Statement of Senator Russ Feingold
On the Nomination of Judge Samuel Alito, Jr.
to the United States Supreme Court
January 24, 2006
Mr. Chairman, Justice O’Connor’s retirement in July touched
off a period of intense and important work in this Committee. Just over
six months later, that work seems finally to be coming to a close, at
least for now. I want to commend you for the thorough and fair process
you have overseen. The nominees have been treated fairly, and both sides
on the Committee have been treated fairly as well. I want to thank you
for that.
Supreme Court nominations truly are among the most important responsibilities
of this committee and the Senate. I have given the nominations the President
has sent to us in the past six months serious and careful consideration.
The scrutiny to be applied to a President's nominee to the Supreme
Court is the highest of any nomination. I have voted for executive branch
appointees, and even for Court of Appeals nominees, whom I would not
necessarily vote to put on the Supreme Court.
The Supreme Court, alone among our courts, has the power to revisit
and reverse its precedents, and so I believe that anyone who sits on
that Court must not have a pre-set agenda to reverse precedents with
which he or she disagrees and must recognize and appreciate the awesome
power and responsibility of the Court to do justice when other branches
of government infringe on or ignore the freedoms and rights of all citizens.
This is not a new standard Mr. Chairman. It is the same standard I
applied to the nomination of Chief Justice Roberts. In that case, after
careful consideration, I decided to vote in favor of the nomination.
In the case of Judge Samuel Alito, after the same careful consideration,
I must vote no.
Judge Alito has an impressive background and a very capable legal mind,
but I have grave concerns about how he would rule on cases involving
the application of the Bill of Rights in a time of war. Some of the
most important cases that the Supreme Court will consider in the coming
years will involve the government’s conduct of the fight against
terrorism. It is critical that we have a strong and independent Supreme
Court to evaluate these issues and to safeguard the rights and freedoms
of Americans in the face of enormous pressures.
Confronted with an executive branch that has jealously claimed every
possible authority that it can, and then some, the Supreme Court must
continue to assert its constitutional role as a critical check on executive
power. Just how “critical” that check is has been made clear
over the past few weeks, as Americans have learned that the President
thinks his executive power permits him to violate explicit criminal
statutes by spying on Americans without a court order.
With the executive and the legislature at loggerheads, we may well
need the Supreme Court to have the final word in this matter. In times
of constitutional crisis, the Supreme Court can tell the executive it
has gone too far, and require it to obey the law. Yet Judge Alito’s
record and testimony strongly suggest that he would do what he has done
for much of his 15 years on the bench: defer to the executive branch
in case after case at the expense of individual rights.
Although he has not decided cases dealing with the Bill of Rights in
wartime, he has a very long record on the bench of ruling in favor of
the government and against individuals in a variety of contexts. Indeed,
Mr. Chairman, this is an important distinction between Judge Alito and
Chief Justice Roberts. Our new Chief Justice had a very limited judicial
record before his nomination. Judge Alito has an extensive record. There
is no better evidence of what kind of Justice he will be on the Supreme
Court than his record as a Court of Appeals judge. He told us that himself.
A whole series of analyses by law professors and news organizations
has shown that Judge Alito is very deferential toward the government,
and one detailed analysis by the Washington Post concluded that he is
more deferential than his Third Circuit colleagues and even than Republican-appointed
appeals judges nationwide. This vividly demonstrates the concern I have
about this nomination. Judge Alito is not simply a conservative judge
appointed by a conservative President. His record is that of a jurist
with a clear inclination to rule in favor of the government and against
individual rights.
In particular, Judge Alito’s record in Fourth Amendment cases
shows a recurring pattern. In almost every Fourth Amendment case in
which Judge Alito wrote an opinion, he either found no constitutional
violation or argued that the violation should not prevent the illegally
obtained evidence from being used. In more than a dozen dissents in
criminal or Fourth Amendment cases, not once did Judge Alito argue for
greater protection of individual rights than the majority.
In one case that he was asked about on several occasions at his hearing,
Judge Alito, in dissent, argued that the strip search of a 10-year old
girl and her mother passed constitutional muster, even though they were
not suspected of any crime or specifically mentioned in the search warrant.
Judge Alito’s answers to questions at the hearing about this case
only reinforced concerns identified by outside scholars that he seems
to ignore the serious interests of privacy and personal dignity protected
by the Fourth Amendment and instead relies on technical readings of
warrants so that he can authorize the government action.
