Brownback: 'Seats on Bench Aren't Reserved for Causes or Interests'

The following is Sen. Sam Brownback’s (R.-Kan.) opening statement at the confirmation hearings for Supreme Court nominee Samuel Alito.

Welcome, Judge Alito, to the Judiciary Committee.  I congratulate you on your long record of public service and on your nomination to serve on our nation’s highest court.
A large part of the reason why confirmation hearings have become contentious battles is the ever-expanding role of the courts in American life in recent years.  When the courts improperly, I believe, assume the power to decide issues more political than legal in nature, the People naturally focus less on the law and more on the lawyers who are chosen to administer it.  Most Americans want judges who will stick to interpreting the law, rather than making it.  It is beyond dispute that the Constitution and its Framers intended this to be the role of judges.
For instance, although he was perhaps the leading advocate for expansive federal power, founding father Alexander Hamilton nevertheless assured, assuring, his countrymen in Federalist #78 that the role of federal courts under the proposed Constitution would be limited: “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.”  
Seems like we’re back to an old debate; the role of the Courts. I believe you and others would realize that the role of the courts is limited.   
As Chief Justice Marshall later explained in Marbury v. Madison, the Constitution permitted Federal courts neither to write nor execute the laws, but rather to “say what the law is.”  The narrow scope of judicial power was the reason the people accepted the idea that the Federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.  The people believed that while the courts would be independent, they would defer to the political branches on policy choices.
This is the most fundamental of issues.  And yet we’re back to discussing it because of the expanding role of the judiciary.   
It may seem ironic, but the judicial branch preserves its legitimacy through refraining from action on political questions.  This concept was put forth best by Justice Felix Frankfurter, appointed by President Franklin Delano Roosevelt.  He said this:  
“Courts are not representative bodies.  They are not designed to be a good reflex of a democratic society.  Their judgment is best informed, and therefore most dependable, within narrow limits.”  
Now, I want to take on this point of reserving certain seats on the Court for certain philosophies.  It seems as if we’ve heard a great deal today that you must be like Sandra Day O’Connor to go on her seat on the bench.  
Some interest groups and even some members of this Committee have argued that Judge Alito must be more closely scrutinized, or even opposed, if his testimony suggests that he would change the ideological balance on the Supreme Court.  This notion misunderstands the role of judges, and creates a double standard for your approval suspiciously convenient to those in opposition.  
Seats on the bench are not reserved for causes or interests – they are given to those who will uphold the rule of law, so long as a nominee is well-qualified to interpret and apply the law.
This has long been the case with the Supreme Court.  I want to note historically, its makeup has changed, just as the elected branches have changed.  In fact, nearly half of the Justices – 46 of 109 – who have served on the Supreme Court replaced Justices appointed by a different political party.  In recent years, even as the Court has become an increasingly political body, the Senate has not focused on preserving any perceived ideological balance when Democratic presidents made appointments to the Court.  
The best of examples of the Senate rejecting any notion of balance occurred when we confirmed the former General Counsel for the ACLU, Justice Ruth Bader Ginsburg, 96-3 to the Supreme Court, to replace conservative Justice Byron White in 1993.  It was abundantly clear during the confirmation hearing that Ginsburg would swing the balance of the Court to the left.  But because President Clinton won the election, and because Justice Ginsburg clearly had the intellectual ability and integrity to serve on the Court, she was confirmed.  During her hearing, hardly any mention was made about balance with Justice White; the only discussion of it occurred when Senator Kohl asked the nominee what she thought of Justice White’s career, and she started off by stating that she was not an athlete.
History has shown that she did in fact dramatically change the balance of the Court in many critical areas such as abortion, the right to privacy debate and homosexual rights, and child pornography.  
The issue of the swing in the balance of the Court from Justice White to Justice Ginsberg wasn’t even raised at Justice Ginsberg’s confirmation hearing.  Yet now it seems to be the paramount issue for you today.  In fact, it actually makes you have to go to a higher standard to be approved.  And that simply is not the way we operated in the past, nor is it how we should operate now.  
As I stated at the hearing for now-Chief Justice Roberts, courts today have injected themselves into many political debates.  Federal courts now are redefining the meaning of marriage, deciding when a human life is worthy of protection, permitting the Government to transfer private property from one person to another under the Takings Clause, and then interpreting our Constitution on the basis of foreign and international law.
The Supreme Court has also issued – and never reversed – numerous decisions repugnant to the Constitution’s vision of human dignity and equality.  Although cases like Brown v. Board of Education in my home state are famous for correcting constitutional errors, there remain several other instances in which the Court strayed, and stayed, beyond the Constitution and laws of the United States.
Among the Supreme Court’s most famous exercises of political power are the cases of Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a constitutional right to abortion.  Whether you say you’re pro-life or pro-choice, there is no constitutionally guaranteed right to an abortion.  The courts created this right.   These decisions removed a fully appropriate political judgment from the people of the several states, and has led to the almost complete killing of whole classes of people in America.  Between 80%-90% of the children in America diagnosed with Down Syndrome this year will be killed in the womb . . . simply because they have a positive genetic test, which can be wrong, for Down Syndrome.  America is poorer because of such a policy.  We are at our best when we help the weakest.  The weak make us strong.  To kill them makes us all the poorer, insensitive, callous, and jaded.  Roe has made it not only possible but constitutional to kill a whole class of people simply because of their genetic makeup.  This is the effect of Roe.  
I think this is a proper issue for use to debate.  
According to one widely-praised Justice Sandra Day O’Connor, the Supreme Court’s abortion decisions “have . . . worked a major distortion in the Court’s constitutional jurisprudence. . . . That the Court’s unworkable scheme for constitutionalizing . . . abortion has had this institutionally debilitating effect should not be surprising . . . since the Court is not suited to the expansive role it has claimed for itself in the series of cases that began with Roe v. Wade.”  
Aside from Roe and Doe, there are other decisions in which the Court has ignored its role in interpreting the law and has disregarded human dignity.  In a 1927 case called Buck v. Bell, for instance, the Supreme Court held that the state of Virginia could sterilize women who were mentally retarded, or what they called at the time “feeble-minded.”  In an opinion by Justice Oliver Wendell Holmes, the Court held that the sterilization program was consistent with the Fourteenth Amendment’s guarantees of due process and equal protection.  
I think it is unfortunate that we are only discussing these few issues today.  But that is the nature of it – these are the hot political issues of the day.  
You are undoubtedly qualified. According to the ABA you are unanimously well qualified.  I look forward to an excellent discussion with you on the meaning of the Constitution and the role of the courts in American life.  I look forward to a hopeful approval of you to the Supreme Court of the United States.


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