Congressional Record, Volume 151 Issue 118 (Tuesday, September 20, 2005)

[Congressional Record Volume 151, Number 118 (Tuesday, September 20, 2005)]
[House]
[Pages H8135-H8141]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

JUDGES AND OUR CONSTITUTION

The SPEAKER pro tempore. Under the Speaker's announced policy of
January 4, 2005, the gentleman from Arizona (Mr. Franks) is recognized
for 60 minutes as the designee of the majority leader.
Mr. FRANKS of Arizona. Mr. Speaker, I appreciate the opportunity to
speak tonight regarding some very significant things that are happening
in our country today. We are in a critical time in our history when we
have two U.S. Supreme Court vacancies and when we have a nominee like
Judge John G. Roberts put forth by the President for Chief Justice of
the United States.
Mr. Speaker, tonight I want to talk about the importance of having
people on the courts who will read the Constitution for what it says,
because I believe that it goes to the very heart of this Republic.
Our Founding Fathers, those who fought in the Revolution, did so
because they wanted a rule of law and not a rule of men. Mr. Speaker, I
believe with all of my heart that the historical moments that we are in
will dictate whether or not that revolution is affirmed or vitiated,
and I hope with all of my heart that the President, that the U.S.
Senate and that this body will do everything that they can to make sure
that we find people who will have fidelity to the Constitution and will
read those words that our Founding Fathers so meticulously put down for
what they say and not for what a liberal activist judge might wish them
to say.
Mr. Speaker, the reason we write constitutional words down, the
reason we write words down in agreements, in constitutions, or
declarations is because we want to preserve their intent. We want to
preserve the agreement between the parties. We also want to make sure
that no one can distort them in the future. And I will say more about
that later; but, Mr. Speaker, there is going to be a great battle in
the body next to us, because the liberal activists in that body will do
everything they can to stop the confirmation of John G. Roberts or
anyone who is committed to the rule of law, anyone who is committed to
the original intent of the Constitution.
I am convinced that no matter what the President does in the next
nomination, no matter what he does, they will attack the next nominee
with equal force. It occurs to me that it is just important for us to
encourage the President, to encourage the Senate to appoint and confirm
people that will read the Constitution regardless of the outrage that
the liberal activists put forth.
There is an old rhyme that says: ``No one gains when freedom fails.
The best of men rot in filthy jails. And those who cried appease,
appease, are shocked by those they tried to please.'' And that is
really the scenario before us. No matter how the efforts are made to
appease those that want to use the judiciary to impose liberal activist
notions on the people as a whole, no matter how we try to appease them,
they are going to attack. I just hope that we see people that will
firmly read the Constitution for what it says and will do what is right
no matter what. And I pray the President can steel his heart and that
the Senators that stand for the rule of law will steel their own and
that we will make sure that we find people on that Court that will do
what is right.
You know, popularity sometimes overrules principle; but in this case
I do not think it is going to, because popularity has always been
history's pocket change. It is courage that is history's true currency,
and I pray that for the President and for the U.S. Senate.
I use one example to start out this evening to relate how an out-of-
control liberal judiciary affects our Nation. Just last week, an
activist Federal judge once again ignored the law and the great
traditions of this Nation to declare that the Pledge of Allegiance of
the United States of America is unconstitutional. Now, Mr. Speaker,
this speaks to the desperate need that I have outlined here to confirm
judges who will apply the law, judges like John G. Roberts. Mr.
Speaker, Mr. Roberts is a man that will read the Constitution for what
it says, and the Pledge of Allegiance should have no fear with him as
Chief Justice.
Last week's ridiculous ruling and decision by Jimmy Carter-appointee
and Federal liberal judge Lawrence K. Karlton is an outrage and a
breathtaking example of arrogance on the part of a bigoted tyranny of
liberal extremists on the Federal bench. In this decision, this
activist judge cited as binding the Ninth Circuit Court of Appeals
ruling that said that the voluntary recitation of the Pledge violates
``the children's right to be free from a coercive requirement to affirm
God.''
In 2003, the United States Supreme Court dismissed for lack of
standing that preposterous 2002 ruling by the Ninth Circuit, and that
is the one we all know that found the Pledge unconstitutional. Michael
Newdow, a self-professed atheist, did not even have custody of his
daughter when he sued on her behalf. What is more, Mr. Speaker, his
daughter did not even object to reciting the pledge in the first place.
So when the Supreme Court vacated this obscene ruling, the late Chief
Justice William Rehnquist concurred, and he so eloquently put forth the
very simple truth of this matter. He said that the phrase ``under God''
does not change the Pledge into a religious idiom and it ``cannot
possibly lead to the establishment of religion or anything like it.''

{time} 2015

The late Chief Justice listed many references to Presidents invoking
God, going all the way back to the very first one, George Washington.
He cited other events as well that, ``strongly suggest that our Nation
and our national culture allows public recognition of our Nation's
religious history and character.''

