I would like to take this opportunity to offer a few observations on the manner in which the Senate has conducted its inquiry into the qualifications of Judge Samuel A. Alito, Jr., to serve on the United States Supreme Court.
Regardless of any Senator’s particular view of Judge Alito, I think we can all agree that there is room for improvement in the way in which the Senate – and, indeed, the nation, have undertaken the examination of this nominee. And let me be clear, I mean no criticism of the Chairman of the Senate Judiciary Committee or any particular member of the Committee.
I feel compelled to address this issue, not to point fingers, to scold, or to assign blame, but to address specific, sincere, and heartfelt concerns that have been brought to my attention by the people of West Virginia. Many people, including foremost the people of West Virginia in no uncertain terms were, frankly, appalled by the Alito hearings. I don’t want to say it; but I must. They were appalled.
In the reams of correspondence that I received during the Alito hearings, West Virginians who wrote to criticize the way in which the hearings were conducted used the same two words. People with no connection to one another, of different faiths, views, and opinions independently and respectively used the same two words to describe the hearings: they called them an “outrage” and a “disgrace.”
And these were not form letters ginned up by special interest groups on either the right or the left. These were hand-written, contemplative, old-fashioned letters written on lined paper and personal stationery. They were the sort of letters that people write while watching television in the comfort of their living rooms, or sitting at the kitchen table.
It is especially telling that many who objected to the way in which the Alito hearings were conducted do not support Judge Alito. In fact, it is sorely apparent that even many who oppose Judge Alito’s nomination also oppose the seemingly “made for TV” antics that accompanied the hearings.
And it’s not just the Senate as an institution which is to blame. The virulence of some outside groups from both sides of the political spectrum added fuel to the fire. Multi-million dollar advertising campaigns either to proclaim or denigrate Judge Alito’s fitness for the position raged across the airwaves.
A solemn, constitutional responsibility is not helped when it takes on such a tone.
And then there was the media and its contribution to the deterioration of this very important Constitutional process. Was it really necessary to subject Mrs. Alito to the harsh glare of television klieg lights as she fled the hearing room in tears, fighting to maintain her dignity in response to others with precious little of their own?
Have we finally come to the point where our nation’s assessment of a Supreme Court nominee turns more on a simple-minded sound bite or an exploitive snapshot than on the answers provided or withheld by the nominee?
Obviously, something is wrong with our judicial nominations process, and we in the Senate have the power to fix it.
The Framers presumably had something better in mind when they vested the Senate with the authority to confirm “judges of the Supreme Court.” In fact, we know they did. In 1789, Roger Sherman of Connecticut defended the role of the Senate in confirming Presidential appointments. He wrote, “It appears to me that the senate is the most important branch in the government. . . . The Executive magistrate is to execute the laws. The Senate, being a branch of the legislature, will naturally incline to have them duly executed and, therefore, will advise to such appointments as will best attain that end.”
Alexander Hamilton also had high hopes for the Senate’s ability to render its advice and consent function. He proclaimed, “It is not easy to conceive a plan better calculated than this to promote a judicious choice of men for filling the offices of the Union.”
Exactly what did the Framers mean when they gave the Senate the power to “Consent” to the confirmation of a judicial nominee?
Historically, a majority of the Framers anticipated that the Senate’s confirmation or rejection of a judicial nominee would be based on the fitness of the nominee; not on partisan politics or extraneous matters.
Based on these assumptions, the Framers presumably did not expect the Senate to spend its allotted time on a nominee staging partisan warfare instead of examining his or her qualifications.
Yet, the Framers probably also would never have expected that a Senator of a nominee’s own Party would refuse to ask the candidate meaningful questions. They certainly did not intend for Senators of the nominee’s own Party to sit silently in quiet adulation, refusing to seek the truth while smiling indulgently, thus accomplishing nothing.
The Framers expected the Senate to be a serious check on the power of the President. They clearly thought that the Senate’s confirmation process ought to be fair, impartial, thorough, and exhibit appropriate respect for solemn duty and the dignity of both the process and the nominee.
I regret that we have come to a place in our history when both political parties exhibit such a “take no prisoners” attitude. All sides seek to use the debate over a Supreme Court nominee to air their particular wish list for or against abortion, euthanasia, executive authority, freedom of the press, freedom of speech, wiretapping, the death penalty, workers’ rights, gun control, corporate greed, and dozens of other subjects. All of these issues should be debated, but the battle lines should not be drawn on the Judiciary. They should be debated by the people’s Representatives in Congress.
However, too many Americans apparently believe that if they cannot get Congress to address an issue, they must take it to the court! As the saying goes, “If you can’t change the law, change the judge!”
This thinking represents a gross misinterpretation of the separation of powers: it is the role of the Congress to make and change the laws; Supreme Court Justices exist to interpret laws and be sure that they square with the Constitution and with settled law.
A better understanding of the Court’s role would do much to diminish the “hype” that now accompanies the judicial nomination process. The role of the Senate in the Alito debate is not to push legislation, or to score points for those who either support or oppose specific legislative proposals. The purpose of the current debate is to evaluate the fitness of Judge Samuel Alito to sit on the highest Court of our land which includes his temperament and his intellectual ability.
