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The opening statement of Sen. Sam Brownback, R-Kan., as prepared for delivery at the Supreme Court confirmation hearing for Samuel Alito.

Welcome, Judge Alito, to the Judiciary Committee.  I congratulate you on your long record of public service and on your nomination to serve on our nation’s highest court.

A large part of the reason why confirmation hearings have become contentious battles is the ever-expanding role of the courts in American life in recent years.  When the courts improperly assume the power to decide issues more political than legal in nature, the People naturally focus less on the law and more on the lawyers who are chosen to administer it.  Most Americans want judges who will stick to interpreting the law, rather than making it.  It is beyond dispute that the Constitution and its Framers intended this to be the role of judges.

For instance, although he was perhaps the leading advocate for expansive federal power, founding father Alexander Hamilton nevertheless assured his countrymen in Federalist #78 that the role of federal courts under the proposed Constitution would be limited: “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” 

As Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted Federal courts neither to write nor execute the laws, but rather to “say what the law is.”  The narrow scope of judicial power was the reason the people accepted the idea that the Federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.  The people believed that while the courts would be independent, they would defer to the political branches on policy choices.

It may seem ironic, but the judicial branch preserves its legitimacy through refraining from action on political questions.  This concept was perhaps best expressed by Justice Felix Frankfurter, appointed by President Franklin Delano Roosevelt.  He said this: 

“Courts are not representative bodies.  They are not designed to be a good reflex of a democratic society.  Their judgment is best informed, and therefore most dependable, within narrow limits.  Their essential quality is detachment founded on independence. History has taught us that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic, and social pressures.  Primary responsibility for adjusting the interests which compete of necessity belongs to the Congress.”

I would note parenthetically that it was for this reason that Justice Frankfurter, a steadfast Democrat, strongly opposed the Court’s 1962 reapportionment decision in Baker v. Carr – a perfectly defensible position then and now.

Some interest groups and even some members of this Committee have argued that Judge Alito must be more closely scrutinized, or even opposed, if his testimony suggests that he would change the ideological balance on the Supreme Court.  This notion misunderstands the role of judges, and creates a double standard suspiciously convenient to those in opposition. 

Seats on the bench are not reserved for causes or interests – they are given to those who will uphold the rule of law, so long as a nominee is well-qualified to interpret and apply the law.

This has long been the case with the Supreme Court.  Historically, its makeup has changed, just as the elected branches have changed.  In fact, nearly half of the Justices – 46 of 109 – who have served on the Supreme Court replaced Justices appointed by a different political party.  In recent years, even as the Court has become an increasingly political body, the Senate has not focused on preserving any perceived ideological balance when Democratic presidents made appointments to the Court.

The best of examples of the Senate rejecting any notion of balance occurred when we confirmed the former General Counsel for the ACLU, Justice Ruth Bader Ginsburg, 96-3 to the Supreme Court, to replace conservative Justice Byron White in 1993.  It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the Court to the left.  But because President Clinton won the election, and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the Court, she was confirmed.  During her hearing, hardly any mention was made about balance with Justice White; the only discussion of it occurred when Senator Kohl asked the nominee what she thought of Justice White’s career, and she started off by stating that she was not an athlete.

History has shown that she did in fact dramatically change the balance of the Court in many critical areas such as abortion, the right to privacy and homosexual rights, and child pornography. 

We properly rejected any notion of preserving ideological balance when we confirmed Justice Ginsburg to replace Justice White on the Court.  The same should hold now that President Bush’s well-qualified nominee, Judge Alito, has been chosen to replace Justice O’Connor.

As I stated at the hearing for now-Chief Justice Roberts, courts today have injected themselves into many political debates.  Federal courts now are redefining the meaning of marriage, deciding when a human life is worthy of protection, permitting the Government to transfer private property from one person to another under the Takings Clause, and then interpreting our Constitution on the basis of foreign and international law.

