Statement on the Nomination of Judge Leslie Southwick to the U.S. Court of Appeals for the Fifth Circuit
Wednesday, October 24, 2007
"I opposed the nomination of Leslie Southwick to serve a lifetime appointment on the United States Court of Appeals for the Fifth Circuit. His tenure as a judge on the Mississippi Court of Appeals reveals a record that fails to honor the principles of equality and justice and demonstrates a disregard for civil rights.
The American people deserve federal judges -- regardless of who nominates them -- who are dedicated to an evenhanded and just application of our laws. In case after case, Judge Southwick has demonstrated a lack of respect and understanding for the civil rights of all Americans, and particular indifference towards the real and enduring evils of discrimination against African Americans and gay and lesbian Americans.
After reviewing his judicial opinions and examining his qualifications, I have concluded that Judge Southwick's regressive civil rights record should disqualify him from serving a lifetime appointment on the Court of Appeals for the Fifth Circuit. I urge the President to select judicial nominees who embrace the principle that all are equal under the law."
Remarks on the Senate Floor on the Nomination of Judge Samuel Alito
January 25, 2006
"Mr. President, the nomination of Judge Samuel A. Alito, Jr. to the Supreme Court of the United States is a matter of great, even monumental, importance to all of us, to our children and to future generations of Americans. Now, I've spent a lot of time in my state over the last two weeks and I've traveled from one end of it to the other—from Long Island to Buffalo. And I have to tell you that Judge Alito's name is not on the lips of most of my constituents.
They want to talk to me about the complex, confusing Medicare prescription drug benefit. They want to ask about the culture of corruption that seems to have taken over Washington under the Republican leadership. They have question about their health care that is at risk even if you are employed or their pensions that seem to be disappearing with regularity these days. They are concerned about the sort of day-to-day, bread and butter, tabletop issues that we all live with.
But I would say to you, as I've said to them, that this vote we're going to take in the Senate will end up having a great deal to do with how they live their lives, with the balance of power within our country, with the quality of life and liberty and pursuit of happiness available to Americans. The constitution commands that the United States Senate provide the President with meaningful advice and consent on judicial nominations. I take this constitutional charge very seriously. I have carefully reviewed the committee's hearings and Judge Alito's extensive record. I've met with the judge. I've spoken with people who have strong opinions on both sides of this nomination, and I have concluded that I cannot give my consent to his nomination to the Supreme Court.
You know, the way I read American history, is that the key to American progress has been the ever-expanding circle of freedom and opportunity. That has been the common thread through all periods of our history: greater rights and greater responsibilities of citizenship and equality. Each time we have made strides forward, there have been voices -- vocal voices -- of opposition. There have been those who have wanted to go back. And at those moments of profound importance to our country, the federal courts have been the guardians of our liberties, have stood on the side of freedom and opportunity.
We all know the famous cases that are cited as representing this forward march of progress.
Brown v. Board of Education, which broke down the separate but equal. Baker v. Carr, which invalidated apportionment schemes and paved the way for the concept of “one man, one vote." Griswold v. Connecticut, which recognizes a right to privacy in the constitution. Roe v. Wade, that established that women have a right to choose.
I think we need judges who will maintain that forward progress and despite his distinguished academic credentials, Judge Alito has not shown himself to be that kind of judge. He has not shown any dedication to civil rights or women's rights or the right to privacy that I believe we need in the next Supreme Court Justice. Time and again when given the choice, he has voted to narrow the circle, to restrict the rights Americans hold dear. And now is not the time to go backwards.
Without the progress that we have made in the past 230 years, without that expansion of the circle of equality and freedom and opportunity, I certainly would not be standing here, nor would a number of my colleagues. There would be no opportunities for women in public life. But mine is hardly the only example. Voting rights would be restricted. Equal opportunities in education and in the workplace would not exist. And none of us would have a constitutional right to privacy. Simply put, our nation would not be what it is today. Our greatest strength has always been our commitment generation after generation, with some fits and starts, to enlarging the circle of rights and equality. That great American commitment has made us a beacon of freedom around the world.
