[Congressional Record Volume 151, Number 99 (Wednesday, July 20, 2005)]
[Senate]
[Pages S8504-S8510]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JOHN ROBERTS TO THE UNITED STATES SUPREME COURT
Mr. REID. Mr. President, as we all know now, last night the President
announced he will nominate John G. Roberts of the District of Columbia
Court of Appeals to the U.S. Supreme Court. I congratulate Judge
Roberts on this most high honor.
Now the Senate begins the process of deciding whether to confirm
Judge Roberts to a lifetime seat on the Supreme Court. The Supreme
Court is the final guardian of the rights and liberties of all
Americans. Serving on the Court is an awesome responsibility, and the
Constitution gives the Senate the final say in whether a nominee
deserves that trust. We should perform our constitutional role with
great care.
Under the leadership of Chairman Specter and Ranking Member Leahy, I
am convinced the Judiciary Committee is in good hands. Two of our most
respected, experienced lawyers in the Senate are going to operate this
hearing process. They are exemplary of how we should work on a
bipartisan basis. Since they have taken over the responsibilities of
the Judiciary Committee, there has been real congeniality. Members of
the committee seem to be more productive. I am very happy with both
Senator Specter and Senator Leahy.
It goes without saying, as we have heard from the distinguished
majority leader, that John Roberts has a distinguished legal career. It
is very impressive. Both in Government and in private practice, he has
been a zealous and often successful advocate for his clients. As we
have learned, he has argued 39 cases before the Supreme Court. For
those of us who are lawyers, that is what we would say is a big deal.
By all accounts, he is a very nice man. I have not met him. I look
forward to doing that this afternoon.
While these are important qualities, they do not automatically
qualify John Roberts to serve on the highest court in the land. Nor
does the fact that he was confirmed to serve on the Court of Appeals
mean he is entitled to be automatically promoted.
The standard for confirmation to the Supreme Court is very high. A
nominee must demonstrate a commitment to the core American values of
freedom, equality, and fairness. Senators must be convinced that the
nominee, John G. Roberts, will respect constitutional principles and
protect the constitutional rights of all Americans.
So the expectations for Judge Roberts are especially high because he
has such large shoes to fill, and I do not mean that literally--large
judicial shoes.
Justice Sandra Day O'Connor has been a voice of reason and moderation
on the Court for 24 years. She has been the deciding vote in some of
the most important questions in our society: Questions of civil rights,
civil liberties, the right to privacy, and the first amendment freedoms
of speech and religion.
I don't know very much about John Roberts. But one of the things I am
going to look for as a lawyer, as someone who has practiced in the
trial bar and, to a more limited extent, the appellate level--I argued
cases before the
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Nevada Supreme Court and the Ninth Circuit, but I certainly don't hold
myself out to be an expert in appellate law; I consider myself to be an
expert on the trial bar--I believe it is important that we have a
person on the Court who believes in precedent, stare decisis, something
we learned about in law school. I am hopeful that John Roberts will
follow along the same line he took up when he appeared before the
Judiciary Committee last time, indicating that he believed in
precedent. Justice O'Connor, therefore, should be replaced by someone
like her in the constitutional mainstream.
To gather the information it needs to make this decision, the Senate
turns, first and ultimately for our ability to get information, to the
Judiciary Committee. As I have indicated, I have confidence that the
Judiciary Committee will garner information that is important to the
American people and allow us to have a better picture of this man with
his impressive legal resume. Clearly, a judicial nominee should not
comment on pending cases--we all understand that--but there are many
other questions a nominee must answer. I encourage Judge Roberts to be
forthcoming in responding to the committee's questions and providing
written materials requested by the Senate.
In the end, Judge Roberts must demonstrate to the Senate that he is a
worthy successor to Justice O'Connor. To do that, he must win the
confidence of the American people that he will be a reliable defender
of their constitutional rights. Judge Roberts has argued many cases in
his career, but this is his most important by far.
Since Justice O'Connor announced her retirement, I have called on the
President to choose a nominee who can unite the country, not divide it.
It remains to be seen whether John Roberts fits that description. I
hope that he does. I look forward to giving him the opportunity to make
his case to the American people.
I yield the floor.
The PRESIDENT pro tempore. The majority whip is recognized.
Mr. McCONNELL. Mr. President, I rise to address the Senate on the
issue brought to the fore last night by the nomination of John Roberts
to be Associate Justice of the U.S. Supreme Court.
