Prepared Floor Statement of Senator Grassley on the Nomination of Judge Samuel Alito
Prepared Floor Statement of Senator Chuck Grassley of Iowa
On the Nomination of Judge Samuel Alito
To be an Association Justice on the United States Supreme Court
Thursday, January 26, 2006
Mr. President, I support the nomination of Samuel Alito. President Bush has made an excellent choice. Judge Alito has the intellect, judicial temperament and integrity to be an excellent Justice. He has a clear understanding of the proper role of the judiciary in our government. He commands the respect of his colleagues on the Third Circuit, as well as the lawyers who practice before him and the employees who’ve worked with him.
We can’t always accurately predict how an individual ultimately will make decisions once he or she gets on the bench, but we have to trust our judgment and the confirmation process. The process has worked well throughout history, and we’ve confirmed many outstanding individuals to the Supreme Court. And the process has worked well so far with Judge Alito. Judge Alito was very impressive at his hearing. He did an excellent job under fire. He was thorough, candid and forthright with the Committee, and demonstrated a deep understanding of the law and our Constitution.
Contrary to the claims of some of my colleagues, Judge Alito’s testimony was substantive and responsive. He answered more than 650 questions during nearly 18 hours of testimony. If one compares Judge Alito’s performance to that of Justices Ginsburg (who answered 307 questions at her hearing) and Breyer (who answered 291 questions), one could easily conclude that he’s been one of the most forthcoming nominees to come before our Committee.
The Constitution provides that the President nominates a Supreme Court Justice, and the Senate provides its advice and consent, with an up or down vote. In Federalist 66, Alexander Hamilton wrote, “it will be the office of the President to nominate, and, with the advice and consent of the Senate, to appoint. There will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves choose – they can only ratify or reject the choice he may have made.”
I’ve been on the Judiciary Committee for more than 25 years and I take this constitutional responsibility very seriously. Our work in Committee allows us to evaluate whether a nominee has the requisite judicial temperament, intellect and integrity. We also evaluate whether a nominee understands the proper role of a Justice in our democratic system of government, and respects the rule of law and the Constitution over any personal agenda.
Specifically, a Supreme Court nominee should clearly understand that the role of a judge under the Constitution is a limited one – to say what the law is, rather than make law. As Alexander Hamilton wrote in Federalist 78, “The courts must declare the sense of the law, and if they should be disposed to exercise will instead of judgment, the consequences would equally be the substitution of their pleasure to that of the legislative body.” In fact, most Americans want judges who will confine their job to interpreting the law and the Constitution, rather than making policy and societal choices from the bench.
But we’ve seen a trend in recent years where the courts have expanded the role of the judiciary far beyond what was originally intended by the Constitution and the Framers. The courts have taken on a role that is much more akin to what we do here in Congress, the legislative branch, which is make policy choices and craft laws based on those choices.
And as a consequence of this power grab by the courts, the judicial confirmation process also unfortunately has become extremely politicized. That’s because when judges improperly assume the role of deciding essentially political questions rather than legal questions, the judicial confirmation process also devolves into one focused less on whether a nominee can impartially and appropriately implement the law. Instead, the judicial confirmation process devolves into one focused on whether a nominee will implement a desired political outcome from the bench, regardless of the law and the Constitution as written.
But Judge Alito understands the proper role of a judge. We should all be reassured with his firm belief that the judicial branch plays a limited role in our system of government. Judge Alito testified, “The judiciary has to protect rights, and it should be vigorous in doing that, and it should be vigorous in enforcing the law and in interpreting the law . . . in accordance with what it really means and enforcing the law even if that’s unpopular. But although the judiciary has a very important role to play, it’s a limited role . . . . It should always be asking itself whether it is straying over the bounds, whether it’s invading the authority of the legislature, for example, whether it is making policy judgments rather than interpreting the law. And that has to be a constant process of re-examination on the part of the judges.”
Judge Alito’s record is clear that he won’t make law, but rather he’ll strictly interpret the law as written. His record is clear that he’ll do his best to remain faithful to the actual meaning of the Constitution, rather than mold it into what he’d like it to say. Judge Alito said, “Judges don’t have the authority to change the Constitution. The whole theory of judicial review that we have, I think, is contrary to that notion. The Constitution is an enduring document and the Constitution doesn’t change. It does contain some important general principles that have to be applied to new factual situations that come up. But in doing that, the judiciary has to be very careful not to inject its own views into the matter. It has to apply the principles that are in the Constitution to the situations that come before the judiciary.”
