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United States Senate 0930 - 1100
SENATE FLOOR DEBATE: The Senate meets for Morning Hour. The Senate will begin debate on the Nomination of Judge Samuel Alito to be the next Justice of the US Supreme Court. 09:29:57.5 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 and merciful god, who has given us grace in times past 09:30:13.0 and hope for the years to come. strengthen us to continue to grow in grace and our knowledge of you. quicken our hearts with warmer 09:30:27.7 affection for you and your creation. stir up the talents in each of us and give us a desire to serve you and humanity. bless the members of this body and the staff that serve them. 09:30:49.5 increase their faith as you increase their years. give them moral fitness to live lives of integrity and faithfulness. may they not falter under the 09:31:03.5 burdens they are asked to carry in these uncertain days. bless them with clear minds and open eyes that they will not seek to solve tomorrow's problems with yesterday's 09:31:19.9 solutions. we thank you for our new senate page class. inspire our pages to trust you passionately so that you will direct their steps. 09:31:35.5 we pray in your holy name. amen. the president pro tempore: please join me in reciting the pledge of allegiance to our flag. i pledge allegiance to the flag 09:31:50.2 of the united states of america, and to the republic, for which it stands, one nation under god, indivisible, with liberty and justice for all. under the previous order, the 09:32:06.8 leadership time is reserved. under the previous order, there will be a period for the transaction of morning business with senators permitted to speak therein for up to ten minutes each. mr. frist: mr. president? 09:33:10.0 the president pro tempore: the majority leader is recognized. mr. frist: mr. president, i want to welcome everybody back to begin this second session of 09:33:16.3 the 109th congress. in a few moments we will begin another historic debate in the senate chamber as we consider the nomination of samuel alito to be associate justice of the supreme court of the united states. 09:33:31.0 we will lock in a debate structure in a few moments so that we will be able to alternate hours back and forth between the two sides of the aisle. this will help facilitate the schedule so that members will have a better understanding of when they will come to the floor 09:33:48.3 or have that opportunity to come to the floor to give their statements and to participate in that debate. we will remain in session all day today and into the night this week to accommodate 09:34:04.5 senators who wish to make statements. as i mentioned, every senator will have the opportunity to speak, but it is my hope that we will be able to lock in a time certain for a vote on this qualified nominee as soon as possible in order that our 09:34:21.6 fellow senators will know when that confirmation vote will occur. i'd like to be able to do that shortly, and i've been in discussion with the democratic leader, and we'll continue that discussion on that particular matter. 09:34:36.4 mr. president, at this point i would ask unanimous consent that the senate proceed to executive session for the consideration of calendar number 486, the nomination of samuel alito to be 09:34:54.9 associate justice of the supreme court of the united states. the president pro tempore: is there objection? without objection, so ordered. the senate will proceed to executive session. the clerk will report. the clerk: nomination: supreme court of the united states, samuel a. alito jr. of new 09:35:12.2 jersey to be an associate justice. a senator: will the majority leader yield to me for one minute while i bring up an issue that we were discussing yesterday? mr. frist: mr. president, i'd be happy to. the president pro tempore: the senator from arizona. 09:35:27.6 mr. mccain: mr. president, i want to thank the majority leader for his efforts to move the issue of lobbying reform forward. we had a good meeting yesterday amongst other members, and senator lieberman and i and others -frls, -- are also, as 09:35:46.4 the majority leader knows, have introduced legislation. there's been other input made by other members. i know that the majority leader joins me in saying that we need to put together a bipartisan 09:35:59.9 coalition to address this issue as quickly as possible, and we need to sit down members of both sides of the aisle in whatever format that the majority leader and the democrat leader decide to that we can get to work right 09:36:16.4 away, get legislation done to curb the lobbying excesses that have been brought to light that need to be fixed. at another time i'd like to talk about with the majority leader the issue of earmarks. but i want to thank the majority leader for urging rapid action 09:36:33.2 on this issue. and we do have a basis for negotiation. i hope we'll be able to immediately sit down with members from the other side of the aisle, come to conclusions and agreement, since it's pretty 09:36:47.8 obvious the majority of the fixes that need to be made, and move forward. i want to thank the majority leader and the democrat leader for urging rapid action in addressing this issue which is causing us and our image to be hurt very badly, and our 09:37:03.4 reputation, in the eyes of the american people. i thank the majority leader. mr. frist: mr. president? the president pro tempore: the majority leader. mr. frist: just a very short comment. i have been in discussion with the democratic leader on this as well. and as my distinguished colleague from arizona has just 09:37:18.3 said, we on the republican side have put together a working group in terms of how to address this very, very important issue. it's got to be done in a bipartisan way. america is looking at this body to respond to abuses that we 09:37:36.9 have all seen in our government today. and i think that we all just need to be committed to address this in a bipartisan way. we have a great structure to build upon, and the legislation that has been introduced in a bipartisan way with senators 09:37:52.1 mccain and lieberman, and i look forward to working with both sides of the aisle in developing an appropriate response over the coming days. mr. president, i now ask consent that the time from 10:00 a.m. 09:38:08.2 until 11:00 p.m. tonight be divided with the time from 10:00 to 11:00 be under the control of 09:38:15.4 the majority leader or his designee, the time from 11:00 to noon under the control of the democratic leader or his designee, with each hour rotating back and forth in that same manner. i further ask that on thursday the same division occur with the first hour from 10:00 to 11:00 09:38:31.6 under the control -- be under the control of the democratic leader or his designee. the president pro tempore: is there objection? without objection, so ordered. mr. frist: mr. president, 09:38:48.1 today i am honored to open debate on the nomination of judge sam alito to be the 110th associate justice of the supreme court of the united states. 09:39:02.5 i enthusiastically support his confirmation. judge alito deserves to become justice alito, and those who oppose him are smearing a decent and honorable man in imposing an unfair political standard on all 09:39:19.5 judicial nominees. i support judge alito because he is exceptionally qualified to be a supreme court justice. i support judge alito because he's a man of integrity and modest judicial temperament. i support judge alito because he has a record that demonstrates a 09:39:37.2 respect for judicial restraint and aversion to political agendas on the bench and a commitment to the rule of law and the constitution. there is no question that judge alito is exceptionally well qualified. 