Judge Roberts, as we are all beginning to learn, has an impressive
record. He has keen intellect, sterling integrity, and a judicious
temperament. Most importantly, Judge Roberts will faithfully interpret
the Constitution, not legislate from the bench. He has earned the
respect of his colleagues, and I am confident he will make a fine
addition to the U.S. Supreme Court.
He was raised in middle America in Indiana, a neighboring State to my
own State of Kentucky. Judge Roberts is a son of the Midwest who went
on to argue a remarkable 39 cases before the Supreme Court, more than
virtually any other member of the Supreme Court bar. He graduated summa
cum laude from Harvard and then graduated with high honors from Harvard
Law School where he served as an editor of the Harvard Law Review. If
that were not enough, he then went on to clerk for Chief Justice
William Rehnquist, actually during the Chief Justice's period as
Associate Justice, and served in various positions in the Justice
Department. Now he serves with distinction on the DC Circuit Court of
Appeals, often referred to as the second highest court in the land,
and, of course, the Senate unanimously confirmed him to that position
in 2003.
The President of the United States has discharged his constitutional
obligation under article II, section 2 to nominate justices of the
Supreme Court. He has chosen a truly outstanding nominee. It is now our
job to provide advice and consent. In doing so, we should follow
basically three principles. No. 1, we should treat Judge Roberts with
dignity and with respect. No. 2, we should have a fair process. And No.
3, we should complete that process with either an up-or-down vote in
time for the Court to be at full strength for its new term beginning
October 3 of this year. These principles are simple and they are sound.
Unfortunately, the Senate has not always followed them.
As to the first principle, the Senate has not always treated judicial
nominees of Republican Presidents with respect. Last Friday, for
example, I recounted how some of our colleagues spoke harshly about
Justice Souter's fitness for office. Our colleagues' harsh criticism of
Justice Souter was hardly unique. President George Herbert Walker
Bush's other Supreme Court nominee, Justice Clarence Thomas, suffered
far worse attacks. By engaging in an unprecedented level of
consultation, the President has respected the views of Senators. Now
Senators ought to reciprocate and treat Judge Roberts with the same
dignity and respect that we afforded President Clinton's Supreme Court
nominees over the last 10 years.
The Senate did not defeat Justice Ginsburg's nomination, even though
she had argued in her capacity as a private lawyer for such provocative
positions as abolishing Mother's Day and Father's Day in favor of a
unisex parents day, and for other even more colorful positions. Those
arguably unusual positions were not held against her during her
confirmation process. I can recall voting for Justice Ginsburg myself.
Similarly, we should not caricature Judge Roberts' beliefs or views. We
should not attribute to him the actions of clients he has represented.
We certainly should not criticize Judge Roberts because his position in
a particular case did not mirror a Senator's personal policy
preferences, nor when it comes to a fair process should we require
Judge Roberts to prejudge cases or to precommit to deciding certain
issues in a certain way. We should respect the fact that he may place
himself in a compromising position by doing so, just as we did with
Justice O'Connor, Justice Ginsburg, and other nominees who have come
before us in the past. The inquiry should be thorough but at the same
time fair.
Slow walking the process beyond historical norms and engaging in a
paper chase simply to delay a timely up-or-down vote are not hallmarks
of a fair process. The Supreme Court begins its new term on October 3.
As Senator Frist has pointed out, the average time for a nomination to
confirmation for the current justices was 62 days. The average time
from nomination to confirmation for President Clinton was 58 days.
Justice Ginsburg was confirmed in only 42 days. The Senate has 72 days
to complete action on Judge Roberts' nomination, in time for him to
join the Court by the start of its new term, October 3. By any
standard, that is a fair goal. What is not fair and what is, quite
frankly, a little curious is for some of our colleagues who, before
even having heard a single word of testimony, have already come up with
excuses as to why we should depart from this historical standard. It is
disturbing that they seek to justify so far in advance why the Court
should begin its proceedings at less than full strength.
We, on this side of the aisle, are not asking the Senate to change
its practices or standards. We are not asking that this President be
treated better than his immediate predecessor. We are asking for equal
treatment. Let's treat President Bush's nominees as we treated
President Clinton's nominees. I am hopeful that the respect the
President has shown the Senate will be reciprocated and that our
handling of Judge Roberts' nomination will bring credit to the Senate.
I yield the floor.
