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United States Senate 1200 -1300
SENATE FLOOR DEBATE: The Senate meets to continue debate on the Nomination of Samuel Alito to be the next Justice of the US Supreme Court. 11:59:17.5 the president pro tempore: the senate will come to order. the senate will be led in prayer by the chaplain of the senate, dr. barry black. the chaplain: let us pray. almighty god, the center of our joy. prepare our spirits, clarify our minds, and stir our hearts for 11:59:38.2 your movements among us. help us to feel your presence in our opportunities to touch hurting lives. may your whispers prompt us to 11:59:53.1 deliver captives and bring healing to the bruised. abide in the hearts and minds of our senators. guide them with your counsel that they may not stumble in 12:00:07.7 darkness. may their hands touch your hand and find the leading that illuminates the road to peace. bless our families and our homes. 12:00:23.1 protect our loved ones from the perils of these uncertain times. we commit ourselves today to the one who came to give us salvation. we pray in his holy name. amen. 12:00:46.8 the president pro tempore: please join me in reciting the pledge of allegiance to our flag. i pledge allegiance to the flag of the united states of america. and to the republic for which it stands, one nation, under god, indivisible, with liberty and 12:01:00.2 justice for all. under the previous order, the leadership time is reserved. 12:01:18.5 under the previous order, the senate will proceed into executive session and resume consideration of calendar number 490, which the clerk will report. the clerk: supreme court of the united states. samuel a. alito jr. of new jersey to be an associate 12:01:33.7 justice. the president pro tempore: the acting majority leader is recognized. mr. sessions: mr. president, today the senate will continue to debate the nomination of samuel alito to the supreme court. yesterday the majority leader, senator bill frist, was forced 12:01:49.0 to file a cloture motion to stop a filibuster from senators on the other side of the aisle. that cloture vote will occur at 4:30 p.m. on monday. it is our expectation that cloture will be invoked and that 12:02:05.6 the senate will then proceed to a vote, a final up-or-down vote on the confirmation of judge alito on tuesday at 11:00 a.m. mr. president, i have some remarks i'd like to make on the alito nomination, but before i do, i would note the absence of 12:02:24.5 a quorum. the president pro tempore: the clerk will call the roll. quorum call: 12:02:40.7 mr. sessions: mr. president? 12:03:12.0 the president pro tempore: the acting leader. mr. sessions: i would ask that the quorum call be dispensed with. the president pro tempore: without objection, so ordered. mr. sessions: mr. president, it is very distressing and disappointing that we're now looking at a filibuster of a nomination on samuel alito to be a member of the united states 12:03:27.4 supreme court. he has served as a federal appellate judge outside of washington, d.c., not being involved in any of the political issues that are here, for 15 years. and during that time has assembled on incredibly strong 12:03:45.1 group of admirers who have testified on his behalf to a degree that almost exceeds anything i've had the pleasure 12:03:53.7 to see as a member of the senate judiciary committee where we've had hearings on this matter. the american bar association interviewed 300 of his colleagues, lawyers who have litigated against him, lawyers 12:04:07.4 who have worked with him, judges who have heard him practice before them, and his colleagues on the bench. the african-american member of that a.b.a. team who represented the university of michigan in defending their admissions policy that some call a quota 12:04:25.2 policy, that individual said -- quote -- "he was held in incredibly high regard." in fact, i'm not aware that anyone interviewed said anything bad about this nominee. he was the top of his class at 12:04:40.7 princeton, top of his class at yale law school where he served on the "law review," argued 12 cases before the u.s. supreme court. there are not a handful of lawyers in this country that have argued a single case before the supreme court, much less 12. 12:04:58.1 then he was united states attorney, prosecuting criminal cases for the united states of america in new jersey, he prosecuted mafia groups and drug dealers and people like that. and then had spent 15 years on the bench, demonstrating day 12:05:16.6 after day the judgment, the intellectual integrity and honesty it takes to be an outstanding judge. he is a remarkable nominee. his father was an immigrant from italy, grew up in new jersey, had the great honor to be one of 12:05:32.3 those sons of immigrants who got to go to the great university of princeton. he just in every way represents the best there is in american law. and more than that, mr. president, he understands what a 12:05:49.4 judge's role is. and he has expressed this in so many good ways. without notes, he talked to us in that committee from his heart. and he summed up time and again, after question after question 12:06:04.3 his view that a judge has a responsibility to decide that case that's before them. not to set grand policy for america, but there are litigants there and somebody got a 12:06:19.1 complaint, and they complained that the law or the constitution has not been properly followed. and they ask for relief. and the judge decides based on the facts first where a judge must, with intellectual honesty, find out what the facts are. then after the facts are 12:06:36.2 determined apply the established law to that fact situation and render a decision without regard to any personal, political views, whether he's a republican or a democrat, a liberal or a conservative. without regard to any personal, social, religious or other views 12:06:54.3 he may have. then he renders that opinion. and as he said, he learned as a judge that you should delay making up your mind. it's a habit of mind that a judge learns. so, he hears those facts. 