Senate As A Full Partner, Not A Rubber Stamp

The Hill
Published December 6, 2005

By Sen. Patrick Leahy (D-Vt.)

The stakes for the American people could not be higher with the pending nomination to the Supreme Court.

When Justice Sandra Day O’Connor leaves the court, she ends an era that began a quarter of a century ago on the day she was sworn in as the first female justice. More than being the first woman’s voice on the nation’s highest court, Justice O’Connor brought an open mind to the cases she reviewed and served as a moderating and decisive influence on the bench.

The person who succeeds her replaces a pivotal vote and will affect many fundamental freedoms and protections on which Americans have come to rely. Her successor has the potential to tilt dramatically the balance of the court and will play a crucial a role in shaping its next era. Will it be an era that strengthens or weakens the rights and freedoms and fair shake that ordinary Americans count on the court to defend? Will it be an era of dramatic expansion of executive branch authority at the expense of the legislative branch, or an era of appropriate checks on abuses of presidential power?

I supported the nomination of Chief Justice Roberts, after meeting with him several times, reviewing his record and carefully listening to his testimony during the hearings before the Judiciary Committee. It was not an easy decision, but it was one I made in the hope that Chief Justice Roberts would be his own man on the high court.

Unfortunately, the Senate did not get the same opportunity to consider President Bush’s next nomination to the court. The president, yielding to intense pressure from right-wing political factions, abruptly withdrew his nomination of Harriet Miers before the Senate had an opportunity to hold hearings or schedule a vote. It was an eye-opening experience for the country, exposing for all to see the litmus tests and motives of a vocal and virulent wing of the president’s political base. This ideological segment and its operatives do not really want an independent federal judiciary. They want judges who will guarantee the political results they want.

They got their way, and then we watched these same right-wing factions rush and gush to support Judge Alito’s nomination. Without any hearings or public scrutiny of this nominee, why would they so fervently embrace Judge Alito? What did they know about Judge Alito that the rest of the American people and the Senate did not yet know? What did they know about Judge Alito that they did not know about Harriet Miers?

I have not formed a final judgment on the merits of Judge Alito’s nomination. As I did with Chief Justice Roberts and as I would have done with Ms. Miers, I will make up my mind after the committee hearings. The hearings are the best setting for comprehensive evaluation and the only opportunity for the Senate and the American people to hear directly from and to reflect on the suitability of a person who will become a final arbiter on laws that affect us all. It is the moment for democratic participation in the staffing of the ultimate check and balance in our system — the independent federal judiciary — and it is why it is so important.

An initial review of Judge Alito’s record has raised some areas of concern that I expect to explore during the committee’s hearings. Judge Alito’s opinions from the federal bench show that he would go to great lengths to restrict the authority of Congress to enact legislation to make real the rights and interests of ordinary Americans on issues ranging from civil rights to environmental quality, and the rights of workers, consumers and women.

Also disturbing has been a 1985 job application to the Meese Justice Department in which Judge Alito claimed to have been inspired to pursue law because of strong opposition to landmark cases by the Warren Court that upheld fundamental rights of all Americans, including one that ensured that citizens would have an equal voice in choosing their public officials. These rulings demonstrate the importance of the judiciary as an independent check on other branches of government and in ensuring that state legislatures redrew voting districts that had been grossly unfair to minority voters, in violation of the Equal Protection Clause. Another memo that has surfaced shows Judge Alito’s role as a Justice Department lawyer in crafting a strategy to convince the Supreme Court to limit and eventually to overturn the court’s landmark Roe v. Wade decision.

As we prepare for the January hearings on Judge Alito’s nomination, we prepare to fulfill our constitutional duty as a vital check and balance in our system of government. The president and the Senate both have somber constitutional duties in filling judicial vacancies. The process begins with the president but does not and should not end there. The Founders did not intend the Senate to be a rubber stamp to the president but his full partner in this process. This is more than just how our government works; it is why it works.

Leahy is the ranking member of the Senate Judiciary Committee.