Sen. Ted Kennedy on Alito, Failed Filibuster

Judge Samuel Alito moves one step closer to the Supreme Court after a failed filibuster opens the way for his confirmation to move forward. Ed Gordon speaks with Sen. Ted Kennedy (D-MA), who acknowledges the filibuster was a longshot.

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ED GORDON, host:

Today, the full Senate gives Supreme Court nominee Samuel Alito an up or down vote. He is expected to be confirmed easily and will replace retiring Justice Sandra Day O'Connor. Alito's bid has met with stiff resistance from Democrats, and at least one Republican. This weekend President Bush used his weekly radio address to rally support for Alito's nomination.

President GEORGE W. BUSH: The Senate has a Constitutional responsibility to hold an up or down vote on Judge Alito's nomination. Throughout its 216-year history the Senate has held an up or down vote on every Supreme Court nominee with majority Senate support. Judge Alito has demonstrated that he is eminently qualified to serve on our nation's highest court, and America is fortunate to have a man of his integrity and intellect willing to serve.

GORDON: Alito's nomination sputtered in recent days after Massachusetts Senators Edward Kennedy and John Kerry tried to filibuster. But late Monday, the Republicans gathered 72 votes, far more than the 60 votes necessary to force today's up or down vote. I spoke briefly with Senator Kennedy yesterday before the failed filibuster attempt. He acknowledged that the filibuster was a long shot, but believes the choice to send the new justice to the high court is just too important not to debate.

Senator EDWARD KENNEDY (Democrat, Massachusetts): Outside of sending American men and women into combat, there's no decision that we make that is more important than the Supreme Court. And we don't get a second bite of the apple. The prescription drug bill now is a disaster for people of Massachusetts. We may have a good opportunity to change it and alter it, but we only get one vote for our Supreme Court. We better get this right. This is a vote of a generation.

It's a vote of conscience. We have made extraordinary progress in what I call the march to progress and knocking down walls of discrimination and prejudice against African Americans, against women, against the disabled. And we have to ask ourselves, is this nominee in that tradition? Or are we going to have to re-fight those battles?

I think there's too much sweat, too many tears, too many lives have been lost to go on back and re-fight those battles. I don't think the American people want to. And we have a right to expect that a nominee is going to indicate to the American people about where they stand. Are they for the march towards progress or are they going to be a stumbling block? And you cannot have the reading of this nominee's dissents, that realize that he will be a stumbling block.

That's just not Democrats, that's just not me, that's the Knight Ridder newspapers, it's Cass Sunstein, the distinguished Constitutional attorney, it's the Yale study group, it's even the Washington Post. If you care about minority rights...

GORDON: What of those who have suggested that this is highly symbolic, and quite frankly, the Democrats have probably waited too late wage this battle?

Senator KENNEDY: The Democrats are, I think, overwhelmingly united in opposition to Alito. There is a difference in terms of strategy. I personally believe that we ought to resist every opportunity that we have. As others say, well, let's just vote in opposition to him. So there's no real differences among Democrats in opposition to Alito. There is an issue in strategy about whether we ought to battle against Alito every step along the way.

That's my view. I think it's matter of principle, it's a matter of commitment, it's a matter of belief that these are core values for our country and our people, and that Judge Alito is on the wrong side.

I can give you the most moving case was the Riley v. Taylor. This was about a black man being charged with killing a white man, and the jury was made up of all whites, and Alito ignored overwhelming evidence that the prosecutor had struck blacks from the jury based on race. He said it was fine to have an all white jury. Fortunately, his colleagues disagreed and gave the man a new trial. That is just one of the cases that is enormously troublesome to me.

If we were able to get additional time, I think more and more of our colleagues would get deeper and deeper into the real holdings of this nominee. They understand, for example, the story that's on the front page of the New York Times that says, Paving the Way for Alito Began Years Ago, and it talks about how a very small group of right wingers and public relations group promoted this nomination and this candidate, and it's telling them, do not cheer now until the final vote comes in because we know we are having a victory that we never thought we probably could.

I think the American people want, are entitled, to know what this person stands, where he stands, and what he stands up for before we have final passage. If we were able to do that, I believe we would have a different situation.

GORDON: Do you believe this is going to build a further rift in the Democratic Party as you suggested? There are those who believe that this is a waste of time and you should look to other measures?

Senator KENNEDY: Well, I don't think it's ever a waste of time when you're battling on principle and you're battling on something that you believe in. I don't think that's ever a waste of time. I've battled, you know, for national health insurance for 33 years, and I'm not going to stop, and I'm not going to quit.

I've battled for an increase in the minimum wage for the last nine years and been unable to do it, and I'm not going to quit, and I'm going to battle against Supreme Court nominees that aren't fully committed to making sure that we're fair and more just, to make sure that every person is going to realize the words equal justice under law. And that is a test I don't think this nominee fulfills, and I'm going to do everything I can to see that he doesn't get on it.

GORDON: All right, Senator Kennedy, always good to have you with us.

Senator KENNEDY: Good Ed. Thank you.

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