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DeWine's opening statement on Alito

Opening statement of  Sen.  Mike DeWine, R-Ohio, as prepared for delivery at the Supreme Court  confirmation hearing for Samuel Alito.
/ Source: NBC News

The opening statement of Sen. Mike DeWine, R-Ohio, as prepared for delivery at the Supreme Court confirmation hearing for Samuel Alito.

Judge Alito, I want to welcome you and your family. I appreciate you being here with us today.

The Constitution gives the Senate a solemn duty, a solemn duty when it comes to the nomination of any individual to sit on the United States Supreme Court.

While the president is to nominate that individual, we in the Senate must provide our advice and consent. This function is not well-defined. The Constitution does not set down a road map. It does not require hearings. In fact, it does not even require questioning on your understanding of the Constitution nor the role of the Supreme Court.

To me, however, these things are certainly important. The reason is obvious. When it comes to the Supreme Court, the American people have only two times when they have any input into how our Constitution is interpreted and who will have the privilege to do so.

First, we elect a president who has the power to nominate justices to the Supreme Court.

Second, the people, acting through their representatives in the Senate, have their say on whether the president's nominee should in fact be confirmed.

Judge Alito, I want to use our time together today to make a point about democracy.

When it comes to our Constitution, judges perform, certainly, an important role. But the people, acting through their elected representatives, should play an even more important role.

After all, our Constitution was intended as a popular document. It was drafted and ratified by the people. It established democratic institutions. It entrusts the people with the power to make the tough decisions. And, in most cases, it prefers the will of the people to the unchecked rule of judges.

If confirmed, Judge, you should always keep this in mind.

In my opinion, Chief Justice Roberts put it best during his recent confirmation hearings. And he said, and I quote, The framers were not the sort of people, having fought a revolution to get the right of self-government to sit down and say, 'Well, let's take all the difficult issues before us and let's have the judges decide them.' That would have been the farthest thing from their mind, end of quote.

Sometimes, Judge, however, I fear that the Supreme Court forgets this advice.

In the last 15 years, in fact, the court has struck down, in whole or in part, more than 35 acts of this Congress and nearly 60 state and local laws.

Without question, the court does play a vital role in our constitutional system. Sometimes local, state and federal laws so clearly run afoul of the Constitution that the court must step in and strike them down. In most cases, the court performs this admirably and with great restraint.

But in recent years, the court has struck down some laws that, in my opinion, did not serve such a fate.

Take, for instance, the Americans with Disabilities Act. It passed this Congress with overwhelming bipartisan support. The law was supported by an extensive factual record and was based on our government's longstanding constitutional power to fight discrimination wherever it exists.

When the court considered the ADA in the Garrett case, however, it ignored the act's broad support, cast aside the legislative record and struck down a portion of the law.

The decision was a close one, 5-4. The majority relied on a highly controversial legal theory and the case evoked a vigorous dissent.

This is precisely my problem with Garrett. In such a difficult case, where the Constitution does not clearly support the majority's decision, the proper response is not to strike down the law. In such a case, the court should defer to the will of the people.

In other ways, Judge, the court's recent decisions have made life more difficult for the democratic institutions that perform the day- to-day work of our nation.

Recent cases involving affirmative action and the posting of the Ten Commandments on public property would seem to me at least to prove the point.

The court has upheld one affirmative action program at the University of Michigan but struck down another one, and has allowed the posting of the 10 Commandments outside of a public building but banned it on the inside in another case.

To add to the confusion, some of the court's decisions involved multiple concurrences and dissents, making it hard even for lawyers and judges to figure out what the law is and why.

Chief Justice Roberts mentioned this problem at his hearing, and in one of his final statements as chief justice, William Rehnquist noted that one of the court's decisions had so many opinions within it that he, and I quote, didn't know we had so many justices on the court.

What has emerged in certain areas, therefore, is a patchwork, a patchwork that leaves local officials, state legislators, members of Congress and the public guessing what the law permits and what it does not.

In 1937, President Franklin Roosevelt reminded us that the Constitution is, and I quote, a layman's document, not a lawyer's contract.

But that very document does little to serve people when Supreme Court decisions are written so that even high-priced lawyers can't figure them out.

Now, I'm not the first to have raised these democratic concerns. Many have faulted the court for its lack of clarity in certain cases and many have criticized its recent lack of deference to decisions made by state legislatures and Congress.

In fact, some have even suggested that this recent trend has transformed our democracy from one founded on, We the people, to one ruled by, We the court.

To me, the criticism has some force. The Constitution empowers the people to resolve our day's most contentious issues. When judges forget this basic truth, they do a disservice to our democracy and to our constitution.

Judges are not members of Congress, they're not state legislators, governors, nor presidents. Their job is not to pass laws, implement regulations, nor to make policy.

To use the words of Justice Byron White, words that I quoted at our last Supreme Court hearing, The role of the judge is simply to decide cases -- to decide cases, nothing more.

And, Judge, from what I've seen so far, you don't need much reminding on this score. Your decisions are usually brief and to the point. You write with clarity and common sense. And in most cases, you defer to the decision-making of those closest to the problem at hand.

I don't expect to agree with every case that you decide, but your modest approach to judging seems to bode well for our democracy.

Over the next several days, the members of this committee will question you to find out what kind of justice you will be. This hearing is really our opportunity to try to answer that question.

Our constitutional system is founded on democracy: the will of the people, not the unchecked rule of judges. If confirmed, it will be your job to faithfully interpret our Constitution and to defend our democracy, case by case.

I wish you well.