12:07:10.2 he thinks about those facts and considers those facts and makes up his mind only after the full matter has been brought before him and it reaches its full, ripe point to make a decision. 12:07:24.0 i thought that was a very insightful and wise comment that he made. so we had a unanimous highest possible rating from the american bar association. and as i read last night, mr. president, one can easily see the tremendous admiration, 12:07:47.0 respect that his colleagues on the third circuit court of appeals has for him. they were so impressive in the committee. several of these judges were senior judges. many of them -- most of them had 12:07:59.8 served the full 15 years with him on the bench. they have known him, they've seen him in private conferences. they said he's a man of intellectual honesty. he is a man who is fair and biased. he never raised his voice, never proselytized for his view. 12:08:17.5 but was a man with incredible analytical ability to get to the heart of a matter and make a just decision. what more could you ask for on the bench? many of these judges were democratic appointees. the third circuit is not a conservative circuit. 12:08:33.2 it's probably one of our more liberal circuits. it sits in philadelphia. and to say this man is extreme, outside the mainstream, unworthy of serving ofpbt supreme court is in itself an extreme 12:08:49.7 statement. it's not justified. 12:08:52.4 the president promised simply in this last election, every stop he made he repeated it. "i want a judge who will show restraint, who will follow the law, not make law, who does not see it in their bailiwick to reset the social policy of 12:09:10.0 america." and we've been seeing that time and time again. our colleagues who like what these judges are doing, our democratic colleagues apparently are not happy with that philosophy. now let me tell you, president bush and i -- and this senator 12:09:29.1 do not believe we should put a conservative activist on the bench. a judge who will utilize his opportunity on the bench to promote a conservative agenda. that's politics. that's what we do here. 12:09:42.8 that's what we're supposed to fight out in this chamber. and the american people have a right to play a role to play in it, because they can vote us out of office. but if a judge on the supreme court of the united states uses that power to interpret the 12:09:58.3 meaning of words in the constitution to undermine the plain meaning of those words, undermine the meaning that the rat fires and drafters had in mind -- ratty phiers and drafters had in mind to make it say something they want it to 12:10:14.4 say, then they are legislating, mr. president. they are in this branch. but they do and it is more dangerous than just that. because they don't just legislate like we do. if we legislate, the next congress can come in. 12:10:30.6 we can be voted out of office and they can reverse it by 51 votes out of this 100 senators. but what if a supreme court judge declares that no longer can states define marriages a union between a man and a woman. 12:10:48.2 that's no longer -- we're going to declare any association of people can call themselves a marriage. and say the constitution says it and they have a lifetime appointment? 12:11:01.3 they never have to answer to the public. they can stay on that bench as long as they desire. what recourse do the american people have to that? only a constitutional amendment. and that takes two-thirds vote of the house of representatives and the senate and three-fourths of the state legislators to 12:11:20.9 overturn it. an incredibly huge task. so it is critically important that we have judges who are not activists on the bench, that we have judges that will faithfully apply the law according to the way the constitutional drafters 12:11:37.6 and ratifers intended it and who follow faithfully the laws of the congress and who respect those laws as long as the laws passed by the congress or the states do not conflict with the constitution and show some respect to the states. 12:11:52.4 and we have had so many of these activities that have gone on by our court that show a lack of discipline. i pointed out last night how 12:12:09.2 we're at the point where one of the courts of appeals that represents 20% of the people in the united states in ninth circuit has ruled the pledge we just cited, mr. president, that says "under god" in it is unconstitutional, and the u.s. 12:12:25.5 supreme court did not reverse it. the u.s. supreme court simply said that the father who brought that case didn't have standing because he didn't have custody of the child. and now he's gone back and found somebody else, and apparently 12:12:42.7 has a plaintiff that does have standing. so i'm not sure what the supreme court's going to rule. will they next come in here with a chisel and take those words right up there on this wall, "in god we trust" or that chisel off the wall of the united states 12:12:58.6 senate? it's not so impossible a suggestion, mr. president. i know senator byrd, our presiding officer came here shortly after senator byrd, but he was here in the congress, i believe a member of the house, 12:13:14.8 when we put "under god" in the pledge. and we've ratified that again when this case first came out in the senate, that we intend that that remain the law. but the court has the ability just like that to strike it down 12:13:33.2 so that's what this issues are about. we talk about the takings case, the kilo, where they redefine the meaning of words, that the 12:13:46.9 property only be taken for public use, now they say can be 12:13:51.0 taken for public purpose. a big change. it is one thing to take your land to build a dam with or to -- or to a highway or to a public land. but to take your land to build a private shopping center, that was not what the founding 12:14:05.1 fathers had in mind. but the supreme court ruled, apparently believing that that was too restrictive. it would be better if you could take land for private purposes as long as it had a public benefit. 