[[Page H8136]]

Sandra Day O'Connor in her concurrence even stated that to eliminate
references to divinity would ``sever ties to a history that sustains
this Nation even today.''
Mr. Speaker, for 50 years the Pledge of Allegiance has been
voluntarily recited in schools throughout the United States of America
and it has always been voluntary. Nobody in America has ever been
required by government to say the Pledge of Allegiance. And if they say
it voluntarily, they are not required to say the words ``under God.''
However, it is an outrage that beggars my vocabulary for those who hold
the office of Federal judge to rule that it is now unconstitutional for
students who want to voluntarily say the words ``under God'' if they so
choose.
In my opinion the Founding Fathers who wrote the Constitution would
deem those who handed down such outrageous rulings to be pitiful
excuses for Federal judges and to be traitors to the Constitution
itself. This ruling is a prime example of the liberal, activist
priesthood of the black robe seeking to force upon the people a state
of irreligion, and it is a pathetic example of jurisprudence that has
dictated that the people must ignore their own belief and faith and
embrace only a nonreligious expression. Mr. Speaker, it is a violation,
pure and simple, of the free exercise clause.
We must not allow the people of this Nation to be forced by judicial
tyranny to follow such an empty creed. This ruling is disgraceful and
it serves as exhibit A in the case against judges who are intent on
ignoring the Constitution and imposing their own twisted ideology upon
the people. When liberal activist judges discount laws enacted by the
people's representatives to enact their own agenda, the Constitution
itself provides a remedy; and it is time for the people's House to
fulfill our duty to the people, to protect the Constitution from
liberal activist Federal judges.
Mr. Speaker, in striking down our Pledge of Allegiance, this judge
has once again ignited a resolve in the American people that will
ultimately lead to Federal reforms limiting their power to legislate
from the bench. This judicial obscenity will not stand.
With all of that said, I still stand on this floor with great hope in
my heart for the future of this country, because even a cursory, a
cursory glance back at America's history should impart hope to all of
us.
By the time the 1860s had come to America, the world had marked 7,000
years of powerful societies enslaving their fellow human beings. And,
sadly, this was also true of America. However, America was never truly
at peace in her heart with this hellish institution of slavery, and so
it was that American slaves began to earnestly pray to God to
intervene, and it seems God sent them President Abraham Lincoln, a man
who understood the true meaning of those magnificent words, ``We hold
these truths to be self-evident that all men are created equal and
endowed by their Creator with certain unalienable rights.''
Mr. Speaker, our Founding Fathers wrote those words down for us
because they did not want us to forget their true meaning or fall prey
to those who would deliberately destroy it. That has always been the
preeminent reason why we write down documents, agreements, or
constitutions in the first place: to preserve their original meaning
and intent.
When the smoke of a horrible Civil War finally drifted from the air,
7,000 years of the world accepting the unrequited toil of human slavery
was over. The prayer of slaves had been answered, and the United States
of America began to emerge as the flagship of human freedom in the
world.
But only 100 years later we began to stray from that path. We began
to think only of ourselves. And in 1973 Roe v. Wade was handed down by
the U.S. Supreme Court, and it brought wholesale abortion on demand to
the land of the free, and the veil of darkness fell upon America. In
that darkness we heard, but we disregarded the mortal cry of one little
baby in the womb, and then there was another, and even another was
heard until that sound had become the soul-wrenching cry of tens of
millions.
We found ourselves and our national conscience disoriented and awash
in the blood of our own children. Millions of prayers called out for
another leader to remind us of those words that speak the divine
message of human dignity, ``all men are created equal.''
Mr. Speaker, from the time we were conceived, all human beings are
created equal. We do not become equal when we each reach a certain age
or status. This is America's creed, that is our foundation, and how
grateful we should all be that our Founding Fathers wrote those words
down, and how desperate our commitment should be to remember what they
mean.
Now in this day, in these moments, that test is upon us. The
President of the United States has nominated an individual in John G.
Roberts as Chief Justice of the United States who understands that all
men are created equal. Mr. Speaker, I believe that this President
understands those words in his own heart; and, indeed, it is his
commitment to their meaning and his commitment to human dignity itself
that has given him the courage to stand resolutely against terrorists
to protect innocent human life.
But this President and each one of us in this body and each person in
the body across the way must never forget that this thing called Roe v.
Wade has taken more than 15,000 times the number of innocent lives lost
on that tragic day of September 11. We live in a time when there is
truly a glimmer of light breaking on the road before us; but the curve
just ahead is sharp, and to miss it may be to plunge into the darkness.
The voice of destiny calls to our President and all of us in these
decisive days to once again steel our hearts and to ask anew, Is it
true in America that all men are created equal?
Mr. Speaker, our legacy to future generations and the survival of
human freedom in the world will depend upon our answer. May God bless
America, may God bless President George W. Bush, and may God bless
Judge John G. Roberts.
Mr. Speaker, I yield to the gentleman from Texas (Mr. Carter), whom
we call Judge, who we all have the deepest respect for.
Mr. CARTER. Mr. Speaker, I thank the gentleman for yielding and for
taking this time tonight to talk about this very important matter
before our Nation right now.
The House of Representatives does not have a vote in this issue, but
it does and should have a voice in the issue concerning the selection
of the highest court of this land, and of all of the judicial
appointments.
One of the duties of this House is to be a voice of the people of
this country, because we of the elected officials in this House of
Representatives, we are the ones that have the smallest districts and
are closest to the people. Most of us are home every weekend talking to
the folks back home. We have a good idea of the kind of capabilities
that our people are looking for in their judges.
We have one of the great debates in history going on right now, with
two potential justices to be appointed to the Supreme Court. We were
here last week talking about this, and we told you that we would hope
that everyone would watch the hearings that took place last week to see
Judge Roberts. I predicted that Judge Roberts would be outstanding
before the Senate, and I think my prediction was absolutely proven
true. I think everyone acknowledges he showed great intelligence and
great insight. He answered the questions appropriately. He asked to be
excused from questions which were inappropriate for a judge to answer.
He handled himself with charm and grace and intelligence, just exactly
the way I predicted last week. I am not clairvoyant, I just know this
man is the right man to be on the Supreme Court and to be the Chief
Justice to lead that Supreme Court.
We know the Constitution gives them the vote. We hope that they will
hear our voice. There is a lot of criticism that has been out there,
and I want to ask the American people to think about just exactly what
is the role of a judge in our society. I served for 21 years as a judge
in Texas, a proud 21 years as part of the justice system of this
Nation. I think what the lawyers that appear before a court and what
the people who those lawyers represent want from a court is a judge
that comes into the court with no preconceived notions, that will
listen to the facts that pertain to the case, examine those facts
carefully, apply the

