SENATOR BARBARA BOXER’S STATEMENT ON THE NOMINATION OF SAMUEL L. ALITO TO BE ASSOCIATE JUSTICE OF THE UNITED STATES SUPREME COURT
Today, I am announcing my opposition to the nomination of
Samuel Alito to the Supreme Court of the United States.
According to Article II of the Constitution, justices of the
Supreme Court may not be appointed by the president without the
advice and consent of the United States Senate. So it is our
solemn duty to consider each nomination carefully, keeping in
mind the interests of the American people.
And this nomination is particularly crucial because the stakes
have rarely been so high.
First, consider the context in which this nomination comes
before us. The seat that Judge Alito has been nominated for is
now held by Justice Sandra Day O’Connor, who came to the Court
For years, Justice O’Connor has provided the tie-breaking vote
and a commonsense voice of reason in some of the most important
cases to come before the Court, including a woman’s right to
choose, civil rights, and freedom of religion.
Second, consider the tumultuous political climate in our
nation. President Bush understood that in 2000 when he
promised to govern from the center, and be “a uniter, not a
divider.” Sadly, this nomination shows that he has forgotten
that promise because it is not from the center and it is not
uniting the nation.
The right thing to do would have been to give us a justice in
the mold of Justice O’Connor, and that is what the president
should have done.
Let me be clear: I do not deny Judge Alito’s judicial
qualifications. He has been a government lawyer and judge for
more than 20 years and the American Bar Association rated him
well qualified. He is an intelligent and capable person. His
family should be proud of him and all Americans should be proud
that the American dream was there for the Alito family.
But after reviewing the hearing record and the record of his
statements, writings and rulings over the past 24 years, I am
convinced that Judge Alito is the wrong person for this job.
I am deeply concerned about how Justice Alito will impact the
ability of other families to live the American dream — to be
assured of privacy in their homes and their personal lives, to
be secure in their neighborhoods, to have fair treatment in the
workplace, and to have confidence that the power of the
executive branch will be checked.
As I reviewed Judge Alito’s record, I asked whether he will
vote to preserve fundamental American liberties and values —
Will Justice Alito vote to uphold Congress’ constitutional
power to pass laws to protect Americans’ health, safety, and
welfare? Judge Alito’s record says NO.
In the 1996 Rybar case, Judge Alito voted to strike down the
federal ban on the transfer or possession of machine guns
because he believed it exceeded Congress’ power under the
Commerce Clause. His 3rd Circuit colleagues sharply criticized
his dissent and said that it ran counter to “a basic tenet of
the constitutional separation of powers.” And Judge Alito’s
extremist view has been rejected by six other circuit courts
and the Supreme Court. Judge Alito stood alone and failed to
protect our families.
In a case concerning worker protection, Judge Alito was again
in the minority when he said that federal mine health and
safety standards did not apply to a coal processing site. He
tried to explain it as just a “technical issue of
interpretation.” I fear for the safety of our workers if
Judge Alito’s narrow, technical reading of the law should ever
Will Justice Alito vote to protect the right to privacy,
especially a woman’s reproductive freedom? Judge Alito’s
record says NO.
We have all heard about Judge Alito’s 1985 job application, in
which he wrote that the constitution does not protect the right
of a woman to choose. He was given the chance to disavow that
position during the hearings — and he refused to do so. He
had the chance to say, as Judge Roberts did, that Roe v. Wade
is settled law, and he refused.
He had the chance to explain his dissent in the Casey decision,
in which he argued that the Pennsylvania spousal notification
requirement was not an undue burden on a woman seeking an
abortion because it would affect only a small number of women,
but he refused to back away from his position. The Supreme
Court, by a 5-4 vote, found the provision to be
unconstitutional, and Justice O’Connor, co-writing for the
Court, criticized the faulty analysis supported by Judge Alito,
saying that “the analysis does not end with the one percent of
women” affected … “it begins there.”
To my mind, Judge Alito’s ominous statements and narrow minded
reasoning clearly signal a hostility to women’s rights, and
portend a move back toward the dark days when abortion was
illegal in many states, and many women died as a result. In
the 21st century, it is astounding that a Supreme Court nominee
would not view Roe v. Wade as settled law when its fundamental
principle — a woman’s right to choose — has been reaffirmed
many times since it was decided.
Will Justice Alito vote to protect Americans from
unconstitutional searches? Judge Alito’s record says NO.
In Doe v. Groody in 2004, he said a police strip search of a
10-year-old girl was lawful, even though their search warrant
didn’t name her. Judge Alito said that even if the warrant did
not actually authorize the search of the girl, “a reasonable
police officer could certainly have read the warrant as doing
so… ” This casual attitude toward one of our most basic
constitutional guarantees — the 4th Amendment right against
unreasonable searches — is almost shocking. As Judge Alito’s
own 3rd Circuit Court said regarding warrants, “a particular
description is the touchstone of the 4th Amendment.” We
certainly do not need Supreme Court justices who do not
understand this fundamental constitutional protection.
Will Justice Alito vote to let citizens stop companies from
polluting their communities? Judge Alito’s record says NO.
In the Magnesium Elektron case, Judge Alito voted to make it
harder for citizens to sue for toxic emissions that violate the
Clean Water Act. Fortunately, in another case several years
later, the Supreme Court rejected the 3rd Circuit and Alito’s
narrow reading of the law. Judge Alito doesn’t seem to care
about a landmark environmental law.