09:39:53.1 he's measured, brilliant, deeply srerted and respectful of the law, and a man of character and integrity. but there is another reason i support judge alito. i support judge alito because denying him a seat on the supreme court could have devastating long-term 09:40:10.5 consequences for our judicial nomination process. let me address these issues one at a time. exceptional qualifications. from the moment president bush nominated him last october, judge alito's exceptional 09:40:26.8 qualifications had a wow factor that impressed senators of both parties. in every respect, judge alito is a nominee who meets the highest standards of excellence. he is a graduate of princeton and yale law school. 09:40:42.1 he has dedicated his 30-year legal career to public service as a federal prosecutor and assistant to the solicitor general where he argued 12 cases before the supreme court, and for the last 15 years as a federal judge on the third 09:40:57.6 circuit in new jersey. he has been unanimously confirmed by this body not once, but twice. on the federal bench, he has participated in more than 3,500 cases, and he's written more 09:41:13.3 than 300 opinions. the american bar association gave judge alito its highest rating -- unanimously well-qualified. a man of integrity and modest judicial temperament. exceptional qualifications only 09:41:30.6 begin to reveal why sam alito should be confirmed to the supreme court. throughout his career as a prosecutor and a judge, sam alito earned a reputation as a man of integrity who was fair-minded and evenhanded. he earned the trust and respect 09:41:47.0 of his colleagues, republicans, democrats, and independents. that's one reason why seven federal judges endorsed his nomination and testified on his behalf. and through the judiciary committee hearings, i believe we saw a clear picture emerge of 09:42:04.1 judge alito's modest judicial temperament. despite enduring, relentless questioning of his credibility, integrity and personal and political views, judge alito remained unflappable. 09:42:20.1 never once raising his voice or becoming confrontational and focusing clearly and articulately on the facts, the law, and the constitutional questions presented to him. understands the limited role of 09:42:34.3 a judge, judicial restraint, impartiality and a commitment to the rule of law. in addition to all of his exceptional qualifications in integrity and his temperament, judge alito deserves confirmation because he 09:42:49.7 understands the limited role of a judge to interpret the law and not legislate from the bench. he practices judicial restraint in refuses to prejudge cases or apply a personal political agenda on the bench. in his hearing before the 09:43:07.0 judiciary committee, this philosophy was clear. he said "a judge can't have an 09:43:13.4 agenda. a judge can't have any preferred outcome in any particular case. the judge's only obligation, and it's a solemn obligation, is to the rule of law. and what that means is that in every single case the judge has 09:43:28.2 to do what the law requires." in his 15 years on the bench, judge alito has done exactly that. just listen to the words of one of judge alito's former law clerks, a registered democrat 09:43:42.7 who, by the way, still has a kerry for president bumper sticker on his car. his words: "until i read judge alito's 1985 reagan job application, i could not tell you what his politics were. when we worked on cases, we 09:43:58.9 reached the same result about 95% of the time. it was my experience that judge alito was and is capable of setting aside any personal biases he may have when he judges. he is the consummate professional." 09:44:17.2 long-term consequences for judicial nominations process, perhaps the most important reason to support judge alito has less to do with judge alito himself and more to do with our judicial nominations process.n 09:44:34.7 senators should treat judicial nominees with dig tirks respect -- dignity, respect and fairness, not just because it's the right thing to do but because a process that politicizes and degrades judicial nominees will drive our very best and our brightest away from the bench. 09:44:53.3 i am profoundly disappointed in the unfair and unseemly treatment of judge alito during this process. his judicial record has been distorted and mischaracterized. he's been labeled as "nonresponsive" courage his 09:45:08.9 hearings -- during his hearings, despite providing candid and articulate answers to more than 650 questions in over 18 hours of testimony, far more than many, perhaps any supreme court nominee in the past. and most sadly, he has been the 09:45:25.6 victim of a calculated but unsuccessful campaign to smear his character, his integrity and his credibility. in an editorial in support of judge alito published on january 15th, the "washington post" 09:45:42.8 expressed this concern, even though they would have chosen a different nominee than judge alito. the "washington post" editorial said in part, "he would not have been our pick for the high court, yet judge alito should be 09:45:58.1 confirmed both because of his positive qualities as an appellate judge and because of the dangerous precedent his rejection would set. supreme court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the 09:46:15.1 determinative factor. to go down that road is to believe there exists a democratic law and a republican law which is repugnant to the idea of the rule of law, however, one reasonably defines 09:46:30.8 mainstream of jurisprudence, judge alito's work relies in it, while we harbor some anxiety in the direction he pay push the court, we would be more alarmed at the long-term implications of denying him the seat. no president should be denied 09:46:44.5 the prerogative of putting a person as qualified as judge alito on the supreme court." mr. president, i ask unanimous consent that the full text of this "washington post" editorial of january 15 entitled "confirm samuel alito on the supreme 09:47:03.1 court" be inserted after my remarks in the record. the president pro tempore: without objection, so ordered. mr. frist: mr. president, 13 years ago a republican minority in the senate voted to confirm the qualified nominee of a democratic president by an 09:47:18.9 overwhelming vote of 96-3. despite well-documented liberal record, justice ruth bader ginsburg sits on the supreme court today because republican senators chose to focus on her qualifications and not to 09:47:33.9 obstruct her nomination based merely on her judicial philosophy on ideology. i urge my colleagues to vote to confirm judge alito by applying that same fair standard. as we debate this week, i hope 09:47:50.3 we can put aside the partisan rhetoric and the politics of personal destruction and stand on principle. qualified judicial nominees like judge alito deserve a respectful debate and a fair up-or-down vote on the senate floor. 