[Congressional Record Volume 151, Number 113 (Monday, September 12, 2005)]
[Senate]
[Pages S9908-S9911]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF JOHN ROBERTS

  Ms. MIKULSKI. Mr. President, I will put on a different hat. I was 
talking about appropriations. Now I will talk about a drama that is 
unfolding in the Senate which is the confirmation hearings on Judge 
John Roberts to go to the Supreme Court and to be the Chief Justice. I 
rise today to talk about this nomination because this is a decision of 
enormous consequence. One of the most significant and far-reaching 
votes a Senator can make relates to the Supreme Court. Why? Because it 
is irrevocable. When you vote for a Supreme Court Justice, that Justice 
has a lifetime appointment. Unless there is an impeachment, which is 
rare, it is forever.
  The hearings are incredibly important, they provide the Senate and 
the American public with the opportunity to know more about where the 
nominee stands on core constitutional principles. I urge Judge Roberts 
to answer the questions that the Committee asks of him.
  But equally important is completing the picture. The Senate should 
have access to the full record of the nominee who is going into the 
hearings. We need to know more about Judge Roberts. We have all met 
him. We find him personable. We find him smart. We find him capable. 
But we wonder, what is his judicial philosophy. What will he be like, 
not only as a member of Court but now as the Chief Justice. Look back 
to the record, not only the resume but to the record.
  This is why I am joining with a group of other Senators to urge the 
White House to release documents on 16 cases argued by the Solicitor 
General when Judge Roberts was the Principal Deputy Solicitor General. 
You might ask: Why do you need to know this? This is when then Mr. 
Roberts played a very important role in shaping strategy, recommending 
policy, and it is one of the best insights we have into his judicial 
philosophy, his views, his legal reasoning. We want to know: Where does 
he stand on an issue such as the implicit right of privacy, on issues 
related to civil rights, on religious expression, on title IX, on 
affirmative action, and voting rights. And we want to know because the 
record before us now raises serious questions about his commitment to 
women's and civil rights. Prior to any vote, the American people need 
to know where he stands on these issues. We, the Senators, need to 
know, too, so we can make an informed, rational decision.
  The administration has refused to release these documents, even 
though they did so before. They did it when Mr. Bork was nominated, and 
they did it when William Rehnquist was nominated. This is particularly 
compelling since now the Roberts nomination has gone from a replacement 
of Justice Sandra Day O'Connor to replacing the Chief Justice. These 
documents matter because they represent the views from later in his 
career when he held his highest political appointment and was 
responsible for making policy recommendations. These documents will 
illuminate his beliefs and his approach to the law, and they will help 
this Senator and others to know where he stands on the important 
issues.
  It is the constitutional duty of the Senate to conduct a thorough 
examination of the nominee, and we can only do it if we hear from the 
nominee himself through the confirmation processes, and have a complete 
record before us. We have his resume, he has received his rating from 
the American Bar Association, but we now need the documents on these 16 
cases in order for us to do our homework and to do our due diligence. 
This is probably one of the most important votes I will ever take, 
along with my 99 colleagues. We need to know:
  What type of Justice will John Roberts be?
  Before the Senate left for its August break, I joined with six of my 
Democratic women colleagues to launch a website allowing Americans to 
have a voice in the confirmation process. The American people have a 
right to be part of the process and let the Senate know what they want 
Judge Roberts to answer. And we want them at the table. We want them to 
feel included and have the chance to participate. The Democratic women 
launched a Web site to allow them that opportunity. We remember how we 
were shut out during the judicial proceedings on Clarence Thomas. There 
were no women on the Judiciary Committee. Now there are. But we know 
what it is like not to have a seat at the table. We know what it is 
like not to be able to raise our questions. So we established this Web 
site so the public could ask about issues that impact them every day.

