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The opening statement of Sen. Russell Feingold, D-Wis., as prepared for delivery at the Supeme Court confirmation hearing for Samuel Alito.

Thank you, Mr. Chairman. I want to welcome our nominee and thank him in advance for the long hours he will put in this week. I greatly admire your legal qualifications and record of public service, Judge Alito, and I wish you well here. As with the hearing on the nomination of Chief Justice Roberts, I approach this proceeding with an open mind.

Judge Alito, as a longtime student of the law and the Supreme Court, I know you appreciate the importance of the process that we begin today. A position on the Supreme Court is one of the highest honors and greatest responsibilities in our country. The Constitution requires the Senate to offer its advice and decide whether to grant its consent to your nomination. And the Senate has delegated to the Judiciary Committee the task of examining your record and hearing your testimony and responses to questions about your views.

So it is our job in these hearings to try to get a sense for ourselves, for our colleagues who are not on the Committee, and for the American people, of whether you should be given the enormous responsibility of protecting our citizens’ constitutional freedoms on the Supreme Court. So you will obviously face tough questions here, Judge Alito. No one is entitled to a seat on the Supreme Court simply because he has been nominated by the President. The burden is on the nominee to demonstrate that he should be confirmed.

We begin these hearings today at an important time. Less than a month ago, we learned that this Administration has for years been spying on American citizens without a court order and without following the laws passed by Congress. Americans are understandably asking each other whether our government believes it is subject to the rule of law. Now, more than ever, we need a strong and independent judicial branch. We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress. We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even when the President of the United States is telling the country that he should be able to decide unilaterally how far those freedoms go.

To win my support, Judge Alito will have to show that he is up to this challenge. His instincts sometimes seem to be to defer to the executive branch, to minimize the ability of the courts to question the executive in national security cases, to grant prosecutors whatever powers they seek, to deny relief to those accused of crimes who assert that their constitutional rights were violated. It will be up to Judge Alito to satisfy the Senate that he can be fair and objective in these kinds of cases. We need judges on the bench who will ensure that the judicial branch of government is the independent check on executive power that the Constitution requires and the American people expect.

In these days of corruption investigations and indictments in Washington, we also need judges who are beyond ethical reproach. In 1990, when he appeared before this Committee in connection with his nomination to the Court of Appeals, Judge Alito promised to recuse himself from cases involving a mutual fund company with which he had substantial investments, Vanguard. He kept those investments throughout his service on the Court of Appeals and still has them today, but in 2002, he sat on a panel in a case involving Vanguard. Since his nomination to the Supreme Court, we have heard different explanations, from the nominee and his supporters, about why he failed to recuse himself. Needless to say, the shifting explanations and justifications are troubling. I hope that we will get the full and final story in these hearings. Before we grant lifetime tenure to federal judges, and particularly justices of the Supreme Court, we must make sure that they have the highest ethical standards.

The stakes for this nomination could hardly be higher. Justice O’Connor was the swing vote in many important decisions in the past decade. Her successor could well be the deciding vote in a number of cases that have already been argued this term, but may have to be reargued after a new Justice is confirmed. The outcome of these cases could shape our society for generations to come. We don’t have the right to know how a nominee would rule on those cases. Indeed, we should all hope that the nominee doesn’t know either. But we do have a right to know what and how a nominee thinks about the important legal issues that have come to the court in recent years. Commenting on past Supreme Court decisions would no more disqualify a nominee from hearing a future case on a similar topic than would a current Justice participating in those past decisions. It simply cannot be that the only person in America who can’t express an opinion on a case where Justice O’Connor cast the deciding vote is the person who has been nominated to replace her on the Court.

So I look forward to questioning Judge Alito about executive power, the death penalty, employment discrimination, criminal procedure, and other important topics. And I look forward to his candid answers. I was pleased that he was less guarded in our private meeting than were the other Supreme Court nominees whom I have had the privilege to meet. I hope he is even more forthcoming in this hearing. Given his long judicial record and the memos we have seen that express his personal views on legal issues, I expect complete answers and I think my colleagues do, too. If a nominee expresses a personal view on a legal issue in a memo written over a decade ago, we, and the American people, have the right to know if he still holds that view today.

Mr. Chairman, if confirmed to the Supreme Court, Judge Alito is likely to have a profound impact on the lives of Americans for decades to come. That is a fact. It is clear from how you have planned these hearings that you recognize that, Mr. Chairman. Thank you for your efforts to ensure a full and fair evaluation of this nominee and I look forward to the questioning.

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