[Congressional Record Volume 151, Number 117 (Monday, September 19, 2005)]
[Senate]
[Pages S10168-S10173]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JUDGE JOHN G. ROBERTS, JR.
Mr. SPECTER. Mr. President, I have sought recognition to speak about
the confirmation of Judge John G. Roberts, Jr., to be Chief Justice of
the United States.
Mr. President, no vote cast by a Senator in this body is more
important than a vote cast on the confirmation of a Supreme Court
Justice, with the exception of a declaration of war, or a resolution
authorizing the use of force.
The confirmation process for Chief Justice is obviously somewhat more
important than that for Associate Justice. It is even more important in
the context of Judge Roberts who is 50 years old and has the potential
to serve for decades in that very key position, as the second youngest
Chief Justice in the history of the country and the 17th Chief Justice
in our Nation's history.
Judge Roberts comes to this position with an extraordinary academic
record--3-year graduate of Harvard College summa cum laude, magna cum
laude in the Harvard Law School, and an illustrious career in private
practice and government service. He argued some 39 cases before the
Supreme Court of the United States.
We have examined some 76,000 documents. We have looked at his
participation in some 327 cases in the Court of Appeals for the
District of Columbia Circuit, where he was confirmed by the Senate 2
years ago by unanimous consent. We have seen his briefs in the
Solicitor General's Office, and we have heard some 31 witnesses
regarding his nomination. These included a witness from the American
Bar Association, which rated him unanimously well qualified, the
highest recommendation possible. The remaining thirty witnesses, who
were chosen equally by the Democrats and the Republicans, testified at
length about Judge Roberts' career. We know a great deal about Judge
Roberts.
Based on all of these proceedings, including 17 hours of testimony
before the committee, it is my judgment he is well qualified to be
Chief Justice of the United States. I intend to vote aye when his
nomination is called before the Senate.
He has taken a position that a judge should be modest and should look
for stability in the law. On a number of occasions in his testimony
before the committee, he emphasized the point that judges are not
politicians and that judges ought not inject their own personal views
into the law.
He commented about the flexibility of the law, saying that principles
such as equal protection and due process were meant to last through the
ages and have a flexible quality. He said, ``They [referring to the
framers] were crafting a document that they intended to apply in a
meaningful way down through the ages.''
While he would not accept the specific language of Justice John
Marshall Harlan II that the Constitution is a living thing, he did
testify that the language of liberty and due process has broad meaning
as applied to evolving societal conditions.
He talked very directly when questioned about the right of privacy.
He said that Griswold v. Connecticut, which established the right of
privacy, was correctly decided. That case overturned the state law
prohibiting the use of contraceptives for married people. He also said
the holding of Griswold would apply to single people as well as to
married people under the Eisenstadt decision.
When it came to the critical question of Roe v. Wade, I did not ask
him whether he would affirm or reject the Roe doctrine. I did not do so
because I believe it is inappropriate to ask a nominee how he would
decide a specific case.
As chairman, it was my view that any member could ask the nominee any
question that the member chose to, and the nominee would be free to
respond as he chose. Beyond refraining from specifically asking whether
he would affirm or overrule Roe v. Wade, others and I questioned him
extensively about the import of stare decisis, the Latin term meaning
``let the decision stand.'' He emphasized that stare decisis was a very
important principle in the law and that even where a justice might
consider Roe wrongly decided, it takes more to overturn a precedent
than simply to conclude it was wrongly decided initially. Because--and
this is Arlen Specter speaking, not Judge Roberts--where the case has
stood for some 32 years and has been reaffirmed most emphatically in
Casey v. Planned Parenthood, it has become, as some have called it, a
super precedent.
I then made the point that the Supreme Court had taken up the issue
so that Roe could have been reversed, overruled on some 38 occasions.
Should it come before the Court again, perhaps the balance of the 38
cases would make super-duper precedent to uphold Roe.
The question remains as to how he will rule. Nobody knows that for
certain.
The one rule that seems to be the most prevalent one is the one of
surprise. He testified extensively about his concern for civil rights.
He talked about affirmative action. He agreed with Justice O'Connor
that the impact of the people in the practical everyday world was of
considerable importance. I questioned him about his participation in
the case of Romer v. Evans, where he lent some counsel to the lawyers
who were arguing the case involving gay rights and he participated in
support of gay rights.
His partner at Hogan and Hartson, Walter Smith, had this to say about
Judge Roberts' participation in that case. Mr. Smith said that ``every
good lawyer knows that if there is something in his client's cause that
so personally offends you morally, ligiously, or if it so offends you
that you think it would undermine your ability to do your duty as a
lawyer, then you shouldn't take it on, and John wouldn't have. So at a
minimum he had no concerns that would rise to that level.''
I then asked Judge Roberts if he agreed with Mr. Smith's analysis and
if he would have refrained from helping in that situation, and he said:
``I think it's right that if it had been something morally
objectionable, I suppose I would have.''