09:48:05.5 as senators, it is our fundamental constitutional duty 09:48:12.5 and responsibility. mr. president, i suggest the absence of a quorum. the president pro tempore: the clerk will call the roll. quorum call: 09:59:43.5 quorum call: mr. specter: mr. president, i 10:02:36.6 ask unanimous consent that the quorum call be vitiated. the presiding officer: without objection. mr. specter: mr. president, before proceeding to the nomination of judge alito for the supreme court of the united states, i think it worthwhile to comment very briefly on some of the scheduling items for the 10:02:56.6 judiciary committee. as is well known, the patriot act was extended from december 31 until february 3. i circulated a letter yesterday 10:03:15.2 among our colleagues, and i would ask unanimous consent that it be included in the record at the conclusion of my remarks. the presiding officer: without objection. mr. specter: outlining the alternatives which we face at the present time. one is to let the act expire on february 3, which i think no one 10:03:32.7 would like. a second would be to extend the current bill for a period of time. we've been discussing a four-year extension. or, third, to have the cloture 10:03:52.1 imposed on the filibuster which is in effect and then vote to utilize the conference report and pass the act. it is always possible to take 10:04:05.2 another course of action if there is unanimous consent. the conference is technically discharged at this point, and the house of representatives has made it emphatically clear that 10:04:18.9 they have gone as far as they think it reasonable to go on the compromises, and there have been very substantial compromised worked out. and at one juncture there were three additional requests which we took to the house and got all 10:04:37.0 of them, the most important of which was the sunset provision 10:04:42.6 changed from seven years to four years. and then additional changes were requested, and they could not be accommodated. so that's where we stand at the present time. 10:04:58.7 i know that there are discussions underway to try to get some additional changes made. my own view is that those projects -- prospects are somewhere between bleak and nonkpeufptent. 10:05:16.5 a senator: would the senator yield on that point just for a moment. mr. specter: certainly. mr. leahy: mr. president, the distinguished senior senator from pennsylvania has worked has hard on this issue as anybody here and has the distinguished 10:05:36.3 presiding officer knows, the patriot act was -- the original patriot act was written by myself and the distinguished senator from pennsylvania and others, and it was the distinguished republican leader 10:05:51.7 from texas, dick armey, and i put in the sunset provisions so that we'd be forced to come back and look at different parts of it. much of the patriot act is permanent law. look at certain parts. those are the parts that are now 10:06:06.6 most in contention because they expire. the distinguished senator from pennsylvania and i were at the white house on another matter here recently and talked briefly about this with the president. i know the distinguished senator from new hampshire, mr. sununu, has been working very hard with 10:06:24.9 him. i think that the changes that still need to be made are relatively minor, and i would urge parties, especially all of 10:06:38.7 us who helped write the original patriot act, to make that one last effort. that would include, of course, the white house and the other body to do it. but as the chairman of the judiciary committee has worked 10:06:53.5 extraordinarily hard on this. i, like so many others, are willing to continue to work with him. and i think a little nudge from the white house, that nudge would have to be a quiet one among some of the principals in 10:07:09.0 both bodies, it could be done. i know that's -- and i commend the senator from new hampshire too for all the work he's doing on this. and i thank the chairman of the senate judiciary committee for yielding. i know he's on his time. mr. specter: mr. president, i 10:07:26.2 thank the senator from vermont for his comments. i thank him for the hard work he has done in the past year on the judiciary committee on many, many matters, including the patriot act. and i think we have set a tone 10:07:40.8 and have been able to agree on almost all matters. if there can be some modifications made agreeable on all sides before february 3, i would be more than willing to be 10:07:56.3 a party to that. and my preference was the bill which passed the senate. but we have a bicameral system, and the house has its own point of view. and i think they have been reasonable. 10:08:11.4 and we have a good bill, certainly a bill in the conference report which is vastly improved with respect to civil rights over the current bill. but i'm not in favor of having short-term extensions. if you have another short-term extension, it's just going to 10:08:29.2 beget another short-term extension. so that i want to fish or cut bait before february 3 on that issue. the judiciary committee -- on the second item -- is scheduled to hold a hearing on the wartime 10:08:46.0 executive power, n.s.a.'s surveillance authority on february 6. and i think that my colleagues would be interested in a letter which i have written to the 10:09:01.9 attorney general dated january 24 -- yesterday -- outlining a series of some 15 questions to be addressed in advance of a hearing or at the time of the 10:09:14.6 attorney general's opening statement, or at least that request to try to set the parameters on the issues for that hearing. and i would ask unanimous consent that the letter to attorney general gonzales be included after my oral statement 10:09:32.1 today. the presiding officer: without objection. mr. specter: a third item of judiciary committee scheduling 10:09:39.4 involves the asbestos reform bill. the leader has stated his intention to bring it up on february 6. as we customarily do, we meet in the afternoon. 10:09:55.8 i intend to absent myself on the judiciary hearing on n.s.a., and we will proceed on that bill. senator leahy and i sent a letter yesterday to our 10:10:12.9 colleagues asking that if there are amendments to be offered -- and i'm sure there will be -- that they be provided to the managers in advance so that we can organize the proceeding on the bill and seek time 10:10:30.8 agreements. that has been a very, very difficult and contentious issue, but it was passed out of the committee last year after numerous executive sessions marking up the bill, extended debate on a variety of 10:10:46.9 amendments. many were accepted, some were rejected. that is an issue where the supreme court of the united states has called upon congress to address this issue. did not lend itself to solution 10:11:02.4 in the courts on class actions. there are thousands of people who are suffering from the injuries of asbestos, mesothelioma, which is deadly and asbestiosis and others, who cannot recover because their 10:11:22.4 employers are bankrupt. approximately 80 companies have gone bankrupt. more are threatened with bankruptcy. the bill which we have reported to the floor is the product of enormous effort and enormous analysis by the judiciary committee and beyond. 10:11:41.1 it was voted out of committee 13-5. senator leahy and i have convened along with the assistance of judge becker, retired senior federal judge -- had been chief judge of the 10:11:58.1 court of appeals for the third circuit, where we have brought in the so-called stakeholders, the insurers, the trial lawyers, the aflcio and the manufacturers -- and worked through that bill which has festered in the 10:12:13.5 congress for more than two decades. i first saw it when gary hart, then-senator from colorado, brought in the johns mansville, which was a key constituent of his who was having the problem. 