[Congressional Record Volume 151, Number 99 (Wednesday, July 20, 2005)]
[Senate]
[Pages S8584-S8587]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF JOHN ROBERTS

  Mr. HATCH. Mr. President, yesterday, President Bush fulfilled his 
constitutional duty and nominated John Roberts to fill the vacancy left 
by Justice Sandra Day O'Connor on the Supreme Court of the United 
States. The spotlight is now on the Senate of the United States of 
America. The President has done his duty, and now we need to do ours.
  Let me first pay tribute to Justice O'Connor who has been a real 
trailblazer in her own right. The first woman on the Supreme Court, a 
thoughtful and dedicated jurist, she has ably served on the highest 
Court for the past nearly 24 years. Her announced retirement creates 
the first vacancy in nearly 11 years. This has been the longest period 
with the same set of Justices in more than 175 years.
  Article II, section 2 of the Constitution says that the President 
alone nominates, but he appoints only with the advice and consent of 
the Senate. One of the best shorthand ways of understanding the 
Senate's role is that by deciding whether to consent to the nomination, 
we give the President advice about whether to appoint the person he has 
nominated. Traditionally, we have done so by means of an up-or-down 
vote on the Senate floor.
  I commend the President and his team of senior advisers for broadly 
soliciting the views of Senators and other interested parties. The 
President and his staff spoke with more than two-thirds of the Members 
of this body, over 70 Senators, an absolutely unprecedented level of 
interaction.
  For some, though, it appears that even extensive consultation with 
all 100 Senators would not be enough if they did not like the 
President's nominee. On the other hand, if they did like the nominee, I 
suppose they would declare a 5-minute chat with a Senate staffer to 
have been a consultative triumph.
  No President need consult at all with any Senator or with anyone else 
for that matter. The President does so because, in his judgment, it 
will help him fulfill his constitutional responsibility. President Bush 
has done that and has nominated John Roberts to be the 109th individual 
to serve on the Supreme Court in American history. The ball is now in 
our court.
  Judge Roberts has served on the U.S. Court of Appeals for the 
District of Columbia Circuit ever since we confirmed him on May 8, 
2003, without even a rollcall vote, I might add, one of the few people 
who have ever been confirmed by unanimous consent on the floor of the 
Senate.
  Judge Roberts was so easily confirmed because he is so eminently 
qualified. He graduated summa cum laude from Harvard Law School and 
served as managing editor of the Harvard Law Review--no small 
achievement. In other words, No. 1 in his class. He clerked for Judge 
Henry Friendly, one of the alltime great judges on the U.S. Court of 
Appeals for the Second Circuit, and then for Chief Justice William 
Rehnquist on the U.S. Supreme Court, one of the alltime great Justices 
on the Supreme Court.
  Judge Roberts served as Special Assistant to the Attorney General, 
Associate Counsel to President Ronald Reagan, and Principal Deputy 
Solicitor General under the first President Bush. And before his 
judicial appointment, he was head of the appellate practice group at 
the distinguished law firm, internationally recognized, of Hogan & 
Hartson.
  He has been widely acknowledged as one of the most accomplished 
appellate attorneys in America, having argued nearly 40 cases before 
the Supreme Court on a wide range of issues from antitrust and the 
first amendment to Indian law, bankruptcy, and labor law.
  Not surprisingly, the American Bar Association unanimously gave Judge 
Roberts its highest well-qualified rating for his appeals court 
appointment. This has been the Democrats' gold standard for evaluating 
judicial nominees, and he has met every aspect of that standard.
  The question now is how we should evaluate Judge Roberts' nomination 
to the Supreme Court and what standards we should apply. There is more 
confusion about that than there should be. Yet I believe, like so many 
other endeavors, ending in the right place requires starting in the 
right place.
  An effective process for hiring or selecting someone to fill a 
position, any position, must start with an accurate description of that 
position. I am reminded of a 1998 article by Judge Harry Edwards 
appointed in 1980 by President Jimmy Carter to the U.S. Court of 
Appeals for the DC Circuit. I was in this body at the time. He was that 
court's chief judge from 1994 to 2001 and a colleague of Judge Roberts. 
