FOR IMMEDIATE RELEASE: January 5, 2006
Schumer: Alito Stonewalling Could Jeopardize Nomination
Supreme Court Nominee Has Greater Obligation to Answer Questions on Presidential Authority, Commerce Clause, and Roe
Every Nominee Has an Obligation to Answer Questions and Be Candid About Their Views, But Even More So When the Nominee Has Already Expressed a Controversial Opinion on a Given Subject
Even Under So Called ‘Ginsburg Standard,’ Alito Has an Obligation to Answer These Quest
Today, Sen. Chuck Schumer, the top Democrat on the Judiciary Subcommittee on the Courts, addressed the Center for American Progress and American Constitution Society regarding the nomination of Judge Samuel Alito to the Supreme Court on the eve of the Senate Judiciary Committee hearings next week. Schumer’s speech stressed the greater obligation that Judge Alito has than previous nominees to answer questions at the hearing because many of his known legal views are way out of the judicial mainstream. Schumer also suggested that stonewalling by Judge Alito could jeopardize his nomination to the highest court in the land.
Schumer’s speech follows:
Judge Alito’s Unique Burden
I would like to thank the Center for American Progress and the American Constitution Society for sponsoring this event.
After 11 years without a single Supreme Court nomination, the Senate sits on the eve of considering the second nomination to the High Court in just four months (the third if you count Harriet Miers).
People have asked me how this nomination is different from the Roberts’s nomination, how these hearings will be different from the last.
As I have been saying for more than four years now, every Supreme Court nominee has a solemn responsibility at his or her confirmation hearing to be candid and forthright. Every nominee has an obligation to answer questions about his or her legal philosophy and method of legal reasoning.
In the post-Harriet Miers world, when so many on the right were saying the same things about the obligation of a nominee to answer questions, that position is now widely accepted.
Only in that way do we honestly fulfill our obligation to give advice and consent; only in that way do the American people get to participate in understanding what type of Justice their elected representatives are voting on.
The obligation, however, is greater for some nominees. It is greater when a nominee has taken a clear position on a legal matter.
That, I submit, is the case with Judge Alito. While there are many, many questions raised by Judge Alito’s opinions and writings, today I want to highlight several areas that show the need for Judge Alito to answer questions fully and forthrightly at the hearings next week – Judge Alito’s written record on executive power; his written record on Congressional power; and his written record on the issue of personal autonomy and choice, just to name a few.
On at least these issues and perhaps many others, Judge Alito has more to answer for than any other Supreme Court nominee in memory.
That is because the obligation increases when a nominee has spoken out – in a clear and direct way – on a particular issue, as Judge Alito has.
When that nominee has taken a position on a legal matter – particularly when he has done so strongly and stridently, as Judge Alito has – there is a greater obligation to answer questions.
The logic of the mantra, repeated by John Roberts at his hearing, that one could not speak on a subject because the issue was likely to come before him quickly evaporates when the nominee has a record on the subject.
Thus, even under the so-called “Ginsburg precedent” – which was endorsed by Judge Roberts, Republican Senators, and the White House – Judge Alito must answer questions on topics that he has written about.
1. Executive Power and Warrantless Wiretapping
On the issue of executive power, Alito has defended a radical theory of separation of powers called the “unitary executive” theory. This theory holds that Congress has no power to create any independent commission or law that in any way involves an act that Alito and his supporters think involves any type of execution of law. He endorsed, in writing, a truly vast power for the President.
Under this view of separation of powers, the Independent Counsel Act was unconstitutional, the Sentencing Commission is unconstitutional, and the FTC is unconstitutional. The President likely has completely unchecked authorities to act without congressional oversight in the area of foreign affairs despite the fact that the Constitution entrusts only Congress with the power to “declare War.”
Under Judge Alito's view, the 9/11 Commission may have been an unconstitutional encroachment upon the “unitary executive.”
The President would seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.
Also, in a 1984 memo to the Solicitor General, Alito examined the question whether the Attorney General and his staff should have absolute immunity from suit even when they blatantly or intentionally violate the Constitution, including the unconstitutional wiretapping of American citizens. Alito wrote that he did “not question that the Attorney General should have this immunity,” but noted that “for tactical reasons, I would not raise the issue here.”
