Sen. Richard J. Durbin
Opening Statement
Senate Judiciary Committee
January 9, 2006

Nomination Hearings of Samuel A. Alito, Jr. to be
Associate Justice of the United States Supreme Court

Judge Alito, I welcome you and your family to the Judiciary Committee.

First, I would like to thank Chairman Specter for waiting until the new year to hold this hearing. Holding this hearing earlier would not have given us enough time to review Judge Alito's record as thoroughly as the Constitution requires and the American people deserve.

Why has this nomination risen to the level of historic importance? The Supreme Court has handed down 193 decisions over the past ten years that were decided by a 5-4 vote. Justice O'Connor was the fifth and deciding vote in 148 of these 193 cases. Time and again the vacancy you seek to fill was the most important vote on the Court for civil rights, human rights, women's rights, workers' rights, and restraining an overreaching President.

Justice O'Connor, the Justice whom you would replace if confirmed, was the fifth and decisive vote to safeguard Americans' right to privacy; the fifth vote to require our courtrooms to be accessible to the disabled; the fifth vote to allow the federal government to pass laws that protect the environment; the fifth vote to preserve the right of universities to use affirmative action; the fifth vote to ban the execution of children in America. And Justice O'Connor was the fifth vote to uphold the time-honored principle of separation of church and state.

Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. The person who fills the O'Connor vacancy will truly tip the balance of the scales of justice in America. For that reason, Judge Alito, your nomination is one of the most important Supreme Court nominations in a generation. Yesterday the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. The burden of proof is yours, Judge Alito - the burden of demonstrating to the American people and this Committee that you are worthy to serve on the highest court of the land and worthy to succeed Justice Sandra Day O'Connor.

My friend, Illinois Senator Paul Simon, once said the test for a Supreme Court nominee is not where he stands on any one specific issue. The real test is this - will you use your power to restrict freedom or expand it.

I believe that is the right test, because the Supreme Court is the last refuge of our rights and liberties.

In my lifetime, the Supreme Court has integrated our public schools, allowed people of different races to marry, and established the principle that our government should respect the values and the privacy of American families. These decisions are the legacy of justices who chose to expand American freedom. If you are confirmed, Judge Alito, will you continue their legacy?

Privacy Rights

One of our most cherished rights is the right to privacy. Just 40 years ago, married couples in many states could be convicted of a crime, fined, and sent to prison for using the most common forms of birth control. But in 1965, the Supreme Court struck down these laws in Griswold v. Connecticut.

You can search every sentence of the Constitution and never find the word "privacy." Yet the Supreme Court said in the Griswold case that the concept of privacy was inseparable from our rights and liberties as Americans. Thanks to the Supreme Court, we have the right to make the most intimate personal decisions about our lives in private, without government interference.

But the right to privacy is far from settled law in the minds of many. Today, 40 years after Griswold, we see new efforts to restrict the right to privacy. We saw it last year in the sad debate over the Terri Schiavo tragedy - a debate which led some Republican leaders in Congress to threaten judges with impeachment if they refused to overrule this family's painful decision. We see it in attempts to impose gag rules on doctors and make it harder for women to obtain information related to family planning. And we see it today in the determination by some to allow the government to tap our phones and invade our medical records, credit information, library records, and the most sensitive personal information about our lives.

Justice O'Connor was often the critical fifth vote to protect our right of privacy. Judge Alito, too often your record on the bench suggests you might be the critical fifth vote to limit our right to privacy.

You were the only judge on your court who ruled to authorize a strip search of a 10-year-old girl. You were the only judge on your court who voted to diminish the right to privacy in the case Planned Parenthood v. Casey, an approach that was rejected by the Supreme Court as a flawed reading of the Constitution. And as a government lawyer, you wrote that you personally believed very strongly that "the Constitution does not protect a right to an abortion" and you laid out a strategy for overruling Roe v. Wade.

Like many, I have carefully considered my own views regarding abortion rights over the years, weighing the law, the impact of my personal feelings on the real lives of people, and listening carefully to the tragic life experiences of many women. I came to believe over the years that a woman should be able to make this agonizing, highly personal decision with her doctor, her family, and her conscience, and that the government's power to make her decision a crime should be limited.

That was my journey on this difficult issue. Have your views on privacy rights and reproductive freedom changed over the years, Judge Alito? You will have a chance to tell us at these hearings.

Commander-in-Chief Power

The issue of personal privacy also has critical implications in the reach of Executive power.

Throughout our nation's history, during times of war, presidents have tried to restrict the constitutional rights of innocent Americans in the name of security. We were reminded of this recently when we learned that President Bush has secretly authorized the National Security Agency to eavesdrop on hundreds of Americans without the court approval required by law.

During times of war, the Supreme Court is the last guardian of our constitutional rights. The Court has usually been up to the task, but at times it has failed. That's why it's crucial to ensure that nominees have the courage to say "no" to this President, or any President who violates the Constitution.

Judge Alito, your record raises troubling questions about whether you appreciate the checks and balances in our Constitution - the careful efforts of our Founding Fathers to protect us from a government or a President determined to seize too much power over our lives.

