Senator Kerry presented his case against Alito in three gripping speeches

[ProSense]

01/25/2006

Remarks by Senator John Kerry on His Opposition to Judge Alito’s Nomination to the Supreme Court


Below are Senator John Kerry’s full, prepared remarks on the floor of the Senate today on the upcoming vote on Judge Samuel Alito to serve a Justice on the United States Supreme Court.

“Mr. President. Today, we face perhaps one of the most important choices we will make as Senators. A choice that will affect the direction of our country for the next several decades. President Bush has nominated Judge Samuel Alito to replace Justice Sandra Day O’Connor on the United States Supreme Court. He has nominated a man who consistently defers to the government action regardless of how egregious it may be; a man who erects rather than breaks down barriers in the area of civil rights, a man who, to this day, has never retreated from his declaration that the Constitution does not protect a woman’s right to privacy, a man who has demonstrated a persistent insensitivity to the history of racial discrimination in this country and, was even, at the government’s request, willing to ignore overwhelming evidence that African Americans were intentionally stricken from an all-white jury in a black defendant’s capital case.

“And who will this nominee replace? He has been nominated to fill the seat of the Court’s swing vote—a woman who has upheld affirmative action programs, a woman who upheld the right to choose, a woman who upheld state employees’ rights to the protections of the Family Medical Leave Act, a woman who recognizes that a declaration of war is not a ‘blank check’ for the President’s actions. A woman who decides each case narrowly on the facts presented, keenly aware of the greater impact her decisions have.

“We are being asked to confirm a nominee who will shift the ideological balance of the Court dramatically to the right. We are being asked to confirm a nominee whose views will undermine the balance of power that I believe keeps our country strong. For these and other compelling reasons, I oppose this nomination.

“In the past, I, like many of my colleagues, have voted for federal court nominees despite the fact that I disagreed with them ideologically. In fact, I voted for Justice Scalia because, despite our ideological differences, in the confirmation process he promised an open-mindedness that we have not witnessed. So the words of the confirmation hearings do not erase ideology. And that ideology cannot be overlooked because a Justice’s decisions can—and will—have a profound impact on the rights we otherwise take for granted.

“Something more is needed. A Supreme Court Justice needs to understand and respect our constitutional rights and liberties. He or she needs to recognize the importance of precedent and the limited situations in which overruling it is acceptable. He or she needs to appreciate the significant struggles that our nation has endured—in the context of racial, sexual, and disability discrimination—and be aware of the road still to be traveled.

“In short, Mr. President, ideology does matter. The Supreme Court’s ideologically-driven decisions have been the most regrettable in our nation’s history—decisions like Korematsu, Dredd Scott, and Plessy v. Ferguson.

“In fact, ideology matters more in this nomination than perhaps it would in any others. We are replacing Justice Sandra Day O’Connor, President Reagan’s nominee to the United States Supreme Court, and its current center. She is the fulcrum upon which most constitutional rights and liberties are balanced. And, as we contemplate ripping that fulcrum out from underneath the Court, we have to understand what the impact of that action will be.

“Given how high the stakes are, our decision cannot be based on whether Judge Alito is a smart man; whether he is a nice man; whether he is an accomplished man; or even whether he is well-respected in legal circles. He is all these things. But, what we must consider is the impact a Justice Alito will have on the Court and whether that is good for our country, our Constitution, and the American people. I firmly believe the answer is no.

“President Bush had the opportunity to nominate someone who would unite the country in a time of extreme divisiveness. He chose not to do this, and that is his right. But that he didn’t and how this nomination happened tells us a great deal about this presidency and how politics is driving this process.

“Under fire from his conservative base for nominating Harriet Miers—a woman whose judicial philosophy they mercilessly attacked—President Bush broke to extreme right-wing demands. This was a coup. Miers was removed and Alito was installed. The President did not consult with members of the Senate, as is required by the Constitution. He gave no thought to what the American people really wanted—or needed.

“Instead, he made this nomination about his political base. He made it about an ideological shift in the Court. He made it about unassailable conservative credentials and an unimpeachable conservative judicial philosophy.

“If you need proof, just look at the response of Ann Coulter. Ms. Coulter is as inflammatory and as conservative as anyone in the country. She makes her living through character assassination. She denounced the nomination of John Roberts. She attacked the nomination of Harriet Miers, calling her completely unqualified and lamenting that President Bush had ‘thrown away a Supreme Court seat.’ Yet she celebrated the nomination of Samuel Alito, stating that Bush gave Democrats ‘a right-hook’ with this ‘stunningly qualified’ nominee. This from a woman who said that Republicans need to nominate a person who ‘wake(s) up every morning . . . chortling about how much his latest opinion will tick off the left.’

“Failed Supreme Court nominee Robert Bork had a similar reaction. He denounced Miers’ nomination as ‘taking the heart out of a rising generation’ of conservative constitutional scholars and ‘widen(ing) the fissures within the conservative movement.’ Yet he praised Alito’s nomination as ‘substantially narrowing’ that rift. In fact he called the nomination something to ‘rejoice’ because, if Alito were confirmed, it would only take ‘one more justice of the Roberts-Scalia-Thomas-Alito stripe to return the Court to’ so-called ‘jurisprudential respectability.’

“And let’s not forget conservative stalwart Pat Buchanan, who denounced the Miers nomination as revealing the President’s lack of desire ‘to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the Court in the image of Scalia and Thomas.’ Apparently Buchanan believes that the Alito nomination demonstrates the President’s change of heart. He heralded the nomination as one that would unite and rally the base.

“They say you can tell a lot by a person’s friends. These three individuals are consistently on the furthest edge of the ideological spectrum. Their positions rarely advance the interests of average Americans.

“Perhaps it should come as no surprise that conservatives have jumped to support Judge Alito. After reviewing more than 400 of Judge Alito’s opinions, law professors at Yale Law School concluded that:

‘In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age and disability claimants. . . Judge Alito seems relatively willing to defer to the claims of employers and the government, over those advancing civil rights claims.’

“Similarly, a Knight-Ridder review of Judge Alito’s opinions concluded that Judge Alito ‘has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation’s laws’ and that he ‘seldom-sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business.’

“After reviewing 221 of Judge Alito’s opinions in divided cases, the Washington Post concluded that Judge Alito is ‘clearly tough-minded . . . having very little sympathy for those asserting rights against the government.’