Will Justice Alito vote to let working women and men have their
day in court against employers who discriminate against them?
Judge Alito’s record says NO.
In 1997, in the Bray case, Judge Alito was the only judge on
the 3rd circuit to say that a hotel employee claiming racial
discrimination could not take her case to a jury.
In the Sheridan case, a female employee sued for
discrimination, alleging that after she complained about
incidents of sexual harassment, she was demoted and
marginalized to the point that she was forced to quit. By a
vote of 10 to 1, the 3rd Circuit found for the plaintiff.
Guess who was the one? Only Judge Alito thought the employee
should have to show that discrimination was the “determinative
cause” of the employer’s action. Using his standard would make
it almost impossible for a woman claiming discrimination in the
workplace to get to trial.
Finally, will Justice Alito be independent from the executive
branch that appointed him, and be a vote against power grabs by
the president? Judge Alito’s record says NO.
As a lawyer in the Reagan Justice Department, he authored a
memo suggesting a new way for the president to encroach on
Congress’ lawmaking powers. He said that when the president
signs a law, he should make a statement about the law, giving
it his own interpretation, whether it was consistent with what
Congress had written or not. He wrote that this would “get in
the last word on questions of interpretation” of the law. In
the hearings, Judge Alito refused to back away from this memo.
When asked whether he believed the president could invade
another country, in the absence of an imminent threat, without
first getting the approval of the American people, of Congress,
Judge Alito refused to rule it out.
When asked if the president had the power to authorize someone
to engage in torture, Alito refused to answer.
The administration is now asserting vast powers, including
spying on American citizens without seeking warrants — in
clear violation of the Foreign Intelligence Surveillance Act —
violating international treaties, and ignoring laws that ban
torture. We need justices who will put a check on such
overreaching by the executive, not rubberstamp it. Judge
Alito’s record and his answers at the hearings raise very
serious doubts about his commitment to being a strong check on
an “imperial president.”
In addition to these substantive matters, I remain concerned
about Judge Alito’s answers regarding his membership in the
Concerned Alumni of Princeton and his failure to recuse himself
from the Vanguard case, which he had promised to do.
During the hearings, we all felt great compassion for Mrs.
Alito when she became emotional in reaction to the tough
questions her husband faced in the Judiciary Committee.
Everyone in politics knows how hard it is for families when a
loved one is asked tough questions. It is part of a difficult
process, and whoever said politics is not for the faint of
heart was right.
Emotions have run high during this process. That’s
understandable. But I wish the press had focused more on the
tears of those who will be affected if Judge Alito becomes
Justice Alito and his out-of-the mainstream views prevail.
I worry about the tears of a worker who, having failed to get a
promotion because of discrimination, is denied the opportunity
to pursue her claim in court.
I worry about the tears of a mentally ill woman who is forced
by law to tell her husband that she wants to terminate her
pregnancy and is afraid that he will leave her or stop
I worry about the tears of a young girl who is strip searched
in her own home by police who have no valid warrant.
I worry about the tears of a mentally retarded man, who has
been brutally assaulted in his workplace, when his claim of
workplace harassment is dismissed by the court simply because
his lawyer failed to file a well written brief on his behalf.
These are real cases in which Judge Alito has spoken.
Fortunately, he did not prevail in these cases. But if he goes
to the Supreme Court, he will have a much more powerful voice
— a radical voice that will replace a voice of moderation and
Perhaps the most important statement Judge Alito made during
the entire hearing process was when he told the Judiciary
Committee that he expects to be the same kind of justice on the
Supreme Court as he has been a judge on the Circuit Court.
That is precisely the problem. As a judge, Samuel Alito seemed
to approach his cases with an analytical coldness that
reflected no concern for the human consequences of his
Listen to what he said about a case involving an
African-American man convicted of murder by an all white jury
in a courtroom where the prosecutors had eliminated all
African-American jurors in many previous murder trials as well.
Judge Alito dismissed this evidence of racial bias and said
that the jury makeup was no more relevant than the fact that
lefthanders have won five of the last six presidential
elections. When asked about this analogy during the hearings,
he said it “went to the issue of statistics… (which) is a
branch of mathematics, and there are ways to analyze statistics
so that you draw sound conclusions from them…”
That response would have been appropriate for a college math
professor, but it is deeply troubling from a potential Supreme
As the great jurist and Supreme Court Justice Oliver Wendell
Holmes, Jr. wrote in 1881, “The life of the law has not been
logic; it has been experience… The law embodies the story of
a nation’s development through many centuries, and it cannot be
dealt with as if it contained only the axioms and corollaries
of a book of mathematics.”
What Holmes meant is that the law is a living thing, that those
who interpret it must do so with wisdom and humanity, and with
an understanding of the consequences of their judgments for the
lives of the people they affect.
It is with deep regret that I conclude that Judge Alito’s
judicial philosophy lacks this wisdom, humanity and moderation.
He is simply too far out of the mainstream in his thinking.
His opinions demonstrate neither the independence of mind nor
the depth of heart that I believe we need in our Supreme Court
justices, particularly at this crucial time in our nation’s
That is why I will oppose this nomination.