Durbin Statement
Here is an advanced text of the opening statement by Sen. Richard J. Durbin (D-Ill.)
Judge Alito, I welcome you and your family to the Judiciary Committee.
First, I would like to thank Chairman Specter for waiting until the new year to hold this hearing. Holding this hearing earlier would not have given us enough time to review Judge Alito's record as thoroughly as the Constitution requires and the American people deserve.
Why has this nomination risen to the level of historic importance? The Supreme Court has handed down 193 decisions over the past ten years that were decided by a 5-4 vote. Justice O'Connor was the fifth and deciding vote in 148 of these 193 cases. Time and again the vacancy you seek to fill was the most important vote on the Court for civil rights, human rights, women's rights, workers' rights, and restraining an overreaching President.
Justice O'Connor, the Justice whom you would replace if confirmed, was the fifth and decisive vote to safeguard Americans' right to privacy; the fifth vote to require our courtrooms to be accessible to the disabled; the fifth vote to allow the federal government to pass laws that protect the environment; the fifth vote to preserve the right of universities to use affirmative action; the fifth vote to ban the execution of children in America. And Justice O'Connor was the fifth vote to uphold the time-honored principle of separation of church and state.
Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. The person who fills the O'Connor vacancy will truly tip the balance of the scales of justice in America. For that reason, Judge Alito, your nomination is one of the most important Supreme Court nominations in a generation. Yesterday the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. The burden of proof is yours, Judge Alito - the burden of demonstrating to the American people and this Committee that you are worthy to serve on the highest court of the land and worthy to succeed Justice Sandra Day O'Connor.
My friend, Illinois Senator Paul Simon, once said the test for a Supreme Court nominee is not where he stands on any one specific issue. The real test is this: will you use your power to restrict freedom or expand it.
I believe that is the right test, because the Supreme Court is the last refuge of our rights and liberties.
In my lifetime, the Supreme Court has integrated our public schools, allowed people of different races to marry, and established the principle that our government should respect the values and the privacy of American families. These decisions are the legacy of justices who chose to expand American freedom. If you are confirmed, Judge Alito, will you continue their legacy?
Privacy Rights
One of our most cherished rights is the right to privacy. Just 40 years ago, married couples in many states could be convicted of a crime, fined, and sent to prison for using the most common forms of birth control. But in 1965, the Supreme Court struck down these laws in Griswold v. Connecticut.
You can search every sentence of the Constitution and never find the word "privacy." Yet the Supreme Court said in the Griswold case that the concept of privacy was inseparable from our rights and liberties as Americans. Thanks to the Supreme Court, we have the right to make the most intimate personal decisions about our lives in private, without government interference.
But the right to privacy is far from settled law in the minds of many. Today, 40 years after Griswold, we see new efforts to restrict the right to privacy. We saw it last year in the sad debate over the Terri Schiavo tragedy - a debate which led some Republican leaders in Congress to threaten judges with impeachment if they refused to overrule this family's painful decision. We see it in attempts to impose gag rules on doctors and make it harder for women to obtain information related to family planning. And we see it today in the determination by some to allow the government to tap our phones and invade our medical records, credit information, library records, and the most sensitive personal information about our lives.
Justice O'Connor was often the critical fifth vote to protect our right of privacy. Judge Alito, too often your record on the bench suggests you might be the critical fifth vote to limit our right to privacy.
You were the only judge on your court who ruled to authorize a strip search of a 10-year-old girl. You were the only judge on your court who voted to diminish the right to privacy in the case Planned Parenthood v. Casey, an approach that was rejected by the Supreme Court as a flawed reading of the Constitution. And as a government lawyer, you wrote that you personally believed very strongly that "the Constitution does not protect a right to an abortion" and you laid out a strategy for overruling Roe v. Wade.
Like many, I have carefully considered my own views regarding abortion rights over the years, weighing the law, the impact of my personal feelings on the real lives of people, and listening carefully to the tragic life experiences of many women. I came to believe over the years that a woman should be able to make this agonizing, highly personal decision with her doctor, her family, and her conscience, and that the government's power to make her decision a crime should be limited.
That was my journey on this difficult issue. Have your views on privacy rights and reproductive freedom changed over the years, Judge Alito? You will have a chance to tell us at these hearings.