“The pattern here is clear—and it’s unacceptable. We cannot put someone on the Court who makes access to justice harder and more illusive. We cannot put someone on the Court who will fail to serve as an effective check on excessive executive power.

“Mr. President, if this pattern is not enough to show how truly dangerous Judge Alito is, then take a look at some of his opinions.

“In Sheridan v. E.I. Dupont De Nemours and Co., Judge Alito wrote a lone dissent—opposed by all of the other judges on his court—eight of whom were Republicans— which would have made it more difficult for victims of discrimination to sue their employers. Applying a similarly high standard of proof—one the majority believed would eviscerate the protections of Title VII—Judge Alito dissented from a decision to allow a racial discrimination claim to go to trial in Bray v. Marriott Hotels.

“What is the practical impact of these decisions? They keep victims of discrimination from having their day in court.

“It is not as if Judge Alito’s insensitivity toward victims of discrimination are evidenced only in his judicial opinions. In 1985 job application to President Reagan’s Justice Department, Alito wrote that his interest in Constitutional law was driven, in part, by a disagreement with Warren Court decisions on reapportionment—decisions which established the principle of ‘one person, one vote.’ And he said that he was ‘particularly proud’ of his work to end affirmative action programs.

“Judge Alito’s hostility to individual rights is not limited to civil rights. He consistently excuses government intrusions into personal privacy—regardless of how egregious or excessive they are. In Doe v. Groody, for example, he dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a 10-year old was ‘reasonable.’ He also thought the government should not be held accountable for shooting an un-armed boy trying to escape with a stolen purse, nor for forcibly evicting farmers from their land in a civil bankruptcy proceeding without any show of resistance.

“This pattern of deference to government power is reinforced by a speech he gave as a sitting judge to the Federalist Society just five years ago.

“In his speech, Judge Alito ‘preach(ed) the gospel’ of the Reagan Administration’s Justice Department: the theory of a unitary executive. Though in the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch but rather addressed the question of who controls the executive branch, don’t be fooled. The unitary executive theory has everything to do with the scope of executive power.

“In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ‘(t)he practical consequence of this theory is dramatic: it renders unconstitutional independent agencies and counsels.’ This means that Congress would lose the power to protect public safety by creating agencies like the Consumer Product Safety Commission—which ensures the safety of products on the marketplace—and the Securities and Exchange Commission—which protects Americans from corporations like Enron—and the President would gain it.

“Carried to its logical end, the theory goes much further than invalidating independent agencies. The Bush Administration has used it to justify both its illegal domestic spying program and its ability to torture detainees. The Administration seems to view this theory as a blank check for executive overreaching.

“Judge Alito’s endorsement of the unitary executive theory is not my only cause for concern. In 1986, while working in the Justice Department, Judge Alito endorsed the idea that presidential ‘signing statements’ could be used to influence judicial interpretation of legislation. His premise was that the President’s understanding of legislation was as important as Congress’ in determining legislative intent—startling when you consider that Congress is the legislative branch.

“President Bush has taken the practice of issuing signing statements to a new level. Most recently, he used a signing statement to reserve the right to ignore the ban on torture that the Congress overwhelmingly passed. He also used signing statement to attempt to apply the law restricting habeas corpus review of enemy combatants retroactively—despite our understanding in Congress that it would not affect cases pending before the Supreme Court at the time of passage.

“The implications of President Bush’s signing statements are astounding: his Administration is reserving the right to ignore those laws it does not like. Only one thing can hold the President accountable: the Supreme Court. I am not convinced that will happen if Judge Alito is confirmed.

“Reigning in excessive government power matters more today than ever before as we work to find the balance between protecting our rights and our safety. As Justice O’Connor said, the war on terror is not a blank slate for government action. We can—and must—fight it in a manner consistent with the Constitution.

“Last, but certainly not least, I have grave concerns about Judge Alito’s ability and willingness to protect a woman’s right to choose. In his 1985 job application, Judge Alito wrote that he was ‘particularly proud’ of his work arguing before the Supreme Court that ‘the Constitution does not protect a right to an abortion.’ That same year, he wrote a memo outlining a strategy for chipping away at Roe v. Wade, an approach he believed would be more successful than asking for outright reversal.

“In his hearings, Judge Alito said that these statements were accurate reflections of his views in 1985, but what is more disturbing is what he refused to say. He refused to say that his views had changed. He refused to say that he accepted Roe v. Wade as settled law. In other words, he refused to give any assurances that his concept of the Constitution’s protected liberty is consistent with that of mainstream America.

“Now, I realize that Judge Alito has promised that he will keep an ‘open mind’ when approaching the cases that come before him. I, however, am not reassured. We have heard these kinds of empty platitudes before. Justice Thomas repeatedly told the Judiciary Committee that he would keep an open mind on the issue of abortion, but as we all know, once safely on the Supreme Court, Justice Thomas voted to overturn Roe v. Wade just months later, writing a dissent in Casey that likened abortion to polygamy, sodomy, incest and suicide. Given Justice Thomas’s success, you can almost image Karl Rove whispering to Judge Alito: ‘Just say you have an open mind. Works every time.’

“We simply cannot rely on promises that nominees make to the Judiciary Committee—particularly when the nominee’s entire professional history suggests something different and particularly when past promises that the nominee has made have been essentially meaningless.

“In his 1990 Judiciary Committee hearings, Judge Alito promised that he would recuse himself in any cases involving the Vanguard companies given his ownership of Vanguard mutual funds. In his Supreme Court hearings, Judge Alito admitted that he could not remember ever putting Vanguard on his permanent recusal list. We know for a fact that it did not appear on his 1993, 94, 95 or 96 lists. How do we know that he kept his word to the Judiciary Committee? We don’t. How can we trust he will keep his word now? We can’t.

“Mr. President, I am deeply concerned about the future of the Supreme Court. I am deeply concerned about maintaining the integrity of our Constitutional rights and liberties. I fear that the disadvantaged in our society will be locked out of our system of justice. I fear that the President’s powers will grow beyond what the Framers intended them to be. And, I fear that Congress’s hands will be tied and we will be unable to do the work of the American people.