Judge Alito possesses a knowledge of and respect for the Constitution that is necessary for all Supreme Court Justices. He understands the proper role of a Justice, and respects the separate functions of the judicial branch as opposed to the political branches of government. He explained that a judge’s role is not one of an advocate. He testified, “The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand, but a judge can’t think that way. A judge can’t have any agenda. A judge can’t have any preferred outcome in any particular case. And a judge certainly doesn’t have a client. The judge’s only obligation – and it’s a solemn obligation – is to the rule of law, and what that means is that in every single case, the judge has to do what the law requires.”
Judge Alito also believes in justice FOR ALL, as afforded by the laws and the Constitution of our nation. Judge Alito told the Committee, “No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.” He said, “Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances.” He also said, “results-oriented jurisprudence is never justified because it is not our job to try to produce particular results. We are not policy makers and we shouldn’t be implementing any sort of policy agenda or policy preference that we have.”
Contrary to the claims of his opponents, Judge Alito understands that the judiciary has an important role in our system of checks and balances. He understands the importance of the independence of the judicial branch. Judge Alito won’t shirk from that responsibility, and he’ll see that the judiciary is an effective check on abuses of power, both by the executive and legislative branches of government. In fact, Judge Aldisert, who serves with Judge Alito on the Third Circuit, testified, “Judicial independence is simply incompatible with political loyalties, and Judge Alito’s judicial record on our court bears witness to this fundamental truth.”
Former Judge Gibbons, who also served with Judge Alito, and who has been litigating with the Bush Administration over its treatment of detainees held at Guantanamo Bay, also believes that Judge Alito won’t shy away from checking governmental abuses. He doesn’t believe that Judge Alito will ‘rubber-stamp” any Administration’s policy if it runs counter to the law and Constitution, and he certainly didn’t have any concerns about Judge Alito’s judicial independence.
Judge Gibbons testified, “It seems not unlikely that one or more of the detainee cases that we are handling will be before the Supreme Court again. I do not know the views of Judge Alito respecting the issues that may be presented in those cases. Ã¢Â€Â| I’m confident, however, that as an able legal scholar and a fair-minded justice, he will give the arguments – legal and factual – that may be presented on behalf of our clients careful and thoughtful consideration, without any predisposition in favor of the position of the executive branch.”
I agree. I believe Judge Alito will be an independent judge who’ll apply the law and the Constitution to every branch of government and every person, because he knows that no one, including the President, is above the law.
Not only is Judge Alito an intelligent and experienced jurist, he’s also an open-minded and fair judge. He told the Committee, “Good judges develop certain habits of mind. One . . . is the habit of delaying reaching conclusions until everything has been considered. Good judges are always open to the possibility of changing their minds based on the next brief that they read or the next argument that is made by an attorney who is appearing before them, or a comment that is made by a colleague when the judges privately discuss the case.” In fact, Judge Alito acknowledged that he’s changed his opinion in the middle of the judicial process, saying, “there have been numerous cases in which I’ve . . . been given the job of writing an opinion . . . and in the process of writing the opinion, I see that the position that I had previously was wrong. I changed my mind. And then I will write to the other members of the panel and I will say, I have thought this through and this is what I discovered and now I think we should do the opposite of what we agreed, and sometimes they’ll agree with me and sometimes they won’t.”
Yet, Judge Alito’s critics have tried to paint him out to be an extremist, an activist judge with an agenda hostile to individual rights and the “average American.” We were presented with analyses on how outside the mainstream Judge Alito’s opinions were. But that’s not what we heard from the ABA, who unanimously voted to award Judge Alito its highest possible rating - “well qualified”, the Democrats’ “gold standard”. That’s also not what we heard from the panel of four sitting and two former Third Circuit judges who have worked with him for more than 15 years. They didn’t think Judge Alito was out of the mainstream or an extremist at all, quite the contrary.