12:14:21.5 and they approved that. not good. regardless of what you think of the merits of that takings issue , it represented a lack of discipline, an activist trend on the court by which the judges 12:14:41.1 declared that their personal views would allow them to actually bend the plain meaning of the constitution to have it say what they wanted it to say, not what it actually did say, 12:14:54.7 not what it was meant from the beginning.n so i am disappointed that we have an objection, any objection to this fabulous nominee. president bush in his campaign promised a judge who would show 12:15:11.0 restraint, that he would be highly qualified and a man of integrity or woman of integrity, and that's what he's submitted. but now we're looking at a filibuster. i kid you not. i thought we'd settled that issue. 12:15:25.5 but now we're having a filibuster. they have put it in their news releases, democratic senators have. apparently the former presidential candidate for the democratic party in the last election, who obviously did not win, called back from davos to 12:15:43.2 say that we ought to filibuster here, count him in, he urged a filibuster. the assistant democratic leader here in the senate, senator durbin, apparently is supporting a filibuster of this nomination, and it's not right. 12:15:58.5 this is a solid, mainstream judge that was rated unanimously the highest rating the american bar association gives who has the unanimous support of his fellow judges on the third circuit, democrats and 12:16:16.2 republicans, who has an extraordinary record and resume in every respect. they want to filibuster this nomination? well, i know the people for the american way want it. i know the national abortion rights league or abortion 12:16:33.5 groups, maybe they want it. but we're senators here. we have to ask ourselves, is this where we're heading for the future? is that what we are about that we're now going to take nominees with the kind of respect that 12:16:50.1 judge alito has and subject them to a filibuster? and by the way, it really was disgusting this past election. the american people, i am convinced, strongly support the kind of judge judge alito will be. 12:17:06.0 they don't want an activist judge setting social policy in america. they absolutely understand this issue. and i would just note, i had the pleasure to follow one of our most outstanding young senators 12:17:23.9 last night, senator john thune from south dakota. he made a remarkable speech. and he concluded it -- near the end he wound up saying he campaigned on this in south dakota. 12:17:38.2 he promised to vote for this kind of judge. and i'm thinking, who did he beat? he beat the former democratic leader of the senate, the former majority leader for a short time 12:17:55.2 of the senate, senator tom daschle, who was leading filibusters to obstruct up-or-down votes on highly qualified nominees, and i submit to you, members of this body, that the people of south dakota weren't happy with that. and in large part senator thune 12:18:13.7 is here today because of the obstruction of the democrats over the last several years of highly qualified nominees who simply believe a federal judge should show restraint and follow the law. that's all we want. that's all the american people 12:18:30.8 want. that's what we have a right to expect in federal judges. and what kind of filibuster is this we're seeing? it's almost amusing. where are the senators? i was here last night. i followed three republicans i 12:18:47.7 believe talking. 12:18:49.2 we were supposed to be in session until 8:00 p.m. nobody showed up to talk. i'm not sure there are any around today to complain. they're supposed to be telling us why this man shouldn't be on the bench. so we've been here for two days, and less than 25 of the 12:19:05.3 democratic senators have come to the floor. so it's just been a pretty vacant situation here. we shut down the senate each night. nobody seems to want to come and raise the issues and debate 12:19:22.8 them. if you want to filibuster and you've got some serious concerns, i suggest you come down and express it and let's talk about it because we've been through them. my colleagues, senator specter, during the judiciary committee 12:19:39.6 hearings gave the democratic senators every opportunity they desired to raise for as long as they wanted to any issues they had with judge alito. he allowed them to call a whole host of witnesses who would be 12:19:57.3 critical. the truth is, i don't think any of them knew him. none of them knew him. and most of them had axes to grind one way or the other from some legal agenda that they had. and even that group, i don't 12:20:14.5 think but one or two actually said they were against him. lawrence tribe just raised some concerns. professor tribe, he never said he was against the nominee and he shouldn't be confirmed because he's a professor himself, and he knows the legal 12:20:30.6 expertise that judge alito brings to the court. so i'd say, if you've got something to filibuster about, come on down. why put us through this? senator john cornyn has called this effort "needless and 12:20:47.4 strange." that's a good definition of it. other words come to mind. "pointless," "political." you know, the democratic leader now, senator harry reid, went before the democratic conference 12:21:03.2 caucus, according to the "new york times," just last week and urged his colleagues to vote against this nomination. they've made it a political agenda item to block this nomination. is it presidential politics or 12:21:19.6 politics in general? i submit so. senator reid's spokesperson, when asked about it, said, well, they wanted to get as many votes as they could against him to make it an issue in the election for politics, not -- it's not a 12:21:37.4 question of whether the judge is ready, qualified and able to serve on the bench. so maybe this is some sort of theory that we can reward our base out here, the national 12:21:53.1 abortion rights league, the people for the american way, the alliance for justice, some of those left-wing groups that have been driving this process for years. maybe they ought to keep them happy. 