[[Page H8137]]

law and the facts, and come up with a solution. That is what they want
from the judge. That is what the Founding Fathers wanted for the
justices of our Supreme Court. They wanted them to examine American law
as it relates to each set of disputed facts that comes before that
court, and, from the American jurisprudence and the common law, come up
with an interpretation of whether or not our Constitution has been
violated under certain circumstances, and to examine the laws of the
United States and make them proper.
I do not think anybody argues with that. I think that it would be
totally inappropriate to ask a judge to make a pretrial statement
before a case is brought before the court as to where he would stand on
an issue without hearing the full presentation in the court, reading
the briefs, and making a decision based upon what has been presented in
the court and the law as it stands in the United States at that time.
That is what we want from our judges. Judge Roberts is that kind of
judge and will give us those decisions.
I think it is almost laughable if you know how the court works. When
a man is hired as a lawyer for somebody else, when a client comes into
a lawyer's office and says I want to hire you to represent me in a
case, now you would not want that lawyer that you hired to represent
you in that case to go into court and argue the other side of the case
against you, because that is not what he is getting paid to do. His job
is to be an advocate for his client. And yet the criticisms that we
hear against Judge Roberts are that he made arguments as a lawyer for a
side before the Supreme Court or before other courts in favor of or
against certain positions that some Members of the Senate do not agree
with; therefore, he is inappropriate to be involved in any case that
has to do with that.
We will start off with the pro-life issue. They argue that Roberts is
pro-life because of two arguments that he made while he was
representing the United States of America as a deputy solicitor general
in Rust v. Sullivan and Bray v. Alexandria Women's Health Clinic.
Roberts' opponents argue that Roberts unnecessarily called for the
Supreme Court to overturn Roe v. Wade in Rust, a case challenging
Federal regulations which prohibit certain recipients of Federal funds
from counseling patients on abortion. Critics argue that the case could
have been argued solely on the basis of statutory construction of the
provisions at issue. Critics also point out that Roberts coauthored the
government's amicus brief in Bray, a private suit brought against
Operation Rescue, which argued that Operation Rescue was not engaged in
a conspiracy to deprive women of equal protection rights.
Who was he arguing for? His side, his client, the people paying him
to make an argument for them. And who is someone sitting outside the
courtroom, who are they to tell a lawyer how he should argue his case?
Well, he should argue his case but not argue Roe. If he felt the
interest of his clients were best protected and put forward by arguing
against Roe, it is his job to argue against Roe.

{time} 2030

If the next time he comes into court and someone has hired him to
take the opposite position, that same lawyer would be arguing the other
side of that case because that is what lawyers get paid to do. And an
argument a lawyer makes in the courtroom and whom a lawyer represents
in the courtroom, if that defines that lawyer, there is something wrong
with how we think. That would be accusing every criminal lawyer in
America of being a criminal because they talk in favor of criminals.
But if we do not have defense lawyers in criminal cases, we do not
have a case because the State has the burden of proof in that case. The
defense has no burden of proof whatsoever, but they have the right to
representation under our Constitution.
Would we say that no lawyer would ever be fit for a court if he
argued any position that might come before that court and we can tell
what his position is going to be by his arguments in court? That, Mr.
Speaker, is just one of the most ridiculous arguments that I think
anyone could ever make. And anybody who would hire a lawyer to go into
court to argue the other side of a case ought to fire his lawyer before
the third word came out of his mouth and ask the judge to give him some
more time to hire a decent lawyer to represent his position, and I
think most lawyers would grant that.
And almost every argument that is made in this whole list of things
that says Roberts is a right wing extremist, Roberts is anti-
environment, Roberts is hostile to civil rights and affirmative action,
Roberts is hostile to the rights of criminal defendants, Roberts is
hostile to the first amendment of the establishment clause, all of
these things are baloney because about 90 percent of their arguments
are that he made this argument as an advocate for a client, which is
his job. Lawyers argue every day in court as advocates for their
clients when, in their heart of hearts, we cannot tell whether they are
for what their client is for or against what their client is for. But,
by golly, they make us think they are because that is their job to
represent their client and convince the court that their position is
valid. That is what they get paid for.
The other arguments they have in here are some arguments about
dissents that were written by Judge Roberts on the court of appeals.
Well, what do we want from a judge, a multijudge panel on the court? Do
we want everybody up there that thinks exactly the same way on every
issue? Then why do we need all of them? Why not just pick one every
day, and we know we can get the same verdict every time because they
all just think alike? Or why do we even need judges? If we have a set
of criteria that we absolutely feel that everybody ought to have to be
a judge, why do we not just program it into the computer, feed the
facts and the argument into the computer, and if it does not fit the
computer program, we spit it out and they lose?
That is not what a court is all about. That is not what a multijudge
court is all about. It is about intelligent students of the law with
experiences in the courtroom, both as advocates and as fair and
impartial judges, who are able to go together, take their combined
intelligence, make arguments to themselves as they discuss the case,
and come up with the combined intelligence of those people and the
combined opinions of those people, which may be diverse, which comes
up, we have discovered, over and over and over in our courts of
justice, comes up with good decisions that fit the appropriate actions
that are necessary for the court.
If we have everybody who thinks just alike and there is a litmus test
for every member of the judiciary, we do not need all those Supreme
Court Justices. Let us just give one guy superpower and dictatorial
power over the judiciary and move on.
I think that both sides would feel passionately about issues
concerning the Court. But the reality is there is a place in that Court
for diverse opinion, and if we do not have diverse opinion, we do not
have a Court that can effectively give a broad-based analysis of the
law that comes before it. And then to go and try to come up with stuff
that does not mean a thing by saying he represented somebody is just on
the verge of laughable, and I think in all reality the arguments that
are being made are spurious at best.
I would encourage our colleagues in the Senate that they pass this
case on, bring it up on the floor as soon as possible. We now have a
Court that has basically two vacancies, one being filled until another
Justice is selected and one that is empty. We have a Court that is
going to work in October. I think it is important that we pass Judge
Roberts out to a vote on the floor of the Senate, that they have an up-
or-down vote on the floor of the Senate; and if Judge Roberts does not
get the vote, then let us find somebody else to fit the job with an up-
or-down vote on the Senate side. If he does get it, let us get him in
to start working on the job so he can be ready as this Court convenes
in October. And then let us get to work on our next Justice that is
coming down, and let us not try to establish litmus tests.
Let us not try to make people walk the line of somebody's political
agenda. Let us say, Mr. President, give us a fair and impartial judge
that knows the law, knows how to find the law, knows