  Guess what. Over the past month alone, 25,000 Americans responded to 
this Web site--with over 40,000 questions. They wanted to know where 
Judge Roberts stands on Roe v. Wade, privacy rights in light of 
national security challenges, the right to privacy, such as under the 
PATRIOT Act, what about so-called religious expression in schools, 
protecting our environment, protecting our civil rights, protecting our 
voting rights. And I am standing with them, because the record before 
us shows that Judge Roberts has argued against established 
constitutional protections against sex discrimination. He has argued 
that disparate treatment of men and women is reasonable when you don't 
have the resources to provide for both. He supported a very narrow 
interpretation of title IX. All arguments which the Supreme Court has 
squarely rejected.
  Clearly, there are reasons people are troubled. Questions that 
Americans sent us were on the deepest and most heartfelt concerns of 
their families. A woman in Ohio wanted to ask Judge Roberts where he 
stands on women's equality. She said not just on choice and 
reproductive rights, but on wage equality, childcare options, glass 
ceilings. Where is he in the enforcement of equal opportunity and 
nondiscrimination.
  A man from my home State of Maryland wanted to know did Judge Roberts 
support title IX. His niece played sports in high school and wanted to 
be sure that college sports teams would have resources and access to 
scholarships, as the guy teams do. A mother from Indiana wrote us. A 
single mom. In the 1950s, she was earning 60 cents for every dollar a 
man earned. She wanted to know where the judge stands on pay equity. 
These were the kinds of things they wanted to know. Quite frankly, I 
would like to know too. How Judge Roberts chooses to respond is his 
business. But whether we support the nominee based on those responses 
is our business and how the administration responds to our requests for 
documents is also our business.
  That is why the White House must release those documents to the 
Senate. We want to have access to the documents relating to those 16 
very important cases that were argued by the Solicitor General before 
the Supreme Court. These documents will help us evaluate the nominee 
and will enable us to make the kind of decision the American people 
want us to make.
  As Judge Roberts begins his testimony and is asked about his past 
decisions, judicial philosophy and legal background, Americans will be 
watching. I urge the nominee to be forthcoming. He should not conceal 
his views on issues that the majority of Americans care about like 
reproductive choice, civil rights, congressional power, the environment 
and separation of church and state.
  I also urge the White House to be forthcoming. They should not 
conceal documents that may illuminate those views. Judge Roberts' past 
career causes concern about his commitment to core constitutional 
principles and we need to have, and the American people deserve, a 
complete picture.
  Mr. GREGG. Will the Senator yield for a question?
  Ms. MIKULSKI. Yes.
  Mr. GREGG. I ask if the Senator would allow me to propound a 
unanimous consent request so that I might speak at the conclusion of 
the speakers she has on her side.

[[Page S9909]]

