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John Kerry on His Opposition to Judge Alito’s Nomination to the Supreme Court

by Pamela Leavey

For everyone who missed the pain of watching the full day’s proceedings on the Alito nomination in the Senate… The Democratic Daily has got the full John Kerry coverage here!

Below are Senator John Kerry’s full, prepared remarks on the floor of the Senate today on the upcoming vote on Judge Samuel Alito to serve a Justice on the United States Supreme Court:

“Mr. President. Today, we face perhaps one of the most important choices we will make as Senators. A choice that will affect the direction of our country for the next several decades. President Bush has nominated Judge Samuel Alito to replace Justice Sandra Day O’Connor on the United States Supreme Court. He has nominated a man who consistently defers to the government action regardless of how egregious it may be; a man who erects rather than breaks down barriers in the area of civil rights, a man who, to this day, has never retreated from his declaration that the Constitution does not protect a woman’s right to privacy, a man who has demonstrated a persistent insensitivity to the history of racial discrimination in this country and, was even, at the government’s request, willing to ignore overwhelming evidence that African Americans were intentionally stricken from an all-white jury in a black defendant’s capital case.

“And who will this nominee replace? He has been nominated to fill the seat of the Court’s swing vote—a woman who has upheld affirmative action programs, a woman who upheld the right to choose, a woman who upheld state employees’ rights to the protections of the Family Medical Leave Act, a woman who recognizes that a declaration of war is not a ‘blank check’ for the President’s actions. A woman who decides each case narrowly on the facts presented, keenly aware of the greater impact her decisions have.

“We are being asked to confirm a nominee who will shift the ideological balance of the Court dramatically to the right. We are being asked to confirm a nominee whose views will undermine the balance of power that I believe keeps our country strong. For these and other compelling reasons, I oppose this nomination.

“In the past, I, like many of my colleagues, have voted for federal court nominees despite the fact that I disagreed with them ideologically. In fact, I voted for Justice Scalia because, despite our ideological differences, in the confirmation process he promised an open-mindedness that we have not witnessed. So the words of the confirmation hearings do not erase ideology. And that ideology cannot be overlooked because a Justice’s decisions can—and will—have a profound impact on the rights we otherwise take for granted.

“Something more is needed. A Supreme Court Justice needs to understand and respect our constitutional rights and liberties. He or she needs to recognize the importance of precedent and the limited situations in which overruling it is acceptable. He or she needs to appreciate the significant struggles that our nation has endured—in the context of racial, sexual, and disability discrimination—and be aware of the road still to be traveled.

“In short, Mr. President, ideology does matter. The Supreme Court’s ideologically-driven decisions have been the most regrettable in our nation’s history—decisions like Korematsu, Dredd Scott, and Plessy v. Ferguson.

“In fact, ideology matters more in this nomination than perhaps it would in any others. We are replacing Justice Sandra Day O’Connor, President Reagan’s nominee to the United States Supreme Court, and its current center. She is the fulcrum upon which most constitutional rights and liberties are balanced. And, as we contemplate ripping that fulcrum out from underneath the Court, we have to understand what the impact of that action will be.

“Given how high the stakes are, our decision cannot be based on whether Judge Alito is a smart man; whether he is a nice man; whether he is an accomplished man; or even whether he is well-respected in legal circles. He is all these things. But, what we must consider is the impact a Justice Alito will have on the Court and whether that is good for our country, our Constitution, and the American people. I firmly believe the answer is no.

“President Bush had the opportunity to nominate someone who would unite the country in a time of extreme divisiveness. He chose not to do this, and that is his right. But that he didn’t and how this nomination happened tells us a great deal about this presidency and how politics is driving this process.

“Under fire from his conservative base for nominating Harriet Miers—a woman whose judicial philosophy they mercilessly attacked—President Bush broke to extreme right-wing demands. This was a coup. Miers was removed and Alito was installed. The President did not consult with members of the Senate, as is required by the Constitution. He gave no thought to what the American people really wanted—or needed.

“Instead, he made this nomination about his political base. He made it about an ideological shift in the Court. He made it about unassailable conservative credentials and an unimpeachable conservative judicial philosophy.

“If you need proof, just look at the response of Ann Coulter. Ms. Coulter is as inflammatory and as conservative as anyone in the country. She makes her living through character assassination. She denounced the nomination of John Roberts. She attacked the nomination of Harriet Miers, calling her completely unqualified and lamenting that President Bush had ‘thrown away a Supreme Court seat.’ Yet she celebrated the nomination of Samuel Alito, stating that Bush gave Democrats ‘a right-hook’ with this ‘stunningly qualified’ nominee. This from a woman who said that Republicans need to nominate a person who ‘wake[s] up every morning . . . chortling about how much his latest opinion will tick off the left.’