[[Page H8138]]

how to interpret the American jurisprudence, not some foreign
jurisprudence, but the American jurisprudence and the common law and
come up with the solution to our problems in our Supreme Court, and we
will have fair and impartial justices in the Supreme Court of the
United States. But there should be no litmus test whatsoever that is
required of these nominees.
And I hope the President will come up with a good nominee for this
next vacancy; and if he comes up with one with the quality of Judge
John Roberts and the ability of Judge John Roberts, we will have hit a
home run in the two nominees that have been submitted to the Senate.
And I hope for rapid confirmation of both so that we can put the
Supreme Court back to work with a full house.
Mr. FRANKS of Arizona. Mr. Speaker, I thank the gentleman from Texas
(Mr. Carter) for his comments. Mr. Speaker, we are all, again, so
fortunate to have the gentleman from Texas (Mr. Carter) in the House of
Representatives because of the experience that he has. I could not help
but see so clearly his commitment to the Constitution itself and his
understanding of what the role of a judge is. I have to say that I
think that the only time I have ever heard it put as succinctly was
when Daniel Webster said: ``Hold on, my friends, to the Constitution
and to the Republic for which it stands. For miracles do not cluster,
and what has happened once in 6,000 years may not happen again. Hold on
to the Constitution, for if the American Constitution should fail,
there will be anarchy throughout the world.'' And I know that the
gentleman from Texas (Mr. Carter) holds on to the Constitution.
I want to also yield to another man that holds on to the
Constitution. The gentleman from Iowa (Mr. King) is one who always has
a copy of the Constitution in his pocket wherever he goes, and he is
someone who has shown himself to be a true champion of this
Constitution.
Mr. Speaker, I yield to the gentleman from Iowa (Mr. King).
Mr. KING of Iowa. Mr. Speaker, I thank the gentleman from Arizona
(Mr. Franks) for yielding to me. It is an honor for me to join him here
on the floor again tonight. The last time, as I recall, the gentleman
from Arizona (Mr. Franks), the gentleman from Texas (Mr. Carter), and
also the gentleman from Texas (Mr. Gohmert) and I were here together to
celebrate the life of Chief Justice William Rehnquist. That was a
somber moment, a moment of reverence and respect and reminiscing; but
also, we came away from that evening and we came away from that week
with a sense of the legacy that was left by the years on the bench by
Chief Justice Rehnquist.