Commander-in-Chief Power
The issue of personal privacy also has critical implications in the reach of Executive power.
Throughout our nation's history, during times of war, presidents have tried to restrict the constitutional rights of innocent Americans in the name of security. We were reminded of this recently when we learned that President Bush has secretly authorized the National Security Agency to eavesdrop on hundreds of Americans without the court approval required by law.
During times of war, the Supreme Court is the last guardian of our constitutional rights. The Court has usually been up to the task, but at times it has failed. That's why it's crucial to ensure that nominees have the courage to say "no" to this President, or any President who violates the Constitution.
Judge Alito, your record raises troubling questions about whether you appreciate the checks and balances in our Constitution - the careful efforts of our Founding Fathers to protect us from a government or a President determined to seize too much power over our lives.
As a government lawyer, you pushed a policy of legislative construction designed to make congressional intent secondary to presidential intent. You wrote that "the President will get in the last word on questions of interpretation."
In speeches to the Federalist Society, you have identified yourself as a strong proponent of the so-called "unitary executive" theory. You even criticized the Supreme Court, and specifically Chief Justice Rehnquist, for failing to follow this theory. According to this marginal legal credo, you argued the Constitution grants the President extraordinary powers, including the power to disregard laws passed by Congress.
This is not some abstract legal debate. The Bush Administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism - policies that I believe threaten American values.
Under this "unitary executive" theory, the Bush Administration has claimed the right to seize American citizens in the United States and to imprison them indefinitely without charge. They have claimed the right to engage in torture, even though American law makes torture a crime.
Less than two weeks ago, the White House claimed the right to set aside
the McCain torture amendment, which Congress passed overwhelmingly in
December. What was the White House's rationale? They claimed they had
the power under the "unitary executive" theory.
The Supreme Court has rejected some of the Bush Administration's
overzealous anti-terrorism policies. In the Hamdi case, Justice
O'Connor wrote for the plurality and said: "A state of war is not a
blank check for the President when it comes to the rights of the
Nation's citizens."
If you are confirmed, Judge Alito, who will inspire your thinking if this President, or any President, threatens our fundamental constitutional rights - the Federalist Society or Justice O'Connor?
Civil Rights
Judge Alito, two months ago, Rosa Parks laid in honor in the Capitol Rotunda - a fitting tribute to the mother of our modern civil rights movement.
Mrs. Parks' legacy is well known to most Americans. Less well known is the critical role played by a Republican-appointed federal judge in Alabama who struck down the bus segregation law that Rosa Parks challenged. The same judge later issued an order that permitted Martin Luther King, Jr. and others to march from Selma to Montgomery, a march that gave rise to the critically important Voting Rights Act of 1965. The judge's name was Frank Johnson.
For these and other courageous decisions, Judge Johnson was denounced as a "judicial activist" and threatened with impeachment. The Ku Klux Klan called him "the most hated man in America." Wooden crosses were burned on his lawn, and he received so many death threats that he and his family were under constant federal protection for 15 years.
Judge Johnson paid a heavy price for his courage in acting to expand freedom and civil rights in America.
Judge Alito, when we met in my office, you told me a story about how your father, as a college student, was almost expelled for standing up to the college president who decided that the school basketball team should not use its African-American players against an all-white opponent, for fear of offending them.
I admire your father's courage. But just as we do not hold the son responsible for the sins of the father, neither can we credit the son for the courage of the father.
As a Supreme Court Justice, would you have the courage to expand freedom when it comes to civil rights and human rights? Many of the most important civil rights and women's rights groups in America oppose your nomination because they believe you would not.
You will have a chance to address their concerns during your hearing. You will have a chance to explain whether you still believe, as you once wrote, that the Supreme Court was wrong to establish equal voting rights for all Americans in its "one person, one vote" cases.
You will have a chance to explain why you once highlighted your membership in an organization that was formed specifically to challenge the admission of women and minorities at Princeton University.
And you will have a chance to explain why, as a judge, you have sided so often against plaintiffs in civil rights cases. A recent Washington Post study of your record reveals that you have voted against discrimination claimants more often than other Republican-appointed judges, and far more often than the national average. Every American who stood in silent tribute to Rosa Parks hopes you will speak out clearly for civil rights that define our unity as a nation.