“I cannot and I will not vote to confirm a nominee who will dramatically shift the Court’s ideological balance to the right. Judge Alito had the burden of proving—not just to me but to the American people—that he would not be that kind of justice. He failed to carry that burden. I believe that a Court with Judge Alito sitting on it will be a Court that moves our country backwards. I cannot support his nomination, and I hope that none of my colleagues will either.”

01/27/2006

Senator John Kerry Speaks Out Against Alito Nomination


Below is the transcript of Senator John Kerry’s remarks on the floor of the Senate today on Judge Samuel Alito’s nomination to serve as a Justice on the United States Supreme Court:

“Mr. President, let me begin by congratulating the Senator from Minnesota for an absolutely superb presentation of the arguments that are at stake in this choice the Senate faces. I think he has done a terrific job of summarizing a great many of those issues in the broad scope of those issues, and I particularly appreciate the last comments he made about the absence of unanimity and the divisions in the Senate over their vote.

“None of us should forget the debate Harriet Miers met with a storm of criticism -- not from this side but from the other, from the right-wing. In fact, she became more unacceptable to the Republicans because she did not make clear which ideological direction she would take the Court, rather than for the very broad-based appeal she would pose to the country.

“So the reason we are here with this decision is not because of a choice we have made. It is because of a choice the President has made. It is because that’s the direction the President wants to move in. We have had countless opportunities in the Senate where we have had votes on nominees which have garnered 100 votes, 98 votes, 95, 90. Anyone who is watching this understands that the Senate is divided on this nominee. At this pivotal moment in our country's history with the issues we face, that is not the way to tip the balance of the Court or to move the Court in an ideological direction.

“The critical question here is, Why are we so compelled to accept in such a rush a nominee who has so clearly been chosen for political and ideological reasons? That is the real question. Our job is to advise and consent. No one understands better than I do the consequences of an election and what happens when a President wins. I have heard colleagues say: Well, the President won. He has a right to make his choice. Yes, he does. And the choice he has made is an ideological choice to take the Court in a certain direction. That is his choice.

“Our choice depends on our rights as Senators and depends on what the Constitution tells us we should do in terms of giving advice and consent. My question to the Senate is, What is our advice with respect to the rights of a young person to be strip-searched or with respect to people in their homes or with respect to a whole series of other critical things that define this country? What is the advice of the Senate in this year?

“These are not small issues to be expedited away by some kind of a symbolic timetable, a State of the Union Message. Our advice and consent ought to be weighed just as carefully and as importantly as the impact this choice is going to have on the Court for years to come. This is not the vote of Monday afternoon. This is a vote of history.

“Deciding on whether to confirm Judge Sam Alito to be an Associate Justice is one of the most important votes I will cast in the time I have been in the Senate because of what it means to the Court and to these critical choices.

“Confirming Judge Alito to a lifetime appointment on the Supreme Court would have irreversible consequences that are already defined if Senators will take the time to measure them.

“In my judgment, it will take the country backwards on critical issues. I will not talk about them all now; we do not have time. I know there is a pre-agreement. I understand that, and I respect that.

“I am proud to join my friend, the senior Senator from Massachusetts, in taking a stand against this nomination. I know it is an uphill battle. I have heard many of my colleagues. I hear the arguments: Reserve your gunpowder for the future. What is the future if it changes so dramatically at this moment in time? What happens to those people who count on us to stand up and protect them now, not later, not at some future time?

“This is the choice for the Court now. I reject those notions that there ought to somehow be some political calculus about the future. This impact is going to be now. This choice is now. This ideological direction is defined now.

“This fight is not a fight for the short term. This is a fight over two very fundamentally different views about what defines us, what is appropriate in the relationship between government and citizen, and the right of our citizens to be free from unlawful government action. These are not just words. This is not something we just casually throw out there. ‘Unlawful government action’ is part of what motivated people to come here in the first place and to fight for what we love and cherish.

“I used to be a prosecutor, and I worked closely with police. I loved my work with the police. I respect the police. They do unbelievably dangerous work on behalf of our country every single day. They may walk into a home, into a dark corner, not knowing who is there or what evil awaits them. I understand that. I also understand when you assume that responsibility, you assume a responsibility to uphold the law, to uphold the Constitution, and to help protect people. That is part of the risk, part of what you take on.

“What about the right to equal justice under the law? I heard one Senator the other day come to the Senate and say it isn't the job of a Supreme Court Justice to protect the downtrodden or the disenfranchised, it is their job to interpret the law. On countless occasions we all know the weight that comes to bear in that decision-making process between powerful interests and those who do not have a voice. That is also part of what defines us. What makes America different from every country on the face of the Earth is that the average citizen can go into a courthouse in America and hold the most powerful corporation to account for their safety, for their livelihood, for their welfare. These are rights that Americans care about deeply.

“The importance of this choice is highlighted by focusing on the seat that this nominee has been chosen to replace.

“Look at Justice Sandra Day O'Connor, a deciding vote, a vote that will likely be lost if Judge Alito takes her place. Look at the case of Grutter v. Bollinger, which held that State colleges and universities have the right to use affirmative action in their admission policies to increase educational opportunities for minorities and promote racial diversity on campuses.

“What about Tennessee v. Lane, which upheld the constitutionality of Title II of the Americans with Disabilities Act that required that courtrooms be physically accessible to the disabled. Or Rush Prudential HMO v. Moran, which upheld state laws giving people the right to a second doctor's opinion if their HMO tries to deny them treatment. That is a classic example of power against the powerless. It happens every day in America. An HMO decides, no; an individual citizen wants the coverage they think they got. Will they have the right to have the access on that?

“Hunt v. Cromarie, affirming the right of state legislatures to take race into account to secure minority voting rights and redistricting -- we all know what has happened in this country, the challenge to the rights of minorities to vote. We still see it. As recently as in the last election we saw minorities denied opportunities to register, opportunities to have equal numbers of voting machines in their district. These are the things that define us.

“Brown v. Legal Foundation of Washington, which maintained the key source of funding for legal assistance for the poor; Alaska Department of Environmental Conservation v. EPA, which allowed the EPA to step in and take action to reduce air pollution under the Clean Air Act when a State conservation agency fails to act -- there is not an American that doesn't understand we are going backwards with respect to air quality. What are the rights of the EPA going to be where Justice Sandra Day O'Connor was the swing vote, 5-4, the only one who held the line on the right of the EPA to do that?