And tonight we are actually looking ahead now, looking ahead to the
future of this country, the future of this Constitution, this one that
they have checked to see if I would have it in my pocket. And, of
course, it is there. That rumor has started around this Congress. Now I
do not dare be without it. But I have carried it in my pocket for
years, and it is not the freshest one. The old one that I had I
autographed and handed over to the chief justice of the supreme court
of the People's Republic of China as he visited here. I thought he
should have a copy of the United States Constitution.
It is clear to me that already soon-to-be-Chief Justice Roberts is
very familiar with this Constitution document and very reverent and
very respectful.
A number of things in the conversation, particularly the gentleman
from Texas's (Mr. Carter) remarks reminiscing the press accounts and
the critics of Judge Roberts, that he is hostile to Roe v. Wade or
hostile to this or hostile to that. And as I look across that list that
was presented, it occurs to me that he is hostile to one thing that I
think we can agree on: he is hostile to enemies of the Constitution. I
am grateful for that hostility. It might be the only sign in the
gentleman's character that one can see that is of a hostility.
And I want to tell my colleagues that my background and history with
him is not extensive, but I did have the privilege to have breakfast
with Judge Roberts a couple months before he was nominated by the
President. There was a group of about six or eight of us at the table,
and certainly it was a larger room. I had a conversation with him that
was not a continuous type of conversation where I could probe into his
constitutional thoughts so much as it was to judge his reactions and
judge by his remarks.
I would say that, of course, what I saw there was the man that we
have seen day after day here before the Senate Judiciary confirmation
hearings. The man that I think in the private life of John Roberts is
the same person that we see in the public life of John Roberts. The
people whom he surrounds himself with, the people who count themselves
as his friends, the people who know him far better than I do I am
impressed by, and I know them far better than I know John Roberts. But
one can be judged by the company they keep, and the company that he has
kept has been stellar company throughout.
I do not think that one could write for a blueprint for a life that
would better describe a path to the Supreme Court and, in fact, to the
Chief Justice of the Supreme Court than the life so far, the bio,
resume of John Roberts. It is exemplary. I know that when they did the
background check, or I am told this through the media, that there was
not a single thing, it was the cleanest background check one could have
asked for. Of course, I expected that, but I wanted to put that into
the record as well.
There would not have been a nomination if there had been a problem;
but it was one of the more stellar background checks, I understand,
that has been run. And that is through the grapevine. Nothing that has
been public that I know of.
I want to tell the Members that Judge Roberts has this reverence for
the Constitution, and I have put together some of the quotes that have
come out of the confirmation hearings over in the Senate, and some of
these quotes fall into different categories, but one is under strict
construction of the Constitution. Judge Roberts confirmed my initial
beliefs that he would uphold the true intent of our Founding Fathers by
strictly construing our Constitution. And over and over in his
testimony before the Senate Committee on the Judiciary, he verified
that he is a strict constructionist and that he believes judicial
activism is dangerous to our system of government.
He summed it up in one line, the duty of all of us in the Federal
Government, when he stated: ``My obligation is to the Constitution.
That's the oath.''
I would like those words to echo again: ``My obligation is to the
Constitution. That's the oath.''
If that happened to be the conviction of everyone in a black robe, we
would have a lot easier task on the Committee on the Judiciary in the
House of Representatives and on the Committee on the Judiciary in the
United States Senate, for that matter.
His qualifications for the position of Chief Justice are, I think,
clear. And the President has been impressed with not just his clarity
of thought, not just with his brilliance of his legal reasoning but
also with his personality, his character, his leadership abilities.
He explained his support for strict construction of the Constitution,
and this would also be part of the record, when he said in the
hearings, ``Judges are not to put in their own personal views about
what the Constitution should say, but they are supposed to interpret it
and apply the meaning that is in the Constitution . . . and the job of
a good judge is to do as good a job as possible to get the right
answer.'' And over and over again, this kind of philosophy comes
through, not an activist philosophy but a strict constructionist
philosophy.
The same day he further described a judge's proper role, and he
explained: ``We don't turn a matter over to a judge because we want his
view about what the best idea is, what the best solution is. It's
because we want him or her to apply the law.''
``We turn a matter over to a judge because we want him or her to
apply the law.'' Not to apply their judgment, not to apply their whim,
not to apply what they think the policy should be. That is the job of
the legislative branch. And that is consistent with the vision of our
Founders, and it absolutely consistent with the language and the text
of the Constitution, and it certainly is not something that we see
within the

[[Page H8139]]

activist judges that sometimes come before our courts and make those
kinds of decisions, particularly the ninth circuit out there. And I
know the gentleman from Arizona (Mr. Franks) referenced that, and I
appreciate his bringing that subject up before the Speaker and before
this country.

