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2006-01-10

Abortion, Executive Power to Play Central Role in Senators’ Questioning of Alito at Supreme Court Confirmation Hearing

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We play excerpts of the confirmation hearings for Supreme Court nominee Samuel Alito who President Bush has tapped to replace Sandra Day O’Connor. During their opening statements, the 18 Senators on the Judiciary Committee repeatedly said Alito’s views on abortion and executive power will play a central role in their questioning which will begin today. For his part Alito used his opening statement to paint himself not as a judicial radical but as a judge with no agenda. [includes rush transcript]

We look at the confirmation hearings for Supreme Court nominee Samuel Alito who President Bush has tapped to replace Sandra Day O’Connor.

During their opening statements, the 18 Senators on the Judiciary Committee repeatedly said Alito’s views on abortion and executive power will play a central role in their questioning which will begin today.

Alito has already come under intense criticism from some quarters. In a new 155-page report, the People for the American Way has warned "If [Alito] replaces Justice O’Connor, he would be a consistent vote to turn back the clock on decades of progress in civil rights, civil liberties, health and safety, environmental protection and liberty." The watchdog group goes on to warn "His extreme judicial philosophy threatens fundamental rights and legal protections for all Americans–for decades to come."

For his part Alito used his opening statement to paint himself not as a judicial radical but as a judge with no agenda. In his 12-minute address he spent more time discussing his family’s working class New Jersey background than on his own judicial philosophy.

  • Samuel Alito, Senate confirmation hearing for Supreme Court, Day One.

Before Alito spoke each Senator on the committee spoke for 10 minutes on his nomination. This is Ted Kennedy of Massachusetts.

  • Sen. Ted Kennedy (D–MA), Senate confirmation hearing for Supreme Court nominee Samuel Alito, Day One.

Several Senators said Alito’s view on abortion will be a central focus of today’s questioning. Democrats repeatedly referred to a 1985 job application in which Alito admitted that he personally believes "that the Constitution does not protect a right to an abortion."

  • Sen. Tom Coburn (R–OK), Senate confirmation hearing for Supreme Court nominee Samuel Alito, Day One.

Today, Senators will begin at least two days of questioning of Alito. On Monday, Democratic Senator Charles Schumer of New York outlined several questions he expects Alito to answer.

  • Sen. Chuck Schumer (D–NY), Senate confirmation hearing for Supreme Court nominee Samuel Alito, Day One.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: For his part, Alito used his opening statement to paint himself not as a judicial radical, but as a judge with no agenda. In his 12-minute address, he spent more time discussing his family’s working class New Jersey background than on his own judicial philosophy. This is a part of what Judge Samuel Alito had to say.

JUDGE SAMUEL ALITO: And after I graduated from high school, I went a full 12 miles down the road, but really to a different world, when I entered Princeton University. A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton, but by the time I graduated from high school, things had changed. And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s.

It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn’t help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.

I’m here in part because of my experiences as a lawyer. I had the good fortune to begin my legal career as a law clerk for a judge who really epitomized open-mindedness and fairness. He read the record in detail in every single case that came before me; he insisted on scrupulously following precedents, both the precedents of the Supreme Court and the decisions of his own court, the 3rd Circuit. He taught all of his law clerks that every case has to be decided on an individual basis. And he really didn’t have much use for any grand theories.

After my clerkship finished, I worked for more than a decade as an attorney in the Department of Justice. And I can still remember the day, as an assistant U.S. attorney, when I stood up in court for the first time, and I proudly said, "My name is Samuel Alito, and I represent the United States in this court." It was a great honor for me to have the United States as my client during all of those years.

I have been shaped by the experiences of the people who are closest to me, by the things I’ve learned from Martha, by my hopes and my concerns for my children, Philip and Laura, by the experiences of members of my family, who are getting older, by my sister’s experiences as a trial lawyer in a profession that has traditionally been dominated by men.

And, of course, I have been shaped for the last 15 years by my experiences as a judge of the court of appeals. During that time, I have sat on thousands of cases — somebody mentioned the exact figure this morning; I don’t know what the exact figure is, but it is way up in the thousands — and I have written hundreds of opinions.

And the members of this committee and the members of their staff, who have had the job of reviewing all of those opinions, really have my sympathy. I think that may have constituted cruel and unusual punishment.

I’ve learned a lot during my years on the 3rd Circuit, particularly, I think, about the way in which a judge should go about the work of judging. I’ve learned by doing, by sitting on all of these cases. And I think I’ve also learned from the examples of some really remarkable colleagues.

When I became a judge, I stopped being a practicing attorney. And that was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case, and a judge certainly doesn’t have a client.

The judge’s only obligation — and it’s a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires. Good judges develop certain habits of mind. One of those habits of mind is the habit of delaying reaching conclusions until everything has been considered. Good judges are always open to the possibility of changing their minds, based on the next brief that they read or the next argument that’s made by an attorney who’s appearing before them or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case.