His support of gay rights is not an insignificant consideration in
our evaluation of his views of civil rights.
Judge Roberts made quite a point of contending that he had answered
more
[[Page S10169]]
questions than most, and I think to some extent he did. He articulated
the standard that he would answer the questions unless the case was
likely to come before the Court. Some of his predecessors have refused
to answer any questions at all.
As I have said, from time to time, when Justice Scalia appeared
before the Judiciary Committee, he wouldn't answer much. Even prisoners
of war are compelled to give their name, rank, and serial number; Judge
Scalia would only give his name and rank. He wouldn't give his serial
number. I say that in a metaphor. Justice Scalia would not say if he
would uphold Marbury v. Madison, which is an 1803 decision establishing
the supremacy of the Supreme Court, the duty of the Supreme Court, and
the responsibility and authority of the Court to interpret the
Constitution.
Judge Roberts did comment on Griswold and Eisenstadt and quite a
number of specific cases as he went along. There were some cases where
he would not answer where I candidly thought he should have answered,
but my rule is that the Senator asks the questions, the nominee
responds, and it is a political judgment as to whether the nominee has
responded sufficiently to warrant or merit confirmation or the
Senator's vote.
For some time now, I have expressed my concern, a concern which was
shared by the distinguished Senator from Ohio, Senator DeWine, who now
occupies the chair of the Presiding Officer. Senator DeWine raised a
line of questions, as I did. I raised a question about the case of
United States v. Morrison where the Supreme Court declared part of the
legislation unconstitutional, legislation designed to protect women
against violence. I pointed to the very extensive record on surveys in
21 days and 8 separate reports. The Court, in a 5-to-4 decision,
determined that the legislative record was insufficient, but it seemed
to me that it was probably the case that the record was more than
sufficient. This is what I consider to be an encroachment on
congressional authority. The majority opinion, after reviewing that
record, said it was insufficient because they disagreed with the
congressional ``method of reasoning.''
The question I have about that is, Who are they--the Supreme Court
Justices--to say that their ``method of reasoning,'' is superior to
ours? What happens when you leave the columns of the Senate, which are
directly aligned with the columns of the Supreme Court, and walk across
the green? Is there some superiority of competency there? The dissent
pointed out that the majority opinion was saying that there was some
sort of unique judicial competence on the method of reasoning. The
inference there is that there is some congressional incompetence. I
reject that. And I believe the Constitutional separation of powers
rejects that.
Where there is an expansive record, as we had in United States v.
Morrison, it ought to have been upheld. It is a derogation of
congressional authority and insulting to question our method of
reasoning.
I asked him about the two cases where the Supreme Court interpreted
the Americans With Disabilities Act 3 years apart, 2001 and 2004. In
Garrett v. Alabama, by a 5-to-4 decision, the Court ruled
unconstitutional the part of the Americans with Disabilities Act which
protected against discrimination in employment; and then, 3 years
later, in Tennessee v. Lane, again by a 5-to-4 vote, the Supreme Court
upheld the application of the section of the Americans With
Disabilities Act concerning access to public accommodations for a
paraplegic who had to crawl up the steps to get to a courtroom. The
records were identical as to both of the sections in the same act. You
had the same voluminous record presented.
In dissent, in the Lane case, Justice Scalia called it a ``flabby
test.'' He said that where the Court has used a standard of what they
called ``congruence and proportionality,'' that it was ill-advised.
Justice Scalia said the Court was really making itself the taskmaster
of the Congress and, in effect, treating us like schoolchildren.
Now, where did this test, ``congruence and proportionality,'' come
from? It came out of thin air. In 1997, in the Boerne case where the
Court declared the Religious Restoration Act unconstitutional, they
came up with this test which has not a scintilla of objective meaning.
How can the Congress figure out what it is that the Supreme Court has
in mind? They go 5 to 4 on one title of the Americans with Disabilities
Act and 5 to 4 the other way on another title of the Americans with
Disabilities Act. Frankly, I thought the committee and the Senate were
entitled to answers on those questions, but Judge Roberts declined to
answer.
That is a work in process. We are not putting that one down. There
are some things which the Congress can do about that to assert
congressional power, and it will be pursued.
On the issue of Judge Roberts being Chief Justice, it is an
intriguing prospect for a man of 50 to take over the Court where Judge
Stevens is 35 years his senior; Justice Scalia is 18 years his senior;
even Justice Thomas, the youngest of those on the Court at the moment,
is 7 years his senior. I asked Judge Roberts about that, both in the
informal session in my office and in the Senate hearing. He described
his work as being an advocate before the Court as a ``dialogue among
equals.'' I thought that was a fascinating evaluation.