12:22:07.1 maybe they ought to keep sending money. maybe they ought to keep attacking george bush and saying he's appointing extremists to the bench. maybe that's what they're trying to do to -- i don't know, but there's no basis to object to this nominee, and there's absolutely no justification for 12:22:24.7 denying him an up-or-down vote, which is what the filibuster attempts to do. well, i suppose we can all agree that it is an intentional filibuster because it was 12:22:42.7 apparently hatched in davos, switzerland, where senator kerry now is with those masters of the universe that are out there trying to figure our world economy out. maybe they ought to spend more time trying to get the gasoline 12:22:58.9 price down than worrying about conjuring up a filibuster of a judge as able as judge alito. well, they're not here on the floor. that's what we have every right to expect. 12:23:17.3 maybe since they're abroad, maybe they are worried about judge alito's position on foreign law. you know, we've gotten a trend 12:23:33.1 by the members of the united states supreme court and recently justice ruth bader ginsburg went to new york and made a speech in some great detail, really shocking to me where i've just recently read 12:23:50.1 the speech, in which she defended the citation and the consideration of foreign law to determine how to interpret american law. 12:24:03.5 this is contrary to our american legal system. a judge should be -- a judge's duty is to apply the plain meaning of the words. if there's some dispute about it, look to the legislative history, maybe the background of the bill, from an american's 12:24:20.5 perspective, not a european's perspective. for example, in roper vs. simmons in 2005, the case held that the execution of 12:24:36.1 individuals who were under the age of 18 at the time violates the 8th and 14th amendments, overruling a previous precedent of the supreme court, and our liberal colleagues have been very, very 12:24:52.4 strong talking about how we should stick to precedent, particularly when they want to talk about abortion, but here the liberals reversed stanford vs. kentucky. the majority of the court -- now get this -- of the supreme court 12:25:08.5 of the united states of america trying to interpret the constitution of the united states of america spent almost 20% of its legal analysis discussing the laws of britain, saudi arabia, yemen, iran, 12:25:25.3 nigeria and china. mr. president, you know, we have a lot of complaints. people are not happy with rulings of the court. many times those rulings are justified and we're just unhappy 12:25:40.9 with the result. we're just concerned about that. and so maybe not justified. but i believe the american people understand that this is a dangerous trend by the court 12:25:57.4 that they would seek to interpret american law by looking to nigeria and china, red china last i heard, yemen, where terrorists -- iran. the international community, 12:26:19.5 they're quoting them, discussing what their view of our constitution is about cruel and unusual punishment? regardless of what you feel about the merits of the case, will legislations absolutely should discuss the age at which an exconstitution should occur, 12:26:34.9 but what does the constitution say about it. that's what the supreme court is supposed to be deciding, not what they think ought to be done. and in gruder in 2003, justice ginsburg looked outside the 12:26:54.3 constitution to make her decision, noting with approval that the international convention on the elimination of all forms of racial discrimination allowed for such jim their -- disjim their practices or mate innocents of unequal or separate rights for 12:27:09.5 different racial groups. now, this is a question under our constitution which says that every american, whether they are minority or majority ancestry or 12:27:28.2 background, is entitled to equal protection of the laws. that raises some real questions about quotas and matters of that nature. so in her decision, justice ginsburg, did she look at our 12:27:44.9 constitution that guarantees every citizen, regardless of their race, equal protection of the laws, did she consider it? what did she look at? she considered the international convention on the elimination of all forms of racial discrimination. 12:28:01.0 that's not a basis for american justice to lay an opinion. and we've seen a lot of that. let me just briefly say what judge roberts said about that. "if we're relying on a 12:28:19.2 decision," this is a quote, "if we're relying on a decision from a german judge about what our constitution means, no president accountable to the people appointed that judge, and no senate accountable to the people 12:28:34.4 confirmed that judge, and yet he's playing a role in shaping a law that binds the people in this country. i think that's a concern that has to be addressed." absolutely he's correct. 