[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.
____________________