anuary 26, 2006
Mr.
2218 Throop Avenue
Bronx, New York 10469
Dear Mr.Dem
Because you have shared with me your concerns regarding the nomination of Judge Samuel A. Alito, Jr. to be Associate Justice of the United States Supreme Court, I am sending to you in its entirety my statement announcing my decision to vote against his confirmation. I hope that you will read the statement with the same care and thoughtfulness that I gave to this decision. My statement follows.
* * * * * * * * *
The nomination of Judge Samuel A. Alito, Jr. to the Supreme Court of the United States is a matter of great importance to all of us, our children, and future generations of Americans. This nomination comes to us at a time when many of our cherished constitutional rights and freedoms are imperiled.
The Constitution commands that the United States Senate provide the President with meaningful advice and consent on judicial nominations. I take this constitutional charge seriously. I have carefully reviewed the Committee's hearings and Judge Alito's extensive record and have concluded that I cannot give my consent to his nomination to the Supreme Court.
EXPANDING THE CIRCLE OF LIBERTY
The key to our history has been to expand the circle of freedom and opportunity. That has been the common thread through all the periods of progress in America: greater rights and responsibilities of citizenship and equality. And each time that we have made strides, there have been voices of opposition. There have been those who have wanted to go back. And at those moments of profound importance to America, the Courts have been the guardians of our liberties and stood on the side of greater freedom and opportunity. Consider cases like:
* Brown v. Board of Education, which struck down the notion of "separate but equal."
* Baker v. Carr, which invalidated discriminatory state apportionment schemes and paved the way for the concept of "one man, one vote."
* Griswold v. Connecticut, which recognized a right to privacy in the Constitution.
* Roe v. Wade, which established that women have a right to choose.
We need a judge who will take us forward, not back - keeping with our history of progress. Despite his distinguished credentials, Judge Alito has not shown himself to be that judge. In his career, he has not shown any dedication to civil rights, women's rights and the right to privacy that we need in the next Supreme Court Justice. Time and again, when given the opportunity, 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 we have made in the past 230 years - without the expansion of that circle - I certainly would not be standing before you on the floor of the United States Senate. There would be no opportunity for women in public life. But mine is not 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 the right to privacy. Our nation would not be what it is today. Our greatest strength has always been our commitment to enlarging the circle of rights and equality. That great American commitment has made us a beacon around the world.
This nomination could well be the tipping point against constitutionally-based freedoms and protections we cherish 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.
* Roe v. Wade is at risk.
* The privacy of Americans is at risk as wholesale wiretaps on Americans could be authorized.
* Environmental safeguards, laws that protect workers from abuse or negligence, laws that keep automatic weapons of the streets: all are imperiled.
When I ran for the Senate, I told my constituents that I would only vote for judges who would affirm constitutional precedents like Roe, Brown and other landmark achievements in expanding rights and the reach of equality for all Americans. This is about more than rhetoric. This is very real to me and my constituents. 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 Judge Alito's nomination through the prism of the seat he will fill. Justice Sandra Day O'Connor has shown throughout her career of distinguished service to the Court that one Justice can protect our constitutional rights. Justice O'Connor, while conservative, was a mainstream jurist. She appreciated the advancements we have made as a society and fought to ensure that they would continue on. While I have not always agreed with her rulings, she understood that her vote was often the deciding vote on which key civil liberties and rights rested and exercised it with care.
Judge Alito has not demonstrated a similar commitment to these values. On the contrary, Judge Alito proudly announced his personal opposition to a woman's right to choose early in his career in his now infamous 1985 job application for a position in the Reagan Administration. Although he has tried to distance himself from the comments in that document, his time on the bench shows an unapologetic effort to undermine a woman's right to choose. I believe that abortion should be rare and understand that it is a decision of conscience, but I also believe it should be a constitutionally protected decision between a woman and her doctor. Judge Alito does not share this view, and we can be certain that free from the constraints of Supreme Court precedent, he will intensify his campaign to roll back these and other 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. Their reaction has been enthusiastic, effusive, and ecstatic this time around. Why? Because they know what they are getting.
Judge Alito's constrained view has not been limited to issues of privacy. While on the Third Circuit, Judge Alito 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, Judge Alito has called for curtailing the reach of Title VII of the Civil Rights Act of 1964, the landmark statute prohibiting discrimination against women and minorities in the workplace.
CHECKS AND BALANCES
I also fear the he will not respect the system of checks and balances our Founding Fathers so carefully set out in the Constitution.
No one who has read the Federalist papers or who read the debate that our Founding Fathers had when constructing the Constitution could underestimate the importance that they placed on having three truly independent and equal branches of government. Checks and balances have long protected us against abuses of power. Again, considering Judge Alito's record, I do not believe he understands or respects this central principle.
Judge Alito has sought to expand the power and purview of the Executive Branch while simultaneously stripping Congress of its authority, undermining our system of checks and balances and curtailing the rights enjoyed by private citizens. For example, while working for the Reagan Administration, Judge Alito made the argument that Cabinet officials who are charged with authorizing illegal wiretaps of Americans in this country should be entitled to absolute immunity.
At a time when the President and his 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. Judge Alito's excessive deference to presidential authority coupled with his restrictive view of congressional authority tell me that he does not have the proper the reverence for the separation of powers.
THE POWER OF CONGRESS TO PROTECT
And, even worse, while expanding the reach of Presidential power, Judge Alito also holds a harshly limited view of what the government can 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.
Judge Alito has long advocated a view of limited Congressional authority, which if adhered to, 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.
Since his ascension to the Third Circuit, Judge Alito has aggressively sought to promote this theory of limited Congressional power. For example, in 1996 Judge Alito 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 ability to make a state agency comply with the Family and Medical Leave Act. Just three years later, the Supreme Court, with a similar set of facts, reached precisely the opposite conclusion.
Likewise, in several criminal cases, Judge Alito has shown blatant disregard for a defendant's fundamental right to be tried by an impartial jury, chosen free of racial or gender prejudice and that has been properly instructed on matters of law. He has also narrowly construed other constitutional criminal procedure protections, arguing often in favor of granting law enforcement officials great latitude to conduct unauthorized searches and seizures.
Frequently, Judge Alito has also narrowly interpreted our asylum law, voting to reject the claims of foreign persecution by prospective immigrants.
Judge Alito's opinions on these and other topics remind us that judicial activism can come in many forms. Adopting an unnecessarily narrow view of the Constitution or our laws to reach a desired outcome is a form of judicial activism that is no less offensive than subscribing to an overboard interpretation of the law in order to reach a specific result.
CONCLUSION
Judge Alito may hold a seat on the Supreme Court for a generation, long after President Bush has left office. Perhaps through eight to ten presidential elections, decades of progress would fall prey to his radically conservative 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 made irrelevant and the President is permitted to make up the rules as he goes. Judge Alito's vision of America cannot be what our Founding Fathers intended for us. He would take us backward when it has never been more important to move forward.
I sincerely hope that my concerns about Judge Alito are unfounded, but I suspect they are not, and our children will pay the price. He has not demonstrated a proper respect for the rule of law, our Constitution, and the principles Americans hold most dear. I therefore cannot give my consent to his confirmation.
* * * * * * * * * *
Thank you for writing. For updates on this and other important issues being discussed before the United States Senate, please check my website at
http://clinton.senate.gov.Sincerely yours,
Hillary Rodham Clinton
edit to remove my name
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