Samuel Alito Supreme Court nomination
On October 31, 2005, President George W. Bush nominated Samuel Alito for Associate Justice of the Supreme Court of the United States to replace retiring Justice Sandra Day O'Connor. Alito's nomination was confirmed by a 58–42 vote of the United States Senate on January 31, 2006.
Alito was a judge on the United States Court of Appeals for the Third Circuit at the time of his nomination to the Court. He had been appointed to that position by the president's father, President George H. W. Bush in 1990. Leonard Leo played a crucial role in successfully shepherding Alito's appointment through the Senate.
White House announcement
On October 31, 2005, President George W. Bush nominated Samuel Alito, a federal appeals court judge with a conservative record, to succeed retiring Justice Sandra Day O'Connor on the United States Supreme Court. The announcement came four days after the president's initial choice, Harriet Miers, withdrew herself from the confirmation process. Before Bush chose Miers, Alito's name was among those frequently mentioned a possible candidate for the seat.In announcing Alito's nomination, Bush stated, "He's scholarly, fair-minded and principled and these qualities will serve him well on the highest court in the land. reveals a thoughtful judge who considers the legal merits carefully and applies the law in a principled fashion. He has a deep understanding of the proper role of judges in our society. He understands judges are to interpret the laws, not to impose their preferences or priorities on the people." Alito, in accepting the nomination, said, "Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint, always keeping in mind the limited role that the courts play in our constitutional system. And I pledge that if confirmed I will do everything within my power to fulfill that responsibility."
Reaction to the nomination
The American Civil Liberties Union formally opposed Alito's nomination. The ACLU has only taken this step three other times in its entire history, the last time having been with the rejected nomination of Robert Bork. In releasing their report on Alito, ACLU executive director Anthony Romero justified the decision by saying that "At a time when our president has claimed unprecedented authority to spy on Americans and jail terrorism suspects indefinitely, America needs a Supreme Court justice who will uphold our precious civil liberties. Unfortunately, Judge Alito's record shows a willingness to support government actions that abridge individual freedoms."Democratic senator Barack Obama said, "Though I will reserve judgment on how I will vote on Judge Alito's nomination until after the hearings, I am concerned that President Bush has wasted an opportunity to appoint a consensus nominee in the mold of Sandra Day O'Connor and has instead made a selection to appease the far right-wing of the Republican Party." Another Democratic senator, John Kerry, stated: "Every American should be deeply concerned that the far right wing which prevented Harriet Miers from even receiving a Senate hearing is celebrating Judge Alito's nomination and urging the Senate to rubber-stamp the swing vote on our rights and liberties. Has the right wing now forced a weakened President to nominate a divisive justice in the mold of Antonin Scalia?"
Senator Lincoln Chafee stated on January 30, 2006, "I am a pro-choice, pro-environment, pro-Bill of Rights Republican, and I will be voting against this nomination."
NARAL Pro-Choice America announced its opposition to Alito's nomination by saying "In choosing Alito, President Bush gave in to the demands of his far-right base and is attempting to replace the moderate O'Connor with someone who would move the court in a direction that threatens fundamental freedoms, including a woman's right to choose as guaranteed by Roe v. Wade."
The National Association of Women Lawyers "determined that Judge Alito is not qualified to serve on the Court from the perspective of laws and decisions regarding women's rights or that have a special impact on women."
Confirmation hearing
On November 3, 2005, Senator Arlen Specter, chairman of the Senate Judiciary Committee outlined the prospective time line for the Alito hearing and voting, scheduling the committee's opening statements for January 9, 2006, with the hearings expected to last five days. A committee vote was to be held on January 17, and the vote of the full Senate on the nomination was to be held January 20, which would have been nearly a month later than desired by President Bush, who had pushed for a confirmation vote to be held by Christmas.On January 9, Judiciary Committee members presented opening statements, and questioning by members began on January 10; questioning continued until January 12, after which witness statements continued until January 13. On January 16, Senator Specter's office announced that the committee vote would take place one week later than originally planned, on January 24, with the full Senate to take up debate on the nomination the following day.
Day 2 (January 10)
Committee Chairman Specter addressed the unitary executive theory. He asked Alito about his understanding of the Truman Steel Seizure case, Youngstown Sheet & Tube Co. v. Sawyer, and about the Court's theory of "super precedent," recently articulated by Chief Justice John Roberts. In a humorous motion Specter said super-duper precedent as regards the Casey case.Alito was questioned about his membership in the Concerned Alumni of Princeton, described in some media reports as a racist, sexist organization that sought to restrict the admission of women and minorities to the private institution. When questioned by Senator Patrick Leahy about his involvement, Alito claimed to have no memory of being a member of the group. However, in his 1985 'Personal Qualifications Statement' when applying to be an Assistant Attorney General, he listed his membership in CAP as a qualification. Leahy stated "I can't believe at age 35 when applying for a job" that he couldn't know. It was subsequently pointed out by several senators that several alumni of Princeton, Senate Majority Leader Bill Frist and former Senator Bill Bradley had publicly deplored the group's activity. Senator Orrin Hatch pointed out that Alito was not an officer of CAP, and also asked Alito "Are you against the admission of women or minorities?" Alito replied "Absolutely not, Senator. No".