The PRESIDENT pro tempore. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I join my colleagues in making brief
comments about the selection of Judge John Roberts from the DC Circuit
Court of Appeals to serve as Associate Justice of the U.S. Supreme
Court, and I follow my colleague from Kentucky in noting how Ruth Bader
Ginsburg was treated--appropriately, properly, with due diligence, and
speed so that the nomination went through in an orderly process. She
took the seat of Justice Byron White who was one of the dissenters in
Roe. A number of my colleagues are saying we need to have somebody in
this position that is exactly the same as Sandra Day O'Connor in her
position. Yet that wasn't the standard that was applied in the most
recent case with Ruth Bader Ginsburg, the replacement for Justice Byron
White.
The process is as it is. The President nominates. The President
campaigned vigorously about the role of the Supreme Court and the role
of the courts in society today. He has made a noteworthy choice, a
person of outstanding
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academic credentials. I have heard a colleague of mine say: I don't
know yet how I will vote, but I would certainly hate to argue a case
against him. Somebody who has argued 39 cases in front of the Supreme
Court is very impressive indeed. But I also would like to note that the
process is for the President to nominate and us to vote by a majority.
That has been the historical setting, and that is what we should
continued to do in this case.
My colleagues have already outlined some of Judge Roberts' excellent
legal credentials. He graduated magna cum laude from Harvard Law
School. He clerked for then-Associate Justice Rehnquist.
He served as Principal Deputy Solicitor General at the Department of
Justice. He amassed a strong record as a Supreme Court advocate in
private practice and has distinguished himself as a judge on the court
of appeals. As one of my colleagues said last night, Senator Schumer,
Judge Roberts has the ``appropriate legal temperament and demeanor.''
We would call that, from my part of the country, ``midwestern calm.''
He has a great deal of calm demeanor about him that is quite good for
judicial temperament.
I was particularly struck by Judge Roberts' statement at the White
House yesterday evening, speaking extemporaneously and with all the
skill of a practiced lawyer and as a person of not only a well-trained
mind but a deep heart. He said he had a ``profound appreciation for the
role of the Court in our constitutional democracy.'' The role of the
Court in American life and Government is of great concern to the
country today. That statement means a lot--rule of law rather than the
rule of man. We are a country of laws, ruled by laws and not by the
whim of any person or any five people. It is a set of laws. It is a
Constitution. That is what rules in this country.
It is my hope that Judge Roberts and any nominee to the Supreme Court
would be faithful to the role originally intended for the courts by the
Framers of the Constitution. In our system of government, the
Constitution contemplates that Federal courts will exercise--this is
very clear within the Founders--limited jurisdiction. The Federal court
is to be a limited jurisdiction court. They should neither write nor
execute the laws but simply ``say what the law is,'' as former Chief
Justice Marshall stated in Marbury v. Madison.
As Alexander Hamilton explained, this limitation on judicial powers
is what would make the Federal judiciary the ``least dangerous
branch.'' In his view, judges could be trusted with power because they
would not resolve divisive social issues, short circuit the political
process, or invent rights which have no basis in the text of the
Constitution. That was simply not the role of the courts. They were
simply to say what the law is, not to write it, not to execute it.
The expanded role assumed by the Supreme Court in recent years--and
in Federal courts generally--makes it all the more important that Judge
Roberts exhibit proper respect for the restrained role of the Federal
courts in American Government. I hope the confirmation process
demonstrates that he will live up to the President's ideal of
nominating individuals who will refrain from making law on the bench.
This is a big issue in society today. People want to have
legislatures to make laws. That is what we do. They want to have
executive branch to execute. That is what they do. And the Court simply
says what the law is. It does not write it.
Speaking of the confirmation process, I will say a few words about
what to expect in the days ahead. Judge Roberts hardly had a chance to
step before the cameras last night before interest groups had attacked
him. MoveOn.Org attacked Roberts as a ``right-wing corporate lawyer and
ideologue.'' NARAL Pro-Choice America blasted Roberts immediately as an
``anti choice extremist,'' urging him to ``help save the Supreme Court
from President Bush.''
Even though Judge Roberts was approved as a DC Circuit Court judge in
2003, 2 years ago, without objection, and received the vote of Ranking
Member Leahy in the Judiciary Committee at that time as well, the
interest groups immediately came out, before a word was said, even
before the President presented him to the public, and made these sorts
of characterizations of Judge Roberts. It is not right. It is not the
process we should follow. We should look to the record of the
individual and we should hold open and in-depth hearings. But there
should not be these sorts of characterizations. These statements smack
of personal attacks and litmus tests and are not becoming of a serious,
openminded debate on the nominee.
I hope my colleagues resist the demands from these outside groups for
knee-jerk opposition to Judge Roberts. We should instead live up to the
tradition of careful, considered debate, which is the heritage of this
great institution. Our deliberation on this nomination should be
respectful and it should focus on substance.
