[Congressional Record Volume 151, Number 113 (Monday, September 12, 2005)]
[Senate]
[Pages S9894-S9895]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE UNITED STATES 
                             SUPREME COURT

  Mr. DAYTON. Mr. President, today the Senate Judiciary Committee began 
its hearings on President Bush's nomination of Judge John Roberts to be 
the next Chief Justice of the U.S. Supreme Court. I remain undecided 
and open minded, as I believe virtually all of my colleagues have also 
stated themselves to be, about the nominee. I will remain so until 
those hearings are complete. Nevertheless, I commend President Bush for 
acting swiftly and responsibly to nominate the successor to the very 
distinguished and dedicated former Chief Justice William Rehnquist. His 
tragic death, along with the announced resignation of Justice Sandra 
Day O'Connor, has created a second vacancy on the Supreme Court, a 
vacancy for which the President has not yet nominated a replacement but 
may do so any time in the future.
  So it is not surprising that even while Judge Roberts confirmation 
hearings are just beginning, many Americans are already looking ahead 
and are attempting to influence the President's decision on this second 
Supreme Court nominee.
  While President Bush unquestionably has the right to nominate the man 
or woman--I personally hope it is the woman--of his own choosing, and 
in fact the President has earned that right by his reelection last 
November, I believe he has the responsibility to select someone who 
would be the choice of the vast majority of all Americans, for this 
woman or man will be a Supreme Court Justice for all Americans living 
today and likely for all Americans yet to come for many years ahead. If 
confirmed, she or he will take an oath of office, as each of us has 
done, to uphold the Constitution of this great country, a 216-year-old 
document which still lives today to guarantee and protect the rights, 
the freedoms, and the responsibilities of all 290 million American 
citizens--not just the majority or the minority, not just Republicans 
or Democrats, not just conservatives or liberals, not just Christians, 
Muslims, or Jews, not just some but all Americans.
  That responsibility--of the President, of this Senate, and of each 
Supreme Court Justice--to all Americans is why I found so disturbing an 
article in last Saturday's Washington Post. The front page lead-in 
said:

       In defense of Alberto Gonzales, supporters counter the idea 
     that the Attorney General is too moderate for the High Court.

  Alberto Gonzales, as we all know, is the Attorney General of the 
United States and is widely considered to be one of the President's 
most likely considered nominees to fill this second Supreme Court 
vacancy. The Washington Post story's headline reads: ``Gonzales is 
Defended as Suitable for the Court.''
  The article begins:

       Supporters of Attorney General Alberto Gonzales have 
     launched a campaign to rebut criticism that he is not 
     reliably conservative enough to serve on the Supreme Court.

  I find those words bizarre. Accurate, I have no doubt, in portraying 
a bizarre situation caused by the bizarre behavior of some bizarre 
people who are--and this is where it becomes frighteningly bizarre--
seriously trying to determine who the President of the United States 
will or will not nominate to the U.S. Supreme Court.
  It shall not be, they decree, someone too moderate to be suitable for 
the Supreme Court. Too moderate to be suitable to serve on the U.S. 
Supreme Court? What terrible acts of moderation has Attorney General 
Gonzales committed to make himself unsuitable, unfit or unqualified?
  According to the article, as a justice on the Texas supreme court 5 
years ago, then-Judge Gonzales sided with the court's majority in 
upholding the constitutionality of a Texas State law that provided a 
judicial bypass to allow a State judge, in exceptional circumstances, 
to allow a minor woman to obtain an abortion without her parents' 
notification. According to the article, Judge Gonzales:

     . . . wrote that he felt a duty to follow the law without 
     imposing my moral view, even if the ramifications may be 
     personally troubling to me as a parent.

  In other words, he did what a State or Federal Supreme Court Justice 
is sworn to do, to decide upon the constitutionality of legislation 
that State legislatures or the Congress passes and that Governors or 
Presidents sign into law, based upon the written State and U.S. 
Constitutions, regardless of their personal views. If that is 
considered too moderate to be suitable for the Supreme Court, then this 
country is headed for the extreme deep end.
  On the other side, to prove that the Attorney General is not too 
moderate to be suitable for the Supreme Court, his supporters 
reportedly note that, as President Bush's White House counsel, he 
successfully excluded the American Bar Association from the judicial 
selection process. That proves he is suitable? As I said, this 
political psychodrama has taken the bizarre twist of Alice in 
Wonderland, where black is white and up is down; where suitable is 
unsuitable and unsuitable becomes suitable, except that this is no 
play, and these people are not playing around. The stakes couldn't be 
higher, and these people are playing for them all. The stakes are the 
future of the

[[Page S9895]]

country and all the people, all of the people who live in this great 
United States of America.
  One conservative activist is quoted in the Post story:

       You finally get a Republican President a real Republican 
     majority in the Senate and then you don't move the country to 
     the right? It would be totally demoralizing to the 
     President's supporters.

  First of all, this notion that the U.S. Supreme Court is some liberal 
bastion is itself bizarre and wrong. Seven of the nine Justices on the 
current Court were named by Republican Presidents. Chief Justice 
Rehnquist and three Associate Justices were nominated by President 
Reagan, two by former President George W. Bush, one by President Ford 
and two by a Democratic President, President Clinton. But that 
composition of the Court, 7 of 9 nominees by Republican Presidents, 
that is not enough for the activist zealots. They believe that some of 
those Republican judicial nominees had become too moderate, once they 
were safely confirmed and placed on the Supreme Court.
  Too moderate for them is a judge who has independent views. Too 
moderate is a judge who has sworn to uphold the Constitution and not to 
impose his or her views on that process of legislation and enactment 
into law as prescribed by the U.S. Constitution. Too moderate for them 
means refraining from judicial activism, which they profess to oppose 
but in fact oppose only when they disagree with the Court's findings.
  Government is not a Burger King. You are not supposed to all ``have 
it your way.'' People who think getting their own way all the time, 
especially from the U.S. Supreme Court, is somehow a measure of 
Presidential greatness are seriously wrong. People who are demoralized 
if they do not get it all their own way, especially from the U.S. 
Supreme Court, are dangerously misguided. I implore President Bush to 
rise above his base, as it is described in the article. If it is not to 
be Attorney General Gonzales, then someone else who is moderate and who 
is therefore suitable, who is therefore qualified to serve in this 
highest Court of the land. It may not serve the perceived interests of 
some of his misguided supporters, but it will serve the best interests 
of all of his supporters, who are all of us--all of the American 
people. He is the President of all of us. He was elected through our 
process to represent all of us, to be supported when we can, and 
ultimately, in the office he serves, by all Americans. It is the 
process for him to nominate and for this body to confirm a U.S. Supreme 
Court Associate Justice who will also serve, look out for and serve all 
Americans.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered. The 
Senator is recognized.

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