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Floor Statement of U.S. Senator Trent Lott of Mississippi On the Confirmation of Judge Samuel A. Alito, Jr.

–Senator Trent Lott of Mississippi delivered the following statement on the floor of the U.S. Senate Thursday on the confirmation of Judge Samuel A. Alito, Jr.–     

“Mr. President, I rise today to speak in favor of the nomination of Judge Samuel Alito for Associate Justice of the U.S. Supreme Court.

Before I proceed to my discussion of my views of Judge Alito, I take a moment to thank Senator Arlen Specter for the good work he has done on the Judiciary Committee over the last few months.  He has had a loaded calendar, a lot of important legislation, important hearings, and the process of confirming two Supreme Court Justices.  It has been a while since any chairman of the Judiciary Committee or any committee has had this kind of workload over the past few months.  Senator Specter has done an excellent job in the way he has handled it. 

I also recognize Senator Grassley and his participation on the committee and the statement he just gave.  It is obvious he has done his homework.  He handled himself well in the hearings, and he has even developed what seems a personal affinity for Judge Alito.  That will affect a lot of other Senators' thinking about this, and a lot of the American people. 

I commend those on the committee who have treated this process with the dignity and respect it certainly deserves.  The Chair will note, I said to "those," meaning not necessarily all of the members of the committee. 

There is not a lot I can say here today that others won't say about his record or about this issue.  But I believe this is one of the most important functions we have in the Senate; that is, our advice and consent, the confirmation process for our Federal judiciary.  There is no question that it was intended we have three equal branches of Government:  the judiciary, the executive, and the legislative.  We all have responsibilities under the Constitution and under the law, and those have evolved over the years.  Separation of power should not mean we become the body or the part of Government that becomes the obstructionist or is always looking for a way to take on the executive or the judiciary.  This is an important responsibility, and it is important every Senator have a chance to express his or her views on this topic. 

This is such an important issue that it is good for the country, any time we have a debate about the judiciary and what is the role of the Congress, the executive branch, the judiciary, and the whole process.  How should judges be selected and how should the hearings be held and what should they do when they get on the Court.  This is good for the country, and we should look at it that way. 

I do know that it has been a constant topic of discussion in much of the country since last summer with the process that led to the confirmation of Chief Justice Roberts and now the discussion about Judge Alito.  I had a call from a constituent in Jackson, MS.  She expressed her support for the fact that the Judiciary Committee reported out this nomination and thought we were going to vote today, which we should be voting today on his confirmation as an Associate Justice.  It said to me, once again, this is not a person involved in the judiciary, but people are paying attention to what we say and what we do.  We should not trivialize in any way this important process.  Over the years I have asked myself, what should I do in analyzing Federal judicial nominations, particularly the Supreme Court, since they clearly can have a long-term effect.  When we confirm these men and women for life terms, it is serious.  We need to always be thinking about it.                           

When I first came to the Senate after years in the House, I asked my senior colleague from Mississippi, a respected member and now chairman of the Appropriations Committee, to talk with me about what should be the criteria in debates for confirming judges.  He gave me good advice, and it was pretty simple.  He basically said that under our advice and consent responsibility, we should look to see if the nominee is qualified by character, education, experience, and temperament.  Then if the nominee meets the basic criteria or qualifications in those areas, he or she should be confirmed.  End of discussion.  Not a ruling on a particular case, not a personal view on any subject, not one based on religious faith or any number of other issues.  Are they qualified by character, which means do they have good integrity and ethics, are they educated for the job, do they have good experience, and do they have the right temperament to serve.  That is the way it should be. 

When I have looked at the issue, I am absolutely satisfied we have one of the most qualified nominees for the Supreme Court, probably one of the most qualified in at least 70 years, when we look at all he has done.  I have applied this principle during Democratic administrations and Republican.  Have I occasionally voted against nominees?  Yes, for good and valid reasons.  I voted against one because I thought he had a conflict of interest.  I voted against one because I thought he had been a recess appointment inappropriately.  I don't think Federal judges should, generally get recess appointments, although it has been done in one case where I clearly felt it was fair.  But it is not something I would want us to make a practice of. 

I voted for Justice Ginsburg.  A lot of people in my State said:  Why?  I voted for so-called other liberal judges I philosophically had problems with, but in the case of Justice Ginsburg, I thought she was qualified by character, education, experience, and by her temperament.  I am sure I don't agree with an awful lot of the decisions she has made on the Supreme Court, but she is qualified. 

