------------------
SCHUMER: ALITO STONEWALLING COULD JEOPARDIZE NOMINATION

Supreme Court Nominee Has Greater Obligation to Answer Questions on Presidential Authority, Commerce Clause, and Roe

Every Nominee Has an Obligation to Answer Questions and Be Candid About Their Views, But Even More So When the Nominee Has Already Expressed a Controversial Opinion on a Given Subject

Even Under So Called ‘Ginsburg Standard,’ Alito Has an Obligation to Answer These Questions

Sen. Chuck Schumer, the top Democrat on the Judiciary Subcommittee on the Courts, addressed the Center for American Progress and American Constitution Society regarding the nomination of Judge Samuel Alito to the Supreme Court on the eve of the Senate Judiciary Committee hearings next week. Schumer’s speech stressed the greater obligation that Judge Alito has than previous nominees to answer questions at the hearing because many of his known legal views are way out of the judicial mainstream. Schumer also suggested that stonewalling by Judge Alito could jeopardize his nomination to the highest court in the land.

Schumer’s speech follows:

Judge Alito’s Unique Burden

I would like to thank the Center for American Progress and the American Constitution Society for sponsoring this event.

After 11 years without a single Supreme Court nomination, the Senate sits on the eve of considering the second nomination to the High Court in just four months (the third if you count Harriet Miers).

People have asked me how this nomination is different from the Roberts’s nomination, how these hearings will be different from the last.

As I have been saying for more than four years now, every Supreme Court nominee has a solemn responsibility at his or her confirmation hearing to be candid and forthright. Every nominee has an obligation to answer questions about his or her legal philosophy and method of legal reasoning.

In the post-Harriet Miers world, when so many on the right were saying the same things about the obligation of a nominee to answer questions, that position is now widely accepted.

Only in that way do we honestly fulfill our obligation to give advice and consent; only in that way do the American people get to participate in understanding what type of Justice their elected representatives are voting on.

The obligation, however, is greater for some nominees. It is greater when a nominee has taken a clear position on a legal matter.

That, I submit, is the case with Judge Alito. While there are many, many questions raised by Judge Alito’s opinions and writings, today I want to highlight several areas that show the need for Judge Alito to answer questions fully and forthrightly at the hearings next week – Judge Alito’s written record on executive power; his written record on Congressional power; and his written record on the issue of personal autonomy and choice, just to name a few.

On at least these issues and perhaps many others, Judge Alito has more to answer for than any other Supreme Court nominee in memory.

That is because the obligation increases when a nominee has spoken out – in a clear and direct way – on a particular issue, as Judge Alito has.

When that nominee has taken a position on a legal matter – particularly when he has done so strongly and stridently, as Judge Alito has – there is a greater obligation to answer questions.

The logic of the mantra, repeated by John Roberts at his hearing, that one could not speak on a subject because the issue was likely to come before him quickly evaporates when the nominee has a record on the subject.

Thus, even under the so-called “Ginsburg precedent” – which was endorsed by Judge Roberts, Republican Senators, and the White House – Judge Alito must answer questions on topics that he has written about.

1. Executive Power and Warrantless Wiretapping

On the issue of executive power, Alito has defended a radical theory of separation of powers called the “unitary executive” theory. This theory holds that Congress has no power to create any independent commission or law that in any way involves an act that Alito and his supporters think involves any type of execution of law. He endorsed, in writing, a truly vast power for the President.

Under this view of separation of powers, the Independent Counsel Act was unconstitutional, the Sentencing Commission is unconstitutional, and the FTC is unconstitutional. The President likely has completely unchecked authorities to act without congressional oversight in the area of foreign affairs despite the fact that the Constitution entrusts only Congress with the power to “declare War.”

Under Judge Alito's view, the 9/11 Commission may have been an unconstitutional encroachment upon the “unitary executive.”

The President would seem to have inherent authority to wiretap American citizens without a warrant, to ignore congressional acts at will, or to take any other action he saw fit under his inherent powers.

Also, in a 1984 memo to the Solicitor General, Alito examined the question whether the Attorney General and his staff should have absolute immunity from suit even when they blatantly or intentionally violate the Constitution, including the unconstitutional wiretapping of American citizens. Alito wrote that he did “not question that the Attorney General should have this immunity,” but noted that “for tactical reasons, I would not raise the issue here.”

Does he still hold these views? Does he believe in any checks on Presidential power? Does he believe that warrantless wiretapping of Americans is Constitutional? Does he believe the FTC should not exist? We deserve straight answers at the hearing.

These issues have never been more important in light of recent revelations about warrantless wiretapping.

2. Congressional Power under the Commerce Clause

Similarly, on the issue of federalism, he has taken an extreme view. He ruled in US v. Rybar that Congress had exceeded its power by prohibiting the possession of machine guns.

His opinion was a major cutback on Congress’s power to protect the safety and welfare of American citizens. The other judges on his court all disagreed with him. And all five other circuits which had considered the issue disagreed with him.

Since his decision in the machine gun case, the Supreme Court has cut back, in a case called Raich, on what the Rehnquist Court tried to do in the 1990's in a 2004 medical marijuana case.

I specifically asked Judge Alito in our private meeting to consider whether that case would have affected his decision in the machine gun case; whether he agrees with the reasoning of Raich. He said he would think about it. I hope he has, and he has an obligation to provide an answer.

Does he still hold these cramped views of Congressional power? Does he agree with the reasoning of the recent medical marijuana case, which restored some of the Congressional authority the Rehnquist Court had tried to take away in the 1990's? We deserve straight answers at the hearing.

3. Privacy

And of course, here is what Judge Alito famously said about reproductive rights. In the widely-reported job application he submitted to the Office of Legal Counsel in 1985, Judge Alito wrote the following:

“[I]t has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court . . . that the Constitution does not protect a right to an abortion.”

Let me just repeat what he said in those two sentences:

“I personally believe very strongly . . . that the Constitution does not protect a right to an abortion.”

Does he stand by those statements? Does he still have the same view of the Constitution? We deserve a straight answer at the hearings.

We also now know that in the same year, 1985, Judge Alito authored a detailed, 17-page memorandum while at the Solicitor General’s Office, setting forth a legal strategy in Thornburgh v. American College of Obstetricians – a legal strategy designed to accomplish the ultimate overruling of Roe v. Wade. This is what he wrote:

“What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”

“[W]e should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.”

Does he stand by those statements? We deserve a straight answer at the hearings.

Does he still “personally believe very strongly. . . that the Constitution does not protect a right to an abortion”?

Or is he going to distance himself from those comments?

He may suggest that the views he expressed on Roe were merely personal and so not to be given weight.

That argument cannot be taken seriously by any serious person. What Judge Alito articulated in his 1985 job application was a legal view, not a personal one. It may have been a personal legal view – but there is no distinction when one is a judge. That is what judges decide cases on – their personal legal views.

A purely personal and non-legal view would include being personally against abortion or against the death penalty or against handguns. But, an expressed view that the Constitution does not protect a right to an abortion or does not permit the death penalty or does not permit the banning of handguns are 100 percent legal views – legal views that necessarily define a judge’s judicial philosophy.
It may be the case that one’s personal legal view has to yield to a contrary precedent when one is a lower court judge, but that is a different issue.

And, of course, when one sits on the Supreme Court, one’s personal legal view of the Constitution need not yield to anything. In fact, when one sits on the Supreme Court, one’s personal legal view of the Constitution – if joined by four others – becomes the law of the land.
-------------------