Judge Edwards warned that giving the public a distorted view of what 
judges do is bad for both the judiciary and the rule of law.
  The debate about judicial selection is a debate about what judges do, 
about their proper place in our system of representative government. 
Getting the judicial job description right is necessary for a 
legitimate and effective selection process. It defines the 
qualifications for the job. It identifies the criteria we should apply. 
It guides the questions that may properly be asked and answered and the 
conclusions that should be reached.
  Judges take law that they did not make and cannot change, determine 
what it means, and apply it to the facts of a legal dispute. That is 
what judges do. That judicial job description applies across the board. 
It does not depend on the parties or the issues before the court. 
It does not depend on the law that is involved in a particular case. 
And it certainly does not depend on which side wins or should win.

  I believe we must help our fellow citizens better understand what 
judges do so they can better evaluate what we will be doing in the 
weeks ahead as we consider this nomination now before us.
  Without in any way trivializing the work of judges, I want to use a 
practical example because I believe it can be simple without being 
simplistic.
  Judges are like umpires or referees. They are neutral officials who 
take rules they did not make and cannot change and apply those rules to 
a contest between two parties or multiple parties.
  How would we evaluate the performance of an umpire or referee? Would 
we say he or she did a good job as long as our favorite team won the 
game? If we were hiring an umpire or referee, would we grill him or her 
about which side he or she were likely to favor in the upcoming 
matches? Of course not.
  Desirable results neither justify an umpire or referee twisting the 
rules during the game nor are automatic proof that the umpire or 
referee is fair and impartial. Umpires and referees must be fair and 
impartial from beginning to end during the contest before them. They do 
not pick the winner before the game starts, nor do they manipulate the 
process along the way to produce the winner they want.
  In the same way, we must not evaluate judges solely by whether we 
like their decisions or whether their decisions favor a particular 
political agenda. The political ends do not justify the judicial means.
  This is a very important point, something we must keep in clear focus 
throughout the weeks ahead. That is why I wanted to raise it now at the 
beginning of the confirmation process.
  One thing that is becoming increasingly clear is not everyone who 
says

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judges must interpret but not make the law means the same thing. Some 
who use that language still determine whether that standard is met the 
same old way by whether a judge's decisions meet a litmus test.
  Once again, an umpire or referee is not there to pick the winner. He 
or she is there to fairly and impartially apply the rules.
  Similarly, judges are not there to pick the winner. They are there to 
fairly and impartially apply the law.
  I emphasize this because it is at the heart of this entire debate 
over judicial selection, and I will be returning to it throughout this 
process.
  We may like or dislike a judge's decision, but that is not the point. 
His or her decisions may be consistent with certain political 
interests, but that is not the point. That is not what judges do. It is 
not their role in our system of representative government.
  Rather, if the people do not like what the faithful and impartial 
application of the law produces, then they and their elected 
representatives can change the law.
  That is our rule in our system of representative Government. 
Expecting judges to do our job--our legislative job--undermines the 
judicial branch and demeans the legislative branch. Simply put, judges 
must be evaluated not by the results they reach but by the process they 
follow to reach those results. That is what judges do.
  Mark my words, we will hear in the days and weeks ahead this group or 
that Senator demanding to know whether the nominee now before us would 
produce the results they want or that they like. They want to know 
whether the nominee will rule this way on this issue and that way on 
this other issue. Some may try to cloak their mission, perhaps using 
terms their focus groups say will go down more smoothly with the 
public. But we all know what is going on. They want to know which side 
the umpire or referee will favor. They want to know that their team 
will have an upper hand even before that team takes the field.
  In recent days, we have heard speeches by Senators and seen letters 
by interest groups and law professors with lists of questions to ask 
this nominee. Most of those questions are geared in one way or another 
to finding out how this nominee would likely rule; that is, the results 
this nominee would likely deliver on certain issues.
