Senate Floor Statement Support of the Nomination of Judge Samuel Alito

by John Warner

Mr. President - I rise today with respect to the nomination of Judge Samuel Alito to serve as an Associate Justice on the United States Supreme Court.

Article II, Section 2 of the United States Constitution explicitly provides the responsibilities of the Executive Branch of government and the Senate with respect to judicial nominations. Article II, Section 2 of the Constitution reads, in part, that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the Supreme Court and all other Officers of the United States . . . ."

Thus, the Constitution provides the President of the United States with the responsibility of nominating individuals to serve on our federal bench. The Constitution provides the Senate with the responsibility of providing advice to the President on those nominations and with the responsibility of providing or withholding consent on those nominations.

In this respect, Article II, Section 2 of our Constitution places our federal judiciary in a unique posture with respect to the other two co-equal branches of our federal government. Unlike the Executive branch and unlike the Congress, the Constitution places the composition and continuity of our federal judiciary entirely within the coordinated exercise of responsibilities of the other two branches of government. Only if the President and the Senate fairly, objectively and in a timely fashion exercise these respective constitutional powers, can the Judicial branch of government be composed and maintained so that our courts can function and serve the American people.

For this reason, in my view, a Senator has no higher duty than his or her constitutional responsibilities under Article II, Section 2 - the advice and consent clause.

With respect to the Senate’s advice responsibilities under Article II, Section 2, I believe our Founding Fathers’ explicitly used the word “advice” in our Constitution for a reason: to ensure consultation between a President and the Senate prior to the forwarding of a nominee to the Senate for consideration. Adequate consultation prior to the forwarding of a nominee is of utmost importance. But, let’s not forget that while the Constitution calls for the Senate to provide advice to a President on whom he should nominate, the decision of who to nominate solely rests with the President.

Alexander Hamilton made this point crystal clear in Federalist Paper #66 when he wrote:

“It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE – they can only ratify or reject the choice of the President.”

With respect to the issue of consent, I believe it is imperative that when a Senator considers whether to grant or withhold consent, he or she should recognize Article II, Section 2 and Alexander Hamilton’s statement in Federalist #66. Accordingly, during the course of my twenty-eight years in the United States Senate, I have always tried to fairly and objectively review a judicial nominee’s credentials prior to deciding whether I will vote to provide consent on a nomination. I look at a wide range of factors, primarily: character, professional career, experience, integrity, and temperament for lifetime service on our courts. While I certainly recognize political considerations, it is my practice not to be bound by them.

These same fair and objective factors that I have used during my twenty-eight years in the United States Senate have guided my consideration of Judge Alito’s nomination.

When Judge Alito’s nomination was first announced, I wasn’t overly familiar with the nominee. But over the past few months, I have reviewed his record thoroughly. I met with the nominee twice - the first time prior to his confirmation hearings before the Senate Judiciary Committee and the second time, after the hearings. Each time, I asked him a number of in-depth questions. I have also reviewed a number of his judicial opinions and followed the confirmation hearings before the Judiciary Committee. In addition, many people have written, emailed, called my office, or spoken to me personally about this nominee, and I have respectfully considered their views.

Having now completed my review of Judge Alito’s nomination, I can say, without equivocation, that of the numerous judicial nominees I have reviewed during my nearly three decades in the United States Senate, Judge Alito’s credentials and qualifications place him as very well qualified.

Judge Alito has an impressive record of legal accomplishments.

He received his bachelor’s degree from Princeton University and attended Yale Law School. While at Yale, he served as an editor on the Yale Law Journal. Following graduation from law school, he worked as a law clerk for a federal circuit court judge - Judge Leonard Garth of the United States Court of Appeals for the Third Circuit.

Subsequent to his clerkship, Samuel Alito worked as an Assistant United States Attorney, as an Assistant to the Solicitor General of the United States, and in the Office of Legal Counsel in the U.S. Department of Justice. In 1987, Mr. Alito was unanimously confirmed by the Senate to serve as the U.S. Attorney for the District of New Jersey. Three years later he was nominated and unanimously confirmed by voice vote to serve as a judge on the United States Court of Appeals for the Third Circuit, and he has served on this court for the last fifteen years.

Without a doubt, Judge Alito has the requisite legal and professional experience to serve on the Supreme Court. Indeed, the American Bar Association, whose rating system of federal judges is often referred to as the gold-standard in the Senate, recently awarded Judge Alito a rating of “well qualified” - its highest rating.

But in addition to his impressive record of legal accomplishments, Judge Alito has also demonstrated - during his confirmation hearings and over the past 15 years on the federal bench - a deep respect for legal precedent and for the Constitutional responsibility of the legislative branch to write our laws. These qualities of Judge Alito were confirmed by the remarkable testimony before the Judiciary Committee of several current and retired federal judges, appointed by both Republican and Democratic Presidents, who worked closely with Judge Alito on the federal bench.

In my view, Judge Alito’s strong record and experience, coupled with his appearance before the Judiciary Committee, eliminate any question of the existence of ‘extraordinary circumstances’ that would justify denying him an up or down vote.

Judge Alito is an outstanding judicial nominee who I am proud to support for confirmation. I believe he will serve on the United States Supreme Court with distinction, and I commend our President on making such a fine nomination.

I yield the floor.

END