“Failed Supreme Court nominee Robert Bork had a similar reaction. He denounced Miers’ nomination as ‘taking the heart out of a rising generation’ of conservative constitutional scholars and ‘widen[ing] the fissures within the conservative movement.’ Yet he praised Alito’s nomination as ‘substantially narrowing’ that rift. In fact he called the nomination something to ‘rejoice’ because, if Alito were confirmed, it would only take ‘one more justice of the Roberts-Scalia-Thomas-Alito stripe to return the Court to’ so-called ‘jurisprudential respectability.’

“And let’s not forget conservative stalwart Pat Buchanan, who denounced the Miers nomination as revealing the President’s lack of desire ‘to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the Court in the image of Scalia and Thomas.’ Apparently Buchanan believes that the Alito nomination demonstrates the President’s change of heart. He heralded the nomination as one that would unite and rally the base.

“They say you can tell a lot by a person’s friends. These three individuals are consistently on the furthest edge of the ideological spectrum. Their positions rarely advance the interests of average Americans.

“Perhaps it should come as no surprise that conservatives have jumped to support Judge Alito. After reviewing more than 400 of Judge Alito’s opinions, law professors at Yale Law School concluded that:

‘In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age and disability claimants. . . Judge Alito seems relatively willing to defer to the claims of employers and the government, over those advancing civil rights claims.’

“Similarly, a Knight-Ridder review of Judge Alito’s opinions concluded that Judge Alito ‘has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation’s laws’ and that he ‘seldom-sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business.’

“After reviewing 221 of Judge Alito’s opinions in divided cases, the Washington Post concluded that Judge Alito is ‘clearly tough-minded . . . having very little sympathy for those asserting rights against the government.’

“The pattern here is clear—and it’s unacceptable. We cannot put someone on the Court who makes access to justice harder and more illusive. We cannot put someone on the Court who will fail to serve as an effective check on excessive executive power.

“Mr. President, if this pattern is not enough to show how truly dangerous Judge Alito is, then take a look at some of his opinions.

“In Sheridan v. E.I. Dupont De Nemours and Co., Judge Alito wrote a lone dissent—opposed by all of the other judges on his court—eight of whom were Republicans— which would have made it more difficult for victims of discrimination to sue their employers. Applying a similarly high standard of proof—one the majority believed would eviscerate the protections of Title VII—Judge Alito dissented from a decision to allow a racial discrimination claim to go to trial in Bray v. Marriott Hotels.

“What is the practical impact of these decisions? They keep victims of discrimination from having their day in court.

“It is not as if Judge Alito’s insensitivity toward victims of discrimination are evidenced only in his judicial opinions. In 1985 job application to President Reagan’s Justice Department, Alito wrote that his interest in Constitutional law was driven, in part, by a disagreement with Warren Court decisions on reapportionment—decisions which established the principle of ‘one person, one vote.’ And he said that he was ‘particularly proud’ of his work to end affirmative action programs.

“Judge Alito’s hostility to individual rights is not limited to civil rights. He consistently excuses government intrusions into personal privacy—regardless of how egregious or excessive they are. In Doe v. Groody, for example, he dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a 10-year old was ‘reasonable.’ He also thought the government should not be held accountable for shooting an un-armed boy trying to escape with a stolen purse, nor for forcibly evicting farmers from their land in a civil bankruptcy proceeding without any show of resistance.

“This pattern of deference to government power is reinforced by a speech he gave as a sitting judge to the Federalist Society just five years ago.

“In his speech, Judge Alito ‘preach[ed] the gospel’ of the Reagan Administration’s Justice Department: the theory of a unitary executive. Though in the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch but rather addressed the question of who controls the executive branch, don’t be fooled. The unitary executive theory has everything to do with the scope of executive power.

“In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ‘[t]he practical consequence of this theory is dramatic: it renders unconstitutional independent agencies and counsels.’ This means that Congress would lose the power to protect public safety by creating agencies like the Consumer Product Safety Commission—which ensures the safety of products on the marketplace—and the Securities and Exchange Commission—which protects Americans from corporations like Enron—and the President would gain it.

“Carried to its logical end, the theory goes much further than invalidating independent agencies. The Bush Administration has used it to justify both its illegal domestic spying program and its ability to torture detainees. The Administration seems to view this theory as a blank check for executive overreaching.

“Judge Alito’s endorsement of the unitary executive theory is not my only cause for concern. In 1986, while working in the Justice Department, Judge Alito endorsed the idea that presidential ‘signing statements’ could be used to influence judicial interpretation of legislation. His premise was that the President’s understanding of legislation was as important as Congress’ in determining legislative intent—startling when you consider that Congress is the legislative branch.