It would be a tragedy for this body, and for the Republic, if the
confirmation process for Judge Roberts reflects the treatment some of
President Bush's nominees to this point, including Roberts himself in
looking to be a circuit court nominee, have received. Judge Roberts'
pleasant demeanor should be matched by civil treatment in the Judiciary
Committee and on the Senate floor.
Finally, neither filibusters nor supermajority requirements have any
place in the confirmation process. Those tactics of obstruction should
become the historical relics they deserve to be. The country deserves,
and the Constitution demands, a prompt, thorough debate, and a fair up-
or-down vote on Judge Roberts' nomination to the Supreme Court. I look
forward to being an active participant in that process and also to
having this debate about the role of the courts in American society and
American Government today. I think it is important that we have those
debates. This is an eminently qualified nominee. He deserves fair
treatment and a fair up-or-down vote.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Talent). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. COLEMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COLEMAN. Mr. President, the nomination of a Justice to the
Supreme Court of the United States is a solemn and momentous occasion.
Our Constitution is the rarest of political documents in human history.
Those individuals who are appointed for life to be its stewards and
interpreters are extremely important to our future.
Each Court is made up of nominees from different political eras,
shaped by unique forces and ideas. It is the dialog among the senior
Justices and the new ones, those nominated by Democrats and
Republicans, and all the backgrounds represented, that gives the Court
its legitimacy and dynamism.
The PRESIDING OFFICER. The time designated for the majority has
expired, unless the Senator gets unanimous consent for additional time.
Mr. LEAHY. Mr. President, reserving the right to object, how much
time would the Senator be seeking? The only reason I ask is we are
having a major hearing in Judiciary right now and we are trying to work
it out based on the time that had been allotted.
Mr. COLEMAN. No more than 7 minutes. I can probably do it in 5.
Mr. LEAHY. Mr. President, I am worried about that hearing. Let's do
this. I want to accommodate my colleague. I ask unanimous consent that
he be allowed to continue for 5 minutes, but that the time not come
from the time reserved for the Democratic side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COLEMAN. Mr. President, I thank the Senator for that opportunity.
When the Court begins its term in October, we will include nominees
spanning seven administrations and people shaped by events from
Watergate to September 11 and beyond.
The Founders invested the President with the power to make
nominations to the Federal judiciary and gave the Senate the role of
providing advice and consent with respect to any nominee.
I am pleased that after extensive and unprecedented consultation with
the Senate, President Bush announced Judge John Roberts as his nominee
to
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be the next Associate Justice of the Supreme Court, filling the vacancy
left by Justice O'Connor.
Judge Roberts has a distinguished record and extensive experience.
Judge Roberts graduated summa cum laude from Harvard University and
Harvard Law School.
Judge Roberts clerked for Judge Henry Friendly on the
Second Circuit and later for Justice William Rehnquist at the
Supreme Court. After his clerkships, he served in the
Department of Justice as associate counsel to President
Ronald Reagan before going into private practice.
After 3 years in private practice, Judge Roberts returned to the
Department of Justice as Principal Deputy Solicitor General, a position
in which he briefed and argued a variety of cases before the Supreme
Court.
Judge Roberts reported favorably out of the Senate Judiciary
Committee by a vote of 16 to 3, and he was confirmed by the Senate for
the DC Circuit Court of Appeals by a voice vote. The Presiding Officer
and myself were there at that time. By unanimous consent this judge was
confirmed.
I look forward to learning more about the nominee's views on the
proper role of the judiciary at his confirmation hearings, as well as a
thorough floor debate in which all are heard.
Again, and above all, Judge Roberts' nomination should be handled
with the utmost dignity and respect, which the position he has been
nominated to deserves. The fact that the nominee is a person of
character and integrity will add to the tenor of the proceedings.
The nominations process needs to be fair, including a fair hearing, a
floor debate in which all views are heard, and then an up-or-down vote
on confirmation, so he can be sitting on the Supreme Court when the
term begins in October of this year.
Judges are like umpires. They should be neutral. We trust them not to
pick sides before the game begins but to fairly apply the rules. We
should measure our nominees on whether they will give all parties a
fair shake and consider the merits of every dispute, not based on
whether we like particular results.
In carrying out my part in the Senate's role, I have always believed
our Founding Fathers intended judges to interpret the Constitution
rather than make law from the bench. The law needs to be stable and
dependable, for the good of the whole society. I will continue to
evaluate nominees based on whether they demonstrate competence,
appropriate judicial temperament, and a commitment to the fair
construction of our Constitution and our laws.
