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STATEMENT OF SENATOR TOM HARKIN IN OPPOSITION TO THE NOMINATION OF JUDGE SAMUEL ALITO TO THE U.S. SUPREME COURT

1/19/2006

“In the upcoming weeks, the Senate will vote on the nomination of Samuel Alito to replace Justice O’Connor on the United States Supreme Court.

“Of all the issues that we consider in the Senate, perhaps no issue raises such deep and fundamental questions as the nomination of a Supreme Court Justice. The issues that come before the Supreme Court are not abstract legal concepts. Rather, they involve the very values that define who we are as a nation. They ask us to think about what kind of society we want to be. I believe strongly that we want to be a society that strives for justice, that protects that powerless, that provides meaningful protections to workers, and that allows those who have suffered discrimination to seek recourse and affirm their rights in federal court. I believe that a nominee to the Supreme Court needs more than sterling legal qualifications. He or she must possess a true passion for justice, and an understanding that the law cannot be viewed with cool, legal dispassion, but with the acknowledgement of its role in molding a fairer and more just society. And he or she must understand and believe in the critical role that federal courts play in protecting the civil rights of all Americans, including the 54 million Americans who live every day with a disability. A thorough review of Judge Alito’s record and of the Senate Judiciary Committee hearing has convinced me that he falls far short of that measure. I intend to oppose this nomination.

“As all of you know, I was the lead sponsor of the Americans with Disabilities Act, which Congress passed in response unfair discrimination and prejudice against people with disabilities. I championed the ADA because I had seen discrimination against the disabled first hand growing up with my brother Frank, who was deaf. Yet despite Frank’s experiences—and similar documented experiences of millions of Americans with disabilities—the Court has repeatedly questioned whether Congress had the authority to pass the ADA. These challenges leave the future of the ADA—and the basic rights that many Iowans take for granted– in question. To put a fine point on it: the ADA is at the mercy of the Supreme Court.

“Many of the most recent decisions related to the ADA have been decided by the narrowest of margins. So a future Justice Alito will have significant impact on how future cases are decided. Determining one’s future actions is a little like looking into a crystal ball, so I must rely on his past record to determine how he will handle these critical issues in the future.

“Based on his record, I am gravely concerned that Judge Alito does not believe the Congress has the authority to protect the fundamental rights of all Americans. Take for example, a 2000 case where he ruled that Congress lacked the authority to pass the Family and Medical Leave Act, a law that allows Americans and working Iowans to take unpaid leave from work to care for a newborn child or tend to a family illness. Based on this decision, I am concerned about how he would rule on cases regarding Congressional authority to pass the ADA.

“Judge Alito consistently favors the rights of states over the rights of people. One such example of this philosophy is evident in a 1995 case. The 3rd Circuit ruled that people with disabilities should be allowed to live in the community—and not warehoused in institutions– whenever possible. Judge Alito argued that the 3rd Circuit should reconsider that decision.

“These cases provide a clear window into Judge Alito’s judicial philosophy. He has an extremely restrictive view of Congress’s power to enact laws to protect workers, to protect public safety, and to protect victims of discrimination. If Judge Alito is confirmed, many of the core protections provided to people with disabilities under the ADA and other laws could simply disappear. Consider some recent narrowly-decided Supreme Court decisions.

“In 1999, a 6-3 Supreme Court majority held that institutionalizing people with disabilities was a form of discrimination. O’Connor sided with the disability community. But times have changed. Justice Roberts has replaced Justice Rehnquist. And Judge Alito seeks to replace Justice O’Connor. Given Judge Alito’s history on a similar case, the votes might have been different. And years of progress toward equal rights, might have been erased.

“Similarly in 2004, a 5-4 decision established that state courthouses were subject to the ADA. Justice O’Connor voted with majority to ensure that courthouses are accessible to people with disabilities. If “Justice Alito” had been on the bench instead of Justice O’Connor, would the decision have been the same? Given his record on Congressional authority, it would be foolish to think it would.

“The new Supreme Court Justice will have a tremendous impact on our society. The decisions before the Court will determine whether we are true to our fundamental national values of fairness and justice for all. Given Judge Alito’s history, record and testimony, I do not feel confident that those future decisions will take us in the right direction.”