“Steinberg v. Carhart, which overturned a State law that would have banned abortion as early as the 12th week of pregnancy without providing an exception to a woman's health -- the list goes on. These are the issues which are at stake.

“Throughout his legal career -- these are not things that are made up. These are defined by the writings, by the decisions, by the memoranda, by the speeches that Judge Alito has made. In each of those, in all of those, there is a startling lack of skepticism that is healthy in judges towards government power that infringes on individual rights and liberties. Professor Goodwin Liu of the University of Berkeley Law School concluded after analyzing those:

“Judge Alito ‘is less concerned about the government overreaching than Federal appeals judges nationwide, less concerned than Republican-appointed appeals judges nationwide, and less concerned than his Republican-appointed colleagues on the Third Circuit.’

“Aren’t we going to be concerned that he is less concerned than those of the same stripe? Not only is his record outside the mainstream of the judicial spectrum, but ‘it is at odds with the Supreme Court's vital role in protecting privacy, freedom, and due process of law.’ That is Professor Liu.

“In 1984, for example, Judge Alito wrote a Justice Department memorandum concluding that the use of deadly force against a fleeing unarmed suspect did not violate the fourth amendment. The victim was a 15-year-old African American. He was 5 foot 4. He weighed 100 to 110 pounds. This unarmed eighth grader was attempting to jump a fence with a stolen purse containing $10 when he was shot in the back of the head in order to prevent escape. The Sixth Circuit Court of Appeals found the shooting unconstitutional because deadly force can only be used when there is ‘probable cause that the suspect poses a threat to the safety of the officers or a danger to the community if left at large.’ That is what we teach law enforcement officials.

“But Judge Alito disagreed. Judge Alito said: No, he believed the shooting was reasonable because ‘the State is justified in using whatever force is necessary to enforce its laws’--even deadly force. That is his conclusion. That is the standard that is going to go to the Supreme Court if ratified. It is OK to shoot a 15-year-old, 110 pounds, a 5-foot-4-inch kid who is trying to get over a fence with a purse, shoot him in the back of the head.

“Otherwise, Judge Alito believed that any suspect could evade arrest by making the State choose between killing them or letting them escape. That is the conclusion. Think about that. Judge Alito believed that the State could use whatever force was necessary to enforce its laws regardless of whether the suspect was armed or dangerous. Does the Chair believe that? Do the other Senators believe that? I don't think so. Do mainstream Americans believe that?

“Lucky for us, we did not have to answer that question. Why? Because in 1985, Justice White rejected Judge Alito's position, and the court held that deadly force is not justified ‘where the suspect poses no immediate threat to the officer and no threat to others.’ The court stated unequivocally, ‘a police officer may not seize an unarmed, nondangerous suspect by shooting him dead.’

“So Judge Alito is out of touch with mainstream jurisprudence with respect to the use of force in America. Becoming a Federal judge did not make Judge Alito any more protective of an American's personal privacy and freedoms when it comes to government intrusion. That ought to concern every conservative in this Nation. Every conservative in America ought to care about the government's power to just walk into your home, to intrude on the rights of individual Americans.

“In Baker v. Monroe Township, over a dozen local and Federal narcotics agents raided the apartment of Clement Griffin, just as his mother and her three children were arriving for a family dinner. Officers forced the family down to the ground, pointed guns at them, handcuffed and searched them. Two Reagan appointees to the court held that a jury should decide whether excessive force was used, but Judge Alito disagreed. He agreed that the search was ‘terrifying’ and ‘most unfortunate.’ But he did not believe that the family had a right to make their case to a jury in court. He would have denied those American citizens, terrified as they were, their day in court.

“Judge Alito, I regret to say, often goes out of his way to justify excessive government actions. Many have talked in the Senate about Doe v. Groody, where Judge Alito, dissenting in an opinion by our current head of the Department of Homeland Security, then-Judge Michael Chertoff, concluded that the strip-search of a 10-year-old girl was unreasonable. That was the conclusion of Judge Chertoff. Judge Alito concluded that the strip-search of a 10-year-old girl was reasonable.

“He reached this astonishing conclusion on a technicality. Rather than relying on the search warrant to determine whether the strip search of a child was authorized, Judge Alito argued that the court ought to look to the police officer's supporting affidavits.

“As a rule, however -- now, I can say this as a former prosecutor because we used to labor over those warrants very carefully, knowing they were going to be scrutinized -- affidavits are not part of the search warrants unless the trial judge decides they are. That ‘goes to the heart of the constitutional requirement that judges, not the police, authorize the warrants.’ But Judge Alito said: No, no, no, no, it is OK to go look behind what they were intending, and decided they must have intended to include the search of the entire family, including a 10-year-old child. Is that the standard we want on the Court?

“Judge Alito's minimalist view of the fourth amendment's right to privacy is not limited to claims of excessive force. In United States v. Lee, he upheld the FBI's installation of a video and audio surveillance device in a hotel room in order to record conversations between the target of a bribery sting and a police informant. The FBI conducted the surveillance without a warrant, arguing, first, that the target had no expectation of privacy in a hotel room, and, second, that the device was turned on only when the informant was in the room. Judge Alito accepted the FBI's argument, and found no constitutional violation.

“His eagerness to buy the FBI's arguments, particularly in light of the Supreme Court decisions to the contrary, raises serious questions about how he would approach serious constitutional violations to the National Security Agency's program of domestic eavesdropping. Americans across the board are concerned about the violation of the law with respect to what we passed in the Congress overwhelmingly. After all, with the eavesdropping in Lee and the eavesdropping being conducted now, we see some startling similarity. Both are defended on the basis of Executive discretion and self-restraint.

“The fourth amendment is not defined that way. It is defined by judicial restraint itself, not the Executive restraint, and by judicial review.

“We also should never forget, as we think about this issue, the words of an eminent Justice, Justice Brandeis, who said:

Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent....The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

“I believe that is what we need to protect ourselves against. That is what the Framers created the judiciary to do. And that is what I fear the record shows Judge Alito has not been willing to do.