I have to say that the Judiciary Committee heard absolutely extraordinary testimony from these appellate judges, which included nominees of Presidents Lyndon Johnson, Richard Nixon, Ronald Reagan, George H.W. Bush, and Bill Clinton. Their testimony was remarkable because these are individuals who’ve had the opportunity to witness the inner-workings of Samuel Alito as a judge during their private conferences, on a daily basis, behind closed doors, when their “hair is down.” They saw his deliberative process. They know the “real deal” Samuel Alito. And these witnesses – respected and accomplished judges in their own right – each of them only had glowing comments about Judge Alito. Their support was unqualified.
As Judge Aldisert told the Committee, “We who have heard his probing questions during oral argument, we who have been privy to his wise and insightful comments in our private decisional conferences, we who have observed at first hand his impartial approach to decision-making and his thoughtful judicial temperament and know his carefully crafted opinions, we who are his colleagues are convinced that he will also be a great justice.”
Let me cite some of the testimony of these judges. Judge Becker said, “The Sam Alito that I have sat with for 15 years is not an ideologue. He’s not a movement person. He’s a real judge deciding each case on the facts and the law, not on his personal views, whatever they may be. He scrupulously adheres to precedent. I have never seen him exhibit a bias against any class of litigation or litigants . . . . His credo has always been fairness.”
And Chief Judge Scirica said, “Despite his extraordinary talents and accomplishments, Judge Alito is modest and unassuming. His thoughtful and inquiring mind, so evident in his opinions, is equally evident in his personal relationships. He is concerned and interested in the lives of those around him. He has an impeccable work ethic, but he takes the time to be a thoughtful friend to his colleagues. He treats everyone on our court, and everyone on our court staff, with respect, with dignity, and with compassion. He is committed to his country and to his profession. But he is equally committed to his family, his friends, and his community. He is an admirable judge and an admirable person.” Judge Barry said, “Samuel Alito set a standard of excellence that was contagious – his commitment to doing the right thing, never playing fast and loose with the record, never taking a shortcut, his emphasis on first-rate work, his fundamental decency.”
So, contrary to what his misguided critics have alleged, Judge Alito is fair and open-minded, and will approach cases without bias and without a personal agenda.
Unfortunately, Judge Alito’s record has been wildly distorted. Contrary to these critics’ claims, Judge Alito has ruled for plaintiffs as well as defendants in civil rights, ADA and employment discrimination cases. I think a statistical analysis of how many times a certain kind of plaintiff wins or loses isn’t the best way to look at a judge’s record. It’s wrong to think that there should be a scorecard on how often a plaintiff or a defendant should win. Who should win depends on the facts presented in the case, and what the law says. What’s important to Judge Alito is that he rules on the specific facts in the case and the issue before the court, in accordance with the law and the Constitution. Judge Alito doesn’t have a pre-disposed outcome in a case. He doesn’t bow to the special interests, but sticks to the law regardless of whether the results are popular or not. Similar to Chief Justice Roberts, Judge Alito rules for the “big guy” when the law and the Constitution say the “big guy” should win. He rules for the “little guy” when the law and the Constitution say that the “little guy” should win. That’s precisely what good judging is all about. And that’s precisely the kind of Justice we want on the Supreme Court.
The claims that Judge Alito is somehow hostile to civil rights, minorities, women and the disabled are completely off the mark. The claims that Judge Alito will not give these individuals a “fair shake” cannot be seriously entertained. It’s easy to cherry-pick cases and claim that the judge is out of the mainstream. But his fellow colleagues on the Third Circuit say otherwise, and testified about Judge Alito’s fairness and impartiality with respect to ALL plaintiffs.
For example, Judge Garth testified, “I can tell you with confidence that at no time during the 15 years that Judge Alito has served with me and with our colleagues on the court and the countless number of times that we have sat together in private conference after hearing oral argument, has he ever expressed anything that could be described as an agenda. Nor has he ever expressed any personal predilections about a case or an issue or a principle that would affect his decisions.” Judge Higginbotham Jr., another liberal judge, said “Sam Alito is my favorite judge to sit with on this court. He is a wonderful judge and a terrific human being. Sam Alito is my kind of conservative. He is intellectually honest. He doesn’t have an agenda.” Kate Pringle, a former Alito law clerk and Democrat who has known the judge since 1994, testified that the Judge “was not, in my personal experience, an ideologue. He pays attention to the facts of cases and applies the law in a careful way. He is conservative in that sense. His opinions don’t demonstrate an ideological slant.”
