Durbin's opening statement on Alito

The opening statement of Sen. Dick Durbin, D-Ill., as prepared for delivery at the Supreme Court confirmation hearing for Samuel Alito.

Thank you very much, Mr. Chairman.

Judge Alito, welcome to you and your family before the Judiciary Committee.

You've heard time and again from my colleagues why this seat on the Supreme Court means so much. They've quoted the statistics of 193 5-4 decisions where Sandra Day O'Connor was the deciding vote in 148 of those instances. She was a critical vote in issues of civil rights, human rights, worker principle, which bears repeating, of separation of church and state. There was real wisdom in the decision of our forefathers in writing a Constitution that gave us an opportunity to grow as such a diverse nation, and we should never forget it.

Justice O'Connor has been the critical decisive vote on many issues that go to the heart of who we are as a nation. We believe -- many of us -- that the decision on filling this vacancy is going to tip the scales of justice on the Supreme Court one way or the other. And that's why we are so mindful of the importance of our task.

Yesterday, the Chicago Tribune editorialized that anyone who questions your nomination has a heavy burden of proof. I disagree. I believe the burden of proof is yours, Judge Alito, the burden of demonstrating to the American people and this committee that you or any nominee is worthy to serve on the highest court to succeed Sandra Day O'Connor.

My friend, Illinois Senator Paul Simon, once said on the same committee that the test for a Supreme Court nominee is not where he stands on any one specific issue. The test is this: Will you use your power on the court to restrict freedom or expand it?

In the simplest terms, I think Paul Simon got it right. That is the best test because the Supreme Court is the last refuge in America for our rights and liberties. In my lifetime, it's the Supreme Court, not Congress, that integrated our public schools, that allowed people of different races to marry, and established the principle that our government should respect the value of privacy of American families. These decisions are the legacy of justices who chose to expand American freedom.

If you're confirmed, Judge Alito, will you continue their legacy?

You and I spoke about the Griswold decision in my office. Hard to imagine 40 years ago people could be convicted of a crime, fined, sent to prison for using the most common forms of birth control. The Supreme Court looked at that decision and looked at that case and said, "That's just wrong." We may not find the word "privacy" in the Constitution. That's just inherent to our freedom as Americans.

It seems like a given now. Who would even question it? But it hasn't been that long ago that up here on Capitol Hill we were involved in a bitter debate over the tragedy of Terri Schiavo. And Republican congressional leaders threatened federal judges with impeachment if they didn't agree to intervene into that family's painful, personal decision.

We see it in attempts on Capitol Hill to impose gag rules on rules on doctors on what they can say to their patients about family planning. And we certainly see it now with an effort by this government to tap our phones; invade our medical records, credit information, library records and the most sensitive personal information in the name of national security.

Now, Justice O'Connor was the critical fifth vote to protect our right of privacy. We want to know whether you will be that vote as well. You were the only judge on your court to authorize a very intrusive search of the 10-year-old girl. You were the only judge on your court who voted to diminish the right of privacy in the case the Planned Parenthood v. Casey, a position that was specifically rejected by the Supreme Court.

And as a government lawyer, you wrote that you personally believe very strongly the Constitution does not protect the right to an abortion.

Like many, I have thought about this issue of abortion time and again. It is not an easy issue for most people. I thought about the law, the impact of my personal religious beliefs and feelings, I thought about the real lives of people and the tragic experiences of the women I have met.

And I came to believe over the years that a woman should be able to make this agonizing decision with her doctor and her family and her conscience, and that we should be very careful that we don't make that decision a crime except in the most extreme circumstances.

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