Tue, 1 Aug 2006 08:58:16 -0500 To: "Theresa J. Steed" <[EMAIL
PROTECTED]> From: "Marty Walsh, TedKennedy.com" <[EMAIL PROTECTED]> View
Contact Details Add Mobile Alert Subject: The truth about Alito and
Roberts [input] [input] [input] [input]
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YAHOO.Shortcuts.overlaySpaceId = "97546169"; YAHOO.Shortcuts.hostSpaceId =
"97546168"; Dear Theresa J.,
During the recent judicial confirmation hearings, you helped to sound the
alarm about President Bush's out-of-the-mainstream ideological nominations to
the Supreme Court. Now, a few months after Justices Roberts and Alito were
confirmed, I wanted to make sure you saw Senator Kennedy's recent op-ed article
in the Washington Post on the first term of the Roberts-Alito court, confirming
our worst fears and discussing the need to reform the Senate's role in
approving presidential nominees to the federal courts.
I hope you'll take the time to read the article and forward it to your
friends and family to spread the word:
http://www.tedkennedy.com/washingtonpost
As Senator Kennedy's article makes clear, the Supreme Court will hear several
key cases in the coming year on key issues such as women's rights, affirmative
action and environmental protection. That the increasingly right-wing court
places these long held rights in real jeopardy for all of us is of deep
concern. There has never been a more important time to pay attention to the
President's judicial nominations and the role of the Senate in approving or
rejecting them. There's also never been a more important time to change
direction in Washington so we can restore checks and balances and protect the
rights and liberties of all Americans through fair and independent courts.
Thank you for all your continuing support,
Marty Walsh
---
Roberts and Alito Misled Us
By Edward M. Kennedy
Sunday, July 30, 2006; B01
I have had the honor of serving on the Senate Judiciary Committee for 43
years, during which I've participated in confirmation hearings for all the
justices who now sit on the Supreme Court. Over that time, my colleagues and I
have asked probing questions and listened attentively to substantive responses.
Because we were able to learn a great deal about the nominees from those
hearings, the Senate has rarely voted along party lines. I voted, for example,
for three of President Ronald Reagan's five Supreme Court nominees.
Of course, an examination of a nominee's views may cause the Senate to
withhold its consent. That is what happened in 1795 to John Rutledge, who was
given a temporary commission as chief justice by President George Washington
(while Congress was in recess) and was then rejected by the Senate several
months later. In 1970, President Richard M. Nixon's nomination of G. Harrold
Carswell was derailed when the Senate learned of his segregationist past. At
that time, I explained that "the Constitution makes clear that we are not
supposed to be a rubber stamp for White House selections." That was also the
Senate's view in 1987, when its rejection of Robert H. Bork's extreme views led
to the unanimous confirmation of the more moderate Anthony M. Kennedy. The
Senate's constitutional role has helped keep the court in the mainstream of
legal thought.
But the careful, bipartisan process of years past -- like so many checks and
balances rooted in our Constitution -- has been badly broken by the current
Bush administration. The result has been the confirmation of two justices, John
G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court
reflects not the neutral, modest judicial philosophy they promised the
Judiciary Committee, but an activist's embrace of the administration's
political and ideological agenda.
Now that the votes are in from their first term, we can see plainly the
agenda that Roberts and Alito sought to conceal from the committee. Our new
justices consistently voted to erode civil liberties, decrease the rights of
minorities and limit environmental protections. At the same time, they voted to
expand the power of the president, reduce restrictions on abusive police
tactics and approve federal intrusion into issues traditionally governed by
state law.
The confirmation process became broken because the Bush administration
learned the wrong lesson from the failed Bork nomination and decided it could
still nominate extremists as long as their views were hidden. To that end, it
insisted that the Senate confine its inquiry largely to its nominees' personal
qualities.
The administration's tactics succeeded in turning the confirmation hearings
for Roberts and Alito into a sham. Many Republican senators used their time to
praise, rather than probe, the nominees. Coached by the administration, the
nominees declined to answer critical questions. When pressed on issues such as
civil rights and executive power, Roberts and Alito responded with earnest
assurances that they would not bring an ideological agenda to the bench.
After confirmation, we saw an entirely different Roberts and Alito -- both
partisans ready and willing to tilt the court away from the mainstream. They
voted together in 91 percent of all cases and 88 percent of non-unanimous cases
-- more than any other two justices.
A few examples help illustrate how the confirmation process failed the
American people. During Roberts's hearing, I asked him about his statement that
a key part of the Voting Rights Act constitutes one of "the most intrusive
interferences imaginable by federal courts into state and local processes." In
response, he suggested that his words were nothing more than an "effort to
articulate the views of the administration . . . for which I worked 23 years
ago."