In the Supreme Court--and I have had occasion to be there three
times--a lawyer stands on one level, and the Court is on a higher
level. I do not exactly perceive it personally as a dialogue among
equals, but I consider it fascinating that he did. Perhaps when you
have been there 39 times, the level of inequality levels out. But he
has an opportunity, from his vantage point, knowing the Justices, as he
does, having been there so long, and having been a clerk for Justice
Rehnquist when he was an Associate Justice back in 1980, to do
something about these 5-to-4 decisions.
There was a discussion about what Chief Justice Earl Warren did in
bringing the Court together. When he was appointed Chief Justice in
1953, he molded a unanimous opinion in Brown V. Board of Education--if
not the most important case in the Court's history certainly one of the
most important cases, and one of the most contentious cases.
However today we see a plethora of 5-to-4 decisions--a recent case
involving the Americans with Disabilities Act being one illustration,
but there are many others; you had the Ten Commandments cases this year
where the Court said it was OK for the State of Texas to have the Ten
Commandments on a tower but unconstitutional for Kentucky to display
the Ten Commandments indoors, in two decisions whose results absolutely
defy logic or are inexplicable.
I have also been troubled by the modern tendency to have so many
concurrences and dissents. Before the Judiciary Committee held hearings
regarding the detainees at Guantanamo Bay, I read three Supreme Court
opinions from June of 2004. They were a maze of confusion as you tried
to work your way through them. One was a plurality opinion. Only four
Justices could agree. They did not have the opinion of the Court, and
the other cases were replete with multiple opinions as well.
Currently you have a situation where Justice A will write a
concurring opinion, joined by Justice B; and then Justice B will write
a concurring opinion, joined by Justice A and Justice C. You wonder,
why so many opinions? Judge Roberts commented and testified he thought
that was a matter the entire Court should work on, and certainly one he
would pledge to work on himself.
The subtle ``minuet'' of the confirmation hearings for Judge Roberts
turned bombastic and contentious at times, but he always kept his cool
and responded within reasonable parameters. The Judiciary Committee and
the full Senate cannot be guarantors that Judge Roberts will fulfill
our's or anyone's expectations. The Court's history is full of Justices
who have surprised or disappointed their appointers or inquisitors. But
the process has been full, fair, and dignified.
I think Judge Roberts went about as far as he could go in answering
the questions and declining to answer questions on cases likely to come
before the Supreme Court. When you consider all of the factors--his
academic record, his professional record, his record on the court of
appeals, the witnesses who testified who have known him intimately--it
is my judgment he is well
[[Page S10170]]
qualified and should be confirmed as the next Chief Justice of the
United States, the 17th Chief Justice of the United States. When the
roll is called, I intend to vote yea.
I ask unanimous consent that the full text of my statement be
included in the Record.
The PRESIDENT pro tempore. Without objection, it is so ordered.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Floor Statement of Senator Arlen Specter on the Nomination of Judge
John Roberts To Be Chief Justice of the United States
After listening to Judge John Roberts testify for nearly 17
hours and then hearing from 31 witnesses, some for and some
against his nomination, I have decided to vote to confirm him
to be Chief Justice of the United States.
Except for a declaration of war or its virtual equivalent,
a resolution for the use of force, no Senate vote is more
important than the confirmation of a Supreme Court justice;
and this vote has special significance because it is for
Chief Justice and the nominee is only 50 years old with the
obvious potential to serve for decades.
Judge Roberts comes to the committee with impeccable
credentials. He was graduated summa cum laude from Harvard
College in only 3 years, and magna cum laude from the Harvard
Law School. Following his graduation from law school, Roberts
obtained prestigious clerkships with Judge Henry Friendly of
the U.S. Court of Appeals for the Second Circuit and then
Associate Justice William H. Rehnquist.
Judge Roberts subsequently embarked on a distinguished
career in public service, serving as an Associate White House
Counsel in the Reagan administration and Principal Deputy
Solicitor General in the George H.W. Bush administration.
While in the Solicitor General's Office and then in private
practice with the firm of Hogan & Hartson, Judge Roberts
argued 39 cases before the U.S. Supreme Court, earning a
reputation as one of the finest appellate advocates in the
Nation.
When Judge Roberts was appointed to his current position on
the U.S. Court of Appeals for the D.C. Circuit, he earned the
highest rating from the American Bar Association and enjoyed
broad bipartisan support in being confirmed by unanimous
consent.
A threshold question, beyond his academic and professional
qualifications is how a man at 50 from outside the Court can
effectively function as Chief Justice. His previous clerkship
on the Court and the 39 cases he has argued there give him an
intimacy with the Court that few outsiders enjoy. He knows
the Court and the other Justices know him. Concerned about
his relative youth, I questioned Judge Roberts about how he
would feel becoming Chief Justice of a Court where one member
was 35 years his senior, and the next youngest, still some 7
years older. Judge Roberts' answer impressed me. He said
that, while in private practice, he approached his arguments
before the Court as a ``dialogue of equals.'' When he viewed
oral arguments in that light, considering himself to be their
equal, he projected the kind of confidence that he would be
comfortable and consider himself up to the job of Chief, who
is the ``first among equals.''