10:12:28.9 and i think it is clear that if we are not able to act now, that it will be decades before this kind of an effort can be mustered again. just one additional comment on 10:12:44.2 the scope of the work. after it was passed out of committee in late july of 2003, i asked judge becker to assist as a mediator. we had meetings in his chamber in philadelphia twaorbgs full 10:12:59.3 days in august. -- two full days in august. we've had about 50 meetings since attended by sometimes more than 40 or 50 people. and we're still open for business to consider modifications. 10:13:14.9 we know that the legislative process is one, when it comes to the floor there are amendments, there are more ideas. and we are open. but that is an issue which is of tremendous urgency. the president has spoken about it. 10:13:30.7 the president wants it enacted. the majority leader is firmly behind legislation by the senate. the speaker of the house of representatives has spoken about it. but candidly and openly, we face very, very powerful interests who are opposed to any action. 10:13:48.9 there are very, very substantial dollars involved here. there's very, very substantial pain and suffering involved here. and those of us who have worked on the bill led by the distinguished senator of vermont 10:14:03.1 and myself and others have gone to the well and gone to the wall, and we still are open for business and invite comments. but anybody who has amendments, we'd like to hear from you as early as possible so that we can consider them, try to work out 10:14:21.2 time agreements and try to move the bill ahead in a managers context. i'd be glad to yield to senator leahy. mr. leahy: mr. president, again, i agree with what the distinguished senator from pennsylvania has said. 10:14:35.0 this is a bipartisan bill. 10:14:37.0 in fact, to emphasize it, he and i have sent a letter to all our colleagues signed jointly asking them that they have amendments that, they plan for it, to let us know.n it should be emphasized that not only did we have hours upon 10:14:53.7 hours upon hours of hearings, but we had so many open meetings. and the senator from pennsylvania's office and my office and others. we made sure that the 10:15:12.7 stakeholders, all the stakeholders were able to come to those meetings. we also made sure that every senators' office, everybody who expressed any interest, republican or democrat, was invited to those meetings. they were wide open. 10:15:27.1 in fact, almost all of the senators on both sides of the aisle either attended those meetings or had staff attend those meetings. so these -- these meetings we had, again, every single 10:15:47.5 stakeholder involved, it was open, it was bipartisan. that was made clear by the senator from pennsylvania from the beginning that they'd have to be open and bipartisan, and 10:16:04.8 he, as would be expected, kept his commitment all the way through. my concern, and i would highlight two things the senator from pennsylvania has just said. one, if we don't do it now, we 10:16:20.4 lose the opportunity. because i think it would be decades before anybody would put together the kind of coalition that's been possible to put together. the other thing he said was not just some of the powerful 10:16:36.9 financial stakes involved, but it's a powerful amount of suffering that's going on by the people who are suffering from asbestos poisoning and in all the different forms. they are the ones that are held in limbo throughout all this 10:16:55.2 time. we can bring some relief to them now, not the possibility of ten years from now a series of lawsuits go through, but now. we have had members of the supreme court ranging from the 10:17:15.5 late chief justice william rehnquist to justice ruth bader ginsburg serving two different philosophies, have called upon the congress to bring about a legislative solution because our 10:17:32.6 courts are unable to handle all the cases that might come up. let's be clear about that. there are some that would probably like to stay litigating forever on this, but the fact is our courts are unable to handle 10:17:48.3 it. it cries out for a legislative solution. i would urge people to come to this with an open mind. vote it up or down. vote the amendments up or down. 10:18:03.6 i've heard some opponents being quoted as being prepared to demagogue -- to demagogue -- this bipartisan bill. well, this bill didn't just suddenly spring out of nowhere. it's a bipartisan, heavily 10:18:26.0 -worked-on bill. i might say, there has been pain in it for everybody. everybody's had to give something in this. the senator from pennsylvania didn't get everything he wanted. i didn't get everything i 10:18:35.0 wanted. the stakeholders who came to the table, virtually all of them openly and honestly, they gave up a lot on it. but the people who are suffering from asbestos poisening in 10:18:50.9 whatever form are the ones waiting for us to act. i think the time is right to act. we could pass a bipartisan bill here. i believe the other body would be glad to see such a bill. the president has stated publicly, and he's certainly stated privately that both 10:19:06.5 senator specter and myself, he is behind actions. i mean, this is one of those cases -- everybody cries out for some bipartisan action around here this. is one of those cases where republicans and democrats could come together, where the congress and the white house can work together and actually those 10:19:24.0 who will benefit will be the people suffering. we ought to get on with it. mr. specter: mr. president, i think my distinguished clear for those comments. 10:19:35.6 there's no doubt about the suffering from those who were afflicted with mesothelioma and other ailments. there is also no doubt about the tremendous impact it has on the economy of the united states. 10:19:52.1 it has been estimated that this would be a bigger boost than any kind of a tax cut you could have or any sort of an economic recovery program you could have to be able to deal with the companies who have gone into 10:20:07.6 bankruptcy and the others where bankruptcy is threatened. the amount of work, as the senator from vermont has specified, has been gigantic. 