The following is the full text of Sen. Jay Rockefeller's statement opposing the nomination of Samuel A. Alito Jr.'s nomination to the United State Supreme Court.
Mr. President, I rise today to share my thoughts and concerns about the President's nomination of Samuel Alito to be an Associate Justice on the United States Supreme Court.
It goes without saying that the decision whether or not to confirm a nominee for a lifetime position on the Supreme Court is among the Senate's most serious and solemn constitutional obligations.
My ultimate test for whether to support a nominee to the Supreme Court rests with two questions: will the nominee protect the best interests of West Virginians and will the nominee uphold the fundamental rights and freedoms of all Americans that are set out in the Constitution and in our laws. It is a high standard, as it must be for a lifetime appointment to the highest court in the land.
In the last few weeks and months, through careful consideration, I have attempted to answer those two questions. I have concluded that Judge Alito's judicial record, his writings and his statements portray a man who will not do enough to stand up against power when the rights of average Americans are on the line and who will not do enough to stand up against the President when the checks and balances in our Constitution are on the line.
I will not support a filibuster because I see it as an attempt to delay his certain confirmation. But I will register my grave concerns about Judge Alito's nomination to the Supreme Court by voting against confirmation when that final vote is before us.
My decision is the result of a long and deliberative process.
As my record plainly shows, I have never applied a partisan or ideological litmus test to nominees. George W. Bush was elected as a conservative president, and I have supported his conservative choices at every level. On the judiciary alone, I have voted to confirm 203 out of 212 judges nominated by President Bush. Just four months ago I voted in support of Chief Justice John Roberts, a true conservative, because I concluded that he would consider fully the lives of average people, the lives of those in need and those whose voices often are not heard. I believed on balance that he would be his own man in the face of inevitable outside pressures.
In recent weeks and months, I have heard from hundreds of West Virginians through letters, telephone calls and personal conversations. Many have expressed strong opposition to Judge Alito, and many have expressed strong support for him. I have weighed all of their views carefully.
I also have labored over Judge Alito's record – his early writings, his rulings, his speeches, and his Senate testimony – and I met personally with Judge Alito. I wanted to hear directly from him, in his own words, what kind of an Associate Justice he would be.
There is no question he is an intelligent man with a deep knowledge of our legal system. During our conversations he was a gentleman in every sense of the word. But for me these important character traits are not enough to warrant elevation to the U.S. Supreme Court.
I have concluded that although Judge Alito is a well-qualified jurist, I cannot in good conscience support a nominee whose core beliefs and judicial record exhibit simply too much deference to power at the expense of the individual.
Particularly in the committee hearings, when pressed on issues such as individual rights and presidential powers, Judge Alito's answers troubled me -- they were limited and perfunctory. I was left with a strong sense of his ability to recite and analyze the law as it stands, but with very little sense of his appreciation for the principles and the real people behind those laws.
Unfortunately, Judge Alito's record does not allay those concerns. As a government lawyer, a federal prosecutor, and a 15-year federal judge on the Third Circuit, with lifetime tenure, Judge Alito has repeatedly sided against people with few or no resources. The average person up against a big corporation, an employer, or even the government itself, all too often comes out on the short end of the stick in front of Judge Alito.
I am particularly troubled by one case, RNS Services v. Secretary of Labor. In RNS Services, Judge Alito argued, in a lone dissent, against protecting workers in a Pennsylvania coal plant by not enforcing the jurisdiction of the Mine Safety and Health Administration (MSHA). Judge Alito claimed that the coal processing plant was closer to a factory than a mine, and therefore should be governed by the more lenient Occupational Safety and Health Administration (OSHA) standards. Fortunately for the miners, the majority of judges in the case did not agree with Judge Alito, and MSHA's standards prevailed.
Outside the courtroom, Judge Alito has at various times in his career suggested, directly and indirectly, that he supports a disproportionately powerful president and Executive Branch. As a mid-career government lawyer, his writings showed a solicitous deference to the Executive Branch and a willingness to undercut the constitutional authority of Congress. As recently as 2000, Judge Alito forcefully argued in support of a controversial theory known as the "unitary executive" which would allow the President to act in contravention of the laws passed by Congress in carrying out his duties.
As Vice Chairman of the Senate Intelligence Committee, I have developed an even greater appreciation for the wisdom of our nation's founders in creating a system of checks and balances among the judicial, executive and legislative branches of government. The interaction between the President and the Congress on matters of national security, classified and unclassified, is incredibly important to our safety and our future. Today there is a serious legal and constitutional debate going on in our country about whether the President, who already has enormous inherent powers as the leader of our country, has expanded his executive reach beyond the bounds of the law and the Constitution. The fact is the President does not write the laws, nor is he charged with interpreting them -- the Constitution is unequivocally clear that lawmaking resides with the Congress and interpretation resides with the courts -- yet, this president, on many fronts, is attempting to do both.
This alarming trend has been exacerbated by the fact that we have a single party controlling both the White House and the Congress, resulting in minimal congressional oversight of an overreaching executive branch.
The Supreme Court, in the coming months and years, will be forced to rule on many cases related to expansion of executive power. This nominee will play a pivotal role in settling the legal questions of today, and charting a course for the legal questions of our children's and grandchildren's generations.
These are core questions: What is the scope of presidential power under the Constitution? What is the appropriate balance between the President and the Congress? When must the constitutionally protected rights of average Americans -- workers' rights, families' rights, and individuals' rights – prevail?
At the end of the day, I am left with the fear that Judge Alito brings to the court a longstanding bias in favor of an all-powerful presidency and against West Virginians' basic needs and interests.
I yield the floor.