This nomination could well be the tipping point against constitutionally-based freedoms and protections we cherish as individuals and as a nation. I fear that Judge Alito will roll back decades of progress and roll over when confronted with an administration too willing to flaunt the rules and looking for a rubber stamp.
The stakes could not be higher. To be sure, Roe v. Wade is at risk; the privacy of Americans is at risk; environmental safeguards, laws that protect workers from abuse or negligence, laws even that keep machine guns off the streets; all these and many others are imperiled.
Now, I don't believe that millions of Americans are aware of that yet. You know, this debate is carried on in Washington. It's had a kind of high level of legalisms and debates about jurisprudence and the meaning of the Constitution, but I'm confident that the Supreme Court will have a dramatic effect on our nation and on what we believe America stands for.
When I ran for the senate, I told New Yorkers that I would only vote for judges who would affirm constitutional precedents, like Roe and Brown and other landmark achievements in expanding rights and the reach of equality for all Americans. This is about more than rhetoric to me. This is very real. The American people are counting on us not to be a rubber stamp, counting on us to make sure that the President's nominee will not take us backwards.
I also view this nomination through the prism of the Justice that Judge Alito will replace. Now, I've not always agreed with Justice Sandra Day O'Connor, but she has shown throughout her career of distinguished service to the Court that one Justice makes a big difference. One Justice can protect our constitutional rights. Justice O'Connor is a true conservative—a mainstream jurist. She appreciated the advancements we have made as a society because she lived them. Anyone who has ever read her autobiography about this little cowgirl growing up on a ranch in Arizona, going off to school, eventually going to Stanford Law School, graduating near the top of her class and being unable to find a job simply because she was a woman knows: she doesn't just intellectually understand why our history is about moving forward and removing the obstacles to God-given human potential, she feels it. She understands it and time and time again, she showed that she appreciated the advancements that we have made as a society and she has fought to ensure that they would continue. Her vote was often the defining vote on which key civil liberties and rights rested. And she exercised it with care and independent judgment.
Any fair reading, in my view, of Judge Alito's record does not demonstrate that same independence of judgment. Nor does it illustrate a grasp, either intellectual or emotional, of the day-to-day struggles that tens of millions of Americans face. On the contrary, Judge Alito proudly announced his personal opposition to a woman's right to choose early in his career in the now infamous 1985 job application for a position in the Reagan administration. And although he has tried to distance himself from the comments he made in that document, his time on the bench shows an unapologetic effort to undermine the right to privacy and a woman's right to choose.
Now, I believe, and I have said for many, many years, that abortion should be safe, it should be rare, but it should be legal. And I understand that it is a difficult and even tragic choice for many women. It is a decision of conscience and therefore, should be a constitutionally-protected decision made not by the government, not by the majority -- whoever the majority might be -- but between a woman, her doctor, and her faith in God.
Now, Judge Alito does not share that view, and I think we can be certain that, freed from the constraints of Supreme Court precedent, he will intensify his campaign to roll back these important privacy rights. The extreme right wing of the Republican Party was up in arms when President Bush nominated Harriet Miers to the court to replace Justice O'Connor.
It was quite a spectacle to see this good woman who had risen to the top of her profession in Texas -- not, I would imagine, an easy place to be the president of the state bar and be the managing partner of a large law firm, but had done so by dint of hard work and intelligence -- be turned on by members of her own party because they could not be sure she would agree with them no matter what the facts or circumstances. Their reaction to Judge Alito's nomination, in contrast, has been enthusiastic, effusive, even ecstatic. Why? Because they know exactly what they are getting.
Now, Judge Alito's constrained views have not been limited to issues of privacy. While on the Third Circuit, he has rarely sided with individuals seeking relief from discrimination on the basis of race, age, gender, or disability. In fact, in the vast majority of civil rights cases, Judge Alito has sided with those who would infringe on the civil rights of Americans. For example, in several dissents, he has called for curtailing what's called Title VII of the Civil Rights Act of 1964, the landmark statute prohibiting discrimination against women and minorities in the workplace.
Now, these individual views, as manifested by his writings, his work in the government, his opinions on the bench, are even more troubling because he seems to favor executive power so much over the other branches of government. So I also fear that he will not respect the system of checks and balances that our Founders so carefully set out in the Constitution.