{time} 2045

And Judge Roberts went on when he said, ``It is because we want him
or her to apply the law.'' I will continue that quote: ``They are
constrained when they do that. They are constrained by the words that
you choose to enact into law,'' meaning the Senate or the Congress,
``in interpreting the law. They are constrained by the words of the
Constitution. They are constrained by the precedents of other judges
that become part of the rule of law that they must apply.''
Constrained, constrained, constrained, constrained. Four times in
that paragraph he used the word ``constrained.'' I think that is
indicative of the kind of judge we are going to see, a judge that
exercises constraint, and a constraint that is bound up within the
words of the Constitution, within the text of the Constitution, within
the clear meaning and the defined boundaries of the Constitution, and
the rule of law, and constraint within the boundaries of being a member
of the judicial branch of government whose job it is to, as he said,
call the balls and the strikes.
I want to express some gratitude to Phyllis Schlafly for bringing
that idea before this country and, in her book ``The Supremacist'' when
she said that a judge's job is to be the umpire, to interpret the rule
book. And now this man in his hearings picked up one more notch on that
philosophy and said, my job is to call the balls and the strikes. Who
would want to play a game before an umpire that did anything else? Who
would want to play a game before an umpire that called the balls and
the strikes as he wished them to be rather than what they actually
were? That is what the judge's job is, and it is a very, very clear way
to describe that.
Mr. Speaker, John Roberts will not be a justice who seeks to usurp
the roles of the other two branches. On the first day of his hearings
he stated, ``I prefer to be known as a modest judge. That means an
appreciation that the role of the judge is limited, that judges are to
decide the cases before them,'' and I continue to quote, ``they are not
to legislate, they are not to execute the laws.''
They are not to legislate, they are not to execute the laws.
He also explained that, ``Judges have to decide hard questions when
they come up in the context of a particular case. That's their
obligation. But they have to decide those questions according to the
rule of law; not their own social preferences, not their policy
reviews, not their personal references, but according to the rule of
law. According to the rule of law.''
Now, I never dreamed as a young man, and I began in about eighth
grade to study this Constitution and read this document and understand
and really get some depth and appreciation for our history; I never
thought I would be standing on the floor of the United States Congress
celebrating an appointee to the Supreme Court because they want to rule
according to the rule of law. I believed that every judge that ever put
on a black robe would rule according to the rule of law. And here we
have come to this point where activist judges cause me to come to
celebrate because we have one before the Senate Committee on the
Judiciary for a confirmation.
On the second day of the testimony, Judge Roberts said to his
colleagues, ``Judges need to appreciate that the legitimacy of their
action is confined to interpreting the law and not making it, and if
they exceed that function and start making the law, I do think that
raises legitimate concerns about the legitimacy of their authority to
do that.'' Another challenge, another constraint.
I could stand here and repeat Judge Roberts' testimony all night, Mr.
Speaker; showcasing what a great candidate he is for this position
would be something that I would continue on with. But when asked about
his threats to the rule of law, he stated, ``The one threat, I think,
to the rule of law is a tendency on behalf of some judges to take that
legitimacy and that authority and extend it into areas where they are
going beyond the interpretation of the Constitution, where they're
making the law. And because it's the Supreme Court, people are going to
follow it, even though they're making the law.''
That is chilling to those of us who revere this Constitution, but we
do revere the Supreme Court. And because it is the Supreme Court, in
his testimony, ``people are going to follow it,'' even though they are
making the law. Now, I will expand that and say, even though they are
not following the law, even though they are not following the
Constitution, people will respect and revere the decisions of the
Supreme Court, because of the stature of the Court, without regard to
the text and the intent of the Constitution or the law itself. That is
my edit.
Then I will pick up that quote again. He follows that with, ``The
judges have to recognize that their role is a limited one. That is the
basis of their legitimacy. Judges have to have the courage to make the
unpopular decisions when they have to. That sometimes involves striking
down acts of Congress. That sometimes involves ruling that acts of the
executive are unconstitutional. That is a requirement of the judicial
oath. You have to have that courage.''
And I continue to quote: ``But you also have to have the self-
restraint to recognize that your role is limited to interpreting the
law and doesn't include making the law.'' And doesn't include making
the law. I repeat that for effect because it has significant effect on
me, Mr. Speaker.
This man, who is poised to step forward and don the robes of the
Chief Justice of the Supreme Court, is a young man with a clear legal
mind, a solid moral set of values, a clear understanding of his duty
before the Court, a constitutional understanding, a rule of law
understanding, and a duty to history. The years that I have left on
this earth may not be as many as I pray he has, but every year that
this unfolds and every year that these cases come before the Court, I
pray that the President can appoint some justices to this court that
will match the vision and the clarity and the legal understanding of
this man, John Roberts, so that one day we can work ourselves back to
this Constitution, this Constitution that he reveres, that we revere.
Mr. Speaker, I yield back to the gentleman from Arizona, and I thank
the gentleman.
Mr. FRANKS of Arizona. Mr. Speaker, I thank the gentleman. I would
just echo some of the comments of the gentleman from Iowa (Mr. King) in
that this man, Judge John G. Roberts, is perhaps the most qualified
person for Chief Justice, certainly in my lifetime, that we have seen.
And if he is somehow castigated by liberals in the Senate and attacked
because of his fidelity to the Constitution, then it seems that our
only road leads to a judicial oligarchy, and those of us in this body
can lock the doors and go home and quit pretending to be lawmakers,
because the courts will then prevail over all.
It is interesting, because some of the Founding Fathers, and one in
particular, Thomas Jefferson, said it this way. He said, ``The object
of my great fear is the Federal judiciary. That body, like gravity,
ever acting with noiseless foot and unalarming advance, gaining ground
step by step and holding when it gains, is engulfing insidiously the
special governments into the jaws of that which feeds them.''
This is not a new concern. Our courts have ruled that the black man
was property. Our courts have ruled that unborn children are not human
beings. Our courts have ruled that marriage and the family itself may
be unconstitutional. Our courts have ruled that it is unconstitutional
to protect a 9-year-old girl from Internet pornography. Our courts have
ruled that that same little girl cannot say a certain prayer in school.
Our courts have now ruled that it is unconstitutional for her to say
the Pledge of Allegiance. And I wonder, Mr. Speaker, if those of us
standing in this place would look out across the fields of Arlington
and ask ourselves, is that why they died, so that we could uphold those
kinds of asinine, ridiculous interpretations of the greatest
Constitution that was ever written by man?

[[Page H8140]]

