[Congressional Record Volume 151, Number 119 (Wednesday, September 21, 2005)]
[Senate]
[Pages S10250-S10253]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF JOHN ROBERTS

  Mr. LEAHY. Mr. President, this week, as we celebrate our 
Constitution's 218th anniversary, we are nearing the exercise of one of 
the Senate's most solemn constitutional requirements and 
responsibilities. Few decisions the Senate faces are as consequential 
and enduring as when the Senate decides whether to confirm, by giving 
its consent, the nomination of a justice--of course, even more so when 
the nomination is for Chief Justice of the United States.
  The Supreme Court is different from the lower courts. The Supreme 
Court is the only Federal court required by the Constitution itself. 
Actually, the Chief Justice is the only member of the Court expressly 
named in the Constitution. All other courts are bound by the decisions 
of the Supreme Court. Its decisions are final. They are unappealable. 
Only the Supreme Court can modify or overrule its precedents. Its power 
is enormous. The role of the Chief Justice is to lead not only that 
all-powerful Court but the entire third branch of Government. We have 
had 43 Presidents in this country, but we have had only 16 Chief 
Justices--all appointed for life.
  The distinguished senior Senator from West Virginia, Mr. Byrd, whose 
passionate advocacy established our Constitution Day commemoration, 
describes the Constitution very accurately as the soul of our Nation. 
The Senate's advice and consent responsibilities are at the core of 
this body's vital role in our Republic.
  This week, we commemorate our Constitution in a time of great 
challenges, and we are reminded again how resilient our Constitution is 
in empowering our Nation to meet each era's challenges. The carefully 
calibrated checks and balances within our Constitution are essential to 
that. No branch of Government is intended to be the rubberstamp of 
another branch.
  Each day, Americans are fighting and dying in Iraq. Hundreds of 
thousands of Americans have been displaced by disasters here at home. 
Four years after 9/11, with public confidence shattered, we have to 
embark on a review of why we are still not prepared to respond to a 
terrorist attack or foreseen natural disasters.
  The cost of energy--gas and home heating fuels--continues to climb to 
all-time highs, adding to the cost of other goods. The administration 
is suspending environmental and worker protections. Poverty and the 
disparities of opportunity between races and classes continue their 
insidious rise each year. After having seen recent years of budget 
surpluses, now the country's budget deficits are at previously unheard 
of levels--between $300 billion and $400 billion a year. Our national 
debt is at $8 trillion--8,000 billion dollars--that is a profligate 
amount. It can only be paid off by our children and our grandchildren.
  So Americans need to know their constitutional rights will be 
protected, that their Government is on their side, and that the courts 
will be a place of refuge, stability, independence, and justice.
  The nomination of Judge John Roberts to be Chief Justice of the 
United States presents a close question and one that each Senator must 
carefully weigh and decide. This is a question that holds serious 
consequences for all Americans today and for generations to come. I 
have approached this nomination with an open mind, as I do all judicial 
nominations. There is no entitlement to confirmation for lifetime

[[Page S10251]]

appointments on any court for any nomination by any President, 
Democratic or Republican.