It is important that the Senate act promptly so we have a nine-member
Supreme Court in October when the new term begins. There is no reason
why that should not happen.
I commend the President for both his selection and the process he
went through to make it. Sandra Day O'Connor has been a historic and
wise figure on the Court. I hope her legacy of grace and class will
extend to the process by which her seat on the Court will be filled.
When Ronald Reagan appointed her, it changed our Nation for the better,
and she has been a remarkably strong and influential figure even
outside the confines of the Court.
I am honored by the opportunity the people of Minnesota have given me
to examine the President's nominee. I will render a judgment on the
President's choice with the values and expectations of Minnesotans in
mind. It is an exciting time for this country to reexamine our
constitutional processes and democratic institutions and come together.
I think that is important. We have a unique opportunity to come
together and have a dignified process, not to be pulled by special
interest groups that will try to dictate what we should do based on
their beliefs rather than what is good for the country. What is good
for the country is to have a process in which we examine the character
and integrity and judicial temperament of a candidate, not their
position on a particular case. If you look at the history of Judge
Roberts, who was in the Solicitor General's Office, he argued cases
there; he did his job. Folks will say he argued that the Supreme Court
doesn't require taxpayers to pay for abortions. They will point to a
case where he defended U.S. law to protect the American flag. He was
doing his job and he did it well. We should be looking at whether he
did it well.
I commend the President on his choice and look forward to a
confirmation process of dignity, respect, and commitment to the best
interests of our Nation a generation into the future.
We pride ourselves on being the greatest deliberative body in the
world. This is our moment to show that to the country and the world.
Let us do it right.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I ask unanimous consent that, in light of
the additional 5 minutes on the other side, 5 minutes also be added to
the time on this side.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I thank the distinguished Presiding Officer.
Mr. President, capping days of public speculation that maybe the
President would appoint Judge Edith Clement or Attorney General Alberto
Gonzalez or any number of other people, the President made a dramatic
evening announcement of his intention to nominate Judge John Roberts to
succeed Justice Sandra Day O'Connor on the U.S. Supreme Court.
The President called Senator Frist, Senator Reid, Senator Specter,
and myself last night before this announcement to discuss it. I
appreciated his call and the reasons he gave for the nomination. As I
said to him last night, he has done his part of the equation, a very
important part as President. He nominates the Justice. It is
interesting that, in a nation of 280 million Americans, only 101 of us
get a chance to actually have a say in who is going to serve on the
Supreme Court, a person who is there to protect the rights of all
Americans on the one body that is to be the ultimate check and balance
in our Government. Of the 101, first, of course, is the President
making the nomination. But then the 100 men and women in the Senate
have an awesome responsibility to the rest of the Nation in how we
vote. That is our job. The Senate has to fulfill its constitutionally
mandated duty to ensure those who receive lifetime appointments to our
highest Court will protect the rights and liberties of all Americans--
not those of just one political party or the other but of all
Americans--that they will uphold our Constitution and our laws and that
they will be impartial in their judicial approach.
As I said, the President has announced his choice. Now we in the
Senate have to rise to the challenge and get to work. To fulfill our
constitutional duties, we need to consider this nomination as
thoroughly and carefully as the American people expect and deserve.
That is going to take time. It will take the cooperation of the nominee
and the administration. It will require Republicans, as well as
Democrats, to take seriously our constitutional obligations on behalf
of all the American people, not just a select few. I will say similar
things to Judge Roberts when I meet with him later today.
Justice O'Connor serves as a model Justice. She is widely respected
by America as a jurist with common sense and practical values who
brought no agenda from the far left or the far right. She did not
prejudge cases. She cast the critical deciding vote in a number of
significant cases. Her legacy of fairness is one that all Americans
should want to see preserved. For 24 years on the Supreme Court, she
has tried to decide cases fairly and with an open mind. I thank her for
her service to the country and her graciousness in agreeing to serve
until her successor is considered and confirmed by the Senate and
appointed by the President.
I regret that some on the extreme right have been so critical of her
and so adamantly opposed to a successor who shares her judicial
philosophy and qualities. Their criticism reflects their own
narrowmindedness and biased agenda. I regret that they have taken out
ads and gone on the news trying to tarnish her record. Frankly, the
American people know better, and nothing will tarnish the record of the
first woman Justice of the U.S. Supreme Court.
