Last week, while his nomination was being considered by the full U.S. Senate, I was proud to go to the floor to affirm my support for Judge Samuel Alito to serve as an Associate Justice of the U.S. Supreme Court.
Judge Alito’s confirmation process has brought to mind a story we tell about an old Tennessee judge:
Lawyers showed up one morning in a rural courthouse, all prepared for a 3-day or 4-day trial. They had their litigants, witnesses and books, and they had done their research. The judge came in, sat down behind the bench, and said, “Fellas, we can save a lot of time. I had a phone call last night, and I pretty well know the facts of the case. Just give me a little bit on the law.” The lawyers were pretty disappointed because it was obvious to them that the judge had already pretty well made up his mind about the case. That is not what they expected. They thought they were coming before a judge who was impartial, and that they wouldn't know whose side the judge was on.
When Judge Alito is sworn in, he will take two oaths. The first is the same constitutional oath that U.S. senators take. The second is the judicial oath, which provides a good job description of a Justice on the U.S. Supreme Court:
“I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as Associate Justice of the Supreme Court under the Constitution and laws of the United States. So help me God.”
Judge Alito's statements before the Judiciary Committee suggest to me that he understands very well his duty of impartiality under these oaths. He said he will uphold the Constitution. These are his words: “The Court should make its decision based on the Constitution and the law. It should not sway in the wind of public opinion at any time.”
Judge Alito has said that the Constitution applies to everyone, stating that: “No person in this country is above the law. That includes the president and it includes the Supreme Court.”
He has said he won't allow his personal views to compromise his impartiality, and that he “would approach the question with an open mind, and listen to the arguments that were made.”
As governor of Tennessee, I appointed 50 judges. I never asked a single one whose side they were on. I appointed Democrats and Republicans. I appointed Tennessee’s first African American chancellor, the first African American state Supreme Court justice, and the first women to be circuit court judges. I didn't ask them where they stood on issues. I tried to find out about their character, about their intelligence, about how they would treat people before them, about their respect for law and about their understanding of our country. I have been proud of those 50 appointees.
I am disappointed that some of my colleagues on the other side of the aisle have asked, “Whose side is he on? Is he on the side of the rich or the poor, of the big or of the little?” Judge Alito must take an oath of office that says he will not be on anybody's side and that when the lawyers come before him to argue a case, they won't know where he is going to come down – except that he is going to come down according to his oath, according to the law. For us to know whose side he is on would violate his oath. He can't tell us that, and the American people know that.
When I ran for the U.S. Senate in 2002, the people of Tennessee told me that they wanted to confirm President Bush's judicial nominees, people who would interpret the law and not make it up as they go along. The people of Tennessee don't want a judge who takes sides before a case is argued.
I proudly support the confirmation of Judge Alito. His resume reads like a resume any of us who were once in law school dreamed we could have: a degree from Yale, work as an Assistant U.S. Attorney, as Assistant to the Solicitor General, as a U.S. Attorney, nearly 16 years of service on the Third Circuit Court of Appeals, and a unanimous “well qualified” rating from the American Bar Association, the highest possible rating. He has based his opinions and dissents on sound legal arguments. He appears to be unswayed by the particular details of the case that are irrelevant to the legal issues at stake. He seems to understand that he is not to be on anybody's side, and that he is supposed to enforce the law impartially and respect the Constitution.
In short, Samuel Alito has demonstrated judicial temperament suitable for a nominee. I believe he will serve with distinction as an Associate Justice of the U.S. Supreme Court.