Mr. President, I rise today to discuss how I will vote on the nomination of Judge Samuel Alito, Jr. to the U.S. Supreme Court.
After meeting with Judge Alito, studying his record, and comparing his answers to my criteria for judicial nominees, I have decided to vote against confirming Judge Samuel Alito, Jr. as an Associate Justice of the United States Supreme Court.
The next justice will have the power to change the Court, change the country, and change our rights for generations. Judge Alito has a very troubling record. In his hearing and in our private meeting, he did not show he will be an independent judge who will uphold the rights and liberties of all Americans. With our rights and freedoms on the line, I will not take a chance on Judge Alito because I have serious questions about his independence and commitment to protecting our rights and liberties.
As with past nominees, I evaluated this nominee based on my long-standing criteria, which asks: Is the nominee qualified, ethical and honest? Will the nominee be fair, evenhanded and independent? And will the nominee uphold the rights and liberties of all Americans?
Personally, I got involved in politics because of another Supreme Court nomination – that of Clarence Thomas. At the time, I was frustrated that average Americans did not have a voice in a process that affects them so much. I’ve worked to be the voice of working families in my state. I’ve asked the questions they would ask, and I’m voting to protect their interests.
I recognize the significance of a seat on the United States Supreme Court. The Constitution directs Senators to provide advice and consent on all judicial nominees, and the people of Washington state have trusted me to be their advocate and to safeguard their rights as I vote on judicial nominees. I take that responsibility very seriously. That’s why I’ve reviewed Judge Alito’s past writings, studied his answers to the Senate Judiciary Committee, and asked to meet with him in my office.
A lifetime appointment to the Supreme Court is a tremendous grant of unchecked power. If the Supreme Court rules incorrectly, there is no option for appeal. There is no backstop. Any seat on the Supreme Court can affect our rights for generations. But there are three factors involved in this particular nomination that make it even more significant. Those factors are the times, the seat, and the process.
The Times
First, I am well aware that we are living in historic times. Each day it seems the rights of the individuals and the power of government are being tested. We are at war overseas, we face threats from terrorism at home, and the current Administration is pushing the bounds of governmental power in remarkable ways. The Bush Administration has arrested U.S. citizens and held them without access to the courts. It has run secret prisons around the world. It has expressed views on torture that put our own troops at risk. And, as we recently learned, the Administration has been spying on American citizens without prior approval from a court.
These are grave issues which will likely come before the Supreme Court. How the Court rules will affect the rights of citizens, the balance of power between the branches of our government, and the balance of power between citizens and our government. So as I make my decision on this nominee, I am mindful of the historic times we are living in and the serious questions the Supreme Court will address in the coming years.
The Seat
Second, I am very mindful of the seat that is open on the Supreme Court and its significance.
Justice Sandra Day O’Connor was a pioneer in the field of law and justice, and her decisions will shape the lives of the American people for generations to come. As I said when she announced her resignation, we live in a better America due to her 24 years of service on the Court. Justice O’Connor was often a swing vote on critical decisions. Her successor could easily change the balance of power on the Court, which could dramatically shift the Court’s rulings on so many issues. Because this is a swing seat that could tip the Court’s balance of power, we need to make sure that the person we confirm is someone who will protect our rights and liberties.
Some have suggested that I should just “go along” and support the President’s nominee. That is not the way I make decisions. I have criteria that I use to evaluate all judicial nominees, and Judge Alito is no different.
The Process
Third, I am also well aware of how Judge Alito came to be the President’s nominee. The President had nominated his counsel, Harriet Miers, to the high court, but Ms. Miers was not acceptable to the right wing of the President’s party. I found it very interesting that before her nomination, Republicans were demanding an “up or down” vote on the Senate floor for anyone the President nominated. But when President Bush nominated Ms. Miers, suddenly we stopped hearing the urgent call for an “up or down” vote. In fact, Ms. Miers’ nomination was killed by the President’s own party, apparently because she did not meet the ideological test of the extreme right.
I recount this history not to diminish Judge Alito, but to point out that his nomination comes before the Senate in the context of an ideological battle created by the right wing. When the President nominated Judge Alito, the right wing cheered, confident that he will vote their way. That reaction gives me pause as to whether this nominee can keep an open mind on the issues that come before him. If the right wing is so confident he will vote their way, how can we be confident that he will put the country’s needs first? That alone does not suggest that Judge Alito cannot be fair, but it did lead me to explore those questions diligently.
Given the importance of the Supreme Court and the background of the times, the seat and the process, I began to evaluate how Judge Alito measured up to my standards for judicial nominees.
Judge Alito’s record contains some disturbing statements, rulings and pronouncements that require detailed explanations. Does he still hold some of those views? In many cases, we don’t know. I wish Judge Alito had been more forthcoming during his hearing. At the same time, many of the things he said – and refused to say – spoke volumes.
My Criteria for Judicial Nominees
As I noted earlier, my standards are: Is the nominee qualified, ethical and honest? Will the nominee be fair, evenhanded and independent? And will the nominee uphold the rights and liberties of all Americans?
I am comfortable that Judge Alito is qualified, honest and ethical. Whether he will be fair and evenhanded is another question. As was discussed at his hearing, he has a troubling record of voting for the government and corporations and against individuals. He seems to favor the entrenched power over the little guy. His record does not give me the confidence that everyone who comes before the Court will be treated fairly.
I am also deeply concerned about Judge Alito’s independence. We rely on our courts as a critical check and balance against government abuse. That independent check helps to protect our rights. This is especially important today because of the growing questions about the expansion of executive power. The Supreme Court will need to evaluate whether recent executive actions are constitutional. Here, Judge Alito’s unbalanced, minority view of the scope of executive power tells me he does not have the independence to be an adequate check on government abuse of our rights.
Finally, I have serious doubts that Judge Alito will uphold our rights and liberties. One example is his hostility to the right to privacy. In the hearings, he refused to say that Roe v. Wade is “settled law,” and he did not adequately explain his 1985 statement that the “Constitution does not protect a right to an abortion.”
Last year, when I voted to confirm Chief Justice John Roberts, I said I was choosing hope instead of fear, and that Judge Roberts, through his answers, inspired such hope. Judge Alito – through his writings, rulings and non-answers – does not inspire confidence in me that he will protect all our rights. Because so much is on the line and because I do not believe he will be sufficiently independent or will uphold our rights and liberties, I will respectfully vote against his confirmation to the Supreme Court.
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