12:28:49.8 he goes on to say, judge roberts in his testimony -- quote -- "in foreign law, you can find anything you want. if you don't find it in the decisions of france or italy, 12:29:03.6 well, it's in the decisions of somalia or japan or indonesia or wherever. as somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out 12:29:24.0 your friends. you can find them. they're there. and that actually expands the discretion of the judge. it allows the judge to incorporate his or her own 12:29:36.9 personal preferences, cloak them with the authority of precedent because they're finding precedent in foreign law, and use that to determine the meaning of the constitution. i think that's a misuse of precedent, not a correct use of 12:29:56.9 precedent."n i see the president would -- 12:30 would -- our presiding 12:30:14.3 officer would choose to speak at this time? i'd be glad to yield if you would like. the president pro tempore: yes, i'd be happy to accept that offer. mr. sessions: just one minute, and i would wrap up on this 12:30:27.1 issue of foreign law. i was using humor here about senator kerry offered dovo, switzerland, calling for a filibuster back here. one of the issues we had with confirmation of judges is that judges show restraint and be 12:30:42.8 faithful to our law not -- quote -- "foreign law." there is no doubt about it judges alito and roberts don't agree that we ought to be quoting foreign law to justify legal opinions in the united states. judge alito said this: "i don't think that we should look to 12:30:57.5 foreign law to interpret our own constitution." amen to that. he said this. -- quote -- "our constitution does two basic things. it sets out the structure of our government and it protects fundamental rights. the structure of our government 12:31:14.5 is unique to our country. and so i don't think that looking to decisions of supreme courts of other countries or constitutional courts in other countries is very helpful in deciding questions relating to 12:31:30.7 the structure of our government ." amen to that. he went on to say, "as for the protection of individual ghts( ), i think we should look to our own constitution and to our own precedents, our country has been the leaders in 12:31:47.4 protecting individual rights." we're going to look to china or yemen or iran on that issue? he goes on to say -- quote -- "i don't think that it's appropriate or useful to look to foreign law in interpreting the provisions of our constitution. 12:32:04.3 i think the framers would be stunned by the idea that the bill of rights is to be interpreted by taking a poll of the countries in the world." that's the kind of judge that we need on the bench. 12:32:19.3 that's the kind of judge that president bush promised to nominate. and that's the kind of judge he sent up here. he deserves confirmation. mr. president, i would note the absence of a quorum. the president pro tempore: the 12:32:36.0 clerk will call the roll. quorum call: mr. leahy: mr. president? 12:33:38.0 the presiding officer: the senator from vermont. mr. leahy: mr. president, i'd ask consent that the call of the quorum be dispensed with. the presiding officer: without objection. 12:33:47.3 mr. leahy: mr. president, i have spoken before, of course, on this nomination, and i want to emphasize some of the points i made. the constitution as we know 12:34:02.8 gives the senate essential role in the confirmation of a supreme court justice. nothing in our makeup, nothing in the history of this country assumed that the united states senate would be a rubber stamp. 12:34:22.9 it was the united states senate that turned down some nominees of george washington, the most popular president, the greatest president of this country, 12:34:34.3 because it would not be a rubber stamp. there was an overwhelmingly democratically controlled senate. the democrats had a very substantial majority at the time 12:34:49.7 of franklin roosevelt, and it was that senate that said to franklin roosevelt, "you can't pack the supreme court." so, i have said also many, many times the senate should be the 12:35:05.3 conscience of the nation. after all, we're the only 100 people in this whole country -- 95 million americans. only 100 americans get a chance to vote on a lifetime position for the supreme court, somebody who will affect our rights, our 12:35:28.1 personal rights for decades to come. now i have voted on every one of the current nine members of the u.s. supreme court. 12:35:41.4 i actually voted on some who are no longer there. i approach each one the same way. is this going to be a supreme court justice for all americans? and that's why i asked about 12:35:56.5 judge alito. he came before our senate judiciary committee are a record he's created over the last 30 years as a judge and before that as a high-ranking government official appointed to a succession of posts by a 12:36:12.0 republican president. judge alito seemed almost consistently to defer to executive power, though show a little empathy for the plain and ordinary americans. in fact, his record suggested a pattern saying what he needed to 12:36:28.6 say to get on to the next job. certainly nothing in his record, nothing in his job applications indicated he felt very strongly about checks and balances in the three branches of government. now in the course of this 12:36:45.5 nomination hearings, he sought to retreat from his own words, but even trying to retreat, he didn't. the hearing provided him with an opportunity to explain his record. it was an opportunity he chose to squander. 