Alito did not immediately recuse himself from a case involving the low-cost mutual-fund company Vanguard. Senator Hatch addressed this issue, citing the American Bar Association's Standing Committee on Federal Judiciary as saying, "Judge Alito... is of the highest ethical standing." Alito then was allowed to explain the facts of the Vanguard case. Alito asserted that he abided by Section 455 of Title 28. Senator Ted Kennedy reminded Alito that he had testified that he would recuse himself during his 3rd Circuit Court confirmation. Alito said that it was a pro se case. He stated that the court handles pro se cases differently from cases argued by lawyers. He said that the recusal forms are different. The Vanguard case, he said, did not come to him with "clearance sheets," just the sides briefs. "When this case came to me, I didn't focus on recusal," he said. On appeal, a recusal motion came to him and he then stated that he had "gone to the Code" and did not feel he needed to recuse. He stated that he decided to recuse himself and requested that his decision on the case be vacated. He said that his procedure for pro se cases now uses red sheets for recusals, to avoid missing them.
Seeking to allay liberals' fears of creeping federalism that could hamstring Congress as in United States v. Lopez, Senator Jeff Sessions asked Alito about the required interstate nexus before a federal statute can be applied. Alito explained that in his experience as United States Attorney, federal gun crime statutes can satisfy the required jurisdictional element by saying that the gun must have been transported in interstate commerce. Senator Sessions tried to do damage control over the controversial Garrett v. Alabama case that the conservative 5–4 majority used to grant more states' rights via their federalism jurisprudence holding that Congress may not grant a state citizen the right to sue his or her own state for money damages. Senator Sessions asked about Alito's views on the reading of foreign legal precedents, allowing Alito to express his support for Antonin Scalia's well-known opposition to the consideration of foreign law in crafting opinions by U.S. judges. Alito said "I don't think that foreign law is helpful in interpreting the Constitution... There are other legal issues that come up in which I think it's legitimate to look to foreign law."
Sessions then allowed Alito to give his opinion on the case involving the strip search of a ten-year-old girl that opponents had highlighted as showing what they viewed as Alito's extreme deference to authority.
Senator Sessions also highlighted Alito's ruling in favor of abortion rights in at least one case.
Senator Lindsey Graham asked Alito questions about enemy combatants, and the Hamdi v. Rumsfeld and Rumsfeld v. Padilla cases. Graham asked whether there have ever been any cases in which a foreign non-citizen soldier/fighter brought suit in a U.S. court. Alito was asked whether any enemy prisoner of war ever brought a federal habeas corpus case. There were two cases, the Six Saboteurs, Ex parte Quirin where even U.S. citizens are not entitled to federal courts but allowed only military tribunals. Then the second case involving six Germans caught assisting Japanese who were sent to Germany; they brought an unsuccessful habeas corpus case. They were held "not U.S. territory". Graham said, "We don't let people trying to kill us sue us." Alito said that " wouldn't put it" so strongly. Alito said that we also need to take note of Ex Parte Milligan from the Civil War. Senator Graham disagreed. Alito agreed with Senator Graham that the military has expertise on who is and who is not a prisoner of war. However, the treatment of detainees, according to Graham, is a different matter. Senator Graham asked whether Alito is proud of the fact that the USA is a signatory to the Geneva Convention. Graham asked whether if someone were caught whether here or abroad a la Hamdan the Geneva Convention would give the prisoner a private right of action. Senator Graham pointed out that where he differed from some others is on the question of torture. Graham asked whether any President can disregard the federal statute against torture—making it a crime—even in war. Alito said "No person in this country is above the law. And that includes the President and it includes the Supreme Court."
On the question of what a Strict constructionist is, Alito again agreed with Senator Graham, stating it was a judge who did not make it up. Senator Graham asked whether a President who interprets the Congressional authorization for the Use of Force as giving him the right to wire-tap without getting a FISA warrant is... Senator Graham said that his point a la Justice Jackson was not aimed at Alito but "at the audience". Senator Graham is worried about the "chilling effect" of a President who goes too far, leaving Congress gun-shy about granting the executive branch the "Use of Force". Graham hinted at the 60-vote requirement for breaking a so-called filibuster. Alito did not take the bait over whether any statute or rule could be made to overrule the simple majority that the Constitution requires for confirming a Supreme Court Justice.
Senator Charles Schumer asked Alito whether statements in his 1985 'Personal Qualifications Statement' when applying to be an Assistant Attorney General under Pres. Ronald Reagan represented his views at the time and also whether they represent his views today. Alito gave an answer about stare decisis and the process he would use to consider how he would decide issues that might come before him. Senator Schumer responded, stating that Alito had stated forthrightly that "the Constitution does not protect a right to an abortion". Schumer said that "it's important that you give an answer." Alito replied that if a case involving abortion rights came up, he would use a judicial process. Schumer rejoined... "I'm not asking about a process;.... Do you still believe it?" Schumer remarked "I'm not asking you about case law". Schumer then asked whether the "Constitution protects the right of free speech" whereupon Alito agreed. Schumer then compared that question with the question of whether the Constitution protects the right to an abortion. Senator Schumer then made an elliptical comment about hypothetical in-laws. Schumer said that he didn't expect Alito to answer the abortion question. Schumer mentioned the National League of Cities v. Usery case and how it was overruled by Garcia v. San Antonio Metropolitan Transit Authority and how Lawrence v. Texas overruled Bowers v. Hardwick and Brown v. Board of Education overruled Plessy v. Ferguson. So Alito agreed that stare decisis is not inviolate. Senator Schumer made allusions to Justice Clarence Thomas's views on stare decisis, which he claimed included a call for Buckley v. Valeo, Calder v. Bull and a long string of cases establishing Supreme Court precedent to be overturned.
Senator John Cornyn characterized Senator Schumer's questioning as of the "When did you stop beating your wife?" style and remarked that if Schumer can mention in-laws, he can mention a wife. Cornyn said that the word "abortion" is not in the Constitution; Alito said, "The word that appears in the Constitution is liberty." He further claimed that "There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment, plus in certain circumstances by the First Amendment, and in certain circumstances by the Fifth and the Fourteenth amendments."