There is one other thing.  It is called elections.  When we elect a President, we should know what is going to be their position on appointing people to the Federal judiciary.  This President, George W. Bush, made it clear  he was going to be looking for strict constructionists, men and women of good character who would not write the laws but would interpret the laws.  He talked about it.  Nobody in America should be surprised that he would nominate a candidate such as Judge Alito. 

He certainly is experienced.  He is a strict constructionist.  He is qualified.                                 

Some people are offended that the President would suggest what appears to be a conservative for the Supreme Court.  Why?  What did they expect?  That is why I voted for Justice Ginsburg and a lot of President Clinton's nominees for the Federal judiciary, because he won the election.  These were his choices.  While I might disagree with him philosophically, I couldn't disagree with him as far as their qualifications.  Even the very active Democratic Governor of Pennsylvania, Mr. Rendell, has talked about elections and their meaning in this process.  This President has selected this nominee and he is entitled to that and, basically, this judge should be confirmed.  That was an interesting comment for a former chairman of the Democratic National Committee.  But he took the right position, and I appreciate the fact that he would do that.

When you look at Judge Alito's background, it becomes clear he is highly qualified.  He is a graduate of Princeton and Yale Law School.  Some people might try to use that against him.  I guess he couldn't get into Vanderbilt or the University of Mississippi, but Princeton and Yale are not bad institutions.

He was a member of Phi Beta Kappa.  He was an editor of the Yale Law Review.  He clerked for Judge Leonard Garth of the Third Circuit.  He was an assistant U.S. attorney for the District of New Jersey.  He was Assistant to the Solicitor General of the United States beginning in 1981 where he argued 12 cases before the Supreme Court on behalf of the Federal Government.  After serving as Deputy Assistant Attorney General in the Office of Legal Counsel, he was nominated for U.S. attorney for the District of New Jersey.  He was unanimously confirmed by the Senate.  Then, of course, he was nominated by President George H.W. Bush in 1990 to the Third Circuit Court of Appeals. 

So, he has good character.  I think most people would agree to that.  He is clearly well educated.  It is hard to disagree with that.  He clearly is brilliant.  You know, maybe sometimes he is too smart for a lot of us.  He knows the law, and he can talk about cases by name without reference to notes.  He clerked and has worked as a Federal judge in the Third Circuit.  He was on the prosecution side as assistant U.S. attorney and as U.S. attorney.  So these are all good qualifications.

Then he went on the Third Circuit, a very important and active circuit, where he has served 15 years.  He cast approximately 5,000 votes, and he participated in the decisions of more than 1,500 Federal appeals and has written more than 350 opinions -- a lot of work and a lot of good work.

If there was a problem with this judge and his opinions, do you really think the Judiciary Committee could not have found some cases or more phrases when he participated in all of these votes and wrote 350 opinions?  I have been very impressed by the willingness of his colleagues, but not just from New Jersey, not just those who served with him in previous administrations, but six current and former Federal judges with all kinds of backgrounds and philosophies -- people who admit, I am a Democrat, a liberal, but I know this man, his demeanor, how he handles himself when we were in conference -- where judges come out with these mystical decisions they develop in those quarters.  That is where you see the real man.  When you have people who have spoken up and made it clear about the quality of this nominee, I think that is very important.

The "holy grail," the American Bar Association, has rated him well qualified.  There again, a lot of people used to say that is the most important thing of all.  Well, he got their top rating. 

Surely, that would affect us. Regardless of ideological, philosophy, or positioning, the people who know him best have spoken up very aggressively in his support.  That is very convincing to me. 

I thought during the hearings he handled himself quite well.  He answered over 600 -- maybe 700 questions, when he was given a chance.  The statements and questions were a lot longer than the answers were allowed to be.  I thought his responses were good and studied.  He met the so-called Ginsburg standard.  He would not say how he might rule on a particular case.  How can you do that?  You have to know the facts and you have to look at precedents and you have to go through all these hoops that lawyers enjoy wrestling with and judges have to comply with.  I watched it.  My wife thought I was strange for sitting there watching these committee hearings, but I felt it was part of my responsibility.  I wanted to see what the Senators asked him and how he responded.  I thought he handled himself well on his answers and how he responded on substance. 

I was upset, quite frankly, when it turned from substance to what got close to character assassination, smear.  It really got personal and ugly.  I was embarrassed about that.  I was ashamed, quite frankly.  I realize that sometimes our spouses have to put up with a lot for those of us who are in government and politics and on the judiciary.  But I thought it was a defining moment when the judge's wife was driven to tears. 

I have appreciation for the fact that one of the Senators was saying, We are sorry that you had to put up with this.  We know you are a man of character and integrity.  I don't think it needs to go that far. 