I also questioned him about the role the Chief Justice
should play in bringing about consensus on the Court. I have
been troubled by the numerous 5 to 4 decisions and the
proliferation of concurrences and plurality opinions that
often leave lower courts, lawyers, and litigants wondering
about what the Court actually held. I therefore asked:
``Judge Roberts, let me [ask about] the ability which you
would have, if confirmed as Chief Justice, to try to bring a
consensus to the Court. You commented yesterday about what
Chief Justice Warren did on Brown v. Board of Education,
taking a very disparate Court and pulling the Court together.
As you and I discussed in my office, there are an
overwhelming number of cases where there are multiple
concurrences. A writes a concurring opinion in which B joins;
then B writes a concurring opinion in which A joins and C
joins. In reading the trilogy of cases on detainees from June
of 2004 to figure out what we ought to do about Guantanamo,
it was a patchwork of confusion. I was intrigued by the
comment which you made in our meeting about a dialogue among
equals, and you characterized that as a dialogue among equals
when you appear before the Court, and they are on a little
different level over there. Tell us what you think you can do
on this dialogue among equals to try to bring some consensus
to the Court to try to avoid this proliferation of opinions
and avoid all these 5-4 decisions. . . .''
Judge Roberts responded:
``I . . . think . . . it's a responsibility of all of the
Justices, not just the Chief Justice, to try to work toward
an opinion of the Court. The Supreme Court speaks only as a
Court. Individually, the Justices have no authority. And I do
think it should be a priority to have an opinion of the
Court. You don't obviously compromise strongly-held views,
but you do have to be open to the considered views of your
colleagues, particularly when it gets to a concurring
opinion. I do think you do need to ask yourself, what benefit
is this serving? Why is it necessary for me to state this
separate reason? Can I go take another look at what the four
of them think or the three of them think to see if I can
subscribe to that or get them to modify it in a way that
would allow me to subscribe to that, because an important
function of the Supreme Court is to provide guidance. . . . I
do think the Chief Justice has a particular obligation to try
to achieve consensus consistent with everyone's individual
oath to uphold the Constitution, and that would certainly be
a priority for me if I were confirmed.''
Specter Questioning, Sept. 14, 2005
Given the unusual combination of his qualifications and
experience, including extensive personal contact with the
other justices, he has the unique potential to bring
consensus to the Court and to reduce the numerous repetitious
and confusing opinions.
The Judiciary Committee conducted a thorough and fair
confirmation hearing for Judge Roberts. He answered questions
before the committee for nearly 17 hours. Committee members,
both Democrats and Republicans, stated the hearings were
conducted in a fair manner with ample time for questions.
Although historically the majority party reserves more
witnesses for itself than it grants to the minority party, I
made the decision to break with precedent and divide the
number of witnesses evenly between the parties--1 neutral
witness from the ABA, 15 witnesses chosen by the majority,
and 15 witnesses chosen by the minority. This testimony,
combined with Judge Roberts's extensive record--76,000 pages
of documents from his service in the Reagan and Bush
administrations, 327 cases decided by Judge Roberts while on
the D.C. Circuit, thousands of pages of legal briefs from
Judge Roberts's service in the Solicitor General's Office and
in private practice, and dozens of articles and interviews by
Judge Roberts--provided the committee and now the full Senate
ample basis to evaluate Judge Roberts's qualifications to
serve as Chief Justice of the United States.
During his hearing, Judge Roberts addressed a wide variety
of subjects. On the key issue of whether the Constitution is
a static document or one which has the flexibility to adapt
to changing times, he said ``they (the framers) were crafting
a document that they intended to apply in a meaningful way
down the ages.'' While he would not accept Justice Harlan's
language of a ``living thing,'' he testified that the
language of ``liberty'' and ``due process'' have broad
meaning as applied to evolving societal conditions.
At the same time, however, he did not answer all the
questions I would have liked him to respond to. I questioned
Judge Roberts closely about his views with respect to
congressional authority to remedy discrimination under the
14th amendment. I asked him how the Supreme Court could
possibly have struck down the private remedy the Congress
created in the Violence Against Women Act in view of the
extensive congressional record, which--
``showed that there were reporters on gender bias from the
task force in 21 States and eight separate reports issued by
Congress and its committees over a long course of time . . .
there was a mountain of evidence.''
Specter Questioning, Wednesday, September 14, 2005
In light of that record, I asked:
``What more does the Congress have to do to establish a
record that will be respected by the Court? . . . Isn't that
record palpably sufficient to sustain the constitutionality
of the Act?''
Specter Questioning, Wednesday, September 14, 2005
Judge Roberts, however, declined to comment, explaining
that ``. . . I don't want to comment on the correctness or
incorrectness of a particular decision.''