Cases challenging government power comprise nearly half of the current
Supreme Court’s docket. A Supreme Court Justice should protect
individual freedoms against government intrusion where justified, and,
specifically, should appreciate that the Fourth Amendment serves to
limit government power. As Yale Law School Professor Ronald Sullivan
testified:
In the United States, perhaps no right is more sacred – more
worthy of vigilant protection – than the right of each and every
individual to be free from government interference without the ‘unquestionable’
authority of the law. Judge Alito . . . shows an inadequate consideration
for the important values that underwrite these norms of individual liberty
– the very norms upon which this constitutional democracy relies
for its sustenance. . . . [T]his Senate’s decision on whether
to consent to Judge Alito’s nomination will profoundly impact
how liberty is realized in the United States.
At the hearing, I and many other Senators repeatedly asked Judge Alito
whether the President can violate a clear statutory prohibition, such
as the Foreign Intelligence Surveillance Act and the ban on torture.
He never answered the question. He returned again and again to a formulaic
response that told us nothing at all: he said that the President must
follow the Constitution and must follow the laws that are consistent
with the Constitution. Mr. Chairman, any first-year law student could
tell you that. That kind of stock phrase, which Judge Alito repeated
over and over, tells us absolutely nothing about his view of whether
the President can, consistent with the Constitution, violate a criminal
law.
Judge Alito did point to Justice Jackson’s three-part analysis
in Youngstown. That is an appropriate framework, but merely citing Youngstown
doesn’t tell you anything about how he would apply that framework.
Even when presented with the alarming hypothetical of whether a President
can authorize a murder in the United States, Judge Alito would say no
more.
These practiced and opaque responses gave me no reassurance about Judge
Alito’s views on these issues. What troubled me even more was
that he repeatedly, and in some cases gratuitously, raised issues of
justiciability and the political question doctrine – that is,
he seemed to question whether the courts can even weigh in on these
serious legal battles between the legislature and the executive. Although
he said he thought the courts could address questions involving individual
rights, Judge Alito’s instinct in discussing these historic issues
was to focus on whether the courts even had a role to play. It wasn’t
to talk about the gravity of the issues at stake for our system of government,
but to question whether he as a judge could even participate in the
resolution of such critical constitutional conflicts.
Mr. Chairman, I found that very disturbing, and it has played a significant
role in my decision to vote against him. Judge Alito’s record
and his testimony have led me to conclude that his impulse to defer
to the executive branch would make him a dangerous addition to the Supreme
Court at a time when cases involving executive overreaching in the name
of fighting terrorism are likely to be such an important part of the
Court’s work.
I am also concerned about Judge Alito’s record and testimony
on cases involving the death penalty. The Supreme Court plays a crucial
role in death penalty cases. Judge Alito participated in five death
penalty cases that resulted in split panels, and in every single one
of those he voted against the death row inmate. A Washington Post analysis
found that he ruled against defendants and for the government in death
penalty cases significantly more often than other judges. And his testimony
gave me no reason to believe that he will approach these cases any differently
as a Supreme Court Justice.
To be blunt, Mr. Chairman, I found Judge Alito’s answers to questions
about the death penalty to be chilling. He focused almost entirely on
procedures and deference to state courts, and didn’t appear to
recognize the extremely weighty constitutional and legal rights involved
in any case where a person’s life is at stake.
I was particularly troubled by his refusal to say that an individual
who went through a procedurally perfect trial, but was later proven
innocent, had a constitutional right not to be executed. The Constitution
states that no one in this country will be deprived of life without
due process of law. It is hard to even imagine how any process that
would allow the execution of someone who is known to be innocent could
satisfy that requirement of our Bill of Rights. I pressed Judge Alito
on this topic but rather than answering the question directly or acknowledging
how horrific the idea of executing an innocent person is, or even pointing
to the House v. Bell case currently pending in the Supreme Court on
a related issue, Judge Alito mechanically laid out the procedures a
person would have to follow in state and federal court to raise an innocence
claim, and the procedural barriers the person would have to surmount.
Judge Alito’s record and response suggest that he analyzes death
penalty appeals as a series of procedural hurdles that inmates must
overcome, rather than as a critical backstop to prevent grave miscarriages
of justice. The Supreme Court plays a very unique role in death penalty
cases, and Judge Alito left me with no assurance that he would be able
to review these cases without a weight on the scale in favor of the
government.