“Now, if his judicial opinions and legal memoranda do not convince you of these things, you can take a look at the speech he gave to the Federalist Society in which, as a sitting judge, he ‘preached the gospel’ of the Reagan Justice Department nearly 15 years after he left it; a speech in which he announced his support of the ‘unitary executive theory’ on the grounds that it ‘best captures the meaning of the Constitution's text and structure.’

“As Beth Nolan, former White House counsel to President Clinton, describes it:

‘Unitary Executive’ is a small phrase with almost limitless import: At the very least, it embodies the concept of Presidential control over all Executive functions, including those that have traditionally been exercised by ‘independent’ agencies and other actors not subject to the President's direct control. Under this meaning, Congress may not, by statute, insulate the Federal Reserve or the Federal Election Commission...from Presidential control.

“Judge Alito believes you can. The phrase is also used to embrace expansive interpretations of the President's substantive powers, and strong limits on the Legislative and Judicial branches. This is the apparent meaning of the phrase in many of this Administration's signing statements.

“Now, most recently, one of those signing statements was used to preserve the President's right to just outright ignore the ban on torture that was passed overwhelmingly by the Congress. We had a long fight on this floor. I believe the vote was somewhere in the 90s, if I recall correctly. Ninety-something said this is the intent of Congress: to ban torture. But the President immediately turned around and did a signing in which he suggested an alternative interpretation. And Judge Alito has indicated his support for that Executive power.

“During the hearings, Judge Alito attempted to convince the committee that the unitary executive theory is not about the scope of Presidential power. But that is just flat wrong. Not only does the theory read Executive power very broadly, but, by necessity, it reads congressional power very narrowly. In other words, as the President gains exclusive power over a matter, the Constitution withholds Congress's authority to regulate in that field. That is not, by any originalist interpretation, what the Founding Fathers intended.

“Let me give you a real-life example, as described again by Beth Nolan:

(W)hen the Reagan Administration undertook the covert arms-for-hostages operation that eventually grew into the Iran-Contra scandal, it triggered the requirement of the National Security Act that the Administration provide Congress ‘timely notification’ of the covert operation. Reading the phrase ‘timely notification’ against the background of the unitary executive theory, the Justice Department stated, ‘The President's authority to act in the field of international relations is plenary, exclusive, and subject to no legal limitations save those derived from the applicable provisions of the Constitution itself.’

“According to Justice, under that interpretation, Congress's role in this matter was limited because its only constitutional powers in the area of foreign affairs were those that directly involved the exercise of legal authority over American citizens. Justice even qualified this statement, saying that by ‘American citizens’ it meant ‘the private citizenry’ and not the President or other executive officials. According to Ms. Nolan:

(I)f such claims are taken seriously, then the President is largely impervious to statutory law in the areas of foreign affairs, national security, and war, and Congress is effectively powerless to act as a constraint against presidential aggrandizement in these areas.

“Does that sound familiar? It ought to sound familiar. The Bush Administration’s legal opinion on torture, the administration’s response to the McCain anti-torture amendment, and the justifications given for the NSA's domestic spying program have all been based, in large part, on this exact same theory of the unitary executive.

“Given Judge Alito's history in the Reagan Justice Department, given his writings on the Third Circuit, given the year 2000 speech to the Federalist Society, a central question is whether you can trust that he, in fact, is going to protect the rights of the Congress and the legislative branch as well as those personal freedoms of individual Americans from those governmental intrusions?

“I believe the record says ‘no.’

“Now, as I mentioned earlier, I know this is flying against some of the sort of political punditry of Washington. I understand that. But this is a fight worth making because it is a fight for a lifetime appointment on the Supreme Court of the United States, with a series of decisions that suggest a view -- however brilliant a legal mind -- he has a brilliant legal mind. I met with him. He is a nice fellow -- we all understand that -- well regarded by some people in the judicial system. He was looked at by the ABA. And they make a judgment based on sort of just legal decisions, not necessarily the ideological impact, the larger implication, all the other conditions that we need to consider as we give advice and consent.

“Perhaps Professor Liu of the Berkeley Law School put it best when he wrote this. He said:

Judge Alito's record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won't turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination; and where police may search what a warrant permits, and then some. This is not the America we know. Nor is it the America we aspire to be.

“So these are the reasons we need to take a hard look at what we are doing, even if it means swimming upstream. There are consequences to this nomination that I do not believe all the American people got out of the hearings because the hearings did not answer questions. And when you pose some of these choices to Americans, they come down on the side that I have described: being protected, not making those kinds of choices about a young kid, making sure that our privacy is protected.

“So for those reasons, and others I will discuss starting on Monday, I oppose Judge Alito's nomination. And I hope that colleagues, others, will join in that effort in the end.

“I yield the floor.”

01/30/2006

Remarks by Senator John Kerry on Alito Nomination


Below are Senator Kerry’s remarks as prepared for delivery on the floor of the Senate today on Judge Samuel Alito’s nomination to serve as a Justice on the United States Supreme Court:

“Mr. President, On countless nominations Democrats have joined Republicans and Republicans have joined Democrats to send a judicial nomination to the floor with a powerful, bipartisan vote. Chief Justice Roberts came to the floor 13-5. Justice Breyer came to the floor unanimously. Justice Ginsburg came to the floor unanimously. Justice Breyer won on the floor 87-9. Justice Ginsburg 97-3, and Chief Justice Roberts 78-22.

“But, in this case, Judge Alito comes to the floor in a straight party line, particularly divided vote. In a divided country, at a time of heightened partisan tensions, at a time of ideology often trumping common sense or broad public interest, the President has chosen to send a Supreme Court nominee who comes directly out of a revolt by the ideological wing of his party in order to satisfy their demand for ideological orthodoxy.

“Some people obviously delight in that. We’ve read about that today in the New York Times. And that is their right. But most don’t. Most don’t think that is the way to pick a Supreme Court Justice. It doesn’t mean it’s good for the country. It doesn’t mean it fills our current needs, and it doesn’t mean it is even the right thing to do.

“As we approach this nominee, we can’t forget that he was not the President’s first choice. His first choice was Harriet Miers, and opposition to her nomination came not from Democrats but from the far right of the Republican Party. They challenged her ideological purity with such conviction that the President capitulated to their demands and gave them Judge Alito instead—a nominee who they received with gleeful excitement.