I found Judge Lewis’ testimony to be particularly compelling. Judge Lewis described himself to the Committee to be “openly and unapologetically pro-choice” and “a committed human rights and civil rights activist.” Judge Lewis testified, “it is in conference, after we have heard oral argument and are not propped up by law clerks – we are alone as judges, discussing the cases – that one really gets to know, gets a sense of the thinking of our colleagues. And I cannot recall one instance during conference or during any other experience that I had with Judge Alito, but in particular during conference, when he exhibited anything remotely resembling an ideological bent.”
Judge Lewis continued, “If I believed that Sam Alito might be hostile to civil rights as a member of the United States Supreme Court, I guarantee you that I would not be sitting here today. Ã¢Â€Â| My sense of civil rights matters and how courts should approach them jurisprudentially might be a little different. Ã¢Â€Â| But I cannot argue with a more restrained approach. As long as my argument is going to be heard and respected, I know that I have a chance. And I believe that Sam Alito will be the type of justice who will listen with an open mind and will not have any agenda-driven or result-oriented approach.” Judge Lewis concluded, “I am here as a matter of principle and as a matter of my own commitment to justice, to fairness, and my sense that Sam Alito is uniformly qualified in all important respects to serve as a justice on the United States Supreme Court.”
So, who do you believe has accurately depicted Judge Alito’s qualifications and record? People who’ve worked with the judge, day in and day out for years, who know him personally, and who’ve seen him up close in action and in the trenches? Or the partisan, liberal outside interest groups who probably have never met the man? I know who I believe.
Not only that. If one wipes away the distorted and deceptive characterizations, as well as the false insinuations and calculated smears, Judge Alito’s record clearly shows that he’s a dedicated public servant who practices what he preaches - integrity, modesty, judicial restraint, and devotion to the law and the Constitution.
Let me briefly address this issue of balance. As I’ve said before, history will take care of the proper “balance” on the Court. But some of my colleagues and outside liberal interest groups have taken the position that Judge Alito has to share Justice O’Connor’s judicial philosophy and voting record in order to take her seat. They argue that Judge Alito shouldn’t be confirmed, regardless of whether he is qualified or not, because he doesn’t appear to be Justice O’Connor’s judicial philosophy “soul-mate”, and he would change the ideological balance of the Court. Well, last time I checked, the Supreme Court doesn’t have seats reserved for one philosophy or another. Moreover, the Senate has never taken the position that like-minded individuals should replace like-minded Justices leaving the Court. That kind of reasoning is completely antithetical to the proper role of the judiciary in our system of government.
The reality is that the Senate has historically confirmed individuals to the Supreme Court who are determined to be well qualified to interpret and apply the law. It hasn’t been the Senate’s tradition to confirm individuals to promote special interests or represent certain causes. That’s not what the Constitution wants the Senate to do.
In fact, the Court’s composition has changed with the elected branches over the years. Almost half of the Supreme Court Justices have been replaced by individuals appointed by a President of a different political party. The Senate just hasn’t ever understood its role as maintaining any perceived ideological balance on the Court.
In fact, the Senate outright rejected that kind of thinking when Ruth Bader Ginsburg, a known liberal and former general counsel of the ACLU, was overwhelmingly approved by a vote of 96-3. She replaced conservative Justice Byron White - yet there were no complaints from our side of the aisle that she’d upset the balance on the Court and radically swing it to the left. I certainly didn’t agree with Justice Ginsburg’s liberal judicial philosophy, but I voted for her. The fact is that the Senate confirmed Justice Ginsburg because President Clinton had won the election and he had the right to nominate who he wanted, and because Justice Ginsburg had the requisite qualifications to serve on the Court.
And this was the same with Justice Breyer. I knew that Breyer was a liberal and that I probably wouldn’t agree with his judicial philosophy, but since he was qualified, I voted for him too. The Senate confirmed Justice Breyer by a vote of 87-9. The President had made his choice, the Senate found him to be qualified, and we confirmed him. Republicans certainly didn’t put up any roadblocks to the Ginsburg and Breyer nominations. I’d say that Judge Alito is no more out of the mainstream than Justices Breyer or Ginsburg.
The Democrats and the liberal outside interest groups are intent on changing the rules of the game, because they didn’t win at the ballot box. The way the Democrats want us to operate now, is not the way we’ve operated in the past. But the truth is, by politicizing and degrading the nominations process and the nominees themselves, we’ll end up driving away our best and brightest minds from volunteering for public service. It’s disappointing to me to see a decent man – and his family – have to endure hurtful allegations and insinuations which are just plain false and mean-spirited. It’s disappointing to me that so many of my colleagues are going down this path, creating a standard that can only harm the independence of the judiciary, and severely distort our system of government.
