[Congressional Record Volume 151, Number 118 (Tuesday, September 20, 2005)]
[Senate]
[Pages S10214-S10215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE

  Mr. REID. Mr. President, one of the Senate's most important 
constitutional responsibilities is to provide advice and consent with 
respect to a President's nominations. The task is especially important 
when the nomination is an individual to be Chief Justice of the United 
States. No one doubts John Roberts is an excellent lawyer and a very 
affable person. But at the end of this process, frankly, I have too 
many unanswered questions about the nominee to justify a vote 
confirming him to this enormously important lifetime position.
  The stakes for the American people could not be higher. The 
retirement of Justice O'Connor and the death of Chief Justice Rehnquist 
have left the Supreme Court in a period of transition. On key issues 
affecting the rights and freedoms of Americans, the Court is closely 
divided. If confirmed, Judge Roberts, who is only 50 years old, will 
likely serve as Chief Justice and leader of the third branch of the 
Federal Government for many decades.
  The legal authority we will hand to Judge Roberts by this 
confirmation vote is awesome. We should only vote to confirm this 
nominee if we are absolutely positive that he is the right person to 
hold that authority. For me, this is a very close question, but I must 
resolve my doubts in favor of the American people whose rights would be 
in jeopardy if John Roberts turns out to be the wrong person for this 
job.
  Some say the President is entitled to deference from the Senate in 
nominating individuals to high office. I agree that deference is 
appropriate in the case of executive branch nominees such as Cabinet 
officers. With some important exceptions, the President may generally 
choose his own advisers. In contrast, the President is not entitled to 
much deference in staffing the third branch of Government, the 
judiciary. The Constitution envisions that the President and the Senate 
will work together to appoint and confirm Federal judges. This is a 
shared constitutional duty. The Senate's role in screening judicial 
candidates is especially important in the case of Supreme Court 
nominees because the Supreme Court has assumed such a large role in 
resolving fundamental disputes in our civic life. Any nominee for the 
Supreme Court bears the burden of persuading the Senate and the 
American people that he or she deserves a confirmation to a lifetime 
seat on that Court.
  First, I start by observing that John Roberts has been a thoughtful, 
mainstream judge on the DC Circuit Court of Appeals, but he has only 
been a member of that court for 2 years and has not confronted many 
cutting-edge constitutional issues, if any. As a result, we cannot rely 
on his current judicial service to determine what kind of a Supreme 
Court Justice he would be.
  I was very impressed with Judge Roberts when I first met him in my 
office soon after he was nominated, but several factors caused me to 
reassess my initial view. Most notably, I was disturbed by the memos 
that surfaced

[[Page S10215]]

from Judge Roberts' years of service in the Reagan administration. 
These memos raise serious questions about the nominee's approach to 
civil rights. It is now clear that as a young lawyer, John Roberts 
played a significant role in shaping and advancing the Republican 
agenda to roll back civil rights protections. He wrote memos opposing 
legislative and judicial efforts to remedy race and gender 
discrimination. He urged his superiors to oppose Senator Kennedy's 1982 
bill to strengthen the Voting Rights Act and worked against affirmative 
action programs. He derided the concept of comparable worth and 
questioned whether women actually suffered discrimination in the 
workplace.
  No one is suggesting John Roberts was motivated by bigotry or 
animosity toward minorities or women, but these memos lead one to 
question whether he truly appreciated the history of the civil rights 
struggle. He wrote about discrimination as an abstract concept, not as 
a flesh-and-blood reality for countless of his fellow citizens. The 
memos raised a real question for me whether their author would breathe 
life into the equal protection clause and the landmark civil rights 
statutes that come before the Supreme Court repeatedly. Nonetheless, I 
was prepared to look past these memos and chalk them up to the folly of 
youth. I looked forward to the confirmation hearings in the expectation 
that Judge Roberts would repudiate those views in some fashion. 
However, the nominee adopted what I considered a disingenuous strategy 
of suggesting that the views expressed in those memos were not his, 
even at the time the memos were written. That is what he said. He 
claimed he was merely a staff lawyer reflecting the positions of his 
client, the Reagan administration.
  Anyone who has read the memos can see that Roberts was expressing his 
own personal views on these important policy matters. In memo after 
memo, the text is very clear. It is simply not plausible for the 
nominee to claim he did not share the views he personally expressed. 
For example, there is a memo in which he refers to the Equal Employment 
Opportunity Commission as ``un-American.'' If Judge Roberts had 
testified that this was a 20-year-old bad joke, I would have given the 
memo no weight. Instead, he provided a tortured reading of the memo 
that simply doesn't stand up under any scrutiny.

  In another memo, Judge Roberts spoke about a Hispanic group President 
Reagan would soon address and he suggested that the audience would be 
pleased to know the administration favored legal status for the 
``illegal amigos'' in the audience--illegal amigos. After 23 years, 
couldn't he acknowledge that was insensitive, that it was wrong? The 
use of the Spanish word ``amigos'' in this memo is patronizing and 
offensive to a contemporary reader. I don't condemn Judge Roberts for 
using the word ``amigos'' 20 years ago in a nonpublic memo, but I was 
stunned when at his confirmation hearing he could not bring himself to 
express regret for using that term or recognize that it might cause 
offense.
  My concerns about these Reagan-era memos were heightened by the fact 
that the White House rejected a reasonable request by committee 
Democrats for documents written by Judge Roberts when he served in the 
first Bush administration. After all, if memos written 23 years ago are 
to be dismissed as not reflecting the nominee's mature thinking, it 
would be highly relevant to see memos he had written as an older man in 
an even more important policymaking job. The White House claim of 
attorney-client privilege to shield these documents is utterly 
unpersuasive. Senator Leahy, ranking member of the Judiciary Committee, 
asked Attorney General Gonzales for the courtesy of a meeting to 
discuss the matter and was turned down. This was simply a matter of 
stonewalling.
  The failure of the White House to produce relevant documents is 
reason enough for any Senator to oppose this nomination. The 
administration cannot treat the Senate with such disrespect without 
some consequence. In the absence of these documents, it was especially 
important for the nominee to fully and forthrightly answer questions 
from committee members at his hearing. He failed to do so adequately. I 
acknowledge the right--indeed, the duty--of a judicial nominee to 
decline to answer questions regarding specific cases that will come 
before the Court to which the witness had been nominated. But Judge 
Roberts declined to answer many questions more remote than that, 
including questions seeking his views of long-settled legal precedent.
  Finally, I was very swayed by the testimony of civil rights and 
women's rights leaders against the confirmation. When a civil rights 
icon such as John Lewis, one of my American heroes, appears before the 
committee and says John Roberts was on the wrong side of history, I 
take note. Senators should take notice.
  I personally like Judge Roberts. I respect much of the work he has 
done in his career. For example, his advocacy for environmentalists in 
a Lake Tahoe takings case several years ago was good work. In the 
fullness of time, he may well prove to be a fine Supreme Court Justice. 
But I have reluctantly concluded that this nominee has not satisfied 
the high burden of justifying my voting for his confirmation based on 
the current record.
  Based on all these factors, the balance shifts against Judge Roberts. 
The question is close, and the arguments against him do not warrant 
extraordinary procedural tactics to block his nomination. Nevertheless, 
I intend to cast my vote against this nomination when the Senate 
debates the matter next week.
  I thank the Chair and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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