  I have served in the Senate for slightly over three decades, and on 
the Judiciary Committee for most of that time. I take my constitutional 
responsibility with respect to advice and consent seriously. I am 1 
vote out of 100, but I recognize those 100 of us privileged to serve in 
the Senate are entrusted with protecting the rights of 280 million of 
our fellow citizens. We stand in their shoes. We and the President are 
the ones with a vote in the choice of the Chief Justice of the United 
States.
  With this vote, I do not intend to lend my support to an effort by 
this President to move the Supreme Court and the law dramatically to 
the right. Above all, balance and moderation on the Court are crucial. 
I want all Americans to know the Supreme Court will protect their 
rights and respect the authority of Congress to act in their interests. 
I want a Supreme Court that acts in its finest tradition as a source of 
justice. The Supreme Court must be an institution where the Bill of 
Rights and human dignity are honored.
  I have voted for the vast majority of President Ford's, President 
Carter's, President Reagan's, President George H.W. Bush's, President 
Clinton's, and President George W. Bush's judicial nominees. I have 
drawn the line only at those nominees who were among the most 
ideologically extreme who came to us in the mode of activists. That is 
what they were intended to be. That is the way they were described. 
That is the way they came to us. In those cases, the President opted 
not to seek moderate candidates. I think some of these extreme choices 
were sent here to politicize the process and did so to a greater extent 
than I had previously seen in my 31 years in the Senate.
  I have not reflexively opposed Republican nominees or conservative 
judicial nominees nominated by Republican Presidents. In fact, I 
recommended a Republican to President Clinton to fill Vermont's seat on 
the Second Circuit, Judge Fred Parker. I recommended another 
Republican, Judge Peter Hall, to President Bush to fill that seat after 
Judge Parker's death.
  I voted for President Reagan's nominations of Justice Sandra Day 
O'Connor and Justice Anthony Kennedy, and for President Bush's 
nomination of Justice Souter.
  Unfortunately, this President has said he approached this matter as 
if fulfilling a campaign pledge to appoint someone in the mold of 
Justice Thomas and Justice Scalia. I voted against confirmation of 
Justice Thomas. I voted for Justice Scalia, and I now question that 
vote, as many of those who voted for him do today. If I thought Judge 
Roberts would easily reject precedent in the manner of Justice Thomas 
or would use his position on the Supreme Court as a bulwark for 
activism in the manner of Justice Scalia, then I would not hesitate to 
vote no. If I were convinced he would undercut fundamental rights of 
privacy or equal protection, this would not even be a close question.
  I want to vote for a Chief Justice of the United States who I am 
confident has a judicial philosophy that appreciates the vital role of 
the judiciary in protecting the rights and liberties of all Americans. 
Chief Justice Marshall understood the essential function of the 
judiciary as a check on Presidential power. Under his leadership, the 
Constitution's guarantee of an independent judiciary and the bedrock 
principle of judicial review became realities. But Chief Justice Roger 
Taney, who everybody said was a brilliant lawyer, led the Court in a 
different and destructive direction. He authored the Dred Scott 
decision which propelled the States toward Civil War by relying only on 
technical reasoning and an unjust holding that denied all African 
Americans the status of citizens.
  Contrast that with Chief Justice Earl Warren. He led the Supreme 
Court and the Nation in a crowning achievement when he forged the 
unanimous decision in Brown v. Board of Education and breathed life 
into the equal protection guarantee of the 14th amendment and put a 
stop to segregation in this country, which will always be a blot on our 
national conscience.
  The President has asked that this nomination be handled with fairness 
and dignity. No matter how we vote, the Judiciary Committee has met 
those standards. Our committee held a hearing on the merits. I worked 
with the chairman to expedite the committee's consideration of the 
nomination of John Roberts to the Supreme Court out of respect to 
Justice O'Connor and the work of the Court.
  Fewer than 36 hours after the announcement of the passing of Chief 
Justice Rehnquist and during the horrific aftermath in the week 
following Hurricane Katrina, the President withdrew that nomination to 
be Associate Justice. Thereafter, we were sent this alternative 
nomination for Judge John Roberts to become the Chief Justice of the 
United States. Again, I cooperated with Chairman Specter in an 
accelerated consideration of this nomination.
  I wish we had had as much cooperation coming from the administration. 
Although we started off well with some early efforts at consultation 
after Justice O'Connor's retirement announcement in early July, that 
consultation never blossomed into meaningful discussions. It was 
truncated after a bipartisan meeting with Senate leaders at the White 
House. The President did not share his thinking with us or his plans, 
although that would be the nature of true consultation. His naming of 
Judge Roberts as his choice to replace Justice O'Connor came as a 
surprise, not as something that came resulted from meaningful 
consultation.
  He then preemptively announced that he decided to withdraw that 
nomination and, instead, nominated Judge Roberts to succeed Chief 
Justice Rehnquist. He did so at 8 a.m. on the Monday morning following 
the announcement on the previous Saturday night of the Chief's passing. 
There could and should have been consultation with the Senate on the 
nomination of somebody to succeed Chief Justice Rehnquist and to serve 
as the 17th Chief Justice of the United States. For that position as 
Chief Justice there was no consultation. In fact, I learned about the 
President's decision shortly before his televised announcement Monday 
morning.
  I think the administration committed another disservice to this 
nomination and, especially to this nominee, by withholding information 
that has traditionally been shared with the Senate. The administration 
treated Senators' requests for information with little respect. 
Instead, for the first time in my memory, they grafted exceptions from 
the Freedom of Information Act to limit their response to legitimate 
requests from Senators for information.
  In fact, they stonewalled entirely the narrowly tailored request for 
work papers from 16 of the cases John Roberts handled when he was the 
principal deputy to Kenneth Starr at the Solicitor General's office 
during the President's father's administration. The precedent from 
Chief Justice Rehnquist's hearing and others, of course, goes the other 
way.
  Previous Presidents have paid the appropriate respect and 
acknowledgment to the Senate and to the constitutional process by 
working with the committee to provide such materials. Accordingly, it 
is understandable if a Senator were to vote against the President's 
nomination on this basis alone.
  I must also say that some of my friends on the other side of the 
aisle disserved the confirmation process by urging the nominee not to 
answer questions or reveal his judicial philosophy during the course of 
the hearing. One notable exception was the chairman of the committee. I 
appreciate Senator Specter's commitment to the role of the Senate and 
his taking our duty to advise and consent as seriously as it deserves 
to be taken. Regrettably, many of the answers of the nominee seemed to 
take to heart the bad advice that he had heard from the other side.
  Finally, I believe the nominee disserved himself by following the 
script that he developed while serving in the Reagan administration. He 
and this administration rejected the spirit of Attorney General 
Jackson's opinion that with respect to Senate consideration of 
nominations, no person shall be submitted ``whose entire history will 
not stand light.'' The nominee took a narrow judicial ethics rule 
correctly limiting what a judge or judicial nominee should say about a 
particular case--I agree with him on that--and turned it into a broad 
excuse from comments on any issue that might arise at any time, in any 
case. He apparently rejected the Supreme Court's