The Supreme Court has also issued – and never reversed – numerous decisions repugnant to the Constitution’s vision of human dignity and equality.  Although cases like Brown v. Board of Education in my home state are famous for correcting constitutional errors, there remain several other instances in which the Court strayed, and stayed, beyond the Constitution and laws of the United States.

Among the Supreme Court’s most famous exercises of political power are the cases of Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a constitutional right to abortion.  These decisions removed a fully appropriate political judgment from the people of the several states, and has led to the almost complete killing of whole classes of people in America.  Between 80%-90% of the children in America diagnosed with Down Syndrome this year will be killed in the womb . . . simply because they have a positive genetic test, which can be wrong, for Down Syndrome.  America is poorer because of such a policy.  We are at our best when we help the weakest.  The weak make us strong.  To kill them makes us all the poorer, insensitive, callous, and jaded.  Roe has made it not only possible but constitutional to kill a whole class of people simply because of their genetic makeup.  This is the effect of Roe. 

According to one widely-praised Justice, the Supreme Court’s abortion decisions “have . . . worked a major distortion in the Court’s constitutional jurisprudence. . . . That the Court’s unworkable scheme for constitutionalizing . . . abortion has had this institutionally debilitating effect should not be surprising . . . since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade.” 

Who was that Justice?  The very person Judge Alito would replace if confirmed: Justice Sandra Day O’Connor, passionately dissenting in Thornburgh v. American College of Obstetricians & Gynecologists.

Aside from Roe and Doe, there are other decisions in which the Court has ignored its role in interpreting the law and has disregarded human dignity.  In a 1927 case called Buck v. Bell, for instance, the Supreme Court held that the state of Virginia could sterilize women who were mentally retarded, or what they called at the time “feeble-minded.”  In an opinion by Justice Oliver Wendell Holmes, the Court held that the sterilization program was consistent with the Fourteenth Amendment’s guarantees of due process and equal protection. 

Stepping into this unfortunate thicket of law and lawlessness is Samuel Alito.  President Bush has called upon Judge Alito in this unique moment in our constitutional history to help bring restraint and respect back to the Court.

Based upon my review of the record, Judge Alito has demonstrated a strong and enduring commitment to the rule of law and to equal justice for all.

One area in which he has repeatedly shown this commitment is the First Amendment.  In cases involving expressions of faith in the public square, Judge Alito has shown great concern for constitutional traditions and text, appropriate respect for Supreme Court precedents, and for religious, gender, and other minorities who are facing the power of the state.

For example, in Abramson v. William Patterson College, he held that a former state college professor who was an Orthodox Jew was entitled to pursue her claim that the college harassed and ultimately fired her on the basis of her religion.  Although the professor had received positive reviews for her teaching, she claimed that school administrators mocked and made it hard for her to observe her faith.  The district court threw out the plaintiff’s claim, saying there was insufficient evidence of intentional discrimination.  Yet he reversed, keeping the courthouse door open for her.  He made clear in his opinion that “Title VII of the Civil Rights Act of 1964 does not permit an employer to manipulate job requirements for the purpose of putting an employee to the ‘cruel choice’ between religion and employment.”

I am confident that Judge Alito will be a superb addition to a Supreme Court in need of interpretive integrity.  That confidence is heightened by widespread support his nomination has gained from those who know him as a student, classmate, subordinate, superior, nominee, colleague, and judge.

He also has received strong support from academics, former law clerks, practitioners, and fellow judges of all political persuasions, who say that he faithfully interprets the law and reaches the result that the law requires, even if he personally disagrees with that result.  He also is a modest man of sound judicial temperament, who conducts himself with a quiet dignity becoming of the robe.

As we move forward with this hearing and, I hope, an up-or-down vote on confirmation, I am confident that Judge Alito’s extensive record of public service and inspiring personal story will make clear that he is the right man for this moment. 

Congratulations again to you and your family, Judge, and I look forward to an excellent discussion with you on the meaning of the Constitution and the role of the courts in American life.

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