I think that we are turning a corner, and I think John G. Roberts is
going to be a significant part of that.
Mr. Speaker, I would like very much to yield to my very good friend,
the gentleman from Georgia (Mr. Gingrey).
Mr. GINGREY. Mr. Speaker, I thank the gentleman from Arizona. In
fact, I am humbled to follow my colleagues in this discussion about
this great man, Justice Roberts, and of course my colleagues, the
gentleman from Arizona and the gentleman from Iowa, are both members of
the House Committee on the Judiciary, and my great friend and
classmate, in fact all four of us are classmates, but our own judge, we
have several in the House, but my judge, the gentleman from Texas Mr.
Carter. It is an opportunity, though, for this physician Member to
stand up here before this body, Mr. Speaker, and say while sometimes
physicians are probably pitted against attorneys, I have great respect
for them. In fact, I have two members of my immediate family, my
brother and my daughter who are attorneys, who I am very proud of.
But just to have watched this gentleman in the hearings in the Senate
Committee on the Judiciary, Mr. Speaker, after a week of questioning by
our counterparts in the other body, I believe that the Congress and our
Nation has a good sense of what kind of a jurist John Roberts will be
if confirmed as our Nation's 17th Chief Justice. In fact, on one of the
television news shows this past Sunday, a member of the Senate
Committee on the Judiciary, the gentleman from South Carolina, Senator
Graham, when asked how did Judge Roberts perform, he said, ``Well, let
me just put it this way: If it had been a prizefight, they would have
called it in the second round as a technical knockout and the person on
the ropes would not have been Judge Roberts.''
Without question, it was a technical knockout heading for a knockout.
Judge Roberts will indeed, Mr. Speaker, bring a refreshing, fair, and
balanced approach to the United States Supreme Court which has not had
a vacancy in 11 years.
Our Nation is a different place than it was in 1994. We have more
access to information, more technology, a stronger economy; we have our
brave soldiers defending democracy in our global war against terrorism.
The United States Supreme Court needs a perspective that understands
accountability to both the American people and, as the gentleman from
Iowa said, especially to the United States Constitution. Like one of
his mentors, the late Justice William Rehnquist, Roberts has a strict
constructionist view of the Constitution. He interprets laws
considering the intentions of our Founders instead of the whims and
desires of a political party or electorate. That is why we need Judge
Roberts on the Supreme Court. He can restore a sense of restraint to
some very creative interpretations of late. The gentleman from Arizona
just talked about a few.
Judge Roberts' qualifications are, Mr. Speaker, unquestioned.
However, the Supreme Court nominee has to face a litmus test on
ideology. Some Senators are asking whether or not this particular
justice will protect their favorite judicially constructed rights.
Others have questioned how he might use the position as Chief Justice
to help the survivors of Hurricane Katrina. Roberts very politely
responds that he will interpret our laws on a case-by-case basis, he
will hear each side and will always heed restraint to the separation of
powers and constitutional government.
I could go on and on, but my colleagues, Mr. Speaker, have said it so
well. This is a man that is a brilliant jurist, and it showed through
so clearly during the Committee on the Judiciary hearings. I hope that
when they have the vote on Thursday, or whenever it comes to a vote in
the Committee on the Judiciary, there should not be many, if any,
``no'' votes, and I look forward to a speedy confirmation by the United
States Senate.
I thank the gentleman from Arizona and my colleagues, the gentleman
from Texas and the gentleman from Iowa, for letting me participate in
this special hour. It is so important, as the gentleman from Texas
said, that while we do not have any official role in regard to advice-
and-consent responsibilities, we do have a responsibility and we have a
voice, and it is good that we have this opportunity tonight to express
that voice and to commend to the American people the new Chief Justice,
John Roberts.
Mr. FRANKS of Arizona. Mr. Speaker, I thank the gentleman from
Georgia. Mr. Speaker, in that the gentleman from Georgia (Mr. Gingrey)
and I are such good friends and that I hold him in such high regard, I
am going to forgive him here on the floor for suggesting that I might
be a lawyer. I do not know if the gentleman from Iowa (Mr. King) might
want to extend such a forgiving hand as well. We are both on the
Committee on the Judiciary and, of course, sometimes it is assumed that
we are lawyers. But his points are so well taken, in that we do need
judges that will simply read the law for what it is.
I know that we repeat this a lot, Mr. Speaker, but when courts
forcefully interject false and unconstitutional notions that go against
justice and natural law and common sense, without allowing the issue to
go through the legislative process of debate and consensus, it
abrogates the miracle of America and it abridges the freedom of the
people to govern themselves. I just am hopeful that we can recognize
that our courts, I say to the gentleman from Texas, were never intended
to decide social policies, or any policies, for that matter. This is
the job of the people's Congress. This is why people send us here. The
legislative process creates a dynamic for opposing voices on any issue
to be heard in an open forum, and a strong consensus is necessary for
any kind of decision, and where each decisionmaker can ultimately be
held accountable by the people they govern.

{time} 2100

And I know that the people of Texas are very proud that they have
sent Judge Carter to the Congress.
Mr. CARTER. Mr. Speaker, first I want to say that I am happy to be
privileged in that when Judge Roberts made his opening statement, and
he started talking about balls and strikes, calling the balls and
strikes, being the umpire, as far as I was concerned, it was over right
there; he had won, because he understood the role of being a justice.
And he happened to use something that I had used on multiple
occasions. You know, back in the small town where I started out as a
judge, it grew to be a big town, we have a lot of baseball and girls'
softball, and one time they said, hey, Judge, would you come out and
call the balls and strikes; we lost our umpire.
And I said, friends, I call balls and strikes for a living. And I am
not about to get up there and call balls and strikes at my daughter's
softball game. But that is exactly right. That is understanding what a
judge's job is. It is so very important that we have a judge that has
the common sense of the American people to go along with a great
intellect into the law.
It is just so very important that we have that kind of a judge that
comes to the Court. This is exactly want we have in Justice Roberts. He
is so impressive, I mean phenomenally impressive. So Judge Roberts
stole that from me. But probably I would say stole it from lots of good
judges. I kind of think that I was a good judge; but lots of good
judges in the United States, because they understand the concept of
what their job is.
Mr. FRANKS of Arizona. Mr. Speaker, Judge Carter can call the balls
and strikes, in my judgment, any time.
With that, I would yield to my friend, the gentleman from Iowa (Mr.
King), for any further comments he might have.
Mr. KING of Iowa. Mr. Speaker, I want to express my gratitude for you
setting up this hour and providing an opportunity for myself to speak.
And as I stand here as a nonlawyer and reflect upon the future and upon
this Constitution, I think there is something that young people lose
sight of. And I gave a guest lecture at Central College in Pella a week
ago last Friday, so that has been about, what, 9 days ago or so. And in
that guest lecture, it was on the Constitution, and it lasted maybe an
hour and 40 minutes or so. And it was interesting to me that one of the
professors there came up afterwards and he said, you have made the
Constitution interesting. I had not seen that before.