[[Page S10252]]

holding in 2002, in Republican Party of Minnesota v. White, in which 
Justice Scalia held that a State canon limiting judicial candidates 
from announcing their views on legal and political issues was 
unconstitutional.
  By contrast, however, the public witnesses who appeared last Thursday 
were extraordinarily helpful in underscoring what is at stake for all 
Americans with this decision. No one who heard Congressman John Lewis, 
Wade Henderson, and Judge Nathaniel Jones can doubt the fundamental 
importance of our refusal to retreat from our Nation's commitment to 
civil rights. This Nation can never retreat from that commitment to 
civil rights or we fail as a nation.
  The testimony of Coach Roderick Jackson and Beverly Jones reminded us 
how courageous Americans are still opening doors and going to our 
courts to right wrongs. The testimony of Anne Marie Talman of MALDEF 
reflected what is at stake when alien children are denied education and 
benefits that should be available to every child in America.
  We had a dignified and fair process. Again, I commend Chairman 
Specter and those members of the committee on both sides of the aisle 
who did not prejudge the matter and who did not seek to politicize the 
process.
  The hearings did provide the committee with some information. I was 
encouraged by Judge Roberts' answer to my question about providing the 
fifth vote needed to stay an execution when four other justices vote to 
review a capital case. That has not always been the practice of late. 
He was right to recognize the illogic--if not the injustice--of having 
the necessary votes to review the case but lacking the necessary vote 
to allow that review to take place, especially a review that takes 
place when someone's life is in the balance.
  I hope the nominee will take up our suggestion to allow greater 
access to the Supreme Court's proceedings by authorizing their being 
televised. I will work with him and Chairman Specter and Senator 
Grassley to increase transparency in the work of the increasingly 
important FISA court. This is the foreign intelligence surveillance 
court that acts in secret, with very little oversight--certainly 
precious little oversight in the past few years--from the Senate. Only 
recently have we begun to ask the questions we should have been asking.
  I also urge him to consider ways to decentralize the power 
accumulated to the Chief Justice so that the Judicial Conference, the 
circuit courts, and others can do more. I encourage him to reform the 
recusal procedures and conflict-of-interest protections at all levels 
of the judiciary but in particular with regard to the Supreme Court 
itself. Perhaps what many have said were his own missteps in connection 
with his interviewing for this nomination during its consideration of 
the Hamdan case will inspire him to greater efforts in this important 
regard.
  As a young man, Judge Roberts clerked for Judge Henry Friendly of the 
U.S. Court of Appeals for the Second Circuit. That is my circuit, a 
circuit I have been proud to argue before. The Second Circuit has been 
home to a number of leading judicial lights; certainly, Henry Friendly 
was among them. I hope he is going to be faithful to Judge Friendly's 
fairness and thoughtfulness, something all of us in that circuit 
respected.
  I made no secret of my concerns about this nomination. In advance of 
the hearing, I met twice with Judge Roberts, and for nearly 3 hours in 
all I raised my concerns. I provided him additional opportunities to 
respond during the hearing. This is not a case of ``gotcha.'' This is a 
case of finding out how he thinks and who he is.
  I told him I was concerned that he would not act as an effective 
check on the abuse of presidential power. Judge Roberts' work in the 
Reagan and Bush Justice Departments, as well as his former period in 
the Reagan White House, seems to have led him to a philosophy of 
significant deference to presidential authority. It is exhibited in his 
recent decisions in the Hamdan, Acree, and Chao cases, among others. 
Maybe this deference was a principal basis on which the President chose 
him. None of us know.
  But I did learn other things. I learned, throughout the process, that 
Judge Roberts and I share admiration for Justice Robert Jackson. 
Justice Jackson's protection of fundamental rights, including unpopular 
speech under the first amendment--of course, popular speech never needs 
protection; it is the unpopular speech that needs protection--and his 
willingness to serve as a check on presidential authority are among the 
finest actions by any Justice in our history.