Other Areas of Concern
Another study reveals that you have been the most frequent dissenter among the 21 judges with whom have served on the 3rd Circuit court. In the vast majority of your dissents, you have taken positions far to the right of your colleagues, many of whom are conservative Republican appointees.
You once issued a controversial dissent in which you said Congress has no power to pass a law banning the possession of machine guns. In another case, you struck down parts of the federal Family Medical Leave Act, a law that allows people to take up to three months off from work to deal with an illness or that of a family member. Thankfully, the Supreme Court overruled you. Your opinions in these cases were good news to the right-wing movement in this country that wants to strip Congress of many of its powers and diminish the rights and remedies available to the American people.
Your 15-year history on the bench also reflects a consistent practice of ruling against immigrants, the criminally accused, and those who defend America's traditional separation of church and state. And you have consistently ruled for big business and special interests, and against consumers and workers.
For a person who is justifiably proud of his family's struggle against the odds to succeed in America, time and again you have used your power on the bench to leave other struggling families at the back of the line.
In one of your dissents, you would have allowed a Pennsylvania coal mine to ignore worker safety and health requirements with impunity. Last week's tragedy at the Sago Mine reminds us why your dissent was so misguided.
Your decisions, and your nomination, have been applauded in the same extreme right-wing circles that actively opposed the nomination of Harriet Miers because she was not viewed as a true believer. What do these same extremists find in your record that is so comforting?
Conclusion
Judge Alito, millions of Americans are very concerned about your nomination. They are worried that you would be a judicial activist who would restrict our rights and freedoms. During your hearing, you will have a chance to respond to these concerns, and make your case.
More than any recent nominee, your speeches, your writings, and your judicial opinions make it clear that you have the burden to prove to the American people that you would not come to the Supreme Court with any political agenda. Clear and candid answers to the questions we ask are critical to the outcome of this hearing.
I sincerely hope you can convince the United States Senate and the American people that you will be a "fifth vote" on the Supreme Court that the American people can trust to protect our most important freedoms and preserve our time-honored values.
By Fred Barbash |
January 9, 2006; 11:52 AM ET
| Category:
Confirmation Hearings
Previous: Schumer Opening Statement |
Next: Alito Hearing Begins
Posted by: Phyllis Smith | January 9, 2006 12:26 PM
Alito is a seasoned and thoughtful Justice. Just because he does not always agree with yours or my layman's views of freedom doesn't mean he is not qualified. He should be appointed unless he flubs the confirmation hearing. Abortion (pro or con) should never be the only criteria we use in this country to detemine suitability for office. There are many other pressing issues as well. Should be interesting.
Posted by: P Rettig CFP | January 9, 2006 12:40 PM
Phyllis you are a goof. Judge Alito is one man who has stood for states rights, personal liberties, and smaller federal power. How can this be a vote against freedom? Liberal democrat appointments to the Supreme Court have ROUTINELY ruled against civil liberties, most recently in the eminent domain case. Try reading more and depending less on MTV, John Stewart and the mainstream media.
Posted by: Jeff Miller | January 9, 2006 12:41 PM
"Abortion (pro or con) should never be the only criteria we use in this country to detemine suitability for office."
Perhaps this would be true in an ideal world. But, in this real world, in the 21st century, it offends me that the GOP still seems to think it is OK to poke its nose in between women and doctors faced with intensely personal decisions. But then, the GOP also seem to think it is OK to wiretap Quakers, environmentalists, and Catholic relief workers without a search warrant, no doubt because of their obvious A Qaeda ties. Yea, right!
Posted by: Tom Barta | January 9, 2006 12:52 PM
It has always amazed me that those who profess so strongly in democracy are so afraid to place the abortion issue before the states and a vote. As long as an issue is in their interests they want the Supreme Court to have autonomous rule. This is not democracy. Let the judge's rule on the law we determine as Americans, and let us have a vote in the law. Otherwise, we live by fiat. And, how is that any difference than a dictatorship. Instead of the "womens right to choose" tired arguement, let the American people choose. What are you affraid of?
Posted by: J Davidson | January 9, 2006 12:53 PM
With a record like this why is this man even being considered ?
We have sent our young men and women to Iraq to protect the rights of the people there and we are proposing to approve someone whose ideas are meant to limit the rights of the American people.
