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Leahy's opening statement on Alito

Opening statement of  Sen.  Patrick Leahy, D-Vt., as prepared for delivery at the confirmation hearing for Judge Samuel Alito.
/ Source: NBC News

The opening statement of Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, as prepared for delivery at the confirmation hearing for Judge Samuel Alito to the Supreme Court.

The challenge for Judge Alito in the course of these hearings is to demonstrate that he will protect the rights and liberties of all Americans and serve as an effective check on Government overreaching.  The President has not helped his cause by withdrawing his earlier nomination of Harriet Miers in the face of criticism from a narrow faction of his own party.  Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure Republican factions while leaving the American people in the dark.  No President should be allowed to pack the courts, and especially the Supreme Court, with nominees selected to enshrine presidential claims of Government power.  The checks and balances that should be provided by the courts, Congress and the Constitution are too important to be sacrificed to a narrow, partisan agenda.

This hearing is the opportunity for the American people to learn what Samuel Alito thinks about their fundamental constitutional rights and whether he will serve to protect their liberty, their privacy and their autonomy from Government intrusion.  The Supreme Court belongs to all Americans, not just the person occupying the White House, and not just to a narrow faction of a political party.  

The Supreme Court is the ultimate check and balance in our system.  Independence of the courts and its members is crucial to our democracy and way of life.  The Senate should never be allowed to become a rubber stamp, and neither should the Supreme Court.  I will ask Judge Alito to demonstrate his independence from the interests of the President.  

This is a nomination to a lifetime seat on the nation's highest court that has often represented the decisive vote on constitutional issues.  The Senate needs to make an informed decision about this nomination.  That means knowing more about Samuel Alito's work in the Government and knowing more about his views.  I intend to ask about the disturbing memorandum he wrote to become a political appointee in the Meese Justice Department, in which he professes concern with the fundamental principle of "one person, one vote," a principle of the equality that is the bedrock of our laws.

This hearing is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter of the meaning of Constitution and the law.  Has he demonstrated a commitment to the fundamental rights of all Americans?  Will he allow the Government to intrude on Americans' personal privacy and freedoms?  In a time when this Administration seems intent on accumulating unchecked power, Judge Alito's views on Executive power are especially important.  It is important to know whether he would serve with judicial independence or as a surrogate for the President who nominated him.  

The public conversation with Judge Alito in this hearing room over the next several days is important.  It is the people's Constitution and the people's rights that we are all charged with protecting and preserving.  Through this hearing we embark on the constitutional process that was designed to protect those rights.

As we begin these hearings, I am reminded of a photograph that hangs in the National Constitution Center in Philadelphia, Pennsylvania, the home of our Chairman.  It shows the first woman ever to serve on the Supreme Court of the United States taking the oath of office in 1981.  Justice Sandra Day O'Connor serves as a model Supreme Court Justice. 

She is widely recognized as a jurist with practical values and a sense of the consequences of the legal decisions being made by the Supreme Court.  I regret that some on the extreme right have been so critical of Justice O'Connor and have adamantly opposed the naming of a successor who shares her judicial philosophy and qualities.  Their criticism reflects poorly upon them.  It does nothing to tarnish the record of the first woman to serve as an Associate Justice of the Supreme Court of the United States.  She is a Justice whose graciousness and sense of duty fuels her continued service more than six months after she announced her intention to retire. 

The Court that serves America should reflect America, but with this nomination the Court has lost a measure of diversity.  There was no dearth of highly-qualified women, Hispanics, African Americans and other individuals who could well have served as unifying nominees while adding to the diversity of the Supreme Court.  I look forward to the time when the membership of the Supreme Court is more reflective of the country it serves.  

As the Senate begins its consideration of President Bush's current nomination, his third, of a successor to Justice O'Connor, we do so mindful of her critical role on the Supreme Court.  Her legacy is one of fairness that I want to see preserved.  Justice O'Connor has been a guardian of the protections the Constitution provides the American people. 

Of fundamental importance, she has come to provide balance and a check on Government intrusion into our personal privacy and freedoms.  In the Hamdi decision, she rejected the Bush Administration's claim that it could indefinitely detain a United States citizen.  She upheld the fundamental principle of judicial review over the exercise of Government power and wrote that even war "is not a blank check for the President when it comes to the rights of the Nation's citizens."  She held that even this President is not above the law.

Her judgment has also been critical in protecting our environmental rights.  She joined in 5-4 majorities affirming reproductive freedom, religious freedom and the Voting Rights Act. 

Each of these cases makes clear how important a single Supreme Court Justice is.  It is crucial that we determine what kind of Justice Samuel Alito would be, if confirmed, and if he would be an independent justice.

It is as the elected representatives of the American people, all the people, that we in the Senate are charged with the responsibility to examine whether to entrust their precious rights and liberties to this nominee.  The Constitution is their document.  It guarantees their rights from the heavy hand of Government intrusion and their individual liberties to freedom of speech and religion, to equal treatment, to due process and to privacy.  This is their process. 

The federal judiciary is unlike the other branches of Government.  Once confirmed, federal judges serve for life.  There is no court above the Supreme Court of the United States.  The American people deserve a Supreme Court Justice who inspires confidence that he, or she, will not be beholden to the President but will be immune to pressures from the Government or from partisan interests.

Last October, the President succumbed to partisan pressure from the extreme right of his party by withdrawing his nomination of Harriet Miers.  By withdrawing her nomination and substituting this one, the President has allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote.  That eye-opening experience for the country demonstrated what a vocal faction of the Republican Party really wants:  They do not want an independent federal judiciary.  They demand judges who will guarantee the results that they want.

This nomination is being considered against the backdrop of another recent revelation -- that the President has, outside the law, been conducting secret and warrantless spying on Americans for more than four years.  It comes as members of the Bush Administration and Republican congressional leadership face criminal investigations and indictments in corruption probes.  This is a time when the protections of Americans' liberties are directly at risk, as are the checks and balances that have served to constrain abuses of power for more than 200 years.  The Supreme Court is relied upon by all Americans to protect their fundamental rights.

I have yet to decide how I will vote on this nomination.  I will base my determination on the whole record at the conclusion of these hearings -- just as I did in connection with the nomination of Chief Justice Roberts whose nomination I came to support.   

The stakes for the American people could not be higher. At this critical moment, Senate Democrats serving on this Committee will perform our constitutional Advice and Consent responsibility with heightened vigilance.  I urge all Senators, Republicans, Democrats and Independents, to join with us in a serious consideration of this pivotal nomination.  The Supreme Court is the guarantor of the liberties of all Americans.  The appointment of the next Supreme Court Justice must be made in the people's interest and in the Nation's interest, not to serve the special interests of a partisan faction.