12:37:02.1 when the president's supporters and many of the republican senators on the committee urged him not to be forthcoming. my gracious,18 members of that committee are the only once who get to ask him questions on 12:37:16.4 behalf of all 295 million americans, and some urged him not to answer questions. he had the chance to answer some of the troubling questions that his past words and actions raised. he had the opportunity to demonstrate his replacement of 12:37:32.3 harriet miers was not what it appeared to be, the president selecting someone he knew he could count on to support government power and this expansive doctrine of the unitary executive. and some in the extreme faction 12:37:46.2 in the president's party felt assured would march with justices thomas and scalia in their culture of war. so it was an opportunity to answer the questions, an opportunity he did not take. the hearings and the whole confirmation process left us 12:38:02.6 with more questions and i believe greater concerns than we had before. i have discussed his failure to assure that he would be an effective check and balance on executive power. he failed to show me or the american people that when he recited platitudes that no one 12:38:19.2 is above the law, that he was not just telling us what he thoughted needed to get one more promotion -- thought he needed to get one more promotion. when i voted for john roberts as chief justice -- conservative 12:38:37.2 republican, nominated by a conservative republican -- i voted for i said, i looked at him and i thought george bush or 12:38:47.6 patrick leahy before him or george smith or patrick jones. we would get a fair treatment and we'd be heard on what the facts and the law would be. i don't have that same confidence with judge alito. 12:39:01.1 one question for the senate is whether judge alito takes seer kwusly -- takes seriously his promises to the senate, his obligation to avoid the appearance of impropriety seriously. he had an opportunity to talk about his numerous failures to 12:39:17.5 recuse himself through the nomination period, and he didn't accept that. you know, in 1990, mr. president, judge alito came before the senate. 12:39:31.7 i was here at that time. he was seeking confirmation to the third circuit court of appeals. he made a pledge -- actually these pledges are made under oath -- that he'd recuse himself in five categories of cases: cases involving three different 12:39:47.3 financial companies with whom he had dealings, cases in which his sister's law firm represented a party, and cases he'd overseen as united states attorney in new jersey. obviously anybody in that 12:40:02.7 circumstance who wouldn't make such a pledge would not have been confirmed. but i was disappointed to discover that despite making this explicit promise to disqualify himself in these cases, he failed to disqualify himself in at least four of the 12:40:19.7 five categories he'd sworn he'd disqualify from. in fact, he apparently failed to put several of the companies that he had promised us to -- put several of the companies on the so-called recusal list. 12:40:36.1 these are companies he said matters involving them came up before the third circuit. he would recuse himself. he did not even give their names to the clerk to make sure that happened. i don't see him in any way, and i don't suggest in any way he 12:40:52.7 got a financial benefit from this. i doubt if he did. but, again, he was making promises to get promoted to the next job. and once he got promoted, the 12:41:08.4 promises were forgotten. one case we've heard a lot about, the vanguard funds, he invested hundreds of thousands of dollars. he included in his 1990 pledge to the senate he'd recuse from 12:41:23.7 there. i find that particularly troubling not just because of his involvement, but for the various reasons he gave. shifting reasons of why he did it. first it was i didn't realize there was a case involving vanguard. 12:41:37.0 we show him the case. the word "vanguard" appears three times in it. well, the clerk should have notified we're going to a new computer system. well, the name is on there three times. 12:41:52.0 "well, i didn't benefit from it." you know, we're getting a little bit into the dog ate my homework. why not just say i screwed up? you know, vanguard was known as 12:42:12.6 a computerized list to identify conflicts so a computer glitch would not have occurred. he finally did acknowledge -- i'll give him credit for this -- that having stated for weeks and weeks and weeks that there was a 12:42:25.1 computer glitch, he acknowledged there was none. why not just say i screwed up and accept the responsibility? and i'll put into the record further in my statement the number of other shifting 12:42:43.3 concerns about that. now, in his 1985 job application, one that he said he was very careful doing, as he would, applying for a job with the reagan administration, he 12:42:59.4 put in very proudly his inclusion, his membership in the concerned alumni of princeton, c.a.p. called the conservative alumni group. 12:43:13.2 actually he only named two groups that he had been associated with, that and "the federalist" society. actually he was a member at the time of the princeton club in washington. he didn't include that. he didn't include anything else. the reason i mention this, he 12:43:30.7 knew exactly what memberships of what clubs would appeal to those in the meese justice department. some would say that's just 12:43:43.8 being, being wise. but, why emphasize membership in a group of the concerned alumni of princeton? nobody would suggest in his 12:43:58.7 hiring practices or the way he lives, that judge alito is biased against women or minorities. but the concerned alumni of princeton was opposed to 12:44:16.2 princeton allowing women or minorities, african-americans, others, into princeton. why brag -- why brag about being part of such an organization? you know, these are the people 12:44:38.7 who only a generation earlier resisted the admission of people from italian immigrant familiesn i take that rather personally. 12:44:52.0 my mother's family are italian immigrants. my relatives in italy still today are proud of their sons and daughters. my uncles and aunts in italy tell me how proud they are of 12:45:09.3 their sons and daughters that have come to america. i also think about a different era when my father as a teenager had to face signs, my irish father, saying, "no irish need apply," or "no catholics need apply." 