“President Bush has taken the practice of issuing signing statements to a new level. Most recently, he used a signing statement to reserve the right to ignore the ban on torture that the Congress overwhelmingly passed. He also used signing statement to attempt to apply the law restricting habeas corpus review of enemy combatants retroactively—despite our understanding in Congress that it would not affect cases pending before the Supreme Court at the time of passage.

“The implications of President Bush’s signing statements are astounding: his Administration is reserving the right to ignore those laws it does not like. Only one thing can hold the President accountable: the Supreme Court. I am not convinced that will happen if Judge Alito is confirmed.

“Reigning in excessive government power matters more today than ever before as we work to find the balance between protecting our rights and our safety. As Justice O’Connor said, the war on terror is not a blank slate for government action. We can—and must—fight it in a manner consistent with the Constitution.

“Last, but certainly not least, I have grave concerns about Judge Alito’s ability and willingness to protect a woman’s right to choose. In his 1985 job application, Judge Alito wrote that he was ‘particularly proud’ of his work arguing before the Supreme Court that ‘the Constitution does not protect a right to an abortion.’ That same year, he wrote a memo outlining a strategy for chipping away at Roe v. Wade, an approach he believed would be more successful than asking for outright reversal.

“In his hearings, Judge Alito said that these statements were accurate reflections of his views in 1985, but what is more disturbing is what he refused to say. He refused to say that his views had changed. He refused to say that he accepted Roe v. Wade as settled law. In other words, he refused to give any assurances that his concept of the Constitution’s protected liberty is consistent with that of mainstream America.

“Now, I realize that Judge Alito has promised that he will keep an ‘open mind’ when approaching the cases that come before him. I, however, am not reassured. We have heard these kinds of empty platitudes before. Justice Thomas repeatedly told the Judiciary Committee that he would keep an open mind on the issue of abortion, but as we all know, once safely on the Supreme Court, Justice Thomas voted to overturn Roe v. Wade just months later, writing a dissent in Casey that likened abortion to polygamy, sodomy, incest and suicide. Given Justice Thomas’s success, you can almost image Karl Rove whispering to Judge Alito: ‘Just say you have an open mind. Works every time.’

“We simply cannot rely on promises that nominees make to the Judiciary Committee—particularly when the nominee’s entire professional history suggests something different and particularly when past promises that the nominee has made have been essentially meaningless.

“In his 1990 Judiciary Committee hearings, Judge Alito promised that he would recuse himself in any cases involving the Vanguard companies given his ownership of Vanguard mutual funds. In his Supreme Court hearings, Judge Alito admitted that he could not remember ever putting Vanguard on his permanent recusal list. We know for a fact that it did not appear on his 1993, 94, 95 or 96 lists. How do we know that he kept his word to the Judiciary Committee? We don’t. How can we trust he will keep his word now? We can’t.

“Mr. President, I am deeply concerned about the future of the Supreme Court. I am deeply concerned about maintaining the integrity of our Constitutional rights and liberties. I fear that the disadvantaged in our society will be locked out of our system of justice. I fear that the President’s powers will grow beyond what the Framers intended them to be. And, I fear that Congress’s hands will be tied and we will be unable to do the work of the American people.

“I cannot and I will not vote to confirm a nominee who will dramatically shift the Court’s ideological balance to the right. Judge Alito had the burden of proving—not just to me but to the American people—that he would not be that kind of justice. He failed to carry that burden. I believe that a Court with Judge Alito sitting on it will be a Court that moves our country backwards. I cannot support his nomination, and I hope that none of my colleagues will either.”

Click here to download the video (QT – slow download).

4 Responses to “John Kerry on His Opposition to Judge Alito’s Nomination to the Supreme Court”

  1. Loved it, made it’s points. He looked preoccupied, but probably from trying to get more out of this anyone able.

    Funny, over at Kos, not fans of Hillary, liked her delivery, so now they like her. Didn’t like Kerry’s tie, and Senatorial presentation, which was called for. Wanted more fire than serious, like every time he’s in front of the camera it’s This Week.

    A little fickle?

    I hope they can make a drama of this on Fridy, or something the media has to report, factually.

  2. Marjorie

    I thought Hill was very good actually. Everyone that I watched was. I have not been to Kos, will check it out. Whining at DU about filibuster.

  3. Everyone is whioning about not going for the filibuster, even at DCP.

    What made the Gang of 14 G-d? Just there to avoid all filibuster. Letting everyone off the hook.

  4. Kerry should filibuster by reading Conyers’ Constitution in Crisis report into the record, all 273 pages (and fourteen documented federal crimes by Bush admn) of it.

    Let them regret ever bringing Alito to the Senate.