WHY ???
Posted by: J.Metcalf | January 9, 2006 12:55 PM
With a record like this why is this man even being considered ?
We have sent our young men and women to Iraq to protect the rights of the people there and we are proposing to approve someone whose ideas are meant to limit the rights of the American people.
WHY ???
Posted by: J.Metcalf | January 9, 2006 12:56 PM
"It has always amazed me that those who profess so strongly in democracy are so afraid to place the abortion issue before the states and a vote."
You are right; we should vote. I think a constitutional amendment protecting abortion would be an excellent idea and would certainly pass, if our Congress reflected the feelings of the American people instead of reflecting the preferences of their biggest donors, the Ralph Reeds and Abramoffs.
Posted by: Tom B. | January 9, 2006 12:58 PM
Phyllis - I applaude and second your statement. Anyone who is not disturbed by this man's prolific and public history of ultra-right conservative views, could care less about the larger picture of who we all are as a collective nation. Jeff probably loves the liars that are 'protecting' him so blindly that he can't remember his basic history lessons about why we fought the British for independence in the first place.
Posted by: Teresa | January 9, 2006 12:58 PM
Bear in mind Durbin is a Dem and will put the Democratic spin on things. Alito has recommendations from the bar and many other non-political and politically impartial organizations. He's a good man with excellent credentials. Don't let Democratic-Republican tensions get in way of a judicial nomination.
Posted by: anon | January 9, 2006 12:58 PM
Jeff, you are a good. Did you even read the article? Don't go throwing around your key words like "MTV" and "mainstream media" just to generalize and devalue other peoples' opinions. If you read this article, then you should understand exactly why Phyllis said what she said.
Posted by: Matt Meyer | January 9, 2006 12:59 PM
There are hundreds of smart, qulified MODERATE judges. We deserve better than an ideologue like Alito. An EMPTY seat would be better than this guy.
Posted by: Tom Barta | January 9, 2006 01:00 PM
"With a record like this why is this man even being considered ?"
Don't take everything that "Dick" Durbin says at face value. He is a spinmeister, just like the majority of other politicians. It's real easy to take a soundbite and make it say what you want it to. Let's wait and see what the real meat of this story is going to be.
Posted by: D. Pro | January 9, 2006 01:03 PM
Senator Durbin is a pompous jerk. He assumes that Judge Alito has to convince all the American people. Senator Durbin doesn't speak for me. Judge Alito has already convinced me that he will be a fantastic Supreme Court Justice. In all the cases that Senator Durbin mentions, Judge Alito did follow the Constitution. I'm sure there will be more "liberal" lies.
Posted by: Frank Funicella | January 9, 2006 01:04 PM
Wow !!
Posted by: John Tate | January 9, 2006 01:07 PM
Wow !!
Posted by: John Tate | January 9, 2006 01:08 PM
what a self serving bunch of liberal propaganda. There is nothing of real substance here, it is all straight from the liberal book of plays.
Posted by: wolfie | January 9, 2006 01:08 PM
P Rettig: Did you read the article? Abortion is far from the only critieria being used. Civil rights, racial prejudice, workers rights, workers safety, consumer protections, and priviacy rights are cited just in this brief statement. I think your citing of abortion actually applies to many of these seeking his confirmation, not objecting to it. He is against womens reproductive rights, and those who want to restrict those rights want him in only because of that. Having Alito on the supreme court will impact so many lives so negatively, I can't see how he can be truly supported, unless it's by one issue fanatics, like pro-lifers.
Posted by: Jonathan | January 9, 2006 01:10 PM
Judge Alito shall be confirmed.
And it will be a proud day for Americans everywhere to see a justice confirmed who will fight the neo-pink agenda and culture of death which Hollywood has spewed across this great nation. No longer shall the hypocrites of the left have a free hand to encourage our daughters to kill their babies, our sons to marry our neighbors sons. No longer shall foreign muslim terrorists find aid and protection from the left which falsely claims they are somehow entitled to the rights, priviledges and protections earned through the hard fought battles of our sons on battlefields around the world. No longer shall the godless left have a friend hand to drive this nations God fearing people into hiding.
Hallejuh! Alito shall be confirmed!