I have noted that our neighbor to the north, Canada, a country that
is only an hour's drive from my home in
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Vermont, also has a supreme court with nine members, but four of them
are women, including the Canadian chief justice. I look forward to the
time when the membership of the U.S. Supreme Court is more reflective
of America as Canada's supreme court is more reflective of that
country.
I know Hispanics across the country are disappointed the President
has missed this extraordinary historic opportunity to pick a candidate
who will make the Court more diverse. I hope he will consider that in
future nominations.
There was no dearth of highly qualified individuals who could have
served as unifying nominees while adding to the diversity of the
Supreme Court. Reports last week mentioned Judge Sonia Sotomayor of the
Second Circuit and Judge Edward Prado of the Fifth Circuit. Certainly
these are the kind of candidates worthy of consideration.
Judge Sotomayor was first appointed to the Federal court by President
George H.W. Bush, the President's father. Judge Prado was first
appointed by President Reagan and elevated to the circuit by the
current President Bush. They are among the people who should be
considered. There are many outstanding Hispanic judges and African-
American judges who could have added to the diversity of the Supreme
Court and made it more representative of all Americans.
Last week, Chairman Specter and I spoke about our interests in having
the President consider nominees from outside what I call the ``judicial
monastery.'' I believe their life experience is important and that the
Supreme Court could have benefited from someone with experiences that
were not limited to those of a circuit judge. Certainly, this is a
consideration the President should make if he has further nominees. I
wish he had done so with this nomination.
So now, however, the nomination has been made. The President has
spent several weeks in determining who he wants. He has made his
selection. Now it is the Senate's turn to decide what we will do. Above
all, we in the Senate need to ensure that the Supreme Court remains
protective of all Americans' rights and liberties from government
intrusion and that the Supreme Court understands the role of Congress
in passing legislation to protect ordinary Americans from abuse by
powerful special interests.
No one is entitled to a free pass to a lifetime appointment to the
Supreme Court, whether nominated by a Democrat or by a Republican. And
there are far different considerations for the Supreme Court than there
are for circuit courts. How the nominee views precedent, what the
nominee regards as settled law, how the nominee will exercise the
incredible power of a Supreme Court Justice to be the final arbiter of
the meaning of the Constitution--all of these raise very different
considerations than those for a lower court nominee. In addition, a
nominee coming from the appellate bench will have a record there in
votes and opinions and performance that will provide important
additional insights into his likely tenure as a Supreme Court Justice.
We have to take the time to evaluate this nominee for a lifetime
position on the Supreme Court. After all, if confirmed, Judge Roberts
could be expected to serve to the year 2030 or 2040. So we have to have
time to perform due diligence on Judge Roberts' record and judicial
philosophy. The Senators on the committee have to have time to prepare
for fair and thorough hearings. I ask all Senators to be mindful of the
Senate's fundamental role in this process. The Americans put us all
here to do an important job, and it is critical that we treat that
responsibility with the seriousness and respect it deserves.
I start, as I always have, from the premise that the Supreme Court
should not be a wing of the Republican Party or a wing of the
Democratic Party. It has that responsibility not only to all 280
million Americans but also to millions and millions of future
Americans. The independence of the Federal judiciary is critical to our
American concept of justice for all. The Supreme Court provides a
fundamental check in our system of government. We have to ensure that
it serves as a bulwark of individual liberty against incursions or
expansions of power by the executive branch. We also have to ensure
that the Supreme Court respects the role of Congress when it acts to
protect Americans from those with great power, to improve their lives
with environmental laws, and by reining in powerful special interests.
We know that the current Supreme Court is the most activist Supreme
Court in my lifetime. Time and time again, they have set aside
congressional laws, some of long standing, and basically written new
laws of their own. There was a time when my friends on the other side
of the aisle were very opposed to the idea of an activist Supreme
Court. Now we find that two of the heroes of the right are the most
activist members of the current Supreme Court, Justice Thomas and
Justice Scalia.
Ours is a nation based on the rule of law. The test of a good judge
is his or her ability to apply the law fairly. As I evaluate candidates
for lifetime appointments that often span not merely years but decades,
I want to make sure that everybody who comes before the Court can look
at that Justice and say: I can be treated fairly no matter who I am, no
matter what political party I belong to, no matter what my station in
life.
They are going to be there a long time. Justice O'Connor served for
24 years. Chief Justice Rehnquist has served for 34 years. Since 1970,
the average term has been 25 years. So we are considering a nomination
not just for the period remaining in the Bush administration, which is
going to end in 2008, but for our children's and grandchildren's
futures, 2030 and beyond.