“Jerry Falwell ‘applaud(ed)’ his appointment. Ed Whelan called it ‘a truly outstanding nomination.’ Rush Limbaugh called the nomination ‘fabulous.’ Ann Coulter and Pat Buchanan raved about how it would upset liberals. This right wing reaction can only mean one thing: they know what kinds of opinions Judge Alito will issue—opinions in line with their extreme ideology.

“All of this is to be contrasted with the standard set out by Justice Potter Stewart. He said ‘the mark of a good judge is a judge whose opinions you can read and . . . have no idea if the judge was a man or a woman, Republican or Democrat, a Christian or Jew . . . You just know that he or she was a good judge.’

“What he is saying is not really limited to the status of religion, gender, or politics, or any other trait by which we categorize people. He is saying that a good judge through all their decisions shows no discernible pattern of identity that pigeonholes that judge except for the purity of their legal reasoning, their genuinely open-minded approach to judging.

“But in Judge Alito we do see patterns—patterns which demonstrate a bias towards the powerful, patterns which demonstrate a lack of skepticism towards government overreaching, and patterns which demonstrate a hostility to the disadvantaged and the poor. This doesn’t mean that Judge Alito never rules in favor of an individual suing the government for an unlawful search or a minority suing a corporation for unlawful discrimination. But it does mean that in the overwhelming majority of cases he has not. And this raises the question of whether he approaches each case with an open mind or whether he comes with a bias that can only be overcome in the rarest of circumstances.

“So why should the debate on Judge Samuel Alito continue now? Well, to begin with, there hasn’t been that much debate on this nomination in the first place—a nomination of extraordinary consequence—in the first place. It came to the floor on Wednesday the 25th, and cloture was filed the very next day on Thursday. To this moment, not more than 25 Democratic Senators have had a chance to speak. At this time, the Senate has spent a total of 25 hours on a nomination that will last a lifetime.

“The direction our country will take for the next thirty years is being set now and this is the time for debate. This is the time when it counts. Not after the Supreme Court has granted the executive the right to use torture, or to eavesdrop without warrants. Not after a woman’s right to privacy has been taken away. Is history going to care what we say after the courthouse door is slammed in the faces of women, minorities, the elderly, the disabled, and the poor? No. Except to wonder why we didn’t do more when we knew what was coming.

“Obviously, I’ve heard some people try to argue that exercising our rights is ‘obstructionist.’ But did people suggest it was obstructionism when the extreme right wing of the Republican part scuttled the nomination of Harriet Miers? How many times have we heard our colleagues come to the floor and demand that judicial nominees get an up or down vote? She never got an up or down vote. She never even got a hearing. Yet, a minority in the Republican Party was able to stop a nominee that they considered unfit for the Supreme Court.

“It is hardly obstructionist to use, as the former chair of the Judiciary Committee Senator Hatch described it, ‘one of the few tools that the minority has to protect itself and those the minority represents.’ That is exactly what we are doing here. That’s why we have the United States Senate and the rules we live by. We are protecting basic rights and freedoms that are important to every American: privacy, equality, and justice.

“It’s important to remember that the rights we are expressing concern about didn’t come easily. Access to the court house, civil rights, privacy rights, voting rights, anti-discrimination laws—all of these were hard fought for. They came with bloodshed and loss of life. Their achievement required courage and determination. None of these basic rights were written into law without a fight, and still today it requires constant vigilance to make sure they are enforced and maintained. That commitment for vigilance is one of the characteristics that should leap out in a Supreme Court nominee.

“We should remember that even though the 13th, 14th, and 15th Amendments outlawed slavery, provided for equal protection under the law, guaranteed citizenship, and protected the right to vote for African American Americans, the fact is the federal government took very little action to enforce them until the 1960’s. Few politicians were willing to take a stand—to fight for the rights of African Americans. Something besides grass roots pressure was ultimately needed to prompt the Congress into action. That something was the unanimous Supreme Court decision in Brown v. Board of Education.

“Imagine if the Court had not enforced the equality guaranteed by the 14th Amendment. Imagine if it still had the ideological outlook it had when Plessy as decided. Or when Dredd Scott was decided. Two of the most ideologically driven—and regrettable—decisions ever. Segregation would still be a fact of life. African American children would be forced to attend their own schools, would be receiving an inferior and inadequate education. And, there would have been no catalyst to start the civil rights movement.

“So a vote for a Supreme Court nominee is in fact a vote for those rights and freedoms we care about and fight for. That is exactly what this vote is.

“There is no question in anyone’s mind that Samuel Alito will have a profound impact on the Supreme Court. This is a pivotal moment in history for the Court. You only need to look at his past opinions to know that much.

“Let me share with you the story of David D. Chittister. On February 14, 1997, David requested sick leave from the Pennsylvania Department of Community and Economic Development, where he worked. He was granted leave, but approximately ten weeks later, his leave was revoked, and he was fired. David knew that the Family Medical Leave Act guaranteed him twelve weeks of sick leave. So, he sued the Pennsylvania Department of Community and Economic Development for firing him during that time.

“Put yourself in David’s shoes. Imagine that you become sick. You become so sick that you are hospitalized, completely unable to work. The only reason that you can afford your treatment is because you are still employed. And above all you believe that you are protected by the Family Medical Leave Act.

“Now imagine that Judge Alito is on the Supreme Court. He is one of the nine voices that gets to decide whether the Family Medical Leave Act is constitutional. And he votes the way he did on the Third Circuit, invalidating that part of the Family Medical Leave Act which guarantees an individual twelve weeks of sick leave and applies to you. You are out of luck as you face mounting medical bills without any source of income.

“This is not hypothetical. That is the decision he made. Health care is a very real problem for many more Americans than ever. Many of us have been pushing for a national approach to health care for years. Our citizens can’t get the sick leave they need to take care of themselves. They cannot get adequate health insurance—coverage isn’t what it should be. The Family Medical Leave Act was a step in the right direction to deal with family values and health needs. It made sure that people could take the time they needed when they became seriously ill without losing their income. It was enacted with overwhelming bi-partisan support in a 71-27 vote. But if Judge Alito were on the Supreme Court and he follows his own precedent, it would no longer protect state employees.

“So I ask my colleagues who voted for the Family Medical Leave Act: didn’t we do exactly want we meant to do? Didn’t we need to protect all workers? So is it right, now, to put a person on the Supreme Court who will undo the good that we did with that legislation?