Posted by: John Smith | January 9, 2006 01:11 PM
Lets see.. Phyllis post, thoughful, informed, concerned
Next post; one-trick, single-issue, didn't see ANYTHING in Pyhyllis's statement but baby-killing
Next post; tipical ditto-head.loves Orilley.starts with an insult..no education or creativity OR information. Blames everyting on LIBERALS civil-liberties.. Wonder where he will be when his home is searched, phone tapped by an Imperial El Presidente, in the new US Theocracy..
Afraid that's a little to obscure for Jeff..
Posted by: Steve Millard | January 9, 2006 01:14 PM
It is certainly true that Alito is against all human rights, except for those of the wealthy elite, and it is also true that he should not be confirmed.
However, the issue of greater importance is not reproductive rights or even human rights. The real reason that Bush wants someone like Alito confirmed is because he knows that he, along with Justice Roberts will work towards increasing the powers of the executive branch and turning this government into the neocon dictatorship that the Bush people desire.
Posted by: Jay Wright | January 9, 2006 01:17 PM
You got that right wolfie! Turd Durbin and more spew from the left wing playbook.
--
Chorizo jihad!
Posted by: temp | January 9, 2006 01:20 PM
Notice that all the LBERAL posts are honest and well thought out, conseider the issues and comment..
The conservatives spout the-party-line, add nothing new, and do nothing but berated anyone that dissagrees with them..
Not much intellegence there.
Posted by: Steve Millard | January 9, 2006 01:20 PM
Mm, "you are a goof." That's a convincing argument.
Posted by: Patrick Nielsen Hayden | January 9, 2006 01:21 PM
I hope that I will forget the name of this man soon. Meaning the right-wing circle try but did not make it. This man is as scary as John Roberts, no difference, they have no respect for people like Rosa Park and everything she means for this country. They have no respect for any time of sensitive issues such as civil rights, universal human rights, discrimination issues, and so on. Aren't we in crazy times? A few weeks ago the Supreme Court decided that a US Citizen has the right to appoint an attorney in a criminal case. that means that a lower court decided something and then some of the party appeal and then some of the party appeal again and then the Supreme Court decided...If we need the Supreme Court to make basic and elemantal decision like that...we are in a very very difficult time in history. another outrageous example of what we are dealing with...this administration is making us believe that a warrantless spy on people is ok. Who derogate the Bill of Rights? If some right wing president did, Please let me know.
Posted by: Ale | January 9, 2006 01:21 PM
I love how many the conservative bloggers criticize democrats by accusing them of exactly what they are doing themselves. Calling Senator Durbin a "spinmeister" and spouting words like "liberal" as if it meant disgusting. People know what their rights are, or should, and those who claim the constitution does not allow for those rights usually want the country to adhere to fundamentalist values which they believe supercede the constitution. Don't be suckered by their proof. It is always circular logic in which key variable are excluded. Stand up for your rights! Americans deserve better than Sam Alito.
Posted by: Jonathan | January 9, 2006 01:23 PM
By the way, the LIBERAL's don't HAVE a play-book..that's our biggest problem, like hearding cats.
The conservatives, now there is a lock-step party machine.. just like the communists and Nazis.. (best to study some history before screaming at me for that one)
Posted by: Steve Millard | January 9, 2006 01:25 PM
And another thing.. What's up with Alito bringing his WHOLE FAMILY to the hearing..?? That's a new one.. guess he thought he was going to a Klan Meeting or a Revival.! :)
Posted by: Steve Millard | January 9, 2006 01:28 PM
What happened to the Liberals' claim that they would leave the country if Bush was re-elected? What's holding you guys up? Are you waiting for Alito to confirmed first?
Canada and France await you! lol
Steve: Care to explain exactly what the problem is with the guy taking his family to his confirmation hearing?
Posted by: Tom Spille | January 9, 2006 01:40 PM
Jonathan,
Since when is "life, liberty, and the pursuit of happiness" being a fanatic. I suggest you go study the Constitution because apparently you don't know it at all. Should we give a "fetus" that opportunity or is it just a mass of tissue to be discarded like leftover meat?
You probably would like to do away with the right to bear arms. You want somebody else to suffer for your lack of responsibility (abortion), and to come and defend you if you are in danger. Don't worry Jonathan ther are still some of us who will do that.