As a government lawyer, you pushed a policy of legislative construction designed to make congressional intent secondary to presidential intent. You wrote that "the President will get in the last word on questions of interpretation."

In speeches to the Federalist Society, you have identified yourself as a strong proponent of the so-called "unitary executive" theory. You even criticized the Supreme Court, and specifically Chief Justice Rehnquist, for failing to follow this theory. According to this marginal legal credo, you argued the Constitution grants the President extraordinary powers, including the power to disregard laws passed by Congress.

This is not some abstract legal debate. The Bush Administration has repeatedly cited this theory to justify its most controversial policies in the war on terrorism - policies that I believe threaten American values.

Under this "unitary executive" theory, the Bush Administration has claimed the right to seize American citizens in the United States and to imprison them indefinitely without charge. They have claimed the right to engage in torture, even though American law makes torture a crime.

Less than two weeks ago, the White House claimed the right to set aside the McCain torture amendment, which Congress passed overwhelmingly in December. What was the White House's rationale? They claimed they had the power under the "unitary executive" theory.

The Supreme Court has rejected some of the Bush Administration's overzealous anti-terrorism policies. In the Hamdi case, Justice O'Connor wrote for the plurality and said "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 are confirmed, Judge Alito, who will inspire your thinking if this President, or any President, threatens our fundamental constitutional rights - the Federalist Society or Justice O'Connor?

Civil Rights Judge Alito, two months ago, Rosa Parks laid in honor in the Capitol Rotunda - a fitting tribute to the mother of our modern civil rights movement.

Mrs. Parks' legacy is well known to most Americans. Less well known is the critical role played by a Republican-appointed federal judge in Alabama who struck down the bus segregation law that Rosa Parks challenged. The same judge later issued an order that permitted Martin Luther King, Jr. and others to march from Selma to Montgomery, a march that gave rise to the critically important Voting Rights Act of 1965. The judge's name was Frank Johnson.

For these and other courageous decisions, Judge Johnson was denounced as a "judicial activist" and threatened with impeachment. The Ku Klux Klan called him "the most hated man in America." Wooden crosses were burned on his lawn, and he received so many death threats that he and his family were under constant federal protection for 15 years.

Judge Johnson paid a heavy price for his courage in acting to expand freedom and civil rights in America.

Judge Alito, when we met in my office, you told me a story 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, for fear of offending them.

I admire your father's courage. But just as we do not hold the son responsible for the sins of the father, neither can we credit the son for the courage of the father.

As a Supreme Court Justice, would you have the courage to expand freedom when it comes to civil rights and human rights? Many of the most important civil rights and women's rights groups in America oppose your nomination because they believe you would not.

You will have a chance to address their concerns during your hearing. You will have a chance to explain whether you still believe, as you once wrote, that the Supreme Court was wrong to establish equal voting rights for all Americans in its "one person, one vote" cases.

You will have a chance to explain why you once highlighted your membership in an organization that was formed specifically to challenge the admission of women and minorities at Princeton University.

And you will have a chance to explain why, as a judge, you have sided so often against plaintiffs in civil rights cases. A recent Washington Post study of your record reveals that you have voted against discrimination claimants more often than other Republican-appointed judges, and far more often than the national average. Every American who stood in silent tribute to Rosa Parks hopes you will speak out clearly for civil rights that define our unity as a nation.

Other Areas of Concern

Another study reveals that you have been the most frequent dissenter among the 21 judges with whom have served on the 3rd Circuit court. In the vast majority of your dissents, you have taken positions far to the right of your colleagues, many of whom are conservative Republican appointees.

You once issued a controversial dissent in which you said Congress has no power to pass a law banning the possession of machine guns. In another case, you struck down parts of the federal Family Medical Leave Act, a law that allows people to take up to three months off from work to deal with an illness or that of a family member. Thankfully, the Supreme Court overruled you. Your opinions in these cases were good news to the right-wing movement in this country that wants to strip Congress of many of its powers and diminish the rights and remedies available to the American people.

Your 15-year history on the bench also reflects a consistent practice of ruling against immigrants, the criminally accused, and those who defend America's traditional separation of church and state. And you have consistently ruled for big business and special interests, and against consumers and workers.

For a person who is justifiably proud of his family's struggle against the odds to succeed in America, time and again you have used your power on the bench to leave other struggling families at the back of the line.

In one of your dissents, you would have allowed a Pennsylvania coal mine to ignore worker safety and health requirements with impunity. Last week's tragedy at the Sago Mine reminds us why your dissent was so misguided.

Your decisions, and your nomination, have been applauded in the same extreme right-wing circles that actively opposed the nomination of Harriet Miers because she was not viewed as a true believer. What do these same extremists find in your record that is so comforting?

Conclusion

Judge Alito, millions of Americans are very concerned about your nomination. They are worried that you would be a judicial activist who would restrict our rights and freedoms. During your hearing, you will have a chance to respond to these concerns, and make your case.

More than any recent nominee, your speeches, your writings, and 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 to the questions we ask are critical to the outcome of this hearing.

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 important freedoms and preserve our time-honored values.