'' and ``repugnant.'' Justice Souter once filed a brief as a State attorney general opposing the use of public funds to finance what was referred to in the brief as the ``killing of unborn children.'' Justice Kennedy once denounced the Roe decision as the ``Dred Scott of our time.''

Yet, in 1992, all three of these Justices joined together to write the joint opinion in Casey reaffirming Roe based on the ``precedential force'' of its central holding.

Based on my review of his past decisions, I doubt that I will agree with every decision Judge Alito reaches on the Court, just as I do not agree with all of his previous decisions. I anticipate, however, that his legal analysis will be sound, and that his decisionmaking will be limited by the principle of stare decisis and the particulars of the case before him.

Judge Alito has demonstrated his fitness for this appointment with his clear dedication to the rule of law. After an exhaustive review process, the ABA has given him its highest possible rating. His colleagues on the Third Circuit, both Republican and Democrat appointees alike, have been unqualified in their praise of his nomination.

Based on the record before me, I believe that Judge Alito will be a Justice who will exercise his judicial duties guided not by personal views, but based on what the facts, the law, and the Constitution command.

For these reasons, I will vote to confirm Judge Alito. I hope and expect that he will prove his critics wrong and that his record on the Supreme Court will show the same deference to precedent, respect for the limited role of a judge, and freedom from ideologically driven decisionmaking that he has demonstrated during his tenure on the Third Circuit.

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