10:20:23.0 it is three years in process. senator hatch took the lead with the trust fund idea where the manufacturers and insurers agreed to put up some $140 billion into the trust fund with no government payments not coming out of the pockets of the 10:20:40.8 taxpayers. the meetings which have been held and the efforts and the momentum which we have had can't be recaptured. i think it is fair to say certainly during the -- my tenure here, 25 years, i've 10:20:57.2 never seen legislation worked on to the extent this legislation has been worked on with the complexity of the problem and the involvement of senators and staff and so-called stakeholders. and if it's now, it's never. mr. president, i ask that the 10:21:17.7 comments up until now be put in the appropriate category under morning business and now we proceed to the alito nomination. the presiding officer: without 10:21:30.0 objection. mr. specter: i support the testimony nation by president bush for circuit court judge samuel a. alito, jr., to the supreme court of the united states because he is qualified. in coming to my conclusion, my 10:21:50.2 staff and i have undertaken an extensive review of judge alito's record and of his some 361 opinions in total, we have categorized 238 of those as 10:22:06.5 major decisions wile serving on the -- while serving on thethy, court of appeals. we have reviewed 49 of the cases that judge alito handled during his tenure as united states attorney. we've made an analysis of 43 10:22:22.5 speeches and articles judge alito authored and evaluations of 38 formal opinions, petitions and supreme court briefs which judge alito wrote while serving in the department of justice. additionally, the judiciary 10:22:38.0 committee heard testimony of some 30 hours and 20 minutes where we had 17 hours and 45 minutes of questioning of judge alito and testimony from 31 outside witnesses. and it is on the basis of that 10:22:58.1 voluminous record that it is my personal view that judge alito ought to be confirmed. he has a background from a father who was an immigrant from 10:23:13.5 italy, not born with a silver spoon in his mouth. came up the hard way. had an extraordinary academic record at princeon and -- princeton and the yale law 10:23:28.2 school. worked as an assistant united states attorney and then was united states torn, then worked in the department of justice and for 15 years has been on the court of appeals for the third circuit. he answered questions put to him, i think, more extensively 10:23:46.0 than any other nominee has in recent times, and the full text of the prepared statement which i ask to be included at the conclusion of my remarks, mr. president -- 10:24:01.1 the presiding officer: without objection. mr. specter: -- specifies the details of the questions and the analysis of many, many of his cases. judge alito came under very extensive questioning on the issue of a woman's rights to 10:24:21.2 choose because of his work on a brief on the thornburgh case where he had advocated not reversal of roe but cutting back on some of the provisions. 10:24:34.0 because of a statement which he had made in 1985 when he was looking for a position with the federal government where he expressed the view that the constitution did not protect the right to an abortion. judge alito testified at length 10:24:52.8 that he has an open mind on this subject. i think it is fair to say that when a comment is made by a lawyer in an advocacy capacity that it represents the view of a client on a position taken and 10:25:08.8 not a personal view, and with respect to the statement that he made about his view of the constitution in 1985, that he has gone to great lengths to 10:25:26.6 analyze the supreme court decisions on the issue of a woman's right to choose with the assurances that he does have an open mind. he was questioned extensively on this subject. 10:25:39.2 i led off with it for some 20 minutes on my first round of questioning, and judge alito expressed his regard for stare decisis, the latin expression 10:25:56.8 for let the decision stand. he commented that he agrees with the position of chief justice rehnquist on the miranda case involving suspects' rights on statements and confessions where chief justice rehnquist early in 10:26:13.2 his career had been against miranda and later changed his view to support miranda. once, as the chief justice put it, it had become embed in the culture of police practices. and judge alito stated that he 10:26:29.1 thought that there was a weight to be accorded to cultural changes, and i think it is fair to have that statement of principle apply on a woman's right to choose. 10:26:45.2 judge alito further testified that he agreed with justice harlan's dissent in the case of poe vs. ullman that the constitution is a living document, agreeing with justice cardozo in palco that it 10:27:01.4 reflects the changing values and mores of our society. so he is not an originalist. he does not look to original intent. he does not look to the senateic black letter, but that he 10:27:17.9 understands the concept of evolving patterns and evolving reliance. i questioned him at length about the reliance factor in casey vs. planned parenthood, and i think that judge alito went as far as 10:27:32.3 he could go on the assurances of maintaining an open mind on this important subject. when it came to the issue as to whether he reviewed it, regarded it as settled law, his testimony 10:27:50.5 was virtually identical to the testimony of chief justice roberts, who testified that it was settled and as chief justice roberts put it in his confirmation hearings, beyond. that but chief justice roberts 10:28:03.8 left open the unquestionable right and duty of the court to review all cases on the merits when they are presented and to afford appropriate weight to stare decisis and to precedents but not to take the position 10:28:22.5 that precedents can never be overturned. i think a fair reading of the record is that judge alito went about as far as he could go without answering a question as to how he would rule on a specific case, which is beyond 10:28:39.0 the purview as to what a nominee ought to do. in taking up questions of executive power, judge alito could not answer questions about the president's authority to go to war with iraq, which was 10:28:57.4 posed. how could a nominee answer a question of that magnitude in a nomination proceeding without knowing a lot more about the circumstances? 10:29:07.8 and judges make decisions after they have a case in controversy, when they have briefs submitted, when they have argumented prepared, when they have discussions with their colleagues, and they reflect on the matter and come to a conclusion, not sitting at a witness table in a judiciary 10:29:24.3 committee hearing. judge alito answered the questions as to the 10:29:32.6 considerations which would be involved, and i think again, went about as far as he could go. on the question of congressional power, i questioned him at length on concerns that i have about what the supreme court has had to say about declaring acts of congress unconstitutional 10:29:49.9 because the supreme court disagrees with our -- quote -- "method of reasoning." it is a stretch, as i see it. have some concept that when you leave the senate chamber and go 10:30:05.4 across the green to the supreme court our columns are lined up exactly with the supreme court columns. interesting historically in abearly draft of the constitution the senate was to nominate supreme court justicesn that would be an 10:30:26.4 interesting process if we had that given the political complexity of the senate today. but back to the point, what superior wisdom and what superior method of reasoning comes across a person when he gets to the supreme court of the united states? our method of reasoning may not 10:30:43.2 be too good, but it's our method of reasoning. and to have the court say that they declare acts unconstitutional because they don't like our method of reasoning is, candidly stated, highly, highly insulting. 