[[Page H8141]]

It never occurred to me that the Constitution was anything but
interesting. It is a fascinating document. And if you know the history
of it, there is a piece of it that we seldom talk about here, we often
forget, and that is this guarantee, this guarantee of our freedoms and
our liberties in this foundational document that is drawn upon the
Declaration of Independence, and that our rights come from God, clearly
in the Declaration, and we are endowed by our Creator with certain
unalienable rights. Among them are life, liberty, the pursuit of
happiness. But those rights are even more clearly defined in the
Constitution, the rights that come from God. No man can take them away,
because they come from God. And the Constitution defines that.
But as we watch this Constitution get amended with decision after
decision by an activist Court, we see these rights be diminished by
decisions of the Court.
And so I will take us to this question, which is: The Constitution
either means what it says or it does not. If it means what it says,
then we are constrained by the language, and we are further constrained
by the language that was the intent of the original meeting, because
the founders cannot be held responsible for an evolving language or
evolving values system, or any idea that it should be read in light of
contemporary values.
People try to do that with the Bible and they get off base. Truth,
justice, sin, virtue have always been the same. They have been the same
1,000 years ago, 4,000 years ago, and they will be the same 4,000 years
from now.
But the Constitution is our guarantee. And when we deviate from that
language, that strict construction, that originalist, the understanding
of the guarantee that the States have all opted into voluntarily, an
irrevocable bond that was established at the end of the Civil War, and
we understand that guarantee must be maintained through the constraint
of the judicial branch, not the activism of the judicial branch,
because an active judicial branch of government undermines our
Constitution, erodes our rights.
If that is the case, then what value has that document whatsoever, if
you are going to let the majority of nine justices determine the future
of America? We have stepped back from that now with this appointment.
We need at least two more to get there. It is a long evolutionary
process to see this Constitution reestablished by the Court.
We did not get here overnight. We got here over 40 years or longer.
It will take at least that long to get back again. But I look for that
day.
Mr. FRANKS of Arizona. Mr. Speaker, I want to thank all of these men.
You know, it is said in this place that the friends you find here, you
can pick your pallbearers out of them. And I certainly feel that way
about these three men.
I am grateful to have the opportunity to serve at this time in
history with men that love America, that love freedom, that love their
fellow human beings as much as these men do.
We have talked a lot tonight about protecting the Constitution. But
you know, really, sometimes it is good for us to step back and ask why
we are really here. And ultimately we are here because we believe that
the miracle of life in America is something that is unique.
Mr. CARTER. Mr. Speaker, let us point out that when our founders as
States decided they wanted to write a document that they were going to
submit to govern our Nation by, the Constitution of the United States,
they chose to sit in Congress as a group of diverse opinions
representing their various States to come up with this document.
They did not ask a battery of judges to come in here and do that.
They asked people that represented their States to come in and
represent the interests, and they debated, as we debate here in
Congress, the laws we designed, and the intent is clear, that they
wanted a Congress to make the laws of this United States.
They, in Marbury v. Madison, set the precedent that said the Courts
may interpret the laws that are made, to see if they comply with the
Constitution of the United States, which is the sovereignty of our
Nation.
Of course, our true sovereignty is in God; and it is clear as the
gentleman from Iowa (Mr. King) points out, we stated the sovereignty
that we look to in the Declaration of Independence, where we get our
rights from. And they are not given to us by our government, they come
from the divine authority of God. But they went forward on that and
they established the Congress to make the laws.
And I agree 100 percent that is the intent of our founders, and that
is the way it is supposed to be. That is the right and proper place.
And the interpretation of Judge Roberts, so adequately and effectively
and eloquently presented to the Senate to educate that bunch in the
last week, proves that fact.
I want to say that I am honored to be here with these four gentlemen.
These are some of my best friends. Let me point out that Judge Roberts
is not from any of our States. We have no parochial interest in this
whatsoever. We are just glad that we have got a great jurist coming
forward.
Mr. FRANKS of Arizona. Mr. Speaker, I guess he says it so well, there
is so little to add. But you know, the umpire kind of corollary has
been used quite a lot here tonight, and what some of us have objected
to is like in the book, The Judicial Supremacist, when the umpire says
strike 2, you are out. And that is what has happened a lot in some of
these decisions lately.
The courts and some of the activist judges have simply thrown the
Constitution aside and said that they are not going to follow it. That
is why we are so grateful that John G. Roberts is going to be our next
Chief Justice, because he, I believe, will have the erudition and the
mentality and the heart to bring the rest of the Court to reaffirm what
the rule of law is all about.
And, again, we talk about the rule of law. But, really, is it not
about trying to uphold our fellow human beings? Because if we were
willing to let judges drag us into that darkness where this concept of
the survival of the fittest prevails, and whoever was strongest
prevails, then it would not matter.
But, no, we believe that all people are created by God and have a
divine spark in them and that they deserve to be protected and that is
what the rule of law is all about.
And I just pray that God will continue to give the President of the
United States the courage and the insight and the soundness of mind to
protect America and the world and this United States Constitution that
has given us the greatest Republic on earth.

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