John Kerry Calls for Filibuster of Alito
    CNN

    Thursday 26 January 2006

Kerry is trying to gather support for a filibuster of Alito's nomination.

    Washington - Sen. John Kerry will attempt a filibuster to block the nomination of Judge Samuel Alito to the Supreme Court, CNN has learned.

    Kerry, in Davos, Switzerland, to attend the World Economic Forum, was marshaling support in phone calls during the day, he told CNN.

    Kerry said he told a group of Democratic senators Wednesday, and urged that they join him. Kerry said he has the support of fellow Massachusetts Sen. Edward Kennedy.

    Some senior Democrats told CNN they are worried that the move could backfire.

    Republicans would need 60 votes to overturn a filibuster - a procedural move that extends Senate debate indefinitely, effectively blocking a vote. Senior White House officials said the move would make the Democrats look bad, and that Republicans believe they have enough votes to overcome any filibuster attempt.

    Majority Leader Bill Frist, a Tennessee Republican, scheduled a vote to end debate on the nomination - called a cloture vote - Monday at 4:30 p.m. If that vote is successful, the final vote would be Tuesday morning.

    Nearly all 55 Republican senators have said they will vote for Alito. Only three Democrats - Sen. Ben Nelson of Nebraska, Sen. Robert Byrd of West Virginia and Sen. Tim Johnson of South Dakota - have said they will vote for the nominee.

    Earlier Thursday, Democratic Sen. Mary Landrieu of Louisiana said she would oppose a filibuster.

    "Because we have such a full plate of pressing issues before Congress, a filibuster at this time would be, in my view, very counterproductive," said Landrieu, who is pushing the Senate to focus on the rebuilding of the Gulf Coast in the wake of Hurricanes Katrina and Rita.

    Party Line Vote

    On Tuesday, the Senate Judiciary Committee voted along party lines to send Alito's nomination to the full Senate.

    In supporting Alito, the 10 committee Republicans praised his qualifications and long judicial career.

    Democrats have been mostly united in opposition to Alito. The panel's eight Democrats opposed him, saying he would be too deferential to presidential authority and would restrict abortion rights.

    Republicans and the White House are pushing to have that vote before President Bush gives his State of the Union speech January 31, Senate sources have said.

    In the floor debate of Alito's nomination, Democrats have been highly critical of the nomination, saying he would threaten civil liberties and fail to act as a check on executive power.

    "If an originalist analysis was applied to the Fourteenth Amendment, women would not be provided equal protection under the Constitution, interracial marriages could be outlawed, schools could still be segregated and the principle of one man, one vote would not govern the way we elect our representatives," said Sen. Dianne Feinstein, a California Democrat.

    Sen. Patrick Leahy of Vermont, the Judiciary Committee's ranking Democrat, had supported Chief Justice John Roberts' nomination last fall.

    But this time, he said, "I am concerned that if we confirm this nominee it will further erode the checks and balances" between the branches of government.

    Excerpts from Kerry's Statement Opposing Judge Alito:

    President Bush had the opportunity to nominate someone who would unite the country in a time of extreme divisiveness. He chose not to do this, and that is his right. But that he didn't and how this nomination happened tells us a great deal about this presidency and how politics is driving this process.

    Under fire from his conservative base for nominating Harriet Miers - a woman whose judicial philosophy they mercilessly attacked - President Bush broke to extreme right-wing demands. This was a coup. Miers was removed and Alito was installed. The President did not consult with members of the Senate, as is required by the Constitution. He gave no thought to what the American people really wanted - or needed.

    Instead, he made this nomination about his political base. He made it about an ideological shift in the Court. He made it about unassailable conservative credentials and an unimpeachable conservative judicial philosophy.

    If you need proof, just look at the response of Ann Coulter. Ms. Coulter is as inflammatory and as conservative as anyone in the country. She makes her living through character assassination. She denounced the nomination of John Roberts. She attacked the nomination of Harriet Miers, calling her completely unqualified and lamenting that President Bush had 'thrown away a Supreme Court seat.' Yet she celebrated the nomination of Samuel Alito, stating that Bush gave Democrats 'a right-hook' with this 'stunningly qualified' nominee. This from a woman who said that Republicans need to nominate a person who 'wake[s] up every morning ... chortling about how much his latest opinion will tick off the left.'

    Judge Alito's hostility to individual rights is not limited to civil rights. He consistently excuses government intrusions into personal privacy - regardless of how egregious or excessive they are. In Doe v. Groody, for example, he dissented from an opinion written by then-Judge Michael Chertoff because he believed that the strip search of a 10-year old was 'reasonable.' He also thought the government should not be held accountable for shooting an un-armed boy trying to escape with a stolen purse, nor for forcibly evicting farmers from their land in a civil bankruptcy proceeding without any show of resistance.

    This pattern of deference to government power is reinforced by a speech he gave as a sitting judge to the Federalist Society just five years ago.

    In his speech, Judge Alito 'preach[ed] the gospel' of the Reagan Administration's Justice Department: the theory of a unitary executive. Though in the hearings, Judge Alito attempted to downplay the significance of this theory by saying it did not address the scope of the power of the executive branch but rather addressed the question of who controls the executive branch, don't be fooled. The unitary executive theory has everything to do with the scope of executive power.

    In fact, even Stephen Calabresi, one of the fathers of the theory, has stated that '[t]he practical consequence of this theory is dramatic: it renders unconstitutional independent agencies and counsels.' This means that Congress would lose the power to protect public safety by creating agencies like the Consumer Product Safety Commission - which ensures the safety of products on the marketplace - and the Securities and Exchange Commission - which protects Americans from corporations like Enron - and the President would gain it.

    Carried to its logical end, the theory goes much further than invalidating independent agencies. The Bush Administration has used it to justify both its illegal domestic spying program and its ability to torture detainees. The Administration seems to view this theory as a blank check for executive overreaching.

    Judge Alito's endorsement of the unitary executive theory is not my only cause for concern. In 1986, while working in the Justice Department, Judge Alito endorsed the idea that presidential 'signing statements' could be used to influence judicial interpretation of legislation. His premise was that the President's understanding of legislation was as important as Congress' in determining legislative intent - startling when you consider that Congress is the legislative branch.

    President Bush has taken the practice of issuing signing statements to a new level. Most recently, he used a signing statement to reserve the right to ignore the ban on torture that the Congress overwhelmingly passed. He also used signing statement to attempt to apply the law restricting habeas corpus review of enemy combatants retroactively - despite our understanding in Congress that it would not affect cases pending before the Supreme Court at the time of passage.

    The implications of President Bush's signing statements are astounding: his Administration is reserving the right to ignore those laws it does not like. Only one thing can hold the President accountable: the Supreme Court. I am not convinced that will happen if Judge Alito is confirmed.

    Reigning in excessive government power matters more today than ever before as we work to find the balance between protecting our rights and our safety. As Justice O'Connor said, the war on terror is not a blank slate for government action. We can - and must - fight it in a manner consistent with the Constitution.