The opening statement of Sen. Dick Durbin, D-Ill., as prepared for delivery at the Supreme Court confirmation hearing for Samuel Alito.
Thank you very much, Mr. Chairman.
Judge Alito, welcome to you and your family before the Judiciary Committee.
You've heard time and again from my colleagues why this seat on the Supreme Court means so much. They've quoted the statistics of 193 5-4 decisions where Sandra Day O'Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, worker principle, which bears repeating, of separation of church and state. There was real wisdom in the decision of our forefathers in writing a Constitution that gave us an opportunity to grow as such a diverse nation, and we should never forget it.
Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. We believe -- many of us -- that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other. And that's why we are so mindful of the importance of our task.
Yesterday, the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. I believe the burden of proof is yours, Judge Alito, the burden of demonstrating to the American people and this committee that you or any nominee is worthy to serve on the highest court to succeed Sandra Day O'Connor.
My friend, Illinois Senator Paul Simon, once said on the same committee that the test for a Supreme Court nominee is not where he stands on any one specific issue. The test is this: Will you use your power on the court to restrict freedom or expand it?
In the simplest terms, I think Paul Simon got it right. That is the best test because the Supreme Court is the last refuge in America for our rights and liberties. In my lifetime, it's the Supreme Court, not Congress, that integrated our public schools, that allowed people of different races to marry, and established the principle that our government should respect the value of privacy of American families. These decisions are the legacy of justices who chose to expand American freedom.
If you're confirmed, Judge Alito, will you continue their legacy?
You and I spoke about the Griswold decision in my office. Hard to imagine 40 years ago people could be convicted of a crime, fined, sent to prison for using the most common forms of birth control. The Supreme Court looked at that decision and looked at that case and said, "That's just wrong." We may not find the word "privacy" in the Constitution. That's just inherent to our freedom as Americans.
It seems like a given now. Who would even question it? But it hasn't been that long ago that up here on Capitol Hill we were involved in a bitter debate over the tragedy of Terri Schiavo. And Republican congressional leaders threatened federal judges with impeachment if they didn't agree to intervene into that family's painful, personal decision.
We see it in attempts on Capitol Hill to impose gag rules on rules on doctors on what they can say to their patients about family planning. And we certainly see it now with an effort by this government to tap our phones; invade our medical records, credit information, library records and the most sensitive personal information in the name of national security.
Now, Justice O'Connor was the critical fifth vote to protect our right of privacy. We want to know whether you will be that vote as well. You were the only judge on your court to authorize a very intrusive search of the 10-year-old girl. You were the only judge on your court who voted to diminish the right of privacy in the case the Planned Parenthood v. Casey, a position that was specifically rejected by the Supreme Court.
And as a government lawyer, you wrote that you personally believe very strongly the Constitution does not protect the right to an abortion.
Like many, I have thought about this issue of abortion time and again. It is not an easy issue for most people. I thought about the law, the impact of my personal religious beliefs and feelings, I thought about the real lives of people and the tragic experiences of the women I have met.
And I came to believe over the years that a woman should be able to make this agonizing decision with her doctor and her family and her conscience, and that we should be very careful that we don't make that decision a crime except in the most extreme circumstances.
There is also the issue of personal privacy when it comes the executive power. Throughout our nation's history, whether it was habeas corpus during the Civil War, Alien and Sedition Acts in World War I, or Japanese internment camps in World War II, presidents have gone too far.
And, in going too far, they have taken away the individual rights of American citizens.
The last stop to protect those rights and liberties is the Supreme Court. That's why we want to make certain that, when it come to the checks and balances of the Constitution, that you will stand with our founding fathers in protecting us from a government or a president determined to seize too much power in the name of national security.
As a government lawyer, you pushed a policy of legislative construction designed to make congressional speeches to the Federalist Society, you've identified yourself as a strong proponent of the so-called unitary executive theory. That's a marginal theory at best, and yet it's one that you've said you believe.
This is not an abstract debate. The Bush administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism.
Under this theory, the Bush administration has claimed the right to seize American citizens in the United States and imprison them indefinitely without a charge.
They've claimed this right to engage in torture even though American law makes torture are a crime.
Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment that passed the Senate 90-9.
What was the rationale? The unitary executive theory, which you've spoken of.
In the Hamdi case, Justice O'Connor wrote for the plurality, and it's been quoted many times, "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
If you're confirmed, Judge Alito, who will inspire your thinking if this president or any president threatens our fundamental constitutional rights? Will it be the Federalist Society or will it be Sandra Day O'Connor?
Two months ago, Rosa Parks was laid to rest. Her body lie in state in the Capitol Rotunda, a fitting tribute to the mother of our modern civil rights movement. Her courage is well-known.
The courage of federal Judge Frank Johnson, whom we talked about, is well-known as well. He was the one that gave the legal authority for the right to march from Selma to Montgomery, and he suffered dearly for it. He was ostracized and rejected. His life was threatened as a result of it.
When we met in our office, Judge Alito, you told me about how your father as a college student was almost expelled for standing up to the college president who decided that the school basketball team should not use its African-American players against an all-white opponent. That university president didn't want to offend their all- white opponent. But your dad stood up and you were so proud of that moment in your family history.
I admire your father's courage as well. But just as we do not hold the son responsible for the sins of the father, neither can we credit the sun for the courage of the father.
As Supreme Court justice, would you have the courage to stand up for civil rights even if it's unpopular?
We want to understand what you meant in 1985 when you said from the heart that you disagreed with the Warren court on reapportionment, the one-man, one-vote decision.
That was a civil rights decision.
We want you to explain your membership in an organization that you highlighted at Princeton University that tried to challenge the admission of women and minorities.
And I think we want to make certain of one thing: We want to make certain that every American who stood in silent tribute to Rosa Parks hopes that you will break your silence and speak out clearly for the civil rights that define our unity as a nation.
There have been many controversial cases alluded here. Some people have questioned: What's the difference? What difference in my life does it make if Sam Alito is on the bench or if he isn't Why would I care if it's a narrow interpretation or a broad interpretation of the law? How does it affect my life?
We know it affects everyone's life. We were reminded just very recently with a tragedy that was in the headlines. In one of your dissents, you would have allowed a Pennsylvania coal mine to escape worker safety and health requirements required by federal law. Last week's tragedy at the Sago mine reminds us that such a decision could have life-and-death consequences.
Judge Alito, millions of Americans are concerned about your nomination. They're worried that you would be a judicial activist who would restrict our rights and freedoms. During your hearing, you'll have a chance to respond, and I hope you do.
More than any recent nominee, your speeches, your writings, your judicial opinions make it clear that you have the burden to prove to the American people that you would not come to the Supreme Court with any political agenda. Clear and candid answers are all that we ask.
I sincerely hope you can convince the United States Senate and the American people that you will be a fifth vote on the Supreme Court that the American people can trust to protect our most basic important freedoms and preserve our time-honored values.
Thank you very much.