It’s been a great honor for me to spend my career in public service. It has been a particular honor for me to serve on the court of appeals for these past 15 years, because it has given me the opportunity to use whatever talent I have to serve my country by upholding the rule of law. And there is nothing that is more important for our republic than the rule of law. No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.

Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible, and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich and that I would carry out my duties under the Constitution and the laws of the United States. And that is what I have tried to do to the very best of my ability for the past 15 years. And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court.

AMY GOODMAN: Judge Samuel Alito on the first day of his Supreme Court confirmation hearing. When we come back from break, we’ll hear from some of the senators of the Senate Judiciary Committee.

[break]

AMY GOODMAN: We return to the Senate confirmation hearings of Supreme Court nominee, Samuel Alito. Each senator on the committee spoke for ten minutes on his nomination. This is Ted Kennedy of Massachusetts.

SEN. TED KENNEDY: I find Judge Alito’s support for an all-powerful executive branch to be genuinely troubling. Under the President’s spying program, there are no checks and balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the President vows to continue spying on American citizens. Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.

I’m gravely concerned by Judge Alito’s clear record of support for vast presidential authority unchecked by the other two branches of government. In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans. And in his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening.

In fact, it is extraordinary that each of the three individuals this president has nominated for the Supreme Court — Chief Justice Roberts, Harriet Miers, and now Judge Alito — has served not only as a lawyer for the executive branch, but has defended the most expansive view of presidential authority. Perhaps that is why this president nominated them. But as Justice O’Connor stated, even a state of war is not a blank check for a president to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch and a protector of our liberties, not a cheerleader for an imperial presidency.

There are other areas of concern. In an era when too many Americans are losing their jobs or working for less, trying to make ends meet, in close cases, Judge Alito has ruled the vast majority of the time against the claims of the individual citizens. He has acted instead in favor of government, large corporations and other powerful interests. In a study by the well respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84% of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too divided by race and riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job; in 15 years on the bench, not one. And when I look at that record, in light of the 1985 job application to the Reagan Justice Department, it’s even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities. It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions. It expresses outright hostility to the basic principle of "one person, one vote," affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.

AMY GOODMAN: Massachusetts senator, Ted Kennedy, speaking yesterday at the opening of the Senate Judiciary Committee confirmation hearings for Supreme Court nominee, Samuel Alito. Several senators said Alito’s view on abortion will be a central focus of today’s questioning. Democrats repeatedly referred to a 1985 job application, in which Alito admitted he personally believes, quote, that "The Constitution does not protect the right to an abortion." This is Republican senator, Tom Coburn of Oklahoma.

SEN. TOM COBURN: But the fact is is you can’t claim in this Senate hearing to care for those that are underprivileged, to those that are at risk, to those that are vulnerable, to those that are weak, to those that are suffering, and at the same time say, 'I don't care about those who have been ripped from the wombs of women and the complications that have come about throughout that.’

So the debate for the American public is and the real debate here is about Roe. The real debate — don’t let it — we’re going to go off in all sorts of directions, but the decisions that are going to be made on votes on the committee and the votes on the floor is going to be about Roe. Whether or not we, as a society, have decided that this is an ethical process that we have this convenient process that if we want to rationalize one moral choice with another, we just do it through abortion. This taking of the life — of life — of an unborn child.

AMY GOODMAN: Republican senator, Tom Coburn of Oklahoma, speaking at Monday’s Samuel Alito hearings. Today, senators will begin at least two days of questioning of Alito. Monday, Democratic senator, Charles Schumer of New York, outlined several questions he expects Alito to answer.

SEN. CHARLES SCHUMER: We need to know when a president goes too far, will you be a check on his power or will you issue him a blank check to exercise whatever power alone he thinks appropriate? Right now, that is an open question, given your state of views.

Similarly, on the issue of federalism, you seem to have taken an extreme view, substituting your own judgment for that of the legislature. Certainly in one important case, you wrote in Rybar v. U.S., that Congress exceeded its power by prohibiting the possession of fully automatic machine guns. Do you still hold these cramped views of congressional power? Will you 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?

And, of course, you’ve made statements expressing your view that the, quote, "Constitution does not protect the right to an abortion," unquote. In fact, you said in 1985 that you personally believe very strongly this is true. You also spoke, while in the Justice Department, of, quote, "the opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade." It should not be surprising that these statements will bring a searching inquiry, as many of my colleagues have already suggested.

So we’ll ask you: Do you still personally believe very strongly that the constitution does not protect a right to an abortion? We will ask: Do you view elevation to the Supreme Court, where you’ll no longer be bound by high court precedent, as the long sought opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade, as you stated in 1985? Judge Alito, I sincerely hope you’ll answer our questions. Most of the familiar arguments for ducking direct questions no longer apply and certainly don’t apply in your case.

AMY GOODMAN: New York Democratic senator, Charles Schumer, on day one of the Alito confirmation hearings.

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