  Ms. MIKULSKI. First, in terms of senatorial courtesy, I have no 
reason to object. But as I understand it, the order of the day is that 
at 5:30, we must go into consideration of the mercury rule for 1 hour. 
I ask the Presiding Officer, what is the order?
  The PRESIDING OFFICER. The order is that at 5:30, the Senate will be 
in morning business for 1 hour with the time controlled by Senator 
Inhofe of Oklahoma or his designee, and the Senator from Nevada, Mr. 
Reid, or his designee.
  Ms. MIKULSKI. May I ask the Presiding Officer, at 5:30 the Senate 
will go into morning business?
  The PRESIDING OFFICER. The Senator is correct.
  Ms. MIKULSKI. Who controls that morning business?
  The PRESIDING OFFICER. The time is equally divided and controlled by 
Senator Inhofe of Oklahoma or his designee and the Senator from Nevada, 
Mr. Reid, or his designee.
  Ms. MIKULSKI. I misunderstood. I thought there was a mandate at 5:30 
to go to the mercury rule. I have no objection to the Senator's 
request.
  Mr. GREGG. I ask unanimous consent that I be allowed at 5:30 to 
proceed for 10 minutes in morning business and that I be recognized at 
that time.
  Mrs. BOXER. Reserving the right to object----
  Mr. GREGG. Assuming the speakers on the other side have completed 
their statements.
  Mrs. BOXER. I have absolutely no problem with this. I know Senator 
Clinton is trying to make it from an airplane to get to the floor. So 
as I understand it, Senator Mikulski has the time until 5:30; is that 
correct?
  Ms. MIKULSKI. Yes.
  Mrs. BOXER. Hopefully, she will make it. If I could cover us and say 
5:35, and then it would go to Senator Gregg, would that be OK?
  Mr. GREGG. I amend my request so that I be recognized at 5:35 for 10 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GREGG. I thank the Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I have now concluded my remarks and 
yield to the Senator from California, Senator Boxer, such time as she 
may consume.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Mr. President, I thank the Senator from Maryland for her 
leadership in reaching out to the people of this country, asking them 
to send in their questions for Judge Roberts. As she noted, 25,000 
individuals wrote in questions and we received a total of 40,000 
questions. It shows the American people have a lot at stake. This is a 
serious time for our country, and a very important nomination. We 
certainly know that.
  Most Americans understand that the Court plays a huge role in 
defending our rights and freedoms, and now Judge Roberts has been 
nominated to be the Chief Justice of the United States. Although some 
will say it makes no difference, it makes a big difference. The Chief 
Justice runs the Court, sets its tone, assigns responsibility for 
writing its decisions, has a certain amount of cachet to speak for the 
Court, and so on.
  The Judiciary Committee began its hearings today on Judge Roberts. 
This is a vital part of the advice and consent role of the Senate. 
Before we vote, it is every Senator's duty to find out if Judge Roberts 
will uphold or undermine our fundamental freedoms, the freedoms that 
essentially define us as Americans. It is our duty to find out if Judge 
Roberts will fulfill the promise etched above the Court itself: Equal 
justice under the law--not justice only for the powerful, but equal 
justice for all. And when I say we have a duty, I am talking about our 
responsibility as Senators to act on behalf of we the American people.
  That is why the Democratic women, under Senator Mikulski's 
leadership, created the AskRoberts Web site. Americans submitted 40,000 
questions about a broad range of issues, including privacy, 
reproductive health, civil rights, women's rights, and the environment. 
One individual posed this question to Judge Roberts: In your opinion, 
why would the White House refuse to turn over public records from your 
time as Deputy Solicitor General? What is there to hide?
  What is there to hide? It is a very important question. Senators on 
both sides of the aisle should be asking that question. Before we 
confirm Judge Roberts to a lifetime appointment as Chief Justice, we 
need to know everything possible about his views and philosophy. This 
isn't because it is interesting, because I am sure it would be 
interesting. Judge Roberts is a very bright and interesting man. But it 
is because every American's rights and freedoms hang in the balance. 
Judge Roberts has a very thin record on the bench. Therefore, his 
writings and statements, when he worked for the Reagan administration 
and the first Bush administration, become very important.
  We know that in his position working for Kenneth Starr, Mr. Roberts 
played a very important role. He was a top decisionmaker in the 
Solicitor General's Office. He appeared before the Supreme Court and, 
by his own admission, made the final determination of which cases to 
appeal in hundreds of circumstances. It is not as if we haven't gotten 
information like this before. We did so during the confirmation 
hearings for Judge Bork and Justice Rehnquist.
  That is why Democrats on the Judiciary Committee, under the 
leadership of Senator Leahy, and the Democratic leadership, under the 
leadership of Senator Reid, and the Democratic women, under the 
leadership of Senator Mikulski, and the entire Democratic caucus have 
written letter after letter to Attorney General Gonzales demanding 
these documents be released.
  We are talking about a very narrow request--only 16 cases--not a 
broad request for all records. What are these cases we are asking 
about? They include three about reproductive health, five about 
discrimination and civil rights, and three about the environment. These 
are the very issues Americans told us they wanted Roberts to answer 
questions about when they wrote to our Web site.
  In poll after poll, the American people are saying that Judge Roberts 
has to tell us what he believes, and we deserve to have this 
information. Everyone agrees that Judge Roberts is extremely qualified 
and very personable. But we need to know about his views and philosophy 
because, if confirmed, the cases he would decide will impact the daily 
lives of all Americans.
  I believe the American people want transparency and openness in this 
process. This should not be some hide-and-seek, catch-me-if-you-can 
deal. This is about someone who could sit on the Court for 30 years, or 
more. This is someone who is going to influence the lives of our 
grandchildren and perhaps even our great grandchildren.
  In addition to getting the information on these cases, Judge Roberts 
also must answer questions, and I hope he is going to do that. I know a 
couple of my colleagues on the other side of the aisle today seemed to 
be counseling him not to answer questions. One of them cited Judge 
Ginsburg, and said she drew the line by refusing to answer questions.
  Let me tell you what Judge Ginsburg said at her hearing when she was 
asked about Roe v. Wade and a woman's reproduction freedom. She said:

       It's a decision she must make for herself.

  And when Government controls that decision for her, she is being 
treated as less than a fully adult human.
  That is a quote from Ruth Bader Ginsburg. And it is certainly at odds 
with all that Senator Hatch and others are saying about how Ruth Bader 
Ginsburg didn't answer questions about key legal issues. No. 1, her 
writings on this and other topics were extensive. Then at the hearing, 
she said clearly that when the Government takes control--I am going to 
read it again:

       When Government controls that decision, a woman is being 
     treated as less than a fully adult human.

  I want to know whether Judge Roberts agrees with that. He will have a 
chance to express that view and also his view about the role of 
Congress in protecting our families and communities. Take, for example, 
the violence against women. Part of that act, written by Joe Biden and 
Orrin Hatch--and I worked with Senator Biden for years on that--part of 
that law was thrown out. We want to know how Judge Roberts feels about 
whether we in the Senate can protect the women of our country, can 
protect the families of our country, can protect those who perhaps 
cannot speak for themselves.