This nomination fills the seat that Justice O'Connor occupied while
serving as the ``swing'' or decisive vote in so many cases, and if her
successor does not share her judicial philosophy, that replacement
could radically change the Court in the way our Constitution is
interpreted.
It is critical we not prejudge a nominee and that the Judiciary
Committee be accorded the time to develop a full record on which
Senators can base an informed judgment. I was disappointed to hear
somebody say last night: Why can't we move immediately to the hearings?
Come on, the American people would justly feel on something such as
this that their rights have been shortchanged.
I look forward to working out agreements with Chairman Specter on
procedures to allow the kind of thorough consideration that a nominee
to a lifetime appointment to the Supreme Court deserves, and I know
Chairman Specter feels the same way.
A preliminary review of Judge Roberts' record suggests areas of
significant concern that need exploration. We have to consider his
service on the circuit court, even though that is quite limited. We
need to understand how he will exercise judicial power.
An independent study--and I referred to this earlier--demonstrated
that the Rehnquist Court has been the most activist Court in my
lifetime in overturning congressional enactments and restricting
legislative authority--actually the most activist since before the New
Deal. The most activist members, of course, as I said earlier, are
Judge Thomas and Judge Scalia. We need to know what kind of Supreme
Court Justice John Roberts would be.
When I talked with the President, I said I hoped that they would
cooperate so that all relevant matters can be constructively explored
as we begin this important process. When I meet with Judge Roberts
today, I will ask for his cooperation. After all, the Constitution
speaks of advise and consent. It does not speak about nominate and
rubberstamp. That, incidentally, is a position I have taken whether it
has been a Democrat or a Republican on the Supreme Court.
I look forward to hearings that will inform the Senate and the
American people in making the Senate's confirmation decision. I have
been here for hearings and to vote on all nine members of the Supreme
Court and for one other who did not make it. Presidents come and go.
Senators come and go. The Supreme Court Justices tend to be there a lot
longer than all of us. I want to make sure we do our job the right way.
Mr. President, I know there are other members of the Senate Judiciary
Committee who wish to speak. In fact, I see the member of the committee
who has either presided over or been present for
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more Supreme Court nominations than any Member now serving in the
Senate. I yield to the distinguished senior Senator from Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, I thank my friend and colleague from
Vermont. Listening to Senator Leahy reminded us that the Judiciary
Committee is in good hands, with Senator Specter and Senator Leahy
ensuring we are going to have a fair, open, transparent, and timely
hearing, the way the American people deserve. We thank him for his
continued service on the Judiciary Committee and for how he is
developing this whole process. It is going to be done with great
dignity. I thank Senator Leahy.
Mr. President, the nomination of John Roberts to the Supreme Court
comes at a time of heated debate and great division in America--a
debate that is reflected in the deliberations of a Supreme Court in
which his vote--just like Justice O'Connor's--will affect the freedoms
and liberties of Americans on vital questions before the country.
I will not prejudge the President's nominee. And I will not decide
whether to support or oppose him based on any single issue.
What all Americans deserve to know is whether Judge Roberts respects
the core values of the Constitution and falls within the conservative
mainstream of America, along the lines of Justice Sandra Day O'Connor.
That is the issue, and I look forward to asking the important
questions that are on the minds of Americans as they consider his
nomination to our Nation's highest court.
Supreme Court nominations involve far more than the hotly-debated
social issues so often discussed in the media. Presidents have 4-year
term. Senators serve for 6 years. But Supreme Court Justices serve for
life, without ever having to face the electorate. Our decision whether
to confirm a Supreme Court nominee affects the rights and freedoms not
only of our generation, but those of our children and grandchildren as
well.
The Court's decisions affect whether employees' rights will be
protected in the workplace. They affect whether families will be able
to obtain needed medical care under their health insurance policies.
They affect whether people will actually receive the retirement
benefits that they were promised. They affect whether people will be
free from discrimination in their daily lives. They affect whether
students will be given fair consideration when they apply to college.
They affect whether persons with disabilities will have access to
public facilities and programs. They affect whether we will have
reasonable environmental laws that keep our air and water clean. And
they affect whether large corporations are held accountable when they
injure workers and consumers.
Each of these issues--and many others--has been addressed by the
Supreme Court in recent years. In many of these cases, the Court was
narrowly divided, and these issues are likely to be the subject of
future Court decisions in the years to come.