Specter Questioning, Wednesday, September 14, 2005
Although I pushed him to answer my question, observing that
the case was long over, and the specific facts unlikely to
come before the Court again, Judge Roberts declined to answer
because of his view that:
``the particular question you ask about the adequacy of
findings . . . is likely to come before the Court again. And
expressing an opinion on whether the Morrison case was
correct or incorrect would be prejudging those cases that are
likely to come before the Court again.''
Specter Questioning, Wednesday, September 14, 2005
In fact, the most Judge Roberts would say is that:
``the appropriate role of a judge is a limited role and that
you do not make the law, and that it seems to me that one of
the warning flags that should suggest to you as a judge that
you may be beginning to transgress into the area of making a
law is when you are in a position of re-evaluating
legislative findings, because that doesn't look like a
judicial function. It's not an application of analysis under
the Constitution. It's just another look at findings.''
Specter Questioning, Wednesday, September 14, 2005
On the very important question of conflict between the
Congress and the Supreme Court, I was dissatisfied with his
responses on the Court's derogation of Congress' ``method of
reasoning'' and the Court's recent improvisation of the
meaningless ``congruence and proportionality'' standard. In
discussing the Americans with Disabilities
[[Page S10171]]
Act, I pointed out to him the problem of the Court issuing 5
to 4 decisions in two cases with identical records going
entirely opposite ways within 3 years. With respect to the
Garrett case, where Ms. Garrett, who had breast cancer,
sought relief under the ADA for employment discrimination, I
explained:
``The Court in 2001 said that the title of the Disabilities
Act was unconstitutional, 5-4, on employment discrimination.
Then 3 years later, you have the case coming up of Lane, the
paraplegic crawling up the steps, accommodations, 5-4, and
the Act is upheld.''
Yet, ``the record in the case was very extensive--13
congressional hearings, a task force that held hearings in
every State, attended by more than 30,000 people, including
thousands who had experienced discrimination.''
Despite these extensive factual findings, however, the
Court employed the ``congruence and proportionality'' test, a
test Justice Scalia criticized as ``flabby,'' to strike down
a portion of the act.
I asked Judge Roberts:
``Isn't this congruence and proportionality test, which
comes out of thin air, a classic example of judicial activism
. . .?''
Judge Roberts acknowledged the applicable precedents, but
when asked whether he agreed with Justice Scalia's
sentiments, stated:
``I don't think it's appropriate in an area--and there are
cases coming up, as you know, Mr. Chairman. There's a case on
the docket right now that considers the congruence and
proportionality test.''
He declined to answer the question. He did, however, state
that:
``If I am confirmed and I do have to sit on that case, I
would approach that with an open mind and consider the
arguments. I can't give you a commitment here today about how
I will approach an issue that is going to be on the docket
within a matter of months.''
specter questioning, wednesday, sept. 14, 2005
Although I was disappointed that Judge Roberts did not
answer some of my questions, still, I believe that he went
somewhat beyond the usual practice of answering just as many
questions as he had to in order to be confirmed. Many
nominees decline to answer if the issue could theoretically
or conceivably come before the Court.
Judge Roberts, however, went further, testifying:
``And the great danger of courts that I believe every one
of the Justices has been vigilant to safeguard against is
turning this into a bargaining process. It is not a process
under which Senators get to say I want you to rule this way,
this way, and this way. And if you tell me you'll rule this
way, this way, and this way, I'll vote for you. That is not a
bargaining process. Judges are not politicians. They cannot
promise to do certain things in exchange for votes. . . .
Other nominees have not been willing to tell you whether they
thought Marbury v. Madison was correctly decided. They took a
very strict approach. I have taken what I think is a more
pragmatic approach and said if I don't think that's likely to
come before the Court, I will comment on it . . . it is
difficult to draw the line sometimes. But I wanted to be able
to share as much as I can with the Committee in response to
the concerns you and others have expressed, and so I have
adopted that approach.''
schumer questioning, wednesday, september 14, 2005
Judge Roberts explained:
``If I think an issue is not likely to come before the
Court, I have told the Committee what my views on that case
were, what my views on that case are.''
kyl questioning, september 14, 2005
Of course, as with all nominees, there are circumstances in
which it would be inappropriate for Judge Roberts to take a
position. Since I believe it is inappropriate, for example,
to ask about an issue realistically likely to come before the
Court, I did not ask whether he would sustain or overrule Roe
v. Wade. Instead, I asked about his views on stare decisis,
or precedents, and what factors--how long ago decided,
stability, reliance, legitimacy of the Court--he might rely
on to decide whether he would vote to depart from a
precedent.
In addressing his respect for stare decisis, Judge Roberts
explained:
``I would point out that the principle goes back even
farther than Cardozo and Frankfurter. Hamilton, in Federalist
No. 78, said that, `To avoid an arbitrary discretion in the
judges, they need to be bound down by rules and precedents.'