10:30:59.7 and judge alito said the obvious, that our method of reasoning was as good as the court's. and then in the decision on the americans for disabilities act, where the supreme court has imposed a test of what is 10:31:21.0 proportionate, taking it out of thin air in a 1997 decision, what is con grew went and proportionate, is a test which can't be applied and really 10:31:33.7 just lends itself to legislation from the bench. justice scalia characterized it accurately calling it a flabby test where the court was functioning as the taskmaster of congress to see that we had done 10:31:48.7 our homework. and i think that judge alito's answers showed an appropriate respect for separation of powers and congressional authority. the decisions of the supreme 10:32:05.9 court questioning constutionality of statutes has led a number of us on the committee to prepare legislation which would give the congress standing to go to the supreme court to tkpwau to up-- to argue 10:32:21.1 to uphold our legislation. we thought initially about having a judiciary committee watch, where we would observe what the court had done, and from that move to thought about seeking to intervene as acme 10:32:36.9 cuss curie, as a friend of the court, and then took it as a final step, why not go to the court and argue our cases ourselves through counsel and through an appropriate way, counsel has the authority to grant standing and we can 10:32:50.2 grant standing to ourselves to see to it that our views are appropriately presented to the court. we respect the court as the final arbiter of the constitution. that is our system. but the arguments and the 10:33:06.4 considerations and the record which congress amasses ought to be considered by the court. now the constutionality is upheld by the solicitor general. but in cases where there is a conflict between what the congress has to say and what the president has to say, we ought 10:33:23.6 to be in a position to make our own submissions to the court. and the issue of executive authority and the current surveillance practices came up for discussion in judge alito's confirmation hearings. 10:33:38.5 and again, he couldn't say how he would rule on the case if it came before him. he'd have to read the briefs, hear the arguments, consider it. but he responded by giving us the factors and items which he would consider. 10:33:55.4 many, many issues were discussed, and i think judge alito approached them with an open mind. one subject of particular concern to this senator is the issue of televising the court, which i think ought to be done. 10:34:13.1 the supreme court of the united states today makes the final decisions on so many of the cutting-edge question of our time, and the american people ought to know what is going on. a number of the justices appear 10:34:27.4 on television on programs. no reason why the court 10:34:34.4 proceedings shouldn't be televised. senator biden and i made that specific request on the case of bush vs. gore and got a response from chief justice rehnquist denying it, but then they 10:34:47.6 released an oral transcript of the proceedings at the end of the day, and the court is doing more of that, which is a step forward. the congress has the authority to make decisions on the administration of the court. for example, the congress 10:35:03.9 decides how many supreme court justices there will be. we establish the number at nine. you may remember in the roosevelt year, in an effort to pack the court, increase the number to 15, well, that is a congressional judgment. 10:35:19.4 we decide when the court starts to function -- the third monday in october. we decide what is a quorum of the court -- six. we legislate on speedy trial rules. and i believe it is within the purview of the congress to legislate to call for television 10:35:35.3 of their proceedings. i recognize that the ultimate decision would rest with the court if they decide to declare our act unconstitutional. under separation of powers, that is their prerogative, and i respect it. 10:35:49.7 but i believe we ought to speak to the subject. and on the subject of television, again, judge alito didn't give the answer i'd like to hear, that he's for televising the court. but he said he had an open mind and would consider it. 10:36:06.0 again, that's about as far as he could go. one panel of witnesses i think had a particular impressive line, and that involved seven judges from the court of appeals 10:36:22.3 from the third circuit who had worked with judge alito who testified. there were precedents for judges testifying, and they are elaborated upon in my brief. the retired chief justice warren burger came in to testify in the 10:36:40.5 nomination proceedings for judge bork, and that is something for which there is precedent. and these judges have unique knowledge of judge alito, because they have worked with 10:36:56.2 him in many, many cases. judge becker, for example, former chief judge of the third circuit, now on senior status, sat with judge alito on more than 1,000 cases. judge becker has a national reputation as an outstanding 10:37:13.3 jurist. recently received the award as the outstanding federal judge in the country. and testified about judge alito not having an agenda, not having -- not being an ideologue and having an open mind. 10:37:28.8 judge becker regarded very much as a judge's judge, a centrist judge, pointed out that he and judge alito had disagreed very few times, about 25 times during the course of considering more than 1,000 cases. 10:37:44.5 after the arguments are concluded, the three judges who sit on the panel retire and discuss the case among themselves. no clerks present, no secretaries present; but just a candid discussion about what went on. 10:37:59.0 and that's where the judges really let their hair down and talk about the cases, where you really get to know what a judge thinks. and it is a high testimonial to judge alito that these judges sang his praises in terms of 10:38:16.7 openness and in terms of studiousness and in terms of not having an agenda. one of the witnesses, former judge tim lewis of the third circuit, an african-american, 10:38:31.6 testified about his own dedication to choice for a woman's height to choose, his own dedication to civil rights, civil liberties, and testified very forcefully on judge alito's behalf, and said very bluntly that he wouldn't be there if he 10:38:47.6 didn't have total confidence in what judge alito had to say. one further comment, mr. president, and that is on the party-line vote which we seem to 10:39:05.7 be coming to, voted out of committee 10-8;10 republicans voting for judge alito, 8 democrats voting against skwraoelts. 10:39:19.6 i think it is unfortunate that our senate -- our senate is so polarized today. i believe that this body and this country would benefit greatly by more independence in 10:39:33.9 the senate. i have not voted in favor of judge alito as a matter of party loyalty. if i thought he was not qualified, i would vote "no" as i have in the past on nominees 10:39:47.8 of my own party, from presidents of my own party. but we need to move away from the kind of partisanship which has ripped this body in recent 10:40:02.8 times. we have, i think it important that the american people have confidence in what the senate does on the merits as opposed to the appearance of right politics. 10:40:20.6 and i believe that it is important for judge alito to have supporters who favor a woman's right to choose so that he does not feel in any way 10:40:40.1 beholden to or confirmed by people who have one idea on some of these questions or have another idea on some of these questions. and without naming names and identifying people, we have more than six republicans who are 10:40:52.9 pro-choice, support a woman's right to choose. so the balance of power will, if confirmed, be not only on those who are on one side of that issue or another. but i think we would do well to reexamine the procedures which 10:41:10.8 we utilize in the confirmation process to try to move away from partisanship and for a standard of getting an idea of the judge's temperament, his background, his jurisprudence, 10:41:30.1 where he stands, without pressing him to the wall as to how he stands on any particular issue. when we had the nomination of white house counsel harriet 10:41:46.6 miers, she was supposed -- she was opposed because, as one person put it, there was no guarantee that she would vote to overturn roe. well, you can't get guarantees from supreme court nominees. 