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Senator Debbie Stabenow Mr. President, this is an important time in our nation’s history. This is the second Supreme Court nominee to come before the Senate for a vote in the past 6 months. Sandra Day O’Conner, the first woman justice and often the critical deciding vote, is retiring, and the nominee who will replace her will have the power to change the direction of the Court for the next 30 years. I take this constitutional responsibility very seriously and have closely studied Judge Alito’s written opinions and testimony at the Judiciary Committee hearings. I commend Senators Specter and Leahy for conducting the hearings in a respectful and bipartisan manner. The Constitution grants all Americans the same rights, liberties and freedoms under the law. These are the sacred values upon which the United States of America was founded. And we count on the Supreme Court to protect these constitutional rights at all times, whether they are popular or not.
Judge Alito’s nomination comes at a time when we face new controversies over governmental intrusion into people’s private lives – from secret wiretaps that are conducted without a warrant or the knowledge of the FISA Court, to attempts to subpoena millions of internet searches at random from companies like Google. One of the most important responsibilities of the Supreme Court is to serve as a check on governmental intrusion. In light of where we are today, and the issues that this Court will face, it is even more important to have a Justice who will stand up for Americans and do what’s right.
Unfortunately, Judge Alito’s record is clear and deeply troubling. When you look at his writings, his court opinions from over 15 years on the Third Circuit Court of Appeals and the hearing transcripts, there is a clear and consistent record of siding with the government and other powerful interests, at the expense of American citizens. In case after case, whether it’s about job discrimination, pensions, illegal searches or privacy issues, he has been an activist judge who has tilted the scales of justice against the “little guy.” And often, he has been criticized by his colleagues for trying to legislate from the bench in order to reach the result that he desires. His views are way outside of the mainstream, especially in his dissent opinions. There are numerous cases where Judge Alito was the only dissenter, which means he felt strongly enough about his personal views that he rejected what the other 10 judges supported, and wrote his own separate opinion on the issue. These dissents really give insight into his extreme ideology on the most basic of liberties and rights.
Because of his extreme record and after much deliberation, I have concluded that Judge Alito is the wrong choice to replace Sandra Day O’Connor on the United States Supreme Court – where he may well be making decisions on the rights of our children and grandchildren for the next 30 years.
Mr. President, his record on worker protections is way outside the mainstream. Our manufacturers are really struggling right now, and every day another company is announcing more plant closings or filing for bankruptcy. Michigan families are worried. They’re worried that they won’t have a job tomorrow. They’re worried that they’re going to lose their pensions and health care benefits that they’ve worked hard for their entire lives. We in Michigan need a Supreme Court nominee who will stand with us and with our families - and Judge Alito is not that nominee. In Belchufine v. Aloe, a company in bankruptcy didn’t give its employees the retirement benefits and vacation time they had earned before the bankruptcy. Under Pennsylvania law, corporate officers are personally liable for non-payment of wage and benefits. The employees sued and Judge Alito sided with the company saying that the law didn’t apply once a company filed for bankruptcy. Not only did he side with the CEOs at the expense of their workers’ wages and pensions, but he legislated from the bench to get the result that he wanted. Judge Greenberg, a Reagan appointee, wrote a strong dissent accusing Alito of trying to rewrite the Pennsylvania law stating, “[W]e are judges, not legislators, and it is beyond our power to rewrite the [law] so as to create a bankruptcy exception in favor of statutory employers merely because we believe it would be good for business to do so.” In another case addressing pension benefits, the plaintiff had worked in jobs covered by the Teamsters pension fund from 1960-1971, had a 7 year break in service, and then worked under the fund again from 1978 until his retirement. The majority held that both periods of employment would be counted towards calculating the worker’s pension benefits regardless of the break in service. Judge Alito dissented, arguing that the first period of employment – a total of eleven years of hard work – shouldn’t count, essentially cutting the worker’s pension benefits. If his dissent had prevailed, workers across this country would have their pensions cut even if they worked 30 years in one job, if there was any gap in their employment. That’s not right. If you work hard for 30 years, you should get the entire pension you earned. The majority once again admonished Alito for ignoring the plain language of the law and trying to legislate from the bench, reminding him that “Changes in legislation is a task for Congress and if our interpretation of what Congress has said so plainly is now disfavored, it is for Congress to cure. We do not sit here as a policy-making or legislative body.” (DiGiacomo v. Teamsters Pension Fund). Judge Alito has had a clear and consistent record when it comes to siding with corporate interests over workers, and in many of these cases he’s been out of step with the majority of the court. He dissented on a case to pay reporters overtime pay under the Fair Labor Standards Act. (Reich v. Gateway Press, Inc.). He dissented from a majority opinion that found a company in violation of federal mining safety standards on a site where they were removing materials from a refuse heap and sending them to power plants to be processed into electricity. These are laws that exist to protect workers' health and safety, and the recent tragedies in West Virginia have reminded us how important this is, but Judge Alito argued that the safety standards didn’t apply to this site. (RNS Services, Inc. v. Secretary of Labor). And the same is true for workplace discrimination cases. Time and time again, he has voted to make it more difficult for victims of discrimination to get their day in court. In Sheridan v. E.I. DuPont de Nemours, a hotel employee sued claiming sex discrimination. Over the years, she was promoted from a part-time waitress to a supervisory position. She received commendations and bonuses for her work, but after she complained about sexual harassment, she was demoted and her work environment got worse and worse. The trial court dismissed the case and by a vote of 10-1, the Third Circuit reversed saying that she had produced enough evidence to warrant a jury trial. Judge Alito was the lone dissenter arguing that she hadn’t presented enough proof and that her case should be dismissed. When you are outvoted 10-1, you really are outside the mainstream. In another dissent, Judge Alito voted to deny a mentally retarded young man the chance to challenge severe abuse and sexual harassment. In his very first job out of high school, he had suffered vicious sexual harassment. He was held down in front of a group of workers, subjected to sexual touching and he feared he would be raped. Judge Alito would have denied him a trial -- not because the facts were disputed -- but because he felt that the brief wasn’t well-written. (Pirolli v. World Flowers, Inc.).