Posted by: | January 9, 2006 01:43 PM
John Smith - from the flavor of your ugly rant, I can only assume you are a white male who thinks the 'act' of judgemental frothing at the mouth of fundamental (and by the way tired) 'christian' ideals without having any concept of Christ, is as good as the real thing. I hope that in the true spirit of your role model, you will adopt a crack baby that has been born and thrown into a dumpster to die once Alito gives all you nut jobs what you want. That's as close as you'll ever get to your idea of godliness.
Posted by: Teresa | January 9, 2006 01:50 PM
"What happened to the Liberals' claim that they would leave the country if Bush was re-elected? What's holding you guys up?"
Well, gee, last time I checked CIA thugs were pulling private citizens OFF THE STREET in Germany and shipping them to secret torture camps. I'm not sure France would be safe enough. Off course, they DO have excellent wine and cheese, national healthcare, generous vacations, public transit, long lunch breaks, and, I think, even a free press. Oh, and they don't think "global warming" is a communist plot. Maybe I SHOULD emigrate.
Posted by: TomB | January 9, 2006 01:54 PM
Justice Sandra Day O'Connor the most important vote on the Court for civil rights, human rights, women's rights, workers' rights, and restraining an overreaching President. As I read above in some commentaries abortion is not the only issue of citizens rights but among others is one of them! And it is the American people's existing rights that are the issue that the current President has long forgotten!
Posted by: J.Kell | January 9, 2006 02:03 PM
Dear Mr. Steve Millard,
I do know my history. So read this and go study history again. You don't know your head from your @#$.
Pro Abortion-Nazis, Communists
Pro Socialized Medicine-Nazis, Communists
Pro Disarming citizens- Nazis, Communists
Anti Religious-Nazis, Communists
Pro government ownership or control of business-Nazis, Communists.
Steve, I think you "liberals" are in "good" company.
Posted by: Frank Funicella | January 9, 2006 02:15 PM
Not that it's relevant to Alito, but both Hitler and Stalin outlawed abortion. The assertion otherwise is one of many falsehoods and irrelevant attacks that have been coursing through here from both left and right.
Posted by: MHK919 | January 9, 2006 02:41 PM
" You probably would like to do away with the right to bear arms."
Funny how so many GOP apologists seem to thin the 2nd amendment applies to individual. It does not; it applies to "militias", that is, the army. At least, that is how the text reads. Any additional interpretation involves "judicial activism", IMHO.
Posted by: TomB | January 9, 2006 02:47 PM
Its interesting that Mr Durbin admits that you will never find the word "privacy" in the Constitution and yet applauds the activist court that "found" the concept there. This is judicial activism support at its finest. According to him, then, any reading or interpretation of the constitution even to the extent of adding words or statements is all right UNLESS those words or statements disagree with his personal agenda. In his conclusion he wrongfully assumes ALL judges are judicial activists and is simply against those who legislate in ways he does not like. This is the height of legislative snobbery and lack of understanding!! Is he just dumb?
Posted by: PaulM | January 9, 2006 04:01 PM
While some will spout hatred and anger over a man they know little about other than what was told to them by someone who doesn't like him, others will watch and listen and learn something through these hearings about this person they know nothing about. I'd be shocked if some of you who are so convinced Alito will rape you of all your rights can name even one case he has presided over in the third circuit. Or can name one case in which he wasn't representing the administration as a lawyer.
Furthermore, to prove that each side of this issue has an agenda in what information or viewpoints they convey, let's take, for instance, Kennedy (I believe it was him) who announced with a scowl that Alito had never once found for a plaintiff's individual rights as a worker. As it turns out another Senator had to correct the record with four cases he knew of right off the top of his head where he did, in fact, find for the worker's rights.
As someone who wants to watch and see how Alito handles himself and what he has to say, I would recommend to others to keep an open mind and stop acting like judge, jury and executioner.
Posted by: Oyster | January 9, 2006 04:49 PM
The comments to this entry are closed.
I certainly hope that this man will not be confirmed. He is clearly in opposition of womens rights, workers rights, our right to privacy, and even our right to freedom from being spyed on by our own government because we hold opposing political beliefs.. A vote for this man is a vote against freedom and against the Constitution