No one who has read the Federalist Papers or the debate that our Founders had when constructing the Constitution, or who understood the historical context in which our Declaration of Independence and our revolution occurred, could underestimate the importance that they placed on having three truly independent and equal branches of government. The founders understood human nature. They got it. They knew that unchecked power would lead to abuses, and we've seen some of that right here in Washington over the last five years. They realize that we had to check and balance against power centers in order to bring out “the better angels of our nature" but also to keep a watch on each other.
I don't believe, after reviewing Judge Alito's record that he understands or respects this central principle to the way America is set up. He has sought to expand the power and purview of the executive branch at nearly every turn while simultaneously stripping congress of its authority and curtailing the rights enjoyed by private citizens. For example, while working for the Reagan Administration, he made the argument that Cabinet officials who are charged with authorizing illegal wiretaps of Americans in this country should be entitled to absolute immunity.
Now, at a time when this president and his political party stand accused of political overreaching and abuse of power, we must demand from our judiciary a respect for the proper role of each of our three branches of government. But Judge Alito's excessive deference to presidential authority, coupled with his restrictive view of congressional authority, tells me that he doesn't have the proper reverence for separation of powers. And what's worse is that in supporting the expansion of the reach of presidential power, Judge Alito also holds a harshly limited view of what the government can or should do to help ordinary Americans.
Judge Alito said it all in 1986 when he was a young lawyer with the Reagan administration. He wrote that in his estimation it is not the role of the federal government to protect the “health, safety, and welfare" of the American people. Well, I guess that explains the inept, slow, and dangerous response to Hurricane Katrina. If you're not responsible to protect the “health, safety, and welfare," why should you be held accountable when people suffer, when their government leaves them neglected without any help?
Judge Alito has long advocated a limited congressional authority view. Now, if that were adhered to, it would undermine a whole host of civil rights protections, health and safety regulations, standards for protecting our air and water, food and drug quality regulations, laws regulating firearms as well as vital programs like Social Security, Medicare, and Medicaid.
Now, since his appointment to the Third Circuit, Judge Alito has aggressively sought to promote this theory of limited congressional power. In 1996, he voted to invalidate parts of our federal gun laws, arguing that there was no evidence in the record to determine that Congress had the power under the Constitution's commerce clause to enact legislation that regulated the sale of machine guns. In another case, Judge Alito wrote an opinion striking down Congress's right to make a state agency comply with the Family and Medical Leave Act. And just three years later the Supreme Court, with a similar set of facts, reached precisely the opposite conclusion.
In several criminal cases, Judge Alito has shown blatant disregard for a defendant's fundamental right to be tried by an impartial jury, what any one of us would want if we or a loved one were ever in this position, chosen free of racial or gender prejudice. He's also narrowly construed other criminal procedure protections arguing often in favor of granting law enforcement officials the greatest of latitude to conduct unauthorized searches and seizures.
Judge Alito's opinions on these and many other topics remind us that judicial activism comes in many guises. Adopting an unnecessarily narrow view of the constitution or of our laws to reach a desired outcome is a form of judicial activism that is no less offensive than subscribing to an overbroad interpretation of the law in order to reach a specific result.
Judge Alito, if confirmed, may hold a seat on the Supreme Court for a generation, long after this President has left office. Perhaps through eight to ten presidential elections, decades of progress would fall prey to his radical ideology, jeopardizing not only civil rights, civil liberties, health and safety and environmental protections, but also fundamental rights like the right to privacy. Our federal government could be transformed into one where Congress is largely irrelevant, the President is permitted to make up the rules as he goes. And I don't believe Judge Alito's vision of that America is what our Founders intended for us. He would take us backward, when it has never been more important to move forward together.
I sincerely hope my concerns about Judge Alito are unfounded but I suspect they are not and our children and grandchildren will pay the price. He has not demonstrated a proper respect for the rule of law, our Constitution, and the principles, freedoms, rights, and privileges that Americans hold most dear. I, therefore, cannot give my consent to his confirmation. And, Mr. President, I ask unanimous consent that letters written to Senators Specter and Leahy opposing this nomination be submitted to the record at this point in my remarks. Thank you, Mr. President."