“Take another example. Many of us have talked on the floor about how Judge Alito routinely defers to excessive government power. And how he is willing to overlook clear Fourth Amendment violations in the process. This may seem abstract to a lot of people right now, but listen to the facts of this case.

“A family of farmers, the Mellotts, fell on hard times. They had to declare bankruptcy and were ordered to leave their farm—like a lot of farmers these days. They asked for permission to appeal and were denied. They asked that the judge be disqualified and were denied. They didn’t accept the eviction order and refused to leave their farm. So the marshals were sent to evict them.

“When Bonnie Mellott answered the front door, a deputy marshal entered, pointed his gun ‘right in her face,’ pushed her into a chair, and kept his gun aimed at her for the remainder of the eviction. Another deputy entered, ‘pumped a round into the barrel’ of his sawed-off shotgun, pointed it at Wilkie Mellott, and told him ‘to sit still, not move and to keep his mouth shut.’ When he did this, the marshals knew Wilkie Mellott was recovering from heart surgery.

“But that wasn’t all. Another marshal ran into the kitchen where a guest was on the telephone with a local sheriff. He ‘pumped’ his semi-automatic gun, stuck it right in (her) face and ... said: ‘Who are you talking to, hang up the phone.’ When she continued talking, the marshal put his gun ‘to the back of her head’ and repeated the order.

“I won’t go into further details, but you get the picture. Now obviously the Mellotts were in the wrong to stay in their farm. They were ordered by the court to leave, and they should have. We all understand that.

“But there is no fact in evidence suggesting that once the marshals got in the house there was resistance—no facts suggesting there was need for force or intimidation. Nothing justified running into a house, waiving sawed-off shotguns and screaming at the occupants. These folks weren’t criminals. They weren’t armed. They weren’t resisting arrest. You know what, it’s tough enough to get kicked off your property, it is another thing to be treated like a felon, absent cause, with pumped shotguns shoved in your face. Most reasonable people would conclude that the government’s actions were excessive. But Judge Alito did not, and he wrote the majority opinion for two of the three judges hearing the case calling the law enforcement conduct reasonable. The dissenting judge disagreed. He said that once the marshals arrived and realized that the Mellotts were neither armed nor dangerous, the use of force was ‘clearly not objectively reasonable.’

“Where do you come out on this? Which view do you want on our Supreme Court?

“Let me also share with another story—this one about Beryl Bray. Beryl was an African-American female who worked her way up from a room attendant to a Housekeeping manager for Marriott Hotels in less than three years. When the position of Director of Services opened up, Beryl applied. A Caucasian woman got the job, and Beryl sued claiming discrimination.

“Now, as a Housekeeping manager, Beryl probably did not make a lot of money. She probably used a lot of her resources to bring her discrimination claim. She wanted her day in court. If Judge Alito had his way, she wouldn’t have gotten it. Critical facts were in dispute. Facts which, if resolved as Beryl claimed they should be, would establish a clear case of discrimination. As the lawyers here know, the factual disputes should have been resolved by a jury of her peers. Beryl was entitled to her day in court. Judge Alito, however, did not agree. He would have resolved the facts on his own in favor of Marriott hotels. He would have ended the case then and there.

“Or let’s talk about Harold Glass. Mr. Glass worked at Philadelphia Electric Company, o PECO as it is known, for 23 years before he retired. While working full-time, Harold attended school to improve his career opportunities. Over the years, he earned two Associate Degrees, a Bachelor of Science in Degree in Industrial and Management Engineering and a Bachelor of Science Degree in Engineering.

“In addition to his full-time work and continuing education, Harold was a long-time activist on behalf of PECO employees. In 1968, he helped organize the Black Grievance Committee to respond to problems of racial fairness, including inadequate representation of minorities by PECO’s uncertified labor organization. He served as an officer. He represented employees in handling routine individual grievances before management and negotiated with management about employee concerns. In addition, he took the lead in organizing witnesses in three legal actions against PECO concerning racially discriminatory employment practices.

“Over the years, Harold applied for promotions to new positions, but each time he was rejected. In addition, he was not able to apply for positions he would have liked to have because they were never posted by the company. This despite the fact that, in 23 years of employment with PECO, Harold received only one performance evaluation which was less than fully satisfactory—when he was serving as a junior technical assistant. Harold claimed that racial harassment at that time from his co-workers and a hostile work environment had affected his job. But the trial judge did not allow him to demonstrate these facts.

“On appeal, a divided three-judge panel reversed the trial judge’s decision. Two of Judge Alito’s colleagues believed that Mr. Glass should have been allowed to present the evidence of racial discrimination to the jury. Judge Alito, however, disagreed. He thought that allowing Mr. Glass to tell his side of the story might cause ‘substantial unfair prejudice.’ He called the trial judge’s refusal to allow Mr. Glass’s evidence ‘harmless.’

“Harmless! Was it harmless to Mr. Glass? What do you think? Do you think its harmless error to keep a discrimination plaintiff from showing evidence of discrimination? I think most reasonable people would disagree with Judge Alito.

“I believe that’s the problem here: Judge Alito has demonstrated a pattern of looking at discrimination claims with a high degree of skepticism. In the dozens of employment discrimination cases involving race that Judge Alito has participated in, he ruled in favor of African Americans on the merits in only two instances. He has never authored a majority opinion favoring African Americans in such cases. He has dissented from rulings in of his colleagues in favor of African-American plaintiffs, and in doing so has required an unrealistic amount of evidence before he is willing to step in on behalf of wronged individuals. He is not willing to give them the benefit of the doubt—even to just let a jury decide their case.

“This is an unacceptable view of the way our country works. Americans know that what sets us apart from almost any other country is the right of any citizen no matter where they come from, what their lot in life is to have their day in court. That is what makes American special. This little guy can hold the big corporations accountable.

“Our nation is defined by the great struggle of individuals to earn and protect their rights—particularly the disadvantaged. We have worked hard to ensure that no one is denied their civil rights. Judge Alito’s track record casts serious doubt on his commitment to that struggle. The legislation we pass protecting individuals against discrimination requires the courts to fully enforce it. And we just don’t keep faith with ourselves if we empower individuals to sue large corporations who act unlawfully and then have the courts refuse to hold them accountable.