[[Page S9910]]

  We need to know if Judge Roberts thinks the right to privacy is a 
fundamental right. We know he wrote about it as the so-called right of 
privacy.
  If I referred to your spouse as your ``so-called spouse,'' that would 
be an insult, wouldn't it? If I referred to your right to vote as your 
``so-called right to vote,'' my constituency would be very upset with 
me because the right to vote is not a so-called right. So when you say 
something is a so-called right, it raises a lot of questions about how 
you feel about it.
  We also need to know why Judge Roberts argued before the Supreme 
Court and on national TV that our Federal courts and marshals had no 
role in stopping clinic violence when women were being threatened and 
intimidated at family planning clinics all over the country.
  It is time for Judge Roberts to say what he really thinks--on 
privacy, on gender discrimination, on civil rights, on the environment. 
On the appellate court, he wrote an opinion that raises questions about 
whether he would find the endangered species act constitutional. Does 
he think it is our right in the Congress to pass environmental laws 
that protect all Americans?
  As Senator Mikulski said, the role of the women Senators is very 
important. Women across America are counting on us to stand up, to ask 
the questions, and to get the answers. When we vote on this nomination, 
it must be an informed vote either yes because we believe he will 
protect our rights and freedoms or no because we have not been 
convinced.
  I thank the Chair. I yield back my time to Senator Mikulski.
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I yield the floor to the senior Senator 
from the State of Washington, Mrs. Murray, for such time as she may 
consume.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I thank the Senator from Maryland for 
organizing the AskRoberts.com in which we are all participating to 
allow people across this country to be a part of this very important 
process that is occurring in the Senate today.
  Today, our country faces many challenges. We look at the suffering 
along the gulf coast, we face ongoing military operations in Iraq and 
in Afghanistan, and we face the solemn and significant task of not only 
filling two Court vacancies but confirming a new Chief Justice. While 
the confirmation of a new Justice may not be the topic of dinner table 
conversations across the country tonight, the actions of the next 
Supreme Court Justice will impact the lives of every American family 
for generations to come.
  Last week, this Chamber mourned the passing of Chief Justice 
Rehnquist who served on our Nation's highest Court for over three 
decades. The great range of issues on which the Supreme Court ruled 
during Justice Rehnquist's tenure--from Roe v. Wade to capital 
punishment to Miranda rights to the conclusion of a Presidential 
election--shows the American public just how closely the Court touches 
each of our daily lives. My home State of Washington is 3,000 miles 
away from the Nation's Capital, but the issues the Supreme Court takes 
up, whether it be title IX or eminent domain or a woman's right to 
choose, hits home for them as well.
  Back in 1991, when I was a State Senator and a former school board 
member and a mother, I watched the Clarence Thomas confirmation 
hearings that came before the Senate Judiciary Committee. For days and 
days, I sat in frustration at home. I simply could not believe that 
this nominee was not asked about the issues about which I cared. I did 
not believe the Senators in that room were representing me or asking 
the questions I wanted answered. So I did something about it: I ran for 
the U.S. Senate. Now, thankfully, I am here and I can get my questions 
answered. But I remain very concerned for the women and the men in my 
State and around the country. Certainly they have issues that are 
important to them that will come before the Supreme Court. Certainly 
they have questions they want answered. Not everyone is going to be 
able to run for the Senate, but everyone should be able to have their 
voice heard.
  This is a process in which the American public deserves to be 
involved. Judge Roberts is being considered for a lifetime appointment, 
and the American people deserve to know where he stands on a number of 
issues that affect our Nation's future. That desire to give Americans 
around the country a voice in this process is what inspired me and my 
colleagues from California and Maryland to set up a Web site: 
AskRoberts.com. Through our Web site, we have collected tens of 
thousands of questions over the past several months that have now been 
delivered to the Senate Judiciary Committee in hopes that they will be 
asked of Judge Roberts during his confirmation hearing.
  This is not an inside-the-beltway debate. Judge Roberts has been 
nominated to a lifetime appointment on the highest Court in the land, 
and he will influence our path on issues ranging across the spectrum.
  Many Americans must be wondering what this all means to them, how it 
will affect them. Let me make it clear: This debate we are now having 
is about whether we want to protect essential rights and liberties, 
including the right to privacy about which the Senator from California 
talked. This debate is about whether we want free and open government. 
This debate is about whether we want a clean, healthy environment and 
the ability to enforce laws to protect it fairly. And this debate is 
about preserving equal protection under the law.
  Judge Roberts has an obligation--not to the Senate but to the 
American people--to make his views known on these basic values. Only 
then can we make a reasoned judgment on his nomination. That is why I 
have joined with a number of my colleagues in calling on the Attorney 
General to fulfill the request that was made by our colleagues on the 
Judiciary Committee for documents related to 16 key cases on which 
Judge Roberts played a leadership role during his service as Solicitor 
General. Not only is there precedent for the disclosure of those 
documents--similar information was provided to the Senate when it 
considered the nomination of Justice Rehnquist--but there is also clear 
imperative. If we are going to fulfill our constitutional duty to 
provide meaningful advice and consent on this nomination, that consent 
must be informed and this process must be opened, not only to the 
Members of this body but to the American people.
  With the questions and concerns of Americans from coast to coast in 
mind, I will work with my colleagues to ensure that the President's 
nominee to fill this position will be fair and impartial, evenhanded in 
administering justice, and will protect the rights and liberties of all 
Americans.
  Mr. President, I yield back my remaining time.
  Mrs. BOXER. Mr. President, as I understand it, we have 5 minutes 
before Senator Gregg has the floor; is that correct?
  The PRESIDING OFFICER. The Senator from California is correct.
  Mrs. BOXER. Mr. President, I thank Senator Murray because she has a 
way of putting things quite succinctly and clearly and I appreciate her 
coming to the floor.
  There is a very interesting editorial today in USA Today, and I want 
to quote from it. The first part says there is no question that the 
President has chosen someone with similar views to Judge Rehnquist. 
This is what they say:

       But, if the men are similar, the nation is different now 
     from what it was when Rehnquist joined the Court 33 years 
     ago, and that difference raises provocative questions for 
     Roberts as Senate confirmation hearings begin today.

  This is how they say it has changed since Judge Rehnquist's hearings:

       In particular, the United States has become a far more 
     tolerant society. In 1972, racial segregation was still being 
     dismantled. Women, like African-Americans, were routinely 
     deprived of equal opportunity. The notion that Americans 
     possess a right to privacy, established by the landmark 1965 
     Supreme Court case that overturned state laws against birth 
     control, was still taking root.

  This editorial goes on to ask if Roberts would make it difficult for 
Congress to extend those gains or even turn back the clock, concluding:

       His record leaves plenty of room for doubt.

  Now, this is USA Today. It is not considered a liberal newspaper. It 
is a pretty mainstream paper and it raises the issue of privacy, 
writing:


[[Page S9911]]


       In memos written when he was in the Reagan administration, 
     Roberts disparaged the notion that there is a constitutional 
     right to privacy that prevents the government from 
     criminalizing contraception, abortion and gay sex.

  And then it talks about race:

       Roberts has belittled affirmative action as ``recruiting of 
     inadequately prepared candidates'' and has argued for 
     standards that would make it easier for school districts to 
     evade desegregation orders.

  On women's rights, it is also troubling:

       Roberts ridiculed the concept that women are subject to 
     workplace discrimination, and he argued for narrowing the 
     government's ability to enforce the ban on gender 
     discrimination in education.

  They close by saying:

       His record bears close scrutiny and his answers should go a 
     long way toward determining whether he should be confirmed 
     for a lifetime appointment as the Nation's most powerful 
     jurist, deciding issues barely imaginable today and 
     influencing the lives of generations to come.

  As I say, this editorial is quite mainstream. It raises legitimate 
concerns about Judge Roberts. It basically says to the Senate, it is 
your job to find out how he is going to rule on cases we cannot even 
envision at this time.
  I think that the committee is off to a good start. I received a 
briefing while I was on a plane today about the Senators' comments on 
both sides of the aisle. It clearly seems to be a confirmation that 
both sides are taking extremely seriously.
  I say to those friends and colleagues on the other side who are 
counseling Judge Roberts that he does not have to answer questions, 
that would be a big mistake. The American people in poll after poll are 
saying to us, we have a right to know. We want to have answers to very 
important questions that will shed light on if Judge Roberts is going 
to make sure this Congress and this Federal Government can protect 
them; that we can protect the environment; equal rights for women and 
for minorities; that we have the ability to make life better for the 
American people; and that we, in fact, will be able to respect the 
dignity of our people by making sure there is not a ``so-called'' right 
to privacy but a fundamental right to privacy that has been articulated 
by the Court and that we hope Judge Roberts will uphold.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.

                          ____________________