One important question that I had about Judge Alito was his view on
the role of precedent and stare decisis in our legal system. At his
hearing, while restating the doctrine of stare decisis, Judge Alito
repeatedly qualified his answers with the comment that stare decisis
is not an “inexorable command.” While this is most certainly
true, his insistence on qualifying his answers with this formulation
was troubling. Combined with a judicial record in which fellow judges
have criticized his application of precedent in several cases, Judge
Alito’s record and testimony do not give me the same comfort I
had with Chief Justice Roberts that he has the respect for and deference
to precedent that I would like to see in a Supreme Court Justice.
With respect to reproductive rights, Judge Alito said that he would
look at any case with an “open mind.” That promise, however,
is not reassuring given his prior denunciations of Roe, his legal work
to undermine Roe, and his failure to disavow the strong legal views
he had expressed in the 1980s when given the opportunity at his hearing.
In his 1985 Justice Department job application, Judge Alito wrote that
he believed that the Constitution does not protect a right to abortion,
and, as an Assistant to the Solicitor General, he wrote a memo advocating
a strategy for the Reagan Administration to chip away at Roe v. Wade,
with the ultimate goal of overturning that decision. Since he refused
to say that he changed his mind, despite numerous chances, one can only
think that he still believes what he said in 1985. And his opinions
as a Third Circuit judge raise a legitimate concern that he will, if
given the opportunity, be inclined to narrow reproductive rights.
Mr. Chairman, I want also to say a brief word about ethics. The Vanguard
case could have been disposed of fairly easily if Judge Alito had only
admitted his mistake up front. Under questioning, Judge Alito finally
admitted that there is no evidence that he followed through on his 1990
promise to the Committee to recuse himself from any cases involving
Vanguard. He also said that some of the explanations that he and his
supporters gave for his failure to recuse from the Vanguard case in
2002-- such as a “computer glitch” or the fact that his
promise to the Committee was somehow time-limited -- were not in fact
the true reasons that he failed to recuse himself from the 2002 case.
While I am not basing my vote on this matter, it continues to trouble
me. First, it is not clear to me that Judge Alito took his 1990 promise
to the Committee seriously. Second, Judge Alito failed to clear up the
inconsistent explanations before or at the outset of his hearing, even
after documents revealed that those explanations were implausible and
even though he knew that they were not the real reasons that he failed
to recuse himself in 2002.
The concept of recusal, which recognizes that from time to time the
public might reasonably believe that judges’ biases or interests
may cast doubt on the integrity of a judicial decision, is part of ensuring
due process and protecting the public’s confidence in the integrity
of our system of justice. Despite numerous other reports of Judge Alito’s
honesty and integrity, I am not satisfied that he appreciates the importance
of recusal.
His written answer to my question about how he would analyze recusal
motions related to the Third Circuit judges who testified on his behalf
raises concerns about his approach to conflicts of interest. Judge Alito
wrote that he thinks Supreme Court Justices have “less latitude
to err on the side of recusal” than other judges, because recusal
could lead to evenly divided decisions. But when Congress amended the
federal recusal law in 1974, it specifically removed any so-called “duty
to sit” in favor of a general standard requiring recusal if there
is a reasonable basis for doubting the judge’s impartiality. The
purpose of that change was to enhance public confidence in the impartiality
and fairness of the judicial system. In my view, Supreme Court Justices
should have no more latitude in interpreting ethics rules than other
judges; indeed, the recusal statute specifically applies to Supreme
Court Justices.
I would argue that treating recusal issues seriously is even more important
for Supreme Court Justices since they are solely responsible for their
recusal decisions. There is no judicial review of their decisions, no
formal procedure for the full Court review of such decisions, and, when
a Justice improperly participates, a tainted constitutional decision
cannot be undone. That is why it is so important to have Justices who
adhere to the highest ethical standards. Judge Alito repeatedly told
us that he seeks to carry out his duties in accordance with both the
letter and spirit of all applicable rules of ethics and canons of conduct.
He wrote in a letter to the Chairman “my personal practice is
to recuse myself when any possible question might arise.” Unfortunately,
his description of how he would handle recusal motions as a Supreme
Court Justice does not seem consistent with those statements.
Mr. Chairman, it gives me no pleasure or satisfaction to vote against
a nominee to the Supreme Court. If confirmed, he may well serve for
over 20 years. I would very much like to have confidence that this new
Justice, who plainly has a keen legal mind, would be the kind of impartial,
objective, and wise Justice that our nation needs. But I do not, so
I will vote No. Thank you Mr. Chairman.
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