Does he still hold these views? Does he believe in any checks on Presidential power? Does he believe that warrantless wiretapping of Americans is Constitutional? Does he believe the FTC should not exist? We deserve straight answers at the hearing.
These issues have never been more important in light of recent revelations about warrantless wiretapping.
2. Congressional Power under the Commerce Clause
Similarly, on the issue of federalism, he has taken an extreme view. He ruled in US v. Rybar that Congress had exceeded its power by prohibiting the possession of machine guns.
His opinion was a major cutback on Congress’s power to protect the safety and welfare of American citizens. The other judges on his court all disagreed with him. And all five other circuits which had considered the issue disagreed with him.
Since his decision in the machine gun case, the Supreme Court has cut back, in a case called Raich, on what the Rehnquist Court tried to do in the 1990's in a 2004 medical marijuana case.
I specifically asked Judge Alito in our private meeting to consider whether that case would have affected his decision in the machine gun case; whether he agrees with the reasoning of Raich. He said he would think about it. I hope he has, and he has an obligation to provide an answer.
Does he still hold these cramped views of Congressional power? Does he agree with the reasoning of the recent medical marijuana case, which restored some of the Congressional authority the Rehnquist Court had tried to take away in the 1990's? We deserve straight answers at the hearing.
And of course, here is what Judge Alito famously said about reproductive rights. In the widely-reported job application he submitted to the Office of Legal Counsel in 1985, Judge Alito wrote the following:
“[I]t has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court . . . that the Constitution does not protect a right to an abortion.”
Let me just repeat what he said in those two sentences:
“I personally believe very strongly . . . that the Constitution does not protect a right to an abortion.”
Does he stand by those statements? Does he still have the same view of the Constitution? We deserve a straight answer at the hearings.
We also now know that in the same year, 1985, Judge Alito authored a detailed, 17-page memorandum while at the Solicitor General’s Office, setting forth a legal strategy in Thornburgh v. American College of Obstetricians – a legal strategy designed to accomplish the ultimate overruling of Roe v. Wade. This is what he wrote:
“What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”
“[W]e should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.”
Does he stand by those statements? We deserve a straight answer at the hearings.
Does he still “personally believe very strongly. . . that the Constitution does not protect a right to an abortion”?
Or is he going to distance himself from those comments?
He may suggest that the views he expressed on Roe were merely personal and so not to be given weight.
That argument cannot be taken seriously by any serious person. What Judge Alito articulated in his 1985 job application was a legal view, not a personal one. It may have been a personal legal view – but there is no distinction when one is a judge. That is what judges decide cases on – their personal legal views.
A purely personal and non-legal view would include being personally against abortion or against the death penalty or against handguns. But, an expressed view that the Constitution does not protect a right to an abortion or does not permit the death penalty or does not permit the banning of handguns are 100 percent legal views – legal views that necessarily define a judge’s judicial philosophy. It may be the case that one’s personal legal view has to yield to a contrary precedent when one is a lower court judge, but that is a different issue.
And, of course, when one sits on the Supreme Court, one’s personal legal view of the Constitution need not yield to anything. In fact, when one sits on the Supreme Court, one’s personal legal view of the Constitution – if joined by four others – becomes the law of the land.
This does not mean there is a litmus test on any of these three issues, but it is certainly a factor that Senators and citizens can consider in evaluating the Alito nomination.
Let me try for a moment to convey in a different way how astonishing it is that we have a nominee with such a record – in a way that might resonate with some of my friends across the aisle, who might question why I take this so seriously.
Imagine if a Supreme Court nominee had put the following statements in writing:
“I personally believe very strongly . . . that the Constitution does not protect a right to possess a handgun.”
“I personally believe very strongly that the death penalty can never be applied under the Constitution.”
“I personally believe very strongly that the First Amendment does not apply to the states.”
“I personally believe very strongly that the Constitution does not allow the President to take military action of any kind without prior Congressional approval.”
What do you suppose would be the reaction from many Senators inside and outside the Judiciary Committee if a Supreme Court nominee had made such blanket statements?