  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. LEAHY. Mr. President, I ask unanimous consent for 10 additional 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. When Judge Roberts testified about his respect for Justice 
Jackson, I hoped it was a signal he was sending. I actually posed that 
question to him and asked him if he was sending us a signal.
  I accept his assurance that he will act as an independent check on 
the President in the mold of Justice Jackson and that when he joins the 
Supreme Court, he will no longer heavily defer to presidential 
authority. It is one of the crucial roles of the Court, and I take him 
at his word that he will do so.
  This is a fundamental question. We know that we are in a period in 
which the executive has a complicit and, some would say, compliant 
Republican Congress that refuses to serve as a check or balance. 
Without the courts to fulfill that constitutional role, excess will 
continue, and the balance will be tilted.
  The other dimension of the fundamental balance of constitutional 
powers involves appropriate deference to congressional action taken by 
the people's elected representatives. The manner and techniques Judge 
Roberts has used while in the executive, private practice, and while 
briefly on the DC Circuit, show him to require an unrealistic 
exactitude in drafting laws that no collective body could ever meet, 
especially one of 535 people. I wish he had served in Congress or 
worked for a time in Congress so he would have a deeper understanding 
of the legislative process. I hope that his experience during the 
hearing and the many questions from Senators of both sides of the aisle 
have helped to increase his appreciation for congressional authority 
and its importance.
  I believe the current activism of the Supreme Court must be 
curtailed. I hope that will not be a part of Chief Justice Rehnquist's 
legacy that John Roberts seeks to continue. Congress acts to protect 
the interests of Americans through the commerce clause, spending powers 
and the 14th amendment. That has to be respected. I am encouraged by 
his assurances that he will respect congressional authority.
  My reading of his dissent from the denial of rehearing en banc of the 
Rancho Viejo v. Norton case, in which he made the ``hapless toad'' 
reference, is that he urged rehearing to ``afford the opportunity to 
consider alternative grounds for sustaining application of the Act.'' 
Indeed, his steadfast reliance on the Supreme Court's recent Raich 
decision as significant precedent contravening further implications 
from Lopez and Morrison was intended to reassure us that he would not 
join the assault on congressional authority under the commerce clause. 
I heard him, and I rely on him to be true to the impression he created.
  As a lawyer, John Roberts has been significantly involved in the 
development of Supreme Court authority limiting the authority of 
Congress under its constitutional spending powers. He argued before the 
Supreme Court in the 1980s, 1990s, and in this decade in a series of 
cases--South Dakota v. Dole, Wilder v. Virginia Hospital Association, 
Suter v. Artist M., and Gonzaga University v. Doe--in which he talked 
about narrowing Congress's spending powers and limiting the ability of 
individuals to sue to compel the protections Congress required under 
Federal law.
  His briefs in Gonzaga adopted the extreme view that spending power 
enactment was a contract between the State and Federal Governments and 
that the intended beneficiaries of those programs had no rights to sue 
to enforce the commitments, even when states were violating the law and 
the Federal government was not effectively enforcing it. I questioned 
him extensively on

