No Senator's vote, except for a declaration of war or authorization for the use of force, is as important as voting to confirm a United States Supreme Court nominee for a lifetime appointment. Judge Samuel Alito comes to this hearing with extensive experience as a government lawyer, prosecutor and judge. From his over 4800 votes and 361 opinions in fifteen years on the federal bench, cases could be selected which would place him at any and every position on the judicial spectrum.
This hearing will give Judge Alito a full opportunity to address the issues of concern to 280 million Americans in response to probing questions from 18 Senators representing their diverse constituencies. I have reserved my own judgment on the nomination until the hearing is concluded. As Chairman, I am committed to conducting a full, fair and dignified hearing. Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should, in substantive fact and in perception, be for all Americans.
The Constitution calls for the United States Senate to confirm or reject the President's nominee and this hearing is the Senate's way to evaluate his qualifications. There is no firmly established rule as to how much a nominee must say to be confirmed. While I personally consider it inappropriate to ask a nominee how he would vote on a specific matter likely to come before the Court, Senators may ask whatever they choose and the nominee is similarly free to respond as he chooses. It has been my experience that the hearings are a subtle minuet with nominees answering as many questions as they think they have to in order to be confirmed.
I believe it is accurate to say that a level playing field has been maintained for Judge Alito in this process. Regrettably, White House Counsel Harriet Miers' nomination was determined on the op-ed pages and radio and TV talk shows. Based on my work with her as White House Counsel and studying her thirty-five year professional record, I believe she was entitled to have had a hearing before this Committee to state her case. We must resist having nomination proceedings turn into political campaigns.
Last year when President Bush had two vacancies to fill, there was some concern that the ideological complexion of the Court might be changed. The preliminary indications from Chief Justice Roberts' performance on the Court and his Judiciary Committee testimony on "modesty," "stability" and not "jolting" the system suggest that he will not move the Court in a different direction. If that holds true, Judge Alito, if confirmed, may not be the swing vote regardless of what position he takes on the judicial spectrum.
This hearing comes at a time of great national concern about the balance between civil rights and the President's national security authority. The President's constitutional war powers as Commander-in-Chief to conduct electronic surveillance appear to conflict with Congressional legislation in the Foreign Intelligence Surveillance Act. This conflict could activate the considerations raised in Justice Jackson's historic concurrence in the Youngstown Steel Seizure case when he wrote:
"When the President acts pursuant to an expressed or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right and all that Congress can delegate. ... When the President acts in absence of either a Congressional grant or denial of authority, he can only rely upon his own independent powers. ...When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter."
It is a critical analysis for as Justice Jackson noted:
"What is at stake is the equilibrium established by our constitutional system."
In addition to the relative constitutional powers of Congress and the President, I intend to question Judge Alito about the recent decisions in which the Supreme Court has denigrated Congress in holding legislation unconstitutional. For example, in the face of a mountain of data supporting legislation to protect women against violence, the Supreme Court declared the Act unconstitutional because "our method of reasoning" was flawed. In cases involving the Americans with Disabilities Act, the Supreme Court utilized a recently-created, meaningless test on whether the legislation was "congruent and proportionate".
Justice Scalia accurately called it a "flabby test," which casts the Court in the role of "Congress' taskmaster" to see if Congress had done its "homework." The "congruence and proportionality" standard and the insulting rejection of Congress' "method of reasoning" are thinly-veiled rationales to enable the Court to usurp Congressional authority and to legislate from the Bench.
Nevertheless, the dialogue between Congress and the Court is an important one. Each branch has vital constitutional roles to play. Recent legislation, for example, has raised serious constitutional issues by limiting judicial habeas corpus review of detainees' rights.
These subjects will figure prominently in these hearings along with issues relating to freedom of religion and speech, voting rights, affirmative action, and defendants' rights, which includes concerns surrounding the death penalty, and others.
Perhaps the dominant issue is the widespread concern about Judge Alito's position on a woman's right to choose. This has arisen, in part, because of a 1985 statement by Judge Alito that the Constitution does not protect the right to an abortion, his advocacy in the Solicitor General's Office to modify Roe v. Wade and the dissenting portion of his
opinion in Casey v. Planned Parenthood in the Third Circuit. This hearing will give Judge Alito the public forum to address the issue, as he has with Senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead he will weigh factors such as stare decisis on the precedents, women's (and men's, too) reliance on Roe, and whether Roe is embedded in the culture of our nation.
The history of the Court is full of surprises on this issue. The major case upholding Roe is Casey v. Planned Parenthood, where the landmark opinion was written jointly by Justices O'Connor, Kennedy and Souter. Justices O'Connor and Kennedy were outspoken in opposition to abortion rights before joining the Court. As New Hampshire's Attorney General, David Souter had opposed repealing his state's law banning abortions even after Roe had declared it unconstitutional. At the time of Justice Souter's confirmation hearing, there was a "Stop Souter Rally" by the National Organization for Women on Capitol Hill. The red letter poster said "Stop Souter or Women Will Die".
There is reason to believe that our Senate confirmation hearings may be having an effect on Supreme Court nominees on their later judicial duties. Years after their hearings, Supreme Court justices talk to me about our dialogues at their hearings. Justice Souter, for example, wrote me a letter in which he indicated he was still thinking about the question I asked him at his hearing concerning whether Korea was a war. The process has evolved to a point where nominees now meet most of the Senators. In this process, they get an earful. While no promises are extracted, statements are made by nominees which may well influence their future decisions. Chief Justice Roberts will have a tough time giving a "jolt" to the system after preaching "modesty" and "stability".
While avoiding commitments on how they will decide specific cases, the nominees frequently give some answers to win confirmation at their hearings which they are likely to remember when they make their decisions. In my opinion, this evolving process is very healthy for our system in influencing nominees by a dialogue on how Americans think as articulated by their elected representatives.
There is a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our Constitutional process as the President nominates, the Senate confirms or rejects, and the successful nominee ascends the Bench.
While it may be a bit presumptuous to say, I believe the Framers would be proud and pleased to see how well their Constitution is being applied. It certainly has been and is an honor to preside and participate in these historic confirmation proceedings during the past.