And what if the nominee had not only stated this “strong” view, but boasted in a job application that he was “particularly proud” of the work he had done at the highest levels of government to convince the Supreme Court of the correctness of these views?
There would be understandable concerns that he would not really have an open mind if the issue came before him on the Supreme Court, unless there were some elaboration or clarification of those previous statements.
I dare say, many would be prepared to withhold their votes if he ducked questions about those subjects.
So, in Judge Alito’s case, when these questions are asked, I hope we do not hear resort to convenient excuses, false precedents, and tortured logic.
The expected excuses for not being open and honest with the American people should not fly this time around.
And if he stonewalls at the hearings, that could jeopardize his nomination.
His obligation to answer questions is certainly greater than John Roberts’s, because he has spoken out on more issues.
He will not be able to use as a mantra the excuse that the issue might come before him on the Court. These issues have already come before him and he has a record on them.
That is why we will hold him at a minimum to the Administration’s interpretation of the so-called Ginsburg precedent – seemingly accepted by the President, John Roberts, and my friends from across the aisle. He must answer questions on the issues he has already written and spoken about – whether as a judge or a Reagan Administration official.
Let me run through four of them and explain why, especially in Judge Alito’s case, they should not be accepted.
1. The So-called “Ginsburg Precedent”
First, will we hear the misused excuse for not answering legitimate questions directly – the so-called “Ginsburg precedent”?
We heard that before during the Roberts hearings. We heard John Roberts say over and over again that he could not answer questions – invoking Justice Ginsburg – on the theory that such issues could come before him on the Court and he did not want to give a hint or prejudgment on how he might rule.
As I have said before, that term as used by John Roberts and his supporters was an oxymoron – it neither reflected Ginsburg, nor was it a controlling precedent.
However, even under the tortured application of the so-called precedent favored by Justice Roberts and his supporters, they had to concede that Justice Ginsburg DID answer questions expansively on issues where her views were known because she had written about them.
Therefore, at a minimum, we will hold Judge Alito’s feet to the fire on these issues – executive power, the authority of the Congress under the Commerce Clause, and on Roe. We will hold him to the standard that his supporters have already said is appropriate.
Here is Justice Roberts at his September confirmation hearing, talking about Justice Ginsburg’s candor, for example, in discussing the issue of choice:
“Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.” And here he is again:
“I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.”
Again, Judge Alito has written on various subjects and should be obligated to discuss them openly and candidly.
I hope that Judge Alito will follow THAT Ginsburg precedent, rather than use it as a convenient excuse not to answer a legitimate question about his own prior writings.
For example, on the issue of choice – a subject on which Justice Ginsburg was especially open at her hearings – Judge Alito must answer clearly whether he stands by his prior stated view that the Constitution does not protect a right to an abortion.
Just as importantly, on the issue of executive power, Judge Alito must answer clearly about his views of checks and balances. Given that he – at one time at least – believed in absolute immunity for officials who engaged in warrantless wiretapping, he has a particular obligation to be forthcoming at the hearings.
Does he still have that same legal view? What are the limits of the power of the President to bypass the Constitution and the Congress?
Recent revelations and Judge Alito’s own record, of course, will make these central questions at the hearings.
And his answers – or refusals to answer – will be central to the question of whether he should be confirmed.
Similarly, on the issue of Congressional power, Judge Alito’s outlier opinion in the machine gun case – Rybar – means that he must answer detailed questions about his views on the limits of federalism.
What ability does Congress have to regulate machine guns under the Commerce Clause? Does he agree with the reasoning of the recent medical marijuana case – Raich – which cut back on the movement towards restricting Congress’s power?
On each of these issues – to pick just three examples – Judge Alito has a written record. And, according to the Ginsburg precedent and the Roberts precedent, he must answer questions about those views without ducking.
2. Ideology and Judicial Philosophy Don’t Matter
Second, will we hear - as we have before – that ideology doesn’t matter? That views on particular Constitutional questions don’t matter? That we should only conduct a rote and robotic review of a resume?
That view continues to be wrongheaded for all the reasons I have been discussing for over four years: history shows that the founders did not intend that Senators focus only on credentials, but also on ideology and judicial philosophy. See, for example, the defeated nomination of John Rutledge over his views of the Jay Treaty in 1795.
