Yesterday, in a strict party-line vote, the Senate Judiciary Committee approved the nomination of Judge Samuel Alito to replace Sandra Day O'Connor on the U.S. Supreme Court.
The nomination now goes to the full Senate for a final vote. A filibuster would be nice, but I won't hold my breath.
The transcripts of yesterday's committee session are worth reading. Senator Pat Leahy was wonderful.
LEAHY: Mr. Chairman, I may take more than five minutes.
But first off, on the question of party-line votes, considering the fact that the U.S. Supreme Court is there for nearly 300 million Americans, I wish we could have somebody who would have the support of all Americans.
As you know in discussions that you and I had with the president on this, the president spoke of his campaign promises. I reminded him several times of his biggest campaign promise, to be a uniter and not a divider, and urged him to be a uniter and not a divider when it came to a Supreme Court nomination.
There are many, many, many people in this country who would have had from 90 to 100 votes in the Senate. Democrats and Republicans would have joined eagerly to support them.
We have nine members on the Supreme Court today. Seven of those nine members were nominated by Republican presidents; two by a Democrat.
I voted for eight of those nine members. I try very hard not to have partisan votes on Supreme Court nominees.
Think how much better it would have been if, in this case, President Bush had sought any one of dozens upon dozens of highly qualified people -- highly qualified people, men and women, various ethnic backgrounds, all of whom would have gotten an overwhelmingly -- overwhelmingly, if not unanimous, vote from the Senate. And think of the signal that would have sent to the country and think how that would have allowed the president to fulfill his campaign promise of being a uniter and not a divider.
But this nomination raises the fundamental question of whether the Senate will serve its constitutional role as a check on the president by preserving the Supreme Court as a constitutional check on the expansion of presidential power.
I'd urge senators, and particularly Republican senators, to approach this discussion with open ears and open minds.
This is a nomination that I fear threatens the fundamental rights and liberties of all Americans now and in generations to come.
The president is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans.
And I believe this nomination is part of that plan. I am concerned that if we confirm this nominee we will further erode the checks and balances that have protected our constitutional rights for more than 200 years.
It's a critical nomination. It's one that can tip the balance in the Supreme Court radically away from the constitutional checks and balances and the protection of Americans' fundamental rights.
This past week, I introduced a resolution to clarify what we all know: that congressional authorization for the use of military force against Osama bin Laden did not authorize warrantless spying on Americans, as the Bush administration is now claiming.
As Justice O'Connor underscored recently, even war, quote, "is not a blank check for the president when it comes to the rights of the nation's citizens," close quote. Who could disagree with that?
But now that the illegal spying on Americans has become public and the president has acknowledged the four-year-old program, the Bush administration's lawyers are now contending the Congress authorized it.
The September 2001 authorization to use military force did no such thing. Democratic and Republican senators know it. A few Republicans have said so publicly. We all know it.
The liberties and rights that define us as Americans, and the system of checks and balances that serve to preserve them, should not be sacrificed to threats of terrorism or the expanding power of the government.
Our authorization was to go after Osama bin Laden. How much I wished the administration had continued to go after Osama bin Laden instead of pulling our best forces out of Afghanistan when we had a chance to catch him.
How much safer we would be if they had continued what we asked them to do.
In the days immediately following those attacks of September 11th, I said, and I continue to believe, that the terrorists win if they frighten us into sacrificing our freedoms and what defines us as Americans.
The Bush administration's after-the-fact claims about the breath of the authorization to use military force are the latest in a long line of manipulations, is another affront to the rule of law, of American values and traditions.
We've also seen the same type of overreaching and that same Justice Department's twisted interpretation of the torture statute, with the detention of suspects without charges and denial of access to counsel, and with the misapplication of the material witness statute as a, sort of, general preventative detention law.
Throughout the Alito hearing, from my opening statement on Monday afternoon to my first questions on Tuesday morning to my last written question, which received a response last Friday, I asked Judge Alito about these matters, and I am not reassured by his answers.
A central question during the hearings on this nomination was whether Judge Alito would serve as an effective constitutional check on the presidency.
We have a president who is prone to unilateralism and assertions of executive power that extend all the way to illegal spying on Americans. Preventing government intrusion into the privacy and freedoms of Americans is one of the hallmarks of the Supreme Court.
There is no assurance that Judge Alito will serve as an effective check and balance on government intrusion into the lives of Americans. Indeed, his record suggests otherwise.
We know that Samuel Alito sought to justify absolute immunity for President Nixon's attorney general, John Mitchell, from lawsuits for wiretapping Americans, among other violations of our privacy.
We know that as a judge Samuel Alito was willing to go further than even Michael Chertoff, the current secretary of the Department of Homeland Security, in excusing government agents for searches not authorized by judicial warrants.
We know Judge Alito would have excused the strip search of a 10- year-old girl that was not authorized -- in fact, expressly not authorized by a search warrant.
We know he was part of an effort within the Meese Justice Department to expand the use of presidential signing statements to increase the president's role in construing what a law passed by Congress means. That is a practice that the Bush administration is taking to new heights.
This president has made some of the most expansive claims of power since American patriots fought the War of Independence to rid themselves of the oppressive rule of King George III.
This president is claiming power to illegally spy on Americans, to allow actions that violate our values and laws protecting human rights, and to detain U.S. citizens and others on his say so -- on his say so, without judicial review, without any due process.
This is something I have not seen in my lifetime.
This is a time in our history when the protection of Americans' liberties are at risk, as are the very checks and balances that have served to constrain abuses of power for more than two centuries.
I've said before and I'll say again the Supreme Court is the ultimate check and balance in our system.
The independence of the court and its members is crucial to our democracy and our way of life.
The United States Senate should never be allowed to become a rubber stamp. We should be the conscience of the nation. But neither should the Supreme Court be allowed to be a rubber stamp for any president, Democratic of Republican.
I asked Judge Alito to demonstrate his independence from the interests of the president. He failed that test.
And I suspect that the answer to the question Judge Alito posed at the hearing regarding how he got the nomination can be answered in large measure with regard to his demonstrated deference to government power, his adherence to the unitary executive, his rulings in favor of government intrusions, and whatever he said in his job interviews at the White House that convinced those advising this president that he'll be a reliable vote against challenges to presidential power.
No president should be allowed to pack the courts, especially the Supreme Court. An overwhelmingly Democratic-controlled Senate stood up to the most popular Democrat ever elected president, Franklin Roosevelt, and we Democrats protected the independence of the Supreme Court by saying that even someone as popular as Franklin Roosevelt could not pack the Supreme Court.
Well, even today, with a Republican Senate, I would say that no president should be allow to pack the courts, and especially the Supreme Court when nominees are selected to enshrine presidential claims of government powers.
Our system was designed to ensure balance and to protect against overreaching by any branch. The Senate should not be a rubber stamp to this president's effort to move the law dramatically to the right and to give him unfettered leeway.
So I will not lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy.
As I said, I voted for eight of the nine members of the Supreme Court. I voted for President Reagan's nomination of Sandra Day O'Connor, for President Reagan's nomination of Justice Anthony Kennedy, for President Bush's nomination of Justice Souter and for this president's recent nomination of Chief Justice Roberts.
But this is a bridge too far. I cannot vote for this nomination.
At a time when the president is seizing unprecedented power, the Supreme Court needs to act as check and to provide balance. Based on the hearing and his record, I have no confidence that Judge Alito would provide that check and balance.