12:45:25.4 as a result, we grew up in a family where all discrimination was wrong. why brag about even a loose affiliation with a group that practiced that kind of discrimination? because it had been in the 12:45:45.5 press, i thought i'd help the judge out. i asked him about this. i figured it would be a simple explanation. he'd make it very clear that he was opposed to them. instead he said, i don't really remember that. we alerted him ahead of time that he was going to be asked this question. 12:46:03.2 he said he didn't remember, even though it was clearly on his application. then he said, well, i think it was because of concern that rotc wasn't being allowed on the princton campus. good explanation except, of 12:46:18.7 course, at the time of this rotc was allowed on the princton campus. one of those little facts that kind of -- inconvenient facts that come in. 12:46:37.2 not inconvenient at the time he was applying for the job with edwin meese. then it was something to be proud of. now applying for the job of u.s. supreme court, it's something i don't remember why. 12:46:51.5 well, i'll give him the benefit of the doubt. i'll accept that he's not very active in the group, but then that goes all the more. why emphasize it in his job application? 12:47:16.5 especially in this administration with the meese justice department, this is the most ideological and partisan we have seen an administration 12:47:23.9 until the present time. i'm concerned he tried too hard 12:47:39.1 back then to fit in with those in power, and it makes me wonder what, when he was being screened for this job, he told when he met in that private, closed-door meeting with vice president cheney, karl rove and scooter 12:47:54.9 libby. what did he say to them? i'm especially interested in these circumstances because, as you know, mr. president, judge alito was the third person that president bush nominated for 12:48:13.9 this particular seat. the second one, harriet miers, he nominated and then got a firestorm of criticism from the republicans, not from democrats, but from republicans, from some within the republican party who 12:48:30.2 made it very clear to the president, you can't nominate her because we're not sure how she will vote. we are not sure that she will vote the way we want her to. 12:48:42.1 finally, the president, almost humiliation for him, was forced to withdraw her name. he came forth with judge alito, and those same people said, oh, he's great. we're confident. he will vote. 12:48:53.6 we're fine with him. i look at his job applications. he wrote, "it's been an honor 12:49:10.5 and personal satisfaction for me to help advance legal positions in which i personally believe very strongly. i am particularly proud of my contributions in recent cases in which the government has argued in the supreme court that racial and ethical quotas should not with allowed. 12:49:26.1 the constitution does not protect the right to an abortion." these are his words. he was eager to highlight his work in the solicitor general's office, a place where lawyers used to honor working in a 12:49:46.0 nonpartisan and professional manner. we found out a few of the things he said there, but the bush administration's regime of 12:49:58.4 secrecy has prevented the judiciary committee and, of course, the united states senate and, of course, the american people, from reviewing his work when he was there. he would not testify who what his legal view is today. he made it very clear he 12:50:15.8 continues to believe that roe v. wade was wrongly decided. he said a justice should decide a case which is a precedent. he left out the step where the 12:50:31.2 justice, knowing there is a controlling precedent, decides whether the precedent was correctly or incorrectly denied. now, if a justice believes the proceeding case was correctly decided, he has no reason to go 12:50:46.7 on to make the other calculation about weight and relines and so on. he did not do that. i mention this in one more case. much has been said about roe, but for this senator, it goes 12:51:03.1 way beyond the question of roe. it goes to the question to what extent would you allow a president to step aside from checks and balances, all his writings -- all his writings -- 12:51:19.4 indicate a president should be able to do that. he's one of the strongest proponents i've heard in my life speak of the so-called unitary executive. what does that mean if real life? 12:51:32.3 it means that this president more than all presidents in history -- all presidents in history -- have used the illegal theory to say that even though i sign a law, even though i sign into law something, i don't have to follow it because i'm the 12:51:51.5 president. only two presidents i've heard say that something is not illegal if the president does it. one was richard nixon. the other is george w. bush. he's used the illegal theory to do it 103 times. 12:52:06.6 now, that means you can sign a law saying the united states must obey our own laws, our own treaties on torture and then quietly write in a separate page and say, however, as the president i'll decide when we'll 12:52:21.7 follow that law. you know, it's a -- we're at a pivotal constitutional moment in our history with a single fundamental question: will the senate serve its constitutional role and preserve the supreme 12:52:37.5 court as a constitutional check on the expansion of presidential power? the reason presidential power issues have come to dominate this confirmation is we've clearly arrived at this crucial juncture in our nation and in our highest court over one 12:52:55.2 simple question -- is the president of the united states above the law? i feel very strongly none of us are. you, mr. president, you're not, i'm not, the president of the united states is not, the other 12:53:10.1 senators, the other 98 senators are not, judges are not. the framers knew that unchecked power leads to abuse and corruption, and the supreme court has to be the ultimate check and balance in our system. 