Statement on the Nomination of Samuel Alito to the Supreme Court
October 31, 2005
"The President's selection of Third Circuit Court Judge Samuel Alito to replace retiring Supreme Court Associate Justice Sandra Day O'Connor must initiate a thoughtful and deliberate process of closely examining and scrutinizing Judge Alito's record to determine whether he merits a seat on the highest court in the nation. What we currently know about Judge Alito raises serious questions about whether he will be steadfast in protecting our most fundamental rights. I intend to closely examine Judge Alito's record and qualifications and carefully monitor the Judiciary Committee hearings in order to determine whether he intends to be a guardian of the rule of law who puts fairness and justice before ideology.
I hope that both the President and Judge Alito will be forthcoming during this process so that my colleagues and I can fully discharge our constitutional mandate of providing the President with meaningful 'advice and consent' on his nomination."
Statement on the Nomination of Harriet Miers to the Supreme Court
October 3, 2005
"The President has nominated his White House counsel Harriet Miers to be Associate Justice on the Supreme Court. I will examine the record and qualifications of the nominee and closely follow the Judiciary Committee hearings."
Statement on the Nomination of Judge John G. Roberts Jr. to the Supreme Court
July 19, 2005
"Now that the President has nominated Judge John G. Roberts Jr. to fill the vacancy on the Supreme Court, the Senate must initiate a thoughtful and deliberate process of closely examining and scrutinizing Judge Roberts' record. Not only does a thorough examination ensure that Judge Roberts is qualified to serve a lifetime appointment to our nation's highest court, it also allows the Senate to fully discharge its constitutional mandate of providing the President with meaningful 'Advice and Consent' on his nomination.
In the coming weeks, the Senate Judiciary Committee will begin the process of studying Judge Roberts' record. I look forward to the Committee's findings so that I can make an informed decision about whether Judge Roberts is truly a guardian of the rule of law who puts fairness and justice before ideology."
Statement on the Retirement of United States Supreme Court Associate Justice Sandra Day O'Connor
July 1, 2005
"I would like to thank Supreme Court Justice Sandra Day O'Connor for her twenty-four years of distinguished service to our nation and to our system of jurisprudence. While history will remember her most notably for being the first woman to serve on our nation's highest court, her legacy is that of a moderate voice of reason. Justice O'Connor was a guardian for the rule of law who put fairness and justice before ideology.
In 1981, when President Reagan was faced with a vacancy on the Supreme Court, he selected Justice O'Connor, a consensus conservative nominee who became one the Court's most respected members. The vacancy created by Justice O'Connor's retirement presents President Bush with a challenge and an opportunity to put partisanship aside and to honor the Constitution's mandate that he seek the “advice and consent" of the Senate in naming a replacement. I urge the President to take seriously the Constitution's charge and to engage the U.S. Senate -- both Republicans and Democrats -- in a process of genuine consultation in order to identify and to ultimately confirm a consensus nominee."
Statement on the Confirmation of Paul A. Crotty to the U.S. District Court for the Southern District of New York
Monday, October 3, 2005
"In confirming Paul Crotty today, the Senate has put on the bench a man deeply committed to justice and following the rule of law. Paul has the intellect, demeanor and dedication to fairness and integrity to serve the people of New York with distinction. Hailing from a family of public servants, Paul has followed suit both in the public and private sectors. I am confident that as a federal district court judge, Paul will continue to make his family and the people of his hometown of Buffalo proud.
Paul's confirmation today marks the 205th judge that the Senate has approved during this Administration. To the extent that this Administration nominates people with a commitment to justice and following the rule of law like Paul, this record of judicial confirmations will remain strong."
Statement on Confirmation of Gary Lawrence Sharpe to U.S. District Court for the Northern District of New York
January 28, 2004
"Even with all of his prior prosecutorial responsibilities, Judge Sharpe made time to serve as a member of the Broome County Prisoner Rehabilitation Board, the Onondaga County Substance Abuse Commission and the Onondaga County Youth Court. More recently, he worked with the Department of Probation to develop the High Impact Incarceration Program, a program for defendants who have substance abuse problems and who might be candidates for release."