[[Page S10253]]

that. At the hearing, he took pains to assure me and Senator Feinstein, 
among others, that as Chief Justice, he would not continue to urge 
additional restrictions and would respect congressional authority. To 
do otherwise would greatly undermine Congress's ability to serve the 
interests of all Americans and protect the environment, assure equal 
justice, provide health care and other basic benefits. I think he knows 
that now.
  From the initial questioning by Chairman Specter, throughout the 
testimony of the nominee, many Senators asked about the fundamental 
reproductive rights of women. He testified that he now recognizes Roe 
v. Wade and Planned Parenthood v. Casey as established precedents of 
the Supreme Court and entitled to respect.
  He testified that he interprets the liberty protected by the due 
process clause of the 14th amendment as the constitutional bedrock of 
the right of privacy, both substantive and procedural. Here, too, 
within the overly strict confines of his own self-imposed constraints 
on his answers, he consciously created the impression that he would not 
be a judicial activist on this essential point. He left me with the 
understanding that he would not seek to overrule or undercut the right 
of a woman to choose. I trust that he is a person of honor and 
integrity, that he will act accordingly.
  As Chief Justice, John Roberts would not be only an appointee of a 
Republican administration or a legal advocate for a narrow interest. As 
Chief Justice, he has to be able to check the abuse of presidential 
power. As Chief Justice, he must support congressional efforts to serve 
the interests of all Americans. As Chief Justice, he has to work to 
ensure that the Federal courts, and the Supreme Court in particular, 
are halls of justice where Americans such as Beverly Jones and Roderick 
Jackson and Christine Franklin can see and find redress for grievances, 
meaningful remedies for the violation of their rights, and protection 
of their fundamental interests.

  Justice White wrote in the Franklin case:

       From the earliest years of the Republic, the Court has 
     recognized the power of the Judiciary to award appropriate 
     remedies to redress injuries actionable in court.

  As Chief Justice, John Roberts has to ensure that the Supreme Court 
and all Federal courts never ``abdicate our historic judicial authority 
to award appropriate relief in cases brought in our court system.''
  Supreme Court Justices decide what cases to decide. They consciously 
shape the direction of the law by choosing which cases to hear as well 
as how they are to be decided. We know he believes in the rule of law. 
I was impressed when he talked about why he went to law school--because 
he believes in the rule of law. That was the same reason that I went to 
Georgetown Law School. But court decisions--and especially Supreme 
Court decisions--are not mechanical applications of neutral principles. 
If they were, all judges would always reach the same results for the 
same reasons. But they don't. Legal decisions are not mechanical. They 
are matters of judgment and often matters of justice.
  As Chief Justice, John Roberts is responsible for the way in which 
the judicial branch administers justice for all Americans. He must 
know, in his core, in his heart, in his whole being, the words engraved 
in the Vermont marble on the Supreme Court building are not just 
``under law'' but ``equal justice under law.'' It is not just the rule 
of law that he must serve but the cause of justice under our great 
charter.
  I heard days of testimony and held hours of meeting with Judge 
Roberts. I would have liked more information, of course. I always want 
more.
  Is a ``no'' vote the easier, more popular one? Of course. For me it 
would be. But in my judgment, in my experience, but especially my 
conscience, I find it is better on this nomination to vote yes than no. 
Ultimately, my Vermont roots have always told me to go with my 
conscience, and they do so today.
  Judge Roberts is a man of integrity. I can only take him at his word 
that he does not have an ideological agenda. For me, a vote to confirm 
requires faith that the words he spoke to us have meaning. I can only 
take him at his word that he will steer the Court to serve as an 
appropriate check of potential abuses of Presidential power.
  I respect those who have come to different conclusions, and I readily 
acknowledge the unknowable at this moment, that perhaps they are right 
and I am wrong. Only time will tell. All of us will vote this month, 
but only later will we know if Judge Roberts proves to be the kind of 
Chief Justice he says he will be, if he truly will be his own man. I 
hope and trust that he will be.
  I will vote for his confirmation. I will give my consent as a 
Senator.
  I yield the floor, and I 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. CORNYN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I ask unanimous consent that I be allowed 
15 minutes to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________