TRANSCRIPT: SENATOR BIDEN'S STATEMENT ON THE VOTE TO NOMINATE JUDGE SAMUEL ALITO TO THE SUPREME COURT

01/24/2006

U.S. Senate Judiciary Committee Hearing To Vote On The Nomination Of Judge Samuel Alito To The U.S. Supreme Court

BIDEN: Thank you, Mr. Chairman. And thank you for conducting a good hearing.

In Senator Hatch's absence, I want to thank him for once again explaining why we're voting no; those of us who are voting no.

I plan to vote no on the nomination of Judge Alito to the Supreme Court, and I do so for three reasons: first, his expansive view of executive power; secondly, his narrow view of the role of the Congress; and third, his grudging reading of anti-discrimination law reflecting, in my view, a lack of understanding of congressional intent and the nature of discrimination in the 21st century.

First, Judge Alito's expansive view of presidential power: In 1984, Judge Alito wrote that he did not, and I quote, "question the authority that the attorney general should have absolute immunity," end of quote, in cases involving wiretaps.

In 1986, he drafted a proposal to make full use of presidential signing statements in order, and I quote, "to increase the power of the executive to shape the law," end of quote.

In November of 2000, he said that, quote, "Unitary executive theory best captures the meaning of the constitutional text and structure."

At his hearing, Judge Alito did not, in my view, answer our questions directly on these points and, in doing so, confirmed my view that he should not be confirmed.

For instance, Justice Thomas in the Hamdi dissent lays out views of unchecked unitary executive to wage war and exercise foreign policy.

Although Judge Alito says his interpretation of the unitary executive was much narrower and that he couldn't recall Justice Thomas using that term, I find his explanation not at all convincing.

Most use the term "unitary executive" in the manner in which John Yoo, the legal architect of the administration's views, conceives executive power, as well as the Professor Calabrese, who was quoted by Senator Kennedy.

I asked Judge Alito whether he agreed with Professor Yoo's reasoning that would allow, even in the absence of an emergency or imminent threat, the president under his plenary power to invade another country, to invade Iran tomorrow, no matter what Congress says.

Judge Alito declined to answer such a basic, fundamental question.

Second, Judge Alito has a very narrow view of congressional power.

I'm convinced that Judge Alito will join with the present members of the court who have struck down three dozen federal laws, more than six times the rate of activism over the history of our republic, laws which said you can't have guns within a hundred to a thousand feet of an elementary school, laws battling violence against women, laws requiring the clean-up of low-level nuclear waste and laws designed to ensure freedom of religion.

On the bench, Judge Alito has fully embraced, in my view, even aggressively sought to increase this new activism. When Chairman Specter asked Judge Alito whether he would, quote, "overturn congressional acts, because Congress's method of reasoning," end of quote, Judge Alito gave the following, I think, very interesting answer, not followed up on: Quote, "I think that Congress' ability to reason is fully equal to that of the judiciary."

I watch the folks in the audience nod their head like that's a very good answer. That's a very bad answer. That means that he believes that the rational basis test upon which Congress makes its judgment can be overruled by the court.

Congress's reasoning is why we did what we did, after all -- because we are able to have hearings. We can call witnesses. We can build a record, all things the court cannot do. Judge Alito's answer seems to question this bedrock principle.

And, third, Judge Alito lacks the understanding, in my view, as to how prejudice plays out in the real world and has a very restrictive view of the anti-discrimination legislation that Congress has passed over the last 30 years.

Last week, I was thinking, as I was preparing to speak before a Martin Luther King event, like many of us, probably all of us here did in our home states, about Dr. King.

And I reread -- I reread -- his letter from the Birmingham jail, in which he laid out the following standard: He said, and I quote, "When you are harried by day and haunted by night by the fact you are Negro, living constantly at tip-toe stance, never quite knowing what to expect next, and you are plagued with inner fears and outer resentments, when you are forever fighting the degenerating sense of nobody-ness, then you will understand why we find it difficult to wait."

We shouldn't wait. We should own up to the fact that prejudice is still around and has moved. It's not quite the prejudice of the '60s when you would say, well, we don't want any blacks here, or more descriptive terms.

Now it's more subtle. They say, we are not sure you'd fit in. New words, for old sins.

All public officials including judges in my view must understand prejudice still lurks in the shadows. And my examination of Justice Alito's record demonstrates to me that he does not look into the shadows.

He disagreed with all 10 of his colleagues who would have overturned the jury in Barbara Sheridan's case, stating that an employer may not wish to disclose his real reasons for making personnel decisions.

In another solo dissent, he would have deferred to a corporation's, quote, "subjective business judgment." An approach his other colleagues said would, quote, "eviscerate the anti-discrimination law."

Judge Alito told me, and I quote, "I can't know everything about the real world." So in the Family and Medical Leave Act case, he discounted any gender-related connection, despite the fact that one in four people taking sick leave were pregnant and one of the reasons we wrote the law, one of the reasons we wrote the law, was because we know about the stereotyping of women.

When I look at all the evidence before us, Judge Alito's writings, his statements, his judicial records, and his opinions, and the little we learned about him in these hearings, I am forced to conclude that he should not serve in the Supreme Court. I will vote no.

SPECTER: Thank you, Senator Biden.