Judge Alito even joined an opinion preventing veterans from suing the federal government for failing to enforce a law which requires agencies to have plans in place to help veterans gain employment. (Antol v. Perry). Mr. President, the Supreme Court is the ultimate check on Presidential overreaching, however when he was at the Justice Department, Judge Alito advised to expand Presidential power and argued that “the President’s understanding of a bill should be just as important as that of Congress.” He recommended that when the President signs a bill passed by Congress, he should issue a signing statement announcing his own interpretation of the law, in order to influence the court’s interpretation, essentially creating a backdoor line-item veto. Last fall, Senator Vitter and I included an amendment in the FY2006 CJS Appropriations bill to prevent the pharmaceutical industry from taking advantage of the President’s trade promotion authority to insert language that prevents prescription drug importation. There was also a nearly identical provision in the House bill and it was included in the final bill. With this provision, Congress made it clear that it is in our hands to decide whether the law will be changed to allow drug importation—not the pharmaceutical industry. However, in his signing statement, the President stated that this section was “advisory” and basically back-door vetoed this new law. The President can’t pick and choose what provisions of the law he will enact. These views on Presidential power are troubling enough, but Judge Alito’s record on the bench only reinforces his unwavering support for the government – whether it’s the President of the United States or a low-level official – at the expense of our liberties and rights. One of the most important issues we face today is personal privacy and freedom. We’re having this debate in the Senate right now with the Patriot Act reauthorization, and we see it in the news reports with the Justice Department seeking unprecedented amounts of information on what Americans look up on the Internet. When has the government gone too far? It’s a question that we face in the Senate and that the Supreme Court will also have to answer. Unfortunately, in cases involving privacy, security and protection from unjustified search and seizures, Judge Alito has consistently sided with the government. As an Assistant Solicitor General in the Reagan Administration, Judge Alito authored a memo on whether the Justice Department should file a friend-of-the-court brief in Tennessee v. Garner, a Supreme Court case on the constitutionality of a Tennessee law which allowed police to shoot a fleeing suspect even when the shooting was intended to only prevent the suspect from escaping, and not to protect the officer or the public from harm. In this case, a 15-year-old boy broke into a house and stole $10 worth of money and jewelry. The police arrived while the boy was in the process running away and they ordered him to stop. He didn’t stop and despite the fact that they could see that he was unarmed, the officer shot him in the back of the head and killed him. The officer didn’t shoot this unarmed 15-year-old boy because he was a danger to others but to keep him from escaping. The Sixth Circuit found that this law was unconstitutional, but in his memo, Judge Alito argued that the case was “wrongly decided” and this was an issue that should be left to state legislatures. The Justice Department did not file a brief in this case and the Supreme Court ultimately rejected Judge Alito’s position and found the law unconstitutional writing, “It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that police arrive late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” In Doe v. Groody, Judge Alito dissented from a majority opinion written by now Homeland Security Secretary Michael Chertoff to uphold the strip search of a 10-year-old girl and her mother even though neither were a criminal suspect, presented any risk or were named in the search warrant. The search warrant specifically limited the search of persons to the suspect, John Doe, but when police arrived, they only found Jane Doe and her 10-year-old daughter inside the house. They took the mother and the little girl to another room and strip searched them - having them lift their shirts, drop their pants and turn around. Judge Chertoff held that the warrant clearly limited police authority to the search of John Doe and not all occupants of the house. Judge Alito dissented accusing the majority of a “technical” and “legalistic” reading of the warrant. The warrant was clear but Judge Alito argued for a broad departure from what was actually written in the warrant in a way that would favor governmental intrusion. I hear my colleagues from across the aisle saying over and over again that they want judges who follow the law and don’t legislate from the bench. Judge Alito ignored the plain language of the search warrant in order to allow the strip search of a 10-year-old girl. How is this not legislating from the bench? Judge Chertoff certainly thought so. He criticized Judge Alito’s view as threatening to turn the requirement of a search warrant into “little more than the cliché, rubber