So even that far back, the Founders appreciated the role of
precedent in promoting evenhandedness, predictability,
stability, the appearance of integrity in the judicial
process.
specter questioning, sept. 13, 2005
When I inquired about his application of these principles
to Roe, he noted that, ``it's settled precedent of the court,
entitled to respect under principles of stare decisis.'' When
I pressed Roberts to explain what he meant by that in the
context of Planned Parenthood of Southeastern Pennsylvania v.
Casey, where the Court said: ``that to overrule Roe would be
a `surrender to political pressure,' and `would subvert the
Court's legitimacy,''' he explained that ``as of 1992, you
had a reaffirmation of the central holding in Roe. That
decision, that application of the principles of stare
decisis, of course, itself a precedent that would be entitled
to respect under those principles.''
I called Judge Roberts' attention to the fact that Casey
had been labeled a super-precedent because different judges
had reaffirmed Roe after almost two decades. I then suggested
that, since the Supreme Court did not overrule Roe when it
had the opportunity to do so in 38 subsequent cases, it was
entitled to classification as a ``super-duper precedent.''
Again, he was noncommittal.
Judge Roberts consistently reiterated his commitment to
modesty in the law and the importance of stare decisis by
explaining:
``I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness. It is not enough--and
the Court has emphasized this on several occasions--it is not
enough that you may think the prior decision was wrongly
decided.''
Specter Questioning, Wednesday, September 14, 2005
Notwithstanding his answers and my efforts to glean some
hint or realistic expectation from his words and body
language, candidly it is not possible to predict or have a
solid expectation of what Judge Roberts would do. If there is
a rule on expectations, it is probably one of surprise.
Professor Charles Fried, a professor of constitutional law at
Harvard Law School who thought Roe was wrongly decided,
testified that he did not think Judge Roberts would or should
vote to overrule Roe.
The Washington Post editorial of September 15 had some
comfort from Judge Roberts' testimony:
``While he declined to address the merits of Roe v. Wade,
he did indicate that it is a decision to which stare decicis
consideration properly apply. Importantly, he said several
times that the subsequent decisions in Planned Parenthood v.
Casey which reaffirmed Roe's core principle--was
independently entitled to be treated as a precedent. That
implies that there would be a heavy burden for the court in
upsetting abortion rights now.''
Nevertheless, Judge Roberts did engage the committee on
several important related issues. With respect to the right
of privacy, for example, I asked him directly:
``Do you believe that the right to privacy--do you believe
today that the right to privacy does exist in the
Constitution?''
Roberts was forthright in his response, declaring:
``Senator, I do. The right to privacy is protected under
the Constitution in various ways . . . the Court has, with a
series of decisions going back 80 years that personal privacy
is a component of the liberty protected by the Due Process
Clause.''
Response to Specter Questioning, September 13, 2005
Similarly, in response to Senator Biden, who asked the
pointed question: ``Do you agree that there is a right of
privacy to be found in the Liberty Clause of the 14th
Amendment?'' Roberts responded:
``I do, Senator. . . . Liberty is not limited to freedom
from physical restraint. It does cover areas . . . such as
privacy, and it's not protected only in procedural terms but
it is protected substantively as well.''
Biden Questioning, September 13, 2005.
In fact, Judge Roberts was unequivocal in his support for a
right of privacy, asserting that:
``I believe that the liberty protected by the Due Process
Clause is not limited to freedom from physical restraint,
that it includes certain other protections, including the
right to privacy.''
Biden Questioning, September 14, 2005.
But Judge Roberts did not limit himself to finding simply a
general right to privacy. He also testified as to his
commitment to Griswold v. Connecticut. Senator Kohl, in
particular, asked:
``Judge, the Griswold v. Connecticut case guarantees that
there is a fundamental right to privacy in the Constitution
as it applies to contraception. Do you agree with that
decision and that there is a fundamental right to privacy as
it relates to contraception? In your opinion, is that settled
law?''
Judge Roberts explicitly stated:
``I agree with the Griswold Court's conclusion that marital
privacy extends to contraception and [the] availability of
that.''
Kohl Questioning, September 13, 2005.
He did not limit his understanding of the privacy right
merely to Griswold, however. Senator Feinstein asked:
``Do you think that right of privacy that you are talking
about [in Griswold] extends to single people as well as
married people?''
In response, Judge Roberts stated his agreement with the
Eisenstadt case, which provided protection to unmarried
couples as well as those who are married.
Feinstein Questioning, September 14, 2005
Roberts explained further his support for the Voting Rights
Act, observing that the right to vote is a ``fundamental
constitutional right,'' in his words:
``preservative . . . of all the other rights. Without
access to the ballot box, people are not in the position to
protect any other rights that are important to them. And so I
think it's one of, as you said, the most precious rights we
have as Americans.''
Kennedy Questioning, September 13, 2005
He acknowledged that the Voting Rights Act had advanced the
rights of minorities. He explained that:
``I think the gains under the Voting Rights Act have been
very beneficial in promoting
[[Page S10172]]
the right to vote, which is preservative of all other
rights.''