12:53:27.2 vibrant checks and balances are instruments of protecting both the security and the liberty of the american people. this great, wonderful country of ours has existed for well over 200 years because we have that 12:53:38.8 checks and balances and because we protect the liberties of individual americans, all americans, not just those who fit into one narrow political ideology, but all americans -- all americans, all americans -- from any part of this country, 12:53:55.7 americans who express popular ideas or unpopular ideas, a free press, a free observation of religion, a free people, and in that you have to have the 12:54:09.9 supreme court as the ultimate check and balance and the independence of the court is crucial to our democracy and our way of life. the senate, as i said before, should never be allowed to become a rubber-stamp, and neither should the supreme court. 12:54:27.2 and so we owe it to the american people today, the generations of americans to come, to ask and answer several essential questions. can this president or any president order illegal spying on americans? can this president or any 12:54:45.4 president authorize torture in defiance of our criminal statutes and our international agreements? can this president or any president defy our laws and constitution to hold americans in custody indefinitely and not 12:55:01.3 allow court review? can this president or any president choose which laws he will follow and which he will not by quietly writing a side statement when he signs a bill into law? these are some of the most vital 12:55:17.5 questions of our time, and they're among the most vital questions that confront the senate in considering this nomination to our highest court. judge alito's record and his responses and his failure to adequately answer questions 12:55:31.9 about these issues are deeply troubling. regrettably, it seems that judge alito approached the question of a lifetime appointment to succeed justice sandra day o'connor on the united states supreme court as a job 12:55:48.5 application process that resembled a political campaign with two distinct parts. first he had to get the nomination, which he sought as he acted like an arch 12:56:04.9 conservative and was seen as a reliable vote for republican power. that was accomplished when he received the nomination after harriet miers. that was his primary campaign. the senate confirmation process was more the equivalent of a 12:56:20.2 general election. he appears as much in the middle of the road as possible. fortunately, what he did not do successfully was to reconcile the two roles. ly vote against this nominee -- i will vote against this 12:56:38.5 nominee. i believe the president picked him for these demonstrated legal views which are in stark, stark contrast to the image the white house and the handlers and supporters have attempted to 12:56:55.5 create. mr. president, i yield the floor, and i see the distinguished senior senator from alaska, and i appreciate his courtesy. the presiding officer: the senator yields. the senator from alaska is recognized. 12:57:12.3 mr. stevens: mr. president, i first want to comment upon the chairman of the judiciary committee, senator arlen specter. knowing the health challenges that he has faced in the past, witnessing this senator's just really strenuous schedule in the 12:57:32.9 last few months has been something to watch, to have the opportunity to witness his commitment to the senate and to his role as chairman of the 12:57:48.3 judiciary committee. and i commend him very much for his dedication to his job and to his function as chairman of the judiciary committee. he's come through some very serious medical periods in his 12:58:04.6 life, but he has distinguished himself in recent months, i think, and really demonstrated his total commitment to the work of the senate. i do honor him for the job he's done in conducting these 12:58:19.5 hearings. mr. leahy: mr. president, would the senator just yield on just that one point? i totally agree with what he said about senator specter, who has been an example not just to the other 99 senators, but really to the whole country. i'm going to be honored to 12:58:34.8 present him with an award at 12:58:39.0 tracy's kids, awarding him, among other things, but primarily for the example he's sent to the rest of the country, somebody who can face a very serious health crises and handle 12:58:51.8 it with courage and dignity and stalwartness, with all the people who have suffered from various forms of cancer, as the distinguished senator knows personally and i know from a dearest member of my family. 12:59:08.5 this kind of inspiration helps a great deal. i can't thank the senator from alaska enough for the words he just said. mr. stevens: i thank the senator who serves with the chairman with great dignity in terms of the judiciary committee. 12:59:24.7 i can't appear here without really realizing the serious illnesses that senator specter has gone through and survived and the energy he has shown despite those illnesses. and mr. president, to me there's 12:59:42.8 no doubt that judge samuel alito is well qualified to serve on the supreme court. he served as assistant to the solicitor general, and as u.s. attorney for the district of new jersey, he was unanimously 12:59:58.0 confirmed by this senate to serve on the united states court of appeals for the third circuit. and he has argued some 12 cases before the supreme court. he is well respected by our nation's legal community.