Executive Session

EXECUTIVE SESSION -- (Senate - January 31, 2006)

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Mr. SCHUMER. Mr. President, in a few minutes, we will vote on the nomination of Judge Samuel Alito to the Supreme Court. In a few hours, we will hear the President tell us about his view of the state of the Union. Without doubt, Judge Alito today has the votes to win confirmation. Without doubt, the President tonight will boast of his nominee's victory in this vote. But I must say that I wish the President were in a position to do more than claim partisan victory tonight. The Union would be better and stronger and more unified if we were confirming a different nominee--a nominee who would have united us more than divided us. Had he chosen such a person, the President could have taken the lectern this evening and rightfully claimed the mantle of leadership in the United States of America. Instead, this is not a day of triumph for anybody except the conservative minority who caused the President to capitulate to their demands when Harriet Miers was not to their liking. There will be more votes against this nominee than on any since Clarence Thomas, who was hardly a unifying figure.

Tonight, when the President announces, to applause, the fact of Judge Alito's confirmation, what he should really hear, because of the partisan nature of his choice, is the sound of one hand clapping. While some may rejoice at Judge Alito's success, millions of Americans will come to know that the lasting legacy of this day will be ever more power for the President and less autonomy for the individual.

While some may exalt at the packing of the Court with yet another reliable, extreme voice in the mold of Scalia and Thomas, millions of Americans will be at risk of losing their day in court when they suffer the yoke of discrimination. Some may celebrate the elevation of a Judge Alito to the Supreme Court, but millions of Americans will suffer the consequences of a jurisprudence that would strip Congress of the power to make their lives better in countless ways.

Why, then, with so many Americans at risk, so many rights at jeopardy, will Judge Alito win confirmation? What

does his confirmation mean for the future of the Supreme Court? I have been thinking about this long and hard. It is an important question, and I don't have an easy answer, but I believe several things are clear.

For one thing, even though Judge Alito has demonstrated a record of being well out of the mainstream on a host of issues, my friends from across the aisle dutifully march in rigid lockstep when the President nominates one of their choosing but oppose those who do not share their values and visions. Republican Senators should be aghast at Judge Alito's endorsement of vast Executive power, and they should be alarmed at his rejection of a woman's right to choose.

The hill will be steeper when a nominee evades, as Judge Alito did, answering questions about his core judicial beliefs. All evidence points to the fact that he will still hold his constitutional view that the right to choose is not protected in the Constitution, that he will still believe the Federal Government doesn't have the power to regulate machine guns, and the evidence supported the conclusion that he will turn back the clock on civil rights. But he was clever enough not to say so directly. So that, too, has been a factor.

In the end, there is one more thing at work here. The American people have grown accustomed to the umbrella of protection they have under the Constitution. They are loathe to believe that those rights could, with one nominee, evaporate into thin air. Who can believe it? Who wants to believe it? Even though no nominee since Robert Bork has such a clear record of being opposed to so many things the American people hold dear, the public doesn't want to believe that Judge Alito will remove those protections, even when the record is clear. Who wants to believe that after 40 years, a single nominee to the Supreme Court could eviscerate title VII? Yet that is just what his colleagues on the Third Circuit accused him of attempting to do. Who wants to believe that a single nominee, one so seemingly soft-spoken and erudite, would, with the stroke of a pen, take average Americans' rights away and not give them their day in court?

People naturally don't want to believe the worst. Perhaps people think of Earl Warren and David Souter, who defied their President and did not stroke as hard a line as their benefactors might have hoped. But I say to the American people, the days of Warren and Souter are over. The days of stealth nominees whose views may not match the President are over. That is clear when a small minority pushed the President to withdraw Harriet Miers.

In the coming months and years, we will be watching the Court. We will be watching the votes. We will be watching our two newest Justices. And make no mistake, we will make sure the American people understand the implication of these votes today. Elections do have consequences. But votes such as these also have consequences on future elections, and I believe that when the American people see the actual Court decisions which are rendered by the new Court, they will have a strong and countervailing reaction.

Again, I wish President Bush could tonight claim to lead a united country, but with this nominee and with this vote, sadly, he cannot.

I yield the remainder of my time to the Senator from Alabama.

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