Feingold questioning, Sept. 13, 2005.
He also underscored his belief in the constitutionality of
the Voting Rights Act, explaining in response to Senator
Kennedy that ``the existing Voting Rights Act, the
constitutionality has been upheld . . . and I don't have
any issue with that.''
Kennedy Questioning, September 13, 2005
Moreover, when Senator Leahy asked Judge Roberts whether he
believed that individuals should be allowed to sue State
governments to remedy illegal conduct, Judge Roberts
confirmed that he would not take a narrow or crabbed view of
individuals' rights.
Judge Roberts explained that the best place to look for his
views was not the briefs he filed on behalf of clients, but
his decisions as a judge:
``I did have occasion as a judge to address a Spending
Clause case. It was a case called Barber v. Washington
Metropolitan Area. . . . . I ruled that the individual did
have the right to sue.''
Leahy Questioning, September 15, 2005
Those individuals, it should be noted, sued Washington, DC
for discriminating against them based on their disabilities,
and Judge Roberts affirmed their right to sue in the face of
a dissent by a conservative panel member.
Moreover, demonstrating a sensitivity to the ``real world''
problems of race, Judge Roberts expressed his agreement with
the approach taken by Justice O'Connor's opinion for the
Court in upholding an affirmative action program employed by
a university in its admissions policy, explaining that he
agreed that it is vital ``to look at the real-world impact in
this area [the area of affirmative action in university
admissions], and I think in other areas, as well.''
Kennedy Questioning, September 14, 2005
Judge Roberts further reaffirmed his support for minority
outreach programs that are designed to guarantee equal
opportunity for all:
``A measured effort that can withstand strict scrutiny is,
I think, affirmative action of that sort, I think, is a very
positi[ve] approach. . . . efforts to ensure the full
participation in all aspects of our society by people without
regard to their race, ethnicity, gender, religious beliefs--
all of those are efforts that I think are appropriate. . . .
beneficial affirmative action to bring minorities, women into
all aspects of society. That's important, and as the Court
has explained, we all benefit from that.''
Feinstein Questioning, September 14, 2005
Judge Roberts also cast aside any question about his
commitment to civil rights for all Americans. In commenting
on Congress's authority under the 14th amendment to remedy
discrimination, Judge Roberts expressly stated that he
believes Congress has the power to guarantee civil rights for
all. In response to Senator Kennedy's question: So do you
agree with the Court's conclusion that the segregation of
children in public school solely on the basis of race is
unconstitutional?'' Roberts responded: ``I do.''
Kennedy Questioning, September 13, 2005
And, when asked by Kennedy: ``Do you believe that the Court
had the power to address segregation of public schools on the
basis of the Equal Protection Clause of the Constitution?''
Roberts again responded, ``Yes. . . .''
Kennedy Questioning, September 13, 2005
Judge Roberts, in his pro bono work, further demonstrated
his evenhandedness. I questioned him about his participation
in Romer v. Evans, which involved alleged discrimination on
the basis of sexual orientation:
``Where you gave some advice on the arguments to those who
were upholding gay rights, and a quotation by Walter Smith,
who was the lawyer at Hogan & Hartson in charge of pro bono
work. He had this to say about your participation in that
case supporting or trying to help the gay community in a case
in the Supreme Court. Mr. Smith said, `Every good lawyer
knows that if there is something in his client's cause that
so personally offends you, morally, religiously, or if it so
offends you that you think it would undermine your ability to
do your duty as a lawyer, then you shouldn't take it on, and
John'--referring to you--`wouldn't have. So at a minimum he
had no concerns that would rise to that level.' Does that
accurately express your own sentiments in taking on the aid
to the gay community in that case?''
Judge Roberts responded that:
``I was asked frequently by other partners to help out
particularly in my area of expertise, often involved moot
courting, and I never turned down a request. I think it's
right that if it had been something morally objectionable, I
suppose I would have, but it was my view that lawyers don't
stand in the shoes of their clients, and that good lawyers
can give advice and argue any side of a case. And as I said,
I was asked frequently to participate in that type of
assistance for other partners at the firm, and I never turned
anyone down.''
Specter Questioning, Tuesday, September 13
In addition, Judge Roberts provided a thorough discussion
of a much debated issue of the day--judges' use of foreign
law in interpreting the U.S. Constitution. Judge Roberts
stated, ``a couple of things . . . cause concern on my part
about the use of foreign law . . . as precedent on the
meaning of American law.'' Judge Roberts explained:
``The first has to do with democratic theory. . . . If
we're relying on a decision from a German judge about what
our Constitution means, no President accountable to the
people appointed that judge, and no Senate accountable to
the people confirmed that judge, and yet he's playing a
role in shaping a law that binds the people in this
country. I think that's a concern that has to be
addressed. The other part of it that would concern me is
that relying on foreign precedent doesn't confine judges.
