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Statement of Senator Joe Lieberman on the Supreme Court Nomination of Judge Samuel Alito
Mr. President, I rise to discuss the nomination of Samuel Alito to be Associate Justice of the Supreme Court.
This is the sixth opportunity I have had as a United States Senator to consider a President’s nominee to the High Court. It is surely one of the most awesome and important responsibilities of members of this body because of the uniquely powerful and autonomous role the Supreme Court has in our governmental system and because, once confirmed Supreme Court Justices serve for life with accountability only to the Constitution, as they read it.
Like most of my colleagues I have judged the nominees based on four factors: 1) their intellect and ability; 2) their experience; 3) their character, and; 4) their judicial philosophy.
On the first three factors – intellect, experience, and character, I conclude Judge Alito more than passes the test. But on the fourth factor, judicial philosophy, I am left with just too many doubts to vote to confirm this nominee for a lifetime of service on the United States Supreme Court.
Let me now go over these four areas of consideration.
First intellect and ability. In the meeting I had with him, in the legal quality of his opinions over 15 years as a judge, in his testimony before the Judiciary Committee, I believe Judge Alito has shown that he is a person of considerable intellect and ability.
Second, experience. Judge Alito’s curriculum vitae itself depicts his excellent and relevant experience as a law clerk, federal government attorney U.S. Attorney, and Appellate Judge on the Third Circuit.
Third, character. Judge Alito was questioned aggressively at the Judiciary Committee’s confirmation hearings and elsewhere with regard to his character. But I thought he emerged with his integrity and honor intact. The ABA Standing Committee confirmed that judgment when it concluded that he “is an individual of excellent integrity” and that was based on more than 300 interviews with professional colleagues.
Fourth, judicial philosophy. Here is where, for me, the problems with this nomination begin and, in some senses, end. Judge Alito brings to this nomination process a more lengthy record of judicial opinions than any of the previous five nominees to the United States Supreme Court that I have had the privilege to consider. In his fifteen years on the Third Circuit Court, Judge Alito has written more than 350 opinions. Together, these opinions leave me with profound doubts about whether Judge Alito would protect and advance the special role the Constitution gives the Supreme Court -- as the single institution in our government that our Founders freed forever from popular political passions so that it could protect the rights our founding documents give to every American. Personal freedom and equal opportunity are America’s core ideals, and our Courts have been and must be the great advancers and protectors of those ideals.
To me, that work defines the vital mainstream of American jurisprudence. Based on his personal statements during the 1980s when he was a government attorney, and particularly on his 15 years of judicial opinions, I am left with profound concerns that Judge Alito would diminish the Supreme Court’s role as the ultimate guarantor of individual liberty in our country. This is not about a single issue but about an accumulation of his opinions that leads me to a preponderance of doubts.
For example, in civil rights cases, Judge Alito has repeatedly established a very high bar, an unusually high bar, for entrance to our Courts for people who believed they’ve been denied equal opportunity and fair treatment based on race or gender.
In one case, Bray vs. Marriott Hotels, the majority of his colleagues on the court said, “Title VII (of the Civil Rights Act) would be eviscerated if our analysis were to halt where the dissent (of Judge Alito) suggests.”
Judge Alito’s narrow reading of the Commerce Clause as exemplified by his dissent in the case of U.S. vs. Rybar, casts a shadow on federal legislation passed to protect the rights of individual Americans which has been, and will be, based on the Commerce Clause.
When asked at his confirmation hearings about the question of personal privacy, Judge Alito accepted the 1965 decision of Griswold v. Connecticut as settled law but, when asked over and over again, refused to say the same of the 1973 decision in Roe v. Wade. On that most difficult and divisive question of abortion, I personally believe that Roe achieved a just balance of rights and reflected a societal consensus that has continued and deepened in our country for more than three decades. I was left with serious concerns that Judge Alito would not uphold the basic tenets of Roe and that is a very troubling conclusion.
Every time I have voted to confirm a nominee to the United States Supreme Court as I have with Justices Souter, Breyer, Ginsberg, and Roberts – two appointed by Republican presidents, two appointed by a Democratic president – I did so knowing as we all do that I was taking a risk because I could never know exactly how the particular Justice would rule on the many cases that would come before him or her in a lifetime on the bench. But I ultimately concluded based on their records and their testimony that those four Justices would more likely than not uphold the unique responsibility the Supreme Court has as the most important guardian of the freedom, opportunity, and privacy for every single American. Unfortunately, I have not been able to reach the same conclusion about Judge Alito, and so I will respectfully vote no on his nomination.
***Yes, it's true...
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