Because so much hangs in the balance, Supreme Court nominees have a
heavy burden to show that they will uphold justice for all. They must
demonstrate a core commitment to preserving equal protection of the
laws, free speech, workers' rights, and other individual rights.
Americans deserve to know if nominees will be on the side of justice
and individual liberties, or if they will side with powerful special
interests.
The Senate's role will be to establish clearly whose side John
Roberts would be on if confirmed to the most powerful court in the
land. Because Judge Roberts has written relatively few opinions in his
brief tenure as a judge, his views on a wide variety of vital issues
are still unknown. What little we know about his views and values lends
even greater importance and urgency to his responsibility to provide
the Senate and the American people with clear answers.
The key question is whether he will uphold core constitutional and
statutory principles.
For instance, in a case involving the ability of Congress to protect
the environment, he issued an opinion with sweeping implications not
just for the environment, but for a host of other important
protections. In it, Judge Roberts questioned the settled interpretation
of the commerce clause--the constitutional provision that is the
foundation for not only the environmental laws that protect our natural
heritage and ensure that we have clean air and clean water in our
communities, but also for Social Security, Medicare, the minimum wage,
and many other important national protections. I can imagine few things
worse for our seniors, for the disabled, for workers, and for families
than to place someone on the highest court in the land who would put
these protections at risk.
If applied in other cases, Judge Roberts' view could severely
undercut the ability of Congress to respond to real challenges facing
our nation. His decision raises questions about whether he would roll
back a host of other laws protecting civil rights, workers' rights,
civil rights, and even many of our federal criminal statutes.
I believe that most Americans would agree that we should not re-fight
the civil rights battles of the past. The spirit of America is to move
forward to greater opportunity--not return to the days of second class
citizenship for many. Too many of our fellow citizens over many
generations have sacrificed everything--including their lives--so that
others can fully enjoy the fruits of our liberties and freedoms. They
have given their all for the rights of people of color, of women, of
the disabled, of immigrants, of workers, of senior citizens, and so
many who make up the vibrant American fabric that makes our nation the
envy of the world.
So it is important to know where Judge Roberts stands on this great
question of opportunity and justice for all.
The significance of the constitutional principles at issue is clear
from the comments of other judges who serve in the same court as Judge
Roberts. They noted that the constitutional provision he questioned not
only is the basis of many of our civil rights laws, but also underlies
important product safety laws and environmental legislation.
Judge Roberts urged the full court to review the panel decision to
reconsider the established interpretation of the commerce clause in the
Rancho Viejo v. Norton case.
Let me be clear. I do not prejudge Judge Roberts's nomination based
on his decision in this case or any other. Nor should anyone else. But
we must not fail in our duty to the American people to responsibly
examine Judge Roberts' legal views.
Other aspects of Judge Roberts's record also raise important
questions about his commitment to individual rights. He has opposed
programs to guarantee equal opportunity. He opposed the right to
privacy and argued to overturn Roe v. Wade, saying the case is
``wrongly decided'' and ``finds no support in the text, structure or
history of the Constitution.'' As a private attorney, he represented
coal companies against workers' rights. He sought to limit every
American's right to a lawyer by arguing to narrow the Supreme Court's
core precedent in Miranda v. Arizona.
Judge Roberts represented clients in each of these cases, but we have
a duty to ask where he stands on these issues. I don't prejudge them,
but the American people deserve to know more.
I join my colleagues in the hope that the process will proceed with
dignity. But the nominee will be expected to answer fully, so that the
American people will know whether Judge Roberts will uphold their
rights. Anything less would make the Senate a mere rubberstamp in
Supreme Court nominations.
In recent days, some have suggested that the Senate should not ask
full questions about the nominee's legal views and judicial philosophy.
The President made clear that he would consider judicial philosophy in
choosing a nominee, and the Senate should not turn a blind eye to that
issue.
When Justice Thurgood Marshall was nominated to the Supreme Court in
1967, I said that Senators should not vote against him just because
they don't agree with him on every issue. But that is different from
saying we should not consider judicial philosophy at all. Particularly
today, when philosophy is important to the White House in choosing
nominees, Senators should consider it as well.
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To be clear, here is what I said in 1967:
I believe it's recognized by most Senators that we are not
charged with the responsibility of approving [justices] if
[their] views always coincide with our own . . . We are
really interested in knowing whether the nominee has the
background, experience, qualifications, temperament, and
integrity to handle this most sensitive, important, and
responsible job.
But if someone would clearly fail to uphold basic rights, that should
be considered and the Senate is entitled to know.
There are few debates more important than this one, and I look
forward to considering this important nomination.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________