“Judge Alito’s hostility to civil rights claims is not my observation alone. It is an observation shared by many people who have reviewed his record. Let’s not forget that after reviewing more than 400 of Judge Alito’s opinions, law professors at Yale Law School—Judge Alito’s alma matter—concluded that

‘In the area of civil rights law, Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age and disability claimants. . . Judge Alito seems relatively willing to defer to the claims of employers and the government, over those advancing civil rights claims.’

“That’s the opinion of those who have studied his record. Similarly, Knight-Ridder concluded that Judge Alito ‘has worked quietly but resolutely to weave a conservative legal agenda into the fabric of the nation’s laws’ and that he ‘seldom-sided with . . . an employee alleging discrimination or consumers suing big business.’

“Judge Alito may believe that it is his duty to keep these types of cases away from the jury. He may, and in fact probably does, believe that he is doing the right thing. That is his right. But, it is my right to judge the facts of these cases and disagree. It is my right to say that the record of his reaction to the same facts should not be elevated to the Supreme Court.

“Mr. President, a fair amount has been said about Judge Alito’s endorsement of the unitary executive theory. This is a complicated and somewhat abstract theory of Constitutional interpretation, but if it is ever endorsed by a majority of the Court, it will have a significant practical impact on our every day lives.

“What it says is that the President alone is responsible for enforcing the laws. At its most simplistic, it seems somewhat reasonable: Congress makes the laws, the President enforces the laws, and the judiciary interprets the laws. The theory, in fact, dates back to the administration of Franklin Roosevelt, and it has been championed by liberal and conservative scholars and administrations as a way of asserting the President’s ability to retain control over independent agencies. But, use of the theory in recent times has been changing.

“During Judge Alito’s tenure, the Reagan Administration developed new uses for the theory. It was used to support claims of limitless presidential power in the area of foreign affairs—including the actions that became the Iran-Contra affair. And, this view of presidential power has been carried on by the current Bush Administration, claiming in Presidential signing statements, that the President can ignore anti-torture legislation overwhelmingly passed here in Congress. Not only is the substance of that message incredible, but the idea that the President can somehow alter Congressional intent—the meaning of legislation agreed upon by 100 Senators—with a single flick of a pen is absolutely ludicrous. It turns the meaning of legislative intent on its head.

“In the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch, but rather, addressed the question of who controls the executive branch. Don’t be fooled by that explanation. The unitary executive theory has everything to do with the scope of executive power.

“In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that ‘(t)he practical consequence of this theory is dramatic.’ Its just common sense that if the unitary executive theory means that the President can ignore laws that Congress passes, it necessarily expands the scope of Presidential power—and reduces the scope of Congress’s.

“Judge Alito had numerous opportunities in the hearings to define the limits of the unitary executive, but he refused to answer my colleagues’ questions. He didn’t answer when Senator Leahy asked him whether it would be constitutional for the Congress to prohibit Americans from using torture. He didn’t answer when Senator Durbin asked whether he shared Justice Thomas’s view that a wartime President has inherent powers—beyond those explicitly given to Congress. He didn’t answer when Senator Feingold asked what, if any, limits there are on the President’s power.

“We all understand that under Article II, the President has primary responsibility for the conduct of foreign affairs. But, the idea that the President can simply disregard existing law or redefine statutory limits at will in the areas of foreign affairs, national security, and war is a startling one. And it is one that I cannot accept.

“We needed to know what limits Judge Alito would place on the executive branch. We needed him to go beyond simple recitations of Supreme Court case law. We needed to know what he actually thought.

“Sadly, however, Judge Alito did not give us those answers. In fact, he failed to give us answers on many questions of critical importance. He refused to answer questions from Senator Leahy, Senator Kennedy, Senator Feingold, and Senator Biden on the question of the power of the presidency. He refused to answer questions from Senator Schumer, Senator Durbin, and Senator Feinstein on whether Roe v. Wade was settled law—an answer that even Chief Justice Roberts was willing to give. He refused to answer Senator Leahy’s questions on court stripping; Senator Leahy’s and Senator Feinstein’s questions on Congressional power and the Commerce Clause; Senator Feingold’s questions on affirmative action and criminal law; Senator Schumer’s questions on immigration.

“These are all questions about issues that routinely come before the Court. Judge Alito had an obligation to answer them. He had an obligation to explain and clarify the positions he took in his speeches, judicial opinions, and Justice Department memoranda. But he did not.

“Why are we supposed to think that is ok? Since when is it acceptable to secure a lifetime appointment to the Supreme Court by hiding behind a smokescreen of non-answers?

“I understand that, for many, voting for cloture on a judicial nomination is a very difficult decision, particularly on this Supreme Court nominee. I also understand that, for some of you, a nomination must be an ‘extraordinary circumstance’ in order to justify that vote. I believe this nomination is an extraordinary circumstance. What could possibly be more important than this?

“This is a lifetime appointment to a Court where nine individuals determine what our Constitution protects and what our laws mean. Once Judge Alito is confirmed, we can never take back this vote. Not after he prevents many Americans from having their discrimination cases heard by a jury. Not after he allows more government intrusions into our private lives. Not after he grants the President the power to ignore federal law under the guise of protecting our national security. Not after he shifts the ideological balance of the Court far to the right.

“As I have said before, Judge Alito’s nomination was a direct result of the right wing’s vehement attacks on Harriet Miers, an accomplished lawyer whose only failing was the absence of an ideologically bent record. The right wing didn’t wait for the next nominee. The right wing didn’t leave any of the tools in their arsenal unused. The right wing attacked with every option available to them to prevent Harriet Mier’s confirmation, secure in their conviction that it was the right thing for them to do.

“We believe no less. And we should do no less. We did allowed the confirmation of three of the most dangerous appellate court nominees. There was no talk of prolonged debate Chief Justice Roberts. Now we are presented with a nominee whose record raises serious doubt about serious questions that will have a profound impact on every day lives of Americans. What on earth are we waiting for?

“Many on my side oppose this nomination. They say they understand the threat he poses, but they argue that cloture is different. I don’t believe it is. It is the only way that those of us in the Minority have a voice in this debate. It is the only way we can fully complete our constitutional duty of advice and consent. It is the only way we can stop a confirmation that we feel certain will cause irreversible damage