Before I conclude my remarks, I want to quote a letter I received from an Iowa constituent, Joan Watson-Nelson, who wrote about her very personal impressions of Judge Alito when they attended high school together in the late 1960s. She wrote, “I remembered [Samuel Alito] because he stood out in his class and in the school. He was one of the leaders of the school. Ã¢Â€Â| I remember him being very bright, well prepared, and brilliant. He appeared to be an individual with vision. Ã¢Â€Â|. He stood out as a young man with a great deal of integrity. Many of his teachers from high school are gone now. But I know if they were here and could write letters on his behalf, they would have many stories to tell about the kind of student he was both inside and outside the classroom.” She writes, “I am not a very political person. I have some issues that I believe in deeply and others that I do not have a deep commitment about. I am sure that Sam and I do not agree on all of the issues that will be placed before him. The abortion issue is likely to be one of those, as I understand from the media that he may be against abortion. However, I do strongly believe that he will listen to the arguments placed before him, research the law, and decide honorably.”
She concludes her letter this way. “It has been nearly 40 years since he graduated from high school. And although I have a good memory for details, the specific details of my involvement with Sam are not as clear as I would like them to be in my endorsement for him. What is left, however, is the internalized memory of Sam. That memory tells me that he will make an excellent Supreme Court Justice. I hope that with your hearings on his appointment, you and the others will be able to make that clear to any who may wish to try to discredit him for political reasons. What I learned about the Supreme Court branch of our government is that this part of the “checks” in our system is to be devoid of politics. I believe that Sam has what it takes to fulfill that role.”
I think this is a nice testimonial about the man we are about to vote on to become the next member of the Supreme Court, and I appreciate Ms. Watson-Nelson’s letter letting us know about her personal experience with Samuel Alito. She hit the nail on the head. The Supreme Court needs to get out the business of politics, and we need to stop discrediting good nominees because of our politics. She, like most Americans, knows what is going on.
So it’s clear to me, the people who know Judge Alito personally believe, without reservation, that he’s a judge who follows the law and the Constitution without a pre-set outcome in mind. They believe he’s a man of great intellect and insight. They believe he’s a fair and open-minded judge, committed to doing what is right, rather than committed to implementing a personal agenda. They believe he’s a man of integrity, modesty and restraint.
I’m pleased to support Judge Alito’s nomination. Justice Alito will be a great Justice, not a politician on the bench. He won’t impose his personal views or be an activist, but will make decisions as they should be decided, in an impartial manner, with the appropriate restraint, and in accordance with the laws and the Constitution. Judge Alito will carry out the responsibilities of a Justice in a principled, fair and effective manner. I’m proud to cast my vote in support of this decent and honorable man.
Mr. President, I wish this story would end with qualifications, integrity, and judicial restraint, because only those considerations should matter. But it looks like the most partisan and political among us won’t let that happen. There may be some who’ll vote against Judge Alito’s confirmation, not because of qualifications or integrity, and not even because they want somebody to legislate from the bench or treat the Constitution as a blank slate that judges can freely draw upon.
No, it appears that some Senators will vote against this nominee because they think doing so is a good political issue. Instead of applying the same standard that we Republicans applied when the Senate confirmed by an overwhelming vote Justice Ginsburg, the most liberal justice on the Court, these partisans will change the rules in the middle of the game once again. They’ll vote against Judge Alito with an eye towards the next election and the demands of their most extreme and activist supporters.
The Washington Post had it right when it editorialized on January 15th, “A Supreme Court nomination isn’t a forum to refight a presidential election.” I’d go a step further. A Supreme Court nomination isn’t the forum to fight any election. It’s the time to perform one of our most important constitutional duties and decide whether a nominee is qualified to serve on the nation’s highest court.
I hope my colleagues will cast their vote based on Judge Alito’s outstanding qualifications, rather than on the distorted claims of the liberal outside interest groups. I urge my colleagues to rise above partisan politics and support this worthy nominee, Samuel Alito. Samuel Alito deserves our overwhelming vote of approval, and it’ll be a great shame if he doesn’t get it.