10:42:01.5 i've said before, and i think it worth repeating, that guarantees are for used cars and washing machines. they are not for nominees to the supreme court of the united states. and i think when we examine temperament and background, including jurisprudence, that 10:42:18.4 those are the appropriate tests. no one knows with certainty how judge alito is going to vote. the cases are full of surprises. justice sandra day o'connor was very much opposed to abortion rights before she came to the 10:42:35.2 court, and she's been one of the foremost proponents of a woman's right to choose, subject to some limitations. justice anthony kennedy spoke very disparchingly about abortion rights before coming to the court, and he has supported 10:42:52.6 roe vs. wade. justice david souter as attorney general for new hampshire opposed repealing new hampshire's law banning abortions even after it had been declared unconstitutional by the supreme court of the united states. 10:43:05.4 the national organization for women had a rally on capitol hill when david souter was up for confirmation in 1991. i remember well; i was there. big placards "reject david souter or women will die." 10:43:22.4 so that no one knows what will happen. president truman was disappointed by his nominees in the famous steel seizure case. again and again and again there have been surprises. the rule is that there is no rule. 10:43:38.0 so that on the committee and in the senate, we are left for our best judgment as to qualifications without guarantees. separation of powers entrust to the president the role of making the nominations. 10:43:54.5 it's up to the senate to make an evaluation to confirm or not. and then it's up to the justices to make the decisions. and the separation of powers has served us well. and those are the facts which have led me to vote judge alito out of committee affirmatively, and my vote will be cast when 10:44:11.7 the role is called later in this floor debate. i yield the floor.n 10:44:29.4 the presiding officer: the 10:44:30.6 senator from alabama. mr. sessions: mr. president, i'd like the thank senator specter for his excellent leadership of the judiciary committee during the roberts and alito hearings. he squarely addressed the tough issues in his first questioning. he made sure that every member 10:44:47.9 of the committee had full and ample opportunity to ask any question they wanted. we had 30-minute rounds. we had opening statements. we had the opportunity to do multiple rounds. basically i think people could have asked questions as long as 10:45:04.3 they wanted to ask these nominees. both, of course, both roberts and alito were magnificent in their testimony, superb in their knowledge of the constitution, the role of a judge in every possible way. 10:45:20.3 that's why they have been favorably received by the american public, and i think will both be confirmed. justice roberts, of course, has already been confirmed. we have the greatest legal system in the world. it is the foundation of our liberties. 10:45:38.4 it's the foundation of our economic prosperity, but the focus and the key ingredient of our legal system is an independent judge who makes decisions every day based on the law and the facts, not on their personal, political, religious, 10:45:59.7 moral or social views. if we descend to that level, if we allow those social, political views to affect or infect the decision-making process, justice 10:46:15.4 has been eroded. that is contrary to every ideal of the american rule of law. and that's what is important here today because justice -- judge alito has a legal philosophy. 10:46:34.6 not his political philosophy that's important, what is his legal philosophy? the core of his beliefs as a judge is that a judge should be careful, fair, restrained and honest in finding the facts in 10:46:51.7 the case and applying the relevant law to those facts. for what purpose? to decide that dispute, that discreet issue that's before the court at that time and not to indulge, as he indicated, in 10:47:07.9 great theories. that's not what a judge is about. so this is what american judges must do for our entire legal system to work, and that's why i am so proud that president bush has given us two nominees that 10:47:23.9 can explain, articulate that role of a judge in a way that every american can understand, relate to and affirm. my colleagues, i'm afraid, lack a proper understanding of this concept. 10:47:38.6 it goes to the core of our differences over judges. they want judges, i'm afraid, who will impose their own views, their personal views on political issues in the guise of deciding discreet cases before 10:47:54.8 them. oftentimes these are views that cannot be passed in the political legislative process but can be imposed by a judge who simply redefines or reinterprets the meaning of words in our constitution. 10:48:10.5 and they declare that the constitution says that same-sex marriage must be the law of the land. they just declare that's so. it only takes five judges to do that, unelected, 10:48:26.6 lifetime-appointed to set that kind of new standard for america. is it any wonder people are worried about that? it erodes democracy at its most fundamental level. when political decisions are being set by judges with 10:48:42.1 lifetime appointments unaccountable to the public. so that's what it is that we're worried about in so many different ways, and there has within a trend in that regard, no doubt about it, by our court. i think they have abused their 10:49:00.2 authority by taking an extremely hostile view toward the expression of religious conviction in public life. they have struck down christmas displays. our courts have declared the pledge of allegiance to the 10:49:15.8 united states government, the pledge of allegiance unconstitutional because it has "under god" in it. by the way, if those of you can see the words over this door, "in god we trust," it's part of 10:49:30.6 our heritage written right on the wall of this chamber. this is an extreme interpretation of the separation of church and state. it's not consistent with our classical understanding of law in america. we have the supreme court just this past year redefining the 10:49:50.2 takings clause. the takings clause says that you can take private property for public use. it does not say you can take it for any purpose, any private 10:50:05.2 mall. they redefined the meaning because they thought that was smarter, that was better policy, but we don't appoint judges to set policy. we have that responsibility. we're the people that can be 10:50:17.5 voted out of office if we set bad policy. we're the people out there meeting people every day and campaigning and trying to understand what the american people care about, and to do that -- that's not what judges do at 80 years old sitting over there reading briefs every day. 10:50:32.5 so this is an important issue. they've