In a perfect world this heavy Constitutional responsibility of the Senate would have little to do with Party affiliation.
Unfortunately, during the first Administration of George Washington, as far back as 1795, a bruising confirmation battle over the nomination of John Rutledge to be the Chief Justice of the Supreme Court established that the some Senators would consider not merely the qualifications, but also the political views of a nominee, in deciding whether to support or reject his nomination. .
But I am not one of those Senators. I refuse to simply tow the Party line when it comes to Supreme Court Justices. Of course, I am a registered Democrat. But when it comes to judges, I hail from a conservative state. And, like a majority of my constituents, I prefer conservative judges - - that is judges who do not try to make the law. In fact, I was once approached by Richard Nixon to be a U.S. Supreme Court Justice. But I declined in order to continue to serve the people of West Virginia.
This is not to say that I would vote for any judge just because he is a conservative. No sir! If I think a conservative judge is unqualified, I will not vote for him. I have voted against judges on both sides of the political spectrum, who leaned too heavily on their political views, rather than existing law, and seemed to have a political agenda.
Much has been made of the fact that Judge Alito has expressed support for the concept of the “unitary executive.” Many are afraid that his support for this concept means that he favors a broad “expansion” of presidential power. But Judge Alito has stated repeatedly that his support for the concept of the “unitary executive” does not refer to broadening the “scope” of the power of the President.
Instead, Judge Alito says this theory refers to the way in which the President utilizes his existing power to faithfully execute the law as it applies to administrative agencies within the Executive Branch. In describing the unitary executive in his speech before the Federalist Society, Judge Alito stated that Article II, Section Three of the Constitution provides that the President “shall take Care that the Laws be faithfully executed.” Thus, he said, “the President has the power and the duty to supervise the way in which the subordinate Executive Branch officials exercise the President’s power of carrying federal law into execution.”
Before the Judiciary Committee, Judge Alito was asked point blank whether he thought the concept of the unitary executive refers to expanding the scope of presidential power, or, instead, to the President’s control over the Executive Branch. Judge Alito confirmed that he was speaking of the latter.
Judge Alito was also asked whether he would support an expansion of the scope of Presidential power. Specifically, he was asked if he thought that a President should have more power than he is expressly given by law. Judge Alito stated several times that he would not support that point of view, and he noted, again, that the “scope” of the power of the President has nothing to do with the unitary executive.
I met with Sam Alito. I spent close to two hours with him. I asked him what he thought about the Establishment Clause and the Free Exercise Clause. I told him that I believe the Supreme Court has gone too far in prohibiting the free exercise of religion in our country. He listened respectfully and said that he understood. He did not pledge to overrule precedent, but he made it clear that he understood and respected my opinion.
I also advised him of my view that the Executive branch is continually and improperly seeking to grab power, and that the separation of powers requires the judiciary to be ever-vigilant in stopping abuse of power by the President and protecting the powers of the other two branches.
I urged Judge Alito, as I had urged Judge Roberts before him, to recognize the importance of maintaining the equality of the three branches of our government protected by our Constitution. I stressed that he should be a Justice that will not forget the People's Branch, the Legislative Branch, which is the first branch, the primary branch mentioned in the Constitution under Article I – the Executive is mentioned later on, in Article II.
I requested that he not rule in a way that would expand the authority of an already “expansionist” executive. I reiterated that the Framers did not place the greatest power in the executive. Instead, the Framers put the greatest power in the people! You and me. The first three words in the preamble of the Constitution, are: “We The People.” The Framers ensured that the people, through us, their elected representatives in Congress, would have the greatest power in our government.
In response, Judge Alito told me that he respected the separation of powers and would not rule in support of a power-hungry President. I liked that answer, and I liked Judge Alito. He struck me as a man of his word, and I intend to vote for him.
I believe strongly that the Senate has a responsibility to provide its advice and consent with respect to a particular nominee based on the merits or demerits of that nominee – not on focus groups, celebrity endorsements, binders filled with innuendo and slanted analysis, or White House photo opportunities.
In truth, there is no way of knowing what any nominee for our nation’s highest court will do after that nominee is confirmed. One could cite many examples of Justices who surprised the President who nominated them as well as members of the Senate who supported or opposed their confirmation. Once a man or woman has achieved the high honor of a lifetime appointment to our nation’s highest court, a transformation may occur. The awesome responsibility of protecting our Constitution and preserving the checks and balances for succeeding generations of Americans must elevate and sharpen one’s judicial temperament in profound ways. The duty to preserve the freedom of our citizens as enshrined in our magnificent Bill of Rights must ennoble even an already noble mind and character.
In the end, the heavy duty bourne by members of the Senate to evaluate and reject or approve the President’s nominees for the high court should come down to each Senator’s personal judgment of the man or woman before us, augmented, of course by such judicial records and writings as may exist. I know not exactly what kind of Justice Samuel Alito may actually be - - no one does. But my considered judgment from his record, from his answers to my questions, and from his obvious intelligence and sincerity, leads me to believe him to be an honorable man, who loves his country, loves his Constitution, and will give of his best. Can we really ask for more?