But while remote history demonstrates the argument’s flaws, recent history exposes its hypocrisy.
How quickly have some of my friends forgotten the ill-fated nomination of Harriet Miers? When she – and not Sam Alito – was the nominee, they practically fell over themselves to argue that she had to provide conservative comfort on her views.
Just weeks after stridently asserting that Judge Roberts should be confirmed without any probing inquiry, many of the same people – without any hint of irony – with equal stridency demanded answers from Harriet Miers.
While they demanded a coronation for John Roberts, they desired an inquisition for Harriet Miers.
Here is one Senator, a member of the Judiciary Committee, speaking about Harriet Miers:
“But my issue, really, is, how will she rule on cases that come up? How is she going to rule on these key, tough privacy cases, private property right cases?” (Sen. Brownback, Fox News, 10/21/05)
Here is another Senator:
“I look forward to hearing more about her qualifications and judicial philosophy.” (Sen. Coburn, USA Today, 10/4/05)
Here is another:
“She’s going to have to be pretty forthcoming at least about her judicial philosophy. … There are people who have bled a lot to get to this point. This is a historic opportunity to finally have the opportunity to get some right-thinking people on the Supreme Court, and we don’t want to miss it.” (Sen. Thune, Boston Globe, 10/6/05)
Here is yet another:
“From her background, it looks like she’s qualified to be a judge, but what does that tell me about her? It doesn’t tell me anything.” (Sen. Bunning, Cincinnati Enquirer, 10/20/05)
So, when I or other Senators ask Judge Alito whether he stands by his prior statements, I hope we will not hear the excuse that ideology and constitutional views are irrelevant or off-limits.
3. Avoiding Appearance of Prejudgement and Bias
Third, will we hear from Judge Alito the excuse that answering questions about executive power, or Congressional power, or Roe v. Wade will render him biased on issues that may come before the Court?
In this case, that argument is both self-serving and silly. In the last example, given that Judge Alito has already made blanket statements about his view of the Constitution and his support for the overruling of Roe, he has ALREADY given the appearance of bias; he has ALREADY given the suggestion of pre-judgment of a question that will likely come before the Supreme Court.
Similarly, on the issue of executive power, Judge Alito has ALREADY suggested that officials should not be held ultimately accountable for even for willful violations of the Constitution. Therefore, he has an obligation to speak to the issue.
And, he has ALREADY ruled to limit congressional power, and must therefore explain his perspective on this crucial issue as well.
So, if Judge Alito bases his unwillingness to answer these questions on some ill-conceived notion of bias or prejudice, the only thing that will be prejudiced will be the democratic process.
4. Merely Advocacy
Fourth, will Judge Alito attempt to sidestep questions about his Constitutional beliefs by dismissing his prior writings as those of merely an advocate – whether for the Reagan Administration or for himself in lobbying for a better job with that Administration?
Unlike John Roberts, who could plausibly claim that the positions he advocated did not necessarily reflect his own views (though in my mind they probably did), Judge Alito specifically adopted them as his own:
“I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
While it is conceivable that a Government lawyer does not subscribe to the view he advocates in a brief or in court, with this telling sentence, Judge Alito revealed that – at least on many if not all issues – his own views and those of the Administration were one and the same.
Sometimes lawyers believe what they argue; sometimes they don’t. When it came to affirmative action and the correctness of Roe, he not only believed what he argued but he was “particularly proud” of that work.
So, any suggestion that one cannot infer Judge Altio’s views from his government advocacy defies common sense.
And, regardless of whether they were merely the arguments of an advocate, rather than the beliefs of the attorney himself, given the record, Judge Alito must tell us what his own views are on these questions.
The bottom line is that there is no good reason for Judge Alito not to clarify the record at his hearing. Therefore, I believe Judge Alito must tell us without equivocation and without evasion, whether he stands by his prior statements.
The American people deserve direct answers to these simple questions.
If Judge Alito refuses to disavow those views or refuses to embrace those views or refuses even to discuss those views, we can be left to draw only one conclusion – that he continues to hold them.
If Judge Alito refuses to answer these questions, it will be extremely difficult – if not impossible – to vote for him. Indeed, it could jeopardize his nomination.