Do we get carried away around here sometimes on both sides of the aisle?  Sure.  It is a tough, political, and partisan political place.  But how much is enough?  How low will we sink?  Every year I have been in the Senate we have drifted further and further down in how we deal with these Federal judicial appointments.  Hopefully, we will finally reach the bottom and we will go back up. 

There is no good reason to vote against this good man to be on the Supreme Court, even if you might disagree with him on some of his decisions.  But he will be careful and studied and he will pay attention to the precedents -- more so than I probably would like him to.  But it is time to begin to try to go back and approach these nominations differently.  Again, I am not absolving any of us for having misbehaved sometimes in the way we handle these issues. 

The American people are watching, and they have to feel for this man.  They were unhappy with what they saw from a lot of Senators on the Judiciary Committee.  They felt that he went through more than he should have, in terms of personal attacks.  They would like for us not to go quite so far. 

I was encouraged, frankly, when we had the vote on Judge Roberts, to be the Chief Justice.  I was pleased that it was as bipartisan as it was, and he received 78 votes.  But now I see that slipping away in this case. 

Some say:  Wait a minute, this is extraordinarily important because this may tip the balance, and that Justice Sandra Day O'Connor became somewhat of a swing vote and probably would be interpreted by some people as being a moderate in some respect. 

Well, it may tip the balance.  From my standpoint, I sure hope so.                                 

But I was not paying any attention to balance when I voted for Justice Ginsburg.  I was voting on the merits of that particular individual. 

I don't think it is fair to Judge Alito to oppose him because he is conservative and may tilt the balance of the Supreme Court.  These things swing back and forth.  The pendulum has been way over there in the Supreme Court for a long time and, finally, it has become more moderate.  Maybe it will become more conservative. 

I think I have told the story in the Senate before about how I was talking to a personal friend, now a Federal judge.  He was inquiring in bemusement, and incredulously:  Why is it that the Federal judiciary is held in such low regard?  I could not believe he even asked. 

I said:  Your Honor, it is because of the dumb decisions that you all quite often make. 

The people are outraged with decisions such as the Kelo v. City of New London case, dealing with eminent domain. 

Time and time again, people see what is happening in Supreme Court rulings.  They get in here when they should not and don't get in there when they should.  In many instances, they interpret the law wrongly or start to try to make laws.  And it is not just the Supreme Court.  I think over the years -- recently, at least -- if you look at the Supreme Court, they have been pretty good.  But the eminent domain decision just absolutely floored me.  We have to correct that mistake.  When you get down to the rest of the Federal judiciary, they are into all kinds of stuff all the time -- social engineering, intervention when they have no business intervening, and they have lost a lot of respect from the American people. 

That said, I want the Federal judiciary and the Congress and the President to be respected for the special institutions they are.  So this is an important decision. 

I am pleased the President nominated Judge Alito.  I think that his experience over these years has clearly qualified him for it.  He has 30 years of experience, and he went though 18 hours of questioning.  He is a good man with a great background, with an American dream story, a first generation American from another country.  He is everything I thought we should be looking for.  So I am pleased and honored to be able to come and speak on behalf of his nomination and urge his confirmation, and I will vote for him.

In conclusion, let me say again that there are some who say we may still have a filibuster.  We should not do that.  We cannot do that.  That is not fair to the process, not fair to this nominee, not fair to the President.  I hope our colleagues will not impose a filibuster here and force action by the Senate to stop that sort of thing from happening. 

I also want to say again that I think we have sort of lost our grip on how we treat these nominees.  We need to find a way to pull back. 

It has gotten too ugly, too personal, and I think it undermines the credibility of the judiciary and those of us who sit in judgment on these men and women.  I repeat again that we have all been a party to this, including me -- I don't deny it -- over the years. 

But at some point there comes a time when you say to each other, regardless of philosophy or region or party, let's see if we cannot do a better job, with more dignity and decorum, and that is more focused on the qualifications and character of the men and women and not on politics, partisanship, or ideology.  I would like to be a part of making that happen. 

Every now and then, I have colleagues say:  What can we do about the atmosphere?  Well, it begins with us.  It begins with making up our minds that we are going to be more communicative and we are not going to be quite so partisan.  I have been as partisan as anybody around here.  I served in the House, and it tends to make you a partisan warrior when you have been in the minority.  Some people say maybe you get to be kind of arrogant and mean when you get to be in the majority.  We can make a difference.  I hope we find a way to do it, and do it soon. 

I yield the floor.” 

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