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Kennedy's opening statement on Alito

Opening statement of Senator Edward Kennedy, D-MA,  as prepared for delivery at the confirmation hearing for Judge Samuel Alito to the United States Supreme Court.
/ Source: NBC News

The opening statement of Sen. Edward Kennedy, D-Mass., as prepared for delivery at the confirmation hearing for Judge Samuel Alito.

Judge Alito, I join in welcoming you and your family to this committee.

I appreciated the opportunity to visit with you in my office a few weeks ago. I was particularly impressed by your personal family story of how you were encouraged to do well and contribute to the community. I also applaud your dedication to public service throughout your lifetime.

Supreme Court nominations are an occasion to pause and reflect on the values that make our nation strong and just and fair. And we must determine whether a nominee has a demonstrated commitment to those basic values.

Will a nominee embrace and uphold the essential meaning of the four words inscribed above the entrance of the Supreme Court building - "equal justice under law".

Justice Lewis Powell spoke for all of us when he said, "Equal justice under law is perhaps the most inspiring idea of our society. It is one of the ends for which our entire legal system exists."

As we have seen from Justice O'Connor's example, even one justice can profoundly alter the meaning of those words for our citizens. Even one justice can deeply affect the rights and liberties of the American people. Even one justice can advance or reverse the progress of our journey.

So the question before us in these hearings is this: Does Judge Alito's record hold true to the letter and spirit of equal justice? Is he committed to the core values of our Constitution that are at the heart of our nation's progress? Can he truly be evenhanded and fair in his decisions?

In a way, Judge Alito has faced this issue before as a nominee to the Court of Appeals. I had the privilege of chairing his confirmation hearing in 1990. At that time, he had practiced law for fourteen years, but only represented one client - the United States government. And I asked whether he believed he could be impartial in deciding cases involving the government.

In that hearing, Judge Alito said on the record that the most important quality for a judge is "open-mindedness to the arguments."

He promised the Committee that he would make "a very conscious effort to be absolutely impartial."

We took him at his word, and overwhelmingly confirmed him to the Third Circuit Court of Appeals.

We now have the record of Judge Alito's fifteen years on the bench, and the benefit of some of his earlier writings that were not available fifteen years ago. I regret to say that the record troubles me deeply.

In an era when the White House is abusing power, is excusing and authorizing torture, and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling. Under the President's spying program, there are no checks and no balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the President vows to continue spying on American citizens.

Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security.

I am gravely concerned by Judge Alito's clear record of support for vast presidential authority, unchecked by the other two branches of government. In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans. And in his writings and speeches, he has supported a level of overreaching presidential power that frankly most Americans find disturbing and even frightening.

In fact, it is extraordinary that each of the three individuals this President has nominated for the Supreme Court - Chief Justice Roberts, Harriet Miers, and now Judge Alito - has served not only as a lawyer for the Executive Branch, but has defended the most expansive views of presidential authority. Perhaps that is why this President nominated them.

But as Justice O'Connor stated, even a state of war is not a "blank check" for a President to do whatever he wants. The Supreme Court must serve as an independent check on abuses by the executive branch, and a protector of our liberties, not as a cheerleader for an imperial presidency.

There are other areas of concern. In an era when too many Americans are losing their jobs, or working for less and trying to make ends meet, in close cases Judge Alito has ruled the vast majority of the time against the claims of individual citizens. He has acted instead in favor of the government, large corporations, and other powerful interests. In a study by a well-respected expert, Professor Cass Sunstein of the University of Chicago Law School, Judge Alito was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom.

In an era when America is still too often divided by race and by riches, Judge Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job. In fifteen years on the bench, not one.

And when I look at that record in light of his 1985 job application to the Reagan Justice Department, it is even more troubling. That document lays out an ideological agenda that highlights his pride in belonging to an alumni group at Princeton that opposed the admission of women and proposed to curb the admission of racial minorities. It proclaims his legal opinion that the Constitution does not protect the right of women to make their own reproductive decisions. It expresses outright hostility to the basic principle of one person, one vote, affirmed by the Supreme Court as essential to ensuring that all Americans have a voice in their government.

This application was not a youthful indiscretion. It was a document prepared by a mature, 35-year-old professional.

Finally, many of us are concerned about conflicting statements that Judge Alito has made in response to questions from this Committee and others. As Chairman Specter has stated, this confirmation largely depends on the credibility of Judge Alito's statements to us. And we have questions.

When asked about the ideological statements and specific legal opinions in his 1985 application, Judge Alito has dismissed those statements as "just applying for a job."

When he was before this committee in 1990, applying for a job to the circuit court, he promised under oath that he would recuse himself from cases involving Vanguard, the mutual fund company in which he had most of his investments. But as a judge, he participated in a Vanguard case anyway, and has offered many conflicting reasons to explain why he broke his word.

We need to get to the bottom of this matter to assure ourselves that what Judge Alito says in these hearings will not be just words, but pledges that guide him in the future, if he is confirmed.

Judges are appointed "by and with the advice and consent of the Senate," and it is our duty to ask questions on great issues that matter to the American people, and to speak for them.

Many Republican Senators certainly demanded answers from Harriet Miers. We should expect no less from Judge Alito. This is no time for a double standard.

If confirmed, Judge Alito could serve on the Court for a generation or more, and the decisions he will make as a Justice will have a direct impact on the lives and liberties of our children, our grandchildren and even our great grandchildren. We have only one chance to get it right and a solemn obligation to do so.

So Judge Alito, I have serious questions to ask you. I do congratulate you on your nomination. And I look forward to your answers in these hearings.