It doesn't limit their discretion the way relying on
domestic precedent does. . . . In foreign law you can find
anything you want. If you don't find it in the decisions
of France or Italy, it's in the decisions of Somalia or
Japan or Indonesia or wherever. As somebody said in
another context, looking at foreign law for support is
like looking out over a crowd and picking out your
friends. You can find them, they're there. And that
actually expands the discretion of the judge. It allows
the judge to incorporate his or her own personal
preferences, cloak them with the authority of precedent
because they're finding precedent in foreign law, and use
that to determine the meaning of the Constitution. I think
that's a misuse of precedent, not a correct use of
precedent.''
kyl questioning, sept. 13, 2005
Most importantly, Judge Roberts's answers demonstrated that
he would take a fair, non-ideological approach to the law. As
Judge Roberts explained:
``The ideal in the American justice system is epitomized by
the fact that judges, Justices, do wear the black robes, and
that is meant to symbolize the fact that they're not
individuals promoting their own particular views, but they
are supposed to be doing their best to interpret the law, to
interpret the Constitution, according to the rule of law, not
their own preferences, not their own personal beliefs.''
kohl questioning, september 13, 2005
I think it important that Judge Roberts condemned judicial
activism of all stripes, from the left and the right. I found
it telling that when asked for an example of ``immodesty'' in
judging, Judge Roberts began with an example of conservative
judicial activism:
``I would think the clearest juxtaposition would be the
cases from the Lochner era. If you take Lochner on the one
hand and, say, West Coast Hotel, which kind of overruled and
buried the Lochner approach on the other, and the immodesty
that I see in the Lochner opinion is in its re-weighing of
the legislative determination. You read that opinion, it's
about limits on how long bakers can work. And they're saying
we don't think there's any problem with bakers working more
than 13 hours. . . . Well, the legislature thought there was,
and they passed a law about it, and the issue should not have
been, Judges, do you think this was a good law or do you
think bakers should work longer or not? It should be: Is
there anything in the Constitution that prohibits the
legislature from doing that?
schumer questioning, september 14, 2005
This is a view, I should note, echoed in the work of a
young John Roberts of nearly 24 years ago. In November 1981,
Judge Roberts wrote that judicial activism is ``a concern
that does not depend upon political exigencies.'' The young
John Roberts pointed to Lochner and explained, ``The evils of
judicial activism remain the same regardless of the political
ends the activism seeks to serve.'' [Document AG7-5508]
Unlike Justice Scalia, who declined even to opine on
Marbury v. Madison, Judge Roberts not only reaffirmed his
commitment to Marbury, but also indicated his support for the
seminal Commerce Clause case of Wickard v. Filburn.
In response to questioning by Senator Schumer, Judge
Roberts stated that Wickard ``was reaffirmed in the Raich
case and that is a precedent of the court, just like Wickard,
that I would apply like any other precedent. I have no agenda
to overturn it. I have no agenda to revisit it. It's a
precedent of the Court.''
schumer questioning, sept. 13, 2005.
Nevertheless, I was not wholly persuaded by Judge Roberts'
explanation in seeking to distance himself from memoranda
which he had written as an Assistant to Attorney General
William French Smith or as an Associate White House counsel
in the Reagan Administration.
My overall impression of Judge Roberts is that he has grown
considerably in the intervening twenty years. Phyllis
Schlafly, President of the conservative Eagle Forum,
characterized that potential growth from his youthful
position that women should be homemakers instead of lawyers.
Ms. Schlafly characterized that as a smart-alecky comment
from a young bachelor who hadn't seen a whole lot of life at
that point. The fact that Judge Roberts is now married to a
successful lawyer, who is a homemaker as well, demonstrates a
different current view.
In any event, I conclude that Judge Roberts is a very
different man today than he was when he wrote the early
memoranda and that a more appropriate way of evaluating him
would be on the basis of his 45 opinions and 4 concurrences
in two years on the Circuit Court, the extensive testimony he
gave, and the insights of the many witnesses who have known
him intimately over the intervening years.
The subtle minuet of the confirmation hearing for Judge
Roberts turned bombastic
[[Page S10173]]
and confrontational at times, but he kept his cool and
responded within reasonable parameters. The Judiciary
Committee and the full Senate cannot be guarantors that Judge
Roberts will fulfill ours or anyone's expectations. The
Court's history is full of justices who have surprised or
disappointed their appointers or inquisitors.
But the process has been full, fair and dignified. On some
questions, Judge Roberts, as the song about the Kansas City
burlesque queen in the stage play ``Oklahoma'' says: ``She
(he) went about as far as she (he) could go'' without
committing himself to votes on cases likely to come before
the court. When all the facts are considered, my judgment is
that Judge Roberts is qualified, has the potential to serve
with distinction as Chief Justice and should be confirmed. I
will vote ``yea.''
Mr. SPECTER. I thank the Chair, yield the floor, and, in the absence
of any Senator seeking recognition, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. DeWine). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. COCHRAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________