stamp.” In another case, a family of dairy farmers were being forced off of their farm by a bankruptcy court order. When they refused to leave, seven U.S. Marshals and a state trooper arrived at their home to evict them by pointing shotguns and semi-automatic rifles at the family. The marshals grabbed a family friend who was also at the house and used him as a human shield. They put a gun to the man’s back, lead him into another house on the property and told him, “If anything goes wrong in here you’re going to be the first one to go down.” The family sued arguing that the marshals used excessive force. Judge Alito wrote an opinion saying it was reasonable for marshals carrying out an unresisted civil eviction to point shotguns and semi-automatic rifles at a family sitting in their living room. These people weren’t criminals. They weren’t dangerous. They were dairy farmers who had lost their home and their livelihood in bankruptcy. Alito also argued that putting a gun to man’s back and using him as a human shield wasn’t an unreasonable seizure under the 4th Amendment because the marshals never told him that he wasn’t free to leave. A fellow judge on the case dissented and called the marshals’ conduct “Gestapo-like” since “seven marshals had detained and terrorized a family and friends, ransacked a home, while carrying out an unresisted civil eviction.” But Judge Alito’s decision made sure that the family never got a trial. (Mellott v. Heemer). In another dissent, Judge Alito again would have allowed the invasive search of a mother and her teenage son based on another broad reading of a warrant. Mrs. Baker and her three children arrived at the home of her oldest son for dinner in the middle of a drug raid by police. The warrant was limited to a search of her eldest son’s home, but when Mrs. Baker and her three children started walking up to the property, the police threatened them with guns, handcuffed them and dumped Mrs. Baker’s purse out onto the ground. They then took her teenage son inside the house and searched him. Judge Alito once again dissented to keep a jury from hearing whether the police acted unlawfully by handcuffing, holding at gunpoint and searching a mother and her teenage children who, by happenstance, walked up to visit the home of a family member in the middle of a raid. (Baker v. Monroe Township). This disregard for Americans’ personal privacy and freedom extends to his decisions on a woman’s right to choose. In Planned Parenthood v. Casey, Judge Alito voted in dissent to uphold a law requiring a woman to notify her husband before obtaining an abortion. He argued that the spousal notification provision would only restrict a small number of women and didn’t substantially limit access to an abortion, even though the women affected may face physical abuse as a result of this requirement. The Supreme Court, including Justice O’Connor, affirmed that the spousal notification provision was unconstitutional, rejecting Alito’s argument, comparing it to antiquated 18th century laws that said that women had no legal existence separate from their husbands. Justice O’Connor eloquently summarized the problem with Judge Alito’s position writing “women do not lose their constitutionally protected liberty when they marry.” These cases are not isolated incidents. They are part of a long and consistent record of siding with powerful interests over people. People who’ve had their rights violated. People who’ve been injured. People who’ve lost their pensions. People who have been victimized and are asking the court to make things right, to make them whole. And for 15 years, Judge Alito has said no.
The school failed to accommodate her request and the Third Circuit ruled that her case should go forward. But Judge Alito dissented arguing that the case should not go to trial. The majority wrote that “few if any Rehabilitation Act case would survive” if Judge Alito’s view prevailed. (Nathanson v. Medical College of Pennsylvania).
When we take a step back and look at the entirety of Judge Alito’s record, we see a systematic tilt toward powerful institutions, and against the little guy, and a long history of writing ideologically driven dissents that are not only out of step with the majority of his peers on the Third Circuit, but are way outside the mainstream of America. Whether it’s a family losing their dairy farm, workers losing their pensions, a mentally-disabled young man who was the victim of vicious sexual harassment in the workplace, an unarmed 15-year-old boy being shot dead in the back of the head by police, the strip search of a 10-year-old girl, or the ability of a woman to make her own reproductive health decisions, Judge Alito has consistently said no to the daily concerns of average Americans. Now we are being asked not just to confirm a nominee who has spent 15 years tipping the scales of justice against the little guy, but to confirm a judge who will replace Sandra Day O’Connor, a woman who was a consensus-builder and a uniter on the Supreme Court. Based on this record, I cannot in good conscience cast my vote for Samuel Alito to be Associate Justice of the United States Supreme Court.
I yield the floor. |
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