Today -- too late -- it is clear that Roberts's personal view is the same as
it was 23 years ago. In League of United Latin American Citizens v. Perry, the
Supreme Court held that Texas's 2003 redistricting plan violated the Voting
Rights Act by protecting a Republican legislator against a growing Latino
population. Roberts reached a different view, concluding that the courts should
not have been involved and that it "is a sordid business, this divvying us up
by race."
The same Roberts who wished the federal government would leave Texas alone
was unconcerned by federal intrusion into Oregon's approach to the issue of
assisted suicide. In Gonzales v. Oregon, a majority of the Supreme Court held
that the Justice Department lacked the power to undermine Oregon's Death With
Dignity Act. However, Roberts joined a startling dissent by Justice Antonin
Scalia, stating that the administration's actions were "unquestionably
permissible" because the federal government can use the Constitution's commerce
clause powers "for the purpose of protecting public morality."
It is difficult to believe that a neutral judicial philosophy explains
Roberts's very different views in these two cases. He memorably claimed during
the confirmation process that he wanted only to be a diligent umpire, calling
balls and strikes without regard to what team was at bat. But it turns out that
our new umpires have a keen interest in who wins and who loses.
One clear loser is the environment. In Rapanos v. United States , the court
was asked to interpret the definition of wetlands under the Clean Water Act.
Four justices deferred to the Army Corps of Engineers' expertise in
implementing the statute. But Roberts and Alito joined an opinion that
describes wetlands as "transitory puddles" and criticizes their colleagues for
"giving that agency more deference than reason permits." For Roberts and Alito,
protecting the environment -- unlike "protecting public morality" -- is clearly
not a top priority.
Perhaps the biggest winner is the president himself. During Alito's hearing,
I asked him about a 1985 job application in which he stated that he believed
"very strongly in the supremacy of the elected branches of government." He
backpedaled, claiming: "I certainly didn't mean that literally at the time, and
I wouldn't say that today."
But he is willing to say it now. In the very recent case of Hamdan v.
Rumsfeld , Alito signed on to a dissent by Justice Clarence Thomas that asserts
a judicial "duty to respect the Executive's judgment in matters of military
operations and foreign affairs" as grounds for allowing the administration to
use military commissions of its own design to try detainees at Guantanamo Bay,
Cuba.
This is part of a pattern. When he was in the Reagan Justice Department,
Alito wrote in support of signing statements, through which the president has
claimed to limit the scope of measures passed by Congress -- including the ban
on torture. When questioned about the legal status of such statements, he said
it was an open issue that still needed to be "explored and resolved" by the
court. But Alito joined a Scalia dissent in the Hamdan case that endorsed the
use of signing statements without providing any analysis or legal support.
Similarly, Alito had a pattern of ruling against individuals in Fourth
Amendment cases -- including a case involving the strip-search of a 10-year-old
girl. When questioned, he insisted that one of the judiciary's most important
roles "is to stand up and defend the rights of people when they are violated."
But Alito cast the deciding vote in Hudson v. Michigan , in which the court
decided -- contrary to almost a century of precedent -- that evidence gathered
during an unconstitutional search of a suspect's home could be used to convict
him.
In the term that begins in October, the court will decide major cases on
abortion, affirmative action and the Clean Air Act. Roberts and Alito may well
cast the deciding votes. If their first term is any indication, their agenda
will be exactly what many of us feared -- and nothing like the judicial modesty
they promised during their hearings.
At a time when great legal issues are being decided by the slimmest of
margins, we cannot afford to learn nominees' views only after they have
obtained lifetime tenure on our highest court. Instead, the Judiciary
Committee, the Senate and the American Bar Association need to work together to
return to an honest confirmation process. I support reform despite my belief
that the next justice will be nominated by a Democratic president and be sent
to a Democratic Senate for confirmation.
The discussion should start with a few truths. First, any qualified nominee
to the Supreme Court will have spent many years thinking about legal issues. We
should require that nominees share that thinking with the Judiciary Committee,
and not pretend that such candor is tantamount to prejudging specific cases. In
particular, the Senate should have the same access to the nominee's writings as
the administration. Second, the Judiciary Committee will need to reorganize the
way it asks questions. An in-depth inquiry will require something more than
short rounds of questions that pass from senator to senator. Third, we need to
remember what this process is all about. It is good to hear that a nominee has
a loving family, faithful friends and a sense of humor. It is important to know
that nominees possess the intellect, life experience and discipline that make a
good judge. But it is essential that we learn enough of their legal views to be
certain that they will make good on
the simple promise etched in marble outside the Supreme Court: "Equal Justice
Under Law."
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