declared that illegal alien, despite state laws to the contrary, are entitled to benefits. they've struck down even partial-birth abortion laws. they have declared morality -- this is hard to believe but 10:50:51.2 true -- in recent years they have declared that morality cannot be a basis for congressional legislation, yet they contend that they may decide opinions and redefine the meaning of words and the 10:51:06.0 understanding of words over hundreds of years based on what they declare to be evolving standards of decency. is that a standard or is that just a license for a judge to do whatever they feel like doing at a given time, evolving standards 10:51:21.5 of decency. who can define that? do they have hearings on what these standards are? so these are important issues. the american people are concerned about it. president bush was concerned about it. he promised that he would appoint jungs that show 10:51:37.7 restraint, judges of great ability and integrity, but who would show restraint and be more modest in the way they handle these cases. i'm telling you, that's a fair request that the president, a fair standard that he set. 10:51:53.6 it's a legitimate issue for the american people to decide. he talked about it in almost every speech he made, and that's what he promised to do and that's what he did. that's what he's done. now, if we were seeing judges, i 10:52:10.1 think there is a legitimate concern that you would appoint judges who would promote some conserve agenda. i don't favor that. i oppose that. we don't want a judge pro-to-promote a liberal or a 10:52:25.0 conservative agenda, although the plain fact is if anybody looks at it squarely will see that the court has actually been promoting a more liberal agenda. but we're not asking that a conservative agenda be promoted. we're asking that the courts maintain their role as the 10:52:41.5 neutral umpire to decide cases based on the law passed by this legislative branch or state legislatures or passed by the people through the adoption of the united states constitution. i don't understand it. 10:52:57.9 the opposition to judge alito. he's such a fabulous nominee. but it does appear, according to the "new york times," just last week, the 19 of january, that our democratic leader, senator harry reid, has urged his 10:53:14.8 colleagues to vote no so i they can -- for political reason, to make placement issue. -- to make it a political issue. we need to be careful about that really. i'm afraid there has been an attempt to change the ground rules of confirmation to set standards we've never set before 10:53:30.0 for nominees, and that knife cuts both ways. if this is affirmed, then it will be more difficult if the future for democratic presidents to have their nominees confirmed. mr. president, judge alito has a 10:53:46.3 remarkable, remarkable record. he's the son of immigrants in new jersey. his father was an immigrant to this country. he goes off to princton, gets his degree there with honors, declines to accept an invitation 10:54:01.5 to join an eating club that excludes women and others, i guess, that are beneath the members of that club. he decided while he was there that he would just dine with everybody else, the scruff and the scrum, i guess, that you 10:54:17.5 find at princton. then he goes to yale law school, where he finished at the top of his class, served as an editor of the "yale law journal," participated in the rotc at a 10:54:28.6 time when that was not an easy thing to do, served in the rh army reserve for eight years and was offended that princton would kick off rotc from campus, and i'm sure was not pleased when the rioters bombed the rotc 10:54:45.9 building at princton. he's an american. he believes in his country, prepared to serve his country, go where he's asked to go if called upon in that fashion. so he was chosen to clerk for 10:55:03.2 the third circuit, the court he now sits on, judge garth. after he graduated, quite an honor. for three years he served as an assistant united states attorney in that great, large new jersey law office for the u.s. attorney 10:55:17.9 where he argued appellate cases. he did the appellate work. that's what he would be as a supreme court judge, is an appellate judge, not a trial judge. that's what he did when he started out his practice. then he went to the solicitor general's office of the 10:55:33.2 department of justice, which is often referred to as the greatest lawyer job in the world to be able to stand up in the courts of the united states of america, particularly the united states supreme court, and to represent the united states of america in that court. 10:55:49.1 and he argued 12 cases before the supreme court, not one half of 1% of lawyers in america have probably argued any case before the u.s. supreme court. he argued 12. there's a reflection of his 10:56:04.7 strength and capability. then he became united states attorney in new jersey, which is one of the largest u.s. attorneys offices in america, prosecuted mafia and drug organizations and was highly successful in that office and 10:56:22.6 won great plaudits for his performance and then was placed 15 years ago on the third circuit court of appeals. so he has served as a circuit judge in the third circuit court 10:56:36.4 of appeals for 15 years, rendering, writing some 350 opinions and participating in many, many others and has had his record exposed to the world. and what does it look like? it is a record of fairness and 10:56:53.1 decency. i submit that it is without question. the mesh bar association -- the american bar association -- now, some of us on the conservative side have questioned the bar. they voted for -- they're pro abortion in their positions. 10:57:09.4 they take liberal positions on a lot of issues. some people have criticized them for that. they declare that their ratings of judges are not based on that, but sometimes they have been accused of allowing their personal views to infect that rating process. 10:57:25.7 how did the american bar association rate judge alito? they gave him their highest possible rating. they found that he was well qualified, unanimously, by the 15-member committee that meets 10:57:43.4 to decide that issue. they talked to -- interviewed 300 people, people who have litigated against judge alito as a private lawyer, people who have been his supervisor, people who have worked for him, people 10:57:58.8 who have had his -- had their cases decided by him. they go out and talk to these people, and they'll share with the american bar association privately what they might not say publicly. so they interviewed 300 people. they contacted over 2,000, and 10:58:17.5 they concluded that judge alito has established a record of both proper judicial conduct and even-handed application in seeking to do what is fundamentally fair. 10:58:31.0 they declared that judge alito was held -- quote -- "in incredibly high regard." that was by attorney john peyton, an african-american who argued the university of 10:58:46.0 michigan quota case before the u.s. supreme court, not a right-winger. he said that they found that the people they interviewed held judge alito in incredibly high regard. i asked him, did he choose that word carefully, he said, "i did, 10:59:03.8 yes, sir." so mr. president, i see others are here, and our time on this side is about to expire. and i would just wrap up with these thoughts. 10:59:23.3 judge alito represents that neutral magistrate that we look