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:: Monday, January 30, 2006 ::

Durbin's Letter To Constituents Expressing Opinions On The Alito Debate

Thank you for contacting me regarding the nomination of Samuel Alito to
the Supreme Court. I appreciate hearing your views.

The Supreme Court is the single most important institution protecting
America's rights and liberties. The decisions made by the Court's nine
Justices can change the face of democracy in our nation.

Over the last decade, the Supreme Court has handed down 193 decisions
that were decided by a 5-4 vote. In 148 of those 193 cases, the fifth and
deciding vote was cast by the Justice whom Judge Alito would replace:
Justice Sandra Day O'Connor. Time and again, it was Justice O'Connor's
critical vote that preserved civil rights, human rights, women's rights,
and workers' rights. The person who fills Justice O'Connor's seat can tip
the balance of the scales of justice.

Going into the Senate Judiciary Committee hearings on Judge Alito's
nomination, I set out to discover whether Judge Alito's approach to the
law was truly in the mainstream of American values. His track record on
the U.S. Court of Appeals for the Third Circuit had given me cause for
concern. In case after case, Judge Alito voted - often as the lone
dissenter on his court - against the dispossessed, the poor, and the
powerless who found themselves in his court. For example:

• In one case, Judge Alito was the only judge on his court to argue that
the Constitution allowed the strip search of a 10-year-old girl who was
not named in the search warrant.

• In a case involving the murder conviction of an African-American by an
all-white jury after the prosecutor had struck all of the potential black
jurors, Judge Alito, in a lone dissent, deemed irrelevant the statistical
evidence that the local prosecutors also had struck all the black jurors
in three other murder cases.

• In a case involving a mentally retarded man who was brutally assaulted
at his workplace, Judge Alito was the lone dissenter who voted to dismiss
the case - not because the evidence was weak but because the victim's
lawyer had submitted a poorly prepared brief to the court.

• In another case Judge Alito issued the sole dissent regarding the
application of health and safety inspections to a coal mine.

I was also concerned about statements Judge Alito had made regarding a
number of important constitutional issues. Judge Alito has said in
speeches that he is a "strong proponent" of the so-called "unitary
executive theory". The Bush Administration has repeatedly advanced this
theory to justify its most extreme policies, such as the seizing and
imprisonment of American citizens indefinitely without charge and the
wiretapping of Americans' phone conversations without the court approval
that is required by law.

Also, when he applied for a promotion in the Department of Justice,
Samuel Alito wrote that he was skeptical of Supreme Court decisions that
embraced the principle of "one person one vote" and the proposition that
the government must be neutral toward religion in order to maintain a
healthy separation of church and state. Despite Supreme Court precedent
to the contrary, he further wrote in this application that the
Constitution did not protect a right to an abortion. He also pointed with
pride to his membership in two ultra-conservative organizations, the
Federalist Society and the Concerned Alumni of Princeton.

Judge Alito's nomination hearings lasted five days. I asked Judge Alito
three rounds of questions and listened carefully to his responses. The
hearings were long and the questions were often very direct. I believe
the American people have a right to expect their Senators to ask difficult
and important questions when so much is at stake.

What did we learn about Justice Alito in his confirmation hearings?
Unfortunately, very little. Judge Alito was extremely guarded in his
answers. While he distanced himself from a few of his past statements and
views, he failed to disavow many others. Overall, his answers did not
ease my fear that Judge Alito would be a Supreme Court Justice who is
outside the mainstream of American values.

In the record, the writing, and the words of Samuel Alito, I searched for
evidence that he could adequately fill the crucial seat that Sandra Day
O'Connor has held on the Supreme Court. I searched for evidence that for
the next two or three decades he would use his position on the Supreme
Court to enlarge our freedom, defend our fundamental Constitutional rights
if a President overreaches, and protect our privacy and the rights of the
powerless. In case after case, I could not find it. In the end, I
concluded I must vote against Samuel Alito's nomination.


Richard J. Durbin
United States Senator

:: The Squire 2:03 PM :: email this post :: ::


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