  Past nominees, including virtually every current member of the 
Supreme Court, have resisted such intrusive attempts to extract either 
commitments or previews of future rulings. In that way, judicial 
nominees sometimes appear to have a deeper commitment to judicial 
independence than some Senators.
  I expect Judge Roberts will take a judicious approach to answering 
questions, mindful of both the judicial position he already occupies 
and the one to which he has been nominated.
  Last night, the head of one of the leftwing groups primed to attack 
Judge Roberts was on one of the cable talk shows as the news about the 
nomination circulated. It took him about 15 seconds to say the words, 
``serious problems,'' regarding this superbly qualified nominee.

  Within minutes of the President's announcement last night, other 
groups had already proclaimed the nominee an unacceptable extremist.
  That kind of knee-jerk, results-oriented standard is wrong, whether 
such calls come from the left or the right.
  As Judge Edwards reminded us, misrepresenting what judges do harms 
both the judiciary and the rule of law.
  Judges take law they did not make and cannot change, determine what 
that law means, and apply it to settle legal disputes. That is what 
judges do.
  In the days and weeks ahead, let us keep that job description in mind 
and set about determining whether the nominee now before us can do that 
job.
  Judge Roberts twice came before the Judiciary Committee. As a matter 
of fact, he had to wait 14 years to finally be confirmed by the Senate. 
He was nominated by George Herbert Walker Bush, Bush 1, and then 
renominated by Bush 2, George W. Bush. But I remember him when he came 
before the committee. We had two hearings for him. I remember him as an 
intelligent, fair-minded, and thoughtful person, and so does everybody 
else who knows him.
  While I, of course, must withhold final judgment on Judge Roberts' 
nomination to the Supreme Court until after the confirmation hearing, 
my initial reaction is President Bush appears to have submitted to the 
Senate a well-qualified nominee with the kind of intellect, integrity, 
and independence that is required for a Supreme Court Justice.
  We must apply the right standard as we evaluate this nominee.
  Having said all of that, I understand Senators are saying they can 
ask any question they want, and I have said Senators on the Judiciary 
Committee can ask any question they want, no matter how stupid the 
question may be. And we have all asked stupid questions from time to 
time, I am sure. At least most of us have. But the judge does not have 
to answer those questions. In fact, under the Canons of Judicial 
Ethics, judges should not be opining or answering questions about 
issues that may possibly come before them in the future.
  I would like this body to remember some past nominations, and I will 
cite with particularity the nomination of Antonin Scalia to become a 
Justice on the U.S. Supreme Court. I remember time after time Senators 
asking him questions about how he might rule in the future on various 
issues, including Roe v. Wade. He refused to answer those questions 
because he thought those issues might come before him as a Justice on 
the Supreme Court and, frankly, wanted to abide by the Canons of 
Judicial Ethics. He was not overly pressured. The Judiciary Committee 
treated him with respect. He passed through the Senate 100 to zip and, 
of course, has become one of the leading conservative jurists in the 
history of the Court. But he did not have to answer questions that 
asked for specific conclusions in areas that likely would come before 
the Court, and that is almost anything. In this day and age, there is 
so much litigation almost anything could come before the Court.
  The second illustration is the Ruth Bader Ginsburg illustration. Ruth 
Bader Ginsburg, when she came before the Senate Judiciary Committee, 
refused to answer questions with regard to matters that might come 
before her if she would be confirmed as a Justice to the U.S. Supreme 
Court.
  Our side did not overly press her to answer those questions. We did 
not scream and shout about, She has to answer my questions or I am not 
going to vote for her. We did not make demands on her that were 
inappropriate. We did not have outside groups giving us questions to 
ask that are outrageous and formed for the purpose of trying to scuttle 
the nomination. She took that position, and we honored her in taking 
that position.
  If I recall it correctly, she passed through the Senate I believe 96 
to 3. We knew that she was a social liberal. We conservatives who are 
pro-life knew she was pro-abortion. We knew that she differed with our 
side on many issues. We also knew that she was qualified, and we knew 
she deserved a vote up or down out of respect for the position, out of 
respect for the U.S. Supreme Court, and out of respect for her. She 
received her vote up or down, and there was not a lot of screaming and 
shouting about it, nor were there threats made, nor were there threats 
that we might someday filibuster her if she did not agree with the 
results we wanted her to rule on in advance.
  That is what is going on, and it has been going on ever since the 
Rehnquist nomination for Chief Justice of the U.S. Supreme Court. It 
has only gone on on one side, and that is the Democrat side, in a 
series of very embarrassing Supreme Court nomination proceedings, 
starting with Justice Rehnquist. Why, some even violated the law and 
put out some of his medical records that were highly confidential.
  When Bob Bork came up, it was unmitigated the way they treated him. 
Even Justice Souter was mistreated because they thought he might 
possibly be pro-life. Justice Kennedy was not as mistreated as the 
others, but they were very concerned because they thought he might be 
pro-life. In fact, even Justice O'Connor when she came to the floor had 
her critics on both sides because they were afraid she might be one way 
or the other on Roe v. Wade. The fact is, we now know where Justice 
O'Connor, Justice Kennedy, and Justice Souter are on these issues, but 
we

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did not know at the time, nor do we know where to-be Justice Roberts is 
on these issues as well. Nobody has asked him those questions and 
nobody should because those questions are all hot-button issues that 
may come before the Supreme Court.
  If there has ever been anybody qualified to go on the Supreme Court, 
one would have to say John Roberts meets every requisite standard to be 
confirmed as a Justice on the Supreme Court. This is a brilliant man. 
This is an honest man with a sense of humor. This is a leading 
appellate advocate. He has held responsible positions in Government. He 
has risen to the top of the legal profession. He has the highest 
recommendation of the American Bar Association for the circuit court of 
appeals seat. He is one of the great legal thinkers of America. How he 
will rule on various issues I, frankly, do not know. I believe him to 
be conservative. The President said he would appoint only 
conservatives, which is his right. That is what one gets when they vote 
for President.
  If I have ever seen anybody who deserves being on the Court more than 
John Roberts, I have to think pretty hard. John Roberts is a fine man. 
I hope he will be treated with great respect and deference, and I hope 
these very partisan, very nasty groups from the left and maybe even the 
right pack up their tents and go home because they do not belong in 
this process the way they are acting, though in a free country they can 
act that way, and I would fight for their right to do so. We should not 
be influenced by that type of inappropriate, prejudgmental approach to 
Supreme Court nominees.
  I believe John Roberts will become a Justice on the U.S. Supreme 
Court, I hope expeditiously, certainly before the first Monday in 
October so that the Court can have a full complement. I believe the 
Senate will overwhelmingly support him, and I hope that is the case. If 
it is not, then we are going to have to reexamine the way things go 
around here.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Thune). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, I rise today to briefly discuss the 
nomination of Judge John Roberts and commend the President for 
submitting for our consideration a superbly qualified nominee who has 
the requisite background and experience to serve the Nation well as the 
next Justice of the Supreme Court. Indeed, I think the President, after 
hearing advice from a whole host of different areas, simply decided to 
appoint the best person he found in America. That is what he did. I am 
proud of him. I think it is the right thing to do, and I believe this 
will be proven out as time goes by.
  I don't know John Roberts personally, but I do know his record. I 
studied it 2 years ago when this Senate provided its unanimous advice 
and consent to place him in his current position on the District of 
Columbia Circuit Court of Appeals. We did so with the knowledge that 
the D.C. Circuit in many instances has served as the launching pad for 
Supreme Court nominees. So I hope this process will be conducted with 
dignity and respect and that we will be able to have him in place 
before the Supreme Court convenes in October.
  We considered his record then in great detail. People were heard 
from; people submitted information. In fact, 152 lawyers wrote in 
support of him. But he was looked at hard then. Only three people voted 
against him in the committee, and he was unanimously confirmed in this 
Chamber.
  A Supreme Court Jurist should have high standards. He or she should 
be committed to the rule of law and to resist the temptation to 
legislate from the bench. He or she should believe in the Constitution 
and adhere to the provisions provided in that great document regardless 
of whether he or she believes personally that those are correct. They 
do not have to agree with the provisions. They didn't write the 
provisions. They were written by ``we the people'' of the United States 
of America.
  I participated in that hearing 2 years ago, and he gave the committee 
a commitment that he would not carry a political agenda to the D.C. 
Circuit, that he would adhere to the law rather than follow politics. 
And over the last 2 years as a judge on the D.C. Circuit he has 
fulfilled that commitment. So I think and hope that he is off to a good 
start in this process.
  Make no mistake about it, Senators will have some questions, and 
having witnessed Mr. Roberts' eloquent testimony and principled 
approach to jurisprudence during his last hearing, I know he will have 
the answers to those questions. He very simply won Senators over during 
his last hearing, and this is why I believe he was confirmed with a 
strong vote. I am sure the results will be the same this year.
  The Senate must treat the nominee fairly and have a fair and 
dignified process. Converting legal disagreements into personal attacks 
on the nominees as we have seen in the past in recent years is not 
appropriate. It is beneath the dignity of the Senate. It is not proper, 
and it should not be done. In many instances nominees have been 
unfairly personally attacked for simply following the law as they saw 
it.
  So I am concerned about a fair process, not so much from the Members 
of our Senate--hopefully, that will not occur this time--but from some 
of the hard left attack groups.
  A few weeks ago this cartoon appeared in the paper, and I would like 
to refer to it. I think it is a bit humorous, but I agree it raised a 
lot of money. It says: Don't let Bush nominate this rightwing extremist 
nut to the Supreme Court. And then leaves blank the name. So he hasn't 
nominated anybody yet, but they have already raised their money and 
laid the game plan to attack whoever comes up as being some extremist 
rightwing nut. I think that is pretty interesting. They say here we 
will plug the photo in as soon as we find out who it is.
  I believe we have another one that I think is also humorous, but it 
has a lot of truth in it. It says: We're here to voice our strongest 
opposition to the Bush Supreme Court nominee--whoever he may be.
  That is where we are. A lot of money has been raised by groups. For 
the first time I think, Mr. President, conservative groups, or groups 
that tend to support the President's nominees raise money, too, so we 
might have activity on both sides. That has not been the case in the 
past.
  We laugh at these little cartoons and they are not a perfect truth, 
but they have some truth in them. But last night the NOW group 
announced right after the nomination that the President had nominated 
an anti-Roe judge and that the lives of women in America were at stake. 
The People for the American Way contend that Judge Roberts' record does 
not demonstrate a fundamental commitment to civil and constitutional 
rights. And other complaints have been raised about him before the ink 
was dry on the nomination. So I hope that instead of buying into these 
groups' broken records--the same charges that are paraded out every 
time a Bush nominee is submitted--we will study Judge Roberts' record 
and have a fair process and consider what scholars in this country are 
saying--practicing lawyers, judges with whom he practiced and before 
whom he practiced. These are objective observers. Many of them are 
Democrats. They will provide far more valid insight than hard left 
groups such as MoveOn.Org or People for the American Way.

  This is what we know about Judge Roberts so far. He has a keen 
intellect, sound legal judgment, and the highest level of integrity. He 
graduated from Harvard college in 3 years summa cum laude and the 
Harvard Law School where he served as managing editor of the Harvard 
Law Review. And, of course, serving on the law review at a law school 
is a great honor, and to be an editor or managing editor of that law 
review is one of the highest honors any graduating senior can be given 
by his peers who elect him to that position.
  After graduating from law school, he clerked for one of the most 
esteemed and respected jurists in the country, Judge Henry J. Friendly 
on the Second Circuit Court of Appeals in New York, and then went on to 
clerk with Chief Justice William Rehnquist on the U.S.

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Supreme Court, the very Court he has now been nominated to serve on. He 
has clerked for the Chief Justice of the United States. He sat there at 
his right hand. He has helped him develop and write the opinions and do 
the research that goes into rendering an opinion. As a result, he has 
had very good experience for that position. I am sure there are perhaps 
many, hundreds perhaps, lawyers who would love to serve as Judge Henry 
Friendly's law clerk. There would be thousands that apply before the 
few are selected to clerk on the U.S. Supreme Court. Why? Because they 
select only the best. They select candidates who have high academic 
records and proven public integrity. So he served in the White House 
counsel's office, served as the Principal Deputy Solicitor General to 
the United States Department of Justice. The Solicitor General is the 
Government's lawyer to the courts of America, the appellate courts.
  The Solicitor General's office sends the lawyers into the U.S. 
Supreme Court to stand up in that Court and represent the United 
States. I was a U.S. attorney, and in the U.S. district court in 
Mobile, AL, it was my honor and pleasure on a regular basis to stand 
before the U.S. district judge and say, ``The United States is ready, 
Your Honor.'' To represent the United States of America in court is a 
great honor. To represent the United States of America in the greatest 
Court in the history of the world, the U.S. Supreme Court, is a great 
honor. As the Principal Deputy Solicitor General, that is what he did 
on a regular basis.
  Prior to assuming his current position, he was known as probably the 
most respected appellate lawyer in the United States, having argued 39 
cases before the U.S. Supreme Court. When you have an important case, 
you want the best lawyer in America to represent you in the Supreme 
Court, and he was selected time and again by people to represent them 
in this highest Court, which is, indeed, a high compliment. His 
experience goes beyond what I have described here. He practiced in one 
of the Nation's top law firms and has extensive government experience. 
The American Bar Association, which rates judge nominees--they go out 
and interview people who have litigated for them, litigated against 
them, judges before whom they practice, and they evaluate how fine that 
nominee is. They have just a few levels of recommendation, but the best 
one, ``well-qualified,'' is reserved for a small number. Judge Roberts 
was given the highest rating of the American Bar Association to serve 
in his current position, and I would not be surprised if he doesn't get 
it for the Supreme Court.
  So I hope we will give him a fair process, that we will avoid 
establishing a litmus test. However, it does concern me that one Member 
has already said, ``We need to know where John Roberts is on the 
issues, whose side he's on.''
  Well, you can't demand that a judge be on your side as a price for 
confirmation. What do we mean, whose side they are on? What do we mean? 
Whose side are they are on? By definition, a judge is a person who is 
unbiased, a neutral referee, a person who treats everyone respectfully 
and then follows the law in a dispassionate, disinterested manner. That 
is why we give them a lifetime appointment.

  We cannot go down this road asking judges, nominees, to commit to a 
specific decision or to promise to be favorable to one view or another 
that a certain Senator may have. What kind of disaster would that be? 
It would invade the independence of the judiciary. Judges have to be 
neutral arbiters. They are not to call the balls and strikes before the 
pitches are thrown, for Heaven's sake. We must not require him or 
demand of him that he state how he expects to decide cases. That 
violates the independence of the judiciary.
  What I will ask him to do is to demonstrate a fidelity to the law, a 
commitment not to legislate from the bench, and to leave the 
legislation to the Congress and the State. He has demonstrated that 
over time.
  The President has made a very wise decision. This nominee, from his 
past performance in the Judiciary Committee, has shown poise, good 
judgment, and a clear ability to articulate important issues to the 
Senators in an effective way that has won their respect. I am excited 
for him.
  I also am pleased to note he was chosen to be captain of his high 
school football team. I will say this: They do not elect flakes to be 
captain of the football team. These are people who players have seen 
and worked with under difficult circumstances, and they respected him 
enough to choose him. He will be an outstanding member of the U.S. 
Supreme Court.
  This Senate will be tested. Will we be objective? Will